Legislation and principles

The Child Protection Act 1999 promotes the safe care and connection of Aboriginal and Torres Strait Islander children and young people with family, community, culture and country. Recent amendments to the Child Protection Act 1999 also provide the chief executive the authority to delegate some or all of their functions and powers in relation to an Aboriginal and Torres Strait Islander child to an appropriate Aboriginal and Torres Strait Islander entity. This change promotes culturally informed decision making and strengthens the role of community in child protection matters.

Delegated Authority

Delegated authority is a process that enables the chief executive to delegate one or more of their functions or powers in the Child Protection Act 1999 to the chief executive officer (CEO)  of an Aboriginal and Torres Strait Islander community-controlled organisation (ATSICCO) for an Aboriginal or Torres Strait Islander child, where certain requirements are met. (Refer to the Child Protection Act 1999, section 148BB.)

Delegated authority supports systemic change, promotes greater self-determination and enables a shift in how child protection, family support and other services work with, and for, Aboriginal and Torres Strait Islander peoples in Queensland. Implementation of delegated authority enables Aboriginal and Torres Strait Islander peoples and organisations to be a partner in and have authority over, decisions that affect their children.

The purpose of delegated authority is not to create a separate statutory system. Each funded ATSICCO will create its own practice framework and procedures to implement and manage delegated authority which comply with the requirements of the Child Protection Act, 1999 and other legislation. Once the CEO of the ATSICCO has been delegated functions and powers of the chief executive, they are referred to as the prescribed delegate, and they are responsible for making delegated decisions for a child with a delegated authority arrangement.

To implement delegated authority, practitioners will consider the Aboriginal and Torres Strait Islander children and families they are working with and identify who may be suitable for and would benefit from a delegated authority arrangement. This can be discussed with the senior team leader during supervision or within group supervision.

To support a CEO to fulfil their obligations as a prescribed delegate, access to information, systems, resources and advice from Child Safety support teams, such as Court Services and Specialist Practice teams is available. Child Safety delegates will continue to be responsible for statutory decisions for the child that are not delegated to the prescribed delegate. The chief executive remains legally responsible for decisions made by all delegates under the Child Protection Act 1999, including a prescribed delegate. 

Watch this  video on making decisions our way about delegated authority arrangements.

Establish a delegated authority response 

Establishing a delegated authority response is a significant commitment. This process is led by the ATSICCO in partnership with Child Safety, including practitioners from the CSSC who will be working with the ATSICCO, the regional director and the regional delegated authority team. An important step in establishing a service response is to co-design local operational processes outlining how the ATSICCO and CSSC will work together to support a child and their family. 

The capability building process is unique to every delegated authority response. Usually, the foundational steps will incorporate the following stages: 

Once an operational agreement is developed and a service framework is in place, a CEO can seek delegations for a child or children. When the chief executive has delegated specified powers and functions to the CEO, these have been formally accepted in writing, and the child and family have been informed, the prescribed delegate can then commence exercising the prescribed powers and functions in relation to the individual child or children.

Commence a delegated authority arrangement 

When a delegated arrangement commences for a child, find out the specific functions and powers that are delegated to the prescribed delegate. This is outlined in the Instrument of Delegation signed by the chief executive. The Instrument of Delegation gives a prescribed delegate the legal authority to make decisions for a child. 
For example, the authority to make case planning decisions for a child includes a range of functions and powers that give full effect to the requirements to develop and endorse a case plan. Delegations may include any of the following sections of the Child Protection Act 1999, part 3A:

• section 5F – Principles about Aboriginal and Torres Strait Islander children – chief executive, litigation director and authorised officers
• section 11A – Who is an independent Aboriginal or Torres Strait Islander entity
• section 51C – Children for whom case plans are required
•  section 51D – How case planning must be carried out
•  section 51H(1) and 51H(3) – Convening a family group meeting
• section 51I(2) and 51I(3) – Private convenors
• section 51L(1)(i) – Who should be involved 
• section 51Q – Dealing with a case plan developed at a meeting
• section 51R – Dealing with an inappropriate plan
• section 51S – Preparing the plan if not developed at a meeting
• section 51T – Distributing and implementing the plan
• section 51V – Review of plan – no long-term guardian
• section 51VA(2) – Review of plan – long-term guardian
• section 51VAA(3) – Particular review requirements for children under long-term guardianship of chief executive 
• section 51W – Who may participate
• section 51Y – Distributing and implementing the revised case plan 
• section 74 – Charter of rights for a child in care
• section 74A – Chief executive’s obligations to children under particular child protection orders.

There may be additional delegations depending on the individual circumstances of the child. For example, if the child is about to turn 15 years old, or is already aged 15 years or over, the delegation can also include section 75, transition to independence.

The authority delegated by the chief executive to the prescribed delegate is enacted in a similar way that statutory delegations are made to Child Safety staff, for example a child safety officer, senior team leader or CSSC manager.  The prescribed delegate is required to meet the obligations and purpose of the Child Protection Act 1999 when making decisions for a child in the custody and guardianship of the chief executive. While the policies and procedures outlined in the Child Safety Practice Manual can help provide a foundation for knowledge and understanding about delivering services in a statutory context, the ATSICCO through the prescribed delegate can develop their own framework and approach to service delivery.

Concurrent to the work of the ATSICCO, the CSSC continues to be actively involved in service delivery to the child and their family. For example, for a child who is subject to a child protection order granting custody or guardianship to the chief executive, the CSSC will meet all the remaining service delivery and statutory obligations that fall outside of those held by the prescribed delegate.

Any changes in the child’s circumstances may impact the statutory or case management decisions held by either the CSSC or the ATSICCO. To ensure consistency and the child’s best interests are prioritised, the CSSC and ATSICCO are to be informed and coordinated in their decision making and actions at all times. 

Watch this video that explains on how delegated authority works for our staff and leadership.    

Torres Strait Islander child rearing practices

Torres Strait Islander traditional child-rearing practices are formally acknowledged and recognised in Queensland legislation. This recognition is also included in the Child Protection Act 1999, where it is referred to as Island Custom. This reflects the strong cultural values of community, family and shared responsibility in raising Torres Strait Islander children.

Torres Strait Islander traditional child rearing practice is a traditional custom recognised under Ailan Kastom, where a child’s birth parents and cultural parents agree, in accordance with Torres Strait Islander customs, to permanently transfer parental rights and responsibility of a child from the birth parents to the cultural parents. 

Torres Strait Islander traditional child rearing practice known as Kupai Omasker, is deeply rooted in Torres Strait Islander culture and is observed across communities including those in the Torres Strait and on the mainland. 

The term Kupai Omasker combines words from different Torres Strait languages Kupai (from the Western Islands) meaning ‘umbilical cord’ and Omasker (from the Eastern Islands) meaning for ‘children’. Together, the words can be interpreted as ‘the caring of our children’. 

One of the most significant differences between Torres Strait Islander and Aboriginal child rearing practices is that the Torres Strait traditional child rearing practice has been formally recognised in Queensland Legislation. This recognition is outlined in the Child Protection Act, 1999 where it is referred to as ‘Island Custom’. 

This traditional practice is an integral part of Ailan Kastom and reflects the strong cultural values of community, family, and shared responsibility for raising children.

For further understanding of Torres Strait Islander child rearing practices and their recognition in Queensland legislation, refer to the further reading resources below. 

There are cultural sensitivities regarding Torres Strait Islander traditional child rearing practices. If Child Safety becomes aware that a child and the child’s family is living in a traditional child rearing practice, it is important to first seek advice from the Torres Strait Islander Advisory group, an appropriate Torres Strait Islander Elder, or a Torres Strait Islander staff member with cultural knowledge and understanding of traditional child rearing practice.

The five elements intersect with other legislative requirements specific to Aboriginal and Torres Strait Islander children in the child protection system outlined in the Child Protection Act 1999. These include the legislative requirements to: 

•  use active efforts when applying the Aboriginal and Torres Strait Islander child placement principle (section 5F)
• seek the child’s and the child’s family consent to the involvement of an independent person (section 5H) 
• arrange an independent person to facilitate the participation of the child and their family across decision making processes, if this is what the child and family want (section 5F)
• adhere to the placement hierarchy every time the child requires a care arrangement, to ensure the child’s continued connection to family, community and culture (section 83)  
• provide opportunities for contact between the child and their community or language group, as often as is appropriate (section 88.) 

Apply the prevention element

The intent of the prevention element is the strengthening of Aboriginal and Torres Strait Islander families and communities, for the purpose of reducing the possibility that a child may enter, re-enter or enter further into the tertiary child protection system. 

The focus needs to be on putting in place supports that enable children to remain safely at home or to be reunified with their parents.

The actions of the Child Safety practitioner will depend on the stage and nature of child protection intervention. 

Applying the prevention element at intake may include:
•    consider whether preventative or early intervention service referrals to universal health or childcare services could decrease the likelihood the child or unborn child following their birth, comes to any further attention of the child protection system.
•    when providing protective advice, provide the notifier with information on relevant services the child or family can access, particularly those provided by an Aboriginal and Torres Strait Islander organisation. (Refer to Protective advice.)
•    consider a referral to an Aboriginal and Torres Strait Islander Family Wellbeing service. (Refer to Referral to family support.)

• when forming a judgement about an intake decision and actions, incorporate the presenting cultural factors and cultural advice sought about
  • cultural child rearing practices 
  • cultural protocols 
  • contemporary cultural issues impacting the child’s community

Applying the prevention element when responding to a notification may include:

• seek advice from the cultural practice advisor or another Aboriginal and Torres Strait Islander Child Safety practitioner about how best to engage the family.
• ask the child and their family for information about their Aboriginal and Torres Strait Islander status, so that this can be correctly recorded in Unify. (Refer to Identify Aboriginal and Torres Strait Islander children and families and change a person’s cultural status in Unify.)
• extend the assessment to consider the child’s cultural background and in addition to the needs assessment, with a focus on family preservation.
• consider the strengths of Aboriginal and Torres Strait Islander child rearing practice, so these can be utilised to help create future protection and safety.
• acknowledge the child and their parent’s rights to have an independent person to facilitate their full participation in the discussion and decision making, particularly decisions about safety planning the whether the child is in need of protection. (Refer to  Arrange for an independent person to facilitate the child’s and family’s participation.)
• consider contacting the Family Participation Program prior to commencing the assessment with the child and their parents. (Refer to Role of the Family Participation Program.)

When working with an Aboriginal and Torres Strait Islander child who is a child in need of protection, focus on actions to prevent the child from entering further into the child protection system. This may include (with the family’s consent) referrals to the Aboriginal and Torres Strait Islander Family Wellbeing Service. ( Refer a family to an Aboriginal and Torres Strait Islander Family Wellbeing Service.) 

Connecting families to these organisations will ensure the family’s needs will be addressed in a culturally safe and acceptable holistic way.

Apply the partnership element

This element upholds the rights of Aboriginal and Torres Strait Islander persons to exercise self-determination over their lives. It intersects with the participation element and vice versa. (Refer to Apply the participation principle.)
It has two parts: 
1.    the first is focused on partnering with children, parents and family members when making significant decisions regarding their child
2.    the second part is partnering with Aboriginal and Torres Strait Islander persons on the design and delivery of Child Safety services and programs for Aboriginal and Torres Strait Islander children and families.

Regarding part 1, decision making about a child, allow time to establish a process that permits a partnership approach with the child and their family members. This includes taking steps to: 
•    recognise some decisions are considered significant for all children, (Refer to Decide if a matter is significant.) and at the same time, have regard to other decisions that are significant to a specific child because of the likely impact they have on the child’s life
•    consult with the child and their parents at the outset of engagement to determine whether any of the parties wish to have an independent person to assist their participation in the decision making processes with Child Safety, ensuring their involvement can be arranged in a timely and effective way
•    provide the handout What is an independent person? Information for Aboriginal and Torres Strait Islander families

• use the existing laws and services to support cultural safety for the child and family during decision making, such as: 
  • the requirements to arrange an independent person, with consent (Refer to the policy Decisions about Aboriginal and Torres Strait Islander children.)
  • arrange referrals to a Family Participation Program service provider, whose key purpose is to support the active participation of Aboriginal and Torres Strait Islander families in contact with the statutory child protection system
  • refer the family for an Aboriginal and Torres Strait Islander Family Led Decision Making process.

Regarding part 2, design and deliver culturally appropriate services. (Refer to Making active efforts.) For example,

• the CSSC works with an ATSICCO to establish and implement delegated authority for a child
• facilitate collaborative planning, co-operation and the development of clear communication between the CSSC and relevant community based organisations
• support Aboriginal and Torres Strait Islander peoples to select their own representatives to facilitate and be involved in the decision making processes.

To build genuine partnerships, practitioners have a responsibility to develop culturally competent practice. Cultural competence is a process of continuous learning over time, and can be enabled by:

• gaining knowledge of the culture, customs, histories and place-based circumstances of the Aboriginal and Torres Strait Islander peoples in the CSSCs catchment area
• adapting communication methods and styles when engaging with Aboriginal and Torres Strait Islander children and families
• being alert to power imbalances between Child Safety and Aboriginal and Torres Strait Islander Peoples, and how this impacts engagement and relationships
• enrolling in relevant training and learning opportunities provided regionally and through iLearn
• taking opportunities to get to know the programs offered by Aboriginal and Torres Strait Islander services in the CSSC’s catchment area, and their staff.

Apply the participation element

The participation element asserts Aboriginal and Torres Strait Islander children and their families have a fundamental right to be actively involved and able to influence the all decisions affecting them. This principle has a relevance and presence across all the other 4 elements. 

‘Decisions in which people are involved are more likely to be accepted and understood; families are more likely to take responsibility for issues and buy in to interventions decided upon. Involving family members reflects their important role in raising their children and increases the likelihood of and mechanisms for identifying supports and options to address care and protection issues. This is also a matter of procedural justice: in the administration of law, a fair procedure is one that affords those who are affected by a decision an opportunity to participate in the making of decisions.’
(SNAICC, 2019.)

To give effect to this element, a child safety practitioner is required to be culturally sensitive and make active efforts to enable the child and family to be active participants in all stages of decision making about the child (not just decisions which are regarded to be significant.)  Minimally this involves the need to:

• recognise that disruption to the child’s connection to their family, community and culture can have long term impacts on the child, and to purposefully take this into account as part of decision making processes
• provide a respectful, inclusive and safe space where the Aboriginal and Torres Strait Islander child and their family feel comfortable about sharing their views—seek advice (as appropriate) from the cultural practice advisor or another Aboriginal and Torres Strait Islander Child Safety practitioner
• draw on family knowledge of culture, strengths and risks. Acknowledge Aboriginal and Torres Strait Islander families and young people are best placed to provide advice with respect to their culture and the strengths and risks that exist in their own families and communities
• encourage advocacy and legal representation. Refer families to appropriate legal services or arrange for appropriate advocacy to support the participation of children in decision making
• engage with the Aboriginal and Torres Strait Islander child and the child’s family in a way that extends beyond consultation, and provides for their right to self-determination—which may include the need to arrange an independent person (where they have consented) to help in the discussion and decision making
• consult with the senior team leader to determine if the independent person/s nominated by the child or family are suitable under the Child Protection Act 1999 (Refer to Determine suitability.)
• accept there may be more than one independent person identified (such as where family members represent different communities or there is family conflict), or that they may nominate a different independent person for future decisions or decision making discussions. 

Apply the placement element

When an Aboriginal and Torres Strait Islander child is not able to remain safely at home or if the child is already in care and requires a new care arrangement, the placement element asserts the child’s right to be placed with a member of their family group as the first consideration. 

This element works alongside the additional legislative provisions for placing an Aboriginal and Torres Strait Islander child (Child Protection Act 1999, section 83). These add further strength to the placement element, by outlining a hierarchy of care arrangement options for the child in the following order of priority: 

• with a member of the child’s family group

or 

• with a member of the child’s community or language group

or

• with an Aboriginal and Torres Strait Islander person who is compatible with the child’s community or language group

 or

• with another Aboriginal and Torres Strait Islander person

or

•  with a person who lives near the child’s family, community or language group and who has a demonstrated capacity for ensuring the child’s continuity of connection to kin, country and culture.

To ensure the strongest possible level of connection for the child to their family, community and culture:

• commence exploring with the child, their parents and family, who they propose as prospective kinship carers for the child (as soon as it becomes clear that a child is likely to require a care arrangement (Refer to Identify the child’s kin.)
• contact the Placement Services Unit to explore regional specialist services providing family tracing and finding kin activities—such as a Connecting Kin service provider funded by Child Safety, or a local kinship team staffed by child safety practitioners 
• take early actions to gather information about the child’s family, language and community group:
• seek information from the child and family members about who is in their family and community, and use their knowledge of the family’s history and strengths to identify potential kin carers for the child
• document the outcome of discussions with family and community members about becoming a potential carer for the child so they can be recontacted if appropriate—refer to Record contact with prospective kinship carers
•  make use of current processes to revisit information on the child’s kin and community networks—such as during family group meetings or with the child’s safety and support network, or as part of routine contacts with the child and family members. 

The identification of potential kinship carers for the child requires active and purposeful efforts, including the need to:

• arrange for the nominated independent person/s to facilitate the child’s participation and the participation of the child’s parents, if they consent to having an independent person (refer to Make arrangements for an independent person), to discuss in whose care the child will be placed
• support the family to identify potential care arrangements to maintain the child’s connections to family, community and culture
• understand the requirements for a kinship carer assessment (Refer to Initial care assessment requirements.), a provisional assessment (Refer to Complete the provisional assessment.), and explain these to the child’s family
• provide prospective carers with information to assist their informed decision to become a carer. (refer to Provide the prospective applicant with relevant information.)

Apply the connection element

This element of the Aboriginal and Torres Strait Islander Child Placement Principle gives effect to the child’s fundamental right and need to be connected to their family, community, culture, language and country. It recognises the importance of this connection to the child’s sense of identity, belonging and wellbeing. 

For a child in care, connection encompasses three components:

•  contact with parents and family members—which may include grandparents, aunts, uncles, cousins, nieces and nephews, and members of the community who are considered family 
• opportunities for ongoing learning about culture including language, history, laws, totem, skin
• sibling contact, including for siblings who are living in a different care arrangements.

The connection element relies on the participation element being properly affected, so  the views of the child, their family and community are informing the child’s connection arrangements. 

‘Cultural connection is fundamental to Indigenous identity and wellbeing but requires family connection if it is to be fostered and strengthened.’ (Krakouer et al.)

The Child Protection Act 1999, section 51B(2) requires the child’s case plan to be consistent with the element of connection and specific arrangements detailed within the in the cultural support plan component of the child’s case plan. (Refer to Cultural support plan.) 

The element of connection should inform decisions about care arrangements. The delegated officer is required to ensure the care arrangement provides for the optimal retention of the child’s relationships with their parents, siblings and people significant to the child according to Aboriginal tradition or Island custom (Child Protection Act 1999, section 82(6)). 

Active implementation of the connection element is important when a child is placed in care and may include:

• exploring the child’s connections on both maternal and paternal sides
  • multi-generational kinship and community connections
  • the significance of these people to the child 
  • seek the family’s views on an Aboriginal and Torres Strait Islander service assisting with this family mapping (for example, the Family Participation Program)
• documenting the child’s cultural information and family map in Unify
• seeking cultural guidance from the cultural practice advisor or another Child Safety practitioner able to provide cultural advice 
• arranging, with the family’s consent, a referral to an Aboriginal and Torres Strait Islander Family Led Decision Making process for developing the initial case plan and cultural support plan ( Refer the family for family-led decision making)
• linking the child with local Aboriginal and Torres Strait Islander health services or child care services where appropriate
• prioritising the development of the cultural support plan (for a child placed in a non-family based care arrangement, with a non-Aboriginal and Torres Strait Islander carer or with a carer who is not from the child’s kinship, community or language group) 
• making sure the cultural support plan provides for the: 
  • child’s connections with their family and significant community members 
  • development of the child’s cultural knowledge and their connections to language and country
  • sibling contact and connections
• documenting the connection and family contact plans in the placement agreement, making clear the role and actions required of the carer or service provider to ensure the element of connection. 

For a child subject to a child protection order granting custody to the chief executive, active implementation of the connection element may include:

•  promote reunification planning with the child’s safety and support network, including the child’s carer or care service provider 
• routinely review the progress of family contact and cultural connection arrangements with the child and their carer (or service provider) during home visits and when reviewing the placement agreement
• seek approval for the payment of child related costs (as required) to support activities to build and maintain the child’s connections with family, community and  culture (Refer to the Child Safety Procedures Child related costs – Child and young person support, and Child related costs - Travel.)
• respond promptly if plans for family contact and cultural connection require improvement
• continue to explore possible kinship care arrangements for the child, especially if
  • the child is facing disruption to their current care arrangement or
• the child is becoming increasingly disconnected from their kin and community.

For a child subject to a child protection order granting guardianship to the chief executive active implementation of the connection element may include:

• recognising the importance of the child’s ongoing cultural connection to their identity, resilience and self-esteem and how this connection provides strength to support coping with the uncertainty of the future
• maintain documentation to record the child’s multi-generational kinship and community connections, to accurately reflect all gathered information about the child’s connections 
• maintain a focus on the child’s needs for connection and cultural knowledge within their cultural support plan, ensuring ongoing relevance to their age and stage of development 
• use the cultural support plan as a ‘living document’; review and adapt it to suit the child’s changing circumstances (as needed, rather than only when prompted by the case planning cycle)
• incorporate cultural planning into the young person’s transition to adulthood plan (from 15 years until the child exits care) by providing further opportunities to connect with their family, community and country before they exit care (Refer to the practice kit Transition to adulthood.)

A fundamental human right

The United Nations Declaration on the rights of Indigenous peoples delineates and defines the individual and collective rights of Indigenous peoples, including their ownership rights to cultural and ceremonial expression, identity, language, employment, health, education and other issues. Article 2 of this declaration states: 

‘Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.’

Our Way 

Child Safety recognises all children (including Aboriginal and Torres Strait Islander children) have the right to a bright, healthy and powerful future.

The Our Way strategy is the Queensland Governments long-term commitment in partnership with Family Matters Queensland and the Queensland First Children and Families board, to eliminate the overrepresentation of Aboriginal and Torres Strait islander children and young people in the child protection system in Queensland by 2037 and deliver the best possible outcomes for Aboriginal and Torres Strait Islander children and families.

Guided by Aboriginal and Torres Strait Islander perspectives, the Our Way strategy is implemented to achieve its vision that all Aboriginal and Torres Strait Islander children and young people in Queensland grow up safe, loved and cared for in family, community and culture.

Our Way and its associated action plans align to other national and state initiatives and strategies including: 
•    Queensland Government’s commitment to a reframed relationship and local thriving communities with Aboriginal and Torres Strait Islander peoples and communities 
•    National Agreement on Closing the Gap  
•    Safe and Supported: The National framework for protecting Australia’s children 2021–2031.

Rights for Aboriginal and Torres Strait Islander peoples

The rights of Aboriginal and Torres Strait Islander peoples are fundamental human rights that recognises their unique cultural identity, heritage, traditions and connection to land, water, and community. 
These rights are protected under various international and national laws that are crucial to preserving the distinct cultures and ways of Aboriginal and Torres Strait Islander peoples (Queensland Human Rights Commission).

Self-determination

Self-determination is the process by which a person or community has the authority to control and make decisions about their life. In the context of child protection, it is also the process by which a person participates in and lead the decisions affecting the care and protection of their child to promote the continuity of family and community relationships. 

Self-determination can mean something different for every individual Aboriginal and Torres Strait Islander person and community, so the most appropriate approach is to respectfully engage with them and seek their views. 

Aboriginal and Torres Strait Islander peoples’ participation and leadership in the decisions that impact the care and protection of their children and young people will promote continuity of family and community relationships.

The parents and family of a child are the experts in their child’s life. Discuss with them what is important and crucial for Child Safety to know when determining the best interests of the child.

Child safety practitioners must ensure they are making active efforts to meet all five elements of the Aboriginal and Torres Strait Islander Child Placement Principle every time they are working with Aboriginal and Torres Strait Islander children and young people, their family and communities. (Refer to Making  active  efforts.)