L v State of South Australia; H-P v State of South Australia

In L v State of South Australia; H-P v State of South Australia, the Supreme Court of South Australia, constituted by Kourakis CJ, Parker and Doyle JJ, considered questions of law reserved concerning the judicial review of decisions made by the Minister for Education and Children Development regarding children under the guardianship of the Minister. The applicants sought declaratory relief challenging the lawfulness and validity of decisions to remove children from their existing placements and make alternative placements.

The central legal issues before the Court were whether decisions to remove children from one carer and place them with another were amenable to judicial review on grounds of procedural fairness, compliance with statutory procedures under the Children and Young People (Care and Protection) Act 2007 (SA) (CPA), and unreasonableness. Specifically, the Court had to determine the extent to which such decisions could be challenged for invalidity or unlawfulness.

The Court reasoned that while there is a duty to afford procedural fairness and comply with statutory procedures before removing and re-placing children under the Minister's guardianship, a failure to do so does not automatically vitiate the decision to remove the children. The CPA preserves the validity of the Minister's placement decisions, directing that challenges to guardianship orders are to be heard by the Youth Court, where the child's interests are paramount. Similarly, decisions to remove children are immunised from challenges based on unreasonableness. However, the Court held that decisions to place a child with a carer are amenable to declaratory relief concerning compliance or non-compliance with express or implied procedures. Apprehended failures to comply with required procedures are subject to declaration or other prophylactic relief, and in exceptional cases, a retrospective declaration of a failure to comply may have utility. The Court concluded that decisions to remove children and place them with alternative carers are amenable to declaratory relief for unlawfulness, but not for invalidity, on the grounds of a failure to afford procedural fairness, comply with statutory provisions, or for unreasonableness.