NOT-FOR-PROFITS – PROTECTION OF VULNERABLE CHILDREN – A NEW COMPLIANCE ISSUE

Vulnerable Children Act 2014 imposes burdens on community organisations

The requirements under the Vulnerable Children Act 2014 have added significantly to the burdens placed on community organisations. Writing (and, now, revising) this article has not been easy, and if a lawyer finds it challenging to explain legislation it is probably fair to say that many (most?) community organisations struggle to understand and comply with their obligations.

For the purposes of the Vulnerable Children Act 2014:

  • A “child” is defined as a person under the age of 18 who is not married or in a civil union, while “vulnerable children” are defined as “children of the kind or kinds (that may be or, as the case requires, have been and are currently) identified as vulnerable in the setting of Government priorities under section 7” of the Act.
  • “Work” means “paid work” or “unpaid work that is undertaken as part of an educational or vocational training course” which “takes place without a parent or guardian of the child, or of each child, being present” (and a “worker” is defined similarly in section 23 of the Act).

 

Managing risks associated with children – a balancing act

No-one wants children to be at risk, but minimising that risk creates an administrative nightmare for not-for-profits. According to an early Departmental publication (Children’s worker safety checking under the Vulnerable Children Act 2014” available here):

The Government’s Children’s Action Plan includes a commitment to implement legislation for the vetting and screening of the children’s workforce – these “children’s worker safety checks” became law in the Vulnerable Children Act 2014 (the VCA), and came into force for new workers in core children’s workforce roles on 1 July 2015.

The VCA requires safety checking of all paid employees and contractors, employed or engaged by government-funded organisations, who work with children. The requirements for safety checking also apply to people undertaking unpaid children’s work as part of an educational or vocational training course.

Businesses, unfunded non-government organisations, and voluntary organisations are not covered by the requirements, but are encouraged to also adopt the new standards voluntarily.

The VCA also contains a restriction on the employment of people with convictions for certain offences in some children’s worker roles, subject to a government-run exemptions process.

 

That explanatory publication extended to 29 pages, illustrating that the requirements under the Act are detailed. The website of the Ministry for Vulnerable Children, Oranga Tamariki, now contains a wealth of information. All not-for-profit organisations dealing with children need to come to grips with what is required of them.

 

Children’s worker safety checking

In essence:

1.   Children’s worker safety checking is intended to help identify the small number of people who pose a risk to children (that causes regrettable inconvenience to many, but in a good cause). Section 21 of the Act sets out the purpose of safety checking; namely, “to reduce the risk of harm to children by requiring people employed or engaged in work that involves regular or overnight contact with children to be safety checked.”

2.   The Vulnerable Children (Requirements for Safety Checks of Children’s Workers) Regulations 2015 require that:

  • All paid employees and contractors must be safety checked if they work with children for organisations:
    • “funded (whether wholly or partly, and whether directly or indirectly) by a State service to provide regulated service(s)” (regulated services being identified in Schedule 1 of the Vulnerable Children Act 2014 as including a range of health, welfare, justice and education services, and
    • Specifically included are “social or support services, including (but not limited to) victim support services, drug and alcohol rehabilitation services, and childcare services,” “mentoring and counselling services,” “youth services and youth work,” “out-of-school care and recreational services,” education services provided by a trades academy, a service academy, or an alternative education provider for or on behalf of a school,” and “education services provided at any off-site location for or on behalf of a registered school or early childhood service, including teen parent units, school camps, and learning centres”).
  • All people doing unpaid (voluntary) work with children as part of an educational or vocational training course (eg, trainees or students) must be safety checked.

3.   Identity checking is required by reference to an electronic identity credential or by checking an original primary identity document (with confirmation that the person being checked is that “identity” by reference to an identity document that contains a photo or by using an identity referee):

  • Checking that the “identity” has not been claimed by anyone else,
  • Followed by an interview with the “identity,”
  • Checking the “identity’s” work history over the previous 5 years,
  • Obtaining and considering information from at least one independent referee,
  • Seeking information from any relevant professional organisation, licensing authority, or registration authority,
  • Obtaining and considering information from a New Zealand Police vetting check (most checks are completed within 20 working days), and then
  • Evaluating all of that “information to assess the risk the potential children’s worker would pose to the safety of children if employed or engaged, taking into account whether the role is a core children’s worker or non-core children’s worker role.”

4.   Failure to carry out the vetting process is treated seriously; an organisation which is obliged to undertake safety checking may be fined up to $10,000 if it employs or engages a children’s worker without carrying out initial periodic safety checking (sections 25-27, Vulnerable Children Act).

 

We periodically respond to enquiries as to whether children’s worker safety checking is really necessary, and the answer is that it is required by statute and that an organisation should not look for ways to avoid its responsibilities.