Substantiation - advice
This advice provides additional information about the substantiation decision and recording a person assessed as responsible for harm.
Document ID number 2036, version 4, 30 June 2022.
See procedure Decision on outcome of investigation for tasks that must be undertaken.
The substantiation decision focuses on whether the protective intervener is satisfied on reasonable grounds that a child is in need of protection. This generally involves considering whether harm to the child has occurred, or if there is a likelihood of harm occurring, whether the consequence of that harm is concerning, significant or severe and the impact on the child’s safety or development. It focuses on current and past harm, and an assessment of probability of future harm. An assessment of a person’s responsibility for causing harm or likely capacity to cause harm to a child is connected with the substantiation decision.
Decision making in child protection, including the substantiation decision and person responsible for harm assessment, is determined as part of the risk assessment, based on thorough analysis guided by the SAFER Children framework.
Quality of care concerns are investigated under different provisions of the CYFA, procedure Quality of care concerns for tasks that must be undertaken.
Information, evidence and outcomes
Practitioners may use supporting information and evidence to articulate the known facts according to particular factors. When information is considered evidence, it can be used to confirm or disprove an allegation of harm.
Information remains defined as alleged when it has not been tested, verified or confirmed.
Supporting information and evidence is used to map when what is known moves from being alleged (or reported) to:
- verified (such as from a mandatory reporter so considered verified on its own merit, it is corroborated or supported by another highly trusted source)
- confirmed (for example after an interview, from a practitioner’s own observations, is the basis for substantiation)
- unable to resolve (investigated but no information to confirm or disprove)
- disproved (not confirmed – compelling evidence from a practitioner’s own observations or another professional that the allegation is not true or valid, may be the basis for not substantiating)
- unable to investigate (for example the child has moved interstate prior to investigation or unable to be located).
The outcome values above are relevant only for use by practitioners from investigation phase onwards, as in intake all information is alleged.
A substantiation decision must not be recorded unless the child has been observed and, if they are old enough, interviewed.
The parents must also have been interviewed unless they are unable to be located or where a child protection interview of the alleged offender may impact on a police investigation.
A decision to substantiate must be based on an endorsed risk assessment.
Within 28 days of receipt of the report the child protection practitioner, in consultation with their team manager, must determine a case to be either:
- substantiated, or
- not substantiated.
A substantiation decision must be based on the information and evidence obtained during the investigation. The report is to be substantiated if the protective intervener is satisfied, based on the evidence, risk assessment and use of professional judgement that the child is in need of protection against the grounds as set out in s.162 of the CYFA. This includes concerns not included in the report but identified in information obtained through the process of seeking information from other sources.
Need for protection
If any of the following grounds exist, a child is in need of protection:
- the child has been abandoned by their parents and after reasonable inquiries—
- the parents cannot be found; and
- no other suitable person can be found who is willing and able to care for the child;
- the child's parents are dead or incapacitated and there is no other suitable person willing and able to care for the child;
- the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
- the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
- the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
- the child's physical development or health has been, or is likely to be, significantly harmed and the child's parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.
For the purposes of grounds (c) to (f), the harm may be constituted by a single act, omission or circumstance, or accumulate through a series of acts, omissions or circumstances.
For grounds (a) and (b), the matters that would lead to forming a view that the child is in need of protection are the absence of parental care, having made reasonable inquiries where appropriate, and the lack of a suitable person willing and able to care for the child.
For grounds (c) to (f), the matters that would lead to forming a view that the child is in need of protection are if the consequence of harm judgement is rated as either severe or significant, and the probability of harm occurring is likely or very likely.
There will be occasions where it is not possible to determine past or current harm to a child, but the probability of harm is very likely and that harm is assessed as severe or significant based on family history or substantiation of harm to another child in the family, and the parent's current presentation.
In these cases, the substantiation decision will be based on the probability of harm and the consequence of that likely harm. For example, child protection may have substantiated a serious injury to a sibling and identified significant risk factors such as a parent's presenting mental health, which indicate that other children in the family may currently be at risk of significant harm.
The decision making process should be supported by a thorough and current risk assessment informed by information seeking and analysis consistent with the SAFER children framework.
An alleged event that occurred some time ago is a valid basis to substantiate that a child has suffered harm, although evidence may be difficult to obtain. If, after reviewing all the available evidence, there is sufficient evidence to confirm that the event or harm has occurred or probability of future harm is likely, the reported concern should be substantiated.
Person assessed as responsible for harm
Assessment of responsibility for harm follows a decision to substantiate protective concerns and is based on an analysis of the information obtained during the child protection investigation. The assessment regarding who is responsible for harm provides valuable information for any subsequent assessment for the subject child, or for another child subject to child protection involvement who may have a relationship with a person assessed in a different context as responsible for harm.
It is only appropriate to record a person as having been assessed as responsible for harm when a child protection investigation or a quality of care investigation has been conducted and the outcome of that investigation is a decision to substantiate. This assessment cannot be made during intake or where, following investigation, a protective intervention report is not substantiated.
Where a concern is substantiated, this means that the assessment is that the parent has not protected or is unlikely to protect the child.
A person assessed as responsible for harm is generally likely to be a parent or parent figure, although sometimes another person within the child's relationship network, such as a relative, kinship carer or other person who has contact with or cares for the child, may also be assessed to be responsible for harm.
There may be evidence that supports an assessment that one or more people are directly responsible for significant harm experienced by the child, or may pose a particular risk to children, due to significant neglect, physical or sexual abuse, or other behaviour (omission or commission, single instance or cumulative) leading to significant harm. In this situation it is important to make a clear record identifying each individual assessed as responsible for harm. A person may only be assessed as responsible for harm relating to the substantiated grounds.
Consideration is given to the effects of family violence on the adult and child victim survivors and the failure of the perpetrator to protect the victim survivors from abuse of this type.
When the investigation and risk assessment is unable to determine direct responsibility for harm by a parent or caregiver, practitioners may assess the parent or caregiver as responsible for harm on the basis that they have failed to protect the child; that is, the parent or caregiver did not act in a way to protect the child from harm. In a small number of situations, it may not be possible to identify anyone as responsible for harm at the time of substantiation, for example in the case of an unidentified abandoned child.
Recording assessment of responsibility for harm
Where the decision is to substantiate concerns, it is a requirement that the assessment regarding responsibility for harm is also recorded. Provision has been made in CRIS to record anyone in the child's relationship network as responsible for harm; and such a record can be made regarding more than one person. The substantiation decision and person responsible for harm assessment are recorded in CRIS as part of the risk assessment. See procedure Decision on outcome of investigation for tasks that must be undertaken.
The options available are:
- Failure to protect
means the assessment is that the person 'has not protected or is unlikely to protect the child from harm' of the type substantiated. This option should only be recorded in relation to a parent.
- Caused harm
indicates that the person has been assessed as responsible for actual significant harm to the child. This option may be recorded in relation to any person, whether they are a parent or not.
- Likely to harm
indicates that the person has been assessed as being likely to be responsible for significant harm in future. This option may be recorded in relation to any person, whether they are a parent or not.
These options are not mutually exclusive and options selected should accurately reflect the assessment regarding responsibility for harm.
If it is not possible to identify anyone as responsible for harm using these options, for example where the parents are unknown, this should be recorded as 'perpetrator unknown' and the reason should be included in the rationale.
Maintain an accurate record of assessment
Subsequent to the substantiation decision being made, if additional evidence comes to light, the child protection practitioner may, in consultation with their supervisor, and with the endorsement of a team manager, update the record of their assessment of responsibility for harm to the child. Following an internal review or VCAT review where the child protection substantiation decision is appealed and the decision is overturned, a review risk assessment is encouraged. The responsible for harm assessment may be set to ‘no longer active’ in CRIS.
Recording the investigation outcome
The investigation outcome decisions about substantiation, and person responsible for harm, must be recorded in CRIS.
Informing the family and others
Families need to be informed of the outcome of an investigation and of their right to have the decision reviewed. In addition to the required notification in writing, it is good practice that the child protection practitioner discusses the outcome with the child and parents in person or at a minimum over the telephone prior to sending the standard letter regarding the investigation outcome.
Using language with care
In discussing the outcome of an investigation with families and others, practitioners should be mindful of language used. It is important to be clear and transparent about decisions made, the reasons for those decisions and any future action that will occur. The phrase 'person assessed as responsible for harm' is internal language used within CRIS for the purpose of identifying particular assessment information that is helpful for future risk assessments and should not be used outside the child protection program. With families and other external parties, practitioners should communicate in a way that will help families to understand the rationale for decisions made and should avoid using internal jargon.
Substantiation judgement and decisions, and associated actions, are described in Substantiation judgement matrix.
Review of decisions
The decision to substantiate constitutes a decision made by the Secretary and is subject to review internally and by VCAT. See procedure Internal review of decision following the making of a protection order for tasks that must be undertaken.
Considerations for good practice
The substantiation decision will determine the type of service response required to address the concerns identified for the safety and development of a child.
The practice activities in the SAFER children framework together with professional judgement provide the guidance to make decisions in the best interests of the child supported by legislation, policies and procedures.