Understanding your obligations

​​​Critical information

  • As a staff member of an early childhood service, you have a moral obligation and a range of Legal Obligations to protect the children in your care from abuse. 
  • It is strongly recommended that all early childhood service staff follow the Four Critical Actions For Early Childhood Services ​as soon a reasonable belief is formed that a child has, or is at risk of being abused.

As community members, we all have a moral obligation to protect any child under our care and supervision from foreseeable harm.  As early childhood service staff members, you play an especially critical role in protecting children (including identifying, responding to and reporting child abuse) and must meet a range of legal obligations to do so.

These legal obligations vary, depending on the nature of the service and your role within it. However the best way to comply and the best way to protect children in your care is to follow the: Four Critical Actions for Early Child​hood Services

You must respond regardless of whether the abuse has, or is suspected to have taken place in the home, within the community or within the service.

​Legal obligations

This section sets out your legal obligations in further detail, including:

Duty of care obligations - all staff

Duty of care is a common law concept that refers to your responsibility to adequately protect children in your care from harm. It applies to all staff members within any Victorian early childhood service and it is usually expressed as a duty to take reasonable steps to protect children from injury that is reasonably foreseeable.

The courts will objectively determine what constitutes "reasonable steps". This will depend on the individual circumstances of each case, including the nature of the service and your role within it. The courts have found that the standard of care owed by early childhood service providers to children is high.

You may breach your duty of care towards a child if you fail to act in the way a reasonable or diligent professional would have acted in the same situation.

In relation to suspected child abuse, examples of "reasonable steps" within an early childhood service will vary depending on the nature of the service, but at a minimum would likely include:

  • acting on concerns and suspicions of abuse quickly and in the child's best interests
  • seeking appropriate advice or consulting when unsure
  • reporting suspected child abuse to Department of Health and Human Services (DHHS) Child Protection and/or Victoria Police
  • sharing information, upon request, to assist DHHS Child Protection or Victoria Police to investigate the suspected child abuse and protect and/or promote the wellbeing and development of a child (see Information Sharing).
  • notifying regulator where appropriate or required.  

To ensure that you fulfil your duty of care obligations for all children who are involved in, or affected by, the suspected child abuse, it is strongly recommended that you follow: Four Critical Actions for Early Childhood Services

For services working with children 10 years and over you must also be aware that your duty of care extends to children who may engage in a sexual offence

For more advice, see: Children Exhibiting Inappropriate Behaviour Sexual Behaviour.

Criminal offences - all adults

In response to the Betrayal of Trust Report, the Victorian Government has introduced new criminal offences to protect children from sexual abuse. Under these reforms a failure to report, or take action in relation to suspected child sexual abuse can now constitute a criminal offence, including:

Failure to disclose

This offence applies to all adults (not just professionals who work with children) who form a reasonable belief that another adult may have committed a sexual offence against a child under 16 years of age and fail to report this information to Victoria Police.

Failing to disclose a sexual offence based on concerns for the interests of the perpetrator or organisation (e.g. concerns about reputation, legal liability or financial status) will not be regarded as a reasonable excuse.

Failure to protect


This offence applies to a person in a position of authority within an organisation who:

    • knows of a substantial risk that a child who is under 16 years and in the care and supervision of the organisation may become the victim of a sexual offence committed by an adult associated with that organisation (e.g. an employee, contractor, volunteer or visitor); and
    • fails to take reasonable steps to remove or reduce the risk.

Within an early childhood service a position of authority includes local service managers and staff in management positions within licensed or approved services.
 

For further information on these offences, see:

Child Safe Standards 

On 1 January 2016 the Victorian Government introduced compulsory minimum standards for all organisations providing regulated or funded services for children. See: Child Safe Standards

The Child Safe Standards:

  • aim to drive continuous improvement in the way organisations prevent child abuse, encourage reporting and improve responses to allegations of abuse
  • form part of the Victorian Government's response to the Betrayal of Trust Inquiry, which found that more must be done to prevent and respond to child abuse in our community.

The Child Safe Standards require early childhood services to implement the following:

  1. strategies to embed an organisational culture of child safety, including through effective leadership arrangements
  2. a child safe policy or statement of commitment to child safety
  3. a code of conduct that establishes clear expectations for appropriate behaviour with children
  4. screening, supervision, training and other human resources practices that reduce the risk of child abuse by new and existing personnel
  5. processes for responding to and reporting suspected child abuse
  6. strategies to identify and reduce or remove risks of child abuse
  7. strategies to promote the participation and empowerment of children.

This resource will support early childhood services to comply with Child Safe Standard 5 which specifies that all services must have processes for responding to and reporting suspected child abuse.

The Child Safe Standards closely align with the existing regulatory requirements set out in the National Quality Framework and the Children's Services Act 1996 and will be regulated as far as possible under the existing regulatory framework. the Department's Quality Assessment and Regulation Division (QARD) will have primary responsibility for ensuring that services meet the new standards.


 

Teachers and Nurses - Mandatory reporting 

There are certain classes of professionals, who are classified as "mandatory reporters". Within an early childhood service setting, mandatory reporters include:

  • a person registered to teach or with permission to teach under the Education and Training Reform Act 2006 (including early childhood and primary teachers)
  • registered doctors and nurses (including Maternal Child Health Nurses).

All mandatory reporters must make a report to Victoria Police and/or DHHS Child Protection as soon as practicable if, during the course of carrying out their professional roles and responsibilities, they form a belief on reasonable grounds that:

  • a child has suffered, or is likely to suffer, significant harm as a result of physical injury and/or sexual abuse, and
  • the child's parents have not protected, or are unlikely to protect, the child from harm of that type.  

It is a criminal offence not to report in these circumstances.

Mandatory reporters must also follow Four Critical Actions ​For Early Childhood Services​ to ensure they fulfil all of their legal obligations​.

Approved services - National Quality Framework

Approved early childhood services (that is services operating under the Education and Care Services National Law Act 2010) include any service providing or intending to provide education and care on a regular basis to children under the age of 13 years. 

Every approved service must meet the requirements of the National Quality Framework and associated regulatory system.

The National Quality Framework's:

  • key objective is to ensure the safety, health and wellbeing of children attending education and care services
  • first guiding principle is that the rights and best interests of the child are paramount.

Most notably, it is a legal requirement that every reasonable precaution must be taken to protect children from harm and any hazard likely to cause injury within approved early childhood services. Failure to meet this requirement can amount to a criminal offence.

There are a broad range of requirements, set out in the National Quality Framework and associated regulatory system, which directly relate to a service's obligations to respond to suspected child abuse.  For your reference, a summary of the requirements, see: National Quality Framework Summary (do​​cx - 32.81kb).

This resource has been designed to support you in identifying and responding to incidents, disclosures and suspicions of child abuse and therefore only reflects your requirements under the National Quality Framework in this specific area.

For more information: ​Contact Regulation and Quality Assessment

Licensed services - Victorian Children's Services Act 1996 

There are approximately 450 services within Victoria (mainly occasional care services) which are licensed under the Children's Services Act.

Under the Children's Services Act and supporting Children Services Regulations 2008 staff members must:

  • ensure that every reasonable precaution is taken to protect a child in the care of that staff member from harm and from any hazard likely to cause injury
  • notify the Secretary, Department of Education and Training within 24 hours of any:
    • incident involving injury or trauma to a child while being cared for or educated by the service requiring the attention of a registered medical practitioner or admission to a hospital (within 24 hours)
    • complaint which alleges that the health, safety or wellbeing of any child being cared for or educated by the children's service may have been compromised.

For advice, ​Contact Regulation and Quality Assessment

​As a condition of licensing, services must be operated in a way that:
  • ensures the safety of the children being cared for or educated
  • ensures that the developmental needs of those children are met
  • supports the health and wellbeing of those children.


Maternal Child Health nurses - MCH Guidelines ​

​Maternal Child Health (MCH) nurses are classified as mandatory reporters.  

In addition to this Victorian MCH services operate under the:

  • Maternal Child Health Service Guidelineswhich includes the policies, procedures, funding criteria and data collection requirements for all Victorian MCH service providers.
    • Maternal Child Health Program Standards which outline evidence based best practice, establish an expected service level and are recommended for use by the Victorian MCH workforce and providers and support services
    • the by-laws of its local government or governing authority

As articulated within the MCH Program Standards, services will:

    • identify the child at risk of, or experiencing, neglect and abuse and act on professional observation and judgement.
    • respond to the child at risk of, or experiencing, abuse and make a report in accordance with the Children, Youth and Families Act 2005.  
    • support their workforce to respond to child abuse through policies, procedures and training and ensure they are able to meet their legislative requirements under the:
    • Children, Youth and Families Act 2005
    • Child Wellbeing and Safety Act 2005
    • Health Records Act 2001
    • Family Violence Protection Act 2008.

The MCH Program Standards also specify that it is important to work from the principle that children, particularly infants, are highly vulnerable and unable to protect themselves. Abuse and neglect of infants has the potential for life threatening injury, and serious impairment of brain development, attachment and the development of trust and healthy relationships in later life.

​Contact Regulation and Quality Assessment​

The Department of Education and Training regulates licensed early childhood services in Victoria.