Children and young people in care will soon be able to seek an external review of decisions made by the Department for Child Protection (DCP) as to their placement, care, education and health.
On 22 October, the final sections of the Children and Young People (Safety) Act 2017 will come into operation.
This means the South Australian Civil and Administrative Tribunal (SACAT) will have the power to review certain decisions made by the DCP.
SACAT is designed to be an easy to access, low cost and user-friendly method of resolving civil claims or disputes and seeking review of government decisions.
Most decisions (those made under Chapter 7 of the Act and excluding decisions regarding contact arrangements) will be review-able. We discuss appeals about contact decisions below.
A child or young person must first request that DCP review the decision, and if they are not happy with DCP’s review, they can then apply for an review of that decision at SACAT. This application must be made within 28 days of receiving DCP’s review. SACAT may grant an extension if they are satisfied that special circumstances exist.
The legislation also provides that in these proceedings,
…a child or young person to whom the proceedings relate must be given a reasonable opportunity to personally present to the South Australian Civil and Administrative Tribunal their views related to their ongoing care and protection.
SACAT plans to be flexible in order to to support a young person’s participation and comfort. This might include taking their views off-site or separately and preventing contact and cross-examination by other parties.
SACAT will also be able to obtain information from DCP. This will include information such as the young person’s current situation, any history of abuse or trauma and the availability of an advocate for the young person.
In the end, the SACAT has the power to affirm the DCP’s decision, vary the decision, make its own decision or send the matter back to the DCP for reconsideration.
This is new territory for SACAT and DCP so there will be considerable work taking place to ensure that this process is as child-friendly as possible, and to ensure that the voice of the child or young person is at the centre of the decision-making.
How this will play out for children and young people in practice depends how we address these and other issues.
Delays in resolving issues. Under the arrangements as they seem today, it is possible that several months could elapse between an unsuitable decision being made by DCP and that decision being reversed by SACAT. Three months is a long time in the reality of a child in care. Unsuitable decisions on placement, education and health could cause irreversible damage and disruption to a young person during that time.
Who is to be the child’s advocate? The review process is complex so it is likely that few reviews will be mounted by a young person without the support of an adult advocate. Who will this be? The young person’s DCP social worker may lack the knowledge to advocate (as we have seen in some NDIS matters) or the will to oppose the views of colleagues and superiors. A child’s social worker could face a conflict of interest.
Other adults closely involved in the matter may not be able to separate their own emotional and material interests from those of the young person. Advocacy support may come from a body such as the Office of the Guardian or by the appointment of a duty solicitor to act for the young person.
What about Aboriginal children and families? How well will the process be able to manage the language, location and cultural barriers that might discourage Aboriginal children and their advocates seeking a review and being able to represent their position effectively if they do?
What is a review-able decision? What if a young person or their advocate believes a decision falls within scope, but the DCP doesn’t? There is some guidance. Decisions made under Chapter 7 of the Act (excluding decisions regarding contact arrangements) will be review-able. Section 84 of the Act sets out review-able decisions relating to the placement, care, education, and health of children and young people in care but deciding what is review-able may not be simple in practice.
Additionally, can a refusal to review be itself reviewed? Would this be referred to the DCP complaints unit, by appeal to the Ombudsman or by some other mechanism still to be devised?
Disputes over contact arrangements
Legislation recently passed through Parliament which means that, from 22 October, children and young people will be able to apply to the Contact Arrangements Review Panel which can affirm, change, or set aside contact decisions. The child or young person will have 14 days after the DCP’s decision to apply for review although there is provision for ‘special circumstances’ to extend that time. Right now, it is unclear if a decision made by the Contact Arrangements Review Panel can be appealed or reviewed.
For more information, check out the Internal reviews page on the DCP website and the SACAT website. SACAT have told us that they expect to be developing more materials explaining the review process in the next few month.
What happens with children who are too young, pre verbal or who lack capacity to act on their own behalf?
Fantastic, should come sooner.
There was a missed opportunity here to affirm the place of collaborative endeavour as a means of firstly mitigating against the need for formal resolution of disputed decision-making or a means to keep dialogue open even when a decision is contested. The open accountability of the department is an incredibly important aspect of empowering children, families and carers yet it sits within a context of a need to change practice and how the departments manages contested decision-making with vulnerable populations. The department should not be fearful of the checks and balances that exist (and have always existed) we all would want them for ourselves if the circumstances were reversed. Good practice will enable more discussion, sometimes painful, with those affected by decisions. These discussions should be viewed as a required part of the work with families and not as a challenge to our sense of authority. In fact I would prefer we move away from such adversarial language altogether.