Duty of care in childcare centres and their liability: Parents rights explained

When we leave our children in childcare, we trust that they’ll be kept safe and sound. In Australia, legal issues in childcare centres are regulated by state laws. More often than not, they are effective in protecting our kids. But sometimes an incident or accident at childcare or day care can give parents cause for concern. When this happens, who is responsible if a child gets hurt? Trang Van Heugten, an experienced public liability special counsel, explains what duty of care in childcare means, parents' rights in childcare and what to do if your child is injured or hurt at childcare.

What are parents’ rights and responsibilities in childcare?

Parents are responsible for accurately recording their child’s:

• enrolment details, including authorised guardians and emergency contacts
• health information, including special needs, allergies and medical conditions
• daily attendance, including their time of arrival and departure

Carers are not permitted to administer medication to children unless they are specifically authorised to do so in accordance with enrolment records.

Parents have a right to feel safe and secure that the childcare centre will not place their child in the hands of strangers or unauthorised persons.

What are the duty of care responsibilities in childcare centres?

Childcare centres are responsible for dealing with and managing minor injuries and accidents, including administering appropriate first aid, changing nappies, and wiping and washing after bathroom accidents.

Rules regarding adequate supervision, trained staff and first aid procedures are in force at all times during a child’s attendance at childcare – even when the parent is late picking up the child.

It is the duty of childcare centres to meet their state or territory’s minimum standards relating to:

• the protection of children from hazards and harm
• adequate supervision
• discipline
• the maintenance of premises
• child/staff ratios
• educational or recreational programs.

If a childcare centre falls short of their duty of care, they may be in breach of the law. They could be fined, have their licence restricted, revised, revoked or cancelled, and be prosecuted.

Can you sue a childcare or day care centre for negligence if your child is injured? 

Parents may sue the childcare centre if their child is severely injured while under care and such injuries could have been prevented. For example, when unsafe play equipment causes a fractured elbow, unsupervised play leads to a partly amputated finger or unauthorised food results in anaphylaxis.

The childcare centre must notify the parent or guardian as soon as possible if a child becomes ill, has an accident or is injured or is traumatised as a consequence of a serious incident.

Serious incidents at childcare include:

• injury or trauma requiring a registered medical practitioner or admission to a hospital
• a missing or unaccounted for child

While it can be hard to see your child hurt, before taking legal action, you should consider whether your child’s injury is serious enough to warrant this. For example, in Victoria, a person must have suffered a significant and serious physical or psychological injury to be able to obtain damages compensation for childcare negligence.

If the accident at childcare involves a minor bump, a bruise or a small cut, and your child makes a good recovery from the injury, there’s no point in taking legal action against the childcare centre. You may insist that the childcare establishes better procedures to ensure similar incidents do not reoccur. However, if you have lost faith or trust in the childcare, then you may want to consider changing childcare facilities.

What can you do to help prevent daycare accidents and injuries?

It’s not always easy or practical to find alternative childcare arrangements. A good way to better ensure the safety and wellbeing of your child is to build strong relationships with their carers. You can:

• Have a chat with your child’s carer at drop-off or pick-up time. 
• Take some time to look at the play equipment.
• Review the ‘meal time menus’ and check the carer’s records of your child’s consumption of food and drinks. 
• Ask what your child got up to that day and what incidents, if any, occurred. More often than not, carers are happy to discuss your child (including the cheeky bits).
• Ask them to call you if anything out of the ordinary happens and talk them through any situations that are worrying you. For example, if your child comes home with bad nappy rashes, have a chat with the carer about regular nappy changing and provide the carer with aides such as nappy rash barriers and ask them to apply on each change.
• If you find your child comes home with unexplained bruises, ask the carer how this happened, and how it could be prevented in the future.

When my son Marcus came home from childcare with big bite marks across his cheeks, I asked the carer to help him devise a way to prevent it. Within a few days, the carer showed Marcus how to raise his arm to the other boy who had previously bitten him, and say to him, “Stop it, I don’t like it.” The biting quickly stopped and Marcus became more confident in playing and interacting with other children.

Remember, not all daycare accidents can be prevented by supervision. Toddlers who have only started to walk are more likely to trip and fall in the playground. Children are often curious and want the freedom to discover and explore. Childcare centres are expected to meet reasonable safety and supervision standards while providing an environment that allows children to develop and strengthen connections in their growing brains. It’s important to remember that it’s a matter of common sense, and that courts realise that not all accidents are preventable.

If you’re concerned about an incident that occurred at your childcare centre, but are unable to attend the facility immediately, consider asking the carer to send you some photos via email or phone to determine if something like a ‘waxy’ ear needs further and immediate attention.

Regular, open, honest and considered communication helps parents and carers raise and resolve issues before they escalate to a complaint.

And if the carer is doing a sterling job, be sure to let them know!

What can you do if your child is injured at daycare? 

When the health, safety or wellbeing of your child has been compromised, you may wish to raise a serious concern with the childcare centre. If it’s not addressed in a timely manner, you can raise a complaint directly with your state’s Department of Education and Training.

The Department will gather and assess information relating to the complaint – then decide what action to take. This may include increased monitoring, licence restrictions or even prosecution.

When should you speak with a childcare negligence lawyer?

If your child sustains serious injuries while in childcare, you should:

• Request a copy of the full incident report.
• Request details of any actions or steps taken by staff.
• Seek medical treatment for your child, and keep records of treatment provided.
• Keep receipts for your medical out-of-pocket expenses.
• Take good photographs of the equipment or facilities if the injuries were sustained because the facilities are defective, poor, not adequately maintained, etc.
• Notify the Department of Education and Training and request a full investigation into the incident.
• Seek legal advice.
  

If your child’s childcare injuries are serious and permanent, and it can be proven that the centre failed in its duty of care, you may have a case. But prevention is better than cure. By building relationships with your child’s carers, you’ll help keep your child safe, healthy and happy.