TF & anor v Barnardos Australia [2005] NSWADT 259 (17 November 2005)

Last Updated: 16 November 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: TF & anor v Barnardos Australia [2005] NSWADT 259


PARTIES: APPLICANTS
TF and TG
RESPONDENT
Barnardos Australia



FILE NUMBERS: 054023

HEARING DATES: 8/06/2005, 24/06/2005, 30/06/2005 & 18/07/2005

SUBMISSIONS CLOSED: 18/07/2005



DECISION DATE: 17/11/2005

BEFORE: Smyth M - Judicial MemberGroth D - Non Judicial MemberMartin M - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Children and Young Persons (Care and Protection) Act 1998
Ombudsman Act 1974

CASES CITED:

APPLICATION: Revocation of care authorisation

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANTS
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
L Voigt, Chief Executive Officer of Barnardos

ORDERS: 1. The decision of Barnardos to withdraw the authorisation of Mr TF and Mr TG communicated to them by letter of 15 April 2005 is set aside
2. The following conditions are imposed on the Carers Authorisation of Mr TF and Mr TG
a. The Applicants are authorised to provide crisis, respite and intake care
b. The Applicants may not provide care on a permanent basis until 31 December 2006 when their suitability to provide permanent care can be reassessed
c. The Applicants are to comply with reasonable requests from Barnardos to undertake further training as foster carers considered appropriate by Barnardos to assist them recognise the impact of rejection on young people in care and to develop appropriate strategies for assisting young people in their care to develop social skills such as sharing.


Reasons for Decision:

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 On 27 February 2005 a thirteen year old young person was removed from the care of his foster carers by Barnardos Australia (Barnardos). The young person had lived with his foster carers, the Applicants in these proceedings, since 22 August 2003.

2 By application dated 23 March 2005 the Applicants sought a review of the decision of the Chief Executive of Barnardos to remove the young person from their care. On the same day the Applicants lodged an application for a stay of that decision.

3 On 6 April 2005 at a directions hearing before the Tribunal Barnardos indicated that the Applicants’ authorisation as carers had been withdrawn. The Deputy President of the Community Services Division of the Tribunal indicated that both matters, the review of the decision to remove the child and the review of the decision to revoke the Applicant’s authorisation as carers, would be heard by the Tribunal together.

4 Confidentiality. Section 126(1) of the Tribunal Act makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. In these reasons, because of the sensitivity of this matter, we have decided not to publish any details that could identify the Applicants or the young person. In these reasons we refer to the Applicants as Mr TF and Mr TG and the young person as TH. Another young person was briefly placed with the Applicants and we refer to that young person as Young Person A.

5 In this matter the Applicants submit that they are good carers, that they provided good care for TH and that Barnardos removed him against their wishes. They submit that Barnardos decision to cancel their authorisation as carers should be set aside. Barnardos submit that the Applicants provided good care for TH until the last two weeks of the placement. They submit that the Applicants emotionally abused TH at the very end of his placement with them by insisting that TH would have to leave their care if Barnardos would not place an additional foster child with them. Barnardos also submit that they removed TH at the insistence of the carers. They argue that this conduct constitutes emotional abuse, that the Applicants are not suitable carers and that the Tribunal should affirm their decision to cancel their authorisation as carers.

6 Cancellation of authorisation. Ms Smith, the Senior Manager Find-a-Family Centre, Barnardos wrote to the Applicants on 15 April 2005 informing them that their authority to act as Barnardos Foster Carers had been withdrawn and that Barnardos would be forwarding the decision to withdraw their authority to act as foster carers to the Ombudsman and the Commission for Children and Young People. On 18 April 2005 the Applicants forwarded that letter from the Respondents to the Tribunal, stating that they had been advised to ask that this matter be dealt with on the day of the hearing. The Chief Executive of Barnardos wrote to the Applicants on 28 April 2005 referring to the letter from Ms Smith informing them that their authority as carers had been withdrawn. Ms Voight informed them that Barnardos had forwarded a report to the Commission for Children and Young People. In addition the letter stated that the classification of the reportable conduct to the Ombudsman was "Neglect, Environment Not Supportive". Section 25C (1)(a) of the Ombudsman Act 1974 requires the head of a designated non-government agency to notify the Ombudsman of any reportable allegation against an employee of the agency. Allegations of neglect, among other conduct, are included in the definition of reportable conduct.

7 On 8 June 2005, the first day of the hearing, the Applicants lodged a written application to review the decision to withdraw their authorisation as carers. The Respondent consented to the application being accepted by the Tribunal and to the matter being heard.

8 Representation. In this matter neither the Applicants nor the Respondents were legally represented.

9 Guardian ad Litem. On its own motion the Tribunal ordered that the young person be joined as a party to these proceedings [Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 67(4)]. Ms Ramjam was appointed Guardian ad Litem and she was legally represented in these proceedings. The Tribunal commenced to hear both applications together as they involved similar circumstances.

10 On 24 June 2005 when the matter was part heard TH informed the solicitor for the Guardian ad Litem that he had changed his views and no longer wished to be returned to the care of the Applicants. The Applicants indicated that they did not wish to proceed with their application for a review of the decision to remove TH if he no longer wanted to return to their care. The Tribunal adjourned the matter for several days to allow the Applicants a period of time to consider their position. The Applicants subsequently wrote to the Tribunal stating that they did not wish to proceed with their application to have the decision to remove the young person from their care reviewed. The Tribunal dismissed that application on 30 June 2005. The role of TH and the Guardian ad Litem came to an end at this point in the proceedings. The Applicant also stated that they no longer wished to proceed with their stay application and that matter was also dismissed on 30 June 2005.

11 The Applicants continued with their application to have the decision to withdraw their carers’ authorisation reviewed. As the Applications had been heard together, and the evidence before the Tribunal regarding the removal of TH from their care was relevant to the decision to withdraw the carers’ authorisation, that evidence was before the Tribunal in this matter.

Jurisdiction

12 The Tribunal’s power to review the decision to cancel the foster carers’ authorisations as carers was not in issue.

13 Internal review. The Respondent had no objection to proceeding in the absence of an internal review. The Applicants and the Respondent did have discussions and correspondence regarding the decision to remove the young person from their care and cancel their authorisation as carers. The Applicants lodged their application to review the decision to remove the young person in a timely manner and indicated their intention to seek a review of the decision to cancel their authorisation. The lodgement of the application form on the day of the hearing was to ensure that they had complied with procedures of lodgement and that the Tribunal properly had an application before it. In these circumstances we are satisfied that the applications were made within a reasonable time and that it is necessary for us to deal with the applications to protect the Applicants’ interests in accordance with s 55(2)(c) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act).

Background

14 On 7 September 1999 the Children’s Court varied an existing wardship order to extend wardship for TH to the age of 18 years. There was limited evidence before the Tribunal regarding the decision of the Minister for Community Services to place the young person in the custody of the person in charge of Barnardos however this was not in issue in these proceedings. On the basis of the evidence before us, the Tribunal is satisfied that the young person, TH, was in the care of Barnardos by 30 March 2001 and it is likely that he was in their care before that date.

TH’s background and the nature of care provided by the Applicants from August 2003 until the week commencing 14 February 2005

15 It is common ground between the parties that at the time the young person came into the Applicants’ care he had experienced multiple placements and serious difficulties. He and his sister were initially placed together with foster carers however the couple were unable to continue the placement when one of the carers became seriously ill. The children were then returned to Barnardos Find-a-Family service in October 2001 and placed in a short-term placement. During the course of this placement TH attempted suicide on several occasions and threatened to harm his sister. On one occasion the Police had to be called to the foster home because of his behaviour. As a result of concerns about his behaviour he was treated in a Psychiatric Unit and then commenced on anti-psychotic medication.

16 That placement ceased in June 2002 and TH was placed separately to his sister with intake carers following advice from a child and adolescent psychiatrist that it was not safe for his sister to live with him. In July 2002 another psychiatrist concluded that he needed to be separated from his sister in the long term as he was unable to cope with sibling rivalry due to their shared experience of abuse.

17 The young person was unhappy in his new placement and threatened self harm. He was then moved to a temporary placement until 22 August 2003 when he was placed with the Applicants as a long-term intake placement with a view to permanency.

18 He was the first young person that the Applicants had fostered. Despite their inexperience at fostering it is common ground that the placement was very successful until the point where Barnardos placed another young person with the carers on Monday 14 February 2005. In this decision we refer to that person as Young Person A.

19 In evidence before the Tribunal Mr Jenrick, the Programme Manager, Permanent Care and Adoption, Barnardos Find-a-Family agreed that TH’s past history was horrendous. Mr Jenrick was also TH’s caseworker. He stated that TH had made incredible progress in the care of the Applicants, the Applicants had provided a very secure stable home for TH and he was incredibly settled in the placement. Mr Jenrick indicated that both he and the Find-a-Family team considered that the Applicants did a great job as carers. He described the placement as outstandingly successful in being party to a significant change in TH’s problems. Ms Voight, the Chief Executive Officer of Barnardos, and the other Barnardos staff that gave evidence before the Tribunal agreed that the Applicants had provided good care for TH until the final two weeks of the placement and in particular the last few days of his placement.

20 Mr Jenrick indicated that he had not wanted to remove TH from the Applicant’s care and had made it clear to the carers that he wanted him to stay in the placement with them.

21 The Tribunal accepts Mr Jenrick’s evidence regarding the success of the placement given that he was a very experienced caseworker at Barnardos, had worked closely with TH for a long period of time and had supervised the placement with the Applicants from the beginning.

22 The school reports tendered by the Applicant also indicated that during the placement TH progressed well at school. In addition he was able to go off his medication and developed several friendships. References provided by friends of the Applicants who had observed TH with his carers added further weight to the evidence that TH progressed well in the placement and was well cared for by the Applicants.

23 The Respondent provided evidence of an earlier allegation made by the young person in September 2004, that following an argument between Mr TG and TH about tidying his room, TH had tipped tomato sauce over the sofa and thrown sauce at the wall. TH had been verbally aggressive and sworn at Mr TG. TH had contacted Barnardos and alleged that Mr TG had slapped him on the face. Barnardos’ evidence, not disputed by the Applicants, was that Mr TG agreed that he had hit him but only by a slight touching of his face. The next day when Barnardos visited there was no mark on the young persons face. After discussion with all the parties Barnardos concluded that the allegation was not sustained on the basis of insufficient evidence. However, Barnardos organised some additional support for the placement.

24 The Respondent stated that they provided evidence of this incident, not as proof of the incident, but to demonstrate how disturbed TH’s behaviour was. We accept Barnardos’ view that the allegation could not be sustained and that this incident is indicative of the nature of difficult behaviour that TH demonstrated. In our view the Applicants, as first-time foster carers, displayed dedication and skill in dealing with this kind of difficult behaviour and in building a relationship with TH.

25 We are satisfied that the Applicants were dedicated carers who provided a supportive, caring and stable environment for TH. Despite the significant emotional problems that he had on entering their care, he made significant progress and the placement was highly successful. On the evidence before us we find that the Applicants and Barnardos had worked closely and well together to ensure that TH was provided with a high level of care. That continued until Barnardos placed Young Person A with the carers in the last two weeks of the placement and a significant difference of opinion between the carers and Barnardos in the final week triggered the termination of TH’s placement.

The final two weeks of the placement and the end of the placement

26 It is also common ground that the Applicants had indicated an interest in fostering an additional child from early on in their relationship with Barnardos. The Applicant’s evidence was that initially they only asked for one child. They made it clear that if that went well further down the track they would want two children. In her evidence Ms Voight agreed that the Applicants had made it known they wanted another child.

27 It is common ground that Barnardos approached the Applicants on 14 February 2005 and asked them to take a boy of a similar age to TH as a crisis placement for 1-2 days. The Applicants agreed and Young Person A arrived on 14 February 2005. Young Person A’s caseworker, Ms Black, and Mr Jenrick both agreed that they approached the Applicants on the basis that it was a crisis placement for a short period of time. The carers had indicated previously that they wanted another child, the placement of TH was stable and they had no other carers available to take Young Person A at that time.

28 Ms Black gave evidence before the Tribunal. It is clear from her evidence that Young Person A had a number of placement breakdowns due to challenging behaviours, that he had become increasingly violent with his previous carer and that he had "high needs".

29 Mr Jenrick stated in his evidence that he had talked with the Applicants about their request to foster an additional child. Mr Jenrick’s oral evidence was that at the beginning of TH’s placement the carers were told that TH needed to be on his own but that he thought that after 18-20 months it may have been possible for another child to have been placed with them. His view was that any intake placement that would have been an appropriate match for TH would have been with a much younger child. In a letter dated 7 March 2005 from Barnardos to the Applicants, Mr Jenrick stated that

You may recall that initial discussions have taken place with respect to your request to become considered as intake carers. Barnardos were in the process of arranging tentative discussions (both Margi Andrews Recruitment and Support Manager and myself were to have met with you at the beginning of April).

30 We accept Barnardos’ evidence that initially the Applicants were told that TH would need to be the sole child in the placement. On the basis of the Applicants’ evidence, the letter referred to above and Mr Jenrick’s evidence we find that the carers had told Barnardos that they wished to foster an additional child and that there had been some discussion of this issue between the carers and Mr Jenrick before Young Person A was placed with them.

31 Given these discussions, it would have been reasonable for the carers to have some expectation that they may have been able to foster an additional child in the future by the time Young Person A was placed with them. Mr Jenrick’s evidence indicates that this was something for further discussions and to be assessed. The evidence from Mr Jenrick indicates clearly his view that it was not appropriate for TH to share his placement with another child of the same age.

32 Despite this view, Barnardos placed Young Person A, a boy of a similar age to TH, with the carers for a crisis placement. Barnardos concedes that in hindsight it was unwise to have placed another child in the placement and it was a decision that they deeply regretted.

33 The first few days of Young Person A’s placement was without incident. Mr TG’s evidence is that initially things went well. After a few days arguments started between the young people mainly about the use of a Play Station. Overall at that stage the Applicants felt they were able to manage the tension between them. Ms Black, Young Person A’s caseworker, told the Tribunal that Young Person A was made to feel very welcome by the Applicants, that he was very calm in the care of the Applicants and towards the end of the first week in the placement he stated he wanted to stay with the Applicants.

34 Ms Black’s evidence is that on 18 February 2005 she and Mr Jenrick went to the Applicant’s home with the intention of moving Young Person A as a placement had been found for him. The Applicants did not want him to be moved and Young Person A refused to pack and did not want to meet with her. Barnardos decided to extend the transition period for the boy’s move to his next placement given his behaviour on the day and that TH and Young Person A appeared to be getting on well.

35 The carers requested that Young Person A be able to stay with them for a trial period. Mr Jenrick agreed in his oral evidence that they did talk about a trial. It is the Applicant’s evidence that Mr Jenrick indicated that it might be one month to three months before a placement could be found and that if things ran smoothly with the boys a long-term placement with Young Person A might be possible. Mr Jenrick recalls a discussion but does not recall the time frame of three months. His evidence is that he did say it was a crisis placement and that there was no intention that Young Person A would have extended time with them.

36 Ms Black’s evidence was that she and Mr Jenrick agreed to discuss their request for a trial with Barnardos’ management. In that context there was a discussion with the carers regarding appropriate schools and the carers stated that they would investigate schools for Young Person A.

37 At that point the Applicants formed the view that they had a good chance of keeping Young Person A and acted accordingly by enquiring about schools and booking the airline tickets for the four of them to travel to Queensland for a family event in May 2005.

38 Mr TG stated that at that time he also gave up his youth work with another teenager that he had done for Barnardos as he thought he would have both TH and Young Person A to care for. That is consistent with his written statement "Youth Work" (undated) in which he says he gave up the youth work in order to work more closely with TH and Young Person A as it was almost certain that both boys would be staying with us. Young Person A on a week to week basis to see how things worked out.

39 The Applicants’, Mr Jenrick’s and Ms Black’s evidence indicate that some discussion about the possibility of Young Person A remaining in the Applicant’s care for a longer unspecified period did take place. We accept Ms Black’s evidence that the Applicants were told by her and Mr Jenrick that their request to keep Young Person A would be discussed with management and consequently that Barnardos had not agreed at that point that Young Person A could definitely stay. The Applicants’ own written statement regarding having Young Person A on a week to week basis written before he gave oral evidence lends weight to Mr Jenrick’s statement that he did not recall a three-month period being discussed.

40 In our view it was reasonable for the Applicants to conclude at that point that Young Person A may have been able to remain in their care for a longer period. However, we accept Barnardos’ evidence that no promise had been made that this would definitely happen and that no indication was given that this would continue for three months or be a permanent arrangement.

41 On 20 February 2005 the Applicants and both boys went on an outing to a Fair Day. The Applicants’ evidence was that TH began making comments to the other boy such as "we wish you would go, we hate you, we don’t want you". The Applicants spoke to TH about this and explained that his comments were hurtful and when he repeated his comments after a warning Mr TF asked him to return to the car. As a result of discussions between TH and Mr TF, TH apologised for his behaviour and they returned to the Fair. The rest of the day passed without incident. They met up with other friends, the boys went back to their friends’ house while Mr TG and Mr TF spent some time elsewhere and they all had dinner together.

42 It is clear that a phone discussion took place on either Monday 21 February 2005 or Tuesday 22 February 2005 between Mr TG and Mr Jenrick regarding the weekend problem between the two boys. The Applicants and Mr Jenrick both agree that in the course of that discussion Mr Jenrick had told them that if there were problems between TH and Young Person A then Barnardos would have to remove Young Person A. Ms Black’s evidence was that after discussion with management it was decided that Young Person A should not remain with them and that she and Mr Jenrick told the carers on a number of occasions that it would not be possible for the boy to remain with them.

43 Mr Jenrick stated in his oral evidence that, in that phone call, Mr TG had told him that it was difficult to deal with TH’s behaviour in not liking the other boy, that TH had to change his behaviour and that if he could not then he would have to leave. That evidence is consistent with Mr Jenrick’s Completion of Placement Sequence of Events, February/March 2005 document. In that document he stated that he received a call from Mr TG informing him that TH had a bad reaction to the additional child. He states that Mr TG told him that they now realised how selfish TH was and did not like this aspect of his character. He alleges that Mr TG stated that if TH could not manage other children within his placement he (TH) would have to leave. Mr Jenrick stated that he discussed the issue with him but that Mr TG ignored any issues about the child needing a sole placement and wanted two children placed with them, preferably boys. Mr TG had said that if TH’s inability to manage this meant that Barnardos would not place further children with them then TH would have to leave. The Applicants do not dispute that this conversation took place.

44 Mr Jenrick stated that he visited the Applicants on Wednesday 23 February 2005 to talk about what that would mean for TH and his fears for TH. He stated that he understood from his conversation with the carers on that day that TH would have to leave if Barnardos would not place another child with them. He discussed with the carers what it would mean for TH, the detrimental consequences and how his behaviour would deteriorate. Given his knowledge of TH and experience in working in foster care, the Tribunal finds that at that point Mr Jenrick had a genuine fear that if Young Person A remained in the placement TH’s behaviour would deteriorate.

45 Mr Jenrick stated that on that Wednesday he interviewed TH. TH told him that the Applicants had spoken with him and Young Person A regarding their wishes. Mr Jenrick states that TH was distressed and angry and did not want to stay in his placement if the other child was to stay. During that discussion Mr Jenrick stated that TH told him that he would try to accept another child in the placement as that was what the carers wanted and that he had been told by the carers that he (TH) would have to leave the placement if he could not accept another child into his family. He thought that Mr TF and Mr TG only wanted more children because of the money and that they could not afford to carry on living in their present location without their carer’s allowance for him.

46 Mr Jenrick stated that he told Mr TG and Mr TF about TH’s feelings. He stated that Mr TG and Mr TF were both adamant that it was in TH’s best interests to have another child placed with them to force TH to confront issues. They also raised their concern that TH was able to manipulate him (Mr Jenrick).

47 Mr Jenrick stated that he expressed his disappointment and told them that he thought the progress TH had made would be severely hindered. He then stated that Mr TG said that should Barnardos’ decision result in TH leaving then he (Mr Jenrick) would be responsible for TH’s decline. Mr Jenrick stated that he checked whether their final decision was that TH would have to leave their care if Barnardos would not place a second child with them. They replied that they were committed to TH but if Young Person A or any other child was not placed in their care due to TH’s issues then TH would have to leave.

48 Mr Jenrick stated that he was confused by their logic. The Applicants were very committed to TH. For example, they were saying that TH knew he was not going anywhere, talking about adopting TH and advocating for Young Person A to stay with them. At the same time they were saying that if Young Person A was to leave they did not feel they could care for TH and that he would have to leave if Barnardos would not place another child with them.

49 The Applicants agree that these discussions took place. The also state that they discussed having another child with TH and they thought that he was worried that the love for him would not be there. They discussed this with him and explained that they would still care for him and that if one child got something then the other child would get the same. TH said he wanted Young Person A to go to a different school and they agreed to look for a different school for him. When asked what TH’s reaction was to this discussion Mr TG stated that he was "still a bit iffy" and that he thought TH felt that his security would be taken away and he would have to share his family. Mr TG stated that this did not change their decision but made them think they were doing the right thing for TH later in that week.

50 It was Mr TG’s evidence that he and Mr TF felt that if Young Person A had to go, then TH would have to go as their dream was to have two children placed with them. They thought it was impossible to keep one and never have another child in the house. They thought it would cause problems down the track for all of them.

51 Mr TG stated that on the Wednesday when TH came back from his discussions with Mr Jenrick he was in a great mood and they thought he had information that Young Person A would be leaving. TH stated that "Come Friday everything will be back to normal." Mr TG stated that at that point they gave an ultimatum to the boys telling them that "if one goes you are both going to have to go". In oral evidence, Mr TG said he did not think TH believed it at the time and he thought that TH thought they were bluffing Barnardos.

52 In Mr TG’s evidence he made it clear that the Applicants were "bluffing" Barnardos when they issued the ultimatum to TH. When asked what he thought at the time the impact of that ‘bluff" would be on TH Mr TG answered that he did not think about it until after it was said, he did not prepare for it and that it was said more out of outrage as they were told that they could not have the "kid" and nothing could be done about it.

53 He stated that he thought about it an hour after saying it. He said in evidence that it was definitely the wrong thing to say. To an extent it was right that they were forcing him (TH) to be with another child. They had not seen it as forcing but as sharing. In his view everyone has their problems but you get past them.

54 He also stated in evidence that he retracted that statement on the following Friday afternoon as he realised he should never have said it.

55 Mr Jenrick records a meeting with Ms Smith and Ms Berry on Thursday 24 February 2005 to discuss strategies for TH and Young Person A. We find that as a result of those events, the telephone discussion between Mr Jenrick and Mr TG on either Monday 21 February 2005 or Tuesday 22 February 2005 and his discussions with the Applicants and TH during that week that Mr Jenrick and other Barnardos’ staff decided that it was not in TH’s best interests for Young Person A to remain in the placement. In addition the tension that arose between TH and Young Person A on 19 February 2005 appears to have been an important factor in Mr Jenrick coming to that conclusion.

56 They made the decision to move young Person A to the Adolescent Services Program the next day. In addition a contingency plan was made to move TH.

57 On Friday 25 February 2005 the Applicants state that they received a phone call from Barnardos asking them to prepare Young Person A to leave. That day there was a meeting between Mr TG and Mr TF with Mr Jenrick and Ms Black. At that time Ms Black was concerned about Young Person A being reluctant to leave the placement so Mr Jenrick took him out while Ms Black stayed, packed Young Person A’s gear and spoke to the Applicants about Young Person A’s move.

58 Ms Black stated that the Applicants told her that if Young Person A needed to move then TH would have to move that day. She stated that she explained how traumatic that would be for TH, that there were no intake placements at that time, and that if he was to be moved then they might want to look at a more planned move. She stated that they rejected that suggestion. She then talked with them about Mr Jenrick coming out next week and discussing it with them but they refused.

59 Ms Black also made it clear that, despite the fact that the Applicants did not want Young Person A to leave they co-operated with Barnardos on the day and assisted with his move. Mr Jenrick said he would come back and talk to them on Tuesday. The Applicants told him that it could not wait until Tuesday and insisted that he come back to see them that afternoon.

60 The Applicants stated that they were told that Young Person A was on trial with other carers for three months. If that did not work there was a chance he could come back, but that if he came back they could not have TH.

61 Following the removal of Young Person A Mr Jenrick met with Ms Smith and Ms Berry to discuss his return to the Applicants’ house. It was decided at the meeting that Barnardos should follow through with the option of TH being placed within the intake programme.

62 Mr Jenrick returned to Mr TG and Mr TF’s house at lunchtime on the same day. Mr Jenrick discussed TH and the issues regarding TH being the only child in the placement. Mr Jenrick’s case notes indicated that Mr TG stated that he thought Mr Jenrick was making a bad decision. Mr Jenrick stated that he told them he was surprised that both children had been party to discussions about their future and thought that the discussions should only have occurred with Ms Black and himself. Mr TG stated that they preferred to have an honest household and include the boys in such discussions.

63 Mr TG and Mr TF agree that they gave an ultimatum and stated that if Barnardos wouldn’t place two children, preferably boys in their care, then TH would have to leave. During the hearing they referred to it as "calling Barnardo’s bluff". On the basis of the Applicants’ own evidence we find that the ultimatum was given. Mr TG also stated in his oral evidence that they had told Mr Jenrick that they felt like a young child (TH) was making the rules in their house and giving the ultimatums. Mr TG also stated that they had asked about possible children down the track and been told that "it would not happen".

64 Mr Jenrick stated that he told them that he did not feel this was the best decision for TH, that there was a placement for TH in the Intake program and therefore Barnardos had decided that TH should no longer remain in their care as recent events had been extremely concerning to Barnardos.

65 Mr Jenrick noted that Mr TG and Mr TF told him that TH would have to leave that day and he told them that that this would now be happening as Barnardos were completing TH’s placement with them. He made it clear that he had explained to them the emotional impact of a young person being rejected from an important placement. When giving oral evidence Mr Jenrick stated that as the Applicants indicated that they wanted TH to go, he made those arrangements.

66 In response to that evidence Mr TG stated that "there was a lot of anger in that". He referred to them being left in the dark, that Young Person A was being taken away and that Mr Jenrick had then told them he would see them next week with no explanation of what would happen.

67 Mr Jenrick arranged to return at 3 pm to talk with TH and told them that TH would be leaving on that day. Mr TF told him he would not be there to say goodbye to TH. Mr TG’s evidence was that Mr TF had left for work by that time.

68 On his return to the Applicants’ house later that afternoon Mr Jenrick’s case notes stated that he asked Mr TG to talk to TH and tell him what had been discussed and decided earlier in the day, that Mr TG attempted to and became upset. Mr Jenrick then told TH what had been discussed. While TH had a shower he talked with Mr TG and then he gave him some private time to talk with TH before leaving with TH. He stated that TH told him that Mr TG had told him that he did not want him to leave but that he had to do this because Mr TF had pressured him.

69 Mr TG stated in his oral evidence that he had told Mr Jenrick that afternoon that he did not want TH to go. Ms Voight put to him that both Ms Black and Mr Jenrick had both met with him separately on that Friday and he had told them that unless Barnardos would place another child or leave Young Person A then TH would have to leave, that this was the ultimatum he had given them. Mr TG’s evidence was that they had retracted that on the Friday before TH left.

70 In response to a question from Ms Voight about whether Ms Black was lying when she said that on the Friday TH was removed that the Applicants had said that if Young Person A is to be taken and another child not placed, then TH would have to leave, Mr TG stated that she was. Although Mr TG denied making the comment we find it was said. Ms Black’s evidence on this point was credible and consistent and accords with Mr TG’s earlier oral evidence that the Applicants had issued an ultimatum on the Friday morning.

71 In response to a question from Ms Voight about whether when Mr Jenrick was lying when he said that the Applicants told Barnardos that if they would not place another child TH would have to leave, Mr TG stated that they asked whether down the track they could have another child. Mr Jenrick had told them that was impossible and it would not happen. Barnardos then put to him "So you said TH had to leave?" Mr TG replied that when Mr Jenrick came back at lunchtime they had a brief conversation about what to do with TH. The Applicants told Mr Jenrick that they felt like a young child was making the rules and giving the ultimatums. Mr Jenrick responded by saying that TH had to be in a placement by himself and then they asked about possible children down the track. Mr Jenrick said no and in their view Barnardos made a decision to take TH that day due to what they had said.

72 Mr TG agreed with Mr Jenrick’s evidence that he had some time with TH to say goodbye and states that he told TH that he did not want him to leave, that he did not have to go, that they were wrong but that it was Barnardos’ decision to remove him. Mr TG stated that he was very distressed and crying at the time. In cross examination the Applicants put to Mr Jenrick that Mr TG had said to him on that Friday that he would like TH to stay, they had made a wrong decision and were wrong in what they said and was there anything that could be done to reverse it. Mr Jenrick agreed that there was that kind of discussion but stated that it was very confusing as the carers were still stating that Young Person A had to stay in order for TH to stay.

73 The Applicants’ evidence is that Mr TF in particular developed a strong rapport with Young Person A in that first week of the placement and the Applicants formed the view that they would be able to care for him as well as TH. The Applicants’ own evidence indicates that they felt that TH would continue to have difficulty sharing unless another young person lived with them. We accept that the Applicants genuinely believed that it would be in TH’s best interests to have to learn to live with another young person.

74 On the Friday morning, at the time Young Person A was removed from their care, it is clear that Mr Jenrick did not intend to remove TH on that day. Barnardos and the Applicants’ evidence was the same, that Mr Jenrick said he would come back on Tuesday to talk things through with them. It was on the Applicants’ insistence that Mr Jenrick returned to their house on that day.

75 The Applicants’ view that Young Person A should remain in their care was in direct conflict to Barnardos’ view. Barnardos’ view was that it was not in TH’s best interests to live in a placement with Young Person A. Mr Jenrick, Ms Berry, Ms Smith and Ms Voight all gave clear evidence about the reasons for Barnardos’ assessment that it was not appropriate for Young Person A to remain with the Applicants. They referred to Young Person A’s very high needs and their view that he needed a sole placement. They also referred to the high needs of TH and their view that it was not possible to force TH to learn to share with other young people by being made to live with someone of his own age.

76 All are experienced professional people who have worked with abused children and in foster care for some time. Their view that it was not in TH’s best interests to have Young Person A in the same placement as him, was a reasonable one.

77 It is not uncommon for foster carers and agencies to have differences about what they consider to be in a young person’s best interests or the type of placement that is considered most appropriate for particular carers. Up until that point, the evidence indicates that the foster carers and Barnardos had worked well together and where differences had arisen they had been able to resolve them.

78 Barnardos attempted on several occasions to talk through the issues with the Applicants and to keep TH in the placement. The Tribunal accepts Mr Jenrick and Ms Black’s evidence of their discussions with the Applicants and their attempts to explain the impact that they felt the Applicants’ position would have on TH. The Applicants acknowledge that they did issue the ultimatum and that they "called Barnardos bluff".

79 Some insight into the Applicants’ views and reasoning is found in the Applicants documents’ filed as part of their application. Part of a document "Completion of Placement", undated, that was in evidence before us stated

Both TF and I felt we were being bullied into who we could and couldn’t have in our house. TF and I have come a long way in the six years we have had together and we know exactly what and whom we want in our life that being two children to make our family complete. Now one of those children we were hoping to be TH. The other boy didn’t matter who it was. Although David (Mr Jenrick) and TH decided that it was best that for TH to be the only child in the family and for this reason TF and I could never have another. Not even for intake! Both TF and my dreams were shattered, we have always reached our goals, yet this one that was never going to happen. As David said when TH leaves their(sic) will (be) no other children given to us by Barnardos. They will not use us as carers. Now that really has us in a place of concern, was TH really in control of our future? It was TH or no-one, were we ready to let a thirteen year old boy make critical life decisions for us? We gave TH the choice if he could share our house with another boy. It was TH’s and David’s (Mr Jenrick) choice to leave if he thought he couldn’t. We would have dedicated ourselves to making it work for all of us if it had happened.

80 In another of the Applicants’ documents, Current Crisis Placement, undated, there is discussion about both children and the writer’s view that TH comes out ahead of Young Person A when referring to his past placement experience, his behaviour and attitudes. There is a comment about the fact that TH is still in the Find a Family program with Mr Jenrick and Young Person A has been passed onto the adolescent program. The Applicants then state

... Although we were willing to take on Young Person A if TH decided to leave. Although we wanted both boys to stay. We can’t understand that if TH didn’t want to stay and be a family why are we being punished? As well as Young Person A, for TH’s decision to leave. We always thought it was in Barnardos best interest to make sure both children and carers were made happy.

81 We accept Mr TG’s evidence that he did say on the Friday afternoon that he would like TH to stay, they were wrong in what they had said and was there anything that could be done to reverse it. Mr Jenrick acknowledged that kind of discussion had occurred. However there is evidence to suggest that at the same time the Applicants continued to say they wanted another child in the placement. In our view, the statements from the Applicants above add weight to Mr Jenrick’s evidence that it was confusing and the Applicants were still saying that Young Person A had to stay or that another child be placed with them.

Events following the removal of TH from the placement and the decision to cancel the carer’s authorisation

82 In oral evidence Mr TG stated that he rang Mr Jenrick the next week, probably on the Monday and asked him how he could fix things. He states that Mr Jenrick told him that he would look into it. Mr Jenrick’s evidence was that he only had three phone calls with Mr TG in the three week period after the placement ended, mainly regarding TH’s care and financial issues. Mr Jenrick did not refer to any phone calls in the following week that indicated Mr TG "wanted to fix things".

83 While it may be the Applicants’ recollection, we are not satisfied that Mr TG did ask Mr Jenrick how he could fix things in that week after the placement ended.

84 When asked whether contact between the Applicants and TH was discussed Mr Jenrick stated that during one of the phone calls he let Mr TG know he was with TH and asked him if he would like to talk with TH and Mr TG refused. Mr Jenrick stated that Mr TG did not initiate any discussion regarding organising a contact visit during that three week period. Mr TG agreed but stated he had been told they were not allowed to have any contact with TH. Mr TG did not provide any details regarding who had told him this or what was said.

85 Mr Jenrick stated that on the final day of the placement he told the Applicants that they would be able to see TH whenever they wanted to.

86 On 7 March 2005 Mr Jenrick wrote to the Applicants confirming discussions that had taken place between Barnardos and the Applicants with respect to the completion of TH’s placement. That letter does not make any reference to the Applicants being able to contact TH. In addition there is nothing in Mr Jenrick’s case notes to indicate that he gave the Applicants this information. If it had been said it was a significant piece of information that we would have expected Mr Jenrick to record. We accept TG’s evidence that he was not told on the Friday afternoon that he would be able to see TH whenever he wanted to.

87 Mr Jenrick stated that TH knew he could call the Applicants at any time. Mr Jenrick said that the new carer did not encourage him to make contact every day, but every few days she would encourage him to. In addition he stated that TH knew their number and could have called them any time but had chosen not to. The Applicants state that TH told them he was not allowed to contact them. There is no evidence before us regarding who told TH he was not allowed to contact or when. In these circumstances we are not able to find that TH was told he could not contact the carers.

88 Barnardos asserts that the Applicants did not ask about TH’s welfare after he had left the placement until told at a meeting with Barnardos on 15 March 2005 that their conduct was considered reportable conduct and was being notified to the Ombudsman. Mr TG stated that they knew how TH was from other sources in Barnardos.

89 On 15 March 2005 Ms Berry, the Manager Adoption and Family Care and Ms Margi Andrews, the Manager of the Intake Program met with the Applicants to discuss the end of the placement. Ms Berry gave evidence regarding that meeting. She stated that during that meeting she had put to the Applicants that they had believed that it was important for TH to learn to share and had exhausted all their parenting ideas on influencing TH to do so. They felt the only way to progress was for TH to be in a position to share and believed that this would progress him forward. She stated that the Applicants concurred with that statement.

90 All parties agreed that Barnardos and the Applicants perspectives differed on what they believed was in TH’s best interests. At that meeting, Ms Berry informed the Applicants that Barnardos viewed their conduct as emotional abuse of TH that this was reportable conduct to the Ombudsman and a report was being prepared.

91 In her evidence before the Tribunal Ms Berry indicated that the emotional abuse consisted of the ultimatum that was served to TH, to the effect of "if you can’t learn to share and Young Person A leaves this placement then you will have to go".

92 Ms Berry’s evidence was that it was only after the Applicants were informed that Barnardos viewed their conduct as emotional abuse of TH and reportable conduct to the Ombudsman that the Applicants asked how TH was. They were told that he had regressed and had become childlike and was saying he did not want to return to them. Her evidence was that the Applicants stated that they needed to reconsider their position and would get back to them.

93 She agreed with the Applicants evidence that within an hour of the meeting Mr TG rang her to say they had made a mistake; that they now appreciated the situation more fully and wanted TH to return to their sole care. She stated that she would take that on board, that it was complicated and that Barnardos was in the process of reporting emotional abuse by them to the Ombudsman. It was not a decision she could make on her own.

94 Ms Berry was asked about her understanding of how Mr TG’s work as a youth worker for Barnardos with another teenager was viewed by the organisation. Her evidence was that although she did not have personal contact with him in that role he was viewed as having excellent rapport with the teenager he had been working with.

95 In a letter to the Applicants dated 23 March 2005 Ms Berry put in writing the discussion she and Ms Andrews had with the Applicants at that meeting. She stated that Barnardos had made it clear at the beginning that Young Person A’s placement was to be short term and that in their view both young people should have sole long-term placements.

96 Ms Berry stated in her evidence that TH’s placement was a placement that Barnardos had wanted to continue. After the meeting of 15 March with the Applicants she felt they had come to an understanding of what they had actually done by issuing the ultimatum. They felt remorseful about that and wanted to look at ways of repairing it. In her view it was possible to do that kind of repair work but it would have required a lot of intensity, a willingness from TH to take part in that repair work and it would need a lot of conversations. She agreed that she considered repair would have been possible if that intensive work was done but agreed in re-examination that it was appropriate to proceed with extreme caution when a placement had broken down.

97 She also made it clear that her professional opinion after 11 and a half years experience that you could not force children to learn to share.

98 Mr Jenrick was pleased when Ms Berry came back and said that the Applicants had changed their minds and had started to realise the implications of what had happened and the impact on TH. He stated that everyone was aware that he saw it as a good placement and that he wanted TH to be returned to their care although he did have concerns that some of the issues might arise again. In particular, he was concerned that the differences in opinion regarding parenting and having other children in the placement could arise. He then had discussions with both Ms Berry and Ms Smith.

99 Mr Jenrick, Ms Berry and Ms Voight all stated that initially TH did not want to return to the Applicants care. Early after he left the placement Barnardos’ view was that the Applicants did not want him to return unless they could have another child in the placement. Mr Jenrick’s evidence was that TH’s position altered after he had supervised contact with Mr TG on 20 April and he decided he would like to return to the Applicants. Ms Voight’s evidence indicated that after that meeting of 15 March 2005 with the Applicants both Ms Berry and Mr Jenrick has asked Barnardos management to reconsider their position about the Applicants. The evidence makes it clear that Ms Voight decided that TH could not return to the Applicants.

100 The decision to withdraw the Applicants’ carers’ authorisation was made by Ms Voight after discussion with staff at Barnardos. The passage below from the notes of an interview between Ms Voight and Ms Smith, Senior Manager Find-a-Family dated 9 March 2005 sets out the rationale for Ms Voight’s decision to withdraw the carers authorisation.

... We discussed the issue of risk to any other children placed with these carers due to their preoccupation with their own needs, and their inability to accept what they see as "flaws" in a child, ie TH not being able to share. Also, they have shown a clear punitive attitude in expecting that TH should be "forced" to accept sharing. This appears to have been coupled with a lack of knowledge that "forcing" children who are disturbed is an ineffective technique to change behaviour. They appear to be confident that they know how to behave towards disturbed children and young people in general, and TH in particular. Mr TG, although attached to TH, appears unable to advocate for TH’s needs with his partner.
I [Ms Voight] decided that the risks of using these carers was unacceptably high and my experience with many hundreds of carers over 30 years leads me to believe that this couple are unsuitable for foster care and Barnardos will not use them again. The carers are to be informed of the report to the Ombudsman and the implications of a disciplinary action being reported to the Commission.

101 That accords with the evidence given by several Barnardos staff before the Tribunal. Ms Voight’s evidence was that the decision-making process to cancel the authorisation was a slow process of decision making following the March meeting between Ms Berry and the Applicants. It was finalised by the letter of 15 April 2005 to the Applicants from Ms Smith informing the Applicants that their authorisation had been withdrawn. Ms Voight stated that Barnardos process is not bureaucratic and at any point the decision could have been reversed if the Applicants had been able to put forward a case to do so.

102 Ms Voight stated that Barnardos viewed these carers as good carers and that the agency has a strong need for carers. She referred to a number of factors she had taken into account in her decision that the child could not return to the carers and that their carer’s authorisation should be withdrawn. She stated that the Applicants had not contacted Barnardos after TH’s removal to ask to speak to him or ask about him and that this was contrary to her expectation. Her understanding was that the only time that the Applicants had said they wanted TH back was following being told by Ms Berry that their actions constituted reportable conduct. She had asked workers whether they had fully explained to the carers the feelings of a child who is "sent back" and been assured they had. She also considered the boy’s distress as Mr Jenrick had informed her that the boy was speaking about his distress, feeling betrayed and at that point saying he did not want to go back.

103 She referred to her discussion with Ms Smith and says that she asked her a number of questions. She stated that she asked her whether the staff believed that the carers would act that way again and was told that both staff (Mr Jenrick and Ms Berry) believed that they would. She asked whether Ms Smith believed they would try to get another child and Ms Smith said yes. She asked Ms Smith her view and Ms Voight said that Ms Smith stated that she did not believe he should go back.

104 She referred to a request from staff that she change her mind and stated that she had said no. She explained her reasoning for this. In her view motivations that lead carers to consider their own needs above those of children and young people are difficult to understand but ones that lead to requesting removal are extremely serious. These are young people who have experienced gross damage in their lives and been repeatedly rejected. When a carer adds to this on top of the profound feelings they already have it is extraordinarily important. She stated that these children find it so hard to trust that once it is destroyed she believed the needs of the Applicants would become stronger. In addition she stated that the Applicants appeared not to have understood the pain and damage which it would cause to TH.

105 Ms Smith gave oral evidence at the hearing. Ms Smith has an extensive background in short and long-term foster care and has worked for Barnardos for twenty years. She also prepared a report, dated 22 June 2005.

106 Ms Smith gave evidence that it was not the usual Barnardos practice to place unrelated children together and that in the case of TH and Young Person A Barnardos would not place two children together with such high needs.

107 She indicated that Barnardos had thought that TH’s placement with the Applicants was going very well and they had no reason to believe it would not continue. She stated that Barnardos had no option but to remove TH as they had a duty of care to the young person. It was her understanding that they had a request from the Applicants to remove him if Young Person A could not stay in their care, his bags were packed and efforts had been made to try to resolve it and keep TH in the placement.

108 She believed that the Applicants sending back the child was damaging and caused harm. She also indicated that Barnardos had a policy not to place children again with carers when they had asked for a child to be removal where Barnardos felt it was unreasonable. She indicated that where Barnardos had done that in the past, the placement had been disrupted and they had determined not to do so again. In this particular instance, Barnardos made a decision not to return the child and to remove the fostering authority.

109 When asked what she believed the risks would be if the child was returned to the Applicants she stated that it was her belief that the Applicants would enter into an arrangement with another organisation. It was her understanding that the Applicants had discussion with Life Without Barriers [another fostering agency] to get children and she was concerned that they would get another child.

110 That fear was based on some information given to Ms Smith by Mr Jenrick regarding discussions at the most recent access visit with the Applicants in June this year. Ms Smith stated that Mr Jenrick told her that in a discussion about other people who had gone to Life Without Barriers, the Applicants had indicated that they had also had some discussions with Life Without Barriers.

111 Mr TG agreed that there had been a discussion about Life Without Barriers at the June access visit in the context of their friends telling them about how their foster children had come through that program. We place no significance on that discussion as it occurred well after the Applicants’ authorisation as carers had been withdrawn by Barnardos, TH was no longer in their care, the Applicants had made clear their interest in fostering children and the Applicants are no longer seeking the return of TH to their care.

112 Mr TG said that he asked Ms Berry how they could "fix it" and was referred to Ms Smith. Ms Smith stated that she and Mr TG talked about fact that the Applicants had asked for TH to be removed. Ms Smith told him that they, the Applicants, had made the decision for TH to go as they would not agree to keep him if Young Person A or other children were not placed with them. She stated that they were having discussions and had put in a report to the Ombudsman. It is clear that Ms Smith did not change her mind and Barnardos refused to return TH or to change the decision regarding the authorisation.

113 Ms Smith’s view was that the authority to foster should be cancelled. She stated that in coming to that view she took into account the emotional abuse caused to a child they had cared for 18 months because they wanted another child. In her view it was abusive conduct to say that unless they could keep young Person A they would not continue on with that child, conduct that Barnardos was obliged to report to the Ombudsman under the Ombudsman Act 1974.

114 Once something like this has occurred she considered there would be risks attached to returning a child and decided it was not worth the risk. She based that view on her lengthy experience in out-of-home care and examples of placements that had broken down. When asked whether she had considered the impact on TH on having additional placements she stated that of course they had considered this, but that in her view if a similar incident was likely to happen again then it was better to look for a placement elsewhere. In response to a question about whether Barnardos had considered placing conditions on their authorisation, for example that TH would be the sole child in the placement with them, her evidence was that she had not as the carers were not asking for TH to be returned.

Findings and Conclusions

115 The issue for us is whether Barnardos’ decision to withdraw their authorisation was the correct and preferable one. We are able to have regard to relevant material at the time of the hearing in addition to material that was relevant at the time that Barnardos made their decision.

116 It is not in issue that the Applicants were good carers and that is clearly established by the evidence set out above. The placement was clearly successful until the last week.

117 We find on the Applicants’ own evidence, and that of Mr Jenrick and Ms Black, that the Applicants issued Barnardos with an ultimatum that if Barnardos would not place an additional child in their care then TH would have to leave. We find that Barnardos held the view that it would not be in TH’s best interests to have another child placed with him at that point, particularly someone of his own age group with high needs. On the basis of the evidence before us Barnardos’ view was reasonable given their experience and expertise in dealing with emotionally disturbed young people in out of home care.

118 We find that Barnardos did decide to remove the young person, TH, from the care of the Applicants but that it was a reluctant decision made on that Friday 25 February 2005. It was clear from Mr TG’s, Ms Black’s and Mr Jenrick’s evidence that on that day Mr Jenrick did not plan initially to remove TH. After Young Person A was removed he stated that he would see the Applicants on Tuesday. It was the Applicants who requested that he come back and talk to them that day.

119 We accept Mr Jenrick’s evidence that there was a discussion with Mr TG that afternoon in which Mr TG did say that they did not want TH to leave but that Mr TG also said that they wanted another child. We also consider that the Applicants’ own statement regarding the completion of placement lends support to Mr Jenrick’s evidence on this point, particularly the statement that We gave TH the choice if he could share our house with another boy. It was TH’s and David’s choice to leave if he thought he couldn’t.

120 The decision of the Applicants to insist on having two children placed with them against the professional advice of Barnardos is regrettable. Although we accept that the Applicants were acting in what they perceived as the child’s best interest, in our view their actions in stating that he would have to leave if the agency would not agree to another child being placed with them forced Barnardos’ decision to remove the child. We also find that part of their motivation was the desire they expressed to "complete their family" by having two children.

121 A successful placement requires more than a determination for carers to act in what they see as the best interests of children and young people. They must also be prepared to act as part of a team and to recognise that the ultimate decision-making power for many matters rests with the agency responsible for the child. The evidence before us indicates that for almost the entire placement the Applicants demonstrated that they were able to work as part of a team and accept the role of Barnardos to supervise the placement and make decisions in the best interests of the child.

122 The Applicants may have felt that they knew more about TH given their day to day care and the length of the placement with them, and that they had successfully assisted him to change his behaviour in many respects. However, as foster carers they also require the capacity to respect the expertise that the staff at Barnardos have regarding the most appropriate form of care for young people who have had very difficult experiences and significant issues to deal with.

123 In our view the Applicants became caught up in their own needs and their own belief that they knew what was best for them and for TH. We accept their statement that they did not expect that Barnardos would remove TH and they, or at the very least Mr TG, made it clear to TH that they wanted him to stay. In our view the difficulty was that they made it very clear that he could only stay on their terms, that is if Young Person A or another child could also stay. By stating that if TH could not learn to live with another child he would have to leave they placed him in an invidious position.

124 We accept Mr TG evidence that he was very distressed when he talked with TH just before TH left the placement. We also accept his evidence that he did tell Mr Jenrick at the time he would like TH to stay, that they had made a wrong decision and wanted to know if anything could be done to reverse it. At the same time Mr TG was also saying that another child should be placed with them. We accept Mr Jenrick’s evidence that this was confusing.

125 Although we do not accept Mr TG’s evidence that in the week following removal he had asked Mr Jenrick how they could "fix it", it is clear that after their meeting with Ms Berry both Applicants recognised that they had made a mistake and both wanted TH returned even if it meant they could only have one child. Ms Berry’s and Mr Jenrick’s evidence was clear. They thought that TH should be placed back with the Applicants. In saying that, they both recognised that there would be some risks involved. Both are very experienced in out of home care and had first hand contact with the carers and the opportunity to assess them.

126 Barnardos clearly have expertise in working with emotionally disturbed children and we accept their evidence that a young person with the background of TH cannot learn to share by being forced. In our view the failure of the Applicants to accept Barnardos’ advice on that issue represents a significant error of judgement on the part of the Applicants. The issuing of the ultimatum to the young person and Barnardos, and a failure to take into account the likely impact of such an ultimatum on TH, particularly given the difficult circumstances that child had faced previously, concerns us. We find it disturbing that the Applicants would on their own evidence "call Barnardos’ bluff" by issuing such an ultimatum.

127 Barnardos submits that they had no choice but to remove the child on the request of the Applicants when Barnardos decided that they would not place another child with them. They referred to their duty of care to children and their belief that they would not be covered by insurance if they did return the child. In Barnardos’ submission the Applicants have an overly optimistic estimation of their own ability to be carers. They submitted that the Applicants are not willing to look at the fact that a young person is likely to be very hurt and emotionally affected by being rejected. Barnardos submitted that it would not be responsible for them to place emotionally disturbed children with these carers and that the nature of their program is to care for emotionally disturbed children.

128 Indeed the Applicants’ own evidence indicates that during the last few days of the final week they were not able to focus on the impact that the decision would have on TH. They were angry and felt that their hopes of having a family had been shattered.

129 As a result of that view the child has been removed and experienced the dislocation and rejection that being moved from a successful placement by circumstances beyond his control implies.

130 Before us, the Applicants acknowledged that they had made a serious mistake and should never have issued the ultimatum. In their submission they are good carers, they made a mistake but they argue that Barnardos did not provide them with the right support to be able to rectify their mistake. Although Mr TG said he would not have done anything different, that does not accord with the rest of his evidence indicating that they should never have issued the ultimatum to TH and Barnardos and that they had made a serious mistake. The majority of his evidence indicated that the Applicants did regret issuing the ultimatum and that was supported by evidence from Ms Berry. We accept their regret as genuine.

131 In our view the conduct of the Applicants in the last few days of the placement was entirely out of character with their behaviour for almost the entire placement. Despite this being their first placement the evidence is that they were dedicated, responsible and effective carers. They dealt very well with TH’s disturbed behaviour, they made significant efforts to enhance his well being and he had made significant progress in their care. It is also clear from the evidence that even on the Friday when the young person was removed, Mr TG in particular, although still stating that if there could not be two children in the placement TH would have to leave, was ambivalent. We accept his evidence that he had said that he did not want TH to leave; it was a mistake and that he had asked what could be done to fix it.

132 At the time of the hearing Mr TF’s mother was dying and he was clearly distressed. He preferred not to give evidence and was not required by Barnardos for cross examination on the basis that he was distressed. Mr TF’s submission was that Mr TG was the primary carer, he couldn’t add to what has been said and that he relied on his evidence. The Tribunal asked him why he should be a carer. As part of his reply he stated that he had made one big mistake referring to the ultimatum. He stated that at the time he thought it was right, but now definitely thought it was not the right thing.

133 Mr Jenrick gave evidence that he considered that TH should be returned to the Applicants if that was what he wanted and he asked the organisation to reconsider their decision. Ms Berry’s evidence was similar and she felt the Applicants had come to an understanding about what they had done by issuing the ultimatum and were remorseful.

134 Both acknowledged the difficulties but both thought that the placement could have worked again with adequate supports. Mr Jenrick also told the Tribunal that in his professional and personal opinion there were great benefits in the relationship between the Applicants and TH continuing and that TH has a significant relationship with Mr TG. He stated that Barnardos will be supportive of supervised contact.

135 In our view when taking into account all of the evidence the Applicants have much to offer young people in out of home care. Mr TG in particular, on Barnardos’ own evidence, clearly has skills in relating to and caring for teenage children evidenced by the progress that TH made in his care and his work as a youth worker for Barnardos. We see no reason why these Applicants could not be authorised to do crisis, respite or intake care.

136 We have some reservations about authorising them to do permanent care at this stage. We accept Barnardos’ submission that the children in their program are emotionally disturbed and that they are likely to be very hurt and emotionally affected by being rejected. Given the issues that arose, in our view the Applicants would benefit from further training on the emotional needs of damaged children particularly regarding circumstances where sole care is required. It may be that with further training and assistance to work through the issues that arose in the placement they may be assessed as suitable as permanent carers for children at a later date. Such training would assist them to recognise the impact of serious abuse and dislocation on young people’s capacity to share and appropriate strategies to assist them to develop skills in social relationships.

137 We recommend that Barnardos reassess the Applicants at the end of 2006, after they have undertaken further training, to determine whether to authorise them as permanent carers for their program.

138 In our view the decision of Barnardos to withdraw their authorisation should be set aside and a new decision substituted in accordance with s 63(3) (c) of the Tribunal Act subject to the conditions set out in the order below.

Orders

1. The decision of Barnardos to withdraw the authorisation of Mr TF and Mr TG communicated to them by letter of 15 April 2005 is set aside.
2. The following conditions are imposed on the Carers Authorisation of Mr TF and Mr TG.
a. The Applicants are authorised to provide crisis, respite and intake care.
b. The Applicants may not provide care on a permanent basis until 31 December 2006 when their suitability to provide permanent care can be reassessed.
c. The Applicants are to comply with reasonable requests from Barnardos to undertake further training as foster carers considered appropriate by Barnardos to assist them recognise the impact of rejection on young people in care and to develop appropriate strategies for assisting young people in their care to develop social skills such as sharing.