Anne Bradford, the head of the Northern Territory’s Department of Children and Families (the Department), has announced plans to narrow the definition of child abuse following a 30% rise in child abuse notifications. The Australian reports that the Department is stretched to breaking point with the increased workload and steady growth in the number of children in out-of-home care. To address this, Ms Bradford has proposed narrowing the definition of child abuse by reviewing whether harm occurs when a child is “at risk of” abuse or neglect.

What is the law?

In the Northern Territory, the key piece of child protection legislation is the Care and Protection of Children Act 2007 (NT) (the Act). Harm is defined in the Act as “any significant detrimental effect caused by any act, omission or circumstance on:

• the physical, psychological or emotional wellbeing of the child; or
• the physical, psychological or emotional development of the child.”

All adults are required to submit a report to the Department if they form a reasonable belief that a child:

• has been or is likely to be a victim of a sexual offence; or
• otherwise has suffered or is likely to suffer harm or exploitation.

The purpose of these provisions is to “oblige members of the public to report cases of children at risk of harm or exploitation”, which is the language that the Department believes has led to a broad interpretation of harm.

In response to our request for comment, a spokesperson stated that the Department is “currently reviewing our processes and policies. No decisions have been made at this time and no changes will be put in place without discussions with necessary stakeholders”.

From the comments made in The Australian, it is possible that one of the changes the Department is considering is a revision of their internal policy to emphasise actual, as opposed to risk of, harm. This change would lead to less reports resulting in substantiated cases of harm.

An overload of cases

One of the key reasons for the proposed reform is the high volume of child protection reports made to the Department, which has averaged over 46 reports per day in 2014/15. It is important to note that in the Northern Territory, every adult is a mandatory reporter under child protection law (unlike all other jurisdictions, where mandatory reporters are a defined class of people). The number of reports has nearly tripled over a five year period, which Ms Bradford attributes to a better understanding of child protection laws. Although this better understanding is a positive development, the Department has struggled to keep under budget, with its out of home care costs in 2014/15 going over budget by $9.3 million.

The Australian reports that the Department, in response to their increased case load, is considering revising the definition of child abuse in the Act. Ms Bradford reports that up to 70% of the substantiated claims that are dealt with by the Department (1,453 cases in 2014/15) do not fall within the intended scope of the Act, and so a change would not harm the Department’s ability to investigate and act on legally required reports of child abuse. Her view is supported by the NT Minister for Children and Families John Elferink who said that much of the harm reported through the system was the result of ‘normal things that can happen in any family’.

Controversy over the Department’s record

This proposal is controversial, coming less than two years after the Royal Commission into Institutional Responses to Child Abuse (the Royal Commission) heard evidence on flaws with the Department’s handling of incidents of child abuse, especially where they have concerned Indigenous children. The Department has also admitted that a mistake in 2014 led to reports of sexual exploitation being classed as neglect.

In the Northern Territory, the Children’s Commissioner has the ability to examine cases of substantiated abuse. The Commissioner, Colleen Gwynne, has criticised the Department for failing to meet its statutory requirements in several cases that were investigated following complaints. The Australian also stated that the Department does not keep systematic records relating to prosecutions or police involvement in cases of abuse while the child is in the Department’s care.

These criticisms seem to support the overall conclusion that the Department lacks sufficient resources. However they also highlight that the consequences of the Department’s issues include the possible neglect of legitimate child protection cases.

Revising the legal definition of child abuse: going against the trend?

Given the Royal Commission’s damning indictments into child protection procedures, the trend has been towards extending the scope of child protection laws so that fewer cases fall through the cracks. Previous articles on this include: NSW introduces laws to tighten Working with Children Check scheme, Child protection reforms add to convoluted laws in Queensland and New child abuse reporting laws: a sign of what’s to come.

The suggestions of the Department go directly against this trend by seeking to capture less reports by narrowing the definition of child abuse. Ms Bradford argued that the broad definition has led to too many cases of alleged harm being substantiated. She has criticised the lack of boundaries in the statutory definition of harm, and argues that normal adolescent behaviour is being classed as harmful. Through altering the scope of the definition, the Department aims to focus on cases which constitute ‘clearer’ instances of harm to children.

‘A hard balance’

The Department’s criticism of the current laws as being over-cautious seems to be at odds with the general trend in other jurisdictions towards increased caution in this area. As the expanded laws are implemented, it is likely that there will be an increased strain placed on departments and other government bodies responsible for administering child protection frameworks. The challenge for governments moving forward will be to balance the allocation of sufficient resources with drafting targeted and effective laws.