Death of 11-week-old baby leaves government department open to being sued for compensation

In November 2018, a distressing incident in regional South Australia exposed the dark reality of child neglect and systemic failures in child protection services. Government departments and other organisations and institutions have a duty to protect children under their care from harm. Where they fail to do so, and a child is exposed to abuse (physical, sexual, psychological), there are potentially options to pursue a personal injury claim against individuals and/or the relevant departments/organisations for compensation due to the harm suffered.

In this tragic event, an 11-week-old baby was found dead on a fold-out couch in a home filled with rubbish, surrounded by squalid conditions. We explore the circumstances surrounding this horrific event, the findings of the coronial inquest, and the legal implications for child protection services in Australia.

The coronial inquest into the death of an 11-week-old baby

South Australian Coroner David Whittle conducted a 13-day inquest into the death of an 11-week-old baby in 2022, four years after the incident. The inquest revealed shocking details about the living conditions and circumstances leading to the infant's death:

• The baby was found dead on a fold-out couch, where he had been sleeping with four other people.
• Video footage presented at the inquest showed the house covered in rubbish, cat faeces, and soiled nappies.
• There was no food in the kitchen, and baby bottles were found to be mouldy.
• The baby's cot was full of the family's possessions, rendering it unusable.

Most alarmingly, the inquest heard that the family had been the subject of 23 notifications to the South Australian Department for Child Protection (DCP) between 2015 and the baby's death in 2018.

Systemic failures and missed opportunities by government department associated with abuse of the baby

Coroner Whittle's findings highlighted significant failures within the child protection system:

1. Failure to respond to early warnings: The first notification regarding the baby was made six months before his birth. This was a crucial missed opportunity for the DCP to intervene and improve the mother's preparedness for the child's arrival.
2. Resource constraints: Multiple notifications were closed (on internal DCP systems) due to staffing shortages in the regional DCP office, leaving vulnerable children at risk.
3. Lack of intervention: If the DCP had responded to a November 2018 notification shortly before his death), the baby would likely have been removed from the home and not sleeping in unsafe conditions on the couch.
4. Unaddressed parenting concerns: The baby's mother, who was a teenager at the time, had consistently demonstrated struggles with parenting responsibilities. These concerns were frequently brought to the DCP's attention but not adequately addressed.

Coroner's findings on cause of death

Coroner Whittle stated that the cause of death was "not straightforward". He found the cause to be "unascertained” but noted that the death occurred "in an unsafe sleeping environment, on a background of respiratory tract infection". This highlights the complex interplay of factors contributing to the tragic outcome.

Coroner's recommendations aim for significant improvement in DCP management of child abuse and neglect cases

In light of these findings, Coroner Whittle made several recommendations:

1. Within the next 18 months, the DCP should no longer close notifications due to a lack of resources.
2. Any closed cases must be approved by the DCP's chief executive in writing.
3. Changes to the Children and Young People (Safety) Act 2017 (SA) to mandate that if a parent is convicted of failing to provide for a child, DCP must apply to the Youth Court seeking a parenting capacity assessment if they still have other children in their care.

South Australian Child Protection Minister Katrine Hildyard acknowledged the "harrowing" nature of the findings and committed to examining the coroner’s recommendations closely.

The Minister noted that significant changes have been made since 2018, with the percentage of notifications closed without action reducing from 55% to 18%. However, as the Minister stated, "There is absolutely more to do, and we will not shy away from the challenges ahead."

Legal implications for government departments responsible for child welfare and safety

The circumstances surrounding this case highlight the potential for legal action against child protection departments. In child abuse matters, departments can be sued on the basis that they failed to intervene to provide protection to children who are abused, allowing the abuse to continue where they should have intervened.

The legal argument in such cases is had in relation to the:

• information that the department had, on several occasions, at the time of the abuse occurring, which left it totally unreasonable to not intervene; and
• the finding that had the department intervened, the abuse would not have occurred or would have been far less severe.

In this case, the multiple notifications to the DCP, the department's failure to respond adequately, and the coroner's finding that intervention could have prevented the baby's death could lead to possible grounds for legal action.

Get help from an abuse compensation lawyer

Our Abuse Law team recognises that discussing circumstances of abuse can be challenging for those affected. However, we believe it is crucial for those who are abuse victims and for those supporting those who are abuse victims to be aware of their legal rights and entitlements.

At Hall Payne, we adopt a trauma-informed approach to guide you through this difficult journey. We listen attentively to your story, help you understand your options, and collaborate with your support network, including family, health professionals, and counsellors, to ensure you are supported throughout the process.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au

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