September 15, 2015

Lessons from the Royal Commission Part 4

This article was authored by Debra Holmes,
Program Manager, Safeguarding Children Program at the Australian Childhood Foundation.

Recently, the NSW Family and Community Services Minister Brad Hazzard announced a review of the Working with Children Checks in his State in response to cases where people initially denied a working with children clearance have had the decision overturned in court.

The decision of the courts has raised concerns for the government, but NSW is not alone in needing to evaluate its processes; Whilst all States and Territories have in place or are working towards having some form of mandated screening checks for people working with children, the effectiveness of these checks in preventing the abuse of children has not been evaluated elsewhere either. But this is now set to change.

The Royal Commission into Institutional Responses to Child Sexual Abuse has commissioned research into the effectiveness of pre-employment screening practices for child-related work. This research is to assist in its consideration of whether or not the WWCC should be national; what should be included in such a scheme (eg what records that should be included in the check); and how the effectiveness of WWCCs should be evaluated. The Scoping review: Pre-employment screening practices that aim to prevent child sexual abuse was undertaken by the Parenting Research Centre and the University of Melbourne. The review mapped evaluations of pre-employment screening practices for child-related work and can be found here.

Whilst there is a lack of rigorous quantitative evaluations, the review notes that given the methodological difficulties in researching this issue, it is arguably best explored through in-depth case studies which aim to identify the factors that may have contributed to abuse occurring. The review authors are careful to point out that they identified key themes in the statements of evaluation authors rather than assessing the validity of and supporting evidence for those statements.

Screening practices were divided into two types: criminal history checks and other checks. A key theme identified by the review is that criminal background checks are an important component of pre-employment screening practices but are of limited effectiveness unless used in conjunction with other pre-employment screening practices.

Effectiveness and feasibility of criminal background checks

The effectiveness and feasibility of criminal background checks was supported by:

  • Examples of cases where criminal background checks were not conducted and unsuitable people with criminal backgrounds were employed in child-related work
  • Examples of cases where criminal background checks were conducted and unsuitable people with criminal backgrounds were subsequently not employed in paid or unpaid (volunteer) child-related work
  • The perceptions of those involved in screening that:
    • criminal background checks are effective and give a more accurate picture of the applicant’s suitability
    • there is a lack of effect of criminal background checks on the willingness of qualified people to apply for positions, including volunteer positions; and
    • there is a potential deterrent effect in pre-employment screening.

However concerns about the effectiveness and feasibility of checks were expressed in relation to:

  • time delays in undertaking checks,
    • associated costs (particularly for organisations with a large volunteer base) which were exacerbated by a lack of portability of criminal background checks across jurisdictions
    • risk of people with criminal backgrounds changing or using false names,
    • criminal offences committed in other jurisdictions,
    • risks posed by exemptions from mandatory checks eg parent volunteering in activities in which there children are involved,
    • lack of checks of other adults who may be co-residing eg in foster care or day care homes,
    • conflicting ethos reflected in different legislation regarding actions to be taken based on checks, that is, an ethos that values rehabilitation versus one that values child safety
    • Ethical concerns regarding privacy and/or rehabilitation and the inclusion of served, pardoned/ quashed convictions in screening checks.

A fundamental concern is that because of low levels of disclosure of sexual abuse and relatively low conviction rates for all types of sexual assault (in particular child sexual assault), there is often no relevant criminal conviction or other information to discover no matter how comprehensive screening practices are.

The use of other pre-employment screening practices

The effectiveness of other screening practices was supported by case examples where comprehensive screening practices including reference checks were not followed resulting in unsuitable people being employed and sexually abusing children in their care.

Other pre-employment screening practices included:

  • reference checks with direct questions about suitability to work with children
    • employment interviews with focus on suitability to work with children (such as value-based interviewing)
    • Checking child abuse registries, children’s court decisions or disciplinary body proceedings
    • Critically examining employment history to identify gaps and explain ambiguous responses to direct questions about criminal history
    • Verifying identity with photo-based documents or fingerprinting
    • Verifying the applicant’s education or qualifications

An important observation for those involved in interviewing referees and/or being referees is that ambiguous, evasive or undetailed references may reflect unstated concerns on the part of the referee. Case examples were cited that revealed a disturbing dichotomy where referees were reluctant to share information regarding their concerns about a person’s suitability to work with children for a variety of reasons yet they avowed the need to obtain reliable information in a reference and a dependency on the referee to provide relevant and reliable information.

Disqualifying unsuitable applicants

It would appear to be a safe assumption that people identified as unsuitable to work with children should be disqualified from doing so. However, case examples highlighted that even when screening practices were in place areas of concern were not followed up and prohibiting employment was not always a matter of course, even in the face of evidence of child sexual abuse. In most Australian jurisdictions, persons who have a negative finding in relation to criminal history are legally prohibited from working with children. However the circumstances identified in NSW (above) indicate that this is not a guaranteed prohibition.

Competing rights: privacy, rehabilitation and employment versus child safety

A study by the Australian Attorney-General’s Department in relation to possible infringements on a person’s right to privacy, rehabilitation and employment in sharing information about pardoned, quashed or served criminal convictions, reported that screening agencies appear to only disclose information ‘where there is a legislative requirement to do so, and is treated in accordance with relevant privacy laws’ and that this does not appear to have had an unjust impact on people seeking to work with children. The review notes concerns that passing soft information such as details of acquittals or decisions not to prosecute could be considered an infringement on individual rights.

Conclusion

The review concludes ‘The literature suggests that, when combined with other policies and practices that promote a positive organisational culture, comprehensive pre-employment screening practices are likely to contribute to safeguarding children against child sexual abuse’.