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Education Law Articles - Child Protection

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Teachers as "gatekeepers" of their students


An American school teacher failed to follow school procedures, releasing a child to an unauthorised person. Tragically, the child was sexually assaulted and has suffered significant physical and emotional injuries. The US decision stated that teachers are the “gatekeepers” of their students.  What does this mean?

Read more ... (From Education Law Notes Term 4, 2016)


NSW Child Protection Laws Amended


Changes to the Child Protection (Working with Children) Act, the Children and Young Persons (Care and Protection) Act and the Ombudsman Act come into effect on 2 November 2015. Key points to note are:

  • The obligations on a school to verify that a teacher is the holder of a working with children check clearance or has applied for one are set out in detail.
  • A school council must verify that the school principal holds a working with children check clearance.
  • A school principal may disclose to a child allegedly the subject of reportable conduct, or to a parent of the child, information about the progress of the investigation into the allegation, the investigation findings and any action taken in response to those findings.

Please contact or  if you need help in updating your school’s child protection policy to take into account these changes.
 


Teacher liability for his sexual assaults


QR was a schoolteacher. From 2002 until 2004, he sexually assaulted JK a female student who was 13 and in Year 7 when the assaults began. In 2006, QR was arrested and charged with 15 counts of aggravated indecent assault, 14 of which occurred away from school premises and outside school hours. He pleaded guilty to these charges and was imprisoned.

In 2010, JK brought a claim for damages for psychiatric injury arising from the sexual assaults against the State of New South Wales, the principal and deputy principal at the school, as well as QR. The proceedings settled and the State agreed to pay JK $525,000 - damages of $316,370 and costs of $208,630. The State subsequently sought to recover some of this money from QR.

It is well accepted that the non-delegable duty owed by schools to their students does not extend to criminal actions such as sexual assaults committed on students by a teacher. However, the question still remained as to whether the State could be vicariously liable for QR’s actions. A school may in some circumstances be vicariously liable for the criminal actions, including sexual assaults, committed by a teacher. It all depends on the facts. Here, all but one of the assaults occurred outside of school hours and off school premises. This points to the State not being vicariously liable. On the other hand, QR argued that the school knew of JK’s crush on him, yet nevertheless placed her in a class with him. The Court was less impressed with this than with the school’s ignorance of the assaults and with QR’s knowledge that he was engaging in serious and wilful criminal conduct that was in breach of his employment contract. Therefore, without actually deciding the vicarious liability question, the Court said that QR must indemnify the State for its liability to JK.

The Court held that nearly all of the fault could be attributed to the actions of QR and ordered that QR pay 90% of the amount that the State had paid JK, namely $472,500.

Implications

This case affirms that a school is not in breach of its duty of care to its students where a teacher committed intentional criminal conduct against a student. However, there may be circumstances where a school is vicariously liable for criminal acts such as sexual assaults by a teacher. The case demonstrates how important it is to investigate any suggestion of impropriety in a relationship between a student and a teacher. If the reports of JK’s crush on JR had been more carefully investigated, much more information may have come to light and the child may have been spared much suffering and psychiatric injury.

We have been involved many times this year in assisting school principals to deal with situations like the one involving JR and JK. Sometimes, this has simply been to provide quick advice on the proper process to follow, or how to deal with the media and the school community. In other cases, we have actually investigated the allegations for the school. If you are suddenly faced with situations like this, contact us sooner rather than later. It normally saves lots of cost and angst down the track.


Guaranteeing child safety requires more than a mere check-and-forget


This was the heading on an opinion piece in the Sydney Morning Herald earlier this year by Kerryn Boland who is the NSW Children’s Guardian. While Ms Boland’s focus was the NSW Working with Children Check, there are comparable requirements for those working with children in Victoria, Queensland, Western Australia, the ACT and the Northern Territory while South Australia and Tasmania require police checks.

The point Ms Boland was making is that schools and other institutions working with children need to guard vigilantly against the “tick and flick” approach when complying with the mandatory pre-employment screening requirements. In other words, it is not enough simply to ensure that those teachers about to be employed have the relevant clearance. One must be careful not to over-rely on a Working with Children Check. While such checks are clearly important, they are not, as Ms Boland put it, “the ultimate safeguard” adding that a check “is a tool of risk management and should be used to complement well-monitored and audited child safety practices.”

The interim report of the Royal Commission into Institutional Responses to Child Sexual Abuse which was published mid-year highlighted what Ms Boland was saying:

Pre-employment screening aims to make it as difficult as possible for perpetrators to work with children. It does this by trying to filter out, during the recruitment process, people who pose a risk to children. There is evidence that it also deters registered offenders from applying for positions that involve working with children if they know they will be detected.

There are limits to the effectiveness of screening as a prevention activity because it tends to focus on those who have already left traces of their abuse activity in criminal and other records. But it is likely that a majority of perpetrators will not have been previously detected or left such records. In response, the literature highlights that the majority of offenders detected also had histories of substance abuse and violence. Because of this, pre-employment screening for criminal histories involving substance abuse and violence is practised in some Australian states and territories.

Any institutional approach to prevention must factor in the risk that screening may fail to detect perpetrators during recruitment.

Accordingly, when employing new staff, schools must do much more than rely on the relevant mandatory pre-employment screening check in their location. They should also check references carefully and use structured interviews which allow them to give clear information to applicants about their commitment to children’s safety, and about their policies and procedures to prevent child sexual abuse. Interviews also allow close observation of applicants, including how they respond to child safe policies and practices.
Every school should also consider whether it is implementing a range of measures to ensure that it is safe for children. Such measures can include general operations and staff behaviour as well as the design of the school environment (such as classrooms).

It is vital that school governors are committed to creating a child safe school. Submissions to the Royal Commission point to a major risk for child sexual abuse being an institutional culture that:

  • lacks awareness about the prevalence, nature and impact of child sexual abuse
  • lacks knowledge about the ways in which abuse can occur in institutions, leading to a tendency to ignore or downplay warning signs such as grooming
  • does not know how to respond when abuse is detected or disclosed
  • does not foster a child-friendly culture that supports children disclosing abuse and suspicious behaviour
  • does not recognise a potential disclosure
  • places more value on its own reputation than the safety of children.

Sadly, all too often many of the points on the above list apply not only to a school’s culture but also to the mindset of the school board members.

The Royal Commission’s Interim Report is really essential reading for school leaders and governors. It has many practical ideas worth considering. It may also give an indication of the issues that the Commission will consider when it inevitably turns its attention to schools and how they have handled child abuse allegations. 


NSW's Working with Children Check


Following the commencement of the new Working with Children Check in June 2013, schools must not employ a person without a Working With Children Check clearance in either a paid or unpaid role which primarily involves direct contact with children.

Job seekers commencing child-related work under the new legislation must have obtained a Working with Children Check clearance from the Children’s Guardian. Existing school employees engaged in child-related work who remain with their current employer will not be required to obtain a clearance until the end of March 2017 for those working in secondary schools and March 2018 for those working in other schools.

The Children’s Guardian has been at the centre of the most substantial changes with schools now required to notify it of findings of sexual misconduct or serious physical assault by a child-related worker against a child.

The new Check continues to be refined with legislation being amended as recently as December. As a result, schools that have recently reviewed their child protection policy may nonetheless find it is no longer up-to-date. All schools are encouraged to review their child protection policy to ensure it includes these significant changes.

The Emil Ford Child Protection Policy provides full coverage of the latest legislative developments. to discuss updating your policy.

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Child protection policy


Child doing handstandPoorly drafted child protection policies mislead teachers and do not offer students the protection they deserve. They can also adversely affect a school’s registration in NSW. A recent case highlights the risk a school takes by failing to implement and adhere to sound policies.

The NSW Board of Studies recommended that the Minister revoke a school’s registration and accreditation. The Board pointed to a number of the school’s questionable practices and policies. It failed to keep a register of enrolments and daily attendances, with all but a handful of absences remaining unexplained. On the one occasion when a student provided an explanation for his absence, he was marked present on the roll.

The school’s attitude to child protection was equally concerning. The school’s Organisational Policy and Procedures Manual contained numerous references to Queensland legislation, several references to repealed legislation and a few references to legislation not in existence. In total, 48 mistakes were made in the sections of the manual relating to child protection and reporting guidelines when a person receives a complaint of child abuse or harm.

The Board also contended that the standard of teaching was unsatisfactory, citing a teacher who gave three students marks of 1½, 2½, and 3 out of 4 for a test even though their answers were identical.

The Education Act 1990 (NSW) imposes twelve requirements for the registration of a non-government school. The Registered and Accredited Individual Non-Government Schools NSW Manual which is published by the Board imposes additional standards. The Board made its recommendation based on the school’s failure to satisfy the requirement that a safe and supportive environment be provided for students. Evidence of a school’s compliance in providing such an environment for its students can be found in its policies and employment procedures.

It was found that the school’s failure to keep a register of enrolments and daily attendances in the approved form was not a registration requirement because, although the Manual imposes this requirement, section 47 of the Act (which expresses an exhaustive list of the requirements for registration) does not.

The school’s Organisation Policy and Procedures Manual was found to contain insufficient information about the mandatory reporting obligations of teachers. This was unsurprising given the principal’s evidence that she had likely done a ‘Google’ search and copied from the results. Due to its inaccuracies, the manual was likely to mislead staff as to the precise nature of their obligations relating to child protection.

The school also failed in its employment screening by allowing the principal to commence employment without having completed a Prohibited Employment Declaration. This was a result of a misunderstanding as to the school’s obligations under the Commission for Children and Young People Act 1998 (NSW).

The school’s registration was reduced by two years. This gave the school an opportunity to amend its policies before any application for renewal.

In NSW, the Child Protection (Working with Children) Act 2012 commences on 15 June 2013. Now is the time for NSW schools to review their child protection policies. However, all Australian schools ought to audit their policies to ensure that they are up-to-date and compliant with relevant legislation.
 


Who are you hiring?

What would you do if there was only one suitable applicant for a teaching position but you had been cautioned about appointing the teacher? If a teacher had been “let go” because of “irregular conduct in his attitude towards the boys”, would you make further investigations?

A Brisbane school discovered how important it is to take any suggestion of improper conduct seriously when seeking verbal references for staff. A former student of School A alleged that while at school he was sexually abused by his music teacher, Mr K. Before engaging Mr K, the Head of School A had spoken to the Head at School B which had previously employed Mr K. The School B Head gave the warning of “irregular conduct”.

Further investigations by School A’s Head into Mr K’s background may have uncovered his history of “improper and disgraceful conduct”. Mr K had, in fact, been dismissed from his employment as a teacher in South Australia when it was found that he had sexually abused boys in his care. Remarkably, the dismissal had been rescinded and his resignation was accepted! Mr K then managed to gain employment at School B where he was again dismissed due to his irregular conduct towards the boys in his care.

Statements made by School A’s Head indicate that the verbal reference did not contain exact reasons for Mr K’s dismissal, just vague references to “irregular conduct”. The former School A student sued School A claiming that the psychological damage he suffered as a result of Mr K’s actions was, at least in part, the fault of School A as the Head had been warned about Mr K and should not have hired him.

So was School A liable for the damage suffered by the former student? Luckily for School A, a lengthy period of time had elapsed since the incidents. The memories of those involved had faded and other witnesses had died. The court was not prepared to extend the time for him to bring his claim.

However, if this matter had been brought before the court in a timelier manner, the outcome may well have been quite different! Child protection legislation and related background screening will often identify teachers with a risk profile but reference checking is still important when engaging new staff.
 


Child Protection Case Studies

The NSW Ombudsman released his Annual Report recently. The published case studies provide useful lessons for schools throughout Australia seeking to implement best practice in child protection.

“A non-government school investigated allegations that a teacher used inappropriate language and made a sexually inappropriate comment to a student. They sustained the allegations as sexual misconduct and notified the teacher to the CCYP under Category One. We did not agree that the teacher’s actions, although inappropriate, met the threshold of reportable conduct. We asked the agency to review their finding and CCYP notification. They amended their finding to ‘not reportable conduct’ and withdrew the teacher’s CCYP notification.”

While the outcome was welcome for the teacher, the process was no doubt extremely stressful. We often “coach” school principals as they investigate allegations against staff to ensure they do not end up making basic mistakes.

“A high school teacher had a sexual relationship with a 12 year old student over a three year period and was grooming other young students for sexual abuse. The investigation was lengthy and complex due to police involvement, the refusal of the teacher to cooperate with the investigation, and some reluctance by the alleged victim to be formally interviewed. The teacher was on alternative duties to mitigate risks to other students, but there was evidence he may have been grooming other children over the internet. To manage risk to children while ensuring procedural fairness to the employee, we worked closely with the agency to improve timeliness without compromising the quality of the investigation. Ultimately the agency sustained the allegations and placed the teacher on the list of people never to be employed in NSW government schools.”

Risk management is very important when allegations are made against staff. David Ford’s paper Risk Management when faced with Child Abuse Allegations (download from Education page of our website) is a valuable guide in this area.

In another case study, the Ombudsman noted that he had reviewed the school’s policies

“which were outdated and contained no clear reference to the Ombudsman’s jurisdiction.”

We continue to be surprised to find outdated and incomplete child protection policies sitting on school shelves. Not only does this put at risk school registration in some states; it also leaves school leaders and teachers in the dark when allegations are made and require investigation. Many NSW schools have solved the problem by investing in Emil Ford’s proven Child Protection Policy, saving themselves hundreds of staff hours trying to DIY.

Finally, the Ombudsman notes that technology plays an increasingly significant role in many of the more serious allegations schools are asked to investigate. David Ford has assisted in many investigations involving misuse of technology.
 


References can cause problems! 

A former student of a Queensland state school, was sexually abused from 1983 to 1992 by a teacher at the school. She is now suing the school which employed the teacher before he moved to the Education Department. The former student alleges that in 1980 the mother of two girls at the school approached the Head with a complaint that the teacher had inappropriately touched her daughters. As a result of the complaint the Head confronted the teacher with the allegations. The teacher tendered his resignation which was accepted.

However, the Head provided the teacher with a written reference dated 10 September 1980 in very positive terms and stated that he left the school with the school’s blessing and that: “He has also captured the enthusiasm of his pupils demonstrating at all times his deep concern for their welfare and progress as well as maintaining the highest possible standards”. The reference did not disclose the allegations of misconduct. The teacher applied for employment with the Education Department. Two days after the reference was given, he was interviewed by two Department employees, was classified as being suitable for employment and commenced employment with the Department on 6 October 1980.
The former student is claiming that the Head breached a duty of care owed to her and that as a result she was sexually abused. The Queensland Supreme Court has allowed her an extension of time to bring her claim.


Bullying is a serious problem!

In 1994, Ben Cox was in kindergarten at a NSW public school. There he was exposed to an older boy, TH. Over several months in 1994, and into 1995, TH subjected Ben to repeated harassment, with various incidents of bullying. Soon after starting at the school, Ben’s mother, Mrs Cox, observed a change in his behaviour at home. He began to suffer headaches, experience nightmares, and his behaviour and his schoolwork deteriorated. He began refusing to attend school. Ben told Mrs Cox that there had been “a boy pinching things off him, schoolbooks, pencils, and he was shoving him into the walls at school, and he was scaring him.” This was happening before school, at recess, and at lunch. Ben came home from school upset and crying. Mrs Cox told a teacher at the school what was happening. The teacher said that they would “keep an eye on Ben”.

In February 1995, Mrs Cox spoke to the principal, who knew that the perpetrator of the harassment was TH. The principal told Mrs Cox that TH suffered from Attention Deficit Disorder and that could be the explanation for his conduct towards Ben. She told Mrs Cox that they would try to keep Ben and TH separate at school times.

On 23 February, Mrs Cox, getting a call from the school, went there and found Ben “shaking and crying” with red marks on the front of his neck and what looked like burn marks on the back of his neck. A teacher told her that TH had attempted to strangle Ben with his hands.

 Later that day, Mrs Cox spoke to the vice-principal who told her that he would reprimand TH. That night Ben was severely traumatised. He didn’t return to school for about 2 weeks.
Following these events, Mrs Cox spoke to yet another member of the school staff, who again told her that TH suffered from ADD and suggested that caused TH’s behaviour. He asked if Ben had done anything to provoke the attack to which Mrs Cox replied “No”. Mrs Cox then spoke to two Department officers. She recounted the strangulation incident and complained that the school authorities had not acted. One of the officers told her that bullying builds character and that he thought it was a good thing that Ben got bullied.

Some time after the 23 February incident, Ben told Mrs Cox that TH was “scaring him, pushing him into the walls of the school as he walked past him, jumping out from behind buildings, including the school toilets, and scaring him so much that he couldn’t even use the toilets at the time.” Mrs Cox spoke again to the vice-principal who told her that TH’s parents would be required to come to the school and supervise TH during recess and before and after school. There was no evidence that this happened.

At the end of July 1995, when Mrs Cox picked Ben up from school, he was crying and very red, saying “The big boy has hurt me again.” There were red welts across the back of his body. Ben said that TH had done this and that TH threatened that, if he reported the matter to a teacher, he would be hurt again. Mrs Cox walked with Ben back into the school, and again saw the vice-principal who said that TH would be placed on detention, that a letter would be sent home and that one of his parents would be required to come to the school to supervise TH. Again, there was no evidence that this proposal was implemented. Ben didn’t return to school for about 2 weeks. On 8 August, the school telephoned Mrs Cox to tell her that Ben had been in a fight. She went to the school to find Ben in the office, crying, his mouth bleeding. A lower tooth was missing and his lip was swollen, cut and bleeding. Ben told her that TH had tried to shove his jumper down his throat. Mrs Cox spoke to the vice-principal and the new principal. They told her yet again that a letter would be sent home to TH's parents, and that TH would be placed on detention. Ben refused to return to school.

Mrs Cox reported the incident to the local police. A local policeman visited TH’s parents at home. Two days later, when Ben had returned to school, TH accosted him, saying: “It was funny how the police came to my house. And if they come again, I’ll threaten to kill you.”

In September 1995, Ben stopped attending school altogether. Mrs Cox told the principal that she was taking Ben out of school, because the school could not provide a safe place for him. She also said: “I am not going to submit my son to any more bullying and hurting.” The principal replied: “You lose some kids and keep some.”

While trying to find a new school for Ben, Mrs Cox contacted the Department officer again. Once more, he said that “bullying builds character”.

Today, Ben suffers from psychiatric conditions identified as Depression and Anxiety Disorder, Separation Anxiety Disorder, and Post-Traumatic Stress Disorder. He is unemployable and is in receipt of a disability pension.

Not surprisingly, the Court found the teachers and the Department in breach of their duty of care to Ben because they had failed to take any reasonable steps to protect him from repeated harassment and bullying. The Court noted “that the conduct of TH was expressly and repeatedly brought to the attention of various teachers, including at the highest level in the school. ...this was not an isolated incident, which occurred unexpectedly, and which the school could not reasonably be expected to have foreseen. This conduct was conduct which was not only foreseeable, but of which the school had actual and repeated notice. As a consequence, it was necessary that the school take greater than normal steps to eliminate the bullying in this case.” The Court also said that “the suggestions that TH suffered from Attention Deficit Disorder imply that the staff were well aware of his behavioural problems....TH’s propensities were known to the school authorities independently of anything brought to their attention by Mrs Cox; and even if that were not so, the school was thoroughly on notice after Mrs Cox’s repeated complaints about the behaviour of TH towards [Ben].” There was no evidence to suggest that the school had done anything to implement effective anti-bullying programs, to educate staff and students, to have a management plan for eradicating bullying, or anything else. Basically, the Court said, “The staff made no attempt to deal with a serious problem.” And, “The school authorities responded quite inadequately to an escalating problem and failed to take such steps as were reasonably required to protect [Ben] from the conduct of a plainly behaviourally disturbed older pupil.”
 


Child Protection – NSW

Teachers in NSW are well aware that they have a statutory obligation to report to the Department of Community Services when they have reasonable grounds to suspect that a child is at risk of harm. Most are also aware that, if they make that report in good faith, the making of the report does not constitute a breach of professional etiquette or ethics and no liability for defamation is incurred because of the report. However, in most schools, the school’s child protection policy obliges teachers to report in the first instance to the principal who would normally be expected to make the report to DoCS. Up until now, the protections afforded under the legislation have extended only to the principal as he or she is the person making the report. That situation has been remedied by the parliament passing an amendment to the Children and Young Persons (Care and Protection) Act 1998. Now, the protections extend to any person who provided information on the basis of which the report was made, in good faith.
 


Moral Obligations?

“All members of the community and, in particular, parents have a right to expect the highest standards of moral and ethical behaviour on the part of teachers. They place great trust in teachers.” This statement was described as “unexceptional as a statement of the obligations of teachers to students and the parents of the students” by a judge of the Industrial Relations Commission of NSW in 1997. Earlier this year, the Full Bench of the IRC of SA endorsed this view. The SA case involved a teacher who had failed to report an instance of alleged child abuse which came to her attention away from school and out of school hours. Although there was no statutory obligation to report the suspected abuse in these circumstances, the Commission said:

[The teacher] is a member of a profession that has particular standards, responsibilities and obligations with respect to children placed in her care. Where the school and its teachers are an important part of a small regional community, such responsibilities are likely to be even greater than would be the case in a metropolitan environment. Added to this is the fact that the school at which the [teacher] taught is a Catholic school which promotes a Catholic ethos. As the [teacher] well knew, the school placed a particular emphasis on the rights of children and the need to protect them, and on the role of its teachers in this regard, not only whilst at school, but generally as members of the community. A teacher who works in a Catholic school in a small regional community could be said to assume a special responsibility in this regard as part of his or her duties.

Accordingly, the IRC agreed with the school that the teacher was in breach of her contractual duties to report. This justified her dismissal.

This case underlines the importance of having a well thought-out child protection policy and of ensuring that any divergence between the policy and the relevant statutory obligations has been deliberately rather than accidentally adopted. The Emil Ford Child Protection Policy deals with all these matters in complete compliance with NSW law. Please contact us if you would like a copy. 


Sacked for failing to notify

In most States, teachers are required to notify the local child welfare department if they suspect upon reasonable grounds that a child is being abused. While the legislation varies from State to State, the general thrust is the same - if, in the course of your work, you become aware of something that makes you suspect that a child has been abused or is at risk of being abused, you must notify.

A South Australian teacher found herself with a dilemma when a neighbour, the mother of a 12 year old boy at her school, complained to the teacher that the teacher’s husband had shown the boy and his mates pornographic material. Did she have reasonable grounds to suspect? She said she did not because she didn’t believe her husband would do such a thing! The situation was made worse when the teacher told the boy not to tell anybody at school about the matter.

The school found out after the boy told another teacher. The school investigated and dismissed the teacher. The teacher claimed that her dismissal was harsh, unfair and unreasonable and she sought reinstatement. The South Australian Industrial Relations Commission dismissed her claim. The Commission found that she had a moral obligation under the legislation and the school’s policy (which reflected the legislation in South Australia) to report the matter, even though she wasn’t actually working when she found out about it.

While there are some questionable aspects to this decision, it certainly underlines the importance of schools having comprehensive child protection policies and ongoing in-servicing of staff in relation to child protection matters.

NSW schools which wish to ensure that they are compliant in this area may contact us to obtain Emil Ford Lawyers' child protection policy. is also available to speak to teachers about their obligations under NSW legislation.
 


New NSW Reporting Obligations

From 2004, the Ombudsman Act (NSW) has obliged principals to notify the Ombudsman of any reportable allegation or conviction against a school employee of which they become aware. Reportable convictions are convictions anywhere of an offence involving reportable conduct. Reportable allegations are allegations of reportable conduct against a person or allegations of misconduct that may involve reportable conduct. Reportable conduct means:

  • any sexual offence, or sexual misconduct, committed against, with or in the presence of a child; or
  • any assault, ill-treatment or neglect of a child; or
  • any behaviour that causes psychological harm to a child whether or not, in any case, with the child’s consent.

The legislation spells out certain conduct that is not reportable conduct even though it would otherwise fall within the definition:

  1. conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards, or
  2.  the use of physical force that, in all the circumstances, is trivial or negligible, but only if the matter is to be investigated and the result of the investigation recorded under workplace employment procedures, or
  3. conduct of a class or kind exempted from being reportable conduct by the Ombudsman.

Examples of conduct that would not constitute reportable conduct include touching a child in order to attract a child’s attention, to guide a child or to comfort a distressed child; teachers raising their voice to attract attention or to restore order in the classroom; and conduct that is established to be accidental.

Employers must now notify the Commission for Children & Young People of any completed disciplinary proceedings against an employee involving:

  • reportable conduct by the employee, or
  • an act of violence by the employee in the course of employment and in the presence of a child except where it is found that the alleged conduct or act of violence did not occur or that the allegations were vexatious or misconceived.
     

Family Law Amendment (Child Protection Convention) Act 2003

Schools should be aware that there will soon be greater certainty in children's matters between courts here and in other countries. The Commonwealth Family Law Amendment (Child Protection Convention) Act 2002 will come into force on 1 August, and will implement the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996. Currently there are no clear jurisdictional rules governing such disputes, resulting in Australian and overseas courts sometimes making conflicting orders in relation to the same children. Implementing the Convention in Australia will eliminate conflict between Australian courts and courts abroad in family law and child protection cases, ensure the recognition of Australian Court orders overseas, and allow child protection authorities in Australia to co-operate in relation to protective measures for an Australian child overseas. This will provide clearer guidelines in cases of abduction and unlawful removal of a child when that child resides with a parent in Australia by court order and has the other parent residing in another Convention country. 


Crimes Amendment (School Protection) Act 2002 

This Act amends the Crimes Act 1900 (NSW) by creating specific offences relating to the protection of school premises and premises being used for school purposes from intruders who seek to harm staff or students.

In his Second Reading Speech, the Minister for Education and Training emphasised that schools should be a sanctuary for students and staff to learn, teach and work in a safe environment. School authorities have become increasingly concerned about intruders entering school property to intimidate or assault staff and students. In response, schools have been requiring visitors to report to the front office to receive a visitor’s tag which they must display while on school premises. This kind of measure has prompted and now complements the changes that the Act has introduced.

Under the Act, a person who assaults, stalks, harasses or intimidates staff or students on school property is guilty of an offence. This also covers staff or students entering or leaving school property for “schoolwork” or duty and includes areas used for school purposes, such as playing fields. These offences and penalties represent a significant new level of protection for all schools. The Act carries an unequivocal message to the community that schools are special places which need the protection of the law. 


Liability of schools for deliberate acts of teachers 

The High Court granted special leave for the Queensland cases of Rich and Samin and the NSW Case of Lepore to be heard before the full bench of the High Court. The Queensland cases involved young female school students being assaulted by their male teacher in a one teacher school in the 1960s. In Lepore, Angelo Lepore sued the State of NSW for acts of abuse he suffered at the hands of a teacher at a state primary school in 1978. Angelo had been beaten on the bare bottom by a ruler, sometimes in the presence of other children. He was 7 or 8 at the time. The teacher had pleaded guilty to common assault in 1978. The Court of Appeal said the State was liable for the intentional wrongs of its employee. 


Overseas News: United States – Duty to notify child abuse in New York

Schools Chancellor Harold Levy removed an assistant principal from a Bronx school in May after she failed to notify the police about a sexual attack on two grade 5 girls by two grade 6 boys in a school stairwell. The incident occurred on the same day that school and city officials endorsed a proposal to make it a crime to fail to report sexual misconduct in a school to the police. The boys, aged 13 and 14, are accused of cornering the girls, aged 11 and 12, in a school stairwell, where one boy fondled their breasts and buttocks while the other boy held a door shut, preventing their escape.

NSW teachers are, of course, already obliged to notify DoCS if they have reasonable grounds to suspect that a child is at risk of harm and those grounds arise during the course of or from their work. A child is at risk of harm if current concerns exist for their safety, welfare or well-being because, among other things, the child has been, or is at risk of being, physically or sexually abused or ill-treated.


Should I notify DoCS? New legislation commences!

In light of the Children and Young Persons (Care and Protection) Act, teachers must quickly come to grips with the new concept of a child being at risk of harm. If a teacher has reasonable grounds to suspect that a child is at risk of harm, the Department of Community Services must be notified. School chaplains need to know that there is no longer an exemption for ministers of religion.

A child is at risk of harm if current concerns exist for their safety, welfare or well-being because of the presence of any one or more of the following circumstances:

  • their basic physical or psychological needs are not being met or are at risk of not being met;
  • the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive necessary medical care;
  • the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated;
  • the child or young person is living in a household where there have been incidents of domestic violence and, as a consequence, the child or young person is at risk of serious physical or psychological harm;
  • a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm.

Your school's child protection policy ought to be revised to take into account the new provisions. 


Child Protection Case Studies

The NSW Ombudsman released his Annual Report recently. The published case studies provide useful lessons for schools throughout Australia seeking to implement best practice in child protection.

“A non-government school investigated allegations that a teacher used inappropriate language and made a sexually inappropriate comment to a student. They sustained the allegations as sexual misconduct and notified the teacher to the CCYP under Category One. We did not agree that the teacher’s actions, although inappropriate, met the threshold of reportable conduct. We asked the agency to review their finding and CCYP notification. They amended their finding to ‘not reportable conduct’ and withdrew the teacher’s CCYP notification.”

While the outcome was welcome for the teacher, the process was no doubt extremely stressful. We often “coach” school principals as they investigate allegations against staff to ensure they do not end up making basic mistakes.

“A high school teacher had a sexual relationship with a 12 year old student over a three year period and was grooming other young students for sexual abuse. The investigation was lengthy and complex due to police involvement, the refusal of the teacher to cooperate with the investigation, and some reluctance by the alleged victim to be formally interviewed. The teacher was on alternative duties to mitigate risks to other students, but there was evidence he may have been grooming other children over the internet. To manage risk to children while ensuring procedural fairness to the employee, we worked closely with the agency to improve timeliness without compromising the quality of the investigation. Ultimately the agency sustained the allegations and placed the teacher on the list of people never to be employed in NSW government schools.”

Risk management is very important when allegations are made against staff. David Ford’s paper Risk Management when faced with Child Abuse Allegations is a valuable guide in this area.
 

In another case study, the Ombudsman noted that he had reviewed the school’s policies “which were outdated and contained no clear reference to the Ombudsman’s jurisdiction.”

We continue to be surprised to find outdated and incomplete child protection policies sitting on school shelves. Not only does this put at risk school registration in some states; it also leaves school leaders and teachers in the dark when allegations are made and require investigation. Many NSW schools have solved the problem by investing in Emil Ford’s proven Child Protection Policy, saving themselves hundreds of staff hours trying to DIY.

Finally, the Ombudsman notes that technology plays an increasingly significant role in many of the more serious allegations schools are asked to investigate. David Ford has assisted in many investigations involving misuse of technology.  


The seriousness of sexual offences

A decision of the Court of Criminal Appeal in New South Wales (2011) has underlined the seriousness of sexual offences by teachers. A school principal had been convicted of sexual assault of a Year 8 girl. She had been having difficulties in her relationship with her family. As a result, her parents consulted the principal who suggested that the girl should come to stay with him and his family for some “time out”.

She did this. During the two week stay, one afternoon after school, he gave her two tablets, saying they were Panadol. She took one which caused her to fall asleep, still in her school uniform. The next thing she remembered was waking up in her nightdress, lying on the bed with the principal on top of her having intercourse. He told her to “just be quiet and lie there”. She screamed for him to stop, but he continued, holding her down by the arms.

The principal was sentenced in the District Court to six years with a non-parole period of four years. The Crown appealed. The Court of Criminal Appeal increased the sentence to 10 years imprisonment with a non-parole period of six years. The principal tried to point to his depressive state. The Court said ill health is not a licence to commit crime. The principal said that he had already been punished by losing his career as a teacher. The Court said he must have known that his sexual pursuit of students in his care would sooner or later bring his professional career to an end.


Who are you hiring?

What would you do if there was only one suitable applicant for a teaching position but you had been cautioned about appointing the teacher?  If a teacher had been “let go” because of “irregular conduct in his attitude towards the boys”, would you make further investigations? 

A  Brisbane school discovered how important it is to take any suggestion of improper conduct seriously when seeking verbal references for staff.  A former student of School A alleged that while at school he was sexually abused by his music teacher, Mr K.  Before engaging Mr K, the Head of School A had spoken to the Head at School B which had previously employed Mr K.  The School B Head gave the warning of “irregular conduct”.

Further investigations by School A’s Head into Mr K’s background may have uncovered his history of “improper and disgraceful conduct”.  Mr K had, in fact, been dismissed from his employment as a teacher in South Australia when it was found that he had sexually abused boys in his care.  Remarkably, the dismissal had been rescinded and his resignation was accepted!  Mr K then managed to gain employment at School B where he was again dismissed due to his irregular conduct towards the boys in his care.

Statements made by School A’s Head indicate that the verbal reference did not contain exact reasons for Mr K’s dismissal, just vague references to “irregular conduct”.  The former School A student sued School A claiming that the psychological damage he suffered as a result of Mr K’s actions was, at least in part, the fault of School A as the Head had been warned about Mr K and should not have hired him.

So was School A liable for the damage suffered by the former student?  Luckily for School A, a lengthy period of time had elapsed since the incidents.  The memories of those involved had faded and other witnesses had died.  The court was not prepared to extend the time for him to bring his claim.

However, if this matter had been brought before the court in a timelier manner, the outcome may well have been quite different!  Child protection legislation and related background screening will often identify teachers with a risk profile but reference checking is still important when engaging new staff.


Take care in Kindergarten

In the United States, a kindergarten boy was allowed by his teacher to make an unsupervised visit to the toilet with three other kindergarten boys. While there, the three boys sexually assaulted the youngster by pulling his pants down, attempting anal intercourse, and forcing him to perform sexually explicit oral behaviour with them. The victim has had psychological problems. The matter is still being litigated.

You may be thinking: "It could only happen in America!" Sadly, this isn't the case. We have handled two matters in recent times where infants students have allegedly sexually assaulted their peers. Those in charge of pre-schools and infants classes must be mindful of the risk of this type of behaviour occurring and take steps to manage the risk.


 Need help with a Child Protection Issue?
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