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Understanding childcare negligence in Australia: A complete guide for parents

Written by:

Richele Nelsen

December 19, 2024

As parents, we trust childcare centres to provide a safe, nurturing environment where our little ones can learn, play, and grow. However, when that trust is broken through negligence or misconduct, the impact can be devastating – not just for the child, but for the entire family.

If you’re reading this guide, you may be grappling with concerns about your child’s safety or seeking answers about a troubling incident. Know that you’re not alone, and there are pathways to justice and protection for your child.

Quick Links

What is duty of care in childcare?
Key warning signs of childcare negligence
Common types of childcare negligence claims

Understanding childcare negligence in Australia

Childcare negligence is more than just a legal term – it represents a fundamental breach of the sacred trust between parents and caregivers. While we understand that children naturally experience bumps and scrapes as part of growing up, there’s a clear distinction between normal childhood accidents and incidents that occur due to negligent care.
Recent trends in Australian childcare facilities paint a concerning picture.

The Australian Children’s Education & Care Quality Authority (ACECQA) reported in its December 2023 safety review of Early Childhood Education and Care settings that there has been a significant rise in breaches related to insufficient supervision and the failure to safeguard children from harm and hazards. Between 2016-17 and 2022-23, cases of inadequate supervision of children tripled, while incidents involving the failure to protect children from harm and hazards more than doubled.

In response to these concerns, several early learning educators shared their experiences with ABC for an investigation in March 2024, shedding light on critical issues regarding staff ratios and safety in childcare centres. Key points raised include:

Educators are frequently forced to work out of ratio, with some centres exploiting the “under roof ratio” to justify staff shortages.
The “under roof” rule, which allows staffing levels in different rooms to balance each other out, is being misused to cut costs, leading to situations where a single staff member is responsible for up to 16 children.
Staff roles are sometimes miscounted, such as including the chef in staff ratios or requiring one educator to care for five babies at once.
Educators are also burdened with paperwork and cleaning duties, leaving them with less time and capacity to supervise children properly.

These reports underscore the urgent need for stricter enforcement of staff ratio regulations to ensure the safety and well-being of children in early childhood education settings.

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What is duty of care in childcare?

The concept of duty of care in a childcare setting goes far beyond simple supervision. It encompasses a comprehensive obligation to protect children’s physical, emotional, and developmental well-being.

Legal obligations include:

1. Physical safety measures

Regular safety audits of all equipment and facilities
Proper storage of dangerous materials
Adequate fencing and security measures

2. Emotional and developmental care

Age-appropriate activities and supervision
Protection from bullying or peer abuse
Support for children with special needs
Appropriate behavioural management strategies

3. Health and medical considerations

Proper administration of prescribed medications
Appropriate food handling and allergy awareness
First aid readiness and emergency response protocols
Regular staff training in health and safety procedures.

Example scenario: The importance of proper protocols

Let’s examine a situation that illustrates how proper duty of care should work.

Four-year-old Emma has a severe peanut allergy, clearly documented in her enrollment forms. One afternoon, she shows signs of an allergic reaction. In a properly managed centre, the response should include:

Immediate recognition of symptoms by trained staff
Swift implementation of Emma’s action plan
Prompt communication with parents
Detailed incident documentation
Review of how the exposure occurred
Implementation of preventative measures.

However, in a centre failing its duty of care, the scenario might involve:

Delayed recognition of symptoms due to inadequate training
Confusion about the location of Emma’s EpiPen
Poor communication with parents
Incomplete or missing incident reports
No follow-up investigation or preventative measures.

Key warning signs of childcare negligence

Recognising the signs of negligence early can prevent serious harm and help protect not just your child, but others in the facility as well.

Let’s explore these warning signs in detail.

Physical environment red flags
The physical environment of a childcare centre can tell you much about its commitment to child safety.

Watch for:

1. Unsecured access points that could allow children to wander into unsafe areas

Gates that don’t latch properly or can be easily opened by children
Unfenced or poorly fenced outdoor play areas
Unlocked storage areas containing cleaning supplies or equipment

2. Playground and equipment issues

Broken equipment that hasn’t been repaired or properly cordoned off
Playground surfaces that aren’t adequately cushioned
Age-inappropriate equipment accessible to younger children
Splintered or rusted play structures

3. Indoor hazards

Exposed electrical outlets or loose wiring
Unsecured furniture that could tip over
Cleaning supplied or medications stored within children’s reach
Broken or damaged toys with sharp edges or small parts.

Behavioural and physical warning signs

Changes in a child’s behaviour or well-being are often the most telling signs that something is wrong. Although deeply unsettling, these changes can indicate that a child may be at risk of sexual abuse, as children are particularly vulnerable to such harm.

Parents should be alert to:

a) Sudden behavioural changes

Unusual fear of being changed or cleaned
New anxiety about going to the bathroom
Regression in toilet training
Unexplained fear of particular staff members of areas
Sleep disturbances or nightmares
Unusual sexual knowledge or behaviour inappropriate for their age
Sudden changes in eating habits

b) Physical signs of concern

Unexplained bruising or marks, particularly in private areas
Difficulty walking or sitting
Torn or stained underclothing
Signs of physical restraint on wrists or arms
Recurring urinary tract infections.

Supervision and staff-related concerns

Quality supervision is the cornerstone of safe childcare.

Be alert to:
Staffing patterns

High turnover rates that prevent children from forming stable relationships
Staff members who appear overwhelmed or distracted
Multiple incidents occurring during particular staff members’ shifts

Training and qualification issues

Staff unable to explain safety protocols when asked
Lack of visible first aid certificates or required qualifications
Inconsistent responses to emergencies or injuries.

Real-world example: Kyneton daycare
In a recent case, a Victorian childcare centre was found to have employed a worker who allegedly falsified their qualifications. This incident underscores a common assumption among parents that all staff members are properly qualified. It also reveals significant gaps in the centre’s hiring process, specifically in verifying the credentials of staff before employment.

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Legal framework and regulations for childcare centres

Australia’s childcare regulations have evolved significantly in response to incidents and changing understanding of child safety needs. Currently, centres must comply with the following.

National Quality Framework (NQF) requirements

The National Quality Framework (NQF) sets out essential standards for early childhood education and care services across Australia, aiming to ensure the safety, well-being, and development of children.

Key NQF requirements include:

Staff-to-child ratios	Specific ratios are established based on the age groups of children to ensure adequate supervision and individual attention. These ratios are designed to promote high-quality care and a safe learning environment.
Minimum qualification requirements	The NQF mandates that all staff members meet minimum qualification standards, ensuring that educators possess the necessary knowledge and skills to provide quality care and education.
Regular quality assessments and ratings	Services undergo regular assessments by the Australian Children’s Education & Care Quality Authority (ACECQA), which assigns ratings based on compliance with the NQF. These assessments help maintain high standards and identify areas for improvement.
Documented policies and procedures	Services must have clear and documented policies and procedures in place covering a range of areas, including child protection, health and safety, and staff management, to ensure consistent and transparent practices.
Incident reporting protocols	The NQF outlines protocols for reporting and responding to incidents, including those related to child safety and well-being. These protocols ensure that any concerns are promptly addressed and that services are held accountable for maintaining a safe environment for children.

Together, these requirements work to create a framework that supports continuous improvement in early childhood education and care services, promoting the best outcomes for children.

State-specific regulations

Each state and territory has additional requirements, but gaps in the system remain concerning:

1. Enforcement challenges

Limited resources for regular inspections
Varying interpretation of standards between jurisdictions
Delayed response to compliance issues

2. Systemic issues

Inadequate protection for whistleblowers
Insufficient transparency in reporting
Complex complaint investigation processes.

Common types of childcare negligence claims

Understanding the various types of negligence claims can help parents identify potential issues before they escalate.

1.Supervision failures
The most common type of negligence involves inadequate supervision.

Examples include:

Children leading designated areas unnoticed
A child walking out of the centre unnoticed during transition time
Multiple children being supervised by too few staff members
Staff distracted by phone use or personal conversations
Playground incidents
Children using equipment inappropriate for their age
Rough play going unnoticed
Children accessing unsafe areas.

2. Environmental hazards

These claims often involve:

Structural issues
Damaged flooring causing trips and falls
Unstable equipment
Poor maintenance of outdoor areas
Safety violations
Toxic materials left accessible
Broken toys with sharp edges
Unsecured heavy furniture.

3. Staff-related issues

Problems with staff behaviour or training can lead to:

Improper child handling
Rough physical handling during routine care
Inappropriate discipline methods
Failure to follow safe sleep practices
Medical response failures
Delayed response to injuries
Incorrect first aid application
Failure to recognise serious symptoms.

4. Serious violations of trust
While most childcare workers are dedicated professionals, serious violations of trust can occur.

These include:

Criminal behaviour
Failure to properly screen staff
Inadequate supervision that allows for inappropriate contact
Failure to report suspicious behaviour
Inadequate policies to prevent isolated one-on-one situations
Systemic failures
Lack of proper background-checking procedures
Insufficient monitoring of isolated areas
Poor staff training on recognising signs of abuse
Inadequate protocols for personal care routines.

You're in Expert Hands

Contact us for confidential, free advice.

Frequently Asked Questions

What compensation can I claim in a childcare negligence case?

Compensation may cover:

Immediate medical expenses
Future treatment costs
Therapeutic interventions
Educational support
Pain and suffering
Loss of quality of life
Counselling services
Care and assistance costs.

How long do these cases take?

The timeline for each case can vary depending on its complexity. While more straightforward cases may be resolved within 12 months, more complex matters can take up to two years or longer to conclude.

How are sensitive cases handled to protect my child’s privacy?

We implement strict confidentiality measures, use private hearing rooms, and work with specialised child psychologists to minimise trauma. Your child’s identity is protected throughout the legal process.

Why choose GMP Law to help with your childcare negligence claim

When it comes to something as vital as your child’s well-being, selecting the right legal representation is essential. At GMP Law, we bring over 35 years of experience in handling negligence cases, with a specialised team dedicated to managing cases of childcare negligence, sexual abuse, and institutional abuse.

Our child-centred approach guides every step of the process, ensuring that your child’s needs and emotional well-being are prioritised. We strive to minimise the impact of lengthy court proceedings by pursuing strategic negotiations that aim to reduce trauma and achieve the best possible outcome.

We understand this is a difficult and emotional time. Our team is here to:

Listen to your concerns
Explain your options clearly
Guide you through the process
Support your family’s needs.

Contact us for a confidential consultation. Let us help you protect your child’s rights and ensure accountability in the childcare sector.

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Author

Richele Nelsen

Partner

Richele Nelsen is a seasoned personal injury lawyer with 14 years' experience. Driven by her law and social science (criminology) background, she fights hard to get injured clients the compensation they deserve. She specialises in Institutional Abuse and Public Liability.

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