Ruska, Keryn; Smith, Katrina; Moynihan, Catherine; Davies, Nicky --- "Recent Legislative Developments in Queensland Child Protection Law Affecting Indigenous Children and Families" [2006] IndigLawB 63; (2006) 6(23) Indigenous Law Bulletin 21

• Recent Legislative Developments in Queensland Child Protection Law Affecting Indigenous Children and Families
• Practice Perspectives

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Recent Legislative Developments in Queensland Child Protection Law Affecting Indigenous Children and Families

by Keryn Ruska, Katrina Smith, Catherine Moynihan and Nicky Davies

In January 2004 the Queensland Crime and Misconduct Commission (‘CMC’) delivered Protecting Children: An Inquiry into Abuse of Children in Foster Care; the result of an extensive inquiry and containing 110 recommendations specifically aimed at reforming the child protection system. The reform process led to the creation of the Department of Child Safety (‘the Department’) – a separate government department with sole responsibility for child protection. A Blueprint was created by the Government, outlining the process for implementing the reforms^[1] which included three stages of legislative change to substantially amend key pieces of legislation in the area, particularly the Child Protection Act 1999 (Qld) (‘the Act’).

As part of the broader reforms each child in care must have a ‘case plan’.^[2] A case plan is a written document which records the reasons for departmental intervention including:

• goals to be achieved;

• arrangements about where the child will live;

• what type of contact they will have with their parents, family group or other persons to whom the child is connected;

• services to be provided to the child and the family; and

• arrangements for maintaining the child’s ethnic and cultural identity.^[3]

Case planning decisions are made at a ‘family group meeting’ attended by the Department, the child’s parents, any legal representative of the child, the child if they are able to participate, members of the child’s family group and anyone else considered likely to make a relevant contribution.^[4]

The Act previously recognised as parents those persons who are considered a parent in Aboriginal tradition and Torres Strait Islander custom.^[5] Legislative amendments have clarified the definition of a child’s family for the purposes of family group meetings and case planning as including extended family, members of their clan or similar group and those people who identify as belonging to the child’s family.^[6]

Case plans for all Aboriginal and Torres Strait Islander children should address their cultural identity, a culturally appropriate placement, contact with significant persons, and the people, supports and activities needed to retain a strong connection to culture.

The Act requires that all consultations, negotiations, family group meetings and other proceedings involving Aboriginal and Torres Strait Islander people be conducted in a way and in a place that is appropriate to Aboriginal tradition or Island custom.^[7]

Departmental decision-making about Aboriginal and Torres Strait Islander children can only be made after consultation with a recognised Aboriginal or Torres Strait Islander agency (which are now known as ‘recognised entities’).^[8] Recognised entities are Aboriginal and Torres Strait Islander organisations or individuals mandated by their communities and approved and funded by the Department to provide cultural and family advice in Indigenous child protection matters. The Department must now give the recognised entity an opportunity to participate in significant decision-making about the child. A significant decision means a decision likely to have a significant impact on a child’s life.^[9]

The Indigenous child placement principl[10] has been amended. This principle previously provided that the Department must give proper consideration to placing Indigenous children, in order of priority, with:

1. a member of the child’s family;

2. a member of

the child’s community or language group;

3. another Aboriginal p

erson or Torres Strait Islander who is compatible with the child’s community or language group; or

4. another Aboriginal person or Torres Strait Isla

nder.

The recent legislative amendments appear to dilute the principle by creating two potential non-Indigenous placement options, being a person:

who lives near the child’s family; or

who lives near the child’s community or language group.^[11]

Before the Department can place a child with a non-Indigenous person it must give proper consideration to whether the person is committed to helping the child:

• maintain contact with the child’s parents and other family members (subject to any limitations the Department may have placed on that contact);

• maintain contact with the child’s community or language group;

• maintain a connection with the child’s Aboriginal or Torres Strait Islander culture;

• preserve and enhance their sense of Aboriginal or Torres Strait Islander identity.^[12]

The revised Act also provides that in the case of an Aboriginal or Torres Strait Islander child, the Department must provide an opportunity for contact as often as is appropriate in the circumstances between the child and appropriate members of the child’s community or language group.^[13]

The stage three amendments codified the notion of ‘kinship carers’. ‘Kin’ is defined as any of the child’s relatives or anyone else who is significant to the child.^[14] This new category of carers now has the same review rights as other departmentally approved carers. They are entitled to apply to the Children Services Tribunal^[15] for review of departmental decisions concerning a decision to remove the child their care^[16] and refusals to approve them as a kinship carer.^[17]

Kinship carers are approved to care for a specific child only^[18] although they can be approved for more than one child at a time.^[19] In practice this means a separate approval is required for each child in a sibling group. Kinship carers are required to renew their approval 12 months after their initial approval as carers and then every two years thereafter.^[20]

To be approved as a kinship carer a person must engage in a Departmental assessment and approval process. The applicant is required to provide details of the membership of their household. They are also required to disclose any criminal, domestic violence and traffic history they have and if they are aware of any such histories related to adult members of their household.^[21] Additionally, kinship carers and any adult members of their household must now obtain a ‘blue card’,^[22] assessed and issued by the Commission for Children and Young People and Child Guardian (‘the Commission’). Adult members of the household are very broadly defined as:

• Someone who lives in the home; or

• Someone who stays overnight in the person’s home at least

- o

nce a week in a month;

- o

nce a fortnight in two consecutive months; or

- o

nce a month in six consecutive months.

Persons with a history of specified serious offences (eg sexual offences against children) are not eligible to be issued with a blue card. In addition, the Commission may request ‘investigative information’ from the Queensland Police Commissioner. Investigative information is defined as information gathered by the Queensland Police Service as part of an investigation into an alleged offence which did not result in the matter proceeding to a charge against a person^[23] either because the complainant died before the charge was brought or was unwilling to proceed, or the complainant’s parent or guardian decided it was not in the complainant’s best interest for the matter to proceed.

In circumstances where the proposed kinship carer or an adult member of their household is ineligible to hold a blue card, the child will not be placed with them.

Once approved as a kinship carer the person must notify the Department of any changes in their personal history (for example criminal, domestic violence and traffic histories), any changes to the configuration of the household and any changes to the carer’s marital status. Carers must also notify the Department if they become aware of or suspect a change in the personal history of a household member. If the kinship carer or adult member of the household becomes ineligible to hold a blue card the authority to care for the child is cancelled and the child must be removed from the household if the ineligible adult member remains.^[24]

Practice Perspectives

A legacy of past government practices of removing Aboriginal and Torres Strait Islander children from their families is the continuing distrust of government welfare agencies and departments by Indigenous people. Indigenous children are overrepresented in the child protection system in Australia. In Queensland, Indigenous children comprised approximately 24.5 per cent of children in out-of-home care as at 31 March 2006.^[25] Indigenous people are often reluctant to become involved in the welfare system as a carer and many Indigenous families prefer to make informal arrangements where possible for the care of children by extended family members. This distrust of the system is one of the reasons for the shortage of Indigenous carers in most jurisdictions in Australia.^[26] However, placing Indigenous children with Indigenous carers and maintaining Indigenous children’s connection to their culture and community is of critical importance. The Bringing Them Home Report clearly demonstrates the devastating impact of removing Indigenous children from their families and communities.^[27]

Recent research on the perspectives of Indigenous young people in care found that the children’s views ‘focused almost exclusively on the importance they placed on connection to family, community and culture’.^[28] This research found consistent themes of reconnection to community and family reunification expressed by the young people surveyed.

Assessment policies and procedures for non-Indigenous placements must be established in consultation with the Indigenous community so that any non-Indigenous carers can be adequately assessed as to their cultural competence generally and their ability to care for the Indigenous child specifically.

Indigenous children are not always identified when they first come to the attention of the Department, particularly when a recognised entity or other Indigenous agency is not involved. This can result in children being placed in a non-Indigenous placement without culturally appropriate options being explored.^[29]

Once it has been established that a child is Indigenous their placement should be assessed to determine whether it is culturally appropriate. In situations where a more suitable and culturally appropriate placement can be identified, a transition plan to the culturally appropriate placement should be implemented.

Information as to a suitable kinship carer is not always sought by the Department at initial Family Group Meetings. Departmental case-workers need to work with recognised entities and the Indigenous family from the outset of Departmental intervention to identify suitable and culturally appropriate placement options.

It is of concern to Indigenous communities that the current Departmental assessment tools are culturally inappropriate and reflect middle-class Anglo-centric parenting values.^[30]

It is concerning that literacy or numeracy difficulties, or a lack of basic documentation required to support applications, such as birth certificates and driving licences can act as a barrier to potential kinship carers even considering applying. These concerns are compounded by the language style of application forms that may not be suited to Indigenous communication styles. Indigenous carers and agencies have reported that police checks are one of the most significant deterrents to Indigenous people becoming carers.^[31] Indigenous people are more likely than non-Indigenous people to have a police record, commonly for minor offences such as public drunkenness or those relating to poverty and often resulting from over-policing or discrimination. Specific assessment processes and policies should be developed for kinship carers in consultation with Indigenous communities.

Opportunities to provide training to kinship carers and to carry out an assessment of the placement are often not available prior to the commencement of the placement. Kinship carers are often ‘recruited’ by the Department when the particular child is already in their care (for example, the carer contacts the Department about a relative’s child for whom they are caring) or when a particular child needs to be placed as a matter of urgency.^[32]

Kinship carers need financial, practical and emotional support. It is critical that the individual support needs of kinship carers are identified as soon as possible by the Department working in conjunction with the recognised entity, and that those support needs are met without delay to maintain a stable placement.

Higgins et al identified that ‘many carers [of Aboriginal and Torres Strait Islander young people] noted a lack of support from the Department’.^[33] Carers reported that the specific types of support they wanted included:

having a carer support worker who had the time to support them and did so in a culturally appropriate way; being adequately financially supported to care for children; being provided with assistance in managing contact with birth families; and being provided with respite when it was needed.^[34]

Carers also identified the provision of services to the children in their care, such as therapeutic intervention, as an essential part of the support that needs to be provided to carers.^[35]

The assessment of potential carers is essential to ensure safe and appropriate placements for Indigenous children. The current assessment process is complex for kinship carers and even the initial application procedure can be a deterrent for prospective Indigenous carers. The Department needs to address these issues by working closely with recognised entities and Indigenous communities to develop suitable assessment procedures and to allow greater flexibility in assessment processes.

Keryn Ruska is an Indigenous woman of the Nunukul people of North Stradbroke Island. Keryn is employed as a law lecturer at Griffith University and has previously worked as a solicitor at the Aboriginal and Torres Strait Islander Women’s Legal and Advocacy Service and the Aboriginal and Torres Strait Islander Commission.

Katrina Smith is the Coordinator of the Child Protection Unit at Legal Aid Queensland.

Catherine Moynihan is the Youth Advocate at Legal Aid Queensland.

Nicky Davies is the Senior Legal Consultant, Family Law, at Legal Aid Queensland.

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^[1] Queensland Government, ‘A Blueprint for Implementing the Recommendations of the January 2004 Crime and Misconduct Commission Report “Protecting Children: An Inquiry into Abuse of Children in Foster Care”’ (2004).

^[2] Child Protection Act 1999 (Qld) s 51C.

^[3] Child Protection Act 1999 (Qld) s 51B.

^[4] Child Protection Act 1999 (Qld) s 51L.

^[5] Child Protection Act 1999 (Qld) s 11.

^[6] Child Protection Act 1999 (Qld) s 51E.

^[7] Child Protection Act 1999 (Qld) s 6.

^[8] Child Protection Act 1999 (Qld) s 6.

^[9] Child Protection Act 1999 (Qld) s 6.

^[10] Child Protection Act 1999 (Qld) s 83.

^[11] Child Protection Act 1999 (Qld) s 83(6)

^[12] Child Protection Act 1999 (Qld) s 83(7).

^[13] Child Protection Act 1999 (Qld) s 88.

^[14] Child Protection Act 1999 (Qld) sch 3.

^[15] The Children Services Tribunal is an administrative body that can review Departmental decisions about approval as a carer, placement and contact about children in care.

^[16] Child Protection Act 1999 (Qld) s 89.

^[17] Child Protection Act 1999 (Qld) s 136.

^[18] Child Protection Act 1999 (Qld) s 133.

^[19] Child Protection Act 1999 (Qld) s 132.

^[20] Child Protection Act 1999 (Qld) s 133(9), s 134(8).

^[21] Child Protection Act 1999 (Qld) s 133.

^[22] Child Protection Act 1999 (Qld) s 135.

^[23] Commission for Children and Young People and Child Guardian Act 2000 (Qld) s 121A.

^[24] Child Protection Act 1999 (Qld) s 139.

^[25] Queensland Government, Department of Child Safety, Distinct Children Subject to Protective Orders <http://www.childsafety.qld.gov.au/infogateway/quarterly/q3/childprot.html#cpo> at 14 November 2006.

^[26] Daryl Higgins, Leah Bromfield, and Nick Richardson , Enhancing Out-of-Home Care for Aboriginal and Torres Strait Islander Young People, (2005) 15.

^[27] Human Rights and Equal Opportunity Commission, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997).

^[28] Higgins et al, above n 26, 11.

^[29] Ibid 25.

^[30] Ibid 27.

^[31] Ibid 28.

^[32] Ibid.

^[33] Ibid 42.

^[34] Ibid 47.

^[35] Ibid.