BHR and BHS v Biripi Aboriginal Children’s Services [2015] NSWCATAD 25

BHR and BHS v Biripi Aboriginal Children’s Services [2015] NSWCATAD 25

Although the respondent's refusal to return the child to the applicants in early January 2014 was not justified because the allegations were not sufficient individually or collectively to show risk of harm, by the time of hearing the child had been away from the applicants for more than nine months, was well settled in a kinship placement with positive attachment to his current carers and siblings, and another disruption posed greater risk. Having regard to section 9 of the Children and Young Persons (Care and Protection) Act 1998 and the expert evidence of Mr Sheehan, affirming the removal was the correct and preferable decision at the time of hearing.

Jurisdiction
Australia
Judgment Date
25 February 2015
Procedural Posture
Administrative Review of a Designated Agency Decision to Remove a Child From the Day to Day Care of Authorised Carers / Principal Judgment After Hearing; Application for Costs Reserved for Determination on the Papers
Outcome
The decision of the respondent to remove the child from the applicants' day-to-day care was affirmed.
Legal Topics
['review of Administratively Reviewable Decision' 'authorised Carers' 'removal of Child From Day to Day Care' 'risk of Significant Harm Allegations' 'best Interests, Safety, Welfare and Well Being of Child' 'behaviour Management Policies' 'contact With Former Carers']
['administrative Law' 'child Protection' 'out of Home Care'] ['review of Administratively Reviewable Decision' 'authorised Carers' 'removal of Child From Day to Day Care' 'risk of Significant Harm Allegations' 'best Interests, Safety, Welfare and Well Being of Child' 'behaviour Management Policies' 'contact With Former Carers']

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Procedural Posture

Administrative Review of a Designated Agency Decision to Remove a Child From the Day to Day Care of Authorised Carers / Principal Judgment After Hearing; Application for Costs Reserved for Determination on the Papers

Legal Issues

  1. 1 ["Whether the respondent's decision to remove the child from the applicants' day-to-day care was the correct and preferable decision at the time of hearing." "Whether the allegations relied on by the respondent justified refusing to return the child to the applicants' care after respite." "Whether the child's safety, welfare and well-being under section 9 of the Children and Young Persons (Care and Protection) Act 1998 required affirming the removal given the child's current placement and attachments." 'Whether recommendations should be made concerning contact, independent review and respondent policies.']

Ratio Decidendi

Although the respondent's refusal to return the child to the applicants in early January 2014 was not justified because the allegations were not sufficient individually or collectively to show risk of harm, by the time of hearing the child had been away from the applicants for more than nine months, was well settled in a kinship placement with positive attachment to his current carers and siblings, and another disruption posed greater risk. Having regard to section 9 of the Children and Young Persons (Care and Protection) Act 1998 and the expert evidence of Mr Sheehan, affirming the removal was the correct and preferable decision at the time of hearing.

Court Disposition

The decision of the respondent to remove the child from the applicants' day-to-day care was affirmed.

Orders

  • ["The decision of the respondent to remove the child from the applicants' day-to-day care is affirmed." 'Pursuant to subsection 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, subject to the willingness of the applicants, the respondent is recommended to take steps to facilitate...