Can the Chief Executive’s decisions be reviewed?
Most, if not all, of the Chief Executive’s decisions under the Children and Young People (Safety) Act 2017 are reviewable internally by the Department.
The Chief Executive’s decisions in relation to the approval (or cancellation of approval) of carers, foster care agencies and residential care facilities are also externally reviewable by the South Australian Civil and Administrative Tribunal.
Other decisions by the Chief Executive under Chapter 7 of the Act may also be reviewable by the Tribunal, except a decision relating to contact arrangements; or those that constitute prescribed child protection complaints [see s 158(1)(a) and 158(2)(a)]. These decisions are investigated or reviewed in different ways; see Can parents have continued contact with their children? and Prescribed Child Protection Complaints. See also the Table of complaints, reviews and appeals.
A decision must be internally reviewed before it can be reviewed by the Tribunal [s 158(2)(b)]. See Time frames below.
Decisions under Chapter 7
Decisions of the Chief Executive under chapter 7 of the Act may include those relating to the following:
- approval of carers, foster care agencies and children’s residential facilities
- placement, education and medical arrangements for children and young people
- review of the circumstances of children or young people
- direction not to communicate with, harbour or conceal
- suitability of long-term guardians
- financial or other assistance to approved carers or others
- assistance to eligible care leavers
Who can apply for external review
Section 158(3)(a) and (b) set out that applicants for approval as carers, foster care agencies and residential care facilities and those to whom cancellation of approval relates may apply to the Tribunal for review.
Sub-section (c) says that, in relation to any other decision, those prescribed by regulations may apply to the Tribunal [see s 158(3)(c)] and Children and Young People (Safety) Regulations 2017 (SA)]. Regulation 40A says that those who may apply include:
- the applicant in respect of an internal review of a decision
- a child or young person to whom the reviewable decision relates (if they were not the applicant for review)
- any other person aggrieved by the reviewable decision who has a sufficient interest in the matter
The child or young person about whom the review proceedings relate must generally be given an opportunity to personally present their views to the Tribunal about their ongoing care [s 159(1)]. The only reason they may be refused this opportunity is if the Tribunal is satisfied that they are not capable of personally presenting their views or it would not be in their best interests to present their views [s 159(2)]. The child or young person may or may not be represented by a lawyer at the Tribunal, but either way, they will be given the opportunity to personally present their views [s 159(3)].
A person who is unhappy with a decision must first seek an internal review within 30 days [s 157]. An Application for Internal Review Form is available on the Department’s website and can be submitted in person, by post or by email.
If, after the internal review is complete, a person is still unhappy with the decision, they may apply, within the next 28 days, for the decision to be reviewed by the South Australian Civil and Administrative Tribunal [s 158]. An extension of time beyond the 28 days may be allowed if the Tribunal is satisfied that special circumstances exist and no one will be unreasonably disadvantaged by the delay [s 158(5)]. Fees may apply. See SACAT Fees.
Correct and preferable decision
The Tribunal will be looking at whether the Chief Executive made the correct and preferable decision [see South Australian Civil and Administrative Tribunal Act 2013 (SA) s 34(4)].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.