Legislation

The Best Interests of the child aim to keep the child in a safe and protected space that promotes their personal and cultural development.

1. For the purposes of this Act the best interests of the child must always be paramount.
2. When determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered.
3. In addition to sub-sections (1) and (2), in determining what decision to make or action to take in the best interests of the child, consideration must be given to the following, where they are relevant to the decision or action—
   • (a) the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;
   • (b) the need to strengthen, preserve and promote positive relationships between the child and the child's parent, family members and persons significant to the child; 
   • (c) the need, in relation to an Aboriginal child, to protect and promote his or her Aboriginal cultural and spiritual identity and development by, wherever possible, maintaining and building their connections to their Aboriginal family and community;
   • (d) the child's views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;
   • (e) the effects of cumulative patterns of harm on a child's safety and development;
   • (f) the desirability of continuity and stability in the child's care;
   • (g) that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child;
   • (h) if the child is to be removed from the care of his or her parent, that consideration is to be given first to the child being placed with an appropriate family member or other appropriate person significant to the child, before any other placement option is considered;
   • (i) the desirability, when a child is removed from the care of his or her parent, to plan the reunification of the child with his or her parent;
   • (j) the capacity of each parent or other adult relative or potential care giver to provide for the child's needs and any action taken by the parent to give effect to the goals set out in the case plan relating to the child;
   • (k) access arrangements between the child and the child's parents, siblings, family members and other persons significant to the child;
   • (l) the child's social, individual and cultural identity and religious faith (if any) and the child's age, maturity, sex and sexual identity;
   • (m) where a child with a particular cultural identity is placed in out of home care with a care giver who is not a member of that cultural community, the desirability of the child retaining a connection with their culture;
   • (n) the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities;
   • (o) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
   • (p) the possible harmful effect of delay in making the decision or taking the action;
   • (q) the desirability of siblings being placed together when they are placed in out of home care;
   • (r) any other relevant consideration.

The child, their family and all those involved with the child's care need to work together in deciding what actions to take to continue the child's Cultural and personal growth. The decision-making process needs to be fair and open, and the decisions made need to be agreed upon by all those involved.

In making a decision or taking an action in relation to a child, the Secretary or a community service must also give consideration to the following principles—

• (a) the child's parent should be assisted and supported in reaching decisions and taking actions to promote the child's safety and wellbeing;
• (b) where a child is placed in out of home care, the child's care giver should be consulted as part of the decision-making process and given an opportunity to contribute to the process;
• (c) the decision-making process should be fair and transparent;
• (d) the views of all persons who are directly involved in the decision should be taken into account;
• (e) decisions are to be reached by collaboration and consensus, wherever practicable;
• (f) the child and all relevant family members (except if their participation would be detrimental to the safety or wellbeing of the child) should be encouraged and given adequate opportunity to participate fully in the decision-making process;
• (g) the decision-making process should be conducted in such a way that the persons involved are able to participate in and understand the process, including any meetings that are held and decisions that are made;
• (h) persons involved in the decision-making process should be—
  • (i) provided with sufficient information, in a language and by a method that they can understand, and through an interpreter if necessary, to allow them to participate fully in the process; and
  • (ii) given a copy of any proposed case plan and sufficient notice of any meeting proposed to be held; and
  • (iii) provided with the opportunity to involve other persons to assist them to participate fully in the process; and
• (i) if the child has a particular cultural identity, a member of the appropriate cultural community who is chosen or agreed to by the child or by his or her parent should be permitted to attend meetings held as part of the decision-making process.

In cases that involve an Aboriginal child, extra thought needs to be given to the Cultural needs of the child. This is done by including Aboriginal community members and respected persons close to the child in all conversations relating to the child's future.

In recognition of the principle of Aboriginal self-management and self-determination, in making a decision or taking an action in relation to an Aboriginal child, the Secretary or a community service must also give consideration to the following principles-

• (a) in making a decision or taking an action in relation to an Aboriginal child, an opportunity should be given, where relevant, to members of the Aboriginal community to which the child belongs and other respected Aboriginal persons to contribute their views;
• (b) a decision in relation to an Aboriginal child, should involve a meeting convened by an Aboriginal convener who has been approved by an Aboriginal agency and, wherever possible, attended by—
  • (i) the child; and
  • (ii) the child's parent; and
  • (iii) members of the extended family of the child; and
  • (iv) other appropriate members of the Aboriginal community as determined by the child's parent;
• (c) in making a decision to place an Aboriginal child in out of home care, an Aboriginal agency must first be consulted and the Aboriginal Child Placement Principle must be applied.

When an Aboriginal child needs to be placed in out-of-home care, advice needs to be taken from a relevant Aboriginal Child Specialist Advice and Support Service (ACSASS). The placement principle states that where possible, an Aboriginal child should be placed with their family or relatives. If this isn't possible and the child needs to be placed with a non-Aboriginal family, measures need to be taken to ensure that the child is still connected to their Culture and Community.

1. For the purposes of this Act the Aboriginal Child Placement Principle is that if it is in the best interests of an Aboriginal child to be placed in out of home care, in making that placement, regard must be had—
   • (a) to the advice of the relevant Aboriginal agency; and
   • (b) to the criteria in sub-section (2); and
   • (c) to the principles in section 14.
2. The criteria are—
   • (a) as a priority, wherever possible, the child must be placed within the Aboriginal extended family or relatives and where this isnot possible other extended family or relatives;
   • (b) if, after consultation with the relevant Aboriginal agency, placement with extended family or relatives is not feasible or possible, the child may be placed with—
     • (i) an Aboriginal family from the local community and within close geographical proximity to the child's natural family;
     • (ii) an Aboriginal family from another Aboriginal community;
     • (iii) as a last resort, a non-Aboriginal family living in close proximity to the child's natural family;
   • (c) any non-Aboriginal placement must ensure the maintenance of the child's culture and identity through contact with the child's community.

An Aboriginal child needs to maintain connection and communication to their Aboriginal family and community members. The child should also have the opportunity to develop and further their Cultural knowledge.

Self-identification and expressed wishes of child

1. In determining where a child is to be placed, account is to be taken of whether the child identifies as Aboriginal and the expressed wishes of the child.
   
   Child with parents from different Aboriginal communities
2. If a child has parents from different Aboriginal communities, the order of placement set out in sections 13(2)(b)(i) and 13(2)(b)(ii) applies but consideration should also be given to the child's own sense of belonging.
3. If a child with parents from different Aboriginal communities is placed with one parent's family or community, arrangements must be made to ensure that the child has the opportunity for continuing contact with his or her other parent's family, community and culture.
   
   Child with one Aboriginal parent and one non-Aboriginal parent
4. If a child has one Aboriginal parent and one non-Aboriginal parent, the child must be placed with the parent with whom it is in the best interests of the child to be placed.
   
   Placement of child in care of a non-Aboriginal person
5. If an Aboriginal child is placed with a person who is not within an Aboriginal family or community, arrangements must be made to ensure that the child has the opportunity for continuing contact with his or her Aboriginal family, community and culture.

An Aboriginal child in out-of-home care must have a Cultural Plan prepared for them which allows them to maintain and develop their own Aboriginal identity and their connection to their Community and Culture.

1. The Secretary must prepare a cultural plan for each Aboriginal child placed in out of home care under a guardianship to Secretary order or longterm guardianship to Secretary order.
2. A cultural plan must set out how the Aboriginal child placed in out of home care is to remain connected to his or her Aboriginal community and to his or her Aboriginal culture.
3. For the purposes of sub-section (2), a child's Aboriginal community is—
   (a) the Aboriginal community to which the child has a sense of belonging, if this can be ascertained by the Secretary; or
   (b) if paragraph (a) does not apply, the Aboriginal community in which the child has primarily lived; or
   (c) if paragraphs (a) and (b) do not apply, the Aboriginal community of the child's parent or grandparent.
4. The Secretary must monitor compliance by the carer of a child with the cultural plan prepared for a child.

The Department of Health and Human Services has transferred decision-making powers for an Aboriginal Child on a Children's Court Protection Order to the Aboriginal CEO of an Aboriginal Organisation (VACCA). This is to support self-determination within the Aboriginal Community so that the child's cultural needs are better served.

1. The Secretary may in writing authorise the principal officer of an Aboriginal agency to perform specified functions and exercise specified powers conferred on the Secretary by or under this Act in relation to a protection order in respect of an Aboriginal child.
2. An authorisation under this section may only be made with the agreement of the Aboriginal agency and the principal officer.
3. The principal officer may only be authorised if he or she is an Aboriginal person.
4. Before giving an authorisation, the Secretary must have regard to any view expressed by the child and the parent of the child if those views can be reasonably obtained.
5. On an authorisation being given, this Act applies in relation to the performance of the specified function or the exercise of the specified power as if the principal officer were the Secretary.
6. The Secretary may at any time in writing revoke an authorisation under this section and on that revocation the Secretary may continue and complete any action commenced under the authorisation by the principal officer.

If an Aboriginal child is required to be placed within the care of non-Aboriginal people, then certain conditions and requirements will need to be met to make sure that the child's safety and cultural needs are met.

The Court must not make a permanent care order to place an Aboriginal child solely with a non-Aboriginal person or persons unless:

• (a) the disposition report states that—
  • (i) no suitable placement can be found with an Aboriginal person or persons; and
  • (ii) the decision to seek the order has been made in consultation with the child, where appropriate; and
  • (iii) the Secretary is satisfied that the order sought will accord with the Aboriginal Child Placement Principle; and
• (b) the Court has received a report from an Aboriginal agency that recommends the making of the order; and
• (c) if the Court so requires, a cultural plan has been prepared for the child.