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Reporting abuse and neglect

The online version of Hot Topics 81: Child care and protectionwas updated in February 2015. The update includes changes made to the Children and Young Persons (Care and Protection) Act 1988 and the Adoption Act 2000 which came into effect on 29 October 2014.

Who makes reports in NSW?

Anyone who has a concern that a child is at risk of significant harmcan report their concerns to the Child Protection Helpline (within the Department of Family and Community Services). (Keep Them Safe Factsheet no 8, Legislation Amendments) Those who work with children are mandatory reporters and must make a report to the Chikd Protection Helpline but police, health workers, and teachers in government employ for example, may do so through their workplace to a Child Wellbeing Unit (Keep Them Safe Factsheet no. 4a Child Wellbeing Units).

Under NSW law, 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 work; including anyone who supervises such work. A mandatory reporter with concerns that a child aged under 16 is at ‘risk of significant harm’ is legally obliged to make a report. Reporters are legally protected by non-disclosure of their identity and from legal action such as defamation as long as their report is made in good faith (Children and Young Persons (Care and Protection) Act 1998 section 29).

The main professional reporters of concerns about children at risk of significant harm in NSW are:

  • police (19.2%)
  • school teachers and personnel (17.7%)
  • social workers (15.3%).

Parents, family members and friends and neighbours are also common reporters (16%)(AIHW, Child Protection Australia 2012-2013, p. 71).

Hot Tip

Guidance on making a child protection report is available from the Child Wellbeing and Child Protection NSW Interagency guidelines.

One of the major findings from the Wood Special Commission of Inquiry into Child Protection Services was that NSW had one of the lowest thresholds for reporting child protection concerns in Australia. As a result, the Child Protection Helpline was overwhelmed by reports about children and families who needed support but did not require intervention by the State. In response to this finding, the threshold was changed from ‘at risk of harm’ to ‘at risk of significant harm’ and Child Wellbeing Units (CWUs) were established in January 2010 to screen cases and deal with those that do not need to be reported to Community Services.

Hot Tip: Child Wellbeing Units

Child Wellbeing Units operate in the government agencies that account for the majority of reports to the Community Services Child Protection Helpline:

  • NSW Police Force;
  • Department of Education and Communities;
  • NSW Health (including for Local Health Districts, affiliated health services, and certain general practitioners); and
  • Department of Family and Community Services (Juvenile Justice; Housing; and Ageing, Disability and Home Care).

Trained staff in CWUs assist mandatory reporters working in their agency to use the Mandatory Reporter Guide and ensure that all concerns that reach the threshold of risk of significant harm are reported to the Child Protection Helpline.

Where a concern does not meet the statutory threshold, the primary role of the CWUs is to support mandatory reporters to plan actions, referrals, and services to support the child, young person, and their family.

 

What happens when a REPORT IS MADE?

When a report is made to the Child Protection Helpline of Community Services, an initial assessment is made by Community Services Helpline case-workers about the risk to the child and the urgency of any required action. Cases may be referred to the appropriate local Community Services office for investigation, and this may involve visits to the family and interviews with family members and other people such as teachers or the police. Cases may be closed without further investigation if there is insufficient evidence that the child is at risk of harm, when the child cannot be identified or when there is no capacity to respond.

If, however, the reported concerns are substantiated, there are a number of possible actions that may follow. One option is that the service that made the report may be able to follow up and provide or arrange for the required assistance to the child and the family. This includes referrals to family support services and early intervention programs such as Strengthening Families. If there are concerns that cannot be met by this approach, further assessment and intervention is required. This may include referral to a joint investigation response team (JIRT).

Joint investigation response team (JIRT)

Where the concerns about a child are likely to result in a criminal prosecution of the perpetrator (for example, child sexual assault and physical abuse), the matter is referred through Community Services to a joint investigation response team (JIRT). The joint investigation team consists of a community services child protection caseworker (CPC) and a Police officer. The process includes completing a risk assessment and determining the need for children’s court action and/or criminal charges.

Family law

Under the federal Family Law Act, section 4, child abuse is defined as an assault, including a sexual assault, which includes involving the child in a sexual activity in which the child is used, directly or indirectly, as a sexual object, and where there is unequal power in the relationship; or causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or serious neglect of the child.

The Family Law Actdoes refer to evidence of family violence in dealing with matters concerning children (section 69ZW). Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of situations that may constitute being exposed to family violence include (but are not limited to) the child:

  • overhearing threats of death or personal injury;
  • seeing or hearing an assault of a member of the child's family by another member of the child's family;
  • being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family;
  • comforting or providing assistance to a family member who has been assaulted or cleaning up after property has been intentionally damaged by another member of the child's family (section 4AB).

This definition of violence enables the Family Court to consider evidence of verbal or emotional abuse, and also violence directed at property, as well as acts of physical personal violence. The Court has no investigative powers but can call on information obtained in state investigations of abuse and neglect.

In dealing with child abuse allegations, federal family law courts have no mechanism for investigating allegations of child abuse or neglect. They must rely on information from the state-based child protection system or information from the parties. It is the role of federal family law courts to make orders for parenting and other arrangements concerning the child. The court will assess all the evidence about the circumstances of the child so as to make those orders in the child’s best interests. The court may need to balance the risk of harm to a child against the desirability of a child maintaining a relationship with both parents in undertaking this process. There are continuing concerns about the gaps between the federal family law system and state child protection systems.

Asylum-seeking and refugee children

The ‘best interests’ and protection of refugee or asylum-seeking children in Australia (particularly unaccompanied children) have been a concern for some time. The ‘best interests’ and protection of refugee or asylum-seeking children in Australia (particularly unaccompanied children) have been a concern for some time.

On 3 February 2014 the Australian Human Rights Commission launched an inquiry into children in closed immigration detention. The purpose of this inquiry is to investigate the ways in which life in immigration detention affects the health, well-being and development of children. The President of the Commission, Professor Gillian Triggs, is assessing whether laws, policies and practices relating to children in immigration detention meet Australia’s international human rights obligations, with particular attention to:

  • the appropriateness of facilities in which children are detained
  • the impact of the length of detention on children
  • measures to ensure the safety of children
  • provision of education, recreation, maternal and infant health services
  • the separation of families across detention facilities in Australia
  • the guardianship of unaccompanied children in detention in Australia
  • assessments conducted prior to transferring children to be detained in ‘regional processing countries’
  • progress that has been made during the 10 years since the Commission’s 2004 report: A last resort? National Inquiry into Children in Immigration Detention.

At the time the inquiry was announced in 2014, there were over 1000 children in immigration detention, Including 200 held offshore.

According to a submission by Westmead Children's Hospital refugee clinic (HARK - Health Assessment for Refugee Kids) to the Inquiry:


More than half of all the asylum seeker children we are currently seeing are suffering from post-traumatic stress. Many of these children were exposed to traumas in their countries of origin and on perilous journeys, which clearly contribute to their stress. However, the trauma of being in detention centres without knowledge of when they will be released clearly adds to the stress and compounds the problem. A number of children have been deeply traumatised by their time in detention resulting in post-traumatic stress disorder, nightmares and self-harming. High levels of stress in the children are particularly likely if their parents are struggling to cope with the stress. Unequivocally, the longer a family is in detention, the greater the stress on the child and on their parents. Parental stress in turn increases the stress on children.

Concerns had previously been raised with the UN Committee on the Rights of the Child in the recent non-government alternative report, Listen to the Children and in briefing by the Child Rights Taskforce in Geneva. The UN Committee expressed its concerns in its Concluding Observations about Australia’s compliance with the Convention on the Rights of the Child. A UNHCR monitoring visit to the Republic of Nauru in

October 2013 reported that:

Overall, the harsh and unsuitable environment at the closed Regional Processing Centre is particularly inappropriate for the care and support of child asylum-seekers. UNHCR is also concerned that children do not have access to adequate educational and recreational facilities. In light of the overall shortcomings in the arrangements, highlighted in this and earlier reports, UNHCR is of the view that no child, whether an unaccompanied child or within a family group, should be transferred from Australia to Nauru.

The UN Committee has drawn attention to the conflict of interest where the legal guardianship of unaccompanied minors rests with the Minister of Immigration, who is also responsible for immigration detention and determinations of refugee and visa applications. It was recommended that the Australian Government expeditiously establish an independent guardianship for unaccompanied immigrant or refugee children. The Committee urged Australia to bring its immigration and asylum laws into full conformity with the Convention and other relevant international standards and reconsider its policy of detaining children who are asylum-seeking, refugees and/or irregular migrants. See www.childrights.org.au