CHILD PROTECTION DOCUMENTS
2019
Kincoppal - Rose Bay School of the Sacred Heart
CHILD PROTECTION POLICY Purpose
As part of the duty of care responsibilities of all staff, Kincoppal - Rose Bay School has a mandate to ensure that all children are safe and protected from harm. This policy outlines the principles adopted by Kincoppal-Rose Bay School for protecting children from harm and neglect. This Policy outlines the key concepts and definitions under the relevant legislation including mandatory reporters, reportable conduct, and risk management. It also sets out expected standards of behaviour in relation to employees and contractors and their relationships with students.
Document Management Relevant to
KRB School Community
Reviewed by
Deputy Principal School Counsellor
Modification history
Created October 2004 Reviewed April 2005; December 2005; June 2007; August 2008; January 2010; July 2012; November 2013; November 2014, March 2015 Major Revision: January 2019 Revised: April 2019
Related documents
Child Protection Procedural Guidelines Staff Code of Professional & Pastoral Practice Positive Peer Relations (Anti Bullying) Policy Behaviour Management Policy Complaint handling Procedures
Related legislation
The Ombudsman Act 1974 (NSW) The Children and Young Persons (Care & Protection) Act 1998 (NSW) The Child Protection (Offenders Registration) Act 2000 The Crimes Amendment (Child Protection – Physical Mistreatment) Act, 2001 (NSW) The Crimes Amendment (Sexual Offences) Act, 2003 (NSW) The Child Protection Legislation Amendment Act, 2003 (NSW) The Crimes Amendment (Sexual Procurement or Grooming of Children) Act, 2007 (NSW) Children’s Legislation Amendment (Wood Inquiry Recommendations) Act, 2009 (‘Keep Them Safe’ policy and procedures for all schools)
The Children (Education and Care Services National Law Application) Act, 2010 (NSW) – Out of School Care and Early Childhood The Child Protection (Working with Children) Act 2012 The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 The policy is to be reviewed every three years or in the event of any information or incident that would warrant a review (including legislative or organisational change).
Review
Introduction Children and young people have a right to be safe in their places of learning, work and play. It is imperative that people who care for children must act in the best interests of the child and take all reasonable steps to ensure the child’s safety. As part of the Duty of Care responsibilities of all staff, Kincoppal-Rose Bay School has a mandate to ensure that all children are safe and protected from harm. The experience of harm and neglect can negatively impact social, emotional and intellectual development during childhood and adolescence, which are crucial for general health and wellbeing throughout life. The impact is especially significant due to children’s vulnerability and their dependence upon adults. Kincoppal-Rose Bay School is concerned to prevent all forms of harm and neglect of children and, where this is not possible, to recognise harm when it is occurring and to intervene effectively to prevent the traumatic effects both in the short and long term. Thus, this policy serves to prevent harm from occurring and to intervene effectively when there is a risk of harm to a child.
Objectives The purpose of this Policy is to summarise the obligations imposed by child protection legislation on the School and on employees, contractors and volunteers at the School and to provide guidelines as to how the School will deal with certain matters. This document sets out the School’s child protection policy in broad terms. Further information and advice can be gained from the Principal, Deputy Principal, Head of Junior School or from the School Counsellors. Child protection is a community responsibility.
Key Legislation There are four key pieces of child protection legislation in New South Wales: a)
the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Act);
b)
the Ombudsman Act 1974 (NSW) (the Ombudsman Act).
c)
the Child Protection (Working With Children) Act 2012 (NSW) (the WWC Act);
d)
the Crimes Act (amendments 2018)
We deal with each below.
Your obligations to report While we set out below circumstances in which the legislation requires reporting of particular child protection issues, the School requires you to report any concern you may have about the safety, welfare or wellbeing of a child or young person to the Principal. If the allegation involves the Principal, you are required to report to the Chair of the School Board.
This obligation is part of the School's overall commitment to the safety, welfare and well-being of children.
PART A: THE CARE AND PROTECTION ACT – MANDATORY REPORTING The Care and Protection Act provides for mandatory reporting of children at risk of significant harm. NOTE: Any concern regarding the safety, welfare or well-being of a student must be reported to the Principal.
1. Who is a mandatory reporter?
Under the Care and Protection Act persons who: a) in the course of their employment, deliver services including health care; welfare, education, children's services and residential services, to children; or b) hold a management position in an organisation, the duties of which include direct responsibility for, or direct supervision of, the provision of services including health care, welfare, education, children's services and residential services, to children, are mandatory reporters. All teachers are mandatory reporters. Other School employees may also be mandatory reporters. If you are not sure whether you are a mandatory reporter you should speak to the Principal.
2. When must a report be made Community Services? 2.1
What is the threshold?
A mandatory reporter must, where they have reasonable grounds to suspect that a child (under 16 years of age) is at risk of significant harm, report to the Department of Family and Community Services (FACS) as soon as practicable, the name, or a description, of the child and the grounds for suspecting that the child is at risk of significant harm. Kincoppal-Rose Bay School uses centralised reporting, in accordance with the Memorandum of Understanding on Mandatory Reporting for the Education Sector signed between Community Services, the Association of Independent Schools and the Catholic Education Commission. Centralised reporting involves a mandatory reporter reporting via the Principal, who then makes a report to Community Services. In addition, while not mandatory, the School considers that a report should also be made to Community Services where there are reasonable grounds to suspect a young person (16 or 17 years of age) is at risk of significant harm and there are current concerns about the safety, welfare and well-being of the young person. 2.2
Reasonable grounds
'Reasonable grounds' refers to the need to have an objective basis for suspecting that a child or young person may be at risk of significant harm, based on:
a)
first hand observations of the child, young person or family
b)
what the child, young person, parent or another person has disclosed
c)
what can reasonably be inferred based on professional training and / or experience.
'Reasonable grounds' does not mean that you are required to confirm your suspicions or have clear proof before making a report. 2.3 Significant harm
A child or young person is 'at risk of significant harm' if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent, of any one or more of the following circumstances: a)
the child’s or young person’s basic physical or psychological needs are not being met or are at risk of not being met,
b)
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,
c)
in the case of a child or young person who is required to attend school in accordance with the Education Act 1990 —the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive an education in accordance with that Act,
d)
the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated,
e)
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,
f)
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,
g)
the child was the subject of a pre-natal report under section 25 of the Care and Protection Act and the birth mother of the child did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical, the risk factors that gave rise to the report.
2.4
Other relevant definitions
Policy definition of significant harm
A child or young person is at risk of significant harm if the circumstances that are causing concern for the safety, welfare or well-being of the child or young person are present to a significant extent. What is meant by 'significant' in the phrase 'to a significant extent' is that which is sufficiently serious to warrant a response by a statutory authority irrespective of a family's consent.
What is significant is not minor or trivial, and may reasonably be expected to produce a substantial and demonstrably adverse impact on the child or young person's safety, welfare or well-being. In the case of an unborn child, what is significant is not minor or trivial, and may reasonably be expected to produce a substantial and demonstrably adverse impact on the child after the child's birth. The significance can result from a single act or omission or an accumulation of these. Child is a person under the age of 16 years for the purposes of the Care and Protection Act. Child abuse and neglect
There are different forms of child abuse. These include neglect, sexual, physical and emotional abuse. Neglect is the continued failure by a parent or caregiver to provide a child with the basic things needed for his or her proper growth and development, such as food, clothing, shelter, medical and dental care and adequate supervision. Physical abuse is a non-accidental injury or pattern of injuries to a child caused by a parent, caregiver or any other person. It includes but is not limited to injuries which are caused by excessive discipline, severe beatings or shakings, cigarette burns, attempted strangulation and female genital mutilation. Injuries include bruising, lacerations or welts, burns, fractures or dislocation of joints. Hitting a child around the head or neck and/or using a stick, belt or other object to discipline or punishing a child (in a non-trivial way) is a crime. Serious psychological harm can occur where the behaviour of their parent or caregiver damages the confidence and self-esteem of the child or young person, resulting in serious emotional deprivation or trauma. Although it is possible for ‘one-off’ incidents to cause serious harm, in general it is the frequency, persistence and duration of the parental or carer behaviour that is instrumental in defining the consequences for the child. This can include a range of behaviours such as excessive criticism, withholding affection, exposure to domestic violence, intimidation or threatening behaviour. Sexual abuse is when someone involves a child or young person in a sexual activity by using their power over them or taking advantage of their trust. Often children are bribed or threatened physically and psychologically to make them participate in the activity. Child sexual abuse is a crime. Child wellbeing concerns are safety, welfare or wellbeing concerns for a child or young person that do not meet the mandatory reporting threshold, risk of significant harm. Young person means a person who is aged 16 years or above but who is under the age of 18 years for the purposes of the Care and Protection Act.
3 What should you do if you consider that a mandatory report is required? Reporting by the School about these matters to Community Services and, where necessary, the police, is generally undertaken by the Principal. This is supported by Community Services in accordance with best practice principles and is the expectation of the School. If you have a concern that a child or young person is at risk of significant harm you should contact the Principal as soon as possible to discuss whether the case reaches the threshold of 'risk of significant harm' and the steps required to report the matter. However, if there is an immediate danger to the child or young person and the Principal or next most senior member of staff is not contactable you should speak to the Police and/or the Child Protection Helpline directly and then advise the Principal or next most senior member of staff at the School as soon as possible. You are not required to, and must not, undertake any investigation of the matter yourself. You are not to inform the parents or caregivers that a report to Family and Community Services has be made. You are required to deal with the matter confidentially and only disclose it to the persons referred to above or as required to comply with your mandatory reporting obligations. Failure to maintain confidentiality will not only be a breach of this policy, but could expose you to potential civil proceedings for defamation.
4 What should you do if you have a concern that is below the mandatory reporting threshold? While the Care and Protection Act outlines a mandatory reporter’s obligation to report to Family and Community Services, as an employee of this School, any concern regarding the safety, welfare and wellbeing of a student must be reported to the Principal. Staff members who are unsure as to whether a matter meets the threshold of ‘risk of significant harm’ should report their concern to the Principal regardless. You are required to deal with all reports regarding the safety, welfare or wellbeing of a student with confidentially and only disclose it to the Principal and any other person the Principal nominates. Failure to do so will be a breach of this policy.
PART B: THE OMBUDSMAN ACT – REPORTABLE CONDUCT 1
Responsibilities
1.1
General
Part 3A of the Ombudsman Act requires the heads of certain agencies, including nongovernment schools in New South Wales, to notify the New South Wales Ombudsman of all allegations of reportable conduct by an 'employee' and the outcome of the School's investigation of these allegations. An 'employee' includes employees, contractors, volunteers, work experience participants, clergy, ministers of religion and instructors of religion who provide pastoral or liturgical services. In this part where there is a reference to an employee it includes all of these persons. Under the ombudsman Act allegations of child abuse only fall within the reportable conduct jurisdiction if the involved individual is an employee of the school at the time when the allegation becomes known by the Head of Agency. 1.2
The Ombudsman
The Ombudsman:
1.3
a)
must keep under scrutiny the systems for preventing reportable conduct by employees of non-government schools and the handling of, or response to, reportable allegations (including allegations which are exempt from notification) or convictions;
b)
must receive and assess notifications from non-government schools concerning reportable conduct or reportable convictions;
c)
is required to oversee or monitor the conduct of investigations by non-government schools into allegations of reportable or reportable convictions;
d)
must determine whether an investigation that has been monitored has been conducted properly, and whether appropriate action has been taken as a result of the investigation;
e)
may directly investigate an allegation of reportable conduct or reportable conviction against an employee of a non-government school, or the handling of or response to such a matter (eg arising out of complaints by the person who is the subject of an allegation); and
f)
may undertake ‘own motion’ investigations of non-government schools where the Ombudsman considers it appropriate to do so, including where there is evidence of systemic failure or serious conflict of interests.
Head of Agency
The Head of Agency is the Principal of the School.
Under the Ombudsman Act the Head of Agency must:
1.4
a)
set up systems within their organisation to ensure that they are advised of any allegations of reportable conduct against employees;
b)
notify the Ombudsman (using a NSWO Part A notification form) as soon as possible and no later than thirty days after being made aware of an allegation;
c)
notify the Ombudsman whether or not the School plans to take disciplinary or other action in relation to an employee who is the subject of a reportable allegation or conviction, and the reasons for taking or not taking any such action as soon as practicable; and
d)
provide the Ombudsman with any documentary and other information as the Ombudsman may from time to time request to assist in the Ombudsman’s monitoring of an investigation.
This will typically include the NSWO Part B notification form and risk assessments. Your obligations to report You must report any concerns you may have about any other employee engaging in reportable conduct or any allegation of 'reportable conduct' that has been made to you, to the Principal, including information about yourself. If you are not sure whether the conduct is reportable conduct but consider that it is inappropriate behaviour you must still report it. You must also report to the Principal if you become aware that an employee has been charged with or convicted of an offence (including a finding of guilt without the court proceeding to a conviction) involving reportable conduct. This includes information relating to yourself. If the allegation involves the Principal, you are required to report to Chair of the School Board
1.5
Contact for parents
The Principal is the contact point for parents if they wish to report an allegation of reportable conduct against an employee.
2
What is reportable conduct?
2.1
Definition of reportable conduct
Reportable conduct is defined as: a)
any sexual offence or sexual misconduct committed against, with or in the presence of a child (including a child pornography offence or an offence involving child abuse material);
b)
any assault, ill-treatment or neglect of a child; and
a)
any behaviour that causes psychological harm to a child whether or not, in any case, with the consent of the child.
Reportable conduct does not extend to:
2.2
a)
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
b)
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
c)
conduct of a class or kind exempted from being reportable conduct by the Ombudsman under section 25CA.
Other relevant definitions
Set out below are definitions of the various terms referred to above in relation to reportable conduct. Behaviour that causes psychological harm to a child is behaviour that is obviously or very clearly unreasonable and results in significant harm or trauma to a child. There needs to be a proven causal link between the inappropriate behaviour and the harm, and the harm must be more than transient. Child is a person under the age of 18 years for the purposes of the Ombudsman Act. Ill-treatment captures those circumstances where a person treats a child in an unreasonable and seriously inappropriate, improper, inhumane or cruel manner. The focus is on the alleged conduct rather than the actual effect of the conduct on the child.
Ill-treatment can include disciplining or correcting a child in an obviously unreasonable and seriously inappropriate manner; making excessive and/or degrading demands on a child; hostile use of force towards a child; and/or pattern of hostile or unreasonable and seriously inappropriate, degrading comments or behaviour towards a child. Neglect includes either an action or inaction by a person who has care responsibility towards a child. The nature of the employee’s responsibilities provides the context against which the conduct needs to be assessed.
1. Supervisory neglect: §
An intentional or reckless failure to adequately supervise a child that results in the death of, or significant harm to, a child, or
§
An intentional or reckless failure to adequate supervise a child or a significantly careless act or failure to act, that: -
Involves a gross breach of professional standards, and
-
Has the potential to result in the death or significant harm to a child.
2. Carer neglect:
§
Grossly inadequate care that involves depriving a child of the basic necessities of life: such as the provision of food and drink, clothing, critical medical care or treatment, or shelter.
3. Failure to protect from abuse: §
An obviously or very clearly unreasonable failure to respond to information strongly indicating actual or potential serious abuse of a child.
4. Reckless act (or failure to act): §
A reckless act, or failure to act, that: -
Involves a gross breach of professional standards, and
-
Has the potential to result in the death of, or significant harm to, a child.
Physical Assault is any act by which a person intentionally inflicts unjustified use of physical force against another. An assault can also occur if a person causes another person to reasonably apprehend that unjustified force is going to be used against them. Even if a person who inflicts physical harm or causes another person to reasonably apprehend physical harm does not actually intend to inflict the harm or cause fear, they may still have committed an assault if they acted 'recklessly'.
'Recklessness' in this context relates to circumstances when the person ought to have known that their actions would cause a person physical harm or cause them to fear injury. Assaults can include hitting, pushing, shoving, throwing objects or making threats to physically harm a child. PSOA ‘person subject to the allegation’. Reportable conviction means a conviction (including a finding of guilt without the court proceeding to a conviction), in NSW or elsewhere, of an offence involving reportable conduct. Sexual Misconduct has three categories which include:
(1) crossing professional boundaries, and (2) sexually explicit comments and (3) other overtly sexual behaviour. The alleged conduct must have been committed against, with or in the presence of a child. Crossing professional boundaries
Sexual misconduct includes behaviour that can reasonably be construed as involving an inappropriate and overly personal or intimate: § relationship with; § conduct towards; or § focus on;
a child or young person, or a group of children or young persons. Codes of conduct that outline the nature of the professional boundaries which should exist between employees and children/young people can be particularly useful. For employees who either intentionally breach such codes or have demonstrated an inability to apply them appropriately, it may be necessary to provide more detailed written advice about what constitutes appropriate behaviour. Sexually explicit comments and other overtly sexual behaviour
Behaviour involving sexually explicit comments and other overtly sexual behaviour which can constitute sexual misconduct. Some forms of this behaviour also involve crossing professional boundaries. This conduct may include: a)
inappropriate conversations of a sexual nature
b)
comments that express a desire to act in a sexual manner
c)
unwarranted and inappropriate touching
d)
sexual exhibitionism
e)
personal correspondence (including electronic communications such as e-mails and text messages) with a child or young person in relation to the adult's sexual feelings for a child or young person
f)
exposure of children and young people to sexual behaviour of others including display of pornography
g)
watching children undress. For example, in change rooms or toilets when supervision is not required or justified.
Sexual Offences encompasses all criminal offences involving a sexual element that are 'committed against, with or in the presence of a child'.
These offences include (but are not limited to) the following:
(a)
sexual touching
(b)
sexual assault
(c)
aggravated sexual assault
(d)
sexual intercourse and attempted sexual intercourse
(e)
possession/ dissemination/ production of child pornography or child abuse material
(f)
using children to produce pornography
(g)
grooming or procuring children under the age of 16 years for unlawful sexual activity
(h)
deemed non-consensual sexual activity on the basis of special care relationships
Grooming refers to patterns of behaviour or conduct aimed at engaging with an alleged victim for sexual activity.
Types of grooming behaviours may include: Persuading child/ren that there is a ‘special’ relationship’ Inappropriate gift giving Special favours / breaking rules Spending inappropriate amounts of time Secret relationship, tactics to keep relationship secret Testing boundaries (touching, physical contact, undressing in front of child, talking about sex) § Extending relationship outside of work § Personal communication about personal or intimate feelings Definitions of ‘grooming’, within child protection legislation, are complex. Under the Crimes Act, grooming or procuring a child under the age of 16 years for unlawful sexual activity is classed as a sexual offence. The Crimes Act (s73) also extends the age of consent to 18 years when a child is in a ‘special care’ relationship. Under Schedule 1(2) of the Child Protection (Working With Children) Act, grooming is recognised as a form of sexual misconduct. The NSW Ombudsman Act, 1974 and this Child Protection Policy reflect all of these definitions within the context of the Reportable Conduct Scheme (Part 3A). § § § § § §
3
What happens when an allegation of reportable conduct is made?
3.1
Initial steps
Once an allegation of reportable conduct against an employee is received, the Head of Agency is required to: (a) (b)
determine on face value whether it is an allegation of reportable conduct; assess whether Family and Community Services or the Police need to be notified (ie, if reasonable grounds to suspect that a child is at risk of significant harm or a potential criminal offence). If they have been notified, seek clearance from these statutory agencies prior to the school proceeding with the Reportable Conduct investigation;
(c)
notify the child's parents (unless to do so would be likely to compromise the investigation or any investigation by Community Services or the Police);
(d)
notify the Ombudsman within 30 days of receiving the allegation;
(e)
carry out a risk assessment and take action to reduce/remove risk, where appropriate; and
(f)
investigate the allegation or appoint someone to investigate the allegation.
3.2
Investigation principles
The School will:
(a)
follow the principles of procedural fairness;
(b) inform the person subject of the allegation (PSOA) of the substance of any allegations made against them, at the appropriate time in the investigation, and provide them with a reasonable opportunity to respond to the allegations; (c)
make reasonable enquiries or investigations before making a decision;
(d)
avoid conflicts of interest;
(e)
conduct the investigation without unjustifiable delay;
(f)
handle the matter as confidentially as possible; and
(g)
provide appropriate support for all parties including the child/children, witnesses and the PSOA.
3.3
Investigation steps
In an investigation the Head of Agency or appointed investigator will generally: (a)
interview relevant witnesses and gather relevant documentation;
(b) provide a letter of allegation to the PSOA; provide the PSOA the opportunity to make a response to the allegation either in writing or at interview; (c)
consider relevant evidence and make a preliminary finding in accordance with the NSW Ombudsman guidelines;
(d) inform the PSOA of the preliminary finding in writing by the Head of Agency and provide them with an opportunity to respond or make a further submission prior to the matter moving to Final Findings; (f)
consider any response provided by the PSOA;
(g)
make a Final Finding in accordance with the NSW Ombudsman Guidelines;
(h)
decide on the disciplinary action, if any, to be taken against the PSOA;
(i) inform the PSOA of the school’s legal reporting obligations in accordance with the NSW Ombudsman Act 1974, Part 3A and in accordance with the Child Protection (Working with Children) Act 2012 (j) in accordance with the Children(Working with Children) Act 2012, as a reporting body decide if a report of the findings of the investigation to the Office of the Children’s Guardian is required; and (k) send the final report to the Ombudsman and report to the Office of the Children’s Guardian (where required) The steps outlined above may need to be varied on occasion to meet particular circumstances. For example it may be necessary to take different steps where the matter is also being investigated by Family and Community Services or the NSW Police.
A PSOA may have an appropriate support person with them during the interview process. Such a person is there for support only and as a witness to the proceedings and not as an advocate or to take an active role.
4
Risk management Risk management means identifying the potential for an incident or accident to occur and taking steps to reduce the likelihood or severity of its occurrence. The Head of Agency is responsible for risk management throughout the investigation and will assess risk at the beginning of the investigation, during and at the end of the investigation.
4.1
Initial risk assessment
One of the first steps following an allegation of reportable conduct against an employee is for the Head of Agency to conduct a risk assessment. The purpose of this initial risk assessment is to identify and minimise the risks to: (a)
the child(ren) who are the subject of the allegation;
(b)
other children with whom the employee may have contact;
(c)
the PSOA;
(d)
the School, and
(e)
the proper investigation of the allegation.
The factors which will be considered during the risk assessment include: (a)
the nature and seriousness of the allegations;
(b)
the vulnerability of the child(ren) the PSOA has contact with at work;
(c)
the nature of the position occupied by the PSOA;
(d)
the level of supervision of the PSOA; and
(e)
the disciplinary history or safety of the PSOA and possible risks to the investigation.
The Head of Agency will take appropriate action to minimise risks. This may include the PSOA being temporarily relieved of some duties, being required not to have contact with certain students, or being suspended from duty. When taking action to address any risks identified, the School will take into consideration both the needs of the child(ren) and the PSOA. A decision to take action on the basis of a risk assessment is not indicative of the findings of the matter. Until the investigation is completed and a finding is made, any action, such as an employee being suspended, is not to be considered to be an indication that the alleged conduct by the employee did occur. 4.2
Ongoing Risk Management
The Head of Agency will continually monitor risk during the investigation including in the light of any new relevant information that emerges.
4.3
Findings
At the completion of the investigation, a finding will be made in relation to the allegation and a decision made by the Head of Agency regarding what action, if any, is required in relation to the PSOA, the child(ren) involved and any other parties.
5.
What information will be provided to the PSOA? The PSOA will be advised: (a)
that an allegation has been made against them (at the appropriate time in the investigation); and
(b)
of the substance of the allegation, or of any preliminary finding and the final finding.
The PSOA does not automatically have the right to: (a)
know or have confirmed the identity of the person who made the allegation; or
(b)
be shown the content of the Ombudsman notification form or other investigation material that reveals all information provided by other employees or witnesses.
The WWC Act enables a person who has a finding referred to the OCG under the Act to request access to the records held by the School in relation to the finding of misconduct involving children (see Part C section 3).
6.
Disciplinary Action As a result of the allegations, investigation or final findings, the School may take disciplinary action against the PSOA (including termination of employment). In relation to any disciplinary action the School will: (a)
give the PSOA details of the proposed disciplinary action; and
(b)
give the PSOA a reasonable opportunity to respond before a final decision is made.
7.
Confidentiality It is important when dealing with allegations of reportable conduct that the matter be dealt with as confidentially as possible. The School requires that all parties maintain confidentiality during the investigation including in relation to the handling and storing of documents and records.
Records about allegations of reportable conduct against employees will be kept [in a secure area] and will be accessible by [the Head of Agency or with the Head of Agency's express authority]. No employee may comment to the media about an allegation of reportable conduct unless expressly authorised by the Principal to do so. If you become aware of a breach of confidentiality in relation to a reportable conduct allegation you must advise the Principal.
PART C: WORKING WITH CHILDREN ACT
1
General The WWC Act protects children by requiring a worker to have a working with children’s check clearance or current application to engage in child related work. Failure to do so may result in fine or imprisonment. The Office of the Children’s Guardian (OCG) is responsible for employment screening for child related employment. A Working With Children Check (Check) is a prerequisite for anyone in child-related work. It involves a national criminal history check and review of reported workplace misconduct findings. The result of a Check is either a clearance to work with children for five years, or a bar against working with children. In addition the OCG may impose an interim bar on engaging in child related work for both applicants and WWCC clearance holders. Cleared applicants are subject to ongoing monitoring by the OCG, and any relevant new records which appear against a cleared applicant's name may lead to the Check being revoked. It is the responsibility of the child-related worker to ensure that when they are eligible to apply for a Check or when their Check is up for renewal that they do so.
2
Responsibilities The object of the WWC Act is to protect children: (a)
by not permitting certain persons to engage in child-related work; and
(b)
by requiring persons engaged in child-related work to have working with children check clearances.
Schools are required to: (a)
verify online and record the status of each child-related worker’s Check;
(b)
only employi or engage child-related workers or eligible volunteers who have a valid Check; and
(c)
report findings of serious physical assault or sexual misconduct findings involving children made against child-related workers or volunteers to the Office of the Children’s Guardian.
It is an offence for an employer to knowingly engage a child-related worker when they do not hold a Working with Children Check clearance or who has a bar. Staff members who engage in child-related work and eligible volunteers (including those volunteers working at overnight camps) are required to:
(a)
hold and maintain a valid Working with Children Check clearance;
(b)
not engage in child-related work at any time that they are subjected to an interim bar or a bar; and
(c)
report to the Principal if they are no longer eligible for a Working with Children Check, the status of their Working with Children Check changes or are notified by the OCG that they are subjected to a risk assessment.
(d)
Notify the Children’s Guardian of any change in their personal details within 3 months of the change occurring. Failure to do so may result in a fine.
It is an offence for an employee to engage in child-related work when they do not hold a Working with Children Check clearance or if they are subject to a bar. All volunteers are required to: (a)
to be aware and follow the expectations of conduct expressed in the School Staff Code of Conduct.
(b)
Sign a Volunteer Statutory Declaration. Some volunteers engaged in high risk roles may be required to have a Check
3
Relevant Definitions
3.1
Bars
Final bar This bar is applied based on a decision made by the OCG, following a risk assessment. This person is barred against working with children. Interim bar An interim bar is issued to high risk individuals to prevent them from continuing to work with children while a risk assessment is conducted. An interim bar may be applied for up to 12 months. If an interim bar remains in place for six months or longer, it may be appealed against through the Administrative Decisions Tribunal. Not everyone who is subject to a risk assessment will receive an interim bar; only those representing a serious and immediate risk to children. Interim bars are issued only for risks considered likely to result in a final bar. 3.2
Child-related work
Child-related work involves direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work. Child-related work includes, but not limited to work in the following sectors: (a)
early education and child care including education and care service, child care centres and other child care;
(b)
education schools and other educational institutions and private coaching or tuition of children;
(c)
religious services;
(d)
residential services including boarding schools, homestays more than three weeks, residential services and overnight camps; or
(e)
transport services for children including school bus services, taxi services for children with disability and supervision of school road crossings.
(f)
Counselling, mentoring or distance education not involving direct contact.
If you are unclear if your role is child-related you should speak with the Principal. 3.3 Application / Renewal An application or renewal can be made through Service NSW or its replacement agency. The process for applying for and renewing a Working with Children Check clearance with the OCG involves a national police check and a review of findings of misconduct. If the OCG grants or renews a Working with Children Check clearance the holder will be issued with a number which is to be provided to the School to verify the status of the Working with Children Check clearance.
3.4 Refusal/ Cancellation The OCG can refuse to grant a Working with Children Check clearance or cancel one. The person is then restricted from engaging in child-related work and not able to apply for another clearance for five years. Employers are notified by the OCG and instructed to remove such persons from child-related work.
3.5 Interim Bar The OCG may issue an interim bar, for up to 12 months, to high risk individuals to prevent them from engaging in child-related work while a risk assessment is conducted. If an interim bar remains in place for sic=x months or longer, it may be appealed to the Administrative Decisions Tribunal. Not everyone who is subject to a risk assessment will receive an interim bar; only those representing a serious and immediate risk to children.
3.6
Disqualified persons
A disqualified person is a person who has been convicted , or against whom proceedings have commenced for a disqualifying offence outlined in Schedule 2 of the WWC Act. A disqualified person cannot be granted a working with children check clearance and is therefore restricted from engaging in child related work.
3.7
Ingoing Monitoring involving Risk assessments
The OCG will continue to monitor criminal records and professional conduct findings of all WWCC clearance holders through a risk assessment process. The risk assessment in this context is an evaluation of an individual’s suitability for child-related work
The OCG will conduct a risk assessment on a person’s suitability to work with children when a new record is received which triggers a risk assessment. This may include an offence under Schedule1, pattern of behaviour or offences involving violence or sexual misconduct representing a risk to children, findings of misconduct involving children or notification made to the OCG by the Ombudsman. 3.8
Findings of misconduct involving children
The school will report to the OCG when a finding has been made that the person (an employee of the school) subject to the finding engaged in: (a) sexual misconduct committed against, with or in the presence of a child, including grooming of a child; or (b) any serious physical assault of a child. The School will advise the person that the OCG has been notified of a finding of misconduct involving children. The WWC Act enables a person who has a sustained finding referred to the OCG under the Act to request access to the records held by the School in relation to the finding of misconduct involving children once final findings are made. The entitlements of a person to access information in terms of section 46 of the Child Protection Working with Children Act is enlivened when a finding of misconduct involving children has been made. A request for records should be made directly to the OCG.
3.9
Reporting body Independent Schools which are members of the AISNSW are defined as a reporting body by the WWC Act. The School is required to notify the OCG sustained findings of serious physical assault or sexual misconduct findings involving children made against child-related workers or volunteers to the OCG. The School may also be obliged to report, amend or provide additional information to the OCG as outlined in the WWC Act
PART D: THE CRIMES ACT AMMENDMENTS 2018 In 2018 the Crimes Act was amended to adopt recommendations of the Royal Commission into Institutional responses to child sexual Abuse. The new offences are designed to prevent child abuse and to bring abuse that has already occurred to the attention of police.
4.1
Failure to Protect Offence
An adult working in a school, therefore all staff members, will commit an offence if they know another adult working there poses a serious risk of committing a child abuse offence and they have the power to reduce or remove the risk, and they negligently fail to do so either by acts and/or omissions. This offence is targeted at those in positions of authority and responsibility working with children who turn a blind eye to a known and serious risk rather than using their power to protect children.
4.2
Failure to report Offence
Any adult, therefore all staff members, will commit an offence if they know, believe or reasonably ought to know that a child abuse offence has been committed and fail to report that information to police, without a reasonable excuse. A reasonable excuse would include where the adult has reported the matter to the principal and is aware that the Principal has reported the matter to the police.
ACKNOWLEDGEMENT I _______________________________ have read, understood and agree to comply with the terms of this Child Protection Policy. _____________________________
_________________________
Signed
Dated
ATTACHMENTS The following documents are attached to this policy: [Consider whether to include any attachments – for example: 1. School Incident Report. REFERENCES NSW Family and Community Services www.community.nsw.gov.au NSW Ombudsman www.ombo.nsw.gov.au The Children’s Guardian (formerly the NSW Commission for Children and Young People) www.kids.nsw.gov.au Department of Premier and Cabinet – Keep Them Safe www.keepthemsafe.nsw.gov.au Further details of obligations of employers can be found in the Information for Employers guidelines and/or Information for reporting bodies factsheet developed by the OCG found at www.kids.nsw.gov.au
Kincoppal - Rose Bay School of the Sacred Heart
CHILD PROTECTION PROCEDURAL GUIDELINES Scope These procedures outline the focus of the School’s duty of care which is the protection of children from harm. The procedures followed by the School are in accordance with all relevant legislation, and take into account other appropriate practises and guidelines aimed at the protection of children.
Document Management Relevant to
All Staff
Modification history
Created April 2005 Reviewed December 2005, June 2007, August 2008, January 2010, July 2012, November 2014, March 2015, January 2019
Related documents
Child Protection Policy Behaviour Management Policy Positive Peer Relations (Anti-Bullying) Policy
Child Protection Procedural Guidelines. The focus of the School’s duty of care is the protection of children from harm. The procedures followed by the School will also be in accordance with all relevant legislation, and will take into account other appropriate practises and guidelines aimed at the protection of children. The School’s Child Protection Policy & the Child Protection Procedural Guidelines will be reviewed on a regular basis, in line with amendments to legislation and regulations. When the School is notified of harm to a child, a clear and consistent set of procedures will be followed in a professional manner, in line with Child Protection in the Workplace: Responding to allegations against employees (Ombudsman’s Guidelines). The School recognises that there is a danger that teachers, any employee, parent volunteer, contractor, student teachers and other engaged persons could be seriously harmed by mischievous or irresponsible allegations or by hasty action or by over-reaction. The reputation of all involved must therefore be safeguarded. The School will adopt appropriate and clearly documented investigative procedures. All persons employed or engaged by the School in any capacity are expected to access copies of the Child Protection Policy, Child Protection Procedural Guidelines and the Staff Code of Professional and Pastoral Practice. This includes, but is not limited to: Accomplishment staff; Administration & Technical Support staff; Before/After School Carers; Boarding staff; Canteen Operators; Contracted staff (eg: cleaners, kitchen/catering staff); GAP Students; Grounds & Maintenance staff; Infirmary staff; Prac Teachers; Relief Teachers; Specialist Teachers & Teaching Support staff; School Shop Operators; Sports Coaches; Teachers; Tutors; and, Work Experience Students.
Course of Action in Responding to a child Protection Concern Child protection concern identified: 1. School Employee becomes aware that a child may be at risk of significant harm OR 2. A reportable allegation is made against a School Employee ↓ Principal notified (directly ↓ Is there immediate danger of serious harm? YES → Refer to local police NO ↓
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Is the child or young person suspected to be at risk of significant harm? YES → 1. Principal to report to Family and Community Services 2. Original reporting staff member given feedback on decision to notify 3. Confidential file stored with Principal 4. Counsellor to support as appropriate ↵ NO ↓ Does the matter involve any possibility of a criminal offence? YES → Refer to local police ↵ NO ↓ Is the matter an allegation of Reportable Conduct against an employee? NO → Document. It may be beneficial to refer the family/child to an external agency – please consult the School Counsellor for advice .↓ YES Principal as Head of Agency proceeds as follows: Principal conducts risk assessment and appoints Investigator(s) Risk assessments should be conducted for the alleged victim, the employee, other children/personnel, the school and the investigation. Documented risk assessments should be ongoing through the entire process of investigation. Any risk management action taken against an employee by the School, is not a reflection of the outcome of the investigation and is an attempt to manage the risk. ↓ Appropriate action to minimise/eliminate risk to the child/ren ↓ Principal notifies Ombudsman within 30 days of receiving a reportable allegation ↓ Investigation planned by Investigator(s) ↓ Investigation conducted and fully documented ↓ Principal or Investigator(s) make a determination regarding the allegation ↓ Outcome is reported to the employee and appropriate action implemented ↓ Does the action include Employment Proceedings? YES → Principal notifies CCYP NO ↓ Principal sends final report to Ombudsman ↓ - 3 -
Full Investigation file stored securely in Principal’s office, separate to Employment files
Detecting and Responding to a Student at Risk of Significant Harm Possible Indicators of Significant Harm There are common physical and behavioural signs that may indicate harm. The presence of one of these signs does not necessarily mean harm is occurring. Other things need to be considered, such as the life circumstances of the child or family. The following risk factors (either singly or in combination) are associated with increased risk of significant harm for children and young people: Ø Social or geographic isolation of the child, young person or family, including lack of access to extended family; Ø Previous abuse or neglect of a brother or sister; Ø Family history of violence including domestic violence; Ø Physical or mental health issues for the parent or caregiver affecting their ability to care for the child or young person; Ø The parent or caregivers’ abuse of alcohol or other drugs affecting their ability to care for the child or young person. The indicators below are only possible indicators of harm. The presence of these signs does not necessarily mean harm has been or is occurring but must be considered in the context of the other indicators and the child/family circumstances.
Possible Indicators of Neglect Indicators in Children:
Ø Ø Ø Ø Ø Ø Ø Ø Ø Ø
Low weight for age and/or failure to thrive and develop; Untreated physical problems; Extreme anxiety about being abandoned, which is not age-appropriate; Child not adequately supervised for their age; Scavenging or stealing food and focus on basic survival; Poor standards of hygiene i.e.: child consistently unwashed; Extended stays at School, public places, other homes; Extreme longing for adult affection; Rocking, sucking, head-banging; Poor or pale complexion and poor hair texture.
Indicators in Parents or Guardians:
Ø Unable or unwilling to provide adequate food, shelter, clothing, medical attention, safe home conditions; Ø Leaving the child without appropriate supervision; Ø Abandonment of child; Ø Withholding physical contact or stimulation for prolonged periods; Ø Unable or unwilling to provide psychological nurturing. - 4 -
Possible Indicators of Sexual Abuse Indicators in Children:
Ø Ø Ø Ø Ø Ø Ø Ø Ø Ø Ø Ø Ø Ø
Child or child’s friend telling you about it directly or indirectly; describing sexual acts; going to bed fully clothed; sexual knowledge or behaviour inappropriate for the child’s age; regressive behaviour eg: sudden return to bed-wetting or soiling; bruising or bleeding in the genital area; sexually transmitted diseases; bruising to breasts, buttocks, lower abdomen or thighs; self-destructive behaviour eg: drug dependency, suicide attempts, self-mutilation; child being in contact with a known or suspected perpetrator of a sexual assault ; anorexia or over-eating; adolescent pregnancy; unexplained accumulation of money and gifts; persistent running away from home;
Indicators in Parents or Guardians:
Ø Ø Ø Ø Ø Ø
exposing a child to prostitution or pornography or using a child for pornographic purposes; intentional exposure of a child to sexual behaviour of others; previous conviction or suspicion of child sexual abuse; coercing a child to engage in sexual behaviour with other children; verbal threats of sexual abuse; denial of adolescent’s pregnancy by family.
Possible Indicators of Physical Abuse Indicators in Children:
Ø bruising to face, head or neck, other bruising and marks which may show the shape of the object that caused it eg: belt buckle, hand print; Ø lacerations and welts; Ø explanation of injury offered by the child is not consistent with the injury; Ø adult bite marks and scratches; Ø abdominal pain caused by ruptured internal organs, without a history of major trauma; Ø fractures of bones, especially in children under three years old; Ø burns and scalds (including cigarette burns); Ø drowsiness, vomiting, fits or retinal haemorrhages, which may suggest head injury; Ø multiple injuries or bruises; Ø swallowing of poisonous substances, alcohol or other harmful drugs; Ø dislocations, sprains, twisting; Ø general indicators of female genital mutilation which could include: having a special operation, difficulties in toileting and reluctance to be involved in sport or other physical activities where the child was previously interested.
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Indicators in Parents and Caregivers:
Ø Ø Ø Ø Ø
explanation of injury offered by the parent is not consistent with the injury; a parent or caregiver says that they fear injuring their child; family history of violence; history of their own maltreatment as a child; frequent visits with their child or children to health or other services with unexplained or suspicious injuries, swallowing of non-food substances or with inner complaints.
Possible indicators of psychological harm All types of abuse and neglect harm children psychologically, but the term ‘psychological harm’ applies to behaviour which destroys a child’s confidence. Indicators in children:
Ø Ø Ø Ø Ø Ø Ø Ø Ø
constant feelings of worthlessness about life and themselves; inability to value others; lack of trust in people; lack of people skills necessary for daily functioning; extreme attention-seeking behaviour; other behavioural disorders eg: bullying, disruptiveness, aggressiveness; exposure to domestic violence; suicide threats or attempts; persistent running away from home.
Indicators in parents or caregivers:
Ø Ø Ø Ø Ø Ø
constant criticism, belittling, teasing of a child, or ignoring or withholding praise and attention; excessive or unreasonable demands; persistent hostility and severe verbal abuse, rejection and scapegoating; belief that a particular child is bad or ‘evil’; using inappropriate physical or social isolation as punishment; domestic violence.
Responding to a Student at Risk of Harm Handling a Direct Disclosure
The response of the person who hears the disclosure, whether from the victim or a friend, is crucial to any investigation that may follow. More importantly, the response can help to minimise any further trauma for the child. Where possible, staff should respond in the following way: A.
Where the disclosure occurs in front of a class of group of students: o o o o
Acknowledge that you’ve heard the student and stop them disclosing further; Don’t allow other children or adults to ask questions or to make judgments; Be supportive and gently indicate that the child may want to talk to you in private; Arrange to see the student as soon as possible in private.
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B.
Handling a disclosure in private: o
Remain calm – don’t express shock, panic or disbelief
o
Find a private place to talk
o
Use the child’s vocabulary and encourage them to express their feelings
o
Discretely document the child’s account, as close to verbatim as possible
o
Continually reassure them that you believe them, that it was right to tell and that it is not their fault
o
Do not push for details, ask any leading questions or give any possible reasons for the behaviour, as this may contaminate the evidence the child then gives to the Community Services interviewer
o
Tell the child that support and protection is available
o
Do not confront the parents/perpetrator
o
Do not make promises you cannot keep
o
Inform the child that you have to take action to ensure their safety
o
Tell the Principal directly
o
Do not discuss the disclosure with any other staff (except the School Counsellor or Principal) or students
Documentation & Record-Keeping Ø All disclosures and concerns should be documented as thoroughly as possible Ø Notes should be written in objective language, including the date of the concern, your name and signature. Ø Record should be made of verbatim evidence of events, conversations and observations that lead to the concern, including the exact features of any physical injury Ø Documentation should be given to the Principal directly Ø A copy of the information should be kept until advice of the outcome has been received from the Principal. Ø Information is to be kept in a secure confidential file by the Principal and, in some cases, the School Counsellor
Mandatory Reporting Mandatory Reporters A “mandatory reporter” is any person who delivers health care, welfare, education, children's services, residential services or law enforcement to children (aged under 16) as part of their paid work. All employees of Kincoppal-Rose Bay School are mandatory reporters. - 7 -
Mandatory reporters with current concerns that a child aged under 16 is at risk of significant harm, are required to make a report to Community Services. This is a legal obligation. The School uses the procedure below for reporting to Community Services.
Requirements for Reporting to Community Services Any person who is involved in a child’s education as part of their paid work is a mandatory reporter. This is a legal obligation. Kincoppal-Rose Bay School uses centralised reporting, in accordance with the Memorandum of Understanding on Mandatory Reporting for the Education Sector signed between Community Services, the Association of Independent Schools and the Catholic Education Commission. Centralised reporting involves a mandatory reporter reporting via the Principal, who then makes a report to Community Services. Mandatory reporters who suspect that a child or young person is at risk of significant harm (the statutory threshold) should report their concerns to the Community Services Helpline through the Principal. All concerns of risk of harm should be reported in order to allow for cumulative harm to be collated and assessed.
Significant Harm A child or young person is at risk of significant harm if the circumstances that are causing concern for the safety, welfare or wellbeing of the child or young person are present to a significant extent. This means it is sufficiently serious to warrant a response by a statutory authority irrespective of a family’s consent. What is significant is not minor or trivial and may reasonably be expected to produce a substantial and demonstrably adverse impact on the child or young person’s safety, welfare or well-being, or in the case of an unborn child, after a child’s birth. The significance can result from a single act or omission or an accumulation of these. Risk of significant harm means that the mandatory reporter has concerns about the safety, welfare or wellbeing of a child for any of the following reasons: Ø the basic physical/psychological needs are not being met or are at significant risk of not being met (neglect); Ø the child’s parents or caregivers have not arranged necessary medical care and are either unable or unwilling to do so; Ø the child’s parents or caregivers fail to make proper arrangements for their child to receive an education; Ø significant risk of physical or sexual abuse or ill-treatment (physical or sexual abuse); Ø parent or caregiver’s behaviour towards the child causes or risks significant psychological harm (psychological abuse); or Ø incidents of domestic violence and as a consequence a child is at risk of serious physical or psychological harm (domestic or family violence) Ø While a single act may constitute neglect, there may be a series of incidents which seem inconsequential in themselves but may, when viewed together, establish a pattern of significant harm.
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In the event that a mandatory reporter complies with the procedures for centralised reporting and has no knowledge of any failure to relay the risk of harm report to Community Services, then Community Services will accept that the mandatory reporter has fulfilled reporting requirements in accordance with section 27, Children and Young Persons (Care and Protection) Act, 1998. However, if the Principal decides the matter is not going to be reported and the staff member has knowledge of such failure to report, the staff member will still have a legal obligation as a mandatory reporter to report to Community Services if they believe that reasonable grounds for significant harm still exist. Should a Principal fail to relay the risk of harm report, then Family and Community Services may take action against the Principal. The mandatory reporting obligation does not arise in relation to young people (aged 16 and 17). A report can still be made about a young person who you believe is at risk of significant harm, however the young person should be involved in the decision to report, unless there are good reasons for excluding them. If a young person is against a report being made, a report can still proceed but Community Services must be informed about the young person’s wishes. Community Services must consider these wishes when deciding how to respond to the report.
Procedure for reporting to Family and Community Services 1. Report concerns to Principal directly, providing a copy of any written documentation. 2. Principal decides if a report must be made to Community Services, using the Mandatory Reporter Guide to confirm that there is a risk of significant harm. A Family Referral Service (FRS) may also be helpful in deciding whether or not a concern meets the threshold of “risk of significant harm”. The FRS may also advise on referral pathways for the family. Please consult with the School Counsellor regarding referral pathways. 3. If required, Principal or Principal’s Nominee makes a report by phoning the Child Protection Helpline (132 111). The Child Protection Helpline will tell mandatory reporters whether the report they have made meets the threshold of significant harm or not. 4. If the telephone wait time exceeds 5 minutes or operational commitments prevent phone contact, reports can be made by fax (9633 7666) using the standard fax form (see Appendix A), It is helpful to have the following information ready to provide to Community Services: o
full name, date of birth (or approximate age), address and phone number of the child/children you are concerned about
o
full name (including any known aliases), approximate age, address and phone number of the parents or carers
o
a description of the child and their current whereabouts
o
why you suspect the child is at risk of significant harm (what you have seen, heard or been told)
o
whether a language or sign interpreter may be required
o
whether support is required for a person with a disability or special need eg: Aboriginal students
o
your name and contact details (only for mandatory reporters)
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5. Original reporting staff member is given feedback on the decision on reporting to Community Services. 6. This staff member must report to Community Services if they still consider there are reasonable grounds to suspect that a child is at risk of significant harm. 7. All information relating to concerns, disclosures, decisions and contact with agencies to be documented and stored in a confidential file with the Principal. Principal or School Counsellor enters case details on a Community Services register, stored securely in the Principal’s office.
What if the concern does not meet the threshold of “risk of significant harm”? Concerns which do not meet the threshold of “risk of significant harm” may be referred to non-statutory services that can provide supports to families or mitigate concerns or risks. The School Counsellors and/or Principal should be consulted in these matters to ensure that the appropriate service is utilised. The School should share information with agencies that can provide assistance to the family and/or make referrals.
What happens when a Community Services report is made? Ø When Community Services records the report, this will show that the Mandatory Reporter has fulfilled their legal obligation. The reporter will be given a reference number. Ø Reports made to Community Services are confidential and the reporter’s identity is generally protected by law. However, a new provision will allow a law enforcement agency access to the identity of the reporter if this is needed in connection with the investigation of a serious offence against a child or young person. While this will override the legislative protection, new safeguards to protect the reporter have been introduced. The request must come from a senior law enforcement officer and the reporter must be informed that their identity is to be released – unless informing them will prejudice the investigation. Ø When Community Services receives a report, they are required by law to make an assessment and determination as to whether the child is actually at risk of significant harm. The information provided within a report will inform what further action is needed. Other considerations include the child or family history held by Community Services. Ø Community Services assesses all reports to determine the most appropriate action to ensure the safety, welfare and wellbeing of the child. This might involve talking to the child, their family or other important people in the child’s life (such as relatives, teachers or child carers), or talking to people who work with the child or their family (such as counsellors, health professionals or family support workers). Ø Where the report includes behaviour that relates to a criminal offence, the Community Services worker will make contact with the Joint Investigation and Response Team (JIRT, Police), who will assist in the enquiry. Ø Not all reports will lead to further assessment or investigation. This may be because there is insufficient information or reason to believe that the child or young person is at risk of significant harm. Ø Feedback to reporters: The Child Protection Helpline will tell mandatory reporters whether the report they made meets the threshold of significant harm or not. - 10 -
Ø Reporters will also be advised in writing about this initial action plan, and if relevant, provided with details of the identified Community Services Centre looking after the case. Ø Staff from Community Services may need to contact the reporter again, to help in the assessment of the safety, welfare and wellbeing of the child or young person. Ø The level of detail and information provided to reporters will depend on the circumstances of the case. Ø If, after making a report to Community Services, the reporter feels threatened, or fears personal violence, this should be reported to the police, who may apply for an apprehended violence order on their behalf.
Information Exchange – Chapter 16A The Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 expands the information sharing provisions of the Children and Young Persons (Care and Protection) Act 1998 to allow freer exchange of information between “prescribed bodies” (Government agencies and non-Government organisations) relating to a child or young person’s safety, welfare or wellbeing. For information exchange to occur there must be a concern relating to the safety, welfare or wellbeing of a child or young person. The child or young person does not need to be known to Community Services, nor does Community Services need to be involved for the exchange to occur. Information may be exchanged if it relates to: Ø a child or young person’s history of circumstances; and/or Ø a parent or other family member; and/or Ø people having a significant or relevant relationship with a child or young person; and/or Ø the other agencies’ dealings with the child or young person, including past support or service arrangements. An agency is not required to disclose information if it believes it would prejudice a criminal investigation or coronial inquest, endanger a person’s life, or is not in the public interest. Consent from the child or young person should be sought where possible, however it is not essential to obtain this consent where it is likely to further jeopardise the child or young person’s safety, welfare or wellbeing. The legislation of Chapter 16A allows that any other act or law (including the Privacy Act) that prohibits or restricts the disclosure of information does not operate to prevent the provision of information or a duty to provide information under Chapter 16A. This means that the duty to provide information relating to the safety, welfare or well-being of a child or young person takes precedence over confidentiality undertakings or an individual’s privacy. Written exchange is preferred, and standard forms, letters, emails and other forms of electronic communication can be used. In addition, information may be exchanged verbally e.g. at a case conference. However, a written record of the verbal exchange is required and should be stored securely on file consistent with the school’s policies and procedures. Such information is subject to strict confidentiality and must be kept in a secure filing system in the Principal’s office. See Appendix C for Information response/ provision checklist and relevant form for exchanging information under Chapter 16A. - 11 -
For the purpose of Kincoppal-Rose Bay School’s procedural guidelines relating to Information Exchange, any staff member who wishes to request or provide information under Chapter 16A must only do so via the Head of Agency, being the Principal. No Staff member may exchange information in accordance with Chapter 16A without explicit instructions from the Principal. Refer to Child Wellbeing & Child Protection – NSW Interagency Guidelines for further information pertaining to Information Exchange- Chapter 16A.
Procedures for Responding to Allegations of Reportable Conduct against an Employee The following procedural guidelines have been devised to ensure a consistent and effective response to allegations and convictions of reportable conduct against employees in a way that protects children as well as upholding the rights of the employee who has an allegation of reportable conduct made against them.
Procedural Fairness Kincoppal-Rose Bay School aims to meet the requirements of procedural fairness in its investigation of allegations of reportable conduct against employees. The requirements are as follows: 1. Investigations must be conducted in an impartial, independent and objective manner and be open and transparent. The investigator must not show bias or favour to the alleged victim, the employee, nor in outcomes which might affect the reputation of the School. 2. The process needs to be carried out in a timely manner without undue delay at each stage of the process. 3. In cases where it is determined that the School does not have the expertise to satisfactorily conduct the investigation or in cases where a conflict of interest or bias may arise, an external investigator should be appointed. 4. The employee must be presumed innocent unless the allegation is sustained (on the balance of probabilities). When interviewed, the employee shall be informed of the presumption of innocence that exists under both civil and Church law. 5. The employee should be advised of the general nature of the allegation, in enough detail to be able to offer a response, and a summary of the employer’s investigation process prior to being interviewed. 6. The employee should be given a reasonable opportunity to respond to the allegation and to any findings or recommended disciplinary action. 7. The employee and alleged victim should be made aware of their right to have a support person. 8. The employee should be made aware of the rights of access to material in the investigation file. 9. The employee, student, notifier, witnesses, the employer, and any other person involved in an allegation and its investigation are all entitled to appropriate confidentiality and protection of their privacy. This is subject to limits, including mandatory reporting requirements and the possibility of documents and witnesses being subpoenaed for legal proceedings. 10. The employee does not have the automatic right to know the identity of the person making the allegation, but they will usually be informed of the identity of the alleged victim in order to be able to respond to the allegation. - 12 -
Reportable Conduct Reportable Conduct is:
Ø Any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence), or Ø Any assault, ill-treatment or neglect of a child, or Ø Any behaviour that causes psychological harm to a child, with or without the consent of the child in any case, even if it occurred outside work hours Reportable conduct does not extend to:
Ø 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 Ø 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 Ø conduct of a class or kind exempted from being reportable conduct by the Ombudsman under section 25CA (see below *). *Note: Examples of conduct that would not constitute reportable conduct include (without limitation):
Ø touching a non-intimate part of a child’s body in order to attract a child’s attention, to guide a child or to comfort a distressed child; Ø a School teacher raising his or her voice in order to attract attention or to restore order in the classroom; and, Ø conduct that is established to be accidental. In addition, pursuant to section 25CA of the Ombudsman Act 1974, the Ombudsman determined that the following classes or kinds of allegations against employees of Catholic Independent Schools need only be notified to the Ombudsman by monthly schedule: Ø first time allegations of physical assault of a child below the neck or head irrespective of whether they are found to be sustained or unsustained (except where there is shaking, kicking or punching with force); and, Ø first time allegations of neglect where the alleged matter involves a failure to provide supervision or a failure to provide adequate medical treatment where the risk of harm was reasonably perceived at the time to be low. All of the above conduct will still require appropriate investigation and documenting.
Steps in the Investigation Process (see flowchart p.2/3) 1. The Principal clarifies the allegation and determines whether or not the alleged conduct is “reportable” on face value.
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2. The Principal or Appointed Investigator(s) determines if the conduct is then exempted from reporting to the Ombudsman. 3. The Principal takes appropriate action to minimise/eliminate risk to the alleged victim, the employee, other children, personnel, the school and the investigation on an ongoing basis throughout the investigation. 4. The Principal notifies the Ombudsman’s office, via the within 30 days of receipt of a “reportable” allegation. 5. Regardless of whether the conduct is reportable or non-reportable, the allegation is investigated by the Appointed Investigator(s) based on the Ombudsman’s recommendations (see below). 6. If there are reasonable grounds to suspect that a child is at risk of significant harm, Community Services must be notified by the Principal 7. If the matter involves any possibility of a criminal offence, the Principal contacts the local Police.
Role of the Investigator In an investigation the School Principal will appoint an investigator who will generally: 1. Interview relevant witnesses and gather relevant documentation 2. Provide a letter of allegation to the person subject of the allegation (PSOA) 3. Interview the PSOA 4. Consider relevant evidence and make preliminary findings in accordance with the NSW
Ombudsman guidelines
5. Inform the PSOA of the preliminary finding and provide them with an opportunity to
respond
6. Consider any response provided by the PSOA 7. Make a final finding in accordance with the NSW Ombudsman Guidelines 8. Decide on disciplinary action, if any, to be taken against the PSOA 9. Apply the NSW commission for Children and Young People (CCYP (where required) 10. Send the final report to the Ombusdman and report to the CCYP (where required) The steps followed in the investigate process will be guided by the “Recommended Protocols for Internal Investigative and Disciplinary Proceedings, 2001” (IEU/AIS) as updated from time to time. The steps outlined above may need to be varied on occasion to meet particular circumstances. For example it may be necessary to take different steps where the matter is also being investigated by Community Services or the NSW Police. A PSOA may have an appropriate support person with them during the interview process. Such a person is there for support only and as a witness to the proceedings and not as an advocate or to take an active role. - 14 -
Risk Management Risk management means identifying the potential for an incident or accident to occur and taking steps to reduce the likelihood or severity of its occurrence. The School Principal is responsible for risk management throughout the investigation and will assess risk at the beginning of the investigation, during, and at the end of the investigation.
Initial Risk Assessment Ø One of the first steps following an allegation of reportable conduct against an employee is for the School Principal to conduct a risk assessment. The purpose of this initial risk assessment is to identify and minimise the risks to: a) The child(ren) who are the subject of the allegation; b) Other children with whom the employee may have contact c) The PSOA d) The School, and e) The proper investigation of the allegation. Ø The factors which will be considered during the risk assessment include: a) The nature and seriousness of the allegations b) The vulnerability of the child(ren) the PSOA has contact with at work c) The nature of the position occupied by the PSOA d) The level of supervision of the PSOA and e) The disciplinary history or safety of the PSOA and possible risks to the investigation. Ø The School Principal will take appropriate action to minimise risks. This may include the PSOA being temporarily relieved of some duties, being required not to have contact with certain students, or being suspended from duty. When taking action to address any risks identified, the School will take into consideration both the needs of the child(ren) and the PSOA. Ø Please Note: A decision to take action on the basis of a risk assessment is not indicative of the findings of the matter. Until the investigation is completed and a finding is made, any action, such as an employee being suspended, is not to be considered to be an indication that the alleged conduct by the employee did occur.
Ongoing Risk Management a) The School Principal will continually monitor risk during the investigation, including in the light of any new relevant information that emerges. - 15 -
Risk Management at the Conclusion of the Investigation b) At the completion of the investigation, a finding will be made in relation to the allegation and a decision made by the Principal regarding what action, if any, is required in relation to the PSOA, the child(ren) involved and any other parties.
Information provided to the PSOA Ø The PSOA will be advised: a) That an allegation has been made against them (at the appropriate time in the investigation) and b) Of the substance of the allegation, or of any preliminary finding and the final finding. Ø The PSOA does not automatically have the right to: a) Know or have confirmed the identity of the person who made the allegation; or b) Be shown the content of the Ombudsman notification form or other investigation material that reveals all information provided by other employees or witnesses. Ø Under the Children and Young Persons (Care and Protection) Act 1998 (NSW) once the ‘relevant employment proceedings’ have been completed, a PSOA can seek access to the records held by the School on their ‘relevant employment proceedings’.
Disciplinary Action Ø As a result of the allegations, investigation or final findings, the School may take disciplinary action against the PSOA (including termination of employment). Ø In relation to any disciplinary action the School will: a) Give the PSOA details of the proposed disciplinary action; and b) Give the PSOA a reasonable opportunity to respond before a final decision is made
Confidentiality Ø It is important when dealing with allegations of reportable conduct that the matter be dealt with as confidentially as possible. Ø The School requires that all parties maintain confidentiality during the investigation including in relation to the handling and storing of documents and records. Ø Records about allegations of reportable conduct against employees will be kept in a secure area and will be accessible by the Principal or with the Principal’s express authority.
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Ă˜ No employee may comment to the media about an allegation of reportable conduct unless expressly authorised by the School Principal to do so. Ă˜ If you become aware of a breach of confidentiality in relation to a reportable conduct allegation you must advise the Principal.
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A Catholic Independent ELC–12 School New South Head Road Rose Bay NSW 2029 T: +61 2 9388 6000 F: +61 2 9388 6001 ww.krb.nsw.edu.au CRICOS PROVIDER CODE 02268M ABN 47 003 942 603