Identifying Aboriginal and/or Torres Strait Islander children - advice

Introduction

See procedure 1405 Identifying Aboriginal and/or Torres Strait Islander children 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.  

By identifying Aboriginal and/or Torres Strait Islander children early, child protection practitioners contribute to practice that ensures: 

• the child’s cultural rights are upheld 
• culturally appropriate care options are identified 
• Aboriginal-led supports and services are offered and provided to the child early; and  
• legislative obligations (including consultation with ACSASS) under the Children Youth and Families Act 2005 2005 (CYFA) are met. 

There are a number of provisions in the CYFA that relate to Aboriginal children. These are: 

• recognition principles (s. 7E) 
• additional decision making principles (s.12)  
• Aboriginal Child Placement Principle (s. 13) 
• Further principles for placement of Aboriginal child (s. 14) 
• transfer of functions and powers to Aboriginal agencies (s.18),  
• cultural support requirements for Aboriginal child (s.176), and 
• restrictions on making permanent care orders (s.323).  

A child’s Aboriginal and/or Torres Strait Islander status is significant as key considerations are required in regard to self-determination, cultural rights and connections, respect for Aboriginal culture, recognition of strong family foundations and addressing racism and bias in the system. These provisions do not apply to children who are not Aboriginal and/or Torres Strait Islander. 

Why this practice requirement is important? 

Children and young people are entitled to have their culture known, respected and nurtured.  

To get the best outcomes for children, and to promote culturally safe practice, practitioners need to proactively ask about each child’s cultural identity. This promotes the child’s cultural rights and connections and shows respect for the history of each child and their family.  

The CYFA requires that an Aboriginal and/or Torres Strait Islander child’s cultural plan aligns with their case plan. Cultural considerations inform all aspects of case planning and promotes Aboriginal and/or Torres Strait Islander children and young people’s connection to their family, community, culture, language and Country (cultural connections). Focussed attention on cultural plans through care teams and achievement of these plans also fosters positive and healthy identity development. This supports Aboriginal and/or Torres Strait Islander children and young people growing strong in their culture. 

Early identification of Aboriginal and/or Torres Strait Islander children ensures:  

• the right to self-determination is supported through consultation with and provision of advice from ACSASS in relation to all significant decisions from the time a report is first received; 
• there is adherence with additional legislative obligations under the CYFA that promote and uphold the cultural rights of Aboriginal and Torres Strait Islander children and families, as well as right to participate in decisions regarding the child’s safety and well-being (s. 7E(1)(2)(3)(7)); 
• Aboriginal-led services are offered to the child and family as early as possible to provide support to the child and family that is culturally safe (s. 7E(4)); and 
• planning of service provision is based on commitment, accountability and responsibility to Aboriginal people and proper consideration of the views of Aboriginal-led community services (s.7E(6)).  

As soon as a child is identified as Aboriginal and/or Torres Strait Islander, record this in CRIS, and consult with ACSASS. 

Consistent and accurate recording of Aboriginal cultural information on CRIS leads to improved data and service provision. This data is used when planning service and program delivery and in identifying what works well in the provision and delivery of services to Aboriginal children and families and support self-determination in the protection of Aboriginal children. 

Consideration of the recognition principles (s. 7E) must also 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. 

How to ask

With confidence, respect and sensitivity 

Asking each child and parent if they are Aboriginal and/or Torres Strait Islander is of critical importance in protecting the child’s culture and identity.   

Some children and young people may not know that they are Aboriginal and/or Torres Strait Islander and some families may choose not to identify that they are Aboriginal and/or Torres Strait Islander to Child Protection (due to colonisation and the role of the Child Protection system in assimilation). Respect a person’s right to privacy and choice to identify as Aboriginal and/or Torres Strait Islander, or not. 

If you are asking a person directly (such as the child or a parent): ask; 

“Do you identify as Aboriginal and/or Torres Strait Islander? 

If the answer is “Yes”, clarify; 

“Do you identify as Aboriginal or Torres Strait Islander or both? 

If the answer is “No”, clarify; 

“If you feel comfortable to answer, could you please explain to me what is your cultural background or heritage?” 

A simple and clear explanation, advising that this information is asked of all children and families and that the information is used to help support children, should be provided as required. 

Child and family’s privacy

Information collected by Child Protection is governed by the Privacy and Data Protection Act 2014 and the Health Records Act 2001. Information sharing provisions under the CYFA are consistent with this legislation. Information collected by Child Protection must be stored and used appropriately and in accordance with legislation.  

Information that a child is Aboriginal and/or Torres Strait Islander is to be provided to the Children’s Court if a protection application is issued as there are obligations and requirements that a magistrate must consider in making decisions for Aboriginal children under the CYFA. 

Self-Identification

Child protection practitioners are required to ask a reporter if the child is Aboriginal at intake, and to ask a child and family at investigation if they identify themselves as Aboriginal and/or Torres Strait Islander. Child Protection’s recording of this status is based on their response.  

Child Protection accepts self-identification by a child or parent as a sufficient basis for responding to the child as Aboriginal. Child Protection do not need to ‘confirm’ a child’s Aboriginal status. 

This is based on the view that: 

• the Victorian Parliament acknowledges that the Child Protection system played a key role in the dispossession, colonisation and assimilation of Aboriginal people (s. 7A) 
• past government policies have had a detrimental impact on the lives of Aboriginal people and the department endeavours to protect the rights of future generations of Aboriginal people by implementing culturally safe practices. This includes avoiding any action which diminishes, demeans or disempowers the cultural identity and well-being of an individual. 
• past government policies can also make it difficult for some people who identify as Aboriginal through oral history to confirm their Aboriginality in government records. 
• in the context of Child Protection intervention, there is no advantage to be gained by a person identifying as Aboriginal when they are not. 

Although the definition of an Aboriginal person in the CYFA includes additional elements, it has not been the practice for Child Protection to seek evidence that the child is of Aboriginal decent or accepted by community. 

Practitioners are required to discuss each child’s Aboriginal status with the family and to verify the information recorded in CRIS is recorded accurately. Recording details of discussions with the family including the family member/s who provided the information, assists child protection to better understand and support the child. When no family can be located to verify the child's indigenous status, it may not be possible to verify. In this circumstance an ACSASS or Aboriginal service worker may be able to assist Child Protection with this.  

An Aboriginal agency or organisation may inform Child Protection of their opinion or assessment of a child or young person’s Aboriginal status. An Aboriginal organisation may determine that it will not provide a service to the child or their family as a result, and this will be accepted by the department. The Australian Institute of Aboriginal and Torres Strait Islander Studies supports this approach by emphasising that Aboriginal people have the right to determine issues of identity and community through their own processes. To date, if the child or parent continues to self-identify as Aboriginal, and the service meets a statutory obligation, the department finds another way to meet the obligation.  

If a child has been recorded as Aboriginal and/or Torres Strait Islander on CRIS and new information suggests that this is not the case, or the child and family advise that the child is not Aboriginal, formal de-identification on CRIS may need to be considered. Refer to Changing the status of a child from Aboriginal and/or Torres Strait Islander – advice and the Changing the status of a child from Aboriginal and/or Torres Strait Islander – procedure for further information.

Considerations for good practice

Aboriginal communities are often well connected. Liaising with your local ACCO, particularly if they already know the family, may assist you to identify key mentors, significant relationships and facilitate stronger supports and connections for the child.

It is possible that families who have not previously identified as Aboriginal and/or Torres Strait Islander may wish to at a later time and practitioners need to be sensitive and accepting of this.