Unfortunately, too often the child protection system fails to treat its volunteer foster carers with respect and fairness.

On October 12, 2017, the Full Court of Supreme Court of South Australia delivered the judgment of L & Anor v State of South Australia; H-P v State of South Australia [2017] SASCFC 133 which, in my view, reinforces and legitimises a child protection system that fails to protect and maintain its cheapest and most precious resource – foster carers. I believe this judgment places South Australia’s current foster carers at grave legal, financial and emotional risk. The resulting systemic risk may ultimately lead to a reduction in the retention and recruitment of South Australian foster carers.

The potential consequences of this judgment must be understood in the broader context of South Australia’s child protection system. As the Nyland Commission reported in August 2016, South Australia’s child protection system is broken. The number of foster carers entering the system cannot keep pace with the number of children entering it. This has, therefore, lead to an increase in children and young people being housed in inadequate and unsafe residential care arrangements.

The numbers are staggering. According to the most recent annual report of the Guardian for Children and Young People, as at June 30, 2017, there were 3296 children and young people under the care and/or guardianship of the Minister. This is an increase of 282 from the previous financial year. More than 10 per cent of those children, some 388, are presently living in residential care. Further, according to the guardian’s submission to the Nyland Royal Commission, the cost of caring for children in out-of-home care in South Australia has risen at a greater rate than any other state in Australia, with an increase of 245 per cent in 10 years.

Residential care is universally accepted to be an inadequate and inappropriate environment to house vulnerable children and young people. Commissioner Nyland noted that residential care is often unsafe and leaves children unacceptably vulnerable to sexual and physical assault. The need, therefore, for quality, stable, secure home-based foster care is paramount in a healthy, robust child protection system.

It is within this context that the decision of L & Anor v State of South Australia; H-P v State of South Australia must be seen as a deeply troubling development. For those who are, or are considering becoming, foster carers, the judgment is a cause for alarm and disappointment.

The matter before the Court dealt with two sets of foster parents who had had care concerns raised against them with respect to the standard of care they were providing to their foster children. For the purposes of this article, I will focus on one set of those foster parents – Mr and Mrs L.

Mr and Mrs L were approved as foster carers and had two children placed with them. Mr L was a school teacher and Mrs L was employed at the school that the children attended. The children had lived with Mr and Mrs L for more than three years. In October 2014 the children were removed by the then Department for Education and Child Development. At the time of the removal from their home, the principal criticism by the department’s care concern investigation unit (CCIU) was that the foster parents were not engaging with social workers or allowing the children to see their biological parents.

It is of note that the only grounds that were finally substantiated against Mr and Mrs L were that the children had suffered emotional abuse and a deficit in the quality of care arising from matrimonial conflict. This matrimonial conflict does not appear to have included any allegations of domestic violence. Therefore, ultimately the children were removed from a long-term, stable family placement because of marital conflict. Withholding contact with the children’s biological family was not found to amount to emotional abuse.

At the time the children were removed, Mr L was stood down from his job as a school teacher at the children’s school because of the CCIU investigation. Due to the investigation that finally determined Mr and Mrs L had marital conflict, Mr L was unable to work.

Mr and Mrs L sought review of the findings of the CCIU and the subsequent removal of the children from their foster family on several bases, including a failure to afford Mr and Mrs L procedural fairness. Mr and Mrs L also sought the review of whether their interests had been adversely affected by the CCIU report itself. The leading judgment of Chief Justice Kourakis, which was followed by Judges Parker and Doyle, dismissed all of Mr L and Mrs L’s grounds of review and, in doing so, exposes current and future foster carers to grave legal, financial and emotional risks. Tragically, it also exposes vulnerable children in out-of-home care to arbitrary removal from long-term home-based foster care placements and the whims of South Australia’s fickle and unreliable child protection system.

The most concerning element of the judgment is Kourakis’ determination that the CCIU had no obligation to afford foster carers procedural fairness when investigating allegations of deficits in quality of care. This is despite the fact that many documents circulated to foster carers, and within the department itself, expressly stated that foster carers would be afforded procedural fairness during any investigation by the CCIU.

Consequently, when an allegation is made against a foster carer about abuse, neglect and/or a deficit in care, the individual against whom the allegation is made has no right to be informed of the allegation, to answer the allegation, to know what the investigative process entails, to be sure that the investigator is unbiased and, most alarmingly, what rights might be affected – for example, the custody of the carer’s own biological children and the status of his or her future employment.

The Government must ask itself whether it is willing to expose its volunteers to such grave risks.

The judgment denying foster carers procedural fairness during the CCIU investigation is particularly alarming given that under the current Children’s Protection Act 1993 (SA), foster carers have no right to test those findings or appeal decisions based upon those findings to an independent, binding authority. Further, there is no obligation on the CCIU with respect to the time within which the CCIU investigation must be completed. The CCUI investigation into Mr and Mrs L took some five months. Thus, while a CCIU investigation is being carried out and/or in the event that allegations are ‘substantiated’ foster carers will not be able to obtain a working with children clearance. In many cases, a failure to obtain a working with children clearance will preclude an individual from employment, as was the case with Mr L in his profession as a teacher.

Foster carers have been described as the ‘ultimate community volunteers’ who go ‘far beyond ordinary parenting’, they are ‘on duty seven days a week and 24 hours a day, taking distressed children into their homes at a moment’s notice for unspecified periods of time (Freda Briggs and Susan Hunt, Foster Care from a Historical Perspective (2015) 40.4 Children Australia 316.

There is no question that the obligations on South Australia’s foster carers are onerous, as are the legal, financial and emotional risks. If the Government is serious about recruiting and retaining quality foster carers to take in and care for South Australia’s most vulnerable and challenging children, then it must get serious about protecting the people who volunteer to parent those children on its behalf.

The Government must ask itself whether it is willing to expose its volunteers to such grave risks. And if the Government is willing to expose individuals to such, who in their right mind would absorb those risks? Does the Government hope that an individual’s desire to ‘be a hero to a child’ or to ‘choose to care’ will outweigh their need to minimise risks to themselves and their families?

This hope seems misplaced, particularly now that the judiciary has taken away a most fundamental right – the right to be afforded procedural fairness.

Kelly Ryan is a PhD Candidate at the University of South Australia Law School.

She is on the board of advocacy group, Connecting Foster & Kinship Carers SA, but the views expressed in this article are her own.