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  3. 10. General
  4. 10.1 Decision-making about Aboriginal and Torres Strait Islander children
  5. Key steps
  6. 2. Arrange for an independent person to facilitate the child's and family's participation

2. Arrange for an independent person to facilitate the child's and family's participation

The Child Protection Act 1999, also 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
  • 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.

Where 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.

Where cultural advice is required to inform decision-making, planning or case work at any point from the decision to record a notification for an Aboriginal or Torres Strait Islander child, 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)
  • Child Safety staff who are able to provide cultural advice
  • a local Aboriginal or Torres Strait Islander community representative (when consulting in relation to investigation and assessment planning - only non-identifying information about the child and family will be shared).

For further information about working with a child and family to arrange an independent person, refer to the practice resource: Working with an independent person.  For further information about Child Safety staff working in a culturally capable way, refer to the practice resource: Culturally capable behaviours (PDF, 412 KB) Culturally capable behaviours (DOCX, 50 KB).

2.1 Determine whether 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.

Child Safety staff will consider the following as key ‘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 Director of Child Protection Litigation (DCPL)
  • a decision about where or with whom a child will live - for children 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 prior to the birth of an Aboriginal or Torres Strait Islander child.

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 judgment and knowledge of the child’s circumstances to determine what decisions are significant for a child and respond accordingly.

For ease of reference, a poster for CSSC staff has been developed which lists significant decisions and how to record the ‘Independent entity’ form in ICMS. Refer to Information for staff: Significant decisions about Aboriginal and Torres Strait Islander children and young people (PDF, 237 KB). For further information about the ‘Independent entity’ form refer 2.3.Complete the independent entity form.

Other decisions

In addition to facilitating participation in decisions defined as ‘significant’, the child or the child’s family may choose to have an independent person facilitate the child and family’s participation in any decision under the Child Protection Act 1999 where they consider it would help them participate in the decision making process.

Also, a pregnant woman and the unborn child’s family may have an independent person help facilitate their participation in an investigation and assessment prior to the birth of an Aboriginal or Torres Strait Islander child, refer to What if a matter involves an Aboriginal or Torres Strait islander unborn child?

For further information about the legislative requirements that impact on working with Aboriginal and Torres Strait Islander children and families, refer to the practice resource: Legislative provisions in relation to Aboriginal and Torres Strait Islander children (PDF, 683 KB).

2.2 Make arrangments 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 independent person must either:

  • provide services to Aboriginal or Torres Strait Islander persons (this could include an entity funded by the department) 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, and
    • is a suitable person for associating on a daily basis with the child, and
    • has appropriate authority to speak about Aboriginal or Torres Strait Islander culture in relation to the child or the child’s family, and
    • is not an officer or employee of Child Safety.

Child Safety must also be satisfied that they are a suitable person to be an independent person.

As children and families are the best source of information regarding their own kin and community, where a child and family nominates an individual to be an independent person, Child Safety will be informed about whether the individual is an Aboriginal or Torres Strait Islander person by the child, family and the individual. In certain circumstances, a non-Aboriginal or Torres Strait Islander person may meet the criteria for being an independent person – refer to What if the child and family want an individual who is not Aboriginal or Torres Strait Islander to be their independent person?

In addition, Child Safety will be satisfied that the following criteria has been met, when the child, family and the person nominated advise that they are satisfied it has been met:

  • 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

For ease of reference, a poster for CSSC staff outlining who can be an independent person has been developed. Refer to Information for staff: Who can be an independent person for an Aboriginal and Torres Strait Islander child and/or family? (PDF, 155 KB) 

Consult the child and family

The steps outlined below will assist workers to meet the obligation to arrange an independent person, in consultation and with the consent of the child and their family, each time a significant decision is to be made.

When making a significant decision for a child, advise the child and their parents:

  • of their right to have an independent person 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, when parents are from different community or language groups, or where there is family conflict
  • that they have the right to choose not to have an independent person to help facilitate their participation in decision-making, including if they change their mind once the decision-making process has commenced
  • 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 – provide assistance in contacting the community organisation, where requested
  • about the purpose of the role – refer to ‘Discuss the role with the nominated person’ below
  • that a person they choose must meet the criteria for being an independent person - refer to ‘Who may be an independent person’, above
  • how suitability will be determined - refer to ‘Determining suitability’ below
  • of resources available which provide information about being an independent person – refer to brochure Support for children and families to have their say in decisions, YouTube video - Information for families about an independent person, brochure Independent person: Information for Aboriginal and Torres Strait Islander children and young people and additional resources at www.qld.gov.au/independentperson 

When the child and family agree to have an independent person, arrange for the independent person, by:

  • advising the person of the role requirements
  • determining their suitability, and
  • 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 interest.

To ensure the child and family can have an independent person 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. Where the family identifies people in advance, it will enable CSSC staff to contact the nominated people and determine their suitability prior to the child and family requiring their assistance. This aims to maximise flexibility for the child and family and the instances in which their participation in decisions is support by an independent person and negate the need to delay decisions for the purpose of arranging an independent person.

Provide information to the person nominated to be the independent person

When 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. Once 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:

  • the purpose of the independent person’s role being to help the child and family:
    • have their say in decisions
    • feel stronger and supported to say 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 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 purpose 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 agreement of the child or family
  • they do not need experience or knowledge in child protection, as 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 decide to agree, decline or agree to take on the role for some decisions and not others
  • the chief executive’s obligation to consider their suitability to take on the role – refer to ‘Determine suitability’ below
  • that where required, practical assistance may be available to assist the person to participate in decision-making - for example, use of an interpreter and 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 the 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
  • of resources available which provide information about the independent person – refer to brochure Supporting children and families to have their say in decisionsYouTube video - information about being an independent person and additional resources at www.qld.gov.au/independentperson

Determine suitability

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

  • whether the person is someone who can be an independent person, refer to 2.2 Make arrangements for an independent person
  • whether the 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 or family’s participation in decision-making. For example, a conflict would exist where a person who is party to proceedings relating to the child in the Childrens Court or Family Court is to be the child 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 has 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.

A senior team leader will decide a person’s suitability, taking into account the following sources of information:

  • 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: many people have a child protection history - the relevance of the history impacting on someone’s ability to undertake the role of independent person will be determined on a case-by-case basis. It will depend on whether the history relates to a serious matter that is likely to pose a risk of harm to a child in the current circumstances.

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.

When 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. Where the level of concern is not sufficiently reduced, based on information provided by the person, advise them and the child and family that the person is not considered suitable and record the decision and rationale in the ‘Independent entity’ form in ICMS.

Where 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 details for contacting the CSSC Manager.

Before meeting to make the decision about the child

Where the independent person is to help the family to participate in a decision in the future and time allows, formally invite the independent person to the meeting using the Letter to the Independent person template, confirming details of the meeting, as agreed with the family and independent person, including the purpose of the meeting and a reminder of the role of an independent person and confidentiality requirements.  

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

Following involvement for an independent person

Where an independent person has helped the child or family to participate, talk to the independent person and:

  • acknowledge their contribution to the process
  • remind them of the ongoing confidentiality requirements of their role, in relation to information provided to them verbally and in writing.

In addition, seek feedback from the child and family and the independent person about the decision-making process and, where relevant, future opportunities to enhance the child and family’s meaningful participation in decision-making.

2.3 Complete the independent entity form

For each significant decision regarding an Aboriginal or Torres Strait Islander child, record details of the child and family’s choice to have an independent person help facilitate their participation in the decision, whether a person who was nominated was suitable and whether they participated in the decision-making process, in the ‘Independent entity’ form in ICMS.

In addition, also complete the ‘Independent entity’ form for decisions about an Aboriginal or Torres Strait Islander child that are not considered significant decisions, but where the child or family requested the assistance of an independent person to help facilitate their participation in the decision.

This will include:

  • details of participants in the decision-making process
  • information about whether the child and family agreed or declined the involvement of the independent person in the decision regarding an Aboriginal or Torres Strait Islander child
  • whether each person nominated by the child and family to be the independent person was suitable and if not, the rationale for why they were not considered suitable
  • where 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.

Note: A client profile will not be created for an independent person. Where 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.