We have seen a significant increase in demand from organisations needing support in child safety investigations. Moores recently delivered both a seminar and webinar on the topic of running an effect child safety investigation with over 230 participants. The obligations to conduct an investigation vary from state to state.
In Victoria, the heads of entities are required to investigate and report reportable conduct to the Commission for Children and Young People (CCYP) under the Reportable Conduct Scheme. While organisations might be familiar with running investigations into workplace allegations, child safety allegations carry heightened safety risks and require a nuanced approach.
Here are some of our top tips for running an effective child safety investigation:
- Keep child safety at the centre of the investigation
When an organisation receives allegations regarding child safety, there are several significant considerations for the organisation.Ensuring the safety of all children, both in your care and out, should be your primary consideration.This may involve standing down the alleged perpetrator or putting in a safety management plan to ensure they have no contact with children.
- Preparation is key
Effective child safety investigations don’t happen by accident; they are the product of careful planning. If your organisation has never received a child safety allegation, it is still important to prepare for one.This can help take some of the pressure and stress out of responding to an allegation when it occurs.You can prepare by putting in place an investigation framework and a crisis management plan.You should also make sure your child safety policies and dispute resolution processes provide you with adequate powers to investigate and take disciplinary action for child safety breaches, consistent with your legal obligations. Keep in mind that the obligation to investigate may vary from state to state.
- Work closely with regulators
Before you begin your investigation, you will need to consider whether you are required to report to the police or the Department of Health and Human Services (DHHS). Other regulators may need to be involved as well such as CCYP and the Victorian Institute of Teaching (VIT). Keep in mind that each regulator will have a slightly different focus and standard of proof. Working cooperatively and proactively with authorities will help to ensure that the investigation stays on track. In particular, you should only interview parties involved after the police have interviewed the relevant parties and/or are comfortable with you commencing your investigation. Interviewing witnesses before the police may jeopardise a police investigation or prosecution, may enable witnesses to collude, and may provide an opportunity for the destruction of critical evidence.
- Make sure your investigator is independent
It is a fundamental principle of investigations that the investigator is independent and impartial.When an investigation is required under the Reportable Conduct Scheme, it is preferable to hire an external investigator. The recent case of Kerkofs v Abdallah (Human Rights) [2019] VCAT 259, albeit in a sexual harassment context, highlighted the importance of engaging an independent and suitably qualified investigator. In that case, the company was found vicariously liable and fined $150,000 for failing to properly investigate allegations of sexual misconduct by an employee.
- Planning is critical when a child needs to be interviewed
A child safety investigation often requires an interview with a child as either the alleged survivor or as a witness. The CCYP expects that the alleged survivor and any relevant witnesses are offered the opportunity to be interviewed. However, it can also be traumatising and confronting for a child. Children should be invited to participate in the investigation, but not before you have considered the impact on their safety and wellbeing, implemented safeguards to ensure that they are supported, liaised with authorities and considered whether parental permission is necessary or appropriate. To minimise the adverse impact on the child, consider allowing them to have a support person, working with counsellors or child psychologists in planning the interview, using plain English and drafting open ended questions. Support should be offered to the child before, during and after the interview.
- Draft your allegations carefully
The allegations form the terms of reference for the investigation and need to be carefully drafted. Allegations should be clear and include the key facts in terms of who, what and when and where. They should not include emotive language and should be able to be either substantiated or unsubstantiated. Poorly drafted allegations could lead to a finding that the alleged perpetrator was not afforded procedural fairness, as in the case of Bann v Sunshine Coast Newspaper Company Ltd [2003] AIRC 915.
- Put the allegations to the alleged perpetrator in writing
A common error in child safety investigations, particularly those conducted internally, is that organisations put the allegations to the alleged perpetrator verbally, but not in writing.It is important for procedural fairness and natural justice that clearly particularised allegations are put to the alleged perpetrator in writing, that they are made aware of the potential breaches of any obligations or policies, and the potential consequences if adverse findings are made.
- Maintain the confidentiality of all parties
Whilst it is important to communicate with interested parties regarding the investigation and outcome, the confidentiality of all parties must be maintained.This is important to protect the privacy of the child, the witnesses, and the perpetrator. The stigma associated with child abuse can be significant, so communication which indicates that a person is responsible for child abuse before findings are made could put an organisation at risk of a defamation or unfair dismissal claim.The identity of children involved should also be kept highly confidential.
- Hasten slowly
Mistakes are often made when organisations rush an investigation in an attempt to quickly resolve the problem. Organisations need to ensure they are complying with natural justice principles and implementing appropriate safeguards to ensure the safety and wellbeing of individuals involved. At the same time, investigations should be conducted efficiently. Regulators are often critical of organisations for taking too long to conduct investigations, especially when they are done internally by employees who have other responsibilities and insufficient experience.
- Seek legal advice
Running a flawed investigation process can have a significant and detrimental impact on a child and others in your community, and carries significant legal, reputational and financial risks. We strongly encourage you to seek legal advice when allegations are made and an investigation is needed.We often see investigation reports where findings of law have been incorrectly made by investigators or employees without a proper legal basis.This could lead to claims being made against the organisation. Where the process is flawed, you may need to start an investigation again, which can traumatise a child further.Obtaining legal advice can also allow you to assert professional legal privilege over the investigation report if the independent investigator is briefed by a law firm. A law firm can also help you navigate the extensive child safety legislation and reporting requirements which are regularly changing and vary from state to state.
How we can help
Moores assists organisations across Australia to conduct child safety investigations in accordance with their legal requirements to achieve a satisfactory outcome. We can also provide training to up skill your staff in responding to and investigating child safety concerns.
If you would like to discuss this article with us further, or learn more about our child safety services, please don’t hesitate to contact our Practice Leader, Skye Rose or Lawyer, Rena Ou Yang on (03) 9843 2100 or by completing the form below.
Click here to watch our short video as part of National Child Protection Week 2019.
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