Substantiation - advice

This advice provides additional information about the substantiation decision and recording a person assessed as responsible for harm.

Document ID number 2036, version 2, 1 March 2016.

Introduction

See procedure Decision on outcome of investigation for tasks that must be undertaken.

The substantiation decision will focus on whether the protective intervener is satisfied on reasonable grounds that a child is in need of protection. This generally involves considering whether the child has experienced, or is likely to be at risk of, significant harm to their safety or development and will focus on current and past harm, and an assessment of likelihood of future harm. An assessment of a person’s responsibility for causing harm or likely capacity to cause harm to a child is connected with the substantiation decision.

Quality of care concerns are investigated under different provisions of the CYFA, procedure Quality of care concerns for tasks that must be undertaken.

Substantiation

A substantiation decision must not be recorded unless the child has been sighted and, if they are old enough, interviewed. The parents must also have been interviewed unless they are unable to be located or where a child protection interview of the alleged offender may impact on a police investigation.

Within 28 days of receipt of the report the child protection practitioner, in consultation with their team manager, must determine a case to be either:

  • substantiated, or
  • not substantiated.

A substantiation determination must be based on the evidence gathered during the investigation. The report is to be substantiated if the protective intervener is satisfied, based on the evidence, that any of the grounds for a child being in need of protection exist. This includes concerns not included in the report.

Need for protection

If any of the following grounds exist, a child is in need of protection:

  1. the child has been abandoned by their parents and after reasonable inquiries—
    • the parents cannot be found; and
    • no other suitable person can be found who is willing and able to care for the child;
  2. the child's parents are dead or incapacitated and there is no other suitable person willing and able to care for the child;
  3. the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
  4. the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
  5. the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
  6. the child's physical development or health has been, or is likely to be, significantly harmed and the child's parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.

For the purposes of grounds (c) to (f), the harm may be constituted by a single act, omission or circumstance, or accumulate through a series of acts, omissions or circumstances.

Whether a future state of affairs is likely, is not dependent on it being more likely than not to happen; and conversely, being unlikely, is not dependent on the future state of affairs being more unlikely than not to happen.

Considerations

For grounds (a) and (b), the matters that would lead to forming a view that the child is in need of protection are the absence of parental care, having made reasonable enquiries where appropriate, and the lack of a suitable person willing and able to care for the child.

For the others, the matters that would lead to forming a view that the child is in need of protection are significant harm, or likely future harm, and parents not protecting the child from the harm or not providing appropriate care.

There will be occasions where it is not possible to determine past or current harm to a child, but there are significant indicators of current or future risk of significant harm to the child, based on family history or substantiation of harm to another child in the family, and the parent's current presentation.

In these cases the substantiation decision will be based on current risk or likelihood of harm. For example, child protection may have substantiated a serious injury to a sibling and identified significant risk factors such as a parent's presenting mental health, which indicate that other children in the family may currently be at risk of significant harm.

The decision making process should be supported by a thorough and current assessment informed by information gathering and analysis consistent with the best interests case practice model.

An alleged event that occurred some time ago is a valid basis to substantiate that a child has suffered harm, although evidence may be difficult to obtain. If, after reviewing all the available evidence, there is sufficient evidence to confirm that the event or harm has occurred or future risk is likely, the reported concern should be substantiated.

It may be that a parent is currently able to protect a child, however previously, did not protect the child. In these situations, where the abuse or other harm did occur, irrespective of the current situation, the abuse should be substantiated.

Person assessed as responsible for harm

Assessment of responsibility for harm follows a decision to substantiate protective concerns, and is based on an analysis of the information gathered during the child protection investigation. The assessment regarding who has responsibility for harm provides valuable information for any subsequent assessment for the subject child, or for another child subject to child protection involvement who may have a relationship with a person assessed in a different context as responsible for harm.

It is only appropriate to record a person as having been assessed as responsible for harm when a child protection investigation or a quality of care investigation has been conducted and the outcome of that investigation is a decision to substantiate. This assessment cannot be made during intake or where, following investigation, a protective intervention report is not substantiated.

Where a concern is substantiated, this means that the assessment is that the parent has not protected or is unlikely to protect the child.

A person assessed as responsible for harm is generally likely to be a parent or parent figure, although sometimes another person within the child's relationship network, such as a relative, kinship carer or other person who has contact with or cares for the child, may also be assessed to be responsible for harm.

There may be evidence that supports an assessment that one or more people are directly responsible for significant harm experienced by the child, or may pose a particular risk to children, due to significant neglect, physical or sexual abuse, or other behaviour (omission or commission, single instance or cumulative) leading to significant harm. In this situation it is important to make a clear record identifying each individual assessed as responsible for harm.

Where the available evidence is unclear about this kind of direct responsibility for harm, the only assessment recorded may relate the parent’s responsibility through not having protected or being unlikely to protect the child.

In a small number of situations it may not be possible to identify anyone as responsible for harm at the time of substantiation, for example in the case of an unidentified abandoned child.

Recording assessment of responsibility for harm

Where the decision is to substantiate concerns, it is a requirement that the assessment regarding responsibility for harm is also recorded. Provision has been made in the client information system to record anyone in the child's relationship network as responsible for harm; and such a record can be made regarding more than one person. See procedure Decision on outcome of investigation for tasks that must be undertaken.

The options available are:

  • Failure to protect

means the assessment is that the person 'has not protected or is unlikely to protect the child from harm' of the type substantiated. This option should only be recorded in relation to a parent.

  • Caused harm

indicates that the person has been assessed as responsible for actual significant harm to the child. This option may be recorded in relation to any person, whether they are a parent or not.

  • Likely to harm

indicates that the person has been assessed as being likely to be responsible for significant harm in future. This option may be recorded in relation to any person, whether they are a parent or not.

These options are not mutually exclusive and options selected should accurately reflect the assessment regarding responsibility for harm.

If it is not possible to identify anyone as responsible for harm using these options, for example where the parents are unknown, this should be recorded as 'perpetrator unknown' and the reason should be included in the rationale.

Maintaining an accurate record of assessment

Subsequent to the substantiation decision being made, if additional evidence comes to light, the child protection practitioner may, in consultation with their supervisor, and with the endorsement of a team manager, update the record of their assessment of responsibility for harm to the child.

Rationale - completing the record of assessment

The rationale for the values recorded regarding persons assessed as responsible for harm should be included as part of the assessment documenting the basis for the substantiation decision.

Investigation outcome

Recording the investigation outcome

The investigation outcome decisions about substantiation, and person responsible for harm, must be recorded in CRIS.

Informing the family and others

Families need to be informed of the outcome of an investigation and of their right to have the decision reviewed. In addition to the required notification in writing, it is good practice that the child protection practitioner discusses the outcome with the child and parents in person or at a minimum over the telephone prior to sending the standard letter regarding the investigation outcome.

Using language with care

In discussing the outcome of an investigation with families and others, practitioners should be mindful of language used. It is important to be clear and transparent about decisions made, the reasons for those decisions and any future action that will occur. The phrase 'person assessed as responsible for harm' is internal language used within CRIS for the purpose of identifying particular assessment information that is helpful for future risk assessments and should not be used outside the child protection program. With families and other external parties, practitioners should communicate in a way that will help families to understand the rationale for decisions made, and should avoid using internal jargon.

Summary table

Substantiation judgement and decisions, and associated actions, are described in Substantiation judgement matrix.

Review of decisions

The decision to substantiate constitutes a decision made by the Secretary and is subject to review internally and by VCAT. See procedure Internal review of decision for tasks that must be undertaken.

Considerations for good practice

Substantiation

The substantiation decision will determine the type of service response required to address the concerns identified for the safety and development of a child.

The decision making process must be supported by a thorough and current assessment informed by information gathering and analysis consistent with the best interests case practice model.

Additional information

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