No way to challenge care decisions 'not in line' with human rights in Canberra

The commission said the public's trust in the child protection system would continue to erode if the ACT government failed to provide an external review process for their decisions.

The comments were made in a submission to the ACT government's discussion paper on the review of child protection decisions.

The purpose of the discussion paper, released in April, is to help the government come up with a solution to allow families involved in the child protection system to challenge decisions made by the Director-General, who has parental responsibility of children in foster and kinship care. The Director-General can make decisions about parental contact and where children are to be placed - sometimes overriding a decision made by the court.

The discussion paper was released after it was revealed the Director-General made the wrong decision by removing five children from their mother in emergency action. The mother battled the department in the courts for five years, and ultimately is in the process of having her children returned to her.

The discussion paper recognises the provision of a review mechanism is because "despite best intentions, first instance decision-makers do not always make the correct and preferable decision".

"Like any statutory decision-maker, decisions made by Child and Youth Protective Services may in hindsight, or with the benefit of new or better information, be worthy of being unmade, remade or amended," the paper said.

ACT Human Rights Commissioner Helen Watchirs told the Sunday Canberra Times there was a severe lack of options to review or appeal decisions like child placement or parental visitation rights.

In their submission, the commission provided two examples of where the Community Services Director-General had dramatically altered care plans approved by the court.

In one case, a magistrate made final orders for one year granting parental care of two children to the Director-General with express contact arrangements between the children and their mother. The court decided the mother should be able to see her two children twice a week for two hours and highlighted the importance of that ongoing relationship.

However, within months the Director-General varied that plan so one child could not have contact with the mother at all, and the second child had contact for 3 hours a month.

Neither the Children's Court or the Supreme Court had the ability to review the Director-General's decision.

In the second example, three children under the age of five who had been in the care of their aunt for more than two years were removed and placed into foster care despite the aunt saying she did not want to let the children go. During the meeting where care and protection workers told her the children were to be removed, she became emotional and aggressive which led to the children being removed the following day because the aunt "was likely to be in a state of distress and unable to meet the children's emotional needs".

The Administrative Appeals Tribunal was forced to dismiss the application for a review of the Director-General's decision because it does not have the jurisdiction.

The commission included multiple examples in their submission of where the government appears to be failing vulnerable young people.

A primary concern is a lack of effective scrutiny over decisions being made to remove children from their home, and subsequently where they are placed.

The ACT Civil and Administrative Tribunal can only review decisions such as approving carers, revoking the approval to care, and the refusal to authorise someone as a foster carer.

The Supreme Court can determine if the process of arriving at a decision was correct and lawful but is not concerned with whether the decision was right or wrong.

The introduction of a merits review would mean the whole decision is examined by someone who the commission said would preferably be an external person in order to make the "correct and preferable" decision.

Ms Watchirs said it was frustrating this issue hadn't been addressed in the three years since the Glanfield Report made the recommendation following the torturous death of nine-year-old Bradyn Dillon at the hands of his father.

"But, it's here now and we hope change is implemented quickly," she said, adding that change needed to be seen before the end of the year because there is "disquiet in the community" about care and protection matters.

The commission said an external review process would be necessary to fully comply with the Human Rights Act, and an internal merits review on its own would not be sufficient.

"It would not address a key deficiency in the system whereby, in the absence of detailed court orders and judicial oversight of case planning, Care and Youth Protection Services is not adequately held to account for its decisions."

ACT Minister for Children, Youth and Families Rachel Stephen-Smith said public consultation on the discussion paper had closed and the government was considering the submissions.

"Families are complex and decision making within the child protection system happens within a dynamic context that includes a combination of shared decisions made by consensus and other decisions made through legal processes," the minister said.

"We welcome the feedback from the ACT Human Rights Commission and the organisations and individuals who have taken the time to respond to this important discussion paper."