Family Law - Duty of child care
Recent budgetary measures to increase child care places and introduce other family-friendly initiatives are welcomed by the nation’s working mums and dads. As the corporate sector cashes in on the growing need for child care, a recent case has brought the debate back to basics: just who is responsible for the supervision of your child?
In ABC Developmental Learning Centres Pty Ltd v Wallace [2006] VSC 171, Victorian Supreme Court Justice Kevin Bell addressed the question of whether a child-care centre can be held criminally liable when staff fail to provide adequate supervision.
Last year, a Sunshine Magistrate ruled that the publicly-listed ABC Developmental Learning Centres Pty Ltd (ABC) was ultimately responsible for the failure of its staff to supervise a two-year-old child. The boy had escaped, by scaling a playground fence, from ABC’s Hoppers Crossing centre in 2003. While the child was found safe and unharmed by neighbours soon after the incident, the Magistrate fined the company $200 under the Children’s Services Act 1996 (Vic).
ABC appealed to the Victorian Supreme Court, arguing that the incident was not attributable to a failure in centre management or its systems, but wholly to the individual staff involved. Justice Bell did not agree, stating that “the obligation to protect and supervise children may be criminally enforced against both a proprietor company and its staff” (para 58). He concluded that the offences, which included “failing to take reasonable precautions to protect the child from hazards and failing adequately to supervise him”, were made out in accordance with the requirements of sections 26 and 27 of the Children’s Services Act 1996 (Vic).
In his judgement, Justice Bell also identified the protection of the child as being the critical consideration in the case. He acknowledged the extreme vulnerability of young children when they are separated from their parents or guardians for long periods during the day.
For many of today’s dual-income families, professional child-care has become a necessity, not a choice. ABC’s recent decision to increase its number of centres from 700 to 850, across Australia and New Zealand, reflects this level of demand. The expansion not only satisfies the company’s stakeholders, but also responds to the chronic shortage of child-care places and the long waiting lists currently faced by Australian families. Hopefully, recent budget measures will go some way towards addressing the problems of supply and demand.
This Supreme Court case highlights the duty of care owed by all child-care professionals and supports the demands and expectations of the community in making the protection and safety of children of paramount importance.
In the Supreme Court hearing, costs were awarded to the Department of Human Services, the body that originally prosecuted ABC Developmental Learning Centres Pty Ltd in the Magistrates’ Court.
Disclaimer:The information in this article is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Warwick Teasdale; Stephen Gregory; Barbara Watson; Paula Leslie or Tony Kenna of our office.
More information
Useful web links
The National Childcare Accreditation Council :www.ncac.gov.au
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