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Enable participation of Aboriginal and Torres Strait Islander peoples in decision making

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This page was updated on 09 September 2022. To view changes, please see page updates

Enable meaningful participation in decision making

Child Safety is responsible for and committed to making all decisions about Aboriginal and Torres Strait Islander children in collaboration with Aboriginal and Torres Strait Islander families and their community.

The Child Protection Act 1999, sections 5C and 6AA, reflect the importance of providing Aboriginal and Torres Strait Islander people with the opportunity to meaningfully participate in child protection decision making to ensure that:

  • they can exercise their right to self-determination and agency over their lives
  • child protection services provided to Aboriginal and Torres Strait Islander children are culturally appropriate and support their safe care and connection with family, community, culture and country
  • active efforts are made to address the over-representation of Aboriginal and Torres Strait Islander children in the child protection system.

The Child Protection Act 1999 requires that, when making a decision about an Aboriginal or Torres Strait Islander child, Child Safety considers the long-term effect of the decision on the child’s identity and connection with their family and community.

The decision must also be made:

  • in a way that allows the full participation of the child and the child’s family group
  • in a place that is appropriate to Aboriginal tradition or Island custom
  • in a way that upholds the following 5 elements of the child placement principle:
    • preventionAboriginal and Torres Strait Islander children have a right to be brought up within their own family and community
    • partnershipAboriginal and Torres Strait Islander persons have the right to participate in significant decisions about Aboriginal and Torres Strait Islander children
    • placementAboriginal and Torres Strait Islander children subject to a child protection care agreement or child protection order granting custody or guardianship to the chief executive have a right to be placed with a member of their family group
    • participationAboriginal and Torres Strait Islander children and their parents and family members have a right to participate, and be enabled to participate in administrative and judicial decision-making processes.
    • connectionAboriginal and Torres Strait Islander children have a right to be supported in developing and maintaining a connection with the child’s family, community, culture, traditions and language, particularly where a child is in the care of a person who is not an Aboriginal or Torres Strait Islander person.

Arrange for an independent person to facilitate the child’s and family’s participation

The Child Protection Act 1999, requires Child Safety, in consultation and with the consent of the child and their family, to arrange an independent Aboriginal or Torres Strait Islander entity for the child (known as an independent person) to facilitate the child’s and family’s participation in decision-making processes:

  • when making a significant decision for an Aboriginal or Torres Strait Islander child, refer to Decide if a matter is a significant decision
  • when deciding where and with whom an Aboriginal or Torres Strait Islander child will livewhen the child is subject to a child protection care agreement, or an order granting custody or guardianship to the chief executive.

Practice prompt

If a significant decision is made and consultation with the family was not possible, the relevant CSSC or CSAHSC is responsible for advising the family of the decision as soon as practicable.

If cultural advice is required to inform decision making, planning or case work, consult with one or more of the following:

  • the child, child’s family or a person they nominate (unless advice is required for investigation and assessment planning, in which case, refer to Procedure 2 Plan the investigation and assessment)
  • a Child Safety practitioner able to provide cultural advice
  • a local Aboriginal or Torres Strait Islander community representative. If consulting about investigation and assessment planning, share only non-identifying information about the child and family.

Further reading

Practice kit Safe care and connection

Practice guide Culturally capable behaviours (This provides information about Child Safety staff working in a culturally capable way.).

Talk with a child and family about having an independent person attend court

The Child Protection Act 1999 states that the Childrens Court must have regard to Aboriginal tradition and Island custom relating to the child when:

  • exercising a power under the Child Protection Act 1999 , section 6AB, in relation to an Aboriginal or Torres Strait Islander child
  • deciding whether to make a permanent care order for an Aboriginal or Torres Strait Islander child (section 59(7A)).

The court, to inform itself about Aboriginal tradition and Island custom relating to the child, may have regard to the views of an independent person, as well as the views of the child or a member of the child’s family.

The Child Protection Act 1999  does not obligate:

  • an independent person to attend court
  • Child Safety to arrange, with the child and family’s consent, for an independent person to attend court with the family. 

Before a court date, talk with the child and family about whether they wish to have an independent person attend court with them, if the person is available. Advise them that it is not a requirement, but having an independent person at court will:

  • ensure an independent person is available should the court wish to have regard to their views about Aboriginal tradition and Island custom
  • enable the child and family to have an independent person help facilitate their participation in a significant decision, should such a decision need to be made on the day at court.

If the child or family do intend to have an independent person attend court, record in the Affidavit (form 25) for an Aboriginal or Torres Strait Islander family:

  • the child’s and family’s intention
  • relevant details of the independent person. (Refer to Procedure 3 Prepare an affidavit.)

Note

Information about the person’s suitability to be an independent person is not required in the affidavit, as this is not a matter on which the court can make a decision and is not relevant to the matters to be considered by the court.

If a family wishes to have an independent person provide information to the Childrens Court about Aboriginal tradition or Island custom in relation to the child, and Child Safety has not previously determined the person’s suitability to be an independent person, the DCPL will request advice from Child Safety about whether the person is suitable. (Refer to Advise the Director of Child Protection Litigation about a person’s suitability to be an independent person.)

Decide if a matter is a significant decision

Significant decisions

The Child Protection Act 1999 , schedule 3, defines a significant decision about an Aboriginal or Torres Strait Islander child as one that is likely to have a significant impact on the child's life.

The following are considered to be significant decisions for an Aboriginal or Torres Strait Islander child:

  • a decision about how to keep a child safe (immediate safety planning during an investigation and assessment and ongoing intervention)
  • a decision about whether a child is in need of protection
  • case planning decisions including the type of ongoing intervention that will be undertaken with a family and how the child’s safety, belonging and wellbeing needs will be met
  • a decision to refer a matter about an application for a child protection order for the child to the DCPL
  • a decision about where or with whom a child will liveif the child is subject to a child protection care agreement or an order granting custody or guardianship to the chief executive (Child Protection Act 1999, section 83(2))
  • support service planning before the birth of an Aboriginal or Torres Strait Islander child.

Refer to Complete the Independent person form.

Attention

There may be additional matters that are significant for an individual child, taking into account issues specific to them, their family and community. Use professional judgement and knowledge of the child’s circumstances to determine what decisions are significant for a child.

Other decisions

If the child or family wishes to have an independent person facilitate their participation in a decision that is not defined as a significant decision, arrange for this. (Refer to Make arrangements for an independent person.)

Make arrangements for an independent person

Who may be an independent person?

To be an independent Aboriginal or Torres Strait Islander entity (independent person) for a child, the entity must be:

  • an individual who is an Aboriginal or Torres Strait Islander person
    or
  • a group whose members includes Aboriginal or Torres Strait Islander persons.

In addition, Child Safety must be satisfied that the following criteria are met:

  • the independent person must:
    • provide services to Aboriginal or Torres Strait Islander persons (this could include an entity funded by Child Safety)
      or
    • be a representative of the child’s community or language group
      or
    • be a person who:
      • is of significance to the child or child’s family
      • is a suitable person for associating on a daily basis with the child
      • has appropriate authority to speak about Aboriginal or Torres Strait Islander culture in relation to the child or the child’s family
      • is not an officer or employee of Child Safety
  • the person is suitable person to be an independent person.

Refer to Information for staff: Who can be an independent person for an Aboriginal and Torres Strait Islander child and/or family?

Note

Children and families are the best source of information regarding their own kin, culture and community. When a child and family nominates an individual to be an independent person, the child, family and the individual will inform Child Safety about whether the individual is an Aboriginal or Torres Strait Islander person.

In certain circumstances, a non-Aboriginal or Torres Strait Islander person may meet the criteria for being an independent person. (Refer to Respond to a request for an individual who is not Aboriginal or Torres Strait Islander to be an independent person.)

In addition, as long as the child, family and the person nominated advise that they are satisfied that the person is:

  • a representative of the child’s community or language group
  • a person of significance to the child or child’s family
  • a person with appropriate authority to speak about Aboriginal or Torres Strait Islander culture in relation to the child or the child’s family,

Child Safety will be satisfied that the criteria have been met.

Respond to a request for an individual who is not Aboriginal or Torres Strait Islander to be an independent person

Attention

The Child Protection Act 1999, section 6 outlines who may be an independent Aboriginal or Torres Strait Islander entity for a child (independent person) and specifically states that an entity is:

  • an individual who is an Aboriginal or Torres Strait Islander person
    or
  • another entity whose members include individuals who are Aboriginal or Torres Strait Islander persons.

The Child Protection Act 1999 also provides the following examples of who may be an independent person:

  • an Aboriginal or Torres Strait Islander elder
  • an entity funded by a state or the Commonwealth to provide cultural services, including cultural advice and support, to Aboriginal or Torres Strait Islander persons.

Therefore, when a child or family chooses an individual who they wish to be an independent person, it is a requirement for that person to be an Aboriginal or Torres Strait Islander person. 

If a child or family chooses someone to be an independent person who is from an entity whose members include Aboriginal and Torres Strait Islander members (for example, an employee of a Family Wellbeing Service or Family Participation Program) then the legislation does not require the person to be an Aboriginal or Torres Strait Islander person.

If the individual the child or family wants to support them in decision making is an individual within their family or community who is not an Aboriginal or Torres Strait Islander person, advise the child and family that:

  • if they decide to have the person involved, that person will not be undertaking the role of independent person as described in the legislation
  • they can still request that the person helps them to participate in decision making and:
    • Child Safety will accommodate the request wherever possible. The circumstances will be decided on a case-by-case basis
    • it may not always be possible for the person to be involved in the decision-making process.

Consult the child and family

Each time a significant decision is to be made, carry out the following steps. This will assist in meeting the obligation to arrange for an independent person, in consultation and with the consent of the child and their family.

  1. Advise the child and their parents: 
  2. If the child and family agree to have an independent person, arrange for the independent person, by:
    • advising the person of the role requirements
    • determining the person’s suitability
    • arranging their involvement in the decision with the child and family unless it is: 
      • not practicable because an independent person is not available or because the decision must be made urgently
      • likely to have a significant adverse effect on the safety or emotional wellbeing of the child or another person
      • not in the child’s best interests.

Note

To ensure the child and family can have an independent person to support their participation in decision making throughout the duration of Child Safety’s involvement, a child and family may choose to nominate multiple people who they wish to be an independent person.  

If the family identifies people in advance, it will enable the CSSC to contact the people nominated and determine their suitability before the child and family require their assistance. This aims to:

  • maximise flexibility for the child and family
  • maximise the instances where the child and family are supported by an independent person
  • prevent the need to delay decisions for the purpose of arranging an independent person.

Provide information to the person nominated to be the independent person

If the child and family nominate someone to be their independent person, confirm whether the child and family wish to approach the person about the role in the first instance or prefer Child Safety to do so.

After the initial contact with the nominated person has been made, provide them with the following information to help them decide whether to take on the role. Let them know: 

  • that the purpose of the independent person’s role is to help the child and family: 
    • have their say in decisions
    • feel stronger and supported in saying everything they wish to say to Child Safety during a decision-making process
    • provide contextual cultural information about things impacting on the child and family, to help Child Safety understand the child’s and family’s views, motivations or actions 
    • explain cultural factors that may be impacting on the child or family and their capacity to fully participate in discussions and decisions
  • the role of an independent person is not to: 
    • make decisions
    • provide their own views on the decision being made
    • speak on behalf of the child or family, unless with the child’s and family’s agreement  
  • that they do not need experience or knowledge in child protection. Relevant processes will be explained to them, the child and family members
  • the requirement to maintain confidentiality, as outlined in the Child Protection Act 1999, chapter 6, part 6
  • that where they have been nominated by the child and family to be the independent person for multiple decisions, they may agree or decline, or agree to take on the role for some decisions and not others 
  • the chief executive’s obligation to consider their suitability for the role. (Refer to Determine suitability.)
  • that where required, practical assistance may be available to assist them to participate in decision making (for example, the use of an interpreter or video-conferencing)
  • the possibility of reasonable out-of-pocket expenses associated with travel or accommodation being available from:
  • that, if the matter results in a proceeding in a Childrens Court, they may be asked to present their views to the court about Aboriginal tradition or Island custom in relation to the child, although the court cannot compel them to do so
  • there are resources available about the role of an independent person:

Determine suitability

When a child and family nominate someone who they believe meets the definition of an independent person, who is suitable to be an independent person, and who has the capacity to fulfil the role, a senior team leader will determine the person’s suitability, taking into account:

  • whether the person: 
  • whether a conflict of interest exists that adversely impacts on the independent person’s ability to facilitate the child’s or family’s participation in decision making. For example, a conflict would exist if a person who is a party to proceedings relating to the child in the Childrens Court or family law court is to be the child’s and family’s independent person
  • whether factors specific to the circumstances of the decision mean the person nominated is not suitable. For example, the person nominated may have strong views about the decision that differ to the views of the child and family, and is unable to put those aside to help the child and family participate in the decision.

To decide a person’s suitability, a senior team leader will consider information from the following sources:

  • information about the nominated person provided by the child and family and the person themselves
  • existing information recorded in ICMS relating to the child protection history of the nominated person. Note—The relevance of the history on someone’s ability to undertake the role of independent person will: 
    • be determined on a case-by-case basis
    • depend on whether the history relates to a serious matter likely to pose a risk of harm to a child in the current circumstances.

Attention

Do not request a criminal or domestic and family violence history check on the person nominated. The Child Protection Act 1999 does not provide authority to seek this information for the purpose of determining the suitability of an independent person.

If information is identified in the person’s child protection history that may indicate the person is not suitable to take on the role, discuss the concerns with the person. If, based on information provided by the person, the level of concern is not sufficiently reduced:

  • advise them and the child and family that the person is not considered suitable
  • record the decision and rationale in the Independent person form in ICMS.

If a decision is made that a person is not suitable and the child and family or person nominated wishes to discuss the matter with a senior officer, provide them with contact details for the CSSC manager.

Give the independent person details of the meeting 

When an independent person is to help the child and family participate in a future decision, and time allows, formally invite the independent person to a meeting using the Letter to the Independent person template. Confirm details of the meeting, as agreed with the family and independent person, including:

  • the purpose of the meeting
  • a reminder of the role of an independent person and confidentiality requirements.  

If time does not allow for the letter to be sent, inform the independent person (before the meeting) of information outlined in the letter template regarding their role, confidentiality requirements and the decision in which the child and family are participating.

Respond to a request for financial assistance for an independent person to attend a meeting 

If financial assistance is required to enable an independent person to attend a meeting to discuss a decision about an Aboriginal or Torres Strait Islander child, the CSSC manager may consider approval of funds through the policy Child related costs and the procedure Child related costs-Child and young person support, to cover reasonable out-of-pocket expenses for travel, accommodation or meals.

Before considering financial assistance, the CSSC manager must be satisfied that the following has occurred:

  • the use of electronic meeting arrangements such as Skype or tele-conferencing has been considered, but is not available or appropriate in the circumstances
  • the CSO has discussed options with the independent person for seeking financial or other practical assistance from a local Aboriginal or Torres Strait Islander community organisation or other support service. Where requested, the CSO has assisted in contacting those agencies, but assistance was not possible or appropriate in the circumstances. 

Contact the independent person after the meeting

After an independent person has helped the child or family to participate in a decision, contact the independent person to:

  • acknowledge their contribution to the process
  • remind them of their ongoing confidentiality requirements in relation to information provided to them verbally and in writing
  • seek feedback about the decision-making process and, if relevant, future opportunities for enhancing the child’s and family’s meaningful participation in decision making.

Practice prompt

Seek feedback from the child and family about the decision-making process, the contribution of the independent person and future opportunities for enhancing their participation in decision making.

Complete the independent person form  

Complete an Independent person form in ICMS for:

  • each significant decision about an Aboriginal or Torres Strait Islander child
  • each decision about an Aboriginal or Torres Strait Islander child that was not considered significant, where the child or family requested that an independent person help facilitate their participation in the decision.

Record the following information in the form:

  • details of participants in the decision-making process
  • whether the child and family agreed or declined the involvement of the independent person
  • whether each person nominated by the child and family to be the independent person was determined suitable and if not, the rationale for why they were not considered suitable
  • if each person determined suitable to be the independent person participated in the decision-making process
  • if applicable, the rationale for why involvement of the independent person in the decision was not practicable
  • the contact details for each independent person and their relationship to the child.

Attention

Do not create a client profile in ICMS for an independent person. If the person has an existing client profile related to another role, this will not be added to the relationship table in the event, unless doing so is relevant to the person’s other role and not their role as the independent person.

Refer the family for family-led decision making 

Attention

Child Safety will support Aboriginal and Torres Strait Islander children and families to meaningfully participate and exercise self-determination in regard to significant decisions about children in care.

Seek the family’s agreement for the Family Participation Program to contact them to discuss how it can support the family by facilitating an Aboriginal and Torres Strait Islander family-led decision making process  for the purpose of developing a case plan, when it is practicable and in the child’s best interests. If the family does not want the Family Participation Program to facilitate family-led decision making or the Family Participation Program is not able to accept the referral, make a referral to the family group meeting convenor. Record details of all engagement with the family participation program in a case discussion/decision case note with the description ‘FPP engagement’ in the ongoing intervention event in ICMS.

Note

Before making contact with the family, some Family Participation Program services may require Child Safety to first:

  • speak to the family and gain consent for a referral

and

Check local arrangements for referral to the Family Participation Program before talking to the family about a referral.

A family-led decision making process to facilitate family-based responses to children’s protection and care needs meets the criteria for a family group meeting under the Child Protection Act 1999, and may be convened by:

  • a private convenor (such as a facilitator from the Family Participation Program) 
    or
  • a delegated officer—usually the family group meeting convenor.  

Family group meetings for an Aboriginal or Torres Strait Islander child will be family-led processes as far as possible, facilitated by a Family Participation Program or the family group meeting convenor.

Practice prompt

If the child and family choose to have an independent person help facilitate their participation in decisions to be discussed at a family-led decision making process, arrange for this to occur. (Refer to Arrange for an independent person to facilitate the child’s and family’s participation.)

Facilitation by a Family Participation Program 

Note

The Family Participation Program is made up of Aboriginal and Torres Strait Islander community-controlled organisations:

  • funded to independently facilitate family-led decision making processes with Aboriginal and Torres Strait Islander families
  • that have Aboriginal or Torres Strait Islander facilitators trained and accredited to deliver Aboriginal and Torres Strait Islander family-led decision-making with the aim of ensuring the safety of Aboriginal and Torres Strait Islander children within their family, community and culture. 

Staff from the Family Participation Program facilitate Aboriginal and Torres Strait Islander family-led decision making processes, where authority is given to children, parents and their family to identify solutions to problems and lead decision making about their family, in a culturally safe space. The process seeks to give effect to Aboriginal and Torres Strait Islander people’s right to self-determination.

The purpose is for the child’s family to fully participate in a significant decision, with the aim of:

  • enabling the collective resources and protective capabilities of the extended family to be taken into account—to ensure the best decisions are made for the child
  • identifying and exploring the extent of possibilities that the family can offer.

If an Aboriginal and Torres Strait Islander family-led decision making process is facilitated by the Family Participation Program for the purpose of developing a case plan, the facilitator from the Family Participation Program will:

  • fulfil the functions of a private convenor
  • explain to the family before the family-led decision making process, that it is the responsibility of the senior team leader to approve the case plan
  • together with Child Safety staff, ensure the meeting complies with the requirements of a family group meeting in the Child Protection Act 1999section 51.

During an Aboriginal and Torres Strait Islander family-led decision making process for a child subject to ongoing intervention (for example, to develop an initial case plan or to review and develop a revised case plan) the family will propose a plan about how they think the child’s protection and care needs can be addressed, whether at home or in care. If the child cannot remain safely at home, the aim is for the family to identify family-based options, including potential kinship carers for the child.  Refer to practice guide Family Participation Program Referrals for Aboriginal and Torres Strait Islander family-led decision making.

Note

The family’s plan will be incorporated into the goals and actions of the child’s case plan. As the delegated officer, the senior team leader is responsible for approving the case plan, ensuring the safety of the child is paramount.

Both the senior team leader and CSO are to be present for the family-led decision making meeting. If the senior team leader is not able to be present, tell the family in advance and explain that the final endorsed case plan may not be able to be confirmed on the day of the meeting. If this is the case, either:

  • participants will be contacted later to discuss the final plan
    or
  • participants may need to continue the family-led decision making process at another time.

Note

The Family Participation Program prioritises referrals for family-led decision making:

Attention

When conducting a case plan review in accordance with the Child Protection Act 1999section 51VAA consider whether permanency for the child would be best achieved by an alternative arrangement mentioned in the Child Protection Act 1999section 5BA(4)(a)-(c), ensure that a referral to the Family Participation Program completed.

Facilitation by a family group meeting convenor 

At times, a child and family may choose to participate in a family-led decision making process facilitated by a family group meeting convenor.

As it is not facilitated independently of Child Safety, it differs to the model of Aboriginal and Torres Strait Islander family-led decision making, which is undertaken exclusively by the Family Participation Program or other Aboriginal or Torres Strait Islander services.  

Make a referral

A referral for either an Aboriginal and Torres Strait Islander family-led decision making process or a family-led decision making process may be made for a child in care in order to develop or review a case plan for an Aboriginal or Torres Strait Islander child. If the family has spoken to the Family Participation Program and agrees to the referral, either:

  • make a referral to the Family Participation Program 
    or
  • support the family’s self-referral to the Family Participation Program.

Otherwise, discuss with the parents and child, depending on the child’s age and ability to understand, that:

  • a referral will be made to the Child Safety family group meeting convenor 
  • the family group meeting convenor will facilitate a similar process of family-led decision making.

To refer, complete either the online referral form using the Queensland Family Support Referral portal or a referral to the Child Safety family group meeting convenor and outline:

  • the child protection concerns (including the harm and risk of harm, worries,  complicating factors, acts of protection and belonging, strengths and resources)
  • the purpose of the meeting
  • the child’s and parents’ details
  • contact details of relevant family members, if known 
  • any relevant timeframes.

Further reading

Advise the Director of Child Protection Litigation about a person’s suitability to be an independent person

Attention

The Child Protection Act 1999 requires the DCPL, when making a significant decision about an Aboriginal or Torres Strait Islander child, to (in consultation with the child and the child’s family) arrange for an independent person to facilitate the participation of the child and the child’s family in the decision-making process.

The DCPL is not required to arrange for an independent person if it is not practicable because:

  • an independent person is not available
  • urgent action is required to protect the child
  • it is likely to have a significant adverse effect on the safety or psychological or emotional wellbeing of the child or any other person
  • it is otherwise not in the child’s best interests
  • the child or the child’s family does not consent to the independent person’s ongoing involvement in the decision-making process 
  • the DCPL is satisfied the chief executive or an authorised officer has already complied with the requirement in relation to the significant decision.

As the Child Protection Act 1999 requires that Child Safety must be satisfied of a person’s suitability before they can be an independent person, when the DCPL is arranging for an independent person to help facilitate a child and family’s participation in a decision, the DCPL will seek advice from the senior team leader, about the person’s suitability. 

When determining a nominated person’s suitability at the request of the DCPL, the senior team leader will gather information about the person nominated and the specific decision from:

  • the DCPL
  • the person nominated to be an independent person
  • the child and family.

Once suitability has been determined, in line with the process in Determine suitability, the senior team leader will:

  • tell the DCPL the outcome
  • make sure details of the request and suitability of the person are recorded in the Independent person form in ICMS.

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