By Penny Hoffmann
Have you come across Queensland’s upsurge in child abuse substantiations that occurred in 2013? If so, do you remember the Queensland Child Protection Commission of Inquiry releasing a report that concluded with 121 recommendations for the amendment of the Child Protection Act 1999? One response to the recommendations was the acceptance of 115 recommendations and 5 accepted in principle. There is one recommendation the Commission left out and should pass; the amendment of what constitutes ‘significant harm’ in Part 3 division 1 section 10.
But first, what is the Child Protection Act 1999? The Act ‘provides for the protection of children’, as stated in Chp1, P2, S4. The fundamental principles of the legislation are the safety, wellbeing and best interests of the child. Other general principles are the right for a child to be protected from harm or risk of harm, the child’s family has primary responsibility of the welfare of the child, supporting a child’s family is the preferred method of providing safety and wellbeing.
A child’s stable living arrangements include a stable connection with family and the community in the child’s best interests, developmental, educational, emotional, health, intellectual and physical needs met. Additionally, a child is allowed to explore and maintain their identity and values. Finally, a delay in relation to the decision making of a child should be avoided unless appropriate for the child.
However, it is at the definition of ‘significant harm’ that we encounter problems affecting protection. According to Part 3 division 1 s10 of the Child Protection Act 1999, a child in need of protection has, is or is at an unacceptable risk of suffering significant harm by a single or repetitive act and does not have a parent able or willing to protect them. This definition is fair, but what is the definition of harm? The Act determines harm as ‘any detrimental effect of a significant nature on the child’s physical, psychological or emotional well-being’.
Additionally, the cause of harm is immaterial, harm can be caused by physical, psychological or emotional abuse, neglect and sexual abuse or exploitation. This is where problems arise.
Why is the definition an issue? S10 does not list examples of significant harm such as abrasions, which leads to different interpretations of the definition. As a result a doctor may class ‘significant harm’ differently than a teacher.
Furthermore, in the time it takes to investigate the human interpretation of whether a child is suffering from significant harm, the child could be undergoing further harm that may be fatal. The 2013 Commission Report recognized this issue: “a lot of time and effort is being spent on investigating to see if a child has been harmed (described by some as ‘looking for a needle in a haystack of referrals’) when those efforts could be more productively directed to family support services”.
According to the Australian Institute of Health and Welfare, the highest reported forms of child abuse from 2015 – 2016 in Queensland were emotional abuse and neglect. However, it is important to acknowledge though an increase in the reporting of child maltreatment is evident, this does not conclude the legislation is ineffective concerning the protection of children from child abuse. The increase in reporting may be due to more victims and stakeholders such as counselors adhering to the legislative requirements of mandatory reporting. In addition, the reports do not signify the actual amount of child abuse occurring, but rather an underestimation; only the victims or stakeholders who have sought help – for an current or past event – are reported.
When considering these limitations, legislation never reaches entire victim communities. Furthermore, the Commission stated 80 percent of current reports do not reach that threshold due to the legal definition of ‘significant harm’ and the reasonable person determination of the definition.
According to the Australian Institute of Health and Welfare, reports of substantiations in Queensland began to increase from 2011 to the beginning of 2013 but declined from the beginning of 2013 to 2016. The decline is not due to definition alterations in relevant legislation as no child abuse legislation changes occurred in 2013.
Overall, the legislation is mostly effective at protecting children from child abuse, but specifications such as the legal definition of significant harm, the – still – human interpretation of it (from the list of stakeholders who are required to mandatory report) and the large amount of time spent identifying whether or not a child is in an environment that is significantly harming them, when during that investigation a child could be experiencing further harm are ineffective at considering a child’s best interests, and furthermore, protecting a child.
To resolve the definition issue, it is recommended that s10 of the Child Protection Act is amended to include examples of significant harm. In addition that the processes of investigation be modified to be a quicker process to minimise the risk of ongoing harm to a child. What is happening to our children is a crime and one of the roles of good law is to protect the most vulnerable in our community. We are not dong this.
For a law to operate effectively it must be acceptable to a community. Currently, the Child Protection Act 1999 [Qld] is not accepted as it is not protecting children properly.
Queensland has the legislation but it needs to be effective.