Independent person

Aboriginal and Torres Strait Islander children and their families are best placed to identify someone to be their independent person who can help to facilitate their meaningful participation in significant decisions and decision-making processes for the child. This supports implementation of the principle of Aboriginal and Torres Strait Islander self-determination. It also recognises the child and their family as the primary source of cultural knowledge in relation to the child and family.

Legislation

The Child Protection Act 1999 legislates the role of the independent person. The relevant sections are:

• Section 6 ‘Who is an independent Aboriginal or Torres Strait Islander entity?’ outlines who can be an ‘independent Aboriginal or Torres Strait Islander entity for a child’.
• Section 6AA requires the chief executive, authorised officers and the litigation director, in consultation with the child and their family, to arrange for a person to facilitate the participation of the child and family in the decision-making process when making a significant decision.
• Schedule 3 includes the definition of a significant decision.

Policy and Procedure

Refer to Operational Policy – Decisions about Aboriginal and Torres Strait Islander children and young people.

Refer to the procedure Support a child in care for information about the independent person.

Why do we have an independent person?

The involvement of the independent person supports the right to self-determination and choice for an Aboriginal or Torres Strait Islander child and their family. The child and their family choose someone who:

• they are comfortable with
• is significant to their child
• knows their community or language group.

The child and their family also have the right to decide not to have an independent person to facilitate their participation in decision-making processes.

Importantly, Child Safety cannot impose an independent person on a family. An independent person is someone the child and their family chooses to support them in their communication with the department and to meaningfully participate in decisions that may have an impact on a child.

A non-Indigenous parent can nominate an independent person who can assist them in meaningful participation in decision making with respect to cultural considerations for the child.

The role of the independent person

The role of the independent person is to help facilitate the child and family’s meaningful participation in decision making.

There is an expectation that Child Safety staff are have the cultural capability to meaningfully engage with Aboriginal and Torres Strait Islander families.

Some examples of what the independent person does include:

• being present as a trusted person during a meeting with Child Safety to support the child and their family to ensure everything they wish to say has been shared
• providing contextual cultural information about things impacting on a parent, to ensure Child Saftety is accurately understanding the parent’s motivations or actions when forming an assessment
• helping the child or family explain to Child Safety staff cultural factors that may be impacting on a family’s capacity to fully participate in discussions and decisions.

When the independent person has other roles with family

It is possible that an independent person for a child could also be nominated to be a provisionally approved carer or kinship carer for the child. It may be an independent person is also best placed to provide care for the child (e.g. the grandmother). When this occurs, Child Safety staff, the child, their family and the carer should discuss the implications of undertaking both roles and whether this is in the best interest of the child and the preference of the child and their family. The person would need to satisfy suitability requirements for being provisionally approved. If being the child’s carer and an independent person for the family presents a conflict of interest, the proposed independent person may need to consider either not being the family’s independent person, or not being the child’s carer.

When is an independent person required?

Child safety officers must offer the child and family the opportunity to have an independent person involved every time a significant decision about an Aboriginal and Torres Strait Islander child is to be made.

What is a significant decision?

The Act gives some examples, but is not an exhaustive list. This is because what is significant will depend on the unique circumstances of the family. Significant decisions always include:

• a decision about how to keep a child safe (safety planning during an investigation and assessment and placing a child in care)
• a decision about whether a child is in need of protection
• a decision about what type of ongoing intervention will be undertaken with a family
• a decision to place a child in care
• a decision about where and with whom the child will live.

Times when an independent person is not required

Child Safety cannot engage an independent person if the child or family does not agree (chooses not) to having an independent person facilitate their participation in a decision making process.

An independent person would not be involved in decisions made prior to speaking with a child and their family, including intake decisions or in developing an investigation and assessment plan.

The expectation is that when urgency prevents the engagement of an independent person, attempts are made to engage them as soon as possible after the decision if the child or family agrees.

In exceptional circumstances, Child Safety is not required to arrange for an independent person to facilitate participation in significant decisions if:

• doing so is not practicable because an independent person for the child is not available or urgent action is required to protect the child; or
• doing so is likely to have a significant adverse effect on the safety or psychological or emotional wellbeing of the child or any other person; or
• doing so is otherwise not in the child’s best interests; or
• the child or their family does not consent to the ongoing involvement of an independent person in the decision-making process.

The family must agree to the involvement of the independent person for any significant decision. This means that Child Safety cannot simply approach a person who has previously been an independent person without first confirming that the family want to nominate this person again. 

One or more independent persons

A family can have more than one independent person for a child.  Situations where a child or their family may wish to have more than one independent person could include:

• where the parents come from different community or language groups or have differences of opinion and they want to have separate independent persons
• a child may choose to have a separate independent person from the independent person chosen by their parent
• the child and their family may choose to have a different independent person for different decisions or may have an independent person involved in some decisions and not for others.

Where possible, modify when, how and where you meet with the child and their family to ensure the interaction with the independent person is culturally safe, informed and optimises participation.

Who can be an independent person?

The Child Protection Act 1999 section 6 sets out who can be an independent person. 

In addition to information from the family and the nominated person, Child Safety will consider information kept in child safety records.

The child or family may also choose an organisation that includes Aboriginal or Torres Strait Islander persons who provides services to Aboriginal or Torres Strait Islander persons (this could include a service funded by the state or commonwealth). An example of this is an organisation that is funded to provide the Family Participation Program.

Prerequisites to be an independent person

There is no prerequisite to be an independent person and they do not need experience in or knowledge about child protection. Child Safety staff need to explain child protection processes and the role of independent person to the child, their family and independent person.

Assessing suitability

Child Safety are guided by the child, or their family on who the best person is to be their independent person. This happens each time a significant decision is being made for the child. The nominated person may be the same person or the family may choose someone new for each decision.

It is important for the safety and wellbeing of the child that their independent person does not pose a risk to them and will not have a significant adverse effect on their safety, psychological or emotional wellbeing, or that of another person.

The intent of the legislation is not to unnecessarily limit or restrict the child or family’s choice of an independent person which is an integral part of self-determination.

When a nominated person is not suitable

It would be in rare circumstances that the senior team leader would decide that the person nominated by the family is not suitable to be an independent person. See the procedure Support a child in care for more information.

Child Safety staff can only discuss the reasons for the decision with the nominated person, and cannot discuss the reasons with the person who nominated them. Child Safety staff may be able to discuss with the nominated person and the family about whether the person could still assist the family as a support person.

Right to challenge a suitability decision

If the family are unhappy about a decision Child Safety has made about whether their independent person is suitable, the family can make a complaint about any action or decision made by an officer of Child Safety. The normal complaints management process will be followed.

Confidentiality considerations

The independent person for a child is be bound by the confidentiality provisions in the Act. The Child Protection Act 1999 includes the independent Aboriginal or Torres Strait Islander entity in the definition of a ‘service provider’ and therefore the independent person will have to meet relevant confidentiality requirements under the Act.

The Child Protection Act 1999 also makes provision for Child Safety and an independent person to share information with each other to help the independent person facilitate the child and their family’s participation in decision making, planning or provision of services.

For example, Child Safety may give the independent person updated information about the time and date of a decision making meeting if the child or their family has agreed to the independent person being involved.

Whenever possible, the child or family’s consent should be sought before sharing information unless doing so could jeopardise the safety or wellbeing of a person or the person is unable to consent.