OSBORNE and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT - [2017] WASAT 124

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA)

CITATION: OSBORNE and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2017] WASAT 124

MEMBER: MS H LESLIE (MEMBER)

HEARD: 3 TO 4 AND 8 TO 11 NOVEMBER 2016

DELIVERED : 2 DECEMBER 2016

PUBLISHED : 14 SEPTEMBER 2017

FILE NO/S: CCS 4 of 2015

BETWEEN: TANIA OSBORNE
Applicant
AND
DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent

Catchwords:

Children - Protection order - Review of care plan - Foster placement of a child by CEO - Discretion of CEO to place - Limits on discretion - Contact with previous foster carer - Best interests of child

Legislation:

Children and Community Services Act 2004 (WA), s 7, s 8, s 8(1)(d), s 9, s 9(e), s 9(g), s 15, s 54, s 56(4), s 57, s 79, s 89(1), s 89(2), s 89(4), s 90(1), s 93, s 93(1), s 94, s 94(1)
Children and Community Services Regulations 2006 (WA), reg 4
State Administrative Tribunal 2004 (WA), s 29(3)

Result:

Decision of CEO regarding placement affirmed
Decision of CEO regarding ongoing contact with previous foster carer varied to include greater contact
Care plan varied accordingly

Summary of Tribunal's decision:

A foster carer (the applicant) who had cared for P, a high needs child, for five years resigned as agency foster carer and relinquished care of P. P was placed with alternate foster carers (the second placement). The applicant reconsidered her position and then sought the return of P to her care. The applicant applied under s 94 of the Children and Community Services Act 2004 (WA) (the CCS Act) for a review of the Chief Executive Officer's (CEO) decision to approve the second placement and to limit the applicant's contact with P. The respondent argued that as the applicant was not an approved foster carer with either the respondent or, any longer, with the agency that had the placement contract for P, that P could not be placed with her and, in the alternative, that it was neither in P's interest to be moved from the second placement nor to be placed with the applicant, given her prior actions. The applicant argued that the CEO had an unfettered discretion in relation to placements and that she could and should place P with the applicant, and that such a placement, rather than P remaining in the second placement, was in P's best interest.
The Tribunal considered the scope of the CEO's discretion and found that the CEO did have an unfettered discretion and could have placed P back with the applicant and therefore that to do so was open to the Tribunal upon review. However, the Tribunal took the view that, given the importance of continuity and stability in the living arrangements of P and the likely effect on P of disruption or change in those living arrangements, it was not in P's best interests to be moved from the second placement where she had settled, was happy and had made good progress in the 18 months since moving there.
The Tribunal took the view that the applicant was an important person in P's life and P was entitled to the benefit of an ongoing relationship with the applicant but that such contact occurring was conditional on the applicant not undermining the second placement against P's best interests.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Ms FB Seward

Solicitors:

Applicant: N/A
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Application

The applicant seeks a review of a decision made by the Chief Executive Officer (CEO) of the respondent (the respondent) on 20 January 2016 to confirm care planning decisions made in relation to P and recorded in a care plan dated 14 August 2015, as modified by the CEO's decision of 20 January 2016 regarding the issue of contact between P and the applicant.
There is no issue that the applicant has standing to make an application under s 94 of the CCS Act.
It is noted that there was some ambiguity regarding the precise articulation by the applicant of the issue in respect of which she was aggrieved.
The issues identified by the parties for the purpose of the review are:
1)what is the correct and preferable decision as to the placement of P having regard to the best interests of P, the alternatives being a return to live with the applicant or the maintenance of the current placement?
2)what is the correct and preferable decision as to contact between P and the applicant having regard to the best interests of P?

Determination

On 2 December 2016, the Tribunal made final orders on the application and delivered an oral summary of its reasoning.
The orders made were:
1.The care planning decision as to contact between the applicant and P made by the CEO is varied to provide as follows:
Subject to the applicant agreeing in writing to comply with the conditions contained in Dot Points 15 and 7 of the Safety Plan attached to the Respondent's Draft Conditions filed in the Tribunal 21 October 2016 (a copy of which is attached to this order), and on condition that she does in fact comply with those conditions, the applicant shall have
(a)unsupervised contact with P for 6 hours on a weekend every six weeks.
(b)in addition, unsupervised contact with P from 5 pm Friday afternoon until 5 pm Sunday afternoon on one weekend during each school holiday period.
(c)in addition, if invited by P's maternal grandparents, unlimited contact during times that P is staying with or visiting with her grandparents.
(d)telephone contact at any time that P instigates a phone call to her.
(e)unrestricted contact by letters, cards, exchange of photos etc. as previously, to be sent to P via the [respondent's] case manager.
2The care planning decision as to the placement of P with the current carers Mr and Mrs B made by the CEO is affirmed.
3Detailed Reasons for Decision will be published

Background

P was born on 11 May 2005. As at the date of the hearing she was 11 years old. She suffers from severe epilepsy, autism and global developmental delay.
The respondent first became involved in the case of P at the request of P's grandparents in approximately mid-2008. In the initial period, P moved between a number of different temporary foster placements.
On 13 October 2008, the Western Australia Children's Court (Children's Court) made a protection order (time limited) in relation to P giving the CEO parental responsibility for P for a period of two years (pursuant to s 54 of the Children and Community Services Act 2004 (WA) (CCS Act)). Various extensions were granted to the CEO.
In late 2009, P was placed by the CEO with her grandparents.
On 29 July 2010, the service provider agency Key Assets was contracted to provide out-of-home 24/7 accommodation for P. On 10 September 2010, P was placed with the applicant and her then husband who had, on 27 May 2010 been approved by Key Assets as foster carers and had on 10 June 2010 entered into a foster carer agreement with Key Assets.
On 10 September 2010, the applicant and her then husband entered into a foster placement agreement with Key Assets for the placement of P and she moved to live with them as her foster carers.
Not long after that, in December 2010, the applicant and her then husband separated. The applicant continued to care for P as her foster carer and subsequently entered into a sole foster care agreement with Key Assets.
In 2011, P commenced mainstream schooling.
On 11 October 2012, the Children's Court ordered that it was in P's best interests that the time limited protection order be revoked and that a protection order giving the CEO parental responsibility for P until she reaches the age of 18 pursuant to s 56(4) and s 57 of the CCS Act be made.
It is not in dispute that during her time as P's foster carer, the applicant loved and cared for P and was a devoted foster carer. There are no allegations that the applicant in any way physically abused or neglected P.
Until approximately November 2013, that is, for over three years, the applicant continued to care for P without any issue or adverse comment from the respondent.
In the latter part of 2012, Key Assets appointed a new director.
It is said by the respondent, that from approximately November 2013, Key Assets personnel began to have concerns about some aspects of the applicant's care of P. (It does however appear that these concerns were not documented until March 2015). From this time, it is said by the respondent, the relationship between the applicant and Key Assets began to deteriorate.
The respondent summarises those concerns as follows:
(1)The applicant's anxiety levels and co-dependency on P;
(2)difficulties with practical support from own support network;
(3)not accepting any introduced support in a timely way;
(4)advising of incidents/changes too late;
(5)potential for over-diagnosis or over medicating;
(6)the applicant's own agenda being in conflict with that of P's legal guardian (the CEO) and Key Assets policy and procedure; and
(7)P's behaviour.
In February 2014, Cheryl Harrop became the Key Assets social worker appointed to P's placement.
In April 2014, P's care plan was again approved on the basis that P continue to reside with the applicant. In late 2014, two meetings regarding the alleged areas of concern were held by the respondent. At approximately this time the applicant became aware that she was pregnant.
In February 2015, Key Assets personnel are said to have formed the preliminary view that P's placement is untenable.
In March 2015, Key Assets made the initial decision to end the placement. During that month, the applicant approached the respondent in an effort to become a foster carer contracted directly by the respondent in order to attempt to continue to provide foster care to P but not through Key Assets.
From approximately March 2015, the relationship between the applicant and Key Assets further deteriorated.
The respondent further refined and clarified its concerns in May 2015 as follows:
(a)the applicant does not access or accept the support she needs to care for P;
(b)the applicant uses inappropriate behaviour management strategies that she does not acknowledge and is unwilling to address;
(c)the applicant is overly focusing on P's health and is seeking diagnosis (and consequently medication and treatment) from medical professionals that are not warranted;
(d)the applicant has not always managed to ease diagnosed medical conditions appropriately or in line with protocols;
(e)the applicant is not encouraging P's development and independent living skills;
(f)the applicant has continued to support P using 'business cards' that label her disability, against the advice of Key Assets and the Respondent;
(g)the applicant is making independent arrangements for P that have not been endorsed by Key Assets and the Respondent;
(h)P is displaying unmanaged attention seeking and negative behaviour that is escalating and placing her and the applicant at risk of harm; and
(i)P and the applicant have developed a co-dependent relationship that is impacting on P's behaviour and development.
The respondent's case is that very early in May 2015, the initial decision to remove P from the applicants care was cancelled following a Signs of Safety check. On 4 May 2015, a meeting was held between the applicant, together with a support person, and the respondent and the decision to end the placement was placed on hold.
On 12 May 2015, the applicant lodged a complaint with the complaints management unit of the respondent. On 15 May 2015, a further meeting between the applicant, together with her support person, and the respondent occurred.
The respondent's case is that as at 18 May 2015, there were in train a series of investigations to try and determine what was the best course to take in P's best interests. The evidence of Siobhan Rowles supports this - that, at that point, the decision of the respondent was 'to support the placement and to work on the issues' rather than to remove P.
On 18 May 2015, the applicant relinquished care of P and resigned as a foster carer. She left P at school with her bag in which the applicant had packed some of P's belongings. The applicant telephoned the relevant departmental caseworker and advised that she could no longer be P's carer. She advised that she had dropped P at her school with a bag containing some of her belongings. She requested that the respondent collect P after school and arrange an alternative placement for her. The applicant also sent a letter by email to the respondent and to Key Assets the same day stating that she was 'no longer volunteering [her] availability as a foster carer. This will take effect immediately'. This letter also requested that the respondent collect the remainder of P's belongings as the applicant did 'not wish to have any more contact with Key Assets'.
The applicant maintains that she was at this time not well supported in her care of P by Key Assets; that the relationships with key personnel at Key Assets had deteriorated; that she was being bullied and inappropriately blamed for aspects of P's behaviour and that her actions on 18 May were a 'cry for help' and should be seen in that context. She maintains that the decision to remove P from her care was being actively pursued.
On the same day, 18 May 2015, P was placed in emergency care with Mr and Mrs B, (the current carers) who have been approved foster carers with Key Assets since 22 May 2012. She has remained in their care since that time. On 20 May 2015, the current carers entered into a foster placement agreement with Key Assets for the placement of P.
Since May 2015, the applicant and P have had some direct and some telephone contact with one another.
On 8 June 2015, P's care plan was modified to reflect the change in her placement.
On 30 July 2015, the applicant applied to the respondent case review panel (CRP) for a review of the care plan modification of 8 June 2015. Despite some issue with the precise formulation of her complaint, it is accepted that what the applicant was essentially seeking was for P to be returned to her care.
On 14 August 2015, a new care plan (the August care plan) was drawn up which reflected the change in P's placement to the current carers. That care plan was approved by the CEO.
On 27 October 2015, the applicant applied to the Tribunal seeking review of the decision by the CEO to confirm the care planning decisions made and recorded in the August care plan.
A CRP meeting occurred on 25 November 2015. By its decision delivered 12 January 2016, the panel recommended to the CEO that the care planning decisions in the August care plan including the placement decision be upheld. In relation to contact, it further recommended that 'the frequency of physical contact should be reduced and that telephone contact may not be in the child's best interests and should be subject to immediate review as to whether it should continue'. The CEO approved those decisions, that is, that P remain with the current carers and that modifications to any contact with the applicant be made by the respondent.
On 21 January 2016, the care plan provisions relating to the applicant's contact with P were modified by the respondent. Phone contact was ceased and personal contact was to be supervised and was to occur only on the following basis: 'direct contact will only go ahead if [P] herself requested. If [P] requests contact with [the applicant], then contact arrangements will be organised outside of school hours and preferably in school holidays if possible'. Some personal contact was permitted to occur contemporaneously with the respondent's decision.
It is noted that neither an application made by the grandparents through the Family Court for a parenting order nor an application by P's biological mother to the Children's Court for permanent orders placing P with the applicant have resulted in an outcome that affects P's situation.

Relevant legislative framework

Section 89(2) of the CCS Act provides that as soon as practicable after the child comes into the CEO's care, the CEO must prepare and implement a care plan for the child.
Section 89(1) of the CCS Act provides that 'a care plan' means a written plan that
(a)identifies the needs of the child; and
(b)outlines steps or measures to be taken in order to address those needs; and
(c)sets out decisions about the care of the child including
(i)decisions about placement arrangements; and
(iia)secure care decisions referred to in section 88G; and
(ii)decisions about contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child's life.
Section 89(4) of the CCS Act provides that the CEO may modify a care plan at any time if the CEO considers it appropriate to do so.
Section 90(1) of the CCS Act requires the CEO to carry out a review of the operation and effectiveness of every care plan at regular intervals not exceeding 12 months.
Section 93 of the CCS Act provides a mechanism for an initial review of a care planning decision by the CEO who must refer such a request to the case review panel which then considers the application and provides its recommendation to the CEO. The CEO must then confirm, vary or reverse the care planning decision or substitute another decision for the care planning decision or refer the matter back to the case review panel for further consideration and report.
A care planning decision is relevantly defined in s 91 of the CCS Act as 'a decision set out in a care plan for the child'.
Section 93(1) provides that an application 'for the review of a care planning decision' may be made to the CEO by, relevantly, 'any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child'.
There is common ground that the applicant made such an application. It is not in dispute that the applicant has standing to seek a review of a care planning decision made in relation to P.
Section 94(1) of the CCS Act provides as follows:
A person who is aggrieved by a decision made by the CEO under section 93(6)(a) or (b) may apply to the State Administrative Tribunal for a review of the decision.
Given the review nature of its jurisdiction under s 94, the Tribunal's power is limited to the power available to the CEO under s 93, that is, power to confirm, vary or reverse a care planning decision or to substitute another decision for the care planning decision.
The review of the CEO decision is by way of hearing de novo and is not confined to matters that were before the original decisionmaker and may involve consideration of new material whether or not it existed at the time the decision was made. The purpose of the review by the Tribunal is to produce the correct and preferable decision at the time of the decision upon review. The Tribunal may affirm, vary or set aside the decision that is to be reviewed, substitute's own decision or send the matter back to the decisionmaker for reconsideration and, in any case, make any order the Tribunal considers is appropriate: s 29(3) of the State Administrative Tribunal 2004 (WA) (SAT Act).
Section 7 of the CCS Act provides that, in performing a function or exercising a power under the Act in relation to a child, a person, the Children's Court or the Tribunal must regard the best interests of the child as the paramount consideration.
Section 8 of the CCS Act goes on to specify a non-exhaustive list of matters which must be taken into account in determining what is in the best interests of the child.
Section 9 of the CCS Act outlines the principles which must be observed in the administration of the Act to include the following matters:
…
(c)the principle that every child should be cared for and protected from harm;
…
(e)the principle that every child should have stable, secure and safe relationships and living arrangements[.]
…

Placement

Does the applicant qualify to care for P?

The applicant's principal claim is to have P returned to her care. The respondent argues that, since her resignation as a foster carer on 18 May 2015, the applicant does not qualify as a foster carer with whom P could be placed.
Section 79(2) of the CCS Act provides that, in relation to a child who is in the care of the CEO, the CEO may [Tribunal emphasis] make:
(a)an arrangement for the placement of the child
(i)with an individual approved by the CEO in accordance with the regulations; or
(ii)with a person who has entered into an agreement under section 15(1) for the provision of placement services; or
(iii)in a residential facility operated or managed by the [respondent] or another public authority;
or
(b)any other arrangement for the placement of the child that the CEO considers appropriate.
Regulation 4 of the Children and Community Services Regulations 2006 (WA) (Regulation 4) provides the matters of which the CEO must be satisfied in approving individuals under s 79(2)(a)(i) of the CCS Act.
At all relevant times after her resignation as a foster carer on 18 May 2015, the applicant was not approved by the CEO as a foster carer pursuant to s 79(2)(a)(i) of the CCS Act. Further, no application had been made by her for registration as a foster carer under this section. There is no decision by the CEO in this regard before the Tribunal as part of this matter, nor indeed is such a decision a reviewable decision under the relevant legislation.
The respondent's argument is that P currently is, and at all times when she was with the applicant was, placed under s 79(2)(a)(ii) of the CCS Act, that is, she is placed with Key Assets by the CEO pursuant to an agreement under s 15(1) of the CCS Act for the provision of placement services, and is then placed with the relevant carer by Key Assets pursuant to that organisation's protocols. The evidence of Robert Becker and Judith Wilkinson supports this proposition. The respondent says that external placement agencies, such as Key Assets, assess their own foster carers, using (amongst other factors) the same criteria as those in Regulation 4. The evidence of Catherine Scott, Robert Becker and Judith Wilkinson supports this proposition.
The respondent says that s 79(2)(a)(i) (and Regulation 4) provides the relevant pathway for placements with individuals contracted directly by the respondent as foster carers and that s 79(2)(a)(ii) of the CCS Act is the relevant pathway for placements through agencies that provide placement services.
The respondent's argument is that s 79(2)(b) of the CCS Act cannot be used as a 'backdoor method' of achieving a placement with an individual who has not applied for or has not successfully obtained, approval under s 79(2)(a)(i) of the CCS Act and Regulation 4.
The respondent submits that, in view of the restrictions applicable to the making of a placement arrangement under s 79(2)(a), it would be appropriate to interpret the power outlined in s 79(2)(b) as providing a secondary discretion, to be exercised only in circumstances in which a placement under s 79(2)(a) of the CCS Act is not available, whether due to (for example) the requirement for a placement arising as a matter of urgency, due to the remoteness of the location of the child requiring placement, or otherwise.
The respondent's argument is that, there being in existence a placement under s 79(2)(a), the circumstances which would enliven the discretion exercisable by the CEO under s 79(2)(b) of the CCS Act simply do not arise.
The respondent accepts that the discretion contained in s 79(2)(b) is expressed in broad terms but invites the Tribunal to interpret the section in the context of the CCS Act as a whole, with particular regard to the processes and the scheme set out within the Act and the Regulations for the formal assessment of foster carers by it and its contracted agencies. It submits that the preferred reading of the Act is one in which assessment of individual carers is done by reference to criteria specified in the legislative instruments in all but exceptional circumstances, and that a discretion designed for use in exceptional circumstances, should not be allowed to be used simply as an alternate pathway to a placement in circumstances where the applicant does not have the approval otherwise mandated under the legislation.
The applicant disputes this and says that the CEO could place P with her under s 79(2)(b). Her argument appears to be that, having clearly indicated her desire to have P back in her care and being a foster carer previously approved by Key Assets under equivalent criteria to respondent criteria, in this case the CEO should have exercised her discretion to approve the placement of P with her. She argues that, in the same way that children are placed in the care of relatives at the discretion of the CEO without the full standard approvals process having been gone through, she, as a former approved foster mother of five years standing with good record with P, could and should have been considered by the CEO in the exercise of her discretion under s 79(2)(b). Notwithstanding that she had resigned her contract with Key Assets and notwithstanding that she had not sought the usual foster carer approvals direct through the respondent.

Consideration

The construction of s 79(2)(b) is as yet untested. Consistent with the principles of statutory interpretation, it is the language of the section and the ordinary meaning of the words used in the section to which the Tribunal must direct its attention.
The Tribunal does not accept the submission of the respondent as to the interpretation of the section. The discretion contained in s 79(2)(b) of the CCS Act is expressed in the broadest terms possible. It is completely unfettered. In the context of the subdivision of the Act which deals with placement arrangements, the CEO has been given discretionary authority to make arrangements for the placement of a child who is in her care either, firstly, in the manner described in s 79(2)(a) of the CCS Act or, secondly, under s (2)(b).
[to make] any [Tribunal emphasis] other arrangement for the placement of the child that the CEO considers appropriate.
In the view of the Tribunal, given the nature of the authority and responsibility being exercised by the CEO, it is entirely reasonable that, in addition to a set of parameters that might describe the way in which placement decisions are commonly made, the legislation allows the CEO to depart from those parameters in any circumstance which, in the view of the CEO, justifies such a departure. There is no inherent inconsistency in interpreting the section in this way. Whether under s 79(1)(a) or s 79(1)(b), the approval of a placement with a non-agency foster carer under the CCS Act is ultimately a matter in the discretion of the CEO.
Our communities are hugely diverse as is the geography of our state. The circumstances in which a child might need to be placed involve such a multiplicity of variations as to be incapable of precise prediction. It is, in the Tribunal's view, in the interests of the children of this state that the CEO has an entirely unfettered discretion so as to be able to respond to any set of care circumstances of which advantage needs to be taken in the interests of a child. It is to be expected that the legislature would have anticipated a need for the CEO to have the utmost flexibility to make arrangements suitable to the widest range of circumstances, and to have intended the very broadest of discretions. There is no suggestion from the language of the legislation that the discretion contained in s 79(2)(b) of the CCS Act is in any sense 'secondary' or should be interpreted as being limited in its exercise to situations in which a placement under s 79(2)(a) is not available.
The Tribunal's view is that it is and was open to the CEO to exercise her discretion under s 79(2)(b) of the CCS Act to make arrangements for the placement of a child solely on the basis of the best interests of that child, even if those arrangements be outside of the formal processes laid down by s 79(2)(a)(i) of the CCS Act, the regulations and departmental protocols, if she considers those arrangements, in the particular circumstances of the case, to be appropriate.
To that extent, the Tribunal accepts the applicant's argument that it was open to the CEO to consider placing P back with the applicant despite her resignation as a foster carer on 18 May 2015. All that was required was for the applicant to be willing and for the CEO to have reached the view that such a placement was 'appropriate' in the best interests of the child.
The evidence is that from as early as March 2015, whilst still under contract to Key Assets as an approved foster carer, the applicant was exploring the possibility of her foster carer status altering to one directly with the respondent rather than as an agency foster carer. Certainly from 30 July 2015 when she applied to the case review panel for 'P to be returned to my care', it was clear that she was seeking to find a way of reestablishing P's placement with her. At that stage only 2½ months had elapsed since P's move to the current carers.
Whether, in the exercise of her discretion, the CEO would have returned P to the applicant is another question. The Tribunal's view as expressed above is that it was open to her to do so under s 79(2)(b) as part of making a care planning decision for P and that, therefore, it is open to the Tribunal to consider doing the same.
As it is the Tribunal's view that for the reasons articulated below, P should remain living with the current carers, it is not necessary for the Tribunal to make a determination about whether or not the discretion should have been exercised in the applicant's favour.

What is in P's best interests?

Extensive evidence was lead regarding P's circumstances and interactions with the various biological family members, and foster family members and other adults with whom she interacts. It is to be noted that the applicant was represented up until shortly before the hearing but proceeded to represent herself in the hearing.
The evidence called by the respondent included evidence from: (reformatted)
1.employees of the respondent
•Jessica Hodgson, the current case manager;
•Siobhan Rowles, the former case manager, now supervisor;
•Catherine Scott, senior child protection worker;
•Robert Becker, district director;
2.employees of Key Assets
•Cheryl Harrop, senior social worker;
•Judith Wilkinson, state director;
3.clinicians
•Dr Rowe;
•Dr Derrick;
•Darin Cairns, clinical psychologist;
4.educationalists
•Karen Macri, principal, P's current school;
all of whom were questioned by the Tribunal and the applicant.
The evidence called by the Applicant, in addition to her own evidence, included:
5.educationalists
•Kathy Britton, the principal at the education support centre at P's previous school;
6.family members
•P's biological mother Ms G,
•P's maternal grandparents Mr and Mrs G; and
7.evidence from Mr B, current foster carer, on subpoena.
all of whom were questioned by the Tribunal and counsel for the respondent.
8.Statements were also lodged by the applicant from the following (who were not required to attend for crossexamination)
•a family friend RB;
•a previous support worker at Key Assets Corrie Conroy;
•the applicant's former partner D and his son A.
A significant quantity of documents were received into evidence (including five substantial bundles lodged by the respondent and three by the applicant) along with a hearing book of Tribunal documents filed earlier in the proceedings.

The relevance of P being a 'high needs' child requiring placement

The respondent argues that it does not have the resources to provide sufficient levels of support to individual carers of high needs children; that, accordingly, it enters into contracts with external agencies in relation to those children. The applicant disputes that the respondent only places high needs children with agency-supported carers. She gave anecdotal evidence of high needs placements with non-agency carers of which she claimed to know.
The evidence of Catherine Scott and Robert Becker largely supports the respondent's position although a concession was made that on some rare occasions, a high needs child may be fostered directly by the respondent rather than through an agency. There was little evidence about the circumstances of those particular placements. It is the respondent's position that it would not be in P's best interests that she be returned to the applicant's care in circumstances where a sub-optimal level of support only was available to the applicant as a non-agency carer.
As it is the Tribunal's view that, for other reasons articulated hereafter, P should remain living with the current carers, it is not necessary for the Tribunal to make a determination about whether or not the respondent is in a position to or does appropriately support high needs children in placements with non-agency foster carers.

Consideration and Findings

P has lived with the current carers since 18 May 2015 being now approximately 18 months. The Tribunal accepts that P is largely happy in their care and in the company of her foster sister and her wider foster family, including those who live with the current carers. The Tribunal accepts that the current carers have accepted P into their family and love and care for her.
The current carers have indicated a willingness to foster and support P's ongoing relationships with her biological mother and maternal grandparents and the Tribunal accepts that they are genuine in this and that that contact continues.
There is satisfactory third party evidence, in particular from Ms Macri, the principal at P's school, that since P has been placed with the current carers, she has made considerable improvements in many aspects of her behaviour, her development, her independence, her health and her schooling. The Tribunal accepts Ms Macri as a credible and truthful witness who is independent of the parties and who has no reason to give other than an objective account and an honest opinion as to the matters put to her.
The Tribunal accepts that the changes referred to by Ms Macri are not just due to age-related development but are also likely to be as a consequence of the dedication and committed efforts of the current carers and, particularly, to their strategies in managing P's behaviour including with consistent and firm boundary setting.
The Tribunal accepts that the current carers appropriately attend to P's medical needs, including her epilepsy management. Dr Rowe in his evidence confirmed that in the last 12 months, P's epilepsy has been more difficult to manage. He rejected the suggestion that the increased seizures were due to a failure of care. He commented favourably on the attentiveness of the current carers (as he had on the applicant as carer). He agreed that the triggers for seizures can vary but expressed the opinion that the issue in P's case relates to her approaching puberty which he said causes many sufferers to experience an exacerbation in seizures. His evidence was that a number of matters are being looked at with the current carers (some of which were looked at with the applicant) to assist medication adjustments, referral for potential dietary (Ketogenic) planning and for possible epilepsy gene testing for elimination purposes.
This case is not a parenting competition between the applicant and the current carers. Much that is positive can also be said about the period that P was living with the applicant. The Tribunal accepts that P lived with the applicant for five years from the age of five until she turned 10, that is, for a little under half of her life so far and for important and formative years.
During those five years, she was largely happy in the applicant's care and in the company of her own wider maternal family. The Tribunal accepts that the applicant was devoted to P, provided her with a stable home environment and loved (indeed still loves) her dearly. For a child with such challenges, the importance of the consistency and stability over such a long period of time at that age cannot be overestimated as was emphasised in the evidence of Dr Derrick who also indicated his shock at the ending of the placement.
The Tribunal accepts that during those five years, P made considerable progress in her development and early education and socialisation and that the applicant worked hard to give her the best start in life possible and to find ways to overcome the challenges that P's autism and epilepsy posed for P in her daily life. Her level of love for and commitment to P, and her attention to all matters concerning P, was spoken of very highly by Ms Britton, the principal of P's previous school who also spoke of her shock at the ending of the placement. Notwithstanding that she attended with the applicant as a support person at a number of meetings in the period leading up to the end of the placement, as with Ms Macri, the Tribunal accepts Ms Britton as a credible and truthful witness who is independent of the parties and who has no reason to give other than an objective account and an honest opinion as to the matters put to her.
The Tribunal accepts that the progress referred to was not just due to age-related development but was also likely to be a consequence of the applicant's dedication and committed efforts to improving things for P.
To her credit, the applicant fostered and supported P's ongoing relationships with her biological mother and maternal grandparents. Their evidence, which the Tribunal accepts, supports her in this.
The Tribunal accepts that the applicant appropriately attended to P's medical needs, indeed that she was proactive to an admirable degree in looking for solutions and treatment options that might improve P's situation further. Dr Rowe's evidence supports her in this. Dr Derrick also confirmed in his evidence that 'no flags went up' for him in the 12 months prior to the placement change; that the applicant and P were on time for appointments, that P was well behaved and appropriate.
The Tribunal is not persuaded that the applicant was 'over diagnosing and pathologising' P or that she failed to attend appropriately to P's medical needs, mismanaged her seizures or incorrectly administered medication. The medical evidence simply does not support this.
Further, the Tribunal is not persuaded that the fact that the applicant may have at times elected to manage or to attempt to manage issues such as P's weight, incontinence, behaviours, use of aids and hygiene training in a way that may not have been the respondent's first choice, means that she was mismanaging things. The applicant may not have "dotted all the 'I's' and crossed all the 't's" with the respondent on everything but that is not to say that she acted inappropriately in her care of P.
The Tribunal accepts that there were, and continue to be, big challenges in parenting P well. She is a child who had and still has significant medical problems, particularly regarding the management of her epilepsy, and also significant behaviour issues at times relating to her autism. The Tribunal accepts that people parent differently and that there is no magic wand or rulebook. What a child needs from their parent changes over time as a child grows. The Tribunal is satisfied that both the applicant and the current carers have experienced challenges in both these areas which is to be expected given P's difficulties.

The Tribunal does not accept that the applicant was a failure as a parent for P. Nor does it accept all of the criticisms levelled at her by the respondent.
Sadly a set of circumstances developed that caused the applicant to feel that she was inadequately supported by the agency that employed her as a foster carer. The agency concedes that things, as they put it, 'could have been done better'. Crucial relationships deteriorated and some of them ceased. It is to be noted that in the period leading up to the commencement of the applicant's difficulties, and during them, there had been staff changes at the agency. Some new relationships, particularly the applicant's relationship with Ms Harrop, did not work smoothly.
The respondent's perception of its responsibilities and role meant that its personnel, in the view of the Tribunal, did not do all that, with the benefit of hindsight, they perhaps could have done to attempt to support what the Tribunal finds had been, for most of the fiveyear period, on any measure, an excellent placement.
The combination of these factors ultimately caused the applicant to decide that she could no longer care for P under the Key Assets agency regime and she relinquished the care of P and resigned as a foster carer. Resignation or relinquishment the term matters not. The fact is that the placement came to an end and P was moved and began living as part of a family with the current carers. The Tribunal accepts that this action by the applicant was not as a result of any lack of commitment to P, but rather was driven by the applicant's desperation at the failing relationship with the agency and its personnel. Nonetheless, as was submitted by counsel for the respondents, the circumstances of the relinquishment are a factor that cannot be ignored. The applicant must take responsibility for her decision, described by her as a 'snap decision on the day'. The Tribunal accepts the respondents submission that the 'mature and responsible way' of dealing with the difficulties in P's best interests would have been to continue to work with the respondent and the agency who, the Tribunal finds, had put on hold any thought of ending the placement, as at 18 May 2015. The opportunity was there for the placement to continue.
Clearly the applicant came to realise that she had indeed made a mistake and, within a fairly short space of time, was seeking to undo her hasty decision.
Good and committed willing foster parents are a rare commodity, especially those who are willing to care for high needs children. In the view of the Tribunal, one of the saddest aspects of this case is that more was not done sooner to see whether the placement could or should be re-established. In the view of the Tribunal, the CEO had the discretion under s 79(2)(b) of the CCS Act to by-pass the foster carer approvals 'red-tape' in the circumstances of this case. Whether or not that discretion would have been exercised in the applicant's favour had the CEO been prepared to use s 79(2)(b) of the CCS Act is another question.
Sadly, much of the energy on both sides of this case appears to have been expended by parties in defence of past actions or in answer to allegations of past deficiencies or omissions. Understandably perhaps, the applicant has also sought to focus on the fairness or otherwise of her treatment by the respondent.
In the view of the Tribunal, this case comes down to the question, not of whose fault the breakdown of the placement was, or of whether the actions of the respondent in moving P and then not returning her were or were not justified, but of whether, given all that has happened, it is in P's best interests to remain where she is (and has now been for 18 months) or to be moved again, albeit back to her former placement. P's best interests are paramount and must be given priority over issues relating to the perceived rights or treatment of the adults involved.

The Statutory Criteria

Section 8 of the CCS Act specifies a non-exhaustive list of matters which must be taken into account in determining what is in the best interests of the child.
Those matters (to be referred to as Factors (a) to (m)) are
(a)the need to protect the child from harm;
(b)the capacity of the child's parents to protect the child from harm;
(c)the capacity of the child's parents, or of any other person, to provide for the child's needs;
(d)the nature of the child's relationships with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(e)the attitude to the child, and to parental responsibility, demonstrated by the child's parents;
(f)any wishes or views expressed by the child, having regard to the child's age and level of understanding in determining the weight to be given to those wishes or views;
(g)the importance of continuity and stability in the child's living arrangements and likely effect on the child of disruption of those living arrangements, including separation from
(i) the child's parents; or
(ii)a sibling or other relative of the child; or
(iii)a carer or other person (including a child) with whom the child is, or has recently been, living; or
(iv)any other person who is significant in the child's life;
(h)the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(i)the child's age, maturity, sex, sexuality, background and language;
(j)the child's cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders
(k)the child's physical, emotional, intellectual, spiritual, developmental and educational needs;
(l)any other relevant characteristics of the child;
(m)the likely effect on the child of any change in the child's circumstances.

Consideration of the Criteria

This is an unusual case in that the options for placement are two foster placements neither of which involves P living with biological parents or extended family.

Factors (a) (b) and (c)

In relation to Factors (a) (b) and (c), having considered all of the evidence, the Tribunal takes the view that both the applicant and the current carers took and take appropriate care of P and have an equal capacity to protect P from harm and to meet her current needs. The respondent has not been able to persuade the Tribunal that there is something deficient in the applicant's previous care of P. However, the Tribunal has not been persuaded by the applicant that her knowledge or experience in managing P's epilepsy is superior to that of the current carers nor that the care provided by the current carers is in some way deficient. The evidence of Ms Harrop, Ms Macri and Mr B, in relation to the quality of the current care is accepted by the Tribunal.

Factor (d) and (h)

In relation to Factor (d) and (h), having considered all of the evidence, the Tribunal accepts that P is and was largely happy in both foster placements and that both the applicant and the current carers accepted P into their respective families, and love and care for her, and that P is loved by her biological family members and the members of the current carers' wider family. The Tribunal accepts that both the current carers and the applicant have welcomed ongoing contact with P's biological family. The Tribunal has not been persuaded by the applicant that there is something deficient in the approach that the current carers take towards contact between P and her mother and grandparents. The relationships are clearly different between the adults and there have been some issues along the way. However, the Tribunal was persuaded by the evidence of the current carer Mr B on this matter, and accepts that he and Mrs B have a genuine desire to promote the ongoing contact between P and her biological family, particularly her grandparents Mr and Mrs G, and will act appropriately in this. The Tribunal heard in his evidence about the arrangements made through Key Assets with the grandparents for contact visits including overnight stays with them at their home in Bullsbrook (during which time P also sees Ms G) roughly every six weeks. He also gave evidence about the telephone contact that occurs.
It appears that the grandparents, particularly Mrs G, regularly telephone P and that P is able to telephone them 'whenever she wants'. Notwithstanding an unfortunate upsetting incident between Mr G and Mr B's adult daughter when she was dropping P to the grandparents, and some lingering 'prickliness' between Mr G and Mr B that this has caused, the Tribunal was entirely satisfied that the current carers have behaved appropriately in relation to contact matters, the sharing of transport to facilitate this contact and in things such as the passing on of gifts and mementos to P from her biological family. The Tribunal has no reason to believe that the current carers would not cooperate with contact arrangements in the future in relation to the applicant were such arrangements either ordered by the Tribunal or set by the respondent.

Factor (e)

In relation to Factor (e), the Tribunal takes the view that the current carers demonstrate an appropriate attitude to P and to their 'parental' responsibility. The Tribunal has not been persuaded by the applicant that there is something deficient in the approach that the current carers take in this regard. To the contrary, the evidence of every professional involved supports and complements the current carers in this regard.
In relation to the applicant, the Tribunal accepts that, for the most part, the applicant demonstrated an appropriate attitude to P and to her 'parental' responsibility. However, the applicant has not satisfactorily addressed the fact that she reached a point where she 'resigned as parent'. The Tribunal accepts the context in which the applicant's resignation as a foster carer occurred as described by the applicant. The Tribunal accepts that 'things could have been done better' to support the applicant by both agency and respondent personnel. However, in terms of its assessment of the applicants attitude to P and her responsibility to P, the Tribunal must have regard to the applicant's resignation of her role as foster parent, her description of it as a 'snap decision', the manner in which she effected the return of P to the respondent and the knowledge that she must have had about the effect that this would have on P given the length of the placement.

Factor (f)

In relation to Factor (f), the Tribunal has not sought any evidence regarding the wishes and views of P given her autism and her intellectual capacity. The Tribunal accepts that P may at times express differing views to different people that she loves and is likely to want to please all of the adults with whom she has contact. In the circumstances, the Tribunal places little weight on any evidence given as to the views expressed by P at any particular time to any particular person. To the extent that her behaviour and appearance gives an indication of her wishes and views, the Tribunal accepts the evidence that P has or has had happy times and unhappy times, good times and bad, with both the applicant and the current carers.

Factors (i), (j), (k) and (l)

In relation to Factors (i), (j), (k) and (l), in the view of the Tribunal there is nothing to be preferred in one placement circumstance when compared with the other; both the applicant and the current carers are likely to have equivalent capacity to meet all of P's needs.

Factors (g) and (m),

The Factors upon which the Tribunal places the greatest weight in making its determination in this case are Factors (g) and (m), that is:
the importance of continuity and stability in the child's living arrangements and likely effect on the child of disruption of those living arrangements, including separation from
… a carer or other person (including a child) with whom the child is, or has recently been, living;
or
the likely effect on the child of any change in the child's circumstances.
Somewhat unusually, current carer Mr B was subpoenaed by the applicant to produce certain documents and to give evidence. He gave evidence about a number of aspects of P's current situation, none of which evidence was challenged to any great extent by the applicant.
As was reflected in documents lodged in evidence, P resides at the current carers' home, which Mr B described, and where they live along with their son, their daughter and her partner and Mr and Mrs B's teenage foster daughter J. Mr B's evidence is that P is happy, has settled in very well and gets on with J and the other members of the household. He describes her, notwithstanding her difficulties, as 'a good kid'; as essentially 'a normal 10yearold child', who 'tries her luck' sometimes and misbehaves sometimes but that those things are 'over quickly'. He described her growing confidence and independence, (for example, now walking herself in to school from the car at drop off rather than needing to be taken to the classroom), her participation in activities and out of school involvements and how P is presently transitioning to the local high school where she will attend from 2017, travelling there by bus with J. She is apparently excited and enthusiastic about this. Mr B gave evidence about P's epilepsy issues and their management of the current situation in conjunction with the GP and the relevant specialists. He spoke about the training in epilepsy that he and Mrs B have had and about the fact that J also suffers from epilepsy. Mr B, who is an experienced disability support worker, impressed the Tribunal as a sensible, downtoearth, kindly man with a measured approach who very much has P's best interests at heart.
Darin Cairns, the clinical psychologist called by the respondent confirmed his professional assessment that Mr and Mrs B were well equipped to care for P. He had conducted an assessment of them and of P and, in his report, refers to their capacity for critical thought and selfreflection, their ability to reflect and act developmentally, to implement strategies though difficult, to adhere to medical regimes, to work collaboratively and to maintain a stable emotional context. This evidence was not substantially challenged by the applicant.
The Tribunal accepts the evidence of Mr B and of the current departmental support workers and also the Key Assets social worker Ms Harrop as to the favourable environment in which P now resides and the positive relationships which have developed between her and her carers and their wider family, and, in particular, with her foster sister. As above-mentioned, the Tribunal also accepts the evidence from Ms Macri as to the positive gains that P has made which are in summary that '[P] has come a long way since May 2015. [She] has gone from being a very angry disruptive student to being well liked and settled now'.

Conclusion

In the view of the Tribunal, maintaining P's placement with the current carers is in her best interests, having regard to the importance of continuity and stability in P's living arrangements, in her transition to high school with her foster sister and in her in-home relationships, and having regard to the likely adverse effect on P of the disruption of those arrangements and relationships at this time.
Maintaining P's placement with the current carers is consistent with the principles to be observed under the Act and, in particular, the principle that every child should have stable, secure and safe relationships and living arrangements: s 9(e) of the CCS Act.
The hearing is a hearing de novo. The Tribunal is required to make the correct and preferable decision as at the present time. The Tribunal has not been persuaded by the applicant that there is anything about the care provided to P by the current carers or the circumstances that surround the current placement that would cause the Tribunal to make a decision different to the care planning decision as to placement made by the CEO.

Contact between P and the applicant

In the period since 18 May 2015 and the hearing, there have been only limited occasions of contact between the applicant. The evidence of Jessica Hodgson details that it had initially been planned by the respondent that contact would occur fortnightly, alternating between phone and direct (face to face) contact however, this was reassessed in August due to reports from the school (Ms Macri) and the current carers) of P's regressed behaviour and upset around the time of contacts with the applicant. Direct contact took place every six weeks with two phone contacts in between the direct contacts. Cards and letters were also allowed. Issues continued through to the end of 2015 and ultimately the care plan was further revised leading to the decision of the CEO that phone contact should stop and direct contact be limited to occasions requested by P. In accordance with this arrangement, the applicant had three direct supervised contacts with P during 2016 up until the date of the hearing, namely in late January 2016, on 4 July 2016 and on 3 October 2016. It is understood that the applicant also had what might be regarded as 'unauthorised' contact by Skype on an occasion during September 2016 during a visit with Mr and Mrs G. Ms Hodgson's evidence is that Mr and Mrs B report that P is upset and unsettled and that her behaviour regresses after these contacts. There is support for these matters in Ms Macri's evidence.
P is in the fortunate position of having many people who love and care for her. She needs all of these people in her life in order to thrive. The relationship with her maternal grandparents, and through them, her mother, is crucial and must be supported.

Consideration

The hearing is a hearing de novo. The Tribunal is required to make the correct and preferable decision as at the present time. As to the contact with the applicant, the Tribunal is of the view that it is in P's best interests that there be a greater amount of contact between the applicant and P than is presently allowed. In this regard, the Tribunal is cognisant of the comments of Dr Derrick about the deleterious effect of withdrawing long-term supportive relationships from a child.
There can be no denying that the applicant is a very significant figure in P's life. She has been P's mainstay for a significant portion of her life to this point. Notwithstanding the events of 18 May 2015, there can be no doubting that the applicant is devoted to P, has been a strong advocate for her and loves her dearly. P is entitled to the benefit of the applicant's ongoing support and affection. To deprive her of it into the future by excluding the applicant from an ongoing meaningful relationship with P is to deprive P, in the Tribunal's view, of a significant emotional buttress against the tough world with which she must deal as she grows up. It is not about the applicant's rights, it is about P's rights. It is appropriate, in the Tribunal's view, that, for so long as ongoing contact with the applicant operates in a positive way, there should be contact. This is consistent with s 8(1)(d) and s 9(g) of the CCS Act regarding ongoing contact with significant persons in a child's life.
It is necessary in considering what is in P's best interests to have regard to the need to protect her from harm. There is no suggestion that the applicant represents any risk to P. Nor is there any suggestion that she would not be appropriately protective of P whilst she was in her care.
Arrangements for contact which substantially interfere with the continuity and stability of P's life would not be in her best interests. There is, however, scope for increased contact, particularly on a weekend, that would not significantly impact upon her current living situation and other activities, nor with arrangements for her ongoing contact with her maternal grandparents and her mother.

The applicant's responsibility

The difficulty in this matter is that, for such contact to be in P's best interests, it must be contact that does not undermine the placement with the current carers. The protracted discontent and unhappiness that events have caused to the adults involved in this matter does not seem to have been similarly reflected in P's response, such as it can be understood, to the same events. The adult response has resulted in something of a (perhaps unconscious) tug of war between them regarding P, and has often led to an unfortunate dialogue with her regarding the future that has, at times, the Tribunal is persuaded, added to her confusion and upset. The Tribunal has no doubt that she has, at times, felt torn in her loyalties. It is entirely to be expected that such emotions might manifest in her behaviour generally, and in her response to one or other 'side' of this dispute at particular times. Particularly given what we know about P's need for certainty and security in her knowledge of the arrangements in play around her, and the effects that the absence of that certainty can have on her, such undermining must be eliminated.
These proceedings have been a source of much angst for the adults involved. In the Tribunal's view, particularly while the dust settles from them, it is appropriate that the respondent continues to exercise oversight of the contact between P and the applicant. However, in the Tribunal's view, direct supervision of that contact is unnecessary provided that the applicant is prepared to comply with the conditions attached to the contact.
It is for the applicant to find within herself if she can, the strength to accept the current placement and to conduct herself in such a way that, regardless of her own views as to what should have been, her contact with P does not undermine P's sense of security and trust in her now home and foster family. It is the Tribunal's hope that, over time, as the applicant comes to accept the fact that P will not be returning to live with her, a more positive climate will develop that will allow for an increased amount of personal and phone contact than that proposed at present, and in a less regimented way. In the Tribunal's view this would be in P's best interests. If the applicant cannot act in that way and if the CEO is satisfied, at some point in the future that the applicant is undermining the placement to the detriment of P, then the Tribunal would expect that the CEO would act to prevent that undermining, even if this means a reduction or cessation of contact with the applicant.

Conclusion

In the view of the Tribunal, subject to this and to appropriate conditions in that regard, for the present, the care planning decision regarding contact made by the CEO should be varied to allow the applicant to have the following sorts of contact with P, namely:
•unsupervised contact with P for six hours on a weekend every six weeks;
•in addition, unsupervised contact with P from 5 pm Friday afternoon until 5 pm Sunday afternoon on one weekend during each school holiday period;
•in addition if invited by P's maternal grandparents, unlimited contact during times that P is staying with or visiting with her grandparents;
•telephone contact at any time that P instigates a phone call to her;
•unrestricted contact by letters, cards, exchange of photos et cetera as previously, to be sent to P by the respondent's case manager.

Orders

In the circumstances the Tribunal makes the following orders:
1.The care planning decision as to contact between the applicant and P made by the CEO is varied to provide as follows:
Subject to the applicant agreeing in writing to comply with the conditions contained in Dot - Points 1 - 5 and 7 of the Safety Plan attached to the Respondent's Draft Conditions filed in the Tribunal 21 October 2016 (a copy of which is attached to this order), and on condition that she does in fact comply with those conditions, the applicant shall have
(a)unsupervised contact with P for six hours on a weekend every six weeks.
(b)in addition, unsupervised contact with P from 5 pm Friday afternoon until 5 pm Sunday afternoon on one weekend during each school holiday period.
(c)in addition, if invited by P's maternal grandparents, unlimited contact during times that P is staying with or visiting with her grandparents.
(d)telephone contact at any time that P instigates a phone call to her.
(e)unrestricted contact by letters, cards, exchange of photos etc. as previously, to be sent to P by the Departments case manager.

2.The care planning decision as to the placement of P with the current carers Mr and Mrs B made by the CEO is affirmed.

I certify that this and the preceding [131] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, MEMBER