Duty of care obligations - all staff
Duty of care is a legal concept that refers to your responsibility to adequately protect children in your care from harm. It applies to all staff members within any early childhood service in Victoria. It's 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 Families, Fairness and Housing (DFFH) Child Protection or Victoria Police
- sharing information, upon request, to assist DFFH Child Protection or Victoria Police to investigate the suspected child abuse and protect or promote the wellbeing and development of a child
- notifying the regulator where appropriate or required.
To make sure that you fulfil your duty of care obligations for all children who are involved in, or affected by, the suspected child abuse, it's strongly recommended that you follow the four critical actions set out on Report child abuse in early childhood.
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.
Criminal offences - all adults
In response to the Betrayal of Trust Report, the Victorian Government introduced new criminal offences to protect children from sexual abuse. Under those reforms a failure to report, or take action in relation to suspected child sexual abuse can 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 more information on these offences, visit:
- Failure to protect offence
- Failure to disclose offence
- Government's responses to the recommendations of the Betrayal of Trust report.
Child Safe Standards
On 1 January 2016 the Victorian Government introduced compulsory minimum standards for all organisations providing regulated or funded services for children.
New Child Safe Standards will begin on 1 July 2022 for all early childhood services, as well as schools and other organisations. For more information, visit 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. Currently, the department's Quality Assessment and Regulation Division (QARD) has primary responsibility for making sure services meet the new standards.
From 1 January 2023, QARD will be the regulator of the Child Safe Standards in early childhood services.
Mandatory reporting
Since 1 March 2019, early childhood workers and other persons in licensed and approved early childhood services will also become mandatory reporters. This includes:
- registered doctors and nurses, including Maternal Child Health (MCH) Nurses
- early childhood teachers registered with the Victorian Institute of Teaching
- all educators with post-secondary qualifications in the care or education of children and employed or engaged in an early childhood service
- the approved provider and the nominated supervisor of an early childhood service.
All mandatory reporters must make a report to Victoria Police or DFFH 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 or sexual abuse
- the child's parents have not protected, or are unlikely to protect, the child from harm of that type.
It's a criminal offence not to report in these circumstances. It's recommended that mandatory reporters follow the four critical actions as set out in Report child abuse in early childhood to make sure they fulfil all of their legal obligations .
Reportable Conduct Scheme
The Reportable Conduct Scheme requires organisations involving children to notify the Commission for Children and Young People (CCYP) of any alleged abuse by people employed by:
- the organisation
- volunteers
- contractors
- office holders
- ministers of religion
- officers of a religious body
- foster and kinship carers in a formal care arrangement.
There are 5 types of ‘reportable conduct':
- sexual offences (against, with or in the presence of, a child)
- sexual misconduct (against, with or in the presence of, a child)
- physical violence (against, with or in the presence of, a child)
- behaviour that causes significant emotional or psychological harm
- significant neglect.
Approved services under the National Quality Framework and the Children's Services Act 1996
Approved early childhood services (that is, education and care services operating under the Education and Care Services National Law Act 2010 (National Law) and children's services operating under the Children's Services Act 1996 (CS Act) must meet the requirements of the relevant regulatory frameworks.
Under both the National Law and the CS Act, the:
- 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's 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 an offence under the National Law.
There are requirements set out in the regulatory frameworks which directly relate to a service's obligations to respond to suspected child abuse.
For example, regulations require 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 the regulatory requirements in this specific area.
For more information, contact the Quality Assessment and Regulation Division (QARD).
Information Sharing and Family Violence Reforms
Many early childhood workforces are part of a system of sharing, requesting and using information about child wellbeing or safety.
It allows professionals working with children to gain a complete view of the children they work with, making it easier to identify wellbeing or safety needs earlier, and to act on them sooner.
A range of resources are available to ensure that Victorian early childhood workforces have the knowledge and information needed to work consistently and collaboratively to identify and respond to child wellbeing and safety needs.
Resources
The following resources are for:
- early childhood services (centre-based)
- government, Catholic and independent schools
- system and statutory bodies
- education health, wellbeing and inclusion workforces.
They are designed to help organisations prepare their workplaces for implementation, and provide guidance on how to share information confidently, safely and appropriately under these new reforms to improve children's wellbeing and safety.
These resources complement the delivery of Information Sharing and Family Violence Reforms briefings and online modules for education and care workforces. They should be adapted and used as appropriate in alignment with existing organisational requirements and procedures.
Contextualised guidance:
- Information Sharing and Family Violence Reforms Contextualised Guidance (PDF, 1MB)
- Information Sharing and Family Violence Reforms Contextualised Guidance (DOCX, 1MB)
Toolkit:
- Information Sharing and Family Violence Reforms Toolkit (PDF, 300KB)
- Information Sharing and Family Violence Reforms Toolkit (DOCX,99KB)
Online training is available, visit:
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 Service guidelines which include the policies, procedures, funding criteria and data collection requirements for all Victorian MCH service providers
- MCH 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 Quality Assessment and Regulation Division (QARD)
The department regulates approved and licensed early childhood services in Victoria.
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