Civil Action: Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird

This is a significant case which illustrates the application of civil law to childcare services and staff. The case was heard by the NSW Supreme Court and several actions were brought in tort and contract law.

Little Pigeon Pty Ltd owned the Footprints childcare centre which B and D attended. They were removed after Mr Bird, who worked at the centre and was a 1% shareholder of the company, was arrested and charged with two offences involving another child who had made disclosures about him. Ms Clancy, Mr Bird’s daughter, owned 99% of Little Pigeon’s shares. Little Pigeon Pty Ltd was also the licensee of the centre. B and D and other children later also made disclosures about Mr Bird. While police investigations resulted in further criminal charges being laid against him in relation to B and another child, none were laid in relation to D. The DPP finally did not pursue any of the charges to trial. In this case the plaintiffs sought damages for Mr Bird’s alleged assaults of B and D and that that Little Pigeon and Ms Clancy were vicariously liable for his acts. In addition, it was claimed that they were negligent. A and C, who are B and D’s mothers also made claims for breach of contract, given Little Pigeon’s alleged failures to provide quality childcare; retain adequately trained staff to work at the centre; follow relevant and necessary procedures required to be followed by such centres; and to ensure that the children were safe and appropriately cared for, while under its control and supervision. 

After comprehensively assessing the evidence, the Court concluded that the plaintiffs established, on the balance of probabilities, that Mr Bird did assault B and D. The Court considered the responsibility of the service under the regulatory regime in place and the requirement for a child protection policy which the Court found was not in effective operation. The Court concluded "If the policy had been in effect, as the licence and regulations required, it would simply not have been possible for Mr Bird to have repeatedly acted in the various inappropriate ways that he admitted, without at least some of them being notified to DOCS. Had that occurred Mr Bird’s assaults may well have been prevented." (paras. 234-5). The Court also found that there was no supervision of Mr Bird who was said to be a volunteer. The Court then considered whether the Little Pigeons was liable (vicariously liable) for the acts of Mr Bird. The Court concluded that it was because (para. 450):

The actual roles which Little Pigeon assigned Mr Bird, which placed him in a position of considerable power and trust, which he abused;

That those roles gave Mr Bird the opportunity to have the close contact with children which he, Ms Clancy and other witnesses described;

The authority Mr Bird was given by effectively being left unsupervised when he had such contact, which he also abused;

This lack of supervision permitting him to not only achieve intimacy with his young victims, but to control them while committing the wrongful acts he admitted and his victims disclosed; and

It was Mr Bird’s performance of the roles he was given, which created the occasion for his wrong.

In relation to the action in negligence, the Court found that B and D were owed a duty of care and that duty had been breached. As stated by the Court, "The duty is not to ensure against injury, but to take reasonable care to prevent it, that requiring the taking of reasonable steps which should reasonably have been foreseen." (para. 459). The court also found that the defendants also owed a duty of care, which had been breached, to A and C, for their psychiatric injuries. In relation to the breach of contract claim, the Court held: "Given the conclusions which I have reached on the negligence claims and the terms which the defendants accepted, it follows that A and C have also established their contractual claims, but no additional damages flow." (para. 526).

Having established their claims, the Court awarded damages to the plaintiffs as follows: A ($900,000 approximately ); B ($495,000 approximately); C ($500,000 approximately); and D ($455,000 approximately). In addition, court costs would be assessed by the Court on a future date.

Inadequate Supervision: Chief Executive Officer, Department of Communities and Gilmi Enterprises Pty Ltd

This case was recently adjudicated by the West Australian State Administrative Tribunal. In this matter an order was made which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator (Department of Communities) for contravention of section 165, National Law, by the approved provider (Gilmi Enterprises Pty Ltd) by failing to ensure that all children being educated and cared for by its service were adequately supervised at all times that the children were in the care of the service. The facts of the case are set out in the statement of relevant facts (Annexure A to case summary). In summary, a 7 year old child was not collected from the bus stop by a staff member from the service (Nature's Atelier Vasse after school care) as required. Instead a parent who was at the bus stop to collect his children noticed the child and took her to the service.

A penalty of $12,500 was imposed on the approved provider with a further $3,500 to be paid to the Department for legal costs.

In Western Australia, uniquely, such matters as this are generally heard as disciplinary matters under the National Law (WA), see the article by David Oliver in The Sector that explains the process in detail.

Federal Government Proposals to Reduce Red Tape in the Childcare Sector

The Minister for Education has issued a media release in relation to proposals to reduce red tape.

The Sector website also reported on these proposals.

Necklaces - a Danger to Sleeping Children

The South Australian Education Standards Board (the SA regulator under the  National Law) has published advice about the dangers of necklaces when a child is sleeping

In addition they have published advice about incident and complaint notifications under the National Law.

Updated Guide to the NQF

The updated September 2020 version of the Guide to the National Quality Framework (NQF) has now been published by ACECQA. The new edition contains guidance on the: 

• National Amendment Regulations.
• Intent of, and regulators’ expectations around, regulations 29 and 30 and the $10 million public liability insurance minimum cover requirement.
• Exceeding National Quality Standard (NQS) rating.

For further information see the ACECQA website.

Rationalising Regulation Report

The Centre for Independent Studies has just published a report called Rationalising Regulation: Helping The Economy Recover From The Corona Crisis. The report considers a number of regulatory areas, including the childcare sector. The report very briefly assesses the sector concluding that (at p.10):

Greater consideration should be given to staffing ratio requirements and whether the tangible benefits incurred by children justify the considerable costs of such regulation. The variation between state jurisdictions, particularly in the 36 months to preschool age group, is another aspect of staffing ratios that should be reconsidered.
It is recommended that Australian governments reconsider staffing ratio and qualification requirements in childcare to improve service affordability and reduce the need for associated government subsidies.

I have previously written on the issue of rationalising regulation in the sector (see my article in The Sector), but it is disappointing that again a report has been produced on this topic which fails to comprehensively assess the issues. See also other previous blog posts.

Charges Laid Against Childcare Workers

Further to a previous post, WA Police have charged a childcare worker with aggravated assault in relation to alleged incidents at Goodstart Early Learning Banksia Grove, according to a report in WAtoday.

7news.com.au have carried a report about a Queensland childcare worker charged with child sex offences. ABC News also carried an earlier report. These reports are based on a media release issued by Queensland Police.

 

Workplace Law: Fair Work Ombudsman v Joys Child Care Limited & Anor (No.2)

Further to my previous post, the judgment of the Federal Circuit Court is now available here.

Protection from Harm and Hazard: Chief Executive Officer, Department of Communities and Think Childcare Services Pty Ltd

This is another case adjudicated by the West Australian State Administrative Tribunal involving children getting burnt feet while outside. In this case an order was made which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator (Department of Communities) for contravention of section 167, National Law, by the approved provider (Think Childcare Services Pty Ltd) by failing to ensure that every reasonable precaution was taken to protect children being educated and cared for by it from harm and from any hazard likely to cause injury. The facts of the case are set out in the statement of relevant facts (see Annexure A). In summary, at the approved provider's Nido Early School QV1 service, during an evacuation drill, three children burnt their feet when walking through a couple of outdoor yards with rubberised soft fall and synthetic grass. All three children suffered second degree burns which required medical treatment.

A penalty of $15,000 was imposed on the approved provider with a further $2,000 to be paid to the Department for legal costs.

In Western Australia, uniquely, such matters as this are generally heard as disciplinary matters under the National Law (WA). See the article by David Oliver in The Sector that explains the process in detail.

The Department of Communities have issued a media release on this case.

Look Before You Lock Campaign

According to a media statement issued by the Queensland Minister for Education, a new campaign has been launched to help prevent children being left behind in buses. Look Before You Lock promotes the importance of early childhood services taking every possible action to ensure children in their care are transported safely. More information can be found at the campaign website.

Transfer of Service Approval: Brisbane City Child Care Pty Ltd v Kadell & Anor

This is an unusual and complex case heard by the Court of Appeal, Supreme Court of Queensland. It concerns an application by Brisbane City Child Care Pty Ltd (applicant) for leave leave to appeal against the decision of a judge in a lower court to dismiss the applicant's case.

The facts of the case, in summary, are that the applicant owned and operated a childcare centre and they entered into a contract to sell the child care centre to a third party (Affinity Education Group Ltd). The Regulatory Authority (Queensland Department of Education) issued the required consent to the transfer of the service approval for the childcare centre under the National Law on conditions relating to fire and emergency evacuation and egress, and educator-child ratios, amongst other matters (under s.66(2)). Affinity withdrew from the purchase due to the conditions. The applicant did not accept that Affinity was entitled to terminate the contract. The Authority subsequently repealed its decision to issue the consent to the transfer of the service approval. Before the lower court the applicant sought a declaration that the imposition of the conditions on the consent to the transfer of the service approval was beyond power. The primary judge considered it inappropriate to grant the relief that the applicant sought on the basis of lack of utility, the third party was not a party to the proceeding and the applicant was seeking an advisory opinion. However, the Court of Appeal granted leave to appeal and referred the matter back to a lower court for trial, remarking (at paras. 62-3):

The ongoing relationship between the parties in relation to the sale of the child care centre is a relevant consideration for addressing the substantive dispute between them. Although the objective and guiding principles of the National Law and the objectives of the national education and care services quality framework must be at the forefront of the decision-making of the Authority, the dispute between the applicant and the Authority is not about avoiding best practice in the provision of a child care service, but about the timing and content of condition that can be imposed by the Authority in relation to the transfer of the service approval. 

The applicant’s notice of appeal did seek orders from this Court in relation to the proper construction of s 65(2) and s 66(2) of the National Law. The application for leave to appeal was argued on the basis, however, of endeavouring to show that leave to appeal should be given and that, if the appeal were allowed against the summary dismissal of the proceeding by the primary judge, the matter should be remitted to the Trial Division for the substantive issues between the parties to be decided. All that needs to be observed at this stage in relation to the substantive issues is that the applicant’s construction of s 66(2) of the National Law is sufficiently arguable in the context of the other provisions of the National Law, but particularly division 3 of part 3, to warrant consideration on the merits.

WA Police Investigation into Injury to Child Allegedly at Childcare

WA Today carried a report of a police investigation after parents complained of scratches on their child.