Specialised substitute residential care legislative changes

Voluntary out-of-home care is being recast as specialised substitute residential care (SSRC). It will be regulated under the Child Safe Scheme. The changes are aimed at

• reducing regulatory duplication
• making obligations clearer
• applying a risk-based approach to monitoring and enforcement.

There will be mandatory, minimum requirements for SSRC providers described in a Code of Practice. This replaces the previous Statutory Procedures for VOOHC in NSW while keeping the existing requirements for high standards of child-focused care and conduct.

Entities providing SSRC will no longer need to register to provide care. Instead, the Code of Practice will require them to complete a self-assessment of the entity’s compliance with the Child Safe Standards using an online tool. Entities that were registered prior to 1 September 2022 will need to complete the self-assessment before 1 March 2023.

There are specific requirements on the amount of time a child can spend in SSRC and there is a requirement to record placement information on the SSRC register. This means that children will not remain in SSRC without proper supervision and case planning.

New regulations to support children in SSRC will also commence.

Children’s Guardian Act 2019, Definitions and section changes

Schedule 6, Dictionary

Definitions of:

• Specialised substitute residential care
• Principal Officer (Section 8CZ)

Part 3A Child Safe Scheme

This part of the Act applies to entities providing specialised substitute residential care from 1 September 2022, and they’ll be known as Child Safe Organisations.

Section 8DA

The new section 8DA sets out requirements relating to codes of practice:

• 8DA(1)-(2) specify that the regulation may include a Code of Practice that applies to entities providing SSRC
• 8DA(4) requires each entity providing SSRC to complete, within the time specified in the Code of Practice, a self-assessment of the SSRC provider’s compliance with the Child Safe Standards.
• 8DA(5) makes it an offence for a SSRC provider to not complete the self-assessment within the time specified in the Code of Practice (unless the SSRC provider has a reasonable excuse).
• 8DA(9) means that if a SSRC provider fails to comply with the Code of Practice, the Children’s Guardian has power to:
  • conduct an investigation, and
  • following the investigation, issue a compliance notice (Note: The power for the Children’s Guardian to issue a compliance notice is expected to commence in February 2023).

In practice, under this section, entities providing SSRC will be required to comply with the Code of Practice, including the completion of a self-assessment within the specified time frame.

Section 8ZA – 8ZD

Sections 8ZA – 8ZD describe:

• restrictions on the amount of time a child can spend in SSRC
• notification requirements upon the death of a child in SSRC
• definitions and provisions relating to the principal officer of an entity providing SSRC
• powers to make regulations relating to SSRC.

Part 5, Division 5, Registers

Section 85(1D) allows the Children’s Guardian to keep the SSRC register, which contains information about children in, and organisations providing, SSRC.

Information already recorded on the VOOHC register will be transferred to the SSRC register.

Children’s Guardian Regulation 2022

Part 5

Part 5 of the Regulation applies to:

• entities providing SSRC, including designated agencies and non-designated agencies.
• designated agencies supervising SSRC.

Section 31

Under section 31, a designated agency that provides or supervises SSRC must notify the Children’s Guardian if it becomes aware that a child has been in either unsupervised SSRC for more than 90 days, or in SSRC for more than 180 days, in a 12-month period.

Section 32

Under section 32, a designated agency that is providing or supervising SSRC must the Children's Guardian of whether:

• a plan under section 8ZA(2) of the Act has been prepared or reviewed, as well as the date of preparation or review of that plan within 5 business days after preparing or reviewing the plan
• the designated agency providing, or supervising, the SSRC considers that the plan does not meet the child’s needs as soon as practicable after it becomes aware of this.

In practice, under this section, the notification requirements under the old clauses 77 and 78 remain the same but now reflect the changes to registration processes for entities providing SSRC. 

Section 33

Section 33 means the Children’s Guardian may:

• keep a record of the names and any other relevant information of entities providing or supervising SSRC.
• publish the record on the Office of the Children’s Guardian’s website.

Section 34

Section 34 provides for access to the SSRC register but it will only be given if the provider:

• is a designated agency providing or supervising SSRC
• is an entity providing SSRC if:
  • the entity was, immediately before 1 September 2022, a registered agency under the Children and Young Persons (Care and Protection) Regulation 2012, or
  • The entity has completed a Child Safe Self Assessment (CSSA) in the timeframe specified by the code.

Section 35

Section 35 describes how entities providing SSRC must record the following information on the SSRC register.

Within 5 business days* of a child commencing a placement with the entity (unless the information is already on the register):

• full name and other names the child is or has been known by
• child’s gender
• child’s date and place of birth
• whether the child is an Aboriginal person or a Torres Strait Islander person
• whether the child has a significant disability
• the name of the entity providing the SSRC
• the date the SSRC commenced
• if a case plan was prepared for the child, the date the plan was prepared and each review of the plan.

Within 5 business days of a child finishing SSRC with the entity:

• the date that the SSRC ceased to be provided.

*For an entity that does not yet have access to the register because they are yet to complete the CSSA, the requirement to record information within 5 business days means the later of:

• 5 business days after the child commences SSRC
• 5 business days after the entity has access to the SSRC register.

In practice, much of the information required to be recorded on the register remains the same, but at a minimum that the above information is recorded.

Section 36

Under section 36, a designated agency supervising SSRC must record the following information on the SSRC register within 5 business days after the designated agency commences supervision of the child’s SSRC:

• the child’s full name and any other names the child is or has been known by, and
• the entity providing the specialised substitute residential care and
• the designated agency’s name and
• the date the supervision commenced.

Sections 37 and 38

Section 37 means that the Children’s Guardian must provide a copy of the information recorded on the SSRC register as soon as practicable after a copy of the information is requested.

Section 38 allows for children or their parents to ask the Children’s Guardian to update the SSRC register to correct information about them that is incomplete or incorrect.

(The Children’s Guardian must update the register if the Children’s Guardian is satisfied that the information is incomplete or incorrect. If the Children’s Guardian is not satisfied that the information is incomplete or incorrect, the Children’s Guardian must give the person who requested the update reasons why the information has not been updated.)

Section 39

Section 39 works alongside section 8DA(1) of the Act.

It provides the regulation to support the code of practice set out in Schedule 4 to the Regulation.

Section 40

Section 40 describes the requirement for supervision meetings where designated agencies are not covered by the requirements of the Code of Practice.

This will be the case if a designated agency is supervising SSRC and is not providing SSRC. This is because the Code of Practice only applies to entities providing SSRC (whether a designated agency or non-designated agency).

The new Code of Practice sets out the mandatory prescriptive requirements for compliance with the Child Safe Standards. The code applies to entities providing SSRC, whether designated or non-designated.

It will not apply to entities supervising the provision of SSRC, as these agencies are captured by the Act and Part 5 of the Regulation.

The mandatory requirements of the Code of Practice are divided into 7 parts.

Part 1 – Preliminary

Sets out:

• key definitions for terms used throughout the code
• who the code applies to
• object of the code
• principles guiding decision-making, service planning and service delivery under the code.

Part 2 – Compliance

Sets out:

• requirement for compliance with relevant legislation
• requirement to:
  •  complete a self-assessment of the entity’s compliance with the Child Safe Standards
  • timeframe for completion of the self-assessment.

Part 3 – Systems, policies and procedures

Sets out requirements relating to having:

• public-facing and internal statements of the entity’s commitment to child safety
• a Code of Conduct
• risk management plan
• intake, assessment and service planning procedures
• complaint handling policy.

Part 4 – Intake and assessment

Sets out the actions that must be taken at the intake and assessment stage, including:

• the information that the entity must gather about the child
• information that the entity must give to the child and the child’s parents, including informing them that relevant information about the child may be shared with other agencies
• requirements relating to the scheduling of intake and assessment meetings
• requirements relating to service planning
• requirements relating to placements and placement matching, including overarching considerations applicable to matching placements for children of all ages and age specific placement requirements.

Part 5 – Supervision and case planning

Sets out:

• applicable supervision and notification requirements where an entity (other than a designated agency) has been providing specialised substitute residential care to a child for 90 days or more in a 12-month period
• applicable case planning requirements for an entity (including a designated agency)

Part 6 – Staff recruitment and training

Sets out:

• requirements relating to staff recruitment, including mandatory pre-employment checks that must be undertaken
• requirements for child safety awareness training and regular supervision and support to staff.

Part 7 – Miscellaneous

Sets out:

• record keeping requirements
• requirements applicable at the end of the child’s SSRC with the entity
• reporting requirements, including mandatory reporting if a child is at risk of significant harm as well as any reportable allegations/incidents
• requirement to ensure delivery of behaviour support is consistent with obligations imposed by relevant legislation.