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
- 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 (pdf - 208.11kb).
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 Problem 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 the following failures.
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 (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 (an employee, contractor, volunteer or visitor)
- 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:
- strategies to embed an organisational culture of child safety, including through effective leadership arrangements
- a child safe policy or statement of commitment to child safety
- a code of conduct that establishes clear expectations for appropriate behaviour with children
- screening, supervision, training and other human resources practices that reduce the risk of child abuse by new and existing personnel
- processes for responding to and reporting suspected child abuse
- strategies to identify and reduce or remove risks of child abuse
- strategies to promote the participation and empowerment of children.
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.
There are certain classes of professionals, who are classified as "mandatory reporters". Within an early childhood service setting, mandatory reporters include:
- early childhood teachers registered with the Victorian Institute of Teaching
- registered doctors and nurses (including Maternal Child Health Nurses).
Note: From 1 March 2019, early childhood workers and other persons in licensed and approved early childhood services will also become mandatory reporters. This includes:
- all educators with post-secondary qualifications in the care, education or minding of children and employed or engaged in an education and care service or a children's service
- the proprietor or primary nominee of a children's service, or the approved provider or nominated supervisor of an education and care service.
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.
It is recommended that mandatory reporters 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 is an offence under the Education and Care Services National Law Act 2010 (National Law).
There are a broad range of requirements, set out in the National Law and Education and Care Services National Regulations 2011 which directly relate to a service's obligations to respond to suspected child abuse. For example, regulation 84 requires the approved provider to ensure that nominated supervisors and staff members at a service who work with children are aware of the existence and application of current child protection law and any obligations they may have under that law.
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 the
Quality Assessment and Regulaton Division.
Licensed services - 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 1996.
It is a condition of licensing under the
Children's Services Act 1996 that a licensed children's service 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, and
- supports the health and wellbeing of those children.
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.
For advice, contact the
Quality Assessment and Regulation Division.
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:
MCH guidelines (pdf - 1.68mb) which includes the policies, procedures, funding criteria and data collection requirements for all Victorian MCH service providers
Maternal Child Health program standards (pdf - 678.81kb) 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 Quality Assessment and Regulation Division
The Department regulates approved and licensed early childhood services in Victoria.