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

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 5F, 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
• allows the full participation of the child and the child’s family group
• arranges meetings in a place that is appropriate to Aboriginal tradition or Island custom.

When  making a significant decision about an Aboriginal or Torres Strait Islander child, active efforts must be made to apply the Aboriginal and Torres Strait Islander Child Placement Principle. This requires purposeful, thorough and timely efforts to be made to uphold the child and family’s:  

• right to be brought up within their own family and community (prevention principle)
• right to participate in significant decisions about Aboriginal and Torres Strait Islander children (partnership principle)
• right for a child subject to a child protection care agreement or child protection order granting custody or guardianship to the chief executive to be placed with a member of their family group (placement principle)
• a right to participate, and be enabled to participate in administrative and judicial decision-making processes (participation principle)
• 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 (connection principle).

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 live, when the child is subject to a child protection care agreement, or an order granting custody or guardianship to the chief executive.

An independent  person cannot be involved without the prior consent of child and/or the child’s family, as applicable (Child Protection Act 1999, section 5H). Unless a child and the child’s family have given prior consent, arrangements cannot be made for an independent person to:

• facilitate a child’s participation, or the participation of the child’s family, in a significant decision
• attend a case planning meeting
• participate in the review and preparation of a revised case plan
• participate in a family group meeting 
• attend a court ordered conference related to the child.

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.

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 5G, 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.)

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. Whether  a decision is likely to have a significant impact on a child’s life will depend on the specific circumstances. However, some decisions are significant in all circumstances.

The policy Decisions about Aboriginal and Torres Strait Islander children, requires the following decisions to be considered significant for all Aboriginal or Torres Strait Islander children:

• 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 live—if 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 handout Information for staff: Significant decisions about Aboriginal and Torres Strait Islander children and young people.

Arrangements must be made for an independent person to help facilitate an Aboriginal and Torres Strait Islander child’s participation and the participation of the child’s family in a significant decision, if they consent, and in collaboration with them.

Refer to Complete the Independent person form.

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

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

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: 
   • of their right to have an independent person to help them participate in the significant decision
   • that their family may choose to have more than one independent person help facilitate their participation in a decision (for example, if parents are from different community or language groups or there is family conflict)
   • that arrangements can only be made for an independent person to help facilitate their participation in decision making if they consent to the independent person’s involvement. They also have the right to change their mind once the decision-making process has started
   • that someone they nominate to be an independent person for one significant decision may differ from the person they nominate for another significant decision
   • that if they want to have an independent person but do not have someone to nominate, a local Aboriginal or Torres Strait Islander community organisation may be able to help them identify someone. Assist the family to contact the community organisation, if requested
   • that unless  the child or the child’s family has given their consent, arrangements cannot be made for an independent person to
     • facilitate their participation in a significant decision
     •  attend a case planning meeting
     • participate in the review and preparation of a revised case plan
     • participate in a family group meeting 
     • attend a court ordered conference related to the child
   • about the purpose of the role. (Refer to Provide information to the person nominated to be the independent person.)
   • that a person they choose must meet the criteria for being an independent person. (Refer to Who may be an independent person?)
   • how suitability will be determined. (Refer to Determine suitability.)
   • of the resources available to explain the role of an independent person:
     • the brochure What is an independent person?  Information for Aboriginal and Torres Strait Islander families
     • YouTube video Children and families—Support for children and families to have their say in decisions
     • the brochure Independent person - information for children and young people

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.

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 unless  the child or the child’s family has given their consent, they cannot
  • facilitate the child’s participation or the participation of the child’s family in a significant decision
  •  attend a case planning meeting
  • participate in the review and preparation of a revised case plan
  • participate in a family group meeting 
  • attend a court ordered conference related to the child
• 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
  • a local Aboriginal or Torres Strait Islander community agency or other family support service
  • the CSSC (at the discretion of the CSSC manager), if the decision is about a child subject to ongoing intervention. (Refer to Respond to a request for financial assistance for an independent person to attend a meeting.) 
• 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
  • the brochure What is an independent person? Information for Aboriginal and Torres Strait Islander families
  • YouTube video Independent person—Supporting children and families to have their say in decisions
  • the brochure Independent person - information for children and young people.

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 
  • is someone who can be an independent person. (Refer to Make arrangements for an independent person.)
  • poses a risk to children’s safety or to the safety of the particular child
• 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.

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.

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.

Refer the family for family-led decision making 

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.

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.

Facilitation by a Family Participation Program 

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 1999, section 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.

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.

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.

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

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.