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Child abuse reporting obligations for schools

Emily Shoemark

19 Jun 2019

Topics

  • Regulatory

The reporting obligations for schools in relation to child abuse are crucial in protecting students of the school. However, these obligations can also be complex and daunting. In the ACT there are two reporting schemes – mandatory reporting under the Children and Young People Act 2008 and obligations to report certain conduct to the ACT Ombudsman. In this article Emily Shoemark looks at both schemes, and when reporting obligations of a school or teacher will arise.

Mandatory reporting under the Children and Young People Act 2008

Under this Act, a teacher at a school, including a teacher’s assistant or aide, a school counsellor and a childcare worker, are each mandated reporters. This means they are mandated by the legislation to report situations where they form a belief, on reasonable grounds, that a child or young person has experienced abuse or neglect. The obligation is to report the belief, but a reporter is not required to prove that abuse or neglect has occurred.

A report needs to be made if there is a belief that a child is:
a) being or has been sexually abused; or
b) experiencing or has experienced non-accidental physical injury.

While the reporter doesn’t need to prove that the conduct has occurred, a report should not be made lightly. In the report, the reporter needs explain the basis of the belief that the abuse is happening, and without recklessness. If a reporter knowingly provides false or misleading information, they can be charged under the Act. A reporter, or someone who should have reported, can also be liable to be charged if a report isn’t made as soon as practicable after forming a belief that abuse or neglect may be taking place.

If a staff member of a school reasonably believes that abuse or neglect is taking place within a child’s family, then a child concern report must be made to Child and Youth Protection Services (CYPS). The CYPS will assess the report, and in majority of cases will refer the parties involved to other services. The CYPS will take a matter further if the parents or carers of the child are responsible for the abuse or neglect, or if they’re not providing adequate care and protection for the child once the allegation becomes known.

If a school reasonably believes that a child is experiencing abuse or neglect by someone who is not within that family, then a report should be made to the police as soon as practicable. If the suspected perpetrator of the abuse is also an employee of the school, then reporting obligations to the ACT Ombudsman will also arise.

Reportable conduct – ACT Ombudsman

This scheme was introduced on 1 July 2017, and operates concurrently with the mandatory reporting scheme under the Children and Young People Act 2008.

Schools fall under the scheme as employers who work with children. Unlike the mandatory reporting scheme, a school will be required to report an allegation or conviction of ‘reportable conduct’ to the Ombudsman, but the Ombudsman will not investigate the matter itself. The role of the Ombudsman is to work with organisations to build on existing misconduct procedures and reporting obligations by monitoring investigations, policies and procedures of schools, providing best practice guidance and taking complaints about the handling of reportable allegations and convictions.

The reporting obligations of a school will be triggered if the school receives or becomes aware of an allegation or conviction concerning child abuse and child-related misconduct by an employee, including:

  • ill-treatment of a child (including emotional abuse, and hostile use of force)
  • neglect
  • psychological harm
  • misconduct of a sexual nature
  • sexual or physical offences and convictions where a child is a victim or is present
  • inappropriate discipline or offences relating to protecting children from harm in accordance with the provisions of the Education and Care Service National Law (ACT) Act 2011.

As the type of conduct reportable under the Ombudsman scheme is broader than under the mandatory reporting scheme, this means that when an employee is involved in the reportable conduct a reporting obligations of a school may be triggered more often.

Once the school’s reporting obligation has arisen, the process must then begin to plan and conduct a fair and just investigation process. In some circumstances this can be done internally, while in others it will be appropriate for an independent third party to be appointed to conduct the investigation. Where there is an allegation of reportable conduct, but not conviction, it’s important that immediate steps be taken to ensure there is no risk to children.

However, schools must also be careful to apply procedural fairness until a complete investigation has taken place. This procedural fairness includes maintaining the premise of innocent until proven guilty. Allegations of reportable conduct can have a sever negative impact on the career of an employee of a school, and this can be a difficult balancing act for the head of school to ensure safety and protection of students while complying with a duty of care to an employee.

How can we help?

If you suspect that a child may being abused or is neglected, and are unsure of you’re of your reporting obligations, contact us on 02 6285 8000 or by email.