Introduction
The legal requirements in defining a child in need of protection in alleged cases of abuse or neglect are:
- the child must have suffered or be likely to suffer harm
- the harm must be significant
- the child's parents must not have protected the child, or be unlikely to protect the child, from harm of that type.
Legal definition
Under s. 162(1) of the CYFA, a child is considered to be in need of protection if any of the following grounds exist:
- The child has been abandoned by their parent(s) and after reasonable inquiries: the parent(s) cannot be found; and no other suitable person can be found who is willing and able to care for the child.
- The child's parent(s) are dead or incapacitated and there is no other suitable person willing and able to care for the child.
- The child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parent(s) have not protected, or are unlikely to protect, the child from harm of that type.
- The child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parent(s) have not protected, or are unlikely to protect, the child from harm of that type.
- 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 parent(s) have not protected, or are unlikely to protect, the child from harm of that type.
- The child's physical development or health has been, or is likely to be significantly harmed and the child's parent(s) 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.
In relation to grounds c) to f), above, the harm may be constituted by a single act, omission (failure to act) or circumstance or accumulate through a series of acts, omissions or circumstances (cumulative harm) (s. 162(2)).
In relation to grounds c), d), e) and f) above the Court may find that a future state of affairs is likely/unlikely, even if the court is not satisfied that the future state of affairs is more likely/unlikely than not to happen (s. 162(3)). This means that whilst the Court is required to determine facts on the balance of probabilities, it is not required to apply that standard to the determination of whether a future state of affairs is ‘likely’ or ‘unlikely’.
It does not matter whether the conduct constituting any of the above grounds, occurred partly or wholly outside Victoria (s. 163).
Principles
Under the CYFA:
- Whenever the Court, the Secretary or a community service is making a decision or taking action or (in the case of the Secretary or community service) providing a service to a child and their family, they must consider the best interests of the child, the need to protect the child from harm, to protect their rights and promote their development, s. 10(1)(2).
- Further, intervention into family life should be to the minimum extent that is necessary to secure the protection of the child (s. 10(3a)); and 'all reasonable steps have been taken by the Secretary to provide the services necessary to enable the child to remain in the care of the child's parent', (s. 276(b)).
- It is only when, even with the availability of supports, the child remains in need of protection and parents are unable or unwilling to protect the child, that child protection must make an application to the Children's Court for a protection order to ensure the child's safety. Such intervention is an option of last resort.
Significant harm
Justice O'Brien in the Supreme Court, Buckley vs CSV 1992 identified significant as:
- 'more than trivial or insignificant, but need not be as high as serious…and
- (is) important or of consequence, to the child's development'…
- 'It is irrelevant that the evidence may not prove some lasting permanent effect or that the condition could be treated'.
- The significance must be demonstrated in a way that is specific to the case. For example, the same level of bruising may be seen as causing significant harm for a three month old baby but not so if found on a 14 year old child.
For harm to be regarded as significant it must be 'of consequence' or be of 'considerable amount, or effect, or importance'.
Practice definitions
Child abuse is any action, or lack of action, that significantly harms the child's physical, psychological or emotional health and development. The CYFA enables consideration of the pattern and history of harm and the impacts on a child's safety, development and wellbeing. There is now an overwhelming body of evidence to indicate that neglect, abuse and family violence are harmful and have a cumulative and detrimental effect on a child's safety and development.
Although the abuse types are described separately below for the purposes of definition, in reality many of the following forms of harm may occur within one substantiated case.
As per the police protocol, child protection must inform the police when a child has been physically or sexually abused, or is suffering from serious neglect.
Physical abuse
Physical abuse consists of any non-accidental form of injury or serious physical harm inflicted on a child by any person. Physical abuse does not mean reasonable discipline though it may result from excessive or inappropriate discipline. Physical abuse can include beating, shaking, burning and assault with weapons. Physical injury and significant harm to a child may also result from neglect by a parent or caregiver or within the context of family violence. The failure of a parent or caregiver to adequately ensure the safety of a child may expose the child to extremely dangerous or life threatening situations, which result in physical injury and significant harm to the child. Physical abuse also includes Fabricated Illness Syndrome (previously Munchausen's Syndrome by Proxy).
Emotional abuse
Emotional abuse occurs when a child is repeatedly rejected, isolated, frightened by threats or is experiencing family violence. It also includes hostility, derogatory name-calling and put-downs, or persistent coldness from a person, to the extent where the behaviour of the child is disturbed or their emotional development is at serious risk of being impaired.
Sexual abuse
A child is sexually abused when any person uses their authority over the child to involve the child in sexual activity. Child sexual abuse involves a wide range of sexual activity including fondling genitals, masturbation, vaginal or anal penetration by a finger, penis or any other object, voyeurism and exhibitionism. It can also include exposure to or exploitation through pornography or prostitution. Failure to protect a child from sexual abuse may in part relate to parental impairment or lack of parental competence to protect the child from such abuse.
Neglect
Neglect includes failure to provide the child with an adequate standard of nutrition, medical care, clothing, shelter or supervision to the extent where the health or development of the child is significantly impaired or placed at risk. A child is neglected if they are abandoned or left uncared for over unreasonable periods of time that is inconsistent with their age, stage and development.
Serious neglect
Serious neglect in this context potentially constitutes a criminal offence on the part of a parent and includes situations where a parent fails to meet the child's basic needs for food, shelter, hygiene or adequate supervision to the extent that the child's health and physical safety is jeopardised.
For example: The child's home environment is filthy or hazardous in the extreme and poses a threat the child's immediate safety or development and is characterised by the presence of animal or human faeces or urine, decomposing food, syringes or other dangerous drug paraphernalia; or where the child is provided with consistently insufficient or inadequate food or nourishment for the child's healthy development; or where a child has a serious medical condition for which the parent has consistently failed to obtain treatment or dispense prescribed medication; or where a parent consistently leaves a child unattended, exposed to or in the care of strangers who may harm the child.
Medical neglect
Neglect of medical care refers to a situation where a parent's refusal of, or failure to seek treatment or agree to a certain medical procedure leads to an unacceptable deprivation of the child's basic rights to life or health.
Considerations for good practice
Protection by parents
In addition to assessing the presence or likelihood of harm, and the significance of the harm, the practitioner must assess whether the parents have protected or are likely to protect the child. The assessment should consider the parents' willingness to protect, and whether they are capable of protecting the child and putting the needs of the child ahead of their own. In cases where a parent's capacity to protect a child from abuse is being assessed, the practitioner needs to consider whether that parent is themselves a victim of abuse (such as family violence), the current risks to the parent's own safety and the impact this has on their capacity to protect their child.