Internal review of decisions - advice

This advice provides additional information regarding internal reviews of child protection decisions by divisional senior officers.

Introduction

See procedure Internal review of decision for tasks that must be undertaken.

The internal review process applies to all decisions made by the Secretary (including child protection practitioners or managers as delegates) as part of the decision-making process for child protection clients including case planning decisions for clients. The legislation requires the department to have procedures for the internal review of decisions made as part of the decision-making process following the making of a protection order. This encompasses all decisions which may be made in relation to a child, consistent with the scope of reviewable decisions by the Victorian Civil and Administrative Tribunal (VCAT).

If a child or parent remains dissatisfied following the internal review process, they may apply to the VCAT for a review of a decision contained in a case plan or any other decision made by child protection concerning the child. A person must exhaust all available avenues for the review of a decision before applying to VCAT. See VCAT Review.

Please note: The internal review and VCAT processes available under the CYFA are limited to reviewing decisions made by government decision-makers and do not apply to decisions of a Court. Decisions of a Court may be appealed to a higher Court. See Appeals – advice.

Principles

These principles underpin the internal review process:

  • The best interests of the child are paramount.
  • The review process considers both administrative and procedural aspects of the decision under review and case practice, and whether the decision was in the child’s best interests.
  • Internal reviews are conducted in a manner that is transparent and open, impartial, procedurally coherent, fair to all parties, and timely.
  • Information about the right to review, the review process, and any relevant timelines applicable to the review process, is provided to children and parents in a way that they are able to understand.
  • Children and parents are assisted to provide their views and wishes to the reviewing officer and are encouraged to involve advocates to assist their participation in the review process including at meetings held as part of the review process.
  • Any person directly affected by a child protection decision has access to the internal review process, including home-based carers in some circumstances.

Internal reviews

Reviewable decisions

At any phase or stage of child protection involvement, where a child, a parent or other person directly affected by a child protection decision is dissatisfied with the decision they may request access to the internal review process.

Decisions about the following types of issues may be subject to the internal review process:

  • classification of reports at intake
  • substantiation
  • care arrangements
  • contact between child and family
  • cultural support
  • education, health or developmental support
  • entry to or exit from a secure welfare service
  • return to parental care
  • involvement of other agencies and services.

Prior to a formal request for internal review, the case planner should make every reasonable effort to achieve resolution regarding the decision in dispute without compromising the best interests of the child. This should not inhibit the person's access to the internal review process or contribute to avoidable delay. Where satisfactory resolution cannot be achieved, the case planner will arrange assistance for the person to request an internal review.

The reviewing officer must be advised where resolution has not been achieved at the team manager level.

Who undertakes an internal review of a child protection decision?

Internal reviews will ordinarily be conducted by an executive officer (EO) with line management responsibility for the child protection case or by another executive officer with relevant child protection knowledge and the required expertise to undertake the review process.

The reviewing officer may delegate the review to a child protection manager (at minimum CPP6.2 level) where appropriate to the circumstances and the complexity and sensitivity of the case. A decision to delegate a review to a CPP6.2 must take into account the primary requirement to provide a visibly robust, transparent and impartial review process. The reviewer must not have had prior direct involvement in the decision under review. The decision to delegate a review to a CPP6.2 should also consider the relative impact of the decision under review.

Where a review has been delegated to a CPP6.2, that reviewer will make a recommendation to the EO with line management responsibility for the case. The EO may endorse the recommendation or make a different decision. The EO has ultimate responsibility for the outcome of the review.

An EO may seek transfer of a review to another division of the Department of Health and Human Services where appropriate.

Who may apply for a review of a child protection decision?

The internal review process is available to people directly affected by a child protection decision and who have a significant relationship to a child; principally parents (and other family members) and the child where they are of sufficient age and developmental capacity.

Parents

'Parent' as defined by the CYFA includes:

  • the father and mother of the child
  • the spouse of the father or mother of the child
  • the domestic partner of the father or mother of the child
  • any person who has parental responsibility for the child, other than the Secretary
  • a person whose name is entered as the father of the child in the register of births maintained by the Register of Births, Deaths and Marriages
  • a person who acknowledges that he is the father of the child by an instrument of the kind described in section 8(2) of the Status of Children Act 1974
  • a person in respect of whom a court has made a declaration or finding or order that the person is the father of the child.

Carers

Kinship carers may access the internal review process.

An unrelated home-based carer who is directly affected by a child protection decision may access the internal review process while the child is residing with them.

Carers connected with a Community Service Organisation (CSO) should first raise concerns with their care worker or a manager in the CSO. It is the role of the CSO to provide information and support to carers including information and assistance relating to the resolution of decision-making disputes. The CSO may, on behalf of a carer, raise their concern with the department, separately from the internal review process.

Professionals

Professionals connected with a case are not entitled to access the internal review process. They may address unresolved concerns about decisions through endorsed dispute resolution processes in consultation with their management. Complaints will be addressed through agreed complaint handling protocols.

Advising children and parents about the internal review process

Practitioners and managers must advise children and families of their right to request a review of a decision within the department, and the process to initiate a review. Practitioners and managers must also advise children and families of any timelines applicable to the review process.

A copy of the department’s procedures for the internal review process must be given to the parent and child (subject to the child's age, development and capacity) with the copy of the case plan which is required to be given under s.168 of the CYFA (s.331(2) CYFA). This information is also to be provided:

  • on the first visit or direct contact with a child or parent
  • when providing written advice to a child or parent about the outcome of the investigation of a report.

See information sheets Review of a child protection decision for parents and Review of a child protection decision for young people.

Review timelines and considerations

Review timelines should reflect the best interests of the child.

It is desirable for a request for internal review to be initiated as soon as possible, preferably within two weeks of a decision having been made. The time limit for requesting a review will generally be within 28 days of the date the decision was made.

A person seeking an internal review of a decision should specify as clearly as possible the specific decision they wish to have reviewed, and the outcome they are seeking. Where possible this should be in writing and using the ‘Request for a review of a child protection decision’ located in  Case planning forms. Where applicable, they will need to provide reasons for their request being made outside the 28 day timeline.

Where a person is unable or unwilling to provide a written request, a meeting should be held with the person to clarify their request. Consideration should be given to involving an advocate or support person, either nominated by the person seeking the review or through a support agency known to the family.

The person seeking the review should be advised that they may provide documents to support their request if they wish.

Requests made more than 28 days after the decision

The 28 day timeframe is to be applied flexibly and reasonably according to the circumstances of the case. The department will conduct reviews of decisions where requested outside of the 28 day time frame if the reviewing officer considers that in all of the circumstances it would be fair and just to the person requesting the review having regard to:

  • the best interests of the child as the paramount consideration
  • the decision-making principles set out in the CYFA
  • any reasons put forward for seeking the review outside of the 28 day timeline
  • natural justice considerations for the person or persons affected by the decision, including giving a person seeking a review an opportunity to be heard; and
    • the Charter of Human Rights and Responsibilities.

Where a request for review is received outside of the 28 day timeline, the reviewing officer will be advised and will determine if a review will be heard. The reviewing officer will advise the person seeking the review (of their decision on whether a review will proceed) within 14 days of the review request.

Timelines for completing internal reviews

Internal reviews should be completed within a timeframe which gives due consideration to the circumstances and rights of the person seeking the review and has regard for the best interests of the child and decision-making principles of the CYFA.

Acting on a decision subject to internal review

While an internal review process is being undertaken, a decision will be required on whether the decision subject to review is to be implemented or suspended pending the outcome of the review.

In determining whether or not to implement a decision subject to review, the best interests of the child are paramount including the impact upon the child of delayed implementation of the decision(s) subject to review, weighed against the impact should the decision later be changed. The team manager, in consultation with the reviewing officer, should determine whether a decision subject to review should be implemented prior to the outcome of the review process. 

Review procedure

The case planner will provide the reviewer with required background information and documentation to support the review process. This may involve a briefing meeting.

The reviewer will consider:

  • the best interests principles in s. 10 of the CYFA, which are paramount
  • the child's circumstances and assessed needs including their right and need for safety and for their development to be promoted
  • acceptable time-frames for key actions to be completed
  • the child's views within their developmental context
  • cumulative harm and the effect on the child of delayed implementation of decisions
  • the child protection history including for siblings and intergenerational issues
  • the history of the case as this relates to the decision under review. Generally this will involve review of key file material, including:
    • a chronology of child protection involvement with the child and family (including siblings)
    • the endorsed case plan, where one exists
    • relevant court reports
    • assessment reports, including specialist or clinical reports
    • any other material held that may inform the review
  • material provided by the person seeking the review
  • past actions and case management approaches - including past interventions and outcomes
  • the assessment underpinning the decision under review and whether further assessment is required
  • the decision-making principles of the CYFA (s. 11) including the additional decision-making principles for an Aboriginal child (ss. 12-14)
  • whether the circumstances of the case have changed since the decision was made to such an extent that the decision should be altered
  • the person's views and wishes and the basis of these, their understanding of the basis of the decision and the specific outcome they are seeking; and
    • the range of available outcomes appropriate to the child's circumstances and best interests.

The reviewing officer will inform themselves of information that may reasonably be required to properly consider the decision under review. This may involve meetings and consultations as well as review of files and documents.

The reviewing officer will meet with the person seeking the review and others, as may be appropriate. Where the child has requested the review or otherwise where appropriate to gain the child's views, the reviewing officer may meet with the child or seek advice from an appropriate source. The views of the child, within their developmental context, must be considered.

Meetings are to be held at places and times that reasonably allow the person to participate and reasonable notice of the meeting is to be given.

Advocates and interpreters are to be used where required to enable a person to participate in the review process to the fullest extent possible.

The review will be initiated and concluded in a timely way, with due consideration to the impact of avoidable delays. The reviewer may request further assessment or specialist advice where this is required to support decision-making. The reviewing officer should advise parties of next steps and the anticipated timeframe for an outcome.

Review outcome

Outcomes may include:

  • endorsement of the decision under review with or without modification to the case plan or its implementation
  • temporary suspension of the decision pending further assessment, advice or follow-up actions, or
  • setting aside the decision under review in favour of a new decision.

A written outcome must be provided to the parent and the child, and if different, to the person who requested the review, setting out:

  • the decision of the reviewer
  • the reasons for the decision
  • the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based.

This constitutes a statement of reasons for the decision of the reviewer, consistent with sections 45 and 46 of the Victorian Civil and Administrative Tribunal Act 1998.

Children and their parents should be provided with information about their right to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review when the outcome of the internal review is provided. See VCAT review.

Where there is any reason to believe that the person may have difficulty reading English additional assistance must be provided.

Recording the review process

Notes should be taken throughout the review process as they may be required for future review processes. The record of the review process forms part of the client's file and should be recorded under the Internal/VCAT Reviews tab in the Case Practice component in CRIS within the reviews/appeals section, within the case plan screen. Include how the rights of the parties under the Charter of Human Rights and Responsibilities were considered during the review process.

Review by VCAT

Where the child or their parent is not satisfied with the outcome of an internal review of a decision made by the Secretary concerning a child, they may apply to the VCAT for a review of the decision. This right extends to the child and the child's parents as defined in the CYFA.

An application to the VCAT for review of a case plan decision can only be made following completion of the internal review process.

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