Professional Conduct and Child Protection Responding to

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Professional Conduct and Child Protection Responding to
Professional Conduct and Child Protection
Responding to allegations involving school personnel
Allegations of a child protection nature involving employees (workers, both paid and volunteers) must be
reported to the school authority and dealt with appropriately. This includes notifying the NSW Ombudsman of
allegations of “reportable conduct”. It is the role of the Ombudsman to oversee that such allegations are
handled in a fair and just manner.
Catholic Education Diocese of Wollongong (CEDoW) has put in place procedures to fulfil the legal obligation to
respond to allegations. These are not easy matters to deal with as they are highly sensitive and raise complex
issues and emotions. However, the welfare of children and young people and our legal responsibilities are not
negotiable. CEDoW has continually refined its processes to protect the rights and interests of all parties. All
efforts are made to maintain the integrity of the people involved and to ensure care and support. The
procedures to handle these allegations are to ensure justice and fairness for all involved.
KEY PRINCIPLES IN THE HANDLING OF ALLEGATIONS AND CEDoW INVESTIGATIONS
Respect and support for the dignity of all persons
Confidentiality
• To preserve the dignity and wellbeing of the child/ren, the employee and other persons
• To ensure the investigation is not compromised
• Also ensure security of relevant documents
Natural justice
• The employee has the right to be informed of the allegation/s and to put their case
• The employee has the right to respond to adverse comment
• Reasonable enquiries or investigations made before deciding on the matter
• Investigation conducted without undue delay
Unbiased and fair
• Investigation conducted by independent persons
• Careful decision making that is fair, just and based on evidence
Appropriate action as a consequence
• To minimise risk for the future
• To ensure protection from intimidation or retribution for bringing forth a concern in good faith
• To ensure ongoing support, where appropriate, for the child/ren, the employee and other persons
Closure of the matter investigated
The process for dealing with allegations needs to be transparent. There are checks in place to ensure this. The
process is accountable to the head of agency and is subject to scrutiny by the NSW Ombudsman. The Director
of Schools represents the Bishop of Wollongong as head of agency. Protocols govern the employee’s access to
the confidential file of the proceeding. Employees as well as others have the right to complain to the Director of
Schools and/or to the Ombudsman if they are concerned about the conduct of an investigation.
It is important to “hold on to normality” and keep these issues in perspective. We must recognise and honour
the outstanding dedication of staff to the children and young people in our Catholic schools. It is a matter of
fact that most people working in our schools are never likely to be the subject of an allegation requiring an
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investigation. Furthermore, the more serious allegations will be investigated by external agencies, such as
Police and/or Family and Community Services (FaCS); if these external agencies become involved, the CEDoW
investigation may need to be suspended until clearance is given by the external agency.
All people working in our Catholic schools are called to act in the interest of children and young people, so that
working together we may maintain the highest of professional standards and the integrity of the teaching
profession and to maintain an authentic Catholic school.
PROCEDURE FOR RESPONDING TO THE ALLEGATION
A. On receipt of the ‘allegation’ at the Catholic Education Office
• a risk assessment is initiated (Note: Risk management will be ongoing)
• a report is made to FaCS if there is a current concern that a child is ‘at risk of significant harm’
• a confidential file is opened, the initial details are gathered and it is determined whether:
(i) it is a ‘reportable allegation’  requires reporting to Ombudsman and CEDoW investigation, or
(ii) a reporting exemption applies  this is to be handled within CEDoW and investigated
• the head of agency is advised. Also, for (i) ‘reportable allegations’ CEDoW notifies the NSW Ombudsman
B.
Catholic Education Office authorises an investigation, appointing an Investigation Team to conduct the
CEDoW’s investigation. In the case of (i) where ‘reportable allegations’ are to be investigated, an
investigation report will be considered by the Director of Schools. However, for (ii) where reporting
exemptions apply and there are no reportable allegations, then an investigation report will generally be
considered by the Head of Human Resource Services.
[Details of the investigation procedure are provided in the further page.]
C.
Catholic Education Office advises the Principal of the school to meet with the employee. The
Principal informs the employee that a child protection matter has arisen. The Principal will ensure support
for the employee, informing that s/he may have a support person present whilst s/he is being informed of
the process to investigate the matter. The Principal provides the employee with the written notice of the
investigation, as well as this document about the investigation procedure.
The Principal discusses the procedure and supports for the employee. In particular, the Principal:
(i) advises an allegation has been made and the general nature of the allegation
(ii) advises an investigation has been authorised by CEDoW and provides the name/s of the Investigation Team
(iii) advises of the outcome of the initial risk assessment if it adversely affects the employee
(iv) offers support and arranges for supports (eg, counselling, a ‘contact person’ regarding the investigation)
(v) advises of arrangements for the initial meeting of the employee with the Investigation Team. The notice of
investigation is provided in writing. The Principal liaises with the employee as to arrangements for the
employee’s initial meeting with the Investigation Team [see #2 on the next page.] The meeting is arranged
at an agreed place and time, usually shortly after the employee has been informed of the investigation
(vi) advises the employee s/he may have a ‘support person’ present at the interview
(vii) advises of the employee’s right to contact their Union (usually IEU)
(viii) advises s/he may provide a written submission in support of their case
(ix) advises that confidentiality is imperative, in the interest of all parties and due process
D. The investigation is a process involving the collection of factual information to assist in reaching a
finding. The Principal supplies any relevant documentation. The parents/carers of the child(ren) involved
with the investigation are informed of the process and the Ombudsman Act also makes provision for feedback
to be given to the child(ren) and their parent/carer. The Investigation Team seeks assurance of confidentiality
from any person involved with the investigation. The investigation process allows the employee to
respond to the allegation. [Refer to the process #1 to #6 in the next section.]
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E.
A report of the investigation is considered at the Catholic Education Office.
(i) If there is a ‘reportable allegation’  it is considered by the Director of Schools
(ii) If exemptions (b) or (c) apply  it is considered by the Head of Human Resource Services
 (i) Director, or (ii) Head of Human Resource Services:
• accepts/rejects the finding/s of the investigation
• considers the recommendation/s
• decides on a course of action
 (i) Director, or (ii) Head of Human Resource Services - writes to the employee:
•
providing details of his/her determination regarding the findings of the investigation
•
where relevant, stating any disciplinary or other action
The employee may provide a written submission in response.
 (i) Director, or (ii) Head of Human Resource Services - writes to Principal enclosing a copy of letter to
employee. Principal’s role is to assist in ongoing management of issues arising out of the investigation.
F. The Principal and employee meet regarding any ongoing issues.
G. NSW Ombudsman oversight - In cases of ‘reportable allegations’, a copy of the investigation file is forwarded
to the Office of the Ombudsman. The Ombudsman’s Office reviews the findings and process and decides if
further investigation/information is required prior to closing the matter. Where allegations involve conduct that
is exempt from reporting [eg: exemption (b) ‘trivial or negligible’ force; or exemption (c) ‘class or kind’], such
matters may periodically be audited by the Ombudsman’s Office.
PROCEDURE FOR CONDUCTING THE INVESTIGATION
The general procedure*
1The
Investigation Team / Investigator -
1
Clarifies the allegation/s with the complainant &/or alleged victim/s and gathers initial details
2
Conducts an initial interview with the employee, confirming the employee is aware •
•
•
•
of available supports (eg, union, counsellor, etc)
that s/he may have a ‘support person’ present at the interview
that the support person may be a union representative
that s/he may have the opportunity, as soon as practicable, to read, verify/amend, and date and sign a copy
of the record of interview
2.1 Provides the allegation/s in writing to the employee, providing sufficient information for the employee
to respond
2.2 Invites a response to the allegation/s
• The employee considers the allegation/s and may provide a verbal response in the interview
• The employee may nominate lines of inquiry for the investigator/s to follow
• A written response to the allegation/s will be sought, within a reasonable time after the interview
3 Collects relevant information to assist with reaching a finding. This may include interviewing and taking
statements from witness/es
4 Conducts a further interview with the employee (employee may have a ‘support person’ present)
4.1 to put any further allegation/s arising in the investigation – provided in writing
4.2 to obtain any further clarification
4.3 to receive any further response to the allegation/s
5
Makes finding/s and recommendation/s. Where possible, this is usually during the further interview
[referred to in # 4 above.] The employee is 5.1 advised of the proposed finding/s and recommendation/s, and
5.2 invited to respond to the finding/s and recommendation/s. The Investigation Team records the employee’s
response in the investigation report
6
Provides a report of the investigation to the - (i) Director, or (ii) Head of Human Resource Services
advising of the finding/s and recommendation/s
-
* There are specific circumstances that may require the Investigator to defer from the general practice.
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COMMON TERMS relating to child-related employment investigations
‘Employee’
A school employee - including staff, religious, clergy and people on practical training
A person engaged by CEDoW to provide services to children - includes CEO-based staff and those
managing such workers, as well as volunteers, contractors, clergy/religious providing pastoral or
liturgical services to schools
‘Allegation’ An assertion, with or without proof, or a declaration
‘Reportable allegation’ is - an allegation of ‘reportable conduct’, or
an allegation of misconduct that may involve ‘reportable conduct’
‘Child’
Aged less than 18 years
‘Reportable conduct’ includes:
• Sexual offences ~ all criminal offences involving a sexual element that are committed against, with or in the presence
of a child
Sexual misconduct involving a child ~ includes the categories (i) crossing professional boundaries, (ii) sexually explicit
comments and other overtly sexual behaviour, and (iii) grooming behaviour
• Physical assault ~ includes any act that intentionally (or recklessly) inflicts unjustified use of physical force against a
child, or causes a child to reasonably fear that unjustified force will be used against them. It is important to consider
the context of the act and any associated aggravating circumstances
• Ill treatment ~ covers where treating (including disciplining or correcting) a child in an unreasonable and seriously
inappropriate, improper, inhumane or cruel manner. This also includes, making excessive and/or degrading demands
of a child; hostile use of force towards a child; and/or a pattern of hostile or unreasonable and seriously
inappropriate, degrading comments or behaviour towards a child
• Neglect ~ includes either an action or inaction by a person who has care responsibilities towards a child, leading to
actual or potential significant harm to a child. It may involve: supervisory neglect; carer neglect; failure to protect
from abuse; or reckless acts (or failure to act)
• Behaviour that causes psychological harm is conduct that is obviously or very clearly unreasonable and results in
significant emotional harm or trauma to a child
Reporting EXEMPTIONS - Reportable conduct does NOT extend to:
(a)
(b)
(c)
conduct that is reasonable for the discipline, management or care of children, having regard to the characteristics of
the children and to relevant codes of conduct or professional standards
physical force that, in all the circumstances, is trivial or negligible but only if the matter is to be investigated and the
result of the investigation recorded under workplace employment procedures
conduct of a class or kind exempted by the Ombudsman
Investigation FINDINGS - At the conclusion, the investigation may FIND that a reportable allegation is:
 Sustained; or  Not sustained - insufficient evidence (ie there is some evidence of weight however there is
insufficient evidence available to reasonably establish that the alleged conduct did occur); or
 Not sustained - lack of evidence of weight; or  False (and that may include a vexatious matter); or
 Not reportable conduct (eg, what occurred was  trivial or negligible use of force in the circumstances, reasonable
conduct in the circumstances, or accidental, and may be a matter that was ‘misconceived’)
 Refer: NSW Ombudsman website and see - Employment-related child protection
 NSW Ombudsman publications - http://www.ombo.nsw.gov.au/news-and-publications/publications/fact-sheets/child-protection
Publication Details
Service Area:
Human Resource Services
Team:
Safety Wellbeing & Professional Services
Approved Version:
V4.4
Effective Date:
16/06/2017
Review Date:
2018
HPRM:
D2017/002817
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FLOWCHART: Response to an allegation involving an employee
Where the concern is NOT a:
Support for all
parties is offered
Principal must advise CEO
it is referred back to the Principal
CEO Decides:
 (i) Is it a ‘reportable allegation’?
 (ii) Does reporting exemption (b) or (c) apply?
NB: An exemption (a) matter is referred
back to the Principal
NO
FaCS / Police
(REPORT)
Is there: a current concern
that a child is at risk of significant harm;
&/ or possible criminal conduct?
YES
CEO liaises with the
external agency.
NO
Risk assessment
is undertaken
CEO
arranges for
investigation
Investigation & Assessment
INVESTIGATION
CEO defers investigation
pending the FaCS/Police
assessment/investigation.
NOTIFY
Report to FaCS
Child Protection Helpline
&/or Police
(ii) An allegation must be investigated & recorded
but is exempt from reporting to Ombudsman if :
 Exemption (b) - the allegation involves ‘trivial
or negligible’ use of force
 Exemption (c) - the allegation involves
conduct of a ‘class or kind’ that the
Ombudsman has exempted with this agency
Ombudsman
(i) only
Notify Ombudsman
(i) or (ii)
YES
CEO carefully considers & consults
as appropriate at the CEO, Diocese
and with the Ombudsman’s Office
CONSULTING
 ‘reportable allegation’, or
 exemption (b) matter, or
 exemption (c) matter
REPORTING
All school ‘employees’ must promptly report to the Principal*
any child protection concern or allegation** against an ‘employee’
which may involve a ‘reportable allegation’ or where reporting exemptions may apply
…
YES
Decides:
Is disciplinary action to occur?
(i) only
Other Action
including follow-up
Support
CEO considers risk to children and
reports certain misconduct findings.
If find sustained ‘reportable conduct’  Sexual misconduct, or
 Serious physical assault
involving a child, CEO must notify the
NSW Children’s Guardian
REPORTING
Report to NSW Ombudsman
NO
… action
Disciplinary
Procedure
outcome
FINDINGS:  Sustained;  Not sustained - insufficient evidence
 Not sustained - lack of evidence of weight;  False +  Vexatious
 Not reportable conduct +  Misconceived
Recommendations to: (i) Director or (ii) Head of H.R. Services
Notification to NSW Children’s Guardian
Findings of sexual misconduct & serious physical assault
* Where the matter cannot be reported to the Principal, it must be reported directly to Catholic Education Office (CEO)
** Convictions of [“reportable conduct”] offences must be reported to the Principal (who reports to CEO), or directly to CEO
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