What ifs

1. What if the child and family want an individual who is not Aboriginal or Torres Strait Islander to be their independent person?

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.

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.

2. What if financial assistance is required for the independent person to attend a meeting?

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 (PDF)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 use of electronic meeting arrangements such as skype or tele-conferencing has been considered, but are 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 and where requested, the CSO has provided assistance in contacting those agencies, however, assistance was not possible or appropriate in the circumstances.

3. What if the Director of Child Protection Litigation seeks advice regarding a person’s suitability to be an independent person?

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:

  • 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 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:

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

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.

4. What if a matter involves an Aboriginal or Torres Strait Islander unborn child?

Child Safety will arrange for an independent person to help facilitate the participation of a pregnant woman and the unborn child’s family in:

  • an investigation and assessment conducted prior to the birth of an Aboriginal and Torres Strait Islander child
  • a support service case - where a pregnant woman agrees to receive help and support prior to the birth of an Aboriginal or Torres Strait Islander child, to reduce the likelihood of the child being in need of protection after he or she is born. (Child Protection Act 1999, section 21A).

Prior to a child’s birth, the agreement of the pregnant woman is required before arranging:

  • for an independent person to help a pregnant woman participate in an investigation and assessment or support service case
  • for an unborn child’s family to be involved in an investigation and assessment or support service case
  • for an independent person to help facilitate the participation of an unborn child’s family in an investigation and assessment or support service case.

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:

  • the decision about whether the unborn child will be in need of protection after he or she is born
  • the development of a support service plan.

For further information, refer to, What if the investigation and assessment is for an unborn child? and chapter 7 Support Service Case.

5. What if a child or family wants an independent person to 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 in relation to an Aboriginal or Torres Strait Islander child (Child Protection Act 1999, section 6AB)
  • deciding whether to make a permanent care order for an Aboriginal or Torres Strait Islander child (Child Protection Act 1999, section 59A).

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:

  • ensure an independent person is available should the court wish to have regard to their views about Aboriginal tradition and Island custom, and
  • 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.

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?