Page 1593 - Week 05 - Wednesday, 10 May 2017
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The consensus was that an independent mediator was needed to deal with these disputes.
The report did not identify a specific external review mechanism, but, amongst others, noted that the Childrens Court magistrates and most of the legal representatives with whom the review spoke had expressed support for an administrative children’s tribunal supplemented by a judicial appeal process. One possible option was to create the position of a commissioner for children and young people, who would have the power to convene an independent tribunal, the decisions of which should also be subject to judicial review. The report concluded that this would “complete a comprehensive statutory framework for external scrutiny of services dealing with children and young people in the ACT”.
Thirteen years later, the ACT has a Children and Young People Commissioner, for which I express gratitude, but still no independent tribunal or access to judicial review. These points were made clear in a report that was submitted to the ACT government in April last year entitled Report of the inquiry: review into the system level responses to family violence in the ACT. It is often referred to as the Glanfield inquiry, and it was prepared by a board that was appointed on 22 February 2016 following the tragic death of Bradyn Dillon one week earlier.
This report noted that important decisions such as care plans are not merits reviewable in the ACT. It quoted from a Legal Aid ACT submission that explained that, for example, a caseworker can drastically vary a Childrens Court issued care plan, but if a mother is dissatisfied with this variation Legal Aid can only advise her that “there is no pathway for her to seek external review of this decision”.
This lack of external review surprisingly includes no form of judicial review. According to the Glanfield report, only a decision made under the Children and Young People Act is subject to such a review. The decision regarding a child’s placement, however, is—and I quote:
made by the Director-General—
of the Community Services Directorate—
pursuant to the care and protection order made by the Childrens Court and is therefore not a decision under the CYP Act, and is therefore not reviewable …
In short, Legal Aid was correct to observe that in the ACT there is simply no pathway for a parent, close family member or other concerned party to seek external review of a decision made by CYPS regarding the placement of a child or the alteration of a care plan. This reality creates a situation that is unique among all Australian jurisdictions. The ACT is the sole jurisdiction that does not currently provide such a mechanism for external review or scrutiny of a child’s placement or care plan.
In New South Wales the placement of a child can be reviewed by a tribunal. Reviews of care plans can be conducted by the Children’s Guardian and orders can be appealed to the District Court. In Victoria case plans and other decisions made by the secretary
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