Agency Compliance with Regulations 69 and 85 of the Oranga Tamariki (National Care Standards and Related Matters) Regulations
Background on Establishing the Independent Children’s Monitor
In 2017, in response to reforms of the Oranga Tamariki system and new government priorities for children (including the reduction of poverty and the Child and Youth Wellbeing Strategy), the Government commissioned a review of independent oversight arrangements for the Oranga Tamariki system and children’s issues (the Review) 1.
The Review found that the oversight arrangements required strengthening to address key issues and gaps relating to resourcing for system-level advocacy; under-investment in the resources and powers required for independent monitoring and for complaints resolution; and a need for more engagement with Māori across all elements of the Oranga Tamariki system and across independent oversight functions.
The term “Oranga Tamariki system” is used in this report to describe any agency services provided to children and young people under the Oranga Tamariki Act 1989, at any stage from the point of notification until the cessation of post-care transition. The Oranga Tamariki system includes all agencies that provide services to children in the Oranga Tamariki system, for example health, education and disability services, including non-government organisations.
In response to the Review, on 25 March 2019, the Government agreed to strengthen the system of independent oversight of the Oranga Tamariki system and children’s issues in three core areas 2:
- system-level advocacy for all New Zealand children and young people, which will continue to be undertaken by the Office of the Children’s Commissioner (OCC)
- oversight and investigation of complaints of matters related to the application of the Oranga Tamariki Act 1989 and/or children in the care or custody of the State, which will be undertaken by the Office of the Ombudsman
- independent monitoring and assurance of the operations and obligations delivered under the Oranga Tamariki Act and associated regulations to be undertaken by an Independent Children’s Monitor.
The Ministry of Social Development was appointed the Independent Children’s Monitor (the Monitor) from 1 July 2019 to establish and operate the monitoring function, with the in-principle intent that it is transferred to the OCC, once a robust monitoring function is established and a new legislative framework is in place.
Approach to Establishing the Independent Children’s Monitor
The independent monitoring and assurance of the operations and obligations delivered under the Oranga Tamariki Act 1989 is phasing in over time:
- Phase one – initial monitoring from 1 July 2019, focused on information received on abuse or neglect in relation to children in care or custody and the response under regulations 69 and 85 of the Oranga Tamariki (National Care Standards and Related Matters) Regulations 2018 (NCS Regulations)3.
- Phase two – expanded monitoring by December 2020 focused on compliance with all aspects of the NCS Regulations
- Phase three – intended longer-term expansion, which would enable broader monitoring of the Oranga Tamariki Act and associated regulations.
The phasing in of the monitoring function was a deliberate decision by Government. Selecting critical regulations enables immediate oversight of an area of concern as well as allowing the Monitor to establish its assessment framework for the full NCS Regulations. It allows time to provide confidence that the new function is robust and delivers what is intended.
Following the direction set by the Government regarding the purpose of the Monitor, that is to reflect a broad spectrum of monitoring from compliance and practice quality through to monitoring outcomes being achieved for tamariki and whānau, the Monitor has mapped relevant child and whānau focused frameworks that already exist. These are:
- the Government’s Child and Youth Wellbeing Strategy,
- Te Puni Kokiri’s Whānau Ora outcomes framework, and
- the Oranga Tamariki outcomes framework and end goals.
The outcomes frameworks above have been widely consulted on previously with the sector, Māori and the general public. To inform the Monitor’s outcomes approach the indicators within each framework have been mapped against the NCS Regulations. This enables the Monitor to focus on identifying whether outcomes are being achieved as well as the required performance measures for accountability. It also enables a focus on outcomes for tamariki Māori, with emphasis on the role of whānau in child wellbeing.
The outcomes work provides the platform for the Monitor’s assessment approach currently under development and drives the questions and considerations the Monitor will use when validating the information provided from agencies.
As the Monitor is in the early stages of developing the assessment approach and finalising the outcome indicators, there is a key focus for early 2020 for it to engage with the sector to inform this approach.
The aim is to test the Monitor’s assessment framework for this work against sections of the NCS Regulations to inform both the June and December 2020 Monitor reports. This will allow the impacted agencies and the Monitor to review the process and make the required amendments to ensure the validity of the monitoring arrangements moving forward. As the Monitor will be monitoring and reporting on all the NCS Regulations from December 2020, it will be important for agencies to have a thorough understanding of the approach, the impact on their day to day operations and the information the Monitor will be seeking.
The Requirement for Oranga Tamariki to Self-Monitor and its Operating Model
At the same time as the review of independent oversight of Oranga Tamariki, in line with the Expert Advisory Panel report and recommendations 4, Oranga Tamariki was developing the amendments to its legislation as well as its practice requirements. This is a large transformation for the organisation with a multi-year change programme.
A key area for change was having standards by which to measure itself against in relation to providing for children and young people in care. The organisation worked to develop the standards which were then put into legislation, resulting in the NCS Regulations which came into effect on 1 July 2019. This is the same date that phase one began for the Monitor.
The Oranga Tamariki Act 1989 and NCS Regulations clearly stipulate requirements that must be met for children and young people in care. The NCS Regulations include the requirement for Oranga Tamariki and those who have the custody and care of children and young people to have defined these standards as well as ensuring they have their own self-monitoring processes in place (regulation 86).
The Oranga Tamariki self-monitoring system must be designed to provide the assurance it needs to report on compliance with the legislation as well as inform continuous improvement, while at the same time collecting information to enable the Monitor to fulfil its role.
Oranga Tamariki and three other agencies currently hold custody and care of children and young people. The three other agencies are Barnardos, Open Home Foundation and Dingwall Trust. They have been required to monitor themselves against all the NCS Regulations from 1 July 2019, including the regulatory requirement to have self-monitoring in place.
The four agencies have reported to the Monitor that work is underway within Oranga Tamariki to set up self-monitoring for itself and NGO contracted agencies. What the Monitor has been advised by those agencies is highlighted in this report. The work parallels the work of the Monitor as it also develops its frameworks and tools required to fulfil its function under the legislation.
Purpose of the Report
The purpose of this initial report is to provide the Minister for Children and the New Zealand public with insight into how the four agencies who have custody of children are performing against regulations 69 and 85 (and to the extent that it applies to those regulations, regulation 86) of the NCS Regulations. Those regulations are:
Regulation 69 – Duties in relation to allegations of abuse and neglect
(1) The chief executive must ensure that any information disclosed passing on concerns in relation to a risk of harm cause by abuse or neglect of a child or young person in care or custody is responded to.
(2) In carrying out the process for responding to the information, the chief executive must ensure that –
a. The response is prompt; and
b. The information is recorded and reported in a consistent manner; and
c. Where appropriate, the child or young person is informed of the outcome; and
d. Appropriate steps are taken with the parties to the allegation, including a review of the caregiver’s plan
Regulation 85 – Provision of information to independent monitor
The chief executive must ensure that information is provided to the independent monitor on –
a) Reports of abuse or neglect that the chief executive has received under regulation 69; and
b) How those reports were responded to
Regulation 86 – Self-monitoring
(1) The chief executive and an approved organisation with a child or young person in care or custody must monitor their own compliance with these regulations (self-monitoring) by—
(a) having systems in place for continuous improvement that identify and address areas of practice that require improvement; and
(b) using a system for self-monitoring designed to ensure the collection of information that will support the independent monitor to fulfil its monitoring role.
(2) The Minister may at any time require the chief executive or any approved organisation with a child or young person in care or custody to report on the matters referred to in subclause (1).
The period covered by this report is the three months from 1 July 2019 to 30 September 2019. This reporting period was chosen to reflect the short period the NCS Regulations have been in effect and to enable the agencies to provide the Monitor with sufficient information to report against.
The purpose of this initial report is to gain a baseline understanding of policies, processes and procedures as well as to assess basic compliance with the NCS Regulations.
Acknowledging there is still significant work to be done primarily by Oranga Tamariki to establish a self-monitoring regime across all of the NCS Regulations, the approach was taken to provide the agencies with the opportunity to demonstrate work completed and underway as well as information that was available and under development to inform its compliance with the NCS regulations.
Each agency was required to provide information to the Monitor against an Initial Assessment Framework (the Framework) (see Appendix A). Specific information about compliance with the regulation was also requested if disclosures of abuse and neglect have been made by children and young people in their custody. Memoranda of Understanding were also signed between each agency and the Monitor to guide information sharing and security requirements, relationship management and engagement with system participants 5.
For this initial report, the Monitor has taken the approach of responding to each of the twelve questions in the Framework. The four agencies have been provided with two opportunities to review the content of the report relevant to them.
5. The MoUs were an agreed approach on how each agency would work with the Monitor over the next eighteen months. Contents included information sharing, privacy, data storage, and principles and responsibilities of all parties, including the recognition of the importance of the monitoring function to the safety and wellbeing of children and young people in the custody of the state. To view the full MoUs please refer to the Monitor’s website.
High Level Summary of Findings
For the three-month reporting period from 1 July 2019 to 30 September 2019, regarding compliance with regulations 69 and 85, the Monitor has made the following high-level findings:
Overall, the information provided answered the twelve Framework questions. Each agency has policies and processes to facilitate compliance with regulations 69 and 85. Provisions are typically found in several different policies. Many pre-date the implementation of the NCS Regulations. All four agencies reviewed their documents and made updates as required to assist with compliance with the NCS Regulations and carried out self-assessments and identified areas to improve or change. All four agencies made enhancements to their internal self-monitoring and quality assurance processes to enable compliance with the NCS Regulations.
In response to regulations 69 and 85, for the three-month reporting period, children and young people in the care of Barnardos and Dingwall Trust did not disclose any incidents of abuse or neglect and therefore testing their compliance with those regulations was not required. Open Home Foundation had three allegations of abuse and neglect for children in care and Oranga Tamariki had 335.
From the information provided and the accountabilities Open Home Foundation is responsible for, its practice is complying with regulations 69 and 85.
Oranga Tamariki is partially compliant with all aspects of the regulations being monitored. Its policies, procedures and practice guidance provide adequate information to support full compliance.
Much of the information provided by Oranga Tamariki covered the reports generated by the Safety of Children in Care Unit (the SoCiC Unit), within Oranga Tamariki, “…this unit is responsible for reviewing and reporting on non-accidental harm caused to children in care. The SoCiC Unit reviews the findings of harm in line with the definitions used throughout their organisation to describe actions or inactions that cause harm and form the basis for a finding of harm for a child.” 6
The information provided by Oranga Tamariki states the responses to allegations were mostly timely at the initial safety screen however the timeframes were not met consistently when completing assessments or investigations into the allegations. There were some data recording errors that required amendment and the child or young person was not always informed of the outcome of the investigation, if appropriate, as per the regulation. As the time period was short, a number of the cases are ongoing and therefore outcomes are unable to be included in this report.
The material supplied by all four agencies has informed the Monitor about their policies, processes and practice, their internal self-monitoring processes as well as their planning for improvement. The information outlined how they had prepared for the commencement of the NCS Regulations from 1 July 2019 and the changes they would need to make to comply with all the regulations. The information also outlined how they will comply with the NCS Regulations as well as ensure enhanced outcomes for children and young people in their custody and care. This information is relevant as it demonstrates the agencies’ commitment to aim to achieve compliance from 1 July 2019. It provides validation from frontline workers about their level of knowledge prior to the NCS Regulations coming into effect. It also supports monitoring of compliance with regulation 86 (which relates to self-monitoring) in so far as it applies to the two regulations being monitored.
The Monitor’s next report, due in June 2020, will provide a more fulsome report given the longer period in which to gather data. It has become clear from the process to date that the Monitor needs to be specific in outlining its requirements in relation to the provision of data and it will take a number of reporting periods for the Monitor to receive the level of quantitative and qualitative data required as well as the need to engage with participants in the system in order to have a full picture of practice against the NCS Regulations.
Future monitoring will include a focus on the findings as reported by the SoCiC Unit and all reports of concern of abuse or neglect the Chief Executive receives under regulation 69 including those cases without findings.
The process has enabled the Monitor’s Framework to be tested as to whether the necessary information has been provided for the Monitor to fulfil its current function. While baseline information has been received, the Framework will require updating to request the specific data required to monitor the NCS Regulations, which includes the ability to carry out case validation through engaging stakeholders and triangulating different sources of information.
As the monitoring requirements only came into place from 1 July 2019 there is little evidence around assurance of compliance or any trends that demonstrate practice improvements that may link to improved outcomes for children in care.
The process has allowed the four agencies and the Monitor to understand current practice and to determine what may be required to achieve full compliance with all of the NCS Regulations, not just regulations 69, 85 and 86. Relationships between the Monitor and the agencies have been established and a review of each Memorandum of Understanding will take place with a particular focus on the revision of the Framework.
The next report will include at least six months, with the possibility of nine months, of data from each agency and will provide more of a deep dive into actual decision making at each point of the process when determining appropriate steps are taken with the parties to the allegation, including a review of the caregiver’s plan. The Monitor will be looking for evidence of outcomes for children and young people as well as further practice enhancements implemented due to the reporting by the SoCiC Unit. There is also an expectation of performance improvement to comply with the NCS Regulations.
Continuous Improvement Observations
Specific Focus on Māori by Monitored Agencies
In relation to a specific focus on tamariki and rangatahi Māori, Oranga Tamariki has made the majority of changes to enhance its practice in this area. The other three agencies stated they take the same approach to respond to allegations for any ethnicity. They stated that they respond to each child based on their individual needs, including cultural needs as part of their regular practice.
This is an area for the three non-government agencies to consider in relation to all the care standards and their obligations under the Oranga Tamariki Act 1989 in general.
Self-Monitoring by Monitored Agencies
Self-monitoring is a requirement under regulation 86 and from the information provided, each agency has reviewed its processes and is updating them. This was informed by the self-assessment and action plan process coordinated by Oranga Tamariki for each of its sites as well as for all approved organisations.
As required by the NCS Regulations Oranga Tamariki must define what each regulation means in practice to ensure compliance. It has yet to complete this process however it has provided the Monitor with its workplan to have this completed. This work will clarify the legislation and determine relevant performance measures as well as providing guidance to frontline staff, NGO agencies (and the Monitor) on what the expectations of Oranga Tamariki are in relation to compliance with the standards as well as providing quality practice. Oranga Tamariki outlined to the Monitor several new assurance processes in place including a site practice check and a new quality practice tool.
Each agency stated what they have learnt as part of their self-assessment process, for example where there have been gaps in their written documents or general gaps in practice or assurance.
Definitions Required to be Set by Oranga Tamariki
The Oranga Tamariki Act 1989 and NCS Regulations place an obligation primarily on the Chief Executive of Oranga Tamariki to define the regulations around standards of care, which includes the way the care standards are measured, monitored and reported on within Oranga Tamariki, as well as approved agencies and the Monitor.
The Oranga Tamariki self-monitoring system must be designed to provide the agency with the assurance it needs to report on its compliance with legislation as well as inform continuous improvement, while at the same time collecting information to enable the Monitor to fulfil its role.
This work is underway and as part of the information provided by Oranga Tamariki to inform this report a copy of its “Practice Requirements, Monitoring Approach and Measures and Reporting Mechanisms” (the Practice Requirements material) for regulations 69 and 85, was provided to the Monitor (see Appendix B). There are several documents contained in this material.
The Practice Requirements material provides clear guidance and explanation as to what is required to comply with these two NCS Regulations as well as what Oranga Tamariki has determined best practice looks like. Each section of regulation 69 has been defined, the policy/standard/practice requirements and monitoring/assurance mechanism spelt out. The Practice Requirements material has also been distributed to the other agencies who have children and young people in their custody to provide for consistency of application.
While the Practice Requirements material is comprehensive the Monitor has found two areas that will strengthen it to support continuous improvement:
1. The Steps to Follow document (included in the Oranga Tamariki “Practice Requirements, Monitoring Approach and Measures and Reporting Mechanisms”) provides clear guidance to staff on how to respond to a disclosure, with a focus on updating the assessment and plan if any new needs are identified. This document could be strengthened by broadening the definition “of responded to” as stated in regulation 69 (1) and/or the definition of outcome in regulation 69 (2) (c).
The outcome and response are focused on responding to the initial report of concern, immediate safety and the outcome of the investigation, that is whether the allegation was substantiated or not. There is no mention of what subsequently happened to and for the child or young person. Adding this into reporting is consistent with taking an outcome focussed approach.
For example – an outcome for the child or young person could be extra visits by the social worker, counselling, any type of expert assessments, cultural or spiritual support. This may also include whether they were moved permanently from the placement if the abuse was perpetrated by the caregiver or someone in that home or whether a restorative process took place between them.
The definition of outcome could be broadened to include the outcome for the caregivers or parents or family members who were not the perpetrators of the abuse or neglect and whether any support or services were required and provided for them. This information may be in practice guidance or policy however it is not evident in the definition document which staff and agencies are using to assess against.
2. The SoCiC Unit within Oranga Tamariki has been reviewing cases where abuse of children and young people in care have a finding, that is at the end of a safety screen or an assessment or investigation post the report of the allegation.
Oranga Tamariki receive reports of concern regarding abuse and neglect of children and young people in care at its National Contact Centre (NCC), (and occasionally at a site level). Decisions are made at the NCC as to whether the report of concern requires a referral to a site for further assessment. A number of reports of concern may be closed at the NCC or at the site without further assessment. These cases are not looked at by the SoCiC Unit as the Unit looks at reports where there has been a finding. Information, therefore, from cases closed without a finding, on compliance with the regulations is not currently available. For example, the Monitor is unable to ascertain whether a child or young person is advised of the outcome of this report of concern as it is not currently reviewed through a self-monitoring process.
Oranga Tamariki has defined in its practice policies what must be reported as reports of concern to Oranga Tamariki and be counted as cases of abuse or neglect of children and young people in care. The definitions of what is abuse and neglect are the same as for any tamariki or rangatahi and is clearly defined in the Oranga Tamariki Practice Centre.
While the definition of the regulation was shared with agency partners, there appeared to be a lack of clarity as to what situations may be defined as abuse and or neglect of a tamariki or rangatahi in care and therefore require a report of concern to Oranga Tamariki. Clarifying this for partner agencies would be useful, so they also have a clear understanding of what is required, for the wellbeing of children in care, and for consistency purposes. For example, is a teenager who gets into a fight with a friend of a similar age while out, receiving physical injuries, a report of concern. The Monitor is aware that conversations to clarify this information are now underway between the agencies.
Future Focus of Monitoring
Areas of focus for the Monitor’s June and December 2020 reports are:
- Once the NCS Regulations have agreed definitions, the Monitor will ask for each agency’s self-assessments against the definitions.
- The work on the updated policies and tools by Oranga Tamariki was to be completed by October 2019 and will be provided to the Monitor in time for the June 2020 repor
- Oranga Tamariki to clarify what constitutes a report of concern of abuse or neglect of a child in care.
- Results from the repeated self-assessment being completed by Oranga Tamariki in Jan-March 2020 will be required and included in the Monitor’s June 2020 report.
- Quality Practice Tool and site Practice Checks reporting will be required from Oranga Tamariki and will be included in the Monitor’s June 2020 report.
- The Monitor will be seeking information on those reports of concern that are entered on the case management system, that are genuine reports of alleged abuse and do not have a finding.
- Case validation and analysis of raw data will be required to further understand compliance with the NCS Regulations for the next report.
- With specific regard to tamariki Māori, one area that was not strong for any agency was information on supports that could be offered when an allegation is made, such as cultural supports. This is something the Monitor did not requests or focus on and is likely to be included in the next information request.
- Evidence of assurance processes in practice will be required for the Monitor’s June 2020 report.
- Evidence of improvement processes and progress will be required for the Monitor’s June 2020 report.
- With an initial baseline now established through this report, the Monitor will be reviewing its initial assessment framework with a view to seeking more targeted responses that will enable it to wholly fulfil its monitoring function.
- The Monitor will expect to see analysis and targeted or national interventions from Oranga Tamariki that respond to the trend information from the reporting from the SoCiC Unit.
- The Monitor will expect to see analysis and targeted or national interventions from Oranga Tamariki that respond to the trend information from the reporting from the SoCiC Unit.
6. Safety of Children in Care Quarter Three January – March 2019, Oranga Tamariki.