In New South Wales, Australia, the Department of Family and Community Services (the Department) is responsible for statutory child protection, which includes maintaining a system to receive reports about children who have been harmed or who are at risk of being harmed. Under the Children and Young Persons (Care and Protection) Act 1998 (NSW), a mandatory reporter includes a person who delivers services to children, or who has a management role in relation to the delivery of services to children. The full definition can be seen at section 27(1) of the Act. This is a very wide definition that includes most medical doctors, dentists, child psychologists and psychiatrists, counsellors who work with children, child protection caseworkers, police officers, hospital workers, school teachers and early childhood care workers, and other employees of schools and pre-school institutions. Providers of residential services to children are also in scope. In addition, the managers of institutions that provide any of these kinds of services are likely to be mandatory reporters, as are some non-practitioner employees who come into contact with children when providing support to professional colleagues or services to children directly. If you are uncertain about whether you are a mandatory reporter, you should take steps to find this out. Breaching the Act, by failing to make a required report, can lead to professional misconduct charges being laid against a mandatory reporter. On the positive side, section 29 of the Act provides that making a report is not a breach of ethical standards, even though it involves disclosing confidential client information. Mandatory reporters who make a report to the Department are protected from professional misconduct charges, defamation proceedings, and civil proceedings in relation to the report, and the reporter’s identity is protected in most circumstances. A NSW Court of Appeal decision in 2014 upheld the protection of reporters’ identities, and noted that the purpose of section 29 is to protect good faith reporters’ identities “for the obvious reasons that persons… referred to in such reports may [otherwise] visit consequences on the reporter and the prospect of that occurring may deter or inhibit persons from making reports.” This protection of a reporter’s identity, and the other protections under the Act mean that mandatory reporters can confidently report their suspicions when a report is required, knowing that the source of the report is unlikely to become known to persons named in the report.
When is a report required? A report to the Department (usually made to the Child Protection Helpline, telephone 132-111 in New South Wales) is required if a mandatory reporter, in the course of his or her work, has reasonable grounds to suspect that a child (or a particular grouping of children) is at risk of significant harm. The critical terms here are “reasonable grounds”, “suspect”, and “risk of significant harm.” Risk of significant harm requires more than just risk of harm generally, and might be expected to involve a risk of physical, psychological or developmental harm that could potentially have long-term consequences, including the risk of a child being killed or abducted or requiring hospital treatment. Mandatory reporters should always be alert to the possibility of a child being at risk of harm, and use forensic judgment to determine whether the suspicion is based on reasonable grounds. Important indicators of possible risk may include unexplained injuries, the child having heightened anxiety or fearfulness, domestic violence in the home, or parental misuse of drugs or alcohol. The Department has a comprehensive manual – The “New South Wales Mandatory Reporter Guide” – which includes a structured decision-making system to help mandatory reporters make decisions about their suspicions of risk to children. Risk of significant harm reports are critically important to the Department’s work, and the Department relies on mandatory reporters to be the Department’s eyes and ears in identifying children who may be at this level of risk. Reports from mandatory reporters can be linked with other reports and information held by the Department, to enable risk to be evaluated and addressed appropriately. A single report is rarely the trigger for intervention on its own, unless the report identifies a critical event such as actual harm to a child, but through the aggregation of multiple reports and other information in hand the Department can build up a comprehensive picture of a child’s situation and the risk factors that are present for the child. Some risk factors seen in isolation might not justify any action, but multiple factors can lead to risk being reassessed and the child’s case being given a higher priority. For example, the Department might initially receive reports about a family being transient or homeless, which of itself might not require immediate action by the Department (the parents may just need time to sort out accommodation), but if those initial reports are followed by reports of domestic violence between the parents, drug use by the parents, or the children being unfed or physically mistreated, the matter will be looked at more closely by departmental caseworkers. Where a report alleges physical or sexual abuse of a child, the report is likely to be passed to the Joint Investigation Response Team (J.I.R.T.) covering the area where the child lives, so that an investigation can be carried out quickly to ensure the child is protected from harm and any perpetrator of such abuse is prosecuted if a crime has been committed. J.I.R.T. staff are drawn from Department, NSW Police and NSW Health, to facilitate joint investigations of offences against children.
While it may be uncomfortable for a professional person to disclose patient or client confidences, the law is clear about the obligations of mandatory reporters. This has been the law in NSW since 1978, and most other states of Australia for more than 20 years. There can be a fine line between risk of harm and risk of significant harm, but reporters should not err on one side or the other – for example, reporters should not adopt an “if in doubt report it” attitude – because the obligation to report only arises where risk of “significant” harm is suspected. It is a matter for the mandatory reporter to consider whether his or her suspicions are based on reasonable grounds, and point to the child being at risk of significant harm. The Department receives well over 100,000 relevant reports each year, and reporting other (non-significant) situations to the Department can impact on the Department’s ability to quickly assess and allocate more serious cases for attention. Where the risk of harm does not reach the threshold level, resources are available to guide reporters about how to best deal with these kinds of situations. The Department’s website has a lot of material, and professional associations also issue guidance to members. If this information does not answer a specific question, a lawyer who is experienced in child law cases will be able to provide helpful advice.