The Development of Child Protection Law and its Impact 11 th Europe Pacific Conference,

The Development of Child Protection Law and its Impact

11th Europe Pacific Conference,Pocol, Italy

January 2007

Paul Davis Legal


An Overview of Child Protection Law in Australia

• No single uniform Child Protection system

• No consistent practice frameworks and systems

• Significant overlap

• Concurrent principles applied

[Bromfield, L / Higgins, D. A National Approach to Child Protection: How Close Are We? 2005]

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The Development of Child Protection Law and its ImpactCurrent legislationACT: Children and Young People Act 1999

NSW: Children and Young Persons (Care and Protection) Act 1998

Commission for Children and Young People Act 1998

Part 3A Ombudsman Act 1974

Child Protection (Prohibited Employment) Act 1998

NT: Child Protection (Offender Reporting and Registration) Bill

QLD: Child Protection Act 1999

Commission for Children and Young People and Child Guardian Act 2000

TAS: Children, Young Persons and their Families Act 1997

SA: Children’s Protection Act 1993

VIC: Children and Young Persons Act 1989

Working With Children Act 2005

WA: Children and Community services Act 2004

Western Australian Family Court Act 1997

Working With Children (Criminal Record Checking) Act 2004

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History

1924 Geneva Declaration on the Rights of the Child

1981 United Nations Declaration of the Rights of the Child

1989 Convention on the Rights of the Child (CRC)

by the United Nations’ General Assembly

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Rights of child as set out in CRC include right to:

•Freedom from hunger and protection from diseases

•Access to free compulsory primary education

•Adequate health care

•The right to know and be cared for by both parents

•The right not to be separated from one’s family

•The rights to registration, a name and nationality from birth

•The rights to an identity and to preserve such an identity

•Equal treatment regardless of gender, race or cultural background

•The right to express opinions and freedom of thought in matters affecting them

•Safe exposure to leisure, play, culture and art (UN 1989)

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Mandatory Reporting Law

UN Declaration of the Rights of the Child in 1981.

General broadening of mandatory obligation to notify concerns of abuse or neglect beyond medical profession

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Impediments to reporting have been found to include:

•Fear of identification of self or victim

•Fear of personal safety

•Confusion regarding obligations / inadequate training

•Lack of confidence to identify and report

•Reluctance to become involved

•Lack of professional experience or knowledge

•Loss of sensitivity to the problem

•Existing relationships with families[McCallum, F. Law Policy and Practice: Is It Working for Teachers in Child Protection? 2002]

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Differences between states in terms of definitions and procedures leads to under-reporting

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Differences between states

•procedures and services

•intake procedures and requirements

•Responses required to matters that didn’t meet the threshold for statutory intervention

[Bromfield, L Higgins,D. National Comparison of Child Protection Systems 2005]

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Similarities between states:

•Services available to children and families

•Mandatory reporting requirements

•Case management practices

•Investigation requirements

•Training was similar

•Working with Children Check: comprising of the following common fields:

Convictions or crimes against children

Relevant crimes against adults

[Bromfield, L Higgins,D. National Comparison of Child Protection Systems 2005]

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Recent Research on risk management:

Organisational risk factors

For workplaces that deliver services to children[eg schools, hospitals, child care and residential care facilities]

For community-based organizations that deliver services to children

[eg churches and church-based ministries, sporting, hobby and interest clubs and associations that deliver services to children]

[Beyer,L, Higgins,D Bromfield, L Understanding Organisational Risk Factors for Child Maltreatment: A Review of Literature 2005]

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High risk situations:

•Home or home-like contexts

•Activities within the home of the victim or the perpetrator

•Capacity to make contact outside of an organized activity

•Situations where services are provided to vulnerable children due to age, disability, history of abuse or neglect

•Hierarchical structures where the conduct of the perpetrator can’t be easily challenged due to authority

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High risk situations:

•Patriarchal structures where the conduct of the perpetrator can’t be easily challenged due to strong relationships of trust, respect and social standing

•Poor disclosure policies

•Where complaints are handled internally or complaints are managed inappropriately through the use of mediation for example.

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Effective Risk Management

Selection, screening and detailed assessment of potential employees

Victim- focused prevention programs

•Accessible complaint registration process

•community awareness programs

•educative programs for children and young people

•building rapport and trust within professional boundaries

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Situational prevention

•Site inspections,

•risk assessment of activities,

•periodic audits of professional practices,

•codes of conduct,

•support from management of complex circumstances,

•clear policies.

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Community based prevention

•Educative programs for employees, volunteers, parents, carers, and children

•Broad circulation of policies and professional standards

•Liaison with and access to educative programs developed by Police, Health, Community Services, Ombudsman, Commission for Children and Young People

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Screening systems

NSW: Commission for Children and Young People Act 1998

Paid employees only

wwcc – covers relevant criminal records, employment proceedings, relevant AVO’s

Child Protection (Prohibited Employment) Act 1998

Paid and voluntary employeesRequires declaration that applicant has not been

convicted of a serious sex offence against children

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Screening systems

QLD: Commission for Children and Young People and Child Guardian Act 2000

Paid and voluntary employees

Blue card + annual risk management strategy required by relevant organisations

VIC Working With Children Act 2005

Paid and voluntary employees

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Employment Law Issues in Child Protection

• Requirement for effective risk management

• Volunteers

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Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as St Anthony’s Primary School) v Hadba [2005] HCA 31 (15 June 2005)

…..reinforced the long held view that child-related workplaces have a responsibility to take reasonable steps to protect students from abuse or harm and to investigate the professional conduct of staff when required.

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NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4 (6 Feb 2003)

“…schools are unusual in that their responsibility extends to protecting children and young people from the wrongful behaviour of third parties even if that behaviour is criminal.”

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Sullivan v Moody [2001] 75 ALJR 1570

…an employer’s statutory responsibility to investigate an allegation made against a person – be that person employee or parent - is the paramount consideration, and the impact of the process on the person subject of the allegation is secondary:

“…Their (in this case Dept of Community Welfare – SA) professional and statutory responsibilities involved investigating and reporting…allegations..It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm….”

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State of New South Wales v Paige [2002] NSWCA 235

In this appeal of the District Court where it was found that the DET had breached its duty of care as the investigation into the conduct of Mr Paige in accordance with the procedures required under the Teaching Services Act 1980 had resulted in him suffering from psychiatric harm.

Spigelman CJ who delivered the main judgement stated that “.. the requirement to provide a ‘safe system of work’ was concerned with the conduct of tasks for which an employee was engaged; that is, not to matters concerning the incidents of the contract of employment, such as disciplinary procedures..”

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Ref.: Decision of the House of Lords: Johnson v Unisys {2001] 2WLR 1076

Heptonstall v Gaskin [2004] BSWSC 80 (26 March 2004)

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Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as St Anthony’s Primary School) v Hadba [2005] HCA 31 (15 June 2005)

…..reinforced the long held view that child-related workplaces have a responsibility to take reasonable steps to protect students from abuse or harm and to investigate the professional conduct of staff when required.

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Inappropriate use of the workplace email and internet

AMACS v Ansett Australia Ltd [2000 FCA 441]

For dismissal of an employee on the basis of “email misconduct” the employer must show:

• The email was for a purpose that was clearly not authorized as defined in policy

• That the issue is not simply to do with the content but the use of email was not authorized

• The matter is investigated

• The employer is afforded procedural fairness in being provided with an opportunity to respond to the allegation

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Volunteers

s61 Civil Liability Act (NSW) 2003

(and similar legislation in most states and territories)

provides significant protection to volunteers themselvesthe organization may be vicariously responsible for the volunteers’ negligence

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Volunteers

Evidence of change in community standards:

• shift towards the effective management of volunteers

• screening to volunteers

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Volunteers

Resource poor organisations = risk:

• Lack of clear accountability structures

• Inadequate funding (which results in reliance on volunteers or minimal remuneration standards often resulting in high staff turn-over)

• Lack of procedures and policies for reporting and investigating complaints

• Management attempting to protect the reputation of the organization by not reporting

• Inadequate internal enquiries into complaints

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Volunteers

The transfer of the psychology of the employer/ employee relationship to the management of volunteer workforces is incomplete and less protected by clear boundaries.

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Privacy Issues in Child Protection

Privacy Act 1988

Some protection to children from unauthorized photographers:

Classification (Publications, Films and Computer Games) Act 1995

national classifications scheme re standards for films, computer games and other publications incl internet content.

Broadcasting Services Act 1992 (Schedule 5)

prohibits certain categories of content from the internet (s5) incl.content classified as RC (Refused Classification) or X18+R18+ and not subject to a restricted access system

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Legislation in NSW:

s21G Summary Offences Act 1988 (NSW) Prohibits filming or photographing to provide sexual gratification provided

the person is undressed or engaged in a private act where they may reasonably expect privacy, and does not consent to filming

s 562 AB Crimes Act 1900 (NSW)Prohibits a person from stalking or intimidating another person with the

intention of causing the other person to fear for their physical of mental harm – ie must show intention

s 91H Crimes Act 1900 (NSW)Prohibits production, dissemination or possession of child pornographyThis doesn’t protect children who may be filmed in contexts that are not

sexual

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Proposed reform

Establish criminal offence that prohibits unauthorized use of photographs of children

Establish criminal offence to deal with voyeurism where and expectation of privacy exists

[Unauthorised Photographs on the Internet and Ancillary Privacy Issues: Discussion Paper, Aug 2005 – Attorneys-General Standing Committee]

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Current issues and developments

• Grooming – community standards and community awareness

• Risk management standards

• Addressing predatory behaviours through the Internet

• Complex communities where neglect and abuse is commonplace

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References:Bromfield, L. Higgins, D. A National Approach to Child Protection: How Close

Are We? National Audit of Australian Child Protection Research Australian Institute of Family Studies 2005

Bromfield, L Higgins, D. National Comparison of Child Protection Systems Child Abuse Prevention Issues, 22 2005www.aifs.au/nch/issues

Beyer, L. Higgins, D. Understanding Organisational Risk Factors for Child Bromfield, L. Maltreatment: A Review of Literature

National Child Protection ClearinghouseAustralian Institute of Family Studies 2005

A Report to the Community Services Ministers’ Advisory Council (CSMAC)

McCallum, F. Law Policy and Practice: Is It Working for Teachers in Child Protection?

University of South Australia 2002

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Documents

The Development of Child Protection Law and its Impact 11 th Europe Pacific Conference,