RW v Minister for Education and Child Development

RW, the maternal grandmother of two children, sought judicial review of decisions made by the Minister for Education and Child Development (the Minister) and the State of South Australia (the State) to remove her grandchildren from her care and to not return them to her care. The primary legal issues were whether the plaintiff had standing to bring the proceedings, whether the proceedings were brought within the required time, and whether the decisions to remove and not return the children were unlawful. The court also considered whether the relief sought should be granted on discretionary grounds.

The court found that the plaintiff had standing to bring the proceedings as she had a sufficient connection to the children and their welfare. Regarding the timeliness of the proceedings, the court held that the plaintiff had not demonstrated any exceptional circumstances warranting an extension of time, and thus the proceedings were out of time. However, the court exercised its discretion to hear the matter on the merits due to the significant public interest and the potential impact on the children's welfare. The court further found that the decisions to remove and not return the children were not unreasonable. The court accepted the evidence that the plaintiff and the children's father were unwilling or unable to address the concerns raised by the Department, and that the children's safety and wellbeing could not be ensured in the plaintiff's care.

The court denied the relief sought by the plaintiff, holding that it would not be in the best interests of the children to be returned to the plaintiff's care at that time. The court noted that the children had been in the plaintiff's care since November 2008, and that despite the services provided to the plaintiff and her former husband, the Department had observed that the plaintiff failed to make progress or demonstrate change in her caring for the children. The court also considered the children's wishes and the potential harm that could result from a return to the plaintiff's care.