A perennial problem for all schools is the presence of students on the campus either early in the morning or late after school who may or may not be there with school permission. Many students remain on site for a variety of legitimate reasons including for school sports, after school clubs and activities, formal tutorial groups and studying in the library.
However, there is often a group of students who are on site because their parents, for a variety of reasons – often relating to changing work hours, drop them off early or collect them late after school. This is not a new issue for schools. It is played out every day in nearly every school in the country.
Invariably, schools struggle to determine when their common law duty of care for these students starts and finishes. Schools often ask; “when will the parents be held responsible for dropping off or collecting their children outside of the published hours of supervision?” Generally speaking, however, schools usually know the answer to this question.
Case law provides some guidance. A school’s duty of care may arise before the first teacher is on morning playground duty, if students have been allowed to congregate on or in the proximity of the school campus with the knowledge of the school (see Geyer vs Downs).
The same applies after school hours. At the end of the day, the students who are left on site cannot be considered to have ‘gone home’ – typically signalling the end of the duty of care owed by the school towards them. Even if students are not enrolled in school after-hours programmes, they are still on site, meaning that the school is still responsible for their safety. If the school knows the students are on the grounds, regardless of the reason why, then a relationship has been established and it can be argued that the school has a duty of care for these students.
There may not necessarily be a duty of care owed to students who leave the school grounds and return later to use the grounds or playground equipment (unless they return to participate in a school activity-see this WA Department of Education resource for more information).
In addition to the general duty of care obligation, there may also be a broader obligation for schools to ensure the safety of students whilst on campus based on workplace health and safety obligations – this varies depending on State and Territory law. This duty is not time-limited and so schools could be held liable for accidents that occur outside of school hours. This was raised in School Governance (here) earlier this year.
Schools must therefore carefully consider the extent to which supervision is required before and after school in order to adequately discharge their duty of care. Please also note that if the school ‘allows’ parents to leave their children unattended on school premises outside of published school hours, then this practice may continue until the school makes it a point to deal with the issue.
A school’s common law duty of care to look after students on site is increasingly being addressed by non-government school registration requirements – which have the force of law under the relevant State and Territory education legislation.
It is common for State and Territory registration requirements to include a general ‘student welfare’ and/or ‘student safety’ obligation. Typically, that obligation extends to require a variety of policies and procedures on different aspects including addressing legislative obligations in relation to child protection, attendance and enrolment requirements.
But recent changes to the Victorian Registration and Qualifications Authority (VRQA) ‘Guidelines to the minimum standards and other requirements for registration’ (VRQA Guidelines) have added a more specific ‘duty of care’ compliance obligation for non-government schools in Victoria.
Under the Education and Training Reform Regulations 2007 (Vic), the school is to: “ensure that the care, safety and welfare of all students attending the school is in accordance with any applicable state or Commonwealth laws, and that all staff are advised of their obligations under those laws”. The VRQA Guidelines now state that to meet that requirement, a school must have policies and procedures in place with respect to “the duty of care owed to students“.
Furthermore, a school must now have policies and procedures that identify:
The effect of these new evidentiary requirements is that schools must now express in writing, the procedures they have in place to meet their common law duty of care obligation owed to students, including in the specific scenarios listed above.
In practice, this means that while all schools may be grappling with the question “when will the parents be held responsible for dropping off or collecting their children outside of the published hours of supervision?”, Victorian schools should now be considering their response to this question and document it in writing when developing policies and procedures which meet the duty of care evidentiary requirements in the VRQA Guidelines.
There are several practical initiatives a school can adopt and implement to assist them to meet their common law obligations and, in the case of Victoria, assist compliance with their new obligation under the VRQA Guidelines. These include:
An organised after school program is not only helpful for parents, but also allows schools to discharge their duty of care towards students that remain on school grounds. This was noted in the Productivity Commission’s (Commission) report on Childcare and Early Childhood Learning (July 2014) which recommended amongst other issues, that schools could:
In summary, schools must realise that they have a duty of care for any student who is on the premises before or after school, if there is a knowledge of the student’s presence.
Further, as the VRQA Guidelines demonstrate, a school needs policies and procedures which explain how it addresses its duty of care for its students. In doing so, a school should address its arrangements for student safety before and after school hours, including situations where students remain on school premises for reasons other than undertaking school activities.
