Rules and Practice Guidance
Includes detail about Aboriginal case management, legal matters, roles, responsibilities and more.
Aboriginal Child Safety
Aboriginal Child Safety seeks to strengthen the capacity and skills of the community to support its vulnerable families by building on the cultural safety net of supports and services for a child who has experienced maltreatment, enabling children to be supported in safe, strong and thriving families and communities. Aboriginal Child Safety approaches focus on restoration and reunification, maintaining important relationships and promoting cultural continuity, as well as ensuring children stay in their communities when it is not possible for them to remain with their parents.
Aboriginal Child Safety encompasses tertiary level supports and interventions focused on child safety, wellbeing and welfare. Importantly, Aboriginal Child Safety is focused on stability for an Aboriginal child through trauma-informed practice and embedded within a culturally rich environment.
Types of supports and services for Aboriginal children and young people away from their parents include but are not limited to:
- restoration services
- all foster and relative/kin care arrangements
- Intensive Therapeutic Care (ITC) and
- leaving care planning and after care.
Key roles and responsibilities
FACS and service providers work to:
- uphold the holistic rights of a child by ensuring that the best interests of the child are properly considered in all decisions and actions affecting them
- safeguard a child’s cultural rights to ensure that they grow up and remain connected to the people most important to them
- ensure a child’s safety, stability and cultural continuity is met
- partner with the child, family and community through Aboriginal Family-led Decision Making processes to identify appropriate family and kinship care arrangements for a child to be safely returned to their family and community in a timely manner
- record relevant data about intake, assessment, actions and outcomes achieved, enabling oversight by FACS and Aboriginal Community Controlled Mechanisms.
FACS is responsible for triaging all risk of significant harm (ROSH) reports through the Child Protection Helpline and Community Services Centres, relating to Aboriginal children and their families and assessing which response is most appropriate.
FACS Caseworkers ensure the following is included in Triage practice:
- Aboriginal children and their families are identified as early as possible so that they can receive culturally appropriate supports and services in a timely manner.
- An Aboriginal child’s identity is accurately and consistently recorded to ensure that their cultural rights are protected and promoted. This is an active and ongoing process for all children, and includes the child (where age and development permits), the parents, family/kin or community members.
- Family finding processes are initiated to identify significant relationships and broader family networks that may be able to support the child and their family.
FACS Caseworkers achieve the above by:
- engaging with Aboriginal communities through Aboriginal Community Controlled Mechanisms to seek guidance and input into triage, assessment and any planned intervention as a response to risk of significant harm
- supporting Aboriginal families to participate in any decision making or actions affecting their children
- enabling Aboriginal communities to have oversight of Aboriginal Child Safety decision making through Aboriginal Community Controlled Mechanisms.
Safety and Risk Assessment
FACS is responsible for conducting a SARA to assess a child or young person’s immediate safety and the risk that a child or young person may experience abuse or neglect in their household in the future. Every effort is made to engage with Aboriginal families and communities and support their participation in these processes in order to make valid assessments of risk and safety with respect to the best interests of their children.
Aboriginal Family-led Decision Making processes continue as part of the child protection response for identifying and addressing safety concerns with the family and decision making if the child is removed from their family.
- engage with Aboriginal communities through established local mechanisms before carrying out the SARA. The consultation includes:
- the nature of the risk/concerns
- discussion of possible actions and alternatives
- family finding processes (identification of family networks to contribute to safety and care, including initial assessment of family placements)
- make proactive efforts to ensure that consultation occurs through Aboriginal Community Controlled Mechanisms
- document reasons for not consulting with an Aboriginal Community Controlled Mechanism when consultation is unable to occur due to immediate safety issues; and ensures Aboriginal Community Controlled Mechanisms are able to participate as early as possible
- visit the child, their parents and family/kin to carry out the SARA; where possible with an Aboriginal Caseworker or Aboriginal Advocate
- verify that the child’s cultural status has been accurately recorded
- make diligent efforts in contacting family/kin and community members to inform decision making of the safety assessment as well as continue with family finding processes.
SARA is a set of Structured Decision Making© (SDM) tools that are used alongside the professional judgement of FACS caseworkers.
- FACS visits a child, their parents and family/kin to carry out a SARA.
- A safety assessment is recorded in ChildStory within two days of the visit. Children are assessed as either being ‘safe’, ‘safe with plan’, or ‘unsafe’ (Note: if ‘safe’ or ‘safe with plan’, see Section 2 – Aboriginal Family Strengthening).
- A risk assessment is completed within 30 days after the safety assessment. A risk assessment helps FACS to assess risk that a child may experience abuse or neglect in future in the home where they live, with risk outcomes of ‘low’, ‘medium’, ‘high’ or ‘very high’. When a child is assessed as at ‘high’ or ‘very high’ risk, they are considered to be in need of care and protection.
- A risk re-assessment occurs every 90 days (or sooner if there is new information that would affect assessment of risk) when the risk is assessed as high or very high. Risk re-assessment helps FACS to re-assess the risk to a child following the parents and family/kin’s participation in case planning and work towards the child’s case plan goal. FACS ceases risk re-assessment when the re-assessed risk has an outcome of ‘low’ or ‘medium’ and where there are no unresolved dangers.
- FACS may carry out a review of the initial safety assessment, if new (ROSH or non-ROSH) information is received that would change the initial safety decision.
When a child is assessed as unsafe in their home, a FACS caseworker moves the child to live with another person (in a place other than their usual home). This may be:
- by agreement as part of a ‘Temporary Care Arrangement’ (section 151) or
- by removal or assumption – when FACS removes a child from their home under section3 43 or 233, or assumes a child from another place (section 44).
Note: a SARA safety assessment results in a safety decision of ‘safe’, ‘safe with a plan’ or ‘unsafe’. If ‘safe’ or ‘safe with plan’, see Aboriginal Family Strengthening.
When completing a SARA and making determinations about the safetyof Aboriginal children and young people,FACS ensures that Aboriginal families and communities (through appropriate Aboriginal Community Controlled Mechanisms) are proactively supported to participate in decision making.
It is essential that Aboriginal families and communities are actively engaged to participate in decisions about Aboriginal children and young people, including placement decisions.
Proactive efforts are made to identify and place Aboriginal children within their family, community and culture, consistent with the Aboriginal Child Placement Principles, in partnership with Aboriginal families and communities, drawing on Aboriginal Family-Led Decision Making processes, Aboriginal Advocates and Aboriginal Community Controlled Mechanisms. Placement of Aboriginal children and young people is outlined below.
FACS completes a closing safety assessment if a safety plan is put in place, or when closing FACS involvement with the child and their family.
FACS and service providers have a responsibility to work together in providing services to children and families, sharing relevant information to ensure valid assessments and support proactive efforts in addressing assessed safety and risk concerns. At each step, participatory approaches that engage Aboriginal children and young people, their families, and their communities are to be followed.
FACS has statutory responsibility for responding to child protection reports (section 30). FACS carries out SARA and where appropriate:
- FACS informs a funded service provider with case management of a new report.
- FACS consults with a funded service provider with current or prior case management, or any other relevant involvement with the child and their family.
- FACS liaises with a funded service provider with case management, when seeking direct contact with a child, their parents and family/kin in order to carry out SARA. FACS informs the funded service provider when making contact is planned, or if that is not possible, immediately after it has occurred.
- Within 10 business days after the conclusion of the safety and risk assessment, FACS provides relevant information to the funded service provider about the outcome of the assessment. See Information Exchange.
If a funded service provider has case management, the provider continues providing services to the child, their parents, family/kin and carer (where applicable) while SARA is ongoing, unless FACS and the funded service provider agree that these services are to cease.
A funded service provider may participate in and assist FACS to carry out SARA, for example:
- by accompanying FACS caseworkers to a home visit or
- by assisting FACS in talking with parents about the ROSH report
- by supporting family/kin to increase safety and reduce risk.
Participating in SARA is not mandatory and occurs:
- by invitation from FACS or request by the funded service provider and
- when FACS and a funded service provider agree it will be beneficial to a child or their family/kin and
- the child or their family/kin agree to the service provider’s participation
- funded service providers do not participate in the exercise of statutory powers of assumption or removal (section 43)
- a funded service provider shares all information relevant to SARA and responds to FACS requests for information exchange.
FACS is required to engage Aboriginal children and young people, their families, and communities (including Aboriginal Community Controlled Organisations) in SARA and other decisions (section 12). The processes by which Aboriginal people participate in such decisions is clearly documented and forms part of case planning. Evidence of participation is provided to Aboriginal Community Controlled Mechanisms when seeking endorsement for case goals and care planning.
Aboriginal Family-led Assessment
Aboriginal Family-Led Assessment is the process of supporting families to identify and clarify the concerns related to the risk assessment and helps the caseworker to prepare for case planning. Caseworkers work through a ‘cultural lens’ and are supported by Aboriginal practitioners where possible. They include the full participation of Aboriginal families, including kin or other significant people, with a focus on gathering and sharing information from the family’s perspective and may be reviewed when circumstances change or at any other time requested by the family. Information gathered during the assessment may include, but is not limited to:
- identification of the concerns or areas of support sought by the family
- understanding related issues that may be contributing to these concerns, including emotional wellbeing, intergenerational trauma and ongoing marginalisation/ disadvantage
- identification of existing formal and informal supports and family strengths, including family/kin and community sources of support, as well as potential supports that might be engaged
- identification of cultural needs and strengths including need for healing supports.
Aboriginal Family-led Decision Making
Aboriginal Case Planning is established through Aboriginal Family-led Decision Making processes. Caseworkers respect that families are experts in their own lives and partner with the whole family to enable meaningful participation in assessment, case planning and review, including identification of goals and priorities, existing and required supports and action plans to achieve goals and address risks. Families are supported by independent Aboriginal Community Facilitators to fully participate in Aboriginal Family-led Decision Making processes.
Aboriginal Case Planning – Safety, Stability and Cultural Continuity
Aboriginal Case Planning is the case management practice of meeting an Aboriginal child’s need for safety, stability and cultural continuity with a focus on permanency – ensuring that proactive efforts have been made to achieve restoration or reunification prior to taking any other action. Case plans are completed within 30 days of entering care of the Secretary of FACS or statutory OOHC.
Families are supported in case planning by Aboriginal Community Facilitators through Aboriginal Family-led Decision Making processes ensuring that goals are:
- Specific – clearly articulated goals tailored to the needs and circumstances of each family
- Measurable – include clear indicators to observe change and identify when goals have been achieved
- Achievable – include a clear action plan for achieving the goals
- Realistic – identify the supports and resources needed to undertake the actions and are clearly linked to the identified risks
- Timely – timeframes are determined based on understanding the needs and strengths of the child, parents, family/kin and the availability of resources.
- engage pro-active efforts to actively support and strengthen families
- promote and support a child’s continuing connection to family (including siblings), culture and community
- apply and demonstrate adherence to the Aboriginal Child Placement Principles
- focus on healing individuals, families and communities through their own services and supports designed and delivered by local Aboriginal communities
- engage Aboriginal Community Controlled Mechanisms.
Once approved by the court, FACS provides the service provider with a copy of the sealed care plan, to be placed on the child’s file. Service providers are responsible for implementing those parts of the care plan that are within its responsibility. Care planning includes how the cultural rights of Aboriginal children and young people are upheld (see Cultural Planning).
Case plans are reviewed 6 monthly (restoration and other permanent care orders) and 12 monthly (long-term care) with the child’s family/kin, caregivers, and significant others, named in the plan through Aboriginal Family-led Decision Making processes. Aboriginal children are encouraged and assisted to participate in case plan decisions that affect them (as developmentally appropriate), with their views given due weight.
Placement Decision Making
The placement of an Aboriginal child is made in accordance with the Aboriginal Child Placement Principles (prevention, partnership, placement, participation, connection), including in particular the placement hierarchy established by the Care Act (section 13). This is applied when considering temporary care arrangements (section 151), removal (section 43 or 233), or assumption (section 44).
An Aboriginal child cannot be placed outside of family/kin unless:
- placement with family/kin represents a significant risk of harm
- there is clear and convincing evidence that all proactive efforts have been made to identify suitable family/kin
- all placement options have been exhausted in order of the placement hierarchy (section 13) and clearly documented
- the placement has been endorsed through the local Aboriginal Community Controlled Mechanism.
Aboriginal children are placed with their sibling/s in accordance with the Aboriginal Child Placement Principles. Caseworkers engage active efforts to keep siblings together and maintain and strengthen sibling relationships.
Irrespective of the type of order (including interim, final care, or guardianship orders), case management of Aboriginal children and young people is to be delivered by an accredited Aboriginal Community Controlled Organisation. Where this is not possible, the following steps are followed:
- Case management allocated to an accredited non-Aboriginal service provider on the approved register of non-Aboriginal partner organisations maintained by AbSec. Such organisations have a stated ongoing commitment to case management by Aboriginal Community Controlled Organisations and demonstrated evidence of supporting actions to achieve this goal.
- Any allocation of case management of an Aboriginal child to a non-Aboriginal service provider is notified to the relevant local Aboriginal Community Controlled Mechanism and AbSec through quarterly dashboard reporting and local partnership arrangements.
- Development of a timely strategy to transition case management to an accredited Aboriginal Community Controlled Organisation is established as part of case planning, in partnership with and with oversight from the local Aboriginal Community Controlled Mechanisms and AbSec.
Preserving an Aboriginal child’s relationships and connections
Permanency support services for a child in statutory care are provided to preserve and enhance a child’s relationship and connectedness with their parents, siblings and family/kin. Service providers support a child to maintain these connections, and to renew or build new connections through regular family contact wherever possible and appropriate.
In maintaining a child’s sense of identity and connection with their family, community and culture, service providers and carers:
- make sure that family visits are well planned, flexible and a positive experience for a child where possible
- understand that maintaining these connections assists with restoration and family reunification and strengthens a child’s sense of belonging, stability and cultural continuity
- comply with standards set by the Office of the Children’s Guardian
- seek to provide a child with culturally and family-based experiences where they are able to interact with their parents, family and kin in familiar and natural environments
- utilise Aboriginal workers to supervise family visits where necessary At times, carers may be required to supervise or participate in family visits with a child (where assessed as culturally appropriate and safe to do so).
Cultural planning is required to ensure Aboriginal children’s cultural rights, identity, language and cultural ties are preserved, safeguarded and promoted. There are two complementary elements to cultural planning:
- the Cultural Care Plan and
- the Cultural Support Plan.
The Cultural Care Plan is a section within the overall care plan, prepared by FACS and presented to the Children’s Court. It outlines critical information on the cultural identity of the child or young person, their family, community and Country, as well as identifying key community people in the child’s life. The Cultural Care Plan notes how the cultural needs of the child or young person will be met while in care arrangements away from their parents.
The Cultural Support Plan builds on the Cultural Care Plan, providing evidence and actions for how a child’s cultural connections and relationships will be maintained and strengthened in an active, ongoing way. It includes specific, age appropriate strategies for developing and maintaining a positive sense of identity and belonging.
Caseworkers engage early with accredited or recognised Aboriginal Community Controlled Organisations in the development and endorsement of cultural planning, as well as implementation through community controlled cultural activities and services.
Accredited and recognised Aboriginal Community Controlled Organisations have an important role in in maintaining connection family, community and culture for Aboriginal children and young people in statutory care. They are cultural experts having experience and history with families and serve their local communities through advocacy and leadership.
Cultural plans are:
- developed within 30 days of the child entering statutory care
- developed with the child or young person, their family, extended family, kin, caregivers and community, with endorsement by recognised or accredited Aboriginal Community Controlled Organisations
- guided by culturally experienced caseworkers
- implemented with the support of recognised or accredited Aboriginal Community Controlled Organisations
- reviewed at each case plan review.
- initiate cultural planning as soon as possible by gathering relevant cultural information in preparation for developing the cultural support plan
- develop Cultural Care Plans and Cultural Support Plans through Aboriginal Family-led Decision Making processes and partner with the child (where age and development permits), their family and kin to provide meaningful strategies; plans are led and driven by the family
- communicate information sensitively and respectfully, acknowledging that a child’s family may already be meeting a child’s cultural needs as they did prior to the intervention
- make arrangements for cultural connections and experiences through participation in cultural activities, events and programs, to preserve the child’s identity and connection to their family, community and culture; these arrangements are led and driven by the family
- engage recognised or accredited Aboriginal Community Controlled Organisations to support the development, endorsement and implementation of cultural support plans as a key service for Aboriginal children and young people in statutory care
- support the carer to implement the cultural supports that facilitate family and community connections.
Carers support a child’s Cultural Support Plan by building strong partnerships with the child’s Aboriginal family and community to make sure the child is supported to build and maintain connections with them and their culture.
Service providers may seek additional supports through Aboriginal Community Controlled Mechanisms, including but not limited to:
- how to effectively engage with Aboriginal families and communities
- expert advice on cultural matters affecting the child, family and community
- family finding and family research supports, including genealogy
- work alongside caseworkers to help develop and implement the cultural support plan.
Case planning for Siblings
Case planning for a child’s sibling relationships is considered throughout all case planning processes, as part of participatory Aboriginal Family Led Decision Making processes and case planning in partnership with Aboriginal families and communities. Through proactive engagement with the child’s family and community, sibling relationships can be identified and supported in a timely way. Participatory, Aboriginal family led approaches also support the co-placement or planning of ongoing contact between siblings, the alignment of case plan goals (where appropriate), and promote continuity in casework across siblings.
Sibling case planning is an immediate priority – it does not wait until a future case review. Delay to sibling case planning risks a child experiencing extended periods of isolation from their siblings.
Where siblings are assumed into care, every effort is made to place siblings together and with family and community, consistent with the placement hierarchy of the Aboriginal Child Placement Principle (section 13). Aboriginal sibling groups are case managed by an accredited Aboriginal Community Controlled Organisation wherever possible.
Co-placement and co-location of siblings
When a child and their siblings are in different placements, FACS and/or funded service providers (whichever has case management), consider how the children may be co-placed and co-located where assessed to be in their best interests:
- Sibling co-placement involves the placement of a child and their siblings in the same residential setting under the care of the same carer.
- It includes partial co-placement where as many of the siblings as possible are co-placed, resulting in an overall reduction in the number of placements across the sibling group.
Sibling co-location involves placement of a child and their siblings (in two or more placements) in the same geographical area which results in substantially increased opportunities for contact with each-other, for example, allowing them to attend the same school or child care centre, or participate in the same extracurricular activities.
When a child and their siblings are placed separately subject to assessment, FACS and/or funded service providers (whichever has case management), ensure siblings:
- have regular sibling contact with each other – that is, the sibling bond is nurtured and does not necessarily need to be tied to ‘family time’ with parents or other extended family members
- are provided with information about their respective care arrangements, including information about changes in their placement
- are provided with information about their siblings’ birthdays and other relevant dates, and where practical, have sibling contact time to celebrate these occasions
- are provided with their siblings’ contact details, including their telephone number and email address, unless there is a court order prohibiting the disclosure of this information, or when a caseworker considers that disclosing this information could place the child or others in the household at risk of harm.
Caseworkers demonstrate the steps they have taken to address the identified risks that underlie the decision to remove Aboriginal children from their family, including:
- ensuring that due diligence is given to the attention of an Aboriginal child or young person’s individual situation and is tailored to their needs and their family’s needs
- conducting comprehensive Aboriginal family-led assessments, including early family finding and family network mapping, with a focus on preservation and restoration as the primary case plan goal
- identifying culturally appropriate informal and formal supports in collaboration with Aboriginal families throughout the decision making and goal making process with the primary goal to support Aboriginal children and young people to remain safe at home or with family/kin
- actively supporting families to overcome barriers to access identified supports
- conducting a diligent search in finding a child’s family/kin ensuring that consultation has occurred with significant family members to provide family structure and support for the child and parent/s
- identifying and notifying the child’s community through Aboriginal Community Controlled Mechanisms, to participate in decision making
- actively supporting parents, families and kin through the steps of the case plan, ensuring that they are provided culturally responsive supports with a focus on preservation and restoration as the primary goal
- offering and providing culturally appropriate family preservation and restoration strategies, including healing and trauma informed therapeutic supports
- supporting regular and ongoing family visits with parent/s, siblings and kin in the most natural setting possible, as well as in-home visits, consistent with the need to ensure the safety and wellbeing of the child
- seeking out natural helping resources at a local level including family/kin and the community
- taking steps to meet proactive efforts are properly documented and aligned to the above guidance points.
Permanency Support Services
FACS determines which permanency support services a child, their parents, family/kin receive, based on:
- the outcome of the SARA, and any risk re-assessment
- the case plan goal and action plan as identified with the family through Aboriginal Family-led Decision Making processes.
Given the significant impact of this decision on Aboriginal children and families, oversight is provided by Aboriginal Community Controlled Mechanisms. In this way, Aboriginal Community Controlled Mechanisms:
- ensure that families have been properly supported to participate fully in decision making processes
- ensure the proposed plan represents the best interests of Aboriginal children and young people
- ensure case plan goals are developed by Aboriginal children and young people and their families through Aboriginal Family-led Decision Making processes and
- provide community oversight and endorsement of :
- the case plan, particularly where it includes transfer of parental responsibility and
- reviews of the case plan, actions and achievement.
Service providers coordinate the provision of permanency support services as part of a case plan that actively supports parents, family/kin and carers to achieve the child’s case plan goal. FACS and the service provider closely monitor progress toward achieving the child’s case plan goal.
Permanency Coordinators work collaboratively with service providers to identify, allocate and access appropriate packages and culturally appropriate services to meet case plan goals, they also facilitate exits from OOHC. Support packages are reviewed with service providers every 6 months to ensure that children and families achieve the permanency case plan goal.
Transfer of case management responsibility occurs through existing referral pathways during the FACS transitional period. Refer to Other case management functions – case management transfer.
Permanency support services are targeted services that include:
- Family/kin preservation services – casework services that enable a child identified as being at risk of significant harm to live safely at home, actively supporting their parents and family/kin to address the risks identified, build capacity and access formal and informal supports to safely support their child’s development and well-being.
These services are referred through Aboriginal Family Strengthening.
- Restoration services – casework services that help parents, family/kin, carers and other significant people achieve the safe restoration of a child to their parent/s through the provision of active supports to address identified risks.
- Aboriginal Guardianship services – engages the child, their parent/s, family/kin, in exploring family and kinship care arrangements and assess the suitability of a proposed family member where parents have been unable to make the changes necessary despite the active efforts of tailored supports. Carers demonstrate that the child’s cultural rights and relationship with their parents, family and community are safeguarded, with supports and monitoring provided by accredited Aboriginal agencies ensuring ongoing supports and connection.
- Long term care – aims to provide culturally embedded care where proactive efforts have not been successful in achieving restoration. Long term care providers maintain standards for accreditation, including demonstrating how important connections to family, community, culture and Country are being maintained.
Note on Adoption
It is acknowledged that adoption of Aboriginal children and young people through the statutory system remains a contested area of policy.
AbSec does not support the adoption of Aboriginal children through the existing processes of the statutory child protection system in NSW, and is of the firm belief that the safety, welfare and wellbeing of Aboriginal children can be achieved without severing their connection to family, community and culture.
This reflects the overwhelming view of Aboriginal individuals and community controlled organisations consulted, and the evidence regarding the impact of past practices on Aboriginal peoples, and Indigenous peoples internationally.
AbSec advocates for the provision of meaningful safeguards to ensure that all Aboriginal children and young people placed through the statutory system are safe and are supported to enjoy their rights in full, including their cultural and identity rights, with mechanisms for the periodic review of their placement and treatment.
Critically, Aboriginal communities themselves must be empowered to administer these systems, consistent with the findings and recommendations of Bringing Them Home. This is not consistent with the current provision of adoption orders.
In AbSec’s view, and the consensus view of Aboriginal Community Controlled Organisations consulted, orders that sever Aboriginal children from their family/kin, community and culture are not considered to be in the best interests of Aboriginal children and young people. Imposing adoption on Aboriginal communities through non-Aboriginal mechanisms is not consistent with the principle and statutory obligation regarding self-determination, and is in breach of the rights of Aboriginal peoples.
The NSW Government position is that open adoption is a permanency option for Aboriginal children within the legislated parameters provided. Legislated permanent placement principles (section 10A) of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) provide for adoption as the last preference for Aboriginal children, when other preferences are assessed as ‘not practicable or in the best interests of the Aboriginal child’.
Where adoption is considered, the NSW Adoption Act 2000 makes specific provisions that address the needs of Aboriginal children, families and communities. The Adoption Act (Division 2, section 36) states ‘An Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child’.
Prior to proceeding with the adoption of an Aboriginal Child, the child’s extended family must be consulted and their views and wishes considered. Placement for adoption must also be made in consultation with a local, community-based and relevant Aboriginal organisation, and adheres to the placement hierarchy of the Aboriginal Child Placement Principle.
FACS acknowledges that such discussions must be sensitively conducted and acknowledge the trauma that many Aboriginal families have suffered as a result of systemic injustices.
Care arrangements for Aboriginal children and young people away from their parents
Care arrangements for Aboriginal children and young people away from their parents is provided by accredited service providers who deliver OOHC services to Aboriginal children and their families/kin. The primary case plan goal may be set as restoration, family/kin reunification, long term OOHC or Aboriginal Guardianship. Given the significant impact of such decisions, this goal is established through Aboriginal Family-led Decision Making processes, supported by Aboriginal Community Facilitators and family supports, with oversight and endorsement through Aboriginal Community Controlled Mechanisms.
Caseworkers ensure that a child is:
- placed in accordance with the placement hierarchy of the Aboriginal Child Placement Principles (section 13)
- placed with their siblings and on Country where possible
- pro-actively supported to achieve restoration and reunification to their family/kin with appropriate step down supports
- supported to participate in Aboriginal Family-led Decision Making processes with their parents, family and kin
- safely supported in culturally rich environments
- supported by recognised and accredited Aboriginal Community Controlled Organisations
- supported to achieve safety, stability and cultural continuity, and to meet permanency goals within two years
FACS and service providers ensure:
- culturally responsive case management practice and service responses
- a child is placed with an accredited Aboriginal Community Controlled Organisation where capacity exists.
If not, case management is allocated to an accredited non-Aboriginal service provider on the approved register of non-Aboriginal partner organisations maintained by AbSec. Such organisations have a stated ongoing commitment to case management by Aboriginal Community Controlled Organisations and demonstrated evidence of supporting actions to achieve this goal.
- a child and their carer are supported to transition to a recognised and accredited Aboriginal Community Controlled Organisation where capacity exists
- that Aboriginal children are actively supported to enjoy all of their rights, regardless of the type of order or permanency goal, delivered through and supported by Aboriginal Community Controlled Mechanisms and organisations.
This includes access to ongoing supports, monitoring and oversight of their care, and implementation of family contact and cultural care and support plans.
Temporary Care Arrangements
What is a Temporary Care Arrangement?
A Temporary Care Arrangement (TCA) is a ‘placement intervention’ that may arise from FACS carrying out SARA in which:
- dangers are identified that cannot be addressed by a safety plan, but can reasonably be mitigated within 90 days
- the child is assessed as unsafe and in need of care and protection
- the parent consents voluntarily or is assessed as ‘incapable of consenting’
- there is a permanency plan involving restoration of the child to their parents
- the child is placed in the care responsibility of the Secretary of FACS and allows FACS to make care decisions (section 151).
FACS places the child with an authorised carer (section 151(2)) in an OOHC placement (see Placement Decision Making). Aboriginal Family-led Decision Making processes are used to engage families and other informal supports, as well as identify and access formal supports, to safely restore Aboriginal children and young people to their family. Aboriginal Advocates are engaged at the earliest opportunity to ensure that parents are appropriately informed and able to provide free, prior and informed consent. The carer makes decisions regarding the day to day care of the child, including decisions in respect of consent to medical/dental treatment, managing behaviour, permission to participate in activities and decisions about education and training (section 157).
Restoration from a TCA is different from restoration from statutory OOHC because there are no court proceedings, no court order and parental responsibility (PR) remains with the parent.
The period of any TCA is up to three months in a 12 month period (section 152). Subject to assessment, these arrangements may be extended for a further period of up to three months (in same 12 month period) where parents are capable of consenting. The maximum period for a TCA or multiple arrangements is 6 months in any 12 month period (section 152(4) (a)).
TCAs require a case plan review (section 155), when the period of the TCA exceeds three months.
- FACS visits a child, their parents and family/kin to carry out a SARA.
- During SARA, the child is assessed as unsafe and in need of care and protection, and the child requires a placement intervention.
- FACS involve relevant Aboriginal Community Controlled Mechanisms including Aboriginal Advocates in decision making and case planning.
- FACS and the parents sign a Temporary Care Arrangement (TCA) Agreement form agreeing to the Secretary having care responsibility for the child and the placement of the child with an authorised carer.
FACS prepares a case plan within 30 days of a child entering a TCA with a goal of restoration.
The TCA ends when:
- the parent requests FACS return their child to their care or
- the child is restored by FACS or
- FACS files a Children’s Court care application seeking other care arrangements.
Collaborating in arranging Temporary Care Arrangements
In TCAs, FACS and funded service providers have important complementary roles. Wherever possible, Aboriginal children and families are supported by accredited Aboriginal Community Controlled Organisations, including case management of the placement. Aboriginal families and communities participate in such decisions, including placement decisions, supported by Aboriginal Advocates.
A funded service provider provides a TCA placement, noting that:
- TCA placements are in addition to funded service provider contracted volume
- the funding approach is based on pro-rata application of Permanency Support Program (PSP) package costs and invoiced on a fee-for-service basis
- if the period of the TCA is over three months, the funded service provider providing the placement convenes a case plan review meeting
- FACS ensures attendance at the case review meeting by a caseworker with decision making delegation.
What is respite?
Respite is planned, regular or one-off time limited breaks for parents, carers and children. It provides time-out from the demands of the parenting and caring role and can enrich the range of social networks and experiences for the child. Respite is considered as an opportunity to mobilise the network of care to meet the needs of Aboriginal children and young people in a supported, sustainable, and culturally embedded way. Plans for respite are established through participatory processes, including Aboriginal Family-led Decision Making, as part of normal case planning. As with other case planning, oversight is provided by Aboriginal Community Controlled Mechanisms, and adhere to Aboriginal Placement principles. Emergency placements are not ‘respite’.
Respite can occur in the child’s home or a variety settings. It can be for different lengths of time and frequency, depending on need of the parent or carer.
Respite can be provided by family/kin, friends, neighbours, volunteers or professional carers. Extended family members who provide regular, frequent respite to children in OOHC are required to be authorised in keeping with clause 33 of the Children and Young Persons (Care and Protection) Regulations 2012. Irregular, occasional arrangements, such as a friend’s sleep-over or babysitting are not considered to be a respite placement, and do not require the person providing respite care to be authorised.
Regardless of whether case management is held by FACS or a funded service provider, carers of a child in OOHC (NSW Child Safe Standards for Permanent Care), and parents of a child receiving PSP preservation casework, are entitled to respite.
The respite entitlement set by FACS and included in costing of PSP funding packages is the equivalent of up to 24 nights respite per year. Whilst the calculation for respite funding is based on ‘nights’:
- respite can take many forms and is not restricted to overnight care or care outside a carer’s or parent’s home
- innovative and flexible arrangements can meet the needs of carers and parents while ensuring that a child feels safe and secure.
Futures Planning and After Care
Caseworkers commence futures planning when a young person reaches 15 years of age. It includes details of holistic supports that are relevant to their individual needs, such as:
- education and training
- financial security
- social relationships and support networks, including family connections (and reconnection where required)
- health – physical, emotional (including self-esteem and identity), mental and sexual
- cultural supports and lifelong connections
- life (and after care) skills.
Futures Plans are:
- reviewed annually and are aligned to a young person’s individual needs and future aspirations
- developed with the young person, their family/kin, caregivers and community with endorsement of recognised or accredited Aboriginal Community Controlled Organisations
- guided by culturally experienced caseworkers
- implemented with the support of recognised or accredited Aboriginal Community Controlled Organisations.
- take proactive and responsive action by supporting a young person to maintain and rebuild strong and positive links to their family and community, including their connection to culture
- consider each young person’s unique experiences and characteristics, reflecting on the strengths and resources available to them
- develop plans in partnership with the young person and through Aboriginal Family-led Decision Making processes where they feel safe and supported by the people who matter to them
- develop plans that are consistent with transitioning from OOHC to independence
- engage recognised or accredited Aboriginal Community Controlled Organisations to support the development, endorsement and implementation of Futures Plans, including Reconnect 15+, as a key service for young people transitioning from statutory care.
Caseworkers include a set of future planning and after care services including financial assistance prior to a young person transitioning statutory care. The plan steps out what is needed up until the young person turns 25 years, and how young people will be actively supported to achieve the goals and access the supports included in the plan. Such plans link to Aboriginal Community Controlled Organisations at the Aboriginal Community Response and Aboriginal Family Strengthening levels as required. Approval of after care services and financial assistance is sought from FACS well in advance of a young person transitioning from care. FACS and service providers clearly document that they have actively engaged with and sought endorsement from recognised and accredited Aboriginal Community Controlled Organisations in the development of the plan.
Relevant Aboriginal Community Controlled Organisations support Aboriginal young people to achieve the goals and access supports outlined in the plan. Aboriginal Community Controlled Mechanisms provide oversight of Futures Planning, After Care planning and implementation processes.
Chapter 16A allows FACS and service providers who are prescribed bodies to exchange information that relates to a child’s or young person’s safety, welfare or well-being. This is whether or not the child or young person is known to FACS, and whether or not the person to whom the information relates to gives consent to the information being shared. Where possible, consent is obtained to ensure best practice. Chapter 16A also requires prescribed bodies to take reasonable steps to coordinate decision making and the delivery of services regarding children and young people. FACS and prescribed bodies make reasonable efforts to provide relevant information requested (Chapter 16A and section 248) within 7 business days or within other timeframes for providing evidence.
Legal Issues - Court proceedings
In circumstances where case management responsibility has been transferred to a service provider before or during court proceedings, FACS and the service provider both have important complementary roles:
- FACS acts as a model litigant in the proceedings, whether or not they’ve been initiated by FACS. This includes ensuring that Aboriginal families and communities have been heard in decision making and have been given an opportunity to provide care for a child within their own communities when a child is unable to live at home with their parents or family/kin.
- FACS liaises with a service provider and seeks direct contact with a child, their parents, family/kin and carers in order to:
- continually assess risk, and
- coordinate and file evidence in proceedings based on first hand involvement with the child, family/kin and carers.
This includes the outcomes of consultation through Aboriginal Family-led Decision Making processes and with Aboriginal Community Controlled Mechanisms, and demonstration of adherence to the Aboriginal Child Placement Principles.
- FACS seeks endorsement of Care Plans, including placement decisions and cultural planning, through Aboriginal Community Controlled Mechanisms, providing community oversight of Aboriginal case planning processes and informing the court of the views of Aboriginal Community Controlled Mechanisms regarding Aboriginal children and young people.
During court proceedings, service providers with case management responsibility:
- continue to provide services ensuring the child’s health, safety and well-being is paramount and engage all pro-active efforts towards restoration and family-reunification
- continue to convene case plan and cultural support plan reviews demonstrating that Aboriginal Family-led Decision Making processes have been followed
- facilitate direct contact by FACS caseworkers with a child, their parents, family/kin and carers
- share all information that would reasonably affect assessment, filing of evidence in proceedings and respond to FACS requests for information exchange
- arranging for affidavit/report authors to be available to give evidence in the Children’s Court if required
- implementing decisions regarding drug and alcohol or DNA testing of parents
- contributing to developing a care plan with FACS and
- complying with Children’s Court orders, including preparation of section 76 or 82 reports by the due dates and organising contact, respite or other action in accordance with court orders and the best interests of the child.
FACS may request a service provider with (current or prior) case management responsibility to provide relevant information about a child, their parents or family/kin, to be filed as evidence in court proceedings. Information may include cultural case plans, case plans, records of family visits, school reports, health reports or other assessments. Information may also include documented evidence of pro-active efforts to achieve restoration and family reunification.
The service provider makes reasonable efforts to provide the information to FACS within 7 business days of a request or contacts FACS to negotiate a different time frame.
A service provider’s employee may be required to give evidence in the proceedings by way of affidavit. If so, the service provider employee may be required to attend court to give evidence at any final hearing.
An Aboriginal child who is subject to court proceedings has a Care and Cultural Plan developed prior to the making of a short term order or final order.
FACS consults with a service provider with case management responsibility when developing the Care and Cultural Plan ensuring that Aboriginal Family-led Decision Making processes are followed. This includes inviting the parents, family/kin and other significant persons to participate in a Care and Cultural Plan meeting and providing all parties with a draft copy for comment. Service providers provide written comments to FACS within 7 days or contact FACS to negotiate a different time frame.
FACS is responsible for seeking endorsement of the Care and Cultural Plan through Aboriginal Community Controlled Mechanisms.
The service provider is responsible for implementing those parts of the Care and Cultural Plan that are within its care responsibility and in accordance with regulatory obligations and standards, as well as with due regard to Aboriginal oversight through Aboriginal Community Controlled Mechanisms.
FACS provides a funded service provider (that is not a party to court proceedings) with information about the court outcomes. Reasonable efforts are made by FACS to provide the information about court outcomes within two business days of FACS receiving a report of the outcome from the FACS legal officer, external legal practitioner or court liaison officer.
The information provided by FACS may include:
- the date of the court appearance and any future relevant court dates
- interim or final orders made and any notations to those orders
- the timetable (due dates) for filing evidence or reports
- any relevant undertakings given by any party any agreements between parties in relation to family and sibling contact time or other arrangements impacting upon the placement and
- any other matters that may be relevant to a child’s placement.
Information about a court outcome is important to make sure the funded service provider is aware of, and acts in accordance with interim or final orders made by the court, and to:
- put in place appropriate family and sibling contact times between a child, their parents and family/kin, and provide information to the carer that is relevant to the child’s placement (for children in OOHC)
- put in place appropriate arrangements to support compliance with other orders, for example a parent capacity order, undertakings or a supervision order.
It is not the role of funded service providers to provide information about court proceedings to:
- a child – this is the role of the child’s independent or direct legal representative
- the child’s parents or family/kin – this is the role of the parent’s legal representative.
However a funded service provider casework practitioner may:
- give information to the child of a general nature in relation to court proceedings
- facilitate the child making contact with their legal representative
- facilitate the child making contact with a FACS casework practitioner that is giving instructions or involved in giving instructions in court proceedings.
Information that may not be provided by FACS to a funded service provider includes:
- information protected by legal professional privilege, for example records containing legal advice given by a FACS legal officer or external legal practitioner
- Children’s Court Clinic assessment reports and documents filed in the proceedings by other parties, unless the court has granted leave.
A FACS legal officer is able to provide advice about whether information may be subject to a claim of privilege and, if the information is privileged, whether FACS agrees to waive privilege.
Children’s Court Clinic Assessment
If a Children’s Court Assessment is required, the FACS care solicitor makes an application for a culturally appropriate assessor to undertake it. Where this is not possible, FACS seeks approval from the court for the Children’s Court Clinician to seek expert advice through Aboriginal Community Controlled Mechanisms.
Access to a Children’s Court Clinic Assessment report by a funded service provider that is not a party to court proceedings, can generally only be provided with leave of the Children’s Court. Exceptions include where the assessment report is an annexure or attachment to the child’s care plan.
FACS seeks leave to provide the report to the funded service provider. The FACS legal officer or external legal practitioner makes the application during proceedings and before final orders are made.
Dispute Resolution Conferences (DRC)
There may be circumstances where FACS, or a service provider with case management responsibility (that is not a party to proceedings), want the employee of the service provider to attend a Dispute Resolution Conference (DRC).
In considering whether the employee attends, FACS considers:
- the nature of the issues in dispute
- if the employee has a meaningful relationship with the child
- how they are to be involved in supporting the child, their parents and family
- whether the employee provides information that is relevant to the proceedings and if this helps all parties reach an agreement
- whether the employee attends all or part of the DRC
- advice provided by the FACS care solicitor or ELP
- any other relevant factor.
If agreed by all parties, the funded service provider casework practitioner (that is not a party to proceedings) attends a Dispute Resolution Conference (DRC) and provides input, noting:
- they have or will have a casework relationship with the child, their parents and family/kin
- they may possess first-hand knowledge about the placement and carer
- they will most likely be implementing the care plan approved by the court.
Permission for the funded service provider’s casework practitioner to attend the DRC is sought by the FACS legal officer or external legal practitioner, in accordance with FACS’ instructions. In giving instructions, the FACS casework practitioner considers:
- the relevance of the casework practitioner’s likely input to the issues in dispute
- whether the casework practitioner’s input will help all parties reach an agreement
- the extent of the casework practitioner’s relationship with the child
- whether the casework practitioner attends all or part of the DRC
- legal advice provided by the FACS legal officer or external legal practitioner
- any other relevant factors.
Permission for the casework practitioner to attend a DRC is decided by the Children’s Registrar who convenes the DRC. In considering the request, the Registrar seeks the views of all parties.
If permission is granted, the casework practitioner follows the guidance of FACS’ legal officer or external legal practitioner regarding their participation, and the guidance of the Children’s Registrar.
The funded service provider casework practitioner is bound by confidentiality of the DRC.
FACS also considers whether an independent Aboriginal Advocate for the child, their parents and family/kin or other suitable Aboriginal community representative (this may be a representative of the Aboriginal Community Controlled Mechanism) attends the DRC.
Permission for an Aboriginal Advocate to attend all or part of a DRC is decided by the Children’s Registrar, who convenes the DRC. In considering the request, the Registrar seeks the views of all parties.
If permission is granted, the funded service provider’s casework practitioner and/or Aboriginal Advocate follows the guidance of FACS’ care solicitor or external legal practitioner regarding their participation, and the guidance of the Children’s Registrar. They are bound by confidentiality of the DRC, which includes provisions to ensure that the proceedings of the DRC are not repeated or recorded.
Section 76 or 82 reports
The service provider with case management responsibility is responsible for preparing a section 76 report regarding the progress of a supervision order; or section 82 report regarding the suitability of a child’s permanency arrangements, following making of short term or final orders by the Children’s Court. The report is prepared with the child’s parents, family/kin and carer through Aboriginal Family-led Decision Making processes. The service provider provides evidence to the court that this has occurred.
The service provider satisfies FACS and the court that they have made proactive efforts in working towards restoration and family reunification with parents, family/kin and that the child’s cultural identity and connections to culture, family and community have been preserved, safeguarded and promoted.
FACS is responsible for approving and filing the section 76 or 82 report prepared by the service provider – see The Functions of Parent Responsibility exercised by FACS. The service provider provides FACS with a copy of the section 76 or 82 report 7 business days prior to the date on which it is due to be filed.
New court proceedings
Any decision to initiate new care proceedings (section 61) or re-open (section 90) proceedings in the Children’s Court is made by FACS in consultation with a funded service provider with case management, and oversight of Aboriginal Community Controlled Mechanisms, including local accredited Aboriginal Community Controlled Organisations. However a child, their parent, family/kin or any person with an interest in the welfare of the child can apply to re-open proceedings.
FACS is always a party to new or re-opened court proceedings.
FACS provides a funded service provider that is not a party to court proceedings with information about new or re-opened court proceedings. FACS provides the information to the funded service provider as soon as it is made available, and where possible, prior to the matter being listed in court.
Section 90 proceedings
Any decision to re-open proceedings in the Children’s Court to vary or rescind care orders, such as a Section 90 application proposing possible restoration or family reunification, is made jointly by FACS and a service provider with case management responsibility. However a child, their parents or any person with an interest in the welfare of a child can apply under Section 90 without agreement by FACS.
FACS provides a service provider with case management responsibility (that is not a party to court proceedings) with information about new court proceedings, for example section 90 applications filed by a parent or another person. Reasonable efforts are made by FACS to provide the information to the service provider as soon as the information is made available to FACS, and where possible, prior to the matter being listed in court.
Joint allocation of PR for children in OOHC
Where a final care order is made allocating PR to a suitable person and the Minister jointly:
- the child is considered to be in statutory OOHC where the Minister retains the aspect of residence
- the child is considered to be in supported OOHC where the suitable person (not the Minister) retains the aspect of residence solely.
Case management of children in supported OOHC is provided by an accredited Aboriginal Community Controlled Organisation wherever possible, and otherwise retained by FACS until such time as it can be transferred to an accredited Aboriginal Community Controlled Organisation.