Last updated 12 July 2022

Guiding principle

The guiding principle for administering the Child Protection Act 1999 (Qld) (Child Protection Act) is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount (s 5A Child Protection Act). 

Other general principles 

This guiding principle is supported by a series of 13 general principles (s 5B Child Protection Act): 

  • A child has a right to be protected from harm or risk of harm (s 5B(a)).
  • A child’s family has the primary responsibility for the child’s upbringing, protection and development (s 5B(b)).
  • The preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family (s 5B(c)).
  • If a child does not have a parent who is able and willing to protect the child, the state is responsible for protecting the child (s 5B(d)).
  • In protecting a child, the state should only take action that is warranted in the circumstances (s 5B(e)).
  • If a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests (s 5B(f)).
  • If a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care (s 5B(g)).
  • If a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin (s 5B(h)).
  • If a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible (s 5B(i)).
  • A child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support) (s 5B(j)).
  • A child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child (s 5B(k)).
  • A child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values (s 5B(l)).
  • A delay in making a decision in relation to a child should be avoided, unless appropriate for the child (s 5B(m)). 

Permanency principles 

The Child Protection Act contains additional principles that are relevant to making decisions about actions to be taken, or orders to be made that achieve permanency for a child (s 5BA Child Protection Act). An action or order that achieves permanency should be preferred. For ensuring the wellbeing and best interests of a child, the action or order that should be preferred is that which best ensures a child experiences or has: 

  • ongoing positive, trusting and nurturing relationships with persons of significance to the child, including the child’s parents, siblings, extended family members and carers (s 5BA(2)(a))
  • stable living arrangements, with connections to the child’s community, that meet the child’s developmental, educational, emotional, health, intellectual and physical needs (s 5BA(2)(b))
  • legal arrangements for the child’s care that provide the child with a sense of permanence and long-term stability (s 5BA(2)(c)). 

When deciding whether an action or order best achieves permanency for a child, the following principles also apply: 

  • The first preference is for the child to be cared for by the child’s family (s 5BA(4)(a)).
  • The second preference is for the child to be cared for under the guardianship of a person who is a member of the child’s family, other than a parent of the child, or another suitable person (s 5BA(4)(b)).
  • The third preference is for the child to be cared for under the guardianship of the chief executive (s 5BA(4)(c)). 

Additional principles for Aboriginal or Torres Strait Islander children 

The Child Protection Act also includes additional principles for administering the Act in relation to Aboriginal or Torres Strait Islander children (s 5C Child Protection Act): 

  • Aboriginal and Torres Strait Islander people have the right to self-determination (s 5C(1)(a)).
  • The long-term effect of a decision on the child’s identity and connection with the child’s family and community must be taken into account (s 5C(1)(b)). 

The child-placement principles apply in relation to Aboriginal or Torres Strait Islander children (s 5C(2)): 

  • The prevention principle: the principle that a child has the right to be brought up within the child’s own family and community (s 5C(2)(a)).
  • The partnership principle: the principle that Aboriginal or Torres Strait Islander persons have the right to participate in significant decisions under the Act about Aboriginal or Torres Strait Islander children (s 5C(2)(b)).
  • The placement principle: the principle that, if a child is to be placed in care, the child has a right to be placed with a member of the child’s family group (s 5C(2)(c)).
  • The participation principle: the principle that a child and the child’s parents and family members have a right to participate, and be enabled to participate, in an administrative or judicial process for making a significant decision about the child (s 5C(2)(d)).
  • The connection principle: the principle that a child has a right to be supported to develop and maintain a connection with the child’s family, community, culture, traditions and language, particularly when the child is in the care of a person who is not an Aboriginal or Torres Strait Islander person (s 5C(2)(e)). 

If an Aboriginal or a Torres Strait Islander child is removed from their family, the Child Protection Act requires the Department of Children, Youth Justice and Multicultural Affairs (Child Safety) to place a child with a member of the child’s family group (s 83(4) Child Protection Act). 

If it is not practicable to place a child with a member of child’s family group, Child Safety must place the child, in order of priority, with:

  • a member of the child’s community or language group
  • another Aboriginal or Torres Strait Islander person who is compatible with the child’s community or language group
  • another Aboriginal or Torres Strait Islander person
  • if it is not practicable to place a child in the care of a person mentioned above, then a person who lives near the child’s family, community or language group and has a demonstrated capacity for ensuring the child’s continuity of connection to kin, country and culture (s 83(5) Child Protection Act). 

Child Safety must give proper consideration to the views of the child and the child’s family and ensure the decision provides for the optimal retention of the child’s relationships with parents, siblings and other people of significance to the child under Aboriginal tradition or Islander custom (s 83(6) Child Protection Act). 

Before placing a child in the care of a family member or other person who is not an Aboriginal or Torres Strait Islander person, Child Safety must give proper consideration to whether the person is committed to: 

  • facilitating contact between the child and the child’s parents and other family members, (subject to any limitations Child Safety imposes on the contact under s 87(2) of the Child Protection Act) 
  • helping the child to maintain contact with the child’s community or language group
  • helping the child to maintain a connection with the child’s Aboriginal or Torres Strait Islander culture
  • preserving and enhancing the child’s sense of Aboriginal or Torres Strait Islander identity (s 83(7) Child Protection Act). 

Principles about decision-making powers 

The Child Protection Act provides when exercising a power, it should be done in a way that is open, fair and respectful of the rights of each person affected by the exercise of the power (s 5D(1)(a) Child Protection Act).

When making a decision under the Child Protection Act:

  • to the extent that it is appropriate, the views of the persons involved, including the child, should be sought and taken into account before the decision is made (s 5D(1)(b))
  • if required, help should be given to persons to participate in or understand the decision-making process or to understand a statutory right relevant to the decision, and are able to obtain legal advice or be represented by a lawyer or supported by another person (s 5D(1)(c), 5D(1)(d))
  • information about a child affected by a decision should only be shared to the extent that it is necessary and in a way that protects the child’s privacy (s 5D(1)(e)).

Principle about obtaining a child’s views

When giving a child an opportunity to express their views, language appropriate to the age, maturity and capacity of the child should be used. If required, the child should be given any help, including an appropriate explanation of the decision affecting them, in order to respond to the decision. However, a child is not required to express a view (s 5E Child Protection Act).

Significant decisions about Aboriginal and Torres Strait Islander Children

When Child Safety or the Director of Child Protection Litigation (DCPL) is making a significant decision about an Aboriginal or Torres Strait Islander child, it must have regard to the child placement principles and, in consultation with the child and child’s family, arrange for an independent Aboriginal or Torres Strait Islander entity for the child to facilitate the participation of the child and the child’s family in the decision-making process (s 6AA Child Protection Act). 

An independent entity does not need to be arranged if it: 

  • is not practicable due to an independent entity for the child not being available or urgent action is required to protect the child
  • is likely to have a significant adverse effect on the safety or psychological or emotional wellbeing of the child or any other person
  • is otherwise not in the child’s best interests or the child or child’s family does not consent to the ongoing involvement of an independent entity in the decision-making process.

The DCPL does not need to arrange for an independent entity if it is satisfied that Child Safety has already complied with the requirement. 

An independent entity can be either an individual who is an Aboriginal or Torres Strait Islander person, or an entity whose members include individuals who are Aboriginal or Torres Strait Islander persons (s 6(1)(a) Child Protection Act).

Child Safety needs to be satisfied that either: 

  • the entity provides services to Aboriginal or Torres Strait Islander persons
  • is a representative of the child’s community or language group (s 6(1)(b))
  • is a suitable person to be an independent Aboriginal or Torres Strait Islander entity for the child (s 6(1)(c)). 

If the entity is an individual, Child Safety must be satisfied that: 

  • the individual is a person of significance to the child or child’s family
  • is a suitable person for associating on a daily basis with the child
  • is a person with appropriate authority to speak about Aboriginal or Torres Strait Islander culture in relation to the child or the child’s family
  • is not an officer or employee of Child Safety (s 6(2) Child Protection Act). 

When the Childrens Court exercises a power under the Child Protection Act, the court must have regard to Aboriginal tradition and Islander custom relating to the child. It may inform itself in this regard by considering the views of an independent entity, the child or a member of the child’s family. The court must also have regard to the child-placement principles in relation to the child (s 6AB Child Protection Act).