ATSI Children and Placement Principles
The Aboriginal and Torres Strait Islander Child Placement Principle in Queensland: What Families Need to Know
When an Aboriginal or Torres Strait Islander child becomes involved in Queensland's child protection system, the law requires decisions about that child to be made differently. The Aboriginal and Torres Strait Islander Child Placement Principle is built into the Child Protection Act 1999 (Qld), and it exists for a reason: to keep children connected to their family, community, culture, and country, and to address the ongoing overrepresentation of Aboriginal and Torres Strait Islander children in out-of-home care.
If you are a parent, grandparent, aunt, uncle, or kinship carer involved in a child protection matter, understanding the principle helps you understand what the Department of Child Safety is required to do, and what you can ask for. Here's how it works in plain language.
What Is the Aboriginal and Torres Strait Islander Child Placement Principle?
The placement principle is a set of requirements that apply whenever significant decisions are made about an Aboriginal or Torres Strait Islander child in the child protection system. Despite the name, it is about much more than where a child is placed. It has five elements, and all five carry weight under Queensland law.
The Five Elements
Prevention. A child has the right to be brought up within their own family and community. The starting point is supporting families so that children are not removed in the first place.
Partnership. Aboriginal and Torres Strait Islander people and community representatives should participate in decisions about their children, both in individual matters and in how the system is designed.
Placement. If a child does need to be placed in out-of-home care, there is a hierarchy of preferred placements, explained below.
Participation. The child, their parents, and their family members have the right to participate in decision-making processes that affect the child.
Connection. Children in care must be supported to maintain and build their connection to their family, community, culture, and country.
The Placement Hierarchy
When an Aboriginal or Torres Strait Islander child cannot remain at home, the Child Protection Act sets out an order of preference for where they should live. In broad terms, the preference runs:
With a member of the child's family group
With a member of the child's community or language group
With another Aboriginal or Torres Strait Islander person compatible with the child's community or culture
Only then, with a non-Indigenous carer, and if so, in a placement that supports the child's connection to family, community, and culture
This is why family members and kinship carers matter so much in these matters. If you are a relative who wants to care for a child, the law leans in your direction, but you generally need to put yourself forward, be assessed, and sometimes advocate firmly for your place in the hierarchy to be respected. This sometimes includes going to court and asking the court to make orders in your favour.
Independent Persons and Community Participation
Queensland law requires that, before significant decisions are made about an Aboriginal or Torres Strait Islander child, arrangements are made for an independent Aboriginal or Torres Strait Islander person or entity to help facilitate the child's and family's participation in the decision.
In practice, this means the family should have support from someone independent of Child Safety who understands the child's community and culture. Aboriginal and Torres Strait Islander Family-Led Decision Making processes also give families a structured way to develop their own solutions, often before matters escalate to court.
Queensland has also begun delegating certain child protection decision-making functions to Aboriginal and Torres Strait Islander Community Controlled Organisations, a reform designed to shift authority over Aboriginal and Torres Strait Islander children back toward their own communities.
What This Means in Practice
The placement principle creates obligations on the Department, not just aspirations. If you are involved in a matter concerning an Aboriginal or Torres Strait Islander child, it is reasonable to ask:
Has an independent person been arranged to support the child's and family's participation?
What steps were taken to support the family before removal was considered?
Which family members were identified and assessed as potential carers, and why were they accepted or not?
What is in place to maintain the child's connection to community, culture, and country, including a cultural support plan?
Has the family been offered Aboriginal and Torres Strait Islander Family-Led Decision Making?
If these things haven't happened, that matters, and it can matter in court.
A real-life example from our practice
Families often do not realise that they have legal options other than asking the Department to assess them as kinship carers and waiting for that process to be completed.
For example we helped an Aunty who had been waiting for the Department to assess her as a kinship carer. The Aunty came to us because she was frustrated that the assessment was taking a long time and the Department had told her that they were not going to approve her as a carer.
While the assessment was occurring, the child was placed away from family with foster carers who did not know the child.
On behalf of the Aunty we made an urgent application to the court for her to be granted custody of the child. That application was unsuccessfully opposed by the Department, and the Court granted custody of the child to our client even though the Department had refused her application to be a kinship carer.
We have helped countless other family members in similar situations - where the Department refuses to place a child with a family member and we help the client bring an application in court to have custody of the child granted to them.
Support and Advice
The organisations below provide support for Aboriginal and Torres Strait Islander families in the child protection system:
The Queensland Aboriginal and Torres Strait Islander Child Protection Peak (QATSICPP) and its member community-controlled organisations
The Aboriginal and Torres Strait Islander Legal Service (ATSILS) and Legal Aid Queensland (LAQ) - both provide legal help across Queensland
If a child in your family is involved with Child Safety and you want to understand your options, whether as a parent or as a family member seeking to care for a child, legal advice early makes a real difference. Kerri Patterson acts in child protection matters across Townsville and Queensland. Call Kalo Children's Law on (07) 4426 1000.
Frequently Asked Questions
I'm a grandparent. Can I ask for my grandchild to be placed with me?
Yes. Family members sit at the top of the placement hierarchy for Aboriginal and Torres Strait Islander children. You can either be assessed as a carer or you can make an application to the court for custody of the child to be granted to you. Legal advice can help you do this effectively and the earlier you do this the better.
Does the placement principle mean my child can't be placed with a non-Indigenous carer?
No, but such a placement is the last preference in the hierarchy, and if it happens, the Department must support the child's ongoing connection to their family, community, and culture.
What is an independent person in a child protection matter?
An independent Aboriginal or Torres Strait Islander person or entity arranged to help the child and family participate in significant decisions. They are independent of Child Safety, and their involvement is a requirement, not a favour.
What if the Department hasn't followed the placement principle?
Failures to apply the principle can be raised in the matter, including before the Childrens Court. If you believe the principle hasn't been followed in your family's matter, get legal advice about your options.