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:
The Child Protection Act 1999 also provides the following examples of who may be an independent person:
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.
Where 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 it is not a requirement that the person is an Aboriginal or Torres Strait Islander person.
Where a child or family wishes to be supported in decision-making by an individual within their family or community who is not an Aboriginal or Torres Strait Islander person, then the child and family may request that the person still helps them to participate in decision-making processes. In deciding whether they want the person to be involved, the child and family should be advised that the person will not be undertaking the role of independent person as described in the legislation. In this case it may not always be possible for the child and family to have the person involved in the decision. Child Safety will accommodate the request with circumstances decided on a case-by-case basis.
Where financial assistance is required to enable attendance of an independent person at a meeting to discuss a significant decision regarding an Aboriginal or Torres Strait Islander child, the CSSC manager may consider approval of funds through the Child Related Costs – Client support and family contact policy to cover reasonable out-of-pocket expenses for travel, accommodation or meals for an independent person to participate in the decision.
Prior to considering financial assistance, the CSSC manager must be satisfied that the following has occurred:
The Child Protection Act 1999 requires the Director of Child Protection Litigation (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.
However, the DCPL is not required to arrange for an independent person if:
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 Child Safety, through the OCFOS lawyer, about the person’s suitability.
When determining a nominated person’s suitability at the request of DCPL, the senior team leader will gather information about the person nominated and the specific decision from the following people:
Once suitability has been determined using the process outlined in ‘Determine suitability’, the senior team leader will advise the OCFOS lawyer of the outcome and ensure details of the request and suitability of the person are recorded in the ‘Independent entity’ form in ICMS.
Child Safety will arrange for an independent person to help facilitate the participation of a pregnant woman and the unborn child’s family in:
Prior to a child’s birth, the agreement of the pregnant woman is required before arranging:
Record whether an independent person helped facilitate the participation of a pregnant woman and an unborn child’s family in the ‘Independent entity’ form in ICMS, for each of the following:
For further information, refer to, What if the investigation and assessment is for an unborn child? and chapter 7 Support Service Case.
The Child Protection Act 1999 states that the Childrens Court must have regard to Aboriginal tradition and Island custom relating to the child when:
In order to inform itself about Aboriginal tradition and Island custom relating to the child, the court 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 or for Child Safety to arrange, with the child and family’s consent, for an independent person to attend court with the family. However, prior to 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. Although not a requirement, the presence of an independent person at court will:
Where it is the child’s or family’s intention to have an independent person attend court, to be available should the court wish to have regard to their views about Aboriginal tradition and Island custom, include this information and relevant details of the independent person in the affidavit (using the affidavit template developed for Aboriginal and Torres Strait Islander children). 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.
There may also be times when a family wishes to have an independent person support them by providing information to the Childrens Court about Aboriginal tradition or Island custom in relation to the child, but Child Safety has not previously made a decision about the person’s suitability to be an independent person. In these instances, the DCPL will request advice from Child Safety about whether the person is suitable – refer to What if the Director of Child Protection Litigation seeks advice regarding a person’s suitability to be an independent person?
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