INSIGHTS: The cost of doing business: an open and shut case for a child care centre

A case with a fortunate outcome highlights the need for child care operators to be vigilant in actioning issues identified for maintenance, which potentially impact on safety. This case also confirms the importance of clear and open communication.

The facts

In this case a parent inadvertently left an entrance gate open at a child care centre. The gate remained open because of a problem with the self-closing mechanism. A child escaped through the open gate. The child was located by a passer-by and returned to the centre, fortunately unharmed.

Enquiries revealed that the supervisor at the centre had been aware of the problem with the gate either the day before the incident or three days before the incident, and had failed to arrange for repair/replacement of the self-closing mechanism.

Following the incident, the self-closing mechanism was replaced and a second gate entry was added, creating a double gate entry.

The supervisor failed to report the incident to the Department, perhaps believing that she may be the subject of criticism because she had failed to call the maintenance contractor at the centre promptly, upon being alerted by a staff member that there was an issue with the gate.

The Approved Provider/Owner only became aware of the incident a couple of days after the incident.

The passer-by who discovered the child made a complaint to the Department with responsibility, at the time, for child care regulation.

The case

The Department charged the Approved Provider of the centre with three offences:

• Failing to ensure that every reasonable precaution was taken to prevent children being cared for or educated by the service from any hazard likely to cause injury.
• Failing to ensure that all children being cared for or educated by the service were adequately supervised.
• Failing to make a timely notification to the Department.

Meridian Lawyers assisted the child care operator with its response to the prosecution. The centre was entitled to legal assistance pursuant to the terms of its policy of insurance. Meridian Lawyers persuaded the Department to drop the first charge relating to reasonable precaution, in exchange for a guilty plea to the remaining second and third charges.

The Magistrate, after hearing legal submissions, ordered the Approved Provider to pay a fine of $500 (the maximum potential was $800) and $2,500 (the maximum potential was $5,000). Submissions were made, which resulted in there being no conviction.

The lesson

The case highlights the importance of being vigilant when it comes to any identified maintenance issue. There need to be systems and protocols in place at each child care centre to ensure that any issue is brought to the attention of the person with known responsibility for, and authority to arrange, urgent maintenance requests. All maintenance issues should be carefully documented and actioned in a timely manner.

The case highlights the importance of educating staff about the need to be vigilant about making urgent requests for maintenance and/or inspections, and to bring all issues and incidents to the attention of the relevant authority and owner. Had the Approved Provider/owner been notified at the time of the incident, he would have initiated or directed notification to the relevant Department and appropriate communication to the passer-by, which may have avoided charges being laid.

The case highlights the importance of encouraging open communication between centre staff and the Approved Provider/owner of a child care centre.

For further information please contact Kellie Dell’Oro.