Legal Issues for SchoolsSASSPA Conference

21 August 2015

Lyn Watson, Senior Legal Officer, Legal Services Unit

Family Law Issues

Some common issues

• Enrolment

• Name of Student

• Provision of Information and Documents

• Parent Participation in School Activities

• Collection of Students

• Inclosed Lands Protection Act

• Apprehended Violence Orders

Family Law and The School

Reference:

• Guidelines – Dealing with Family Law Related Issues in Schools and TAFE NSW

https://detwww.det.nsw.edu.au/media/downloads/directoratesaz/legalservices/ls/familylawguide/familylawguidelines.pdf

• Websitehttp://detwww.det.nsw.edu.au/directorates/leglserv/

Family Law and the School

Family law basics

• Parental Responsibility = responsibility for the long term issues concerning the child

• Day-to Day Care = responsibility for the care of the child whilst it is in that parent’s care

• Parents obtain parental responsibility for their child upon the birth of that child and retain parental responsibility until the child turns 18

• Court orders may restrict one or both parents’ responsibility for their children

• Court orders may grant parental responsibility to others

Family Law and the School

Family Law and the School

Family law basics• The Family Court makes orders binding the parties

(parents), not the School• DE Policy is that we assist parents to comply with the

Family Court orders• In the absence of orders to the contrary, grandparents,

aunties and uncles, step-parents, etc are only agents for those with parental responsibility

• Any decision made by the Principal must be made in the ‘best interests of the child’

Reference:• Policy - Enrolment of Students in NSW Government Schools: A

Summary and Consolidation of Policyhttps://detwww.det.nsw.edu.au/policies/student_admin/enrolment/enrolpol/PD20020006_i.shtml?level=Schools&categories=Schools%7cstudent+administration%7cenrolment • Legal Issues Bulletin 43 – Enrolment of Students in Government

Schools

To Enrol or Not to Enrol – That is the Question

Family Law and the School

• 8.1: Enrolment in a school is regarded as a “long term issue” In the absence of Court Orders, any decision about enrolment must be made jointly by both parents.

• 8.2: If parents are in dispute over which school to enrol a child – in absence of orders, a child is to be enrolled in the School chosen by the parent with whom the child lives.

• In the absence of any court orders, both parents have equal right to enrol their child in a school of their choosing.

• When a dispute exists between parents – schools should consider utilising the ‘short term’ enrolment policy

• Decisions by Principal when parents are in dispute is based on the “best interests of the child”.

ANSWER:

• Rule of Thumb; Always take the child.

To Enrol or Not to Enrol… That is the Question

Verifying age and name in the absence of a birth

certificate

• No legal requirement for Schools to demand a birth certificates for this purpose

• Alternative documents which can be used;– Passport– Health Department ‘Blue Book’– Hospital birth card or similar records– When all else fails (to be produced); a Statutory Declaration

To Enrol or Not to Enrol… That is the Question

Name used for enrolment and name changing

• The name by which a child is known is regarded as a major long term issue to be determined, in the absence of a Court Order, by both parents.

• It is not unusual for students to use nicknames and it is not unlawful to refer to the student by an alternate first name (but only where the student agrees to the use and it is not offensive).

“What’s in a Name?”

When can a change of name occur?

Enrolment can occur in alternate names or changes made to existing records ONLY if one of the following apply:

– A signed consent from both parents– A court order authorising use of new name– A statutory declaration is provided by one parent

indicating that the child has had no recent contact (considered 5 years or more) with the other parent and the other parent’s whereabouts are unknown

“What’s in a Name?”

• A signed consent from one parent and proof the other parent is dead

• Birth certificate issued in a new name• Proof of adoption• DOCS or some other agency responsible for the child

advises in writing that the use of a new name is appropriate, or

• Evidence is provided that the child is part of a witness protection scheme and a new name is necessary.

• See 9.5 “Dealing with Family Law Related Issues in Schools and TAFE NSW” or Legal Issues Bulletin #20

“What’s in a Name?”

Parents confirming where a child is enrolled• A school should provide confirmation that his or her child

is enrolled in a particular school unless;– the school is aware that there is a court order that denies a

parent any parental responsibility for the child, or– There are serious safety concerns for the child.

• No home address or contact details for the child or other parent should be given.

• No information should be given over the phone without first confirming identity and relationship to the child

“Does My Child Attend this School?”

Non-residential parents requesting documents

• In the absence of court orders, parents have equal rights to educational information about their child.

• School reports should be provided to the residential parent and (in the absence of a court order) the non-residential parent at his/her request.

“I Want What She/He Has”

Non-residential parents requesting documents

• If a Court vests parental responsibility for the long term care of the child to one parent, the other parent cannot have access to information regarding that child from the School.

• Unless a Court order is in place, non-residential parents are entitled to have access to their children’s teachers to discuss the children’s long term educational needs.

• Always Consider Privacy: Dealings with one parent should not be discussed with the other parent

“I Want What She/He Has”

When split families disagree

• Unless a court order is in place preventing involvement, parents may attend school-organised activities.

• If one parent objects to the other’s presence at a school activity, steps should be taken to make a reasonable attempt at compromise.

Parent Participation

• If parents can’t act peaceably and appropriately at the school function one or both may be asked to leave the school premises.

Parent Participation

Before and After School

• Parents are (both) responsible for advising the School of agreed parenting arrangements or orders

• The School will assist parents to abide by those arrangements or orders

• If those arrangements or orders are varied, the School should ascertain that both parents agree

• No one should be permitted to remove students during the school day without a genuine reason

• The custodial parent (of that afternoon) may nominate whomever they like to collect the child from school

Inclosed Lands Protection Act 1901

Reference:

Legal Issues Bulletin 54 – Unauthorised Entry Onto Departmental Premises

https://detwww.det.nsw.edu.au/media/downloads/directoratesaz/legalservices/ls/legalissuesbul/bulletin54.pdf

Inclosed Lands Act

What can I do if a parent is abusive?

• Consideration can be given to invoking the Inclosed Lands Protection Act 1901. See LIB no 54.– Warning letter to be issued– Direction notice effecting the ban if behaviour persists

• Contact the Safety and Security Directorate/Legal Services for advice

• If parent is violent, contact the police.

Inclosed Lands Act

When should powers under the Act not be used?

• When people merely complain about the staff or decisions at the School;

• When people persistently write letters or ask the School for information

• If parent is violent, contact the police.

Inclosed Lands Act

Apprehended Violence Orders (AVOs)

Reference:

Legal Issues Bulletin 44 – Apprehended Violence Ordershttps://detwww.det.nsw.edu.au/media/downloads/directoratesaz/legalservices/ls/legalissuesbul/bulletin44.pdf

AVO’s

• Apprehended personal violence orders can be obtained in situations where a person fears for their safety and “reasonable grounds” exist to justify those fears.

• Orders are granted on terms which should be noted;– Standard Orders; “shall not, assault, molest, harass etc”

– “… protected persons and persons having a domestic relationship with the protected persons”

– Other Orders; “shall not approach the protected person or places where they live or work or other specified premises”

• Interim orders will be made prior to a court hearing• Final orders usually last for 12 months

“You Can’t Be Within 100 metres …”

“He’s breaching my order – do something!”

• Schools do not administer AVOs. If members of the school community have AVOs against each other, it needs to be remembered that the AVO’s are their responsibility, not the school’s

• If students have AVOs issued against other students, the School should assist the defendant to avoid possible breaches

Confidentiality

• “The Department collects and stores a lot of confidential information. Unauthorised disclosures may cause people harm, or give an individual or agency an improper advantage”; Section 17, Department’s Code of Conduct.

Department Code of Conduct

• “As a Department employee, you should only use official information for the work-related purpose it was intended”.

• “You should always exercise sound judgment in discussing other people’s personal information with other departmental employees”.

Privacy

• Privacy and Personal Information Protection Act 1998 (PPIPA),

• Health Records and Information Privacy Act 2002 (HRIPA),

• DE Privacy Code of Practice

30

Privacy Acts

• Require the Department to meet certain requirements when dealing with personal and health information in relation to; collection, access, alteration, storage, use and disclosure.

• PPIPA imposes 12 Information Protection Principles (IPPs) on Government agencies; ss.8-19 PPIPA.

Privacy Code of Practice

• https://detwww.det.nsw.edu.au/lists/directoratesaz/legalservices/ls/privacy/codeofpractice/index.htm

• Modifies the IPPs as they apply to certain functions of the Department including;– Investigative functions,– Parents/Caregivers– Counsellor records,– Child protection,– Safe and disciplined learning environment,– Legal purposes, and– The Board of Studies

Privacy Obligations

• The Privacy Acts, IPPs and Code of Practice all obligate the Department and it’s employees to; keep securely, ensure accuracy and use appropriately, the personal and health information that it receives or collects.

• PPIPA and the Code confer and modify individual privacy rights on students, independent of their parents.

Privacy and Students

• PPIPA is based on the clear principle that individuals, including children and young persons, have rights relating to their personal information.

• Schools must take into account the student’s age, maturity and capacity for independent action when considering modifying those rights (ie; “best interests” of the student).

• Any decision made to limit those rights may be reviewed by the Director.

Access & Amendment of Records

• IPPs 7 & 8 (ss.14 & 15) provide that an agency which holds personal information must provide access for the persons to whom it relates upon request , and

• The agency must make amendments to the information to ensure it is accurate, relevant, up-to-date, complete and not misleading.

Requests for Access To Information

• Government Information (Public Access) Act 2009• A person who makes an application has a legally

enforceable right to be provided with the information; s.9(1)

• There is a presumption of disclosure unless there is an overriding public interest against disclosure; s.5

• Any document created by departmental personnel in the course of their employment is deemed to be held by the agency.

Types of Requests

• Requests may be made in person, by phone or in writing, including email

• Requests may be dealt with as;– Routine– Informal– Formal

• Identify information, determine whether suitable to release, whole or in part, deal with request under appropriate guidelines

Information Access Unit• Deal with formal requests. Formal requests are made in

writing (form) and involve paying a fee • Determine exemptions to be applied to documents• Act provides 20 working days to process request• If you receive a request from the IA Unit you should

provide the information as soon as possible: Scans, or clean, clear copies, single sided and no staples.

• For further information see “Information Access” on DE Internet page, Intranet page, or contact:

Information Access Unit,

Level 7/35 Bridge St, Sydney NSW 2001

Tel: (02) 9561 8100 Email: iaunit@det.nsw.edu.au

School Photographs

• Provided parents have signed a consent form, the school may photograph students and display the images around the school.

• The images may also be published if they do not identify the individual students or others.

• Similarly, parents may also take photos of their children (and others) at school or during school functions.

School Publications and Privacy

• Newsletters, Website, Annual Reports or Magazines, Promotional material

• Never publish personal information; addresses, phone numbers, emails, dates of birth, etc.

• If material identifies, or could identify, the person, always get permission and preferably in writing.

• If material is “owned” by another person or entity, always get permission, preferably in writing.

School Publications and Privacy

• Reference Material;– Privacy Bulletin 7; School Photographs and Videos

and Other Media,– Privacy Bulletin 9; School Websites – Issues

Regarding Publication of Material …,– Sample Permission Letter;

https://detwww.det.nsw.edu.au/media/downloads/schoolwebsites/content/privacy/authority-to-publish.doc

School Records

• Section 24(1) Education Act 1990 provides that “The principal … must keep a register, in a form approved by the Minister, of the enrolments and daily attendances of all children at the school”.

• Enrolment Policy requires as a minimum, the student’s; name, address, date of birth, gender, nationality, parent or carer’s details, enrolment date and leaving date.

Administering Prescribed Medications

• Legal Issues Bulletin 46• Students who require the administration of prescribed

medication or the provision of a health care procedure should not be: – refused enrolment, or – denied the opportunity to continue with their education once

enrolled (unless they would be treated the same way if they did not require the medication or procedure).

• Medication and health care procedures should be administered in accordance with parents’ instructions and consistent with medical advice

• If parents’ instructions are inconsistent with medical advice, the medical advice is to be followed.

Administering Prescribed Medications

• Any school staff member must, if necessary, reasonably assist in an emergency (Work Health and Safety Act 2011)

• Staff who could be called upon to administer medication or health care procedures in an emergency must be appropriately trained by a suitably qualified person

• Routine (non-emergency) administration of prescribed medication and health care procedures by staff is performed on a voluntary basis.

• Staff acting in the course of their employment have full legal protection available in relation to any personal liability claims. The Department is liable for the actions of its employees, unless the employee commits an act of serious and wilful misconduct.

Things you might find useful on the Legal Service website

• Certificate of Currency

• Community Use Information

• Guidelines

• Legal Issues Bulletins

• FAQs

QUESTIONS

Contact

Legal Services Unit

Department of EducationLevels 5, 35 Bridge StreetSYDNEY NSW 2000

Ph: (02) 9561 8538 Facsimile: (02) 9561 8543Email: legal@det.nsw.edu.au

Website:http://detwww.det.nsw.edu.au/directorates/leglserv/