Decisions regarding a child’s care are always made with best intentions having considered all available information.
If you are dissatisfied with a decision, it may be possible for it to be reviewed. The Children and Young People Act 2008 outlines the types of decisions that can be formally reviewed. Any review, whether formal or informal, must give consideration to the best interests of the child to whom the decision relates. It is recognised, undertaking a review can bring uncertainty and unintended consequences that may adversely affect the wellbeing and development of the child.
It is important to remember your case manager is available to speak with you whenever you have questions or concerns – they should be your first point of call. Reaching out to your case manager is especially important for understanding which review mechanisms might be available, and why.
Internal merits review of decisions
There may be times during your involvement with CYPS or ACT Together when you would like to have a decision that has affected you or the child in your care reviewed by the area responsible for making it – this is an option available to you as a person affected by the decision. A request to have a decision reviewed is not the same as a complaint.
Such a review is conducted internally – that is, within the responsible agency. There are though some decisions that are also able to be reviewed by an external reviewer through the ACT Civil and Administrative Tribunal. See ‘External review of decisions’ below for more information.
To have a decision reviewed internally, your first step should be to understand the basis for the decision. To obtain this understanding, contact your case manager and ask for a written explanation regarding the decision you are questioning.
This written decision statement will explain:
- the decision that was made
- who made the decision
- on what basis the decision was made and the evidence considered
- how the effect of the decision is in the child’s best interests.
Once you have the statement, you can:
- request a meeting with your case manager to discuss the decision
- request an internal merits review, also referred to as a ‘Review of the Decision’, (where eligible).
If you have met with your case manager and are still unhappy with the decision, you can escalate your concerns by seeking an internal merits review of the decision. This is where the decision is reviewed by another person within the relevant agency, who was not directly involved in making the original decision. The reviewer is usually a more senior person, and re-examines the decision by stepping into the shoes of the original decision-maker to determine if they would come to the same or a different conclusion. In reviewing a decision, the reviewer may do one of the following:
- confirm the decision made by the original decision-maker
- amend the decision made by the original decision-maker
- set aside the decision under review and make a new decision.
To be eligible for an internal merits review of a decision, you must be the person affected by the decision, or a person with a guardianship or parenting responsibility for the child about whom the decision was made. A simple disagreement with the decision on its own is not enough to trigger a review.
For a decision to be reviewed, your concerns about the decision should be related to one or more of the following:
- the decision is based on an error of law
- the decision is based on an error of fact
- the decision is based on an error of policy
- the decision is based on incomplete information
- the decision is based on an incorrect interpretation of the information
- the decision goes against higher principles, such as human rights or child welfare
- highly unusual circumstances exist
- new information exists that was not available at the time the decision was originally made.
Examples of decisions that may be reviewed include:
- a decision to change the school the child attends
- a decision to not approve financial support
- a decision to move a child from your care
- a decision about the frequency of contact between the child and their birth family.
To request an internal merits review of a decision, contact the relevant complaints area listed in the previous section. They will be able to tell you if your concern meets the eligibility criteria and if so refer your request to the appropriate area within CYPS or ACT Together for the review to be conducted.
External review of decisions
Some decisions have an automatic right of external review by the ACT Civil and Administrative Tribunal (ACAT). If you are dissatisfied with the outcome of an internal merits review of a decision, you may be eligible to make an application to ACAT for a further review to be conducted. Applications to ACAT can be made in respect to reviewable decisions as defined by section 839 of the Children and Young People Act 2008. In reviewing a decision, ACAT will be guided by administrative law principles that promote government decision-makers having legal responsibility and accountability for decisions made, and for the decision-making process.
Reviewable decisions by ACAT include, but are not limited to:
- refusal to approve a person as an approved carer
- refusal to renew a person’s approval as an approved carer
- refusal to authorise a person as a kinship carer
- refusal to authorise a person as a foster carer
- refusal to approve a place operated by an approved residential care organisation as a place of care.
You may seek an internal merits review of the decision in the first instance. If you would like to progress an application to ACAT for a decision to be reviewed externally, you may wish to seek legal advice first.
The Public Advocate ACT is also able to make an application to the Childrens Court regarding some matters should they believe a decision made is not in the child’s best interests.
It is recommended you seek independent legal advice about this process. More information about the role of the Childrens Court is in ‘Guiding legislation and policies’.
If you would like assistance, Carers ACT provides an independent Kinship and Foster Carers Advocacy Service that can provide you with support. See ‘Supports and services’.
Back to top