Changing the status of a child from Aboriginal and/or Torres Strait Islander - advice

2307

This advice provides additional information regarding changing a child’s status from Aboriginal and/or Torres Strait Islander to neither Aboriginal nor Torres Strait Islander. This is referred to as de-identification.
Document ID number 2307, version 5, 1 July 2024.

Introduction

See procedure Changing the status of a child from Aboriginal and/or Torres Strait Islander during intake phase or Changing the status of a child from Aboriginal and/or Torres Strait Islander for tasks that must be undertaken.

Identifying Aboriginal and/or Torres Strait Islander children who are involved with Child Protection in Victoria is a practice requirement. Early identification of Aboriginal and/or Torres Strait Islander children ensures:

a child’s cultural rights are protected and promoted
there is adherence with additional legislative obligations under the CYFA that promote cultural safety and connectedness
Aboriginal-led services are offered to the child and family as early as possible.

There are a number of provisions in the CYFA that relate to Aboriginal children, including:

recognition principles (s.7E)
additional decision making principles (s.12)
Aboriginal Child Placement Principle and Further principles for placement of Aboriginal child (s.13-14)
cultural support (s.176), and
restrictions on making permanent care orders (s. 323).

Changing an Aboriginal and/or Torres Strait Islander child’s status is significant, as these provisions do not apply to children who are not of Aboriginal and/or Torres Strait Islander origin. Culturally specific planning and supports will not be in place and a child’s sense of belonging, cultural identity and cultural rights under the Charter of Human Rights and Responsibilities Act 2006 may be affected.

There may be situations where a child has been recorded as Aboriginal and/or Torres Strait Islander in the ‘Indigenous status’ field in the Client Relationship Information System (CRIS) and a question arises about whether the status is accurate. There are a number of different options that can be selected in CRIS to record a child’s Indigenous status. Specific procedures only need to be followed if a child’s status is being changed from Aboriginal and/or Torres Strait islander to neither Aboriginal nor Torres Strait Islander origin. Any other change in a child’s Indigenous status can occur without following the specified procedure.

Intake Phase

There are particular procedures to follow if the case is in intake phase and consideration is being given to changing a child’s status from one of the Aboriginal and/or Torres Strait Islander origin statuses. Also refer to the De-identification during intake phase only - flow chart.

A child’s Aboriginal and/or Torres Strait Islander status may need to be changed in the intake phase if:

the Aboriginal and/or Torres Strait Islander status was recorded in error
the reporter believes the child is of Aboriginal and/or Torres Strait Islander origin but is not certain
new information is obtained suggesting the child is not of Aboriginal or Torres Strait Islander origin.

Consultation needs to occur with ACSASS in every instance, other than when a child’s status was recorded in error. Consultation with ACSASS is critical to ensure the child protection practitioner receives culturally appropriate advice, adheres to the recognition principles (s. 7E), and informed decisions are made about whether a child’s Aboriginal and/or Torres Strait Islander status should be changed. It is important that any advice to de-identify a child is provided in writing so that the department has a written record of ACSASS’s opinion.

Consideration of the recognition principles (s.7E) must be recorded on CRIS for all key decisions and actions undertaken for Aboriginal children. The ‘Statement of Recognition’ case note category should be used for recording at all points of Child Protection involvement.

The process to be followed in this phase is different so that CRIS changes can be made quickly and efficiently. During the intake phase, the child protection practitioner is unlikely to have had contact with the child and their parents. This means that the child protection practitioner is unlikely to be able to confirm if the child is of Aboriginal and/or Torres Strait Islander origin.

Investigation, protective intervention, protection order and closure phase

A different process is to be followed if de-identification is being considered when the case is in investigation, protective intervention, protection order or closure phase. The process is more rigorous and the decision is made at a high level as it has enduring implications in relation to a child’s cultural rights, their access to services and the applicability of specific legislative requirements. This process ensures a child’s right to culture under section 19 of the Charter of Human Rights and Responsibilities Act 2006 is upheld. Also refer to De-identification during all phases except intake - flow chart.

Discussion with the child (consistent with their age and developmental stage) and the child’s parents will be the first step where any question arises about the child’s Aboriginal and/or Torres Strait Islander origin. The information obtained then needs to be discussed with ACSASS.

It is important that any advice provided by ACSASS to de-identify a child is provided in writing so the department has a written record that can be attached to the brief prepared for the Statewide Principal Practitioner (Aboriginal Children and Families), Office of Professional Practice.

The team manager and child protection practitioner will then consider together information that led to considering de-identification, the views of the child and parents, and of ACSASS.

There may be situations where the parent/s and the child do not identify as being Aboriginal and/or Torres Strait Islander but ACSASS has evidence the child is of Aboriginal and/or Torres Strait Islander origin. In these situations, further work needs to occur such as:

additional consultation with the parent/s
family tracing
an Aboriginal family-led decision making (AFLDM) meeting
consultation with ACCOs.

If there is evidence that a child is not of Aboriginal and/or Torres Strait Islander origin, and de-identification is considered appropriate by child protection and ACSASS, the child protection practitioner will prepare a memo endorsed by the Area Director to the Statewide Principal Practitioner (Aboriginal Children and Families), Office of Professional Practice recommending de-identification, and the team manager will support progression of the memo through the area operations manager/director, Child Protection.

The area director or director Child Protection will then consider whether to endorse the memo. If supporting de-identification, the memo will be endorsed and sent to the Statewide Principal Practitioner (Aboriginal Children and Families), Office of Professional Practice.

The Statewide Principal Practitioner (Aboriginal Children and Families), Office of Professional Practice will have responsibility for making the decision regarding the de-identification of a child as Aboriginal and/or Torres Strait Islander, consistent with their expertise in practice leadership and providing evidence-informed directions and recommendations about Child Protection practice. The views of the Commissioner for Aboriginal Children and Young People are also essential to ensure that issues regarding an Aboriginal and/or Torres Strait Islander child’s safety, wellbeing and culture are considered. The Statewide Principal Practitioner (Aboriginal Children and Families), Office of Professional Practice will consult with the Commissioner for Aboriginal Children and Young People and they will consider together whether the child should be de-identified and reach agreement. However, the final decision will be made and recorded by the Statewide Principal Practitioner (Aboriginal Children and Families), Office of Professional Practice as a delegated officer with authority to exercise the functions, powers and responsibilities of the Secretary under the CYFA. This arrangement also ensures the Commissioner for Aboriginal Children and Young People retains independence from government.

Section 333 of the CYFA allows for the child or the parent to apply to VCAT seeking a review of any decision made by the Secretary concerning the child without a protection order. In this instance, a parent or child can seek a review of the decision made by the Statewide Principal Practitioner (Aboriginal Children and Families, Office of Professional Practice) by:

Applying to VCAT for a review within 28 days of the decision being made, or
Requesting a statement of reasons for the decision from Child Protection in writing, within 28 days after the decision is made. The parent or child may then apply to VCAT within 28 days after being given, or being refused, the statement of reasons by Child Protection if they wish.

See advice Request for, and provision of, a Statement of Reasons and Case planning without a protection order for further information in relation to statements of reasons.

A parent or child can seek internal review of the decision made by the Statewide Principal Practitioner (Aboriginal Children and Families), Office of Professional Practice, under s.331 of the CYFA, following the making of a protection order. A review of this decision will be conducted by a Deputy Secretary, as the decision under review was made at Statewide Principal Practitioner (Aboriginal Children and Families), level. The internal review can be conducted by any Deputy Secretary within the department with the relevant skills, knowledge and expertise regarding the Child Protection program.

If a parent or child still disagrees with the decision, they can then apply to VCAT for a review of the decision, within VCAT timelines (s. 333, CYFA).

Related procedures

Additional information