17.75 An essential step in meeting the guarantees in the Charter for Children in Care would be the development of a case plan for each child in care and a detailed, regular and accessible review process of case plans and court orders. Children in out-of-home care should have a right to have their circumstances and status reviewed periodically. Any system of review should be based upon the establishment of an adequate long term care plan.
17.76 In their study of children in care, Brewer and Swain found that ‘…the picture presented was of an uncoordinated approach to the planning for children in care’. Their report also pointed to disparities between the States and Territories in the review processes.
17.77 In NSW, for example, legislation provides for Children’s Review Panels but these panels have never been proclaimed. NSW has, however, established a Community Services Commission that can handle complaints about the circumstances of children in care and conduct reviews of the circumstances of individual children in care. In the ACT the Community Advocate may intervene in case plan reviews and can apply for reviews of orders made by the court.
17.78 In Victoria there is a process of internal review of case plans. Children are encouraged to participate in these reviews. In addition, when certain court orders are made for longer than 12 months, the Director-General of the family services department must review the case before expiration of the first 12 month period and consider whether the order continues to be necessary. If so, he or she must notify the court, the parent and the child. In default, the order ceases to be in force. A party dissatisfied with the result of the review may appeal, under certain circumstances to the Victorian Administrative Appeals Tribunal for a review of the case plan. In the Victorian system the court does not review case plans but it does review orders that are made for an initial period of not more than 12 months. In these circumstances, the order may be extended only by the court upon application by the Director General.
17.79 New York has a system similar to that in Victoria, except that case plans are reviewed by the court in conjunction with court orders. Most care and protection orders may be made for periods of not more than 12 months and applications for an extension of placement or supervision must be made if a party wishes the order to continue. In determining whether a placement or supervision order should be extended, the court generally assesses the family services department’s plan for the child and makes further orders regarding the case plan and the provision of services related to the plan’s goals. Where the order is expressed to be ‘permanent’, that is, where guardianship of the child has been transferred to the State for the purposes of adoption but adoption has not occurred within 18 months of the order (6 months if the child is not yet in a pre-adoptive home), the family services department must file an application for a court review of the plan to assist the child in being adopted. In reviewing the status of these children, the court may consider the appropriateness of the service plan and may make orders that the child be placed in a different agency to promote a permanency plan for the child.
17.80 In the UK, courts used to have power to review the circumstances of children subject to wardship orders. This arrangement was said to have increased case loads of the magistracy and was criticised on the basis that courts may not be in the best position to decide how to handle day to day arrangements for a child’s care. Under the Children Act 1989 (UK) the local authorities now have primary responsibility for management of children in care. Judicial review is now considered a last resort, available where the applicant can show that the local authority acted in a way in which no reasonable authority could act or acted outside its statutory authority. In such cases, the court can order that the local authority discharge its statutory authority or that a decision be quashed but cannot make placement or service orders it considers to be in the best interest of the child.
Development and reviews of case plans
17.81 When children are placed under care and protection orders that require them to live away from their families or are voluntarily placed in care by their families, detailed case plans should be formulated for each individual child. The case plan should describe the goals for that child and specify the services and co-ordination necessary both to reach those goals and to provide the basic guarantees in the Charter for Children in Care. Case plans should be formulated in consultation with the child and those involved with the child. In addition, they must be formalised in writing, as a UK report has noted that
…if plans are not written down, they can never be monitored. In addition to the potential damage to children and families, the result of decision-making and planning on inadequate evidence or false assumptions is increased work, greater stress and less job satisfaction.
17.82 These case plans should be subject to regular review. Reviews provide a means to ensure that case plans are being followed, that they remain appropriate and that children can have a say in decision-making about them. One submission to the Inquiry noted
I remember one day was really bad when I went to court and that was the day that I was told that my little sister was moving interstate. There was no lead ups and, you know, she might be going interstate or bla bla bla and I had no say in it. They didn’t talk to me about it.
17.83 At first instance, reviews should be internal. The child should be able to participate in this review process. Each child in care should have a legal representative who remains, as far as possible, the child’s representative throughout the time the child is in care. This representative should be able to participate in the review process if so instructed by the child client or, where the child is too young to provide instructions, if the representative considers it necessary in the best interests of the child. The representative should therefore be given notice of each review along with details of the child’s current circumstances. In addition, the representative or the child should be able to initiate a review process within the review period if a change in circumstances warrants it.
17.84 In some circumstances an independent agency should be involved in the annual review, as are the ACT Community Advocate and the NSW Community Services Commission. An independent, external review of case plans is particularly important where the family services department, family, foster carers and/or child do not agree on the terms or goals of the case plan. These parties should be able to request an independent review. The relevant body should also be able to conduct such a review on its own initiative. Suitable bodies to undertake this function already exist in many jurisdictions, for example, the Queensland Commissioner for Children, the SA Children’s Interests Bureau or even the children’s courts. In Chapter 7, we discussed other bodies that may be suitable to undertake this function.
Recommendation 178 National care and protection standards should make the following provisions.
Each child in care should have a detailed case plan within 6 weeks of entry into care.
The case plan should describe the ultimate goals for the child (for example, return to parent, adoption or independent living) and designate the appropriate day to day services and co-ordination necessary to reach those goals and to provide the child with the basic guarantees in the Charter for Children in Care.
The educational needs, recreation opportunities and behavioural and/or medical intervention requirements for each child and the respon-sibilities, time-frames and strategies necessary to achieve the identified goals should be addressed in the case plan.
The case plan should be developed in consultation with the child. The child’s views and wishes should be given due weight in accordance with his or her level of maturity.
Recommendation 179 In each jurisdiction all case plans should be subject to annual review. Reviews should be conducted by the relevant family services department and, for those case plans that may be contested or controversial, also by an independent body.
The internal and external review processes should include participation by the child and/or the child’s legal representative if the child wishes or the child’s best interests require representation.
The independent body, perhaps modelled on the ACT Community Advocate or the NSW Community Services Commission, should be able to conduct a full case plan review at the request of the family services department, parent, foster carer or child or on its own initiative. To facilitate this review, the independent body should be provided with the family services department’s proposed case plan prior to each review, have access to the original court and department file and involve all participants, including the child, in the review process. Its review should focus on ensuring that the child’s best interests are paramount in the formulation of case plans and on providing objectivity and accountability in the formulation of appropriate case plans.
Implementation. Appropriate bodies should be established or given responsibility for independent reviews in each jurisdiction. This should be included as a legislative requirement in the national care and protection standards.
Reviews of orders
17.85 The circumstances of children under care and protection orders are not static. Children grow older, families evolve and opinions regarding the safety of the child may change. Just as case plans need to accommodate these changing circumstances so too may court orders. Children under non-permanent out-of-home care orders should be subject to orders of no longer than 12 months, except in unusual circumstances. The matter should then be brought back before the court where a party wishes the order to continue for any additional period of time. This arrangement provides an automatic review by the court of the non-permanent orders in most cases and should assist in the prevention of children ‘drifting’ in care.
17.86 In addition to reviews of non-permanent orders, the child and the parties to care and protection matters may need to have recourse to the court before an order expires or is extended. This situation could arise when the situation of the child and the family changes during the course of an order to the extent that the order is no longer appropriate. In addition, even where permanent orders have been made, there may be situations where they are no longer the most appropriate order. Some jurisdictions provide that only the family services department or the parents may apply for amendment of court orders in such cases. The child, with the continued assistance of his or her legal representative, should also be able to bring applications to vary or revoke orders.
Recommendation 180 National standards should specify that the child or the child’s representative may bring an application to vary or revoke an order at any stage.
17.87 Each State and Territory has an ombudsman or equivalent to provide independent review of services and to handle complaints about government services, including those concerning children in care. Several jurisdictions have established an independent body to focus particularly on the needs of children or the care and protection system, such as the NSW Community Services Commission and the Queensland Commissioner for Children. Chapter 7 discussed the need for State and Territory complaints bodies able to handle complaints from children or about issues affecting them. In addition, the review processes set out above can also act as forums where complaints about the care and protection services provided to a particular child can be heard and addressed.
 We distinguish here between reviews of case plans and reviews of orders made by the court. This is a distinction that is not made, or is less relevant, in some jurisdictions.
 CROC art 25.
 G Brewer & P Swain Where Rights are Wronged National Children’s Bureau of Australia Notting Hill 1993, 14.
 Children (Care and Protection) Act 1987 (NSW) Pt 7.
 NSW Community Services Commission Annual Report 1995–96 NSW Community Services Commission Sydney 1996, 10–11.
 See ACT Attorney-General’s Dept Annual Report 1994–95 Attorney-General’s Dept Canberra 1995, 183; Children’s Services Act 1987 (ACT) s 89.
 Vic Government IP Submission 213. See Children and Young Persons Act 1989 (Vic) s 121.
 Children and Young Persons Act 1989 (Vic) ss 91, 106.
 Children and Young Persons Act 1989 (Vic) s 122.
 Children and Young Persons Act 1989 (Vic) ss 99–102, ss 107–108.
 New York Family Court Act s 1055(b) (orders of placement in foster care), s 1057 (orders of supervision).
 New York Family Court Act ss 1055, 1055–a.
 A Bainham Children: The Modern Law Family Law Bristol 1993, 367–386.
 For a discussion of review processes in the UK see Halsbury’s Laws of England Butterworths London 1993 vol 5(2) paras 1181–1188. See also Review of Children’s Cases Regulations 1991 Sch 2.
 UK Dept of Health Patterns and Outcomes in Child Placement HMSO London 1991, 93.
 E Travers, Future Echoes Public Hearing Submission Adelaide 1 May 1996, 5.
 See para 13.119, rec 82.
 See para 7.9.
 See rec 172.
 eg Children’s Services Act (Qld) s 51; Community Welfare Act 1983 (NT) s 48 (although this legislation also adds that any person interested in the welfare of, or acting at the request of or on behalf of, the child may also make such applications).
 See eg Children’s Protection Act 1993 (SA) s 40; Children (Care and Protection) Act 1987 (NSW) s 75; Children, Young Persons and Their Families Bill 1997 (Tas) cl 48.
 See also the proposed Children’s Commissioner in Tas which was to be introduced with the passage of the Children’ Young Persons and their Families Bill 1997.