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2.1.4 Responding to concerns for children in care - overview

Last Modified: 17-Apr-2023 Review Date: N/A

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Overview


Aboriginal children and families are significantly over-represented in the child protection system. This is a direct result of continuing harm caused by past acts, policies, and legislation, including the Aborigines Act 1905 (WA), with the purpose of 'protection, control, and segregation' of Aboriginal people.

The Department of Communities (Department) acknowledges the historical legacy of separation of children from families and communities, the suppression of Aboriginal values such as culture and language, and the ensuing cultural dislocation, intergenerational trauma, grief, and loss.

The Department actively acknowledges and promotes the fundamental role of family, community and the right to participation and self-determination having the autonomy in the protection and care of Aboriginal children.


The Department of Communities (the Department) has a responsibility to the children in its care to respond appropriately when concerns are raised that might impact on their wellbeing.

Concerns for children in the CEO's care are documented and addressed through the Department's Duty of Care processes. These are captured in two steps:

    1. The Duty of Care Notification.
    2. The assessment of the incident via an outcome report.

Duty of Care Notifications are a record made by the Department when an incident or event has occurred that may have resulted in harm, injury or loss to a child in the CEO's care. Duty of Care Notifications are required so that children are protected from harm and their legal rights are protected under the Bennett Duty (refer to the section 'The Bennett Duty' below). 

If at any point in recording a Duty of Care Notification there are immediate concerns for the safety of a child in the CEO's care, you must address these as a priority.


You must also consider if a Critical Incident Briefing (CIB) is required.  Refer to the Critical Incident Briefing Procedure and associated Policy in Related Resources for guidance.  In certain circumstances, both a CIB and a Duty of Care Notification may be required. For guidance on when to complete a CIB, please refer to the CIB Policy.

The notification is only the record of the incident and further assessment is generally required and documented through the completion of an outcome report or Child Safety Investigation (CSI). 

When you receive information about a concern for a child in the CEO's care, you must respond appropriately depending on the nature of the referral and the people involved.  Duty of Care Notifications fall into three general categories:

If the child, their family or their carer identify as Aboriginal or Torres Strait Islander, you must consult an Aboriginal Practice Leader. The consultation must be recorded on Form 456.

If the child, their family or their carer are from culturally and linguistically diverse (CaLD) background, you must gather information relevant to the family's culture by first talking with the family, and/or consultation with a CaLD officer or a cultural advisor from the community (providing confidentiality is upheld) or refer to the Principal Policy and Planning Officer, Cultural Diversity in head office.

 

To comply with procedural fairness, you must give the carers the opportunity to respond and this must be documented.  

If there is a formal Standard of Care concern, you will have documented evidence of previous concerns raised, and this will add weight to the Standard of Care Concern process.

Where Standard of Care concerns can't be resolved with a carer, their carer status may have to be revoked. As strong evidence is required for this process, timely recording of issues raised and the carer's response is critical.

If you become aware that a child you are working with is developing behaviours likely to pose a risk to others, such as escalating extreme violence or harmful sexualised behaviours, you must consider the risk that child poses to others in their care arrangement.

Safety planning and sharing information about this risk is particularly important if the child or young person in the care arrangement is living with younger children or particularly vulnerable children, such as those with developmental delay or serious trauma related to past abuse. For further information, see Chapter 2.1 Care arrangements for children considered a risk to others.

 

The paramount consideration is the best interests of the child and every child should be treated as a valued member of society in a manner that respects the child's dignity and privacy.

For further information on how to respond to concerns for children in care, please refer to the relevant flowchart in related resources. 

Information and Instructions

  • The Bennett Duty
  • What are Duty of Care Notifications?
  • Types of Duty of Care Notifications
  • Recording notifications and approvals
  • Approval process for Duty of Care Notifications

    • The Bennett Duty

    The Department has a duty (known as the Bennett Duty following a 1992 High Court case) to children in its care to take reasonable steps to avoid their suffering, loss and damage in consequence of a  legal right, typically an entitlement to damages or compensation, not being pursued on their behalf.

    If there is a conflict or potential conflict with the Department (e.g. a potential claim against the State for loss or injuries suffered in care), a child or young person is referred for independent legal advice.

    For further reading please refer to Bennett high court decision here.

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    What are Duty of Care Notifications?

    Duty of Care Notifications are the record of an incident or event that has occurred that might result in a child having a potential legal claim. They are called Duty of Care Notifications because the Duty of Care Team monitor the recording and actioning of these notifications, ensuring that the Department's responsibility or "duty of care" to the child is maintained.

    Duty of Care Notifications are recorded in Assist to:

    • ensure the Department responds in an appropriate and timely manner to allegations of abuse in, before, or after care

    • to assist the Department to ensure that any potential viable legal claims for children in CEO's care are protected (in accordance with the Bennett High Court decision 1992), and

    • ensure concerns about the standard of care provided to children by approved carers are appropriately addressed.

    Duty of Care Notifications are an initial report that must be completed immediately after the Department becomes aware of an allegation of abuse or an incident that might result in a child having a potential viable legal claim.

    Notifications are not the assessment of the allegation, concern or incident they are only the record of the incident that occurred.

    Notifications must be endorsed by team leaders and approved by assistant district directors (ADD) to ensure appropriate line management is notified of the incident and an appropriate practice response is developed.

    Duty of Care Notifications were previously known as:
    • Incident Notifications
    • Critical Incident Notifications
    • DoCT Incident Notifications
    • DoC Notifications
    • DoC Incident Notifications

    Duty of Care Notification is the umbrella term for a range of notifications that can be recorded in relation to a child in the CEO's care.

     

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    Types of Duty of Care Notifications

    ​Duty of Care Notifications fall into three general categories:

    • Critical Incidents.
    • Standard of Care Concerns.
    • Allegations of Abuse in Care.

         Type                                         Definition

                            Critical Incidents

    Any incident that results in, or is likely to result in, a child experiencing significant loss, harm or injury or that may result in a potential viable legal claim for a child.

    Critical Incidents do not relate to incidents where there are child protection concerns. 

    For further information about Critical Incidents, including the sub-types, please refer to Chapter 2.1 Responding to concerns for children in care - critical incidents.

                            Standard of Care Concerns

    Concerns that have been raised about the standard of care being provided to a child in the CEO's care and the carer's capacity to meet the competencies under Regulation 4 of the Children and Community Services Regulations 2006, but the concerns do not meet the threshold for a CSI.

    Standard of Care Concerns can be raised about:

    • an approved carer on the Foster Carer Directory;
    • a Department employee providing care to a child; or
    • a Community Service Organisation (CSO) employee providing care to a child. 

    For further information about Standard of Care Concerns, including recording requirements for carers and children, please refer to Chapter 2.1 Responding to concerns for children in care - standard of care concerns.

                            Allegations of Abuse in Care

    There has been a disclosure or allegation of physical, emotional or sexual abuse or neglect of a child which meets the threshold for further investigation to determine whether a child has experienced harm.

    Allegations of Abuse in Care can be raised about:

    • an approved carer
    • a Department employee
    • a CSO employee, or
    • a relative (s.3 Children and Community Services Act 2004). 

    Allegations of Abuse in Care generally result in two processes:

    1. A CSI, and
    2. A Carer Investigation.

    For further information about Allegations of Abuse in Care, including sub-types and recording requirements, refer to Chapter 2.1 Responding to concerns for children in care - allegations of abuse in care.

     

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    Recording notifications and approvals

    Duty of Care Notifications are recorded in Assist. The nature of the notification dictates whether the notification needs to be manually generated or is automatically generated by Assist. For example, if you commence a CSI for a child in the CEO's care, a Duty of Care Notification will automatically be generated. 

    Duty of Care Notification Content

    Summary

    A short sentence summarising the reason for the notification.

    Details

    Brief background about the child:

    • Details about when and why the child came into the CEO's care, including dates and types of any Protection Orders that have been issued.
    • Details of any siblings, identifying those who are in care, including details of their Protection Orders.
    • The parents' details.

    Care arrangement details:

    • Details about the child's care arrangement at the time of the incident, including the name of the carer or facility, the type of carer (if applicable), the start and end dates of the arrangement, as well as details about their current care arrangement. A full care arrangement history does not need to be included.

    Incident details:

    • Summarise the incident, concern or allegation that led to the notification being required:
      • the date the Department first became aware of the incident
      • the name and title of the Department officer who received the information
      • the name and role of the person who reported the information (and their relationship to the child, if relevant), and
      • brief details of the incident including:
        • when and where the incident occurred;
        • who was involved in the incident; and
        • details of what is alleged to have happened.

    Proposed Action:

    Record your planned response to the incident or allegation. Depending on the nature of the incident or allegation, the notification should include:

    • whether a CSI will be undertaken
    • brief details of any safety plan that has been developed
    • details of any referral to ChildFIRST or police
    • details of who will be interviewed and when
    • details of any medical assessment, and
    • details of counselling and/or support services to the child, parents, carer and so on. 

    Refer to the Guide to Completing Duty of Care Notifications template (in related resources) for further information.

    Your role is to complete the notification with the relevant information and ensure that it is finalised.   

    Relevant consultations must be considered and undertaken throughout the life of the assessment or investigation process.  For concerns related to: 

    • Department carers, you must consult with the senior child protection worker placement services.
    • Aboriginal or Torres Strait Islander children or carers, you must consult with an Aboriginal practice leader and record the consultation on Form 456.
    • CSO employees or carers, you must advise and consult with the CSO.

     You must document all consultations.

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    Approval process for Duty of Care Notifications

    ​All Notifications must go through an approval process.  The Notifications will remain in draft on Assist until the approval process is finalised. The approval process is finalised when the ADD approves the Notification.  The Notification will be published to the case file when the ADD approves it.

    Using the Approvals Tab in the Notifications, the child protection worker must send a request to their: 

    • Team leader (TL) for endorsement
    • Assistant district director for approval

     Once a Notification has been approved by the ADD the status will change from Draft to Lodged on Assist.  The Notification will then appear on a report that is generated by a member of the DoCT.  The Notification will be quality assured and then endorsed by the Manager of the DoCT.  The status of the Notification will then change to received.

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Related Resources

Policies

Standards