The is no required "OSCAR qualification" for staff employed in OSCAR services, however basic training requirements do apply through legislation and the Social Sector Accreditation Standards. There is a legal requirement under health and safety legislation to adequately train staff in: - the safety procedures of your organisation - safe use of equipment and facilities - hazards in your workplace - what to do in emergencies - how to manage any activities or situations that pose an element of risk. On-going supervision and monitoring of all staff is also a legal duty. Employers should ensure that a staff member is competent to carry out their duties safely, OR they should be supervised by a suitably competent person. The Social Sector Accreditation Standards, which most OSCAR services operate under, require that "the organisation provides adequate induction, training, professional development, and support for all staff.” The only required qualification under the standards is current first-aid certification – usually at least one staff member on-site at all times. When an Assessor from the Accreditation team reviews an OSCAR service they will look for “evidence that staff are adequately trained, according to the services delivered”. As well as first aid, the standards specifically mention these elements: - staff induction training on the organisation’s process for abuse prevention and reporting - staff training on the recognition of and responses to the signs of abuse - that the “paramountcy” principle is reflected throughout service provision, including staff induction and trainingstaff training and professional development plans that relate to - the performance appraisal or performance management process - a health and safety component in the staff induction programme, with sign-off by a staff member when it is completed With all this in mind we recommend that OSCAR services keep accurate records of all external training undertaken by staff and how they train staff in policies and procedures, including induction and ongoing training in how staff will work with the children and contribute to a safe environment. As a matter of priority we would recommend the following training for staff: - active supervision and risk management – responding effectively to changing circumstances in the programme and ensuring good supervision coverage is constantly maintained - group management and behaviour guidance techniques that are non-punitive and focus on promoting positive behaviour - how children with special needs will be accommodated by the service, considering diet, medication, equipment, modified activities, or modifications to the programme and environment - recognising and responding to suspected child abuse and current best practice in safeguarding their programme What are the options for training? Programmes take a variety of approaches to meet these training requirements. This includes doing their own in-house training, either run by people within their organisation or with external trainers. This do-it-yourself approach is quite common in the sector and a suitable option where you have casual and short term staff who need to learn how your programme operates and to get familiar with essential procedures for supervision of children, behaviour guidance and keeping safe. Accessing external training opportunities can be more of a challenge. Timing, location and cost can all pose potential barriers for people wishing to develop OSCAR skills and knowledge. What is available locally will vary from region to region. Some areas have regular provision of training opportunities that are designed for OSCAR staff. It may also pay to look at courses offered for other sectors such as teaching, youth work, sport and recreation.

In most cases of personal injury caused by accident, the Accident Compensation Corporation (ACC) will provide coverage. This means that when a child is injured, ACC is likely to cover the costs of treatment and rehabilitation. In addition, where ACC provides coverage, legislation prohibits any legal action for damages, except in rare cases where exemplary damages may be sought. Please note: this information has been provided in good faith to highlight some of the legal issues when a child is injured at your programme. We hope this information will be a useful guideline but OSCN is not qualified to provide legal advice. We strongly recommend that expert legal assistance be obtained to properly manage the risk of legal liability for your organisation. ACC coverage and liability Under the ACC legislation (currently the Accident Compensation Act 2001), insurance coverage is provided for “personal injury by accident”. There are exceptions to what the Act will cover (e.g. there is no coverage for mental injury that is not a consequence of a physical injury) but it would be safe to say that most typical childhood injuries, especially those associated with physical activity, are likely to be covered by ACC. http://www.acc.co.nz http://communitylaw.org.nz/community-law-manual/chapter-19-accident-compensation/injuries-and-conditions-covered-by-acc-chapter-19/ ACC legislation also prohibits legal actions that seek compensatory damages – for example on the grounds that the injury was caused by staff negligence at the programme where the injury occurred. In other words, where ACC coverage applies, a law suit aimed at further compensation cannot proceed. “No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of …personal injury covered by this Act.” Source: Accident Compensation Act 2001 There are situations where this limitation may not apply – in cases where exemplary damages are sought. The purpose of exemplary damages is to go further than compensating for all the costs of injury. Exemplary damages (also called punitive damages) aim to punish a defendant who is guilty of a very high (“outrageous”) degree of misconduct (involving recklessness, purposefully ignoring expected practices and/or blatant wrongdoing.) Waivers Programmes often seek to further limit potential liability through the use of waivers (sometimes called “disclaimer clauses”.) This is discussed at a separate FAQ. Statutory liability While ACC legislation limits civil litigation under common law, a programme or its staff could be prosecuted by Worksafe (under Health and Safety legislation) or by the Police (e.g. a charge of criminal nuisance or criminal negligence – see links below.) Potential liability would depend on the circumstances of the injury and generally a prosecution would only proceed if there was seen to be a high level of misconduct or a serious error of judgement. How the law differentiates between actions which are genuine errors, the result of carelessness or caused by a more blatant disregard for proper practice is a fairly complex issue. (Refer to links below.) Potential legal liability for children’s injuries - summing up The threshold for successful litigation in New Zealand is high. ACC legislation limits civil actions to those injuries it does not cover. In Police or Worksafe cases, proving negligence (an omission or mistake) is usually not sufficient to establish liability. Criminal negligence charges require there to be reckless and/or highly irresponsible behaviour. For this reason, the specific circumstances where charges have been made are worth considering (see links below.) but these are generally uncommon, exceptional cases. Professional / sector standards will be taken into account. The MSD Standards for OSCAR services provide a widely accepted benchmark for the sector, which is likely to be a key consideration in determining what actions or procedures would be appropriate in a given situation. In addition, the “reasonable person test” asks what a reasonable person in this situation should have done or should have known. Someone in the role of an OSCAR staff member, would be expected to meet the professional requirements of that role (often detailed on a Staff Code of Conduct.) It is also important that staff members are aware of the limitations of their knowledge, capabilities and experience. It is reasonable to expect that staff take responsibility to seek help or notify their colleagues as necessary. Where staff require support, training or supervision, there is usually a clear legal obligation for that to be provided. Employers are likely to be held liable for the actions of their employees. Simply requiring an employee to sign off on a policy & procedure manual does not devolve all responsibility to that employee. The programme owner / employer has clear obligations under health and safety law that cannot be avoided. We do not have a duty of care to protect children from all possible harm. Just because children’s play introduces the possibility of children behaving recklessly and possibly harmfully, this does not mean that letting children play is, in itself, negligent. However appropriate supervision and monitoring is expected. (Refer to this link below.) Reducing the risk of legal liability -Support your staff on the job: actively check that safety procedures are being followed and provide direction and coaching as required. Don’t just leave it at: “staff have been told, so they should be doing it.” -Carry out regular spot checks. Follow a planned induction process for new staff and keep a record of this process. -Identify skill gaps - allocate roles and provide training accordingly. -Ensure that that any activity requiring specialist skills/knowledge is supervised by a person with those skills/knowledge -Take note of and follow sector standards and any guidance issued by professional bodies -Share information with your peers - establish an understanding of "best practice" and keep up to date. Inform parents of essential policies relating to your duty of care and programme supervision. -Keep parents well-informed about programme activities. -Take note of specific circumstances where negligence/recklessness has been highlighted. These include: staff failing to heed warnings; not undertaking required checks; proceeding when an activity should have been stopped; operating beyond the level of staff ability/experience; inadequate consideration of the special needs of participants. Negligence cases often hinge on questions of judgement. Any concerns voiced by management/staff need to be given full and proper consideration – especially those voice by those with relevant expertise/experience. Risk assessment is expected Where activities involve higher risk, including perhaps an off-site location, it is widely recognised by legal authorities that a written risk assessment should be undertaken. It’s also a requirement under the MSD Standards for OSCAR. Staff need to be well-informed about the risk assessment and should follow its recommended strategies unless there is a strong reason not to. There should also be consideration of how participant behaviour will be managed if it falls outside the safety parameters set out in the risk assessment. For higher risk activities, the planning requirements are more complex and time-consuming. This will usually requiring the co-ordination of different groups, including perhaps outside agencies. It can be challenging to ensure all the planning and tasks required get done properly but this doesn’t lessen the obligation to either properly risk assess or opt for a less demanding activity. You also need be ready to “weather some storms” (through emergency/contingency plans.) Acting promptly and with certainty is a critical factor in managing the risk of serious harm. This takes preparation, good communication and practice, involving your entire staff team. We recommend careful consideration of expert guidance, such as the Health and Safety guidelines on our resources pages. Legal liability: further topics Duty of Care Negligence Criminal nuisance – relevant cases Employer liability for staff conduct Australian case law on playground injuries Worksafe investigations and prosecutions Insurance coverage Negligence Negligence is a common law tort. ‘Tort’ is a legal term meaning "a civil wrong". In the case of a tort, a judge has the power to award monetary compensation (“damages”) to the person who has suffered the wrong. Wikipedia definition: Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up something") is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm. To prove negligence the following must apply: There was a duty of care There was an incident, action or inaction that caused a breach of the duty of care There was a harm or loss as a result of the breach. The incident, action or inaction was reasonably foreseeable or preventable It is important to note that what is reasonably foreseeable and preventable will vary depending on the situation. When a person is engaging professional services they will expect reasonably foreseeable and preventable to reflect the standards and requirements of that profession i.e. should this incident have been reasonably foreseeable and preventable for an OSCAR service and/or their staff members (This test makes no reference to the particular knowledge or actual intent of those being held liable.) For example, where an OSCAR programme takes a group boating, the court may determine that a reasonable staff member would have ensured that the participants were each supplied with a life-jacket, and took reasonable steps to ensure the life-jackets were worn correctly. If the staff member failed to ensure adequate safety equipment was worn, they may be found to have fallen short of the reasonable person test, and breached their duty of care. In other words, if the activity requires some specialist skill or knowledge, the person will be measured by the reasonable person possessing those skills or knowledge. Also note that the test is based on a standard of reasonableness - not such a high level of care that guards against all harm. Parts of this adapted from: From Liability to Student Safety in Education Outside the Classroom” Cathye Haddock and Matthew Sword Ministry of Education, New Zealand All of this highlights how important it is for OSCAR services to have clear procedures, especially where there is higher risk (e.g. on outings, or when picking up and transporting children after school) and ensuring that all parent are well-informed of these. Proper risk management processes help to clarify: what standard of care a parent can expect what are the responsibilities of all parties involved (especially where parents need to inform the programme of any changes or other important information such as allergies) that the parent can ask questions and ultimately make a well-informed decision about their child's participation (or not) in a particular activity, or in the programme as a whole. Read more: Worksafe definition of "reasonably practicable" back to list Criminal nuisance relevant cases Criminal nuisance is defined in Section 145 of the Crimes Act 1960: “Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.” Le Race Cyclist Fatality (2001) A cyclist died after colliding with a car during a section of a bike race where the cyclist believed the road was closed to traffic, when in fact it wasn't. The police prosecuted the race organiser, who was initially found guilty by jury of the charge of criminal nuisance. The crux of the case was that the pre-race information was ambiguous about whether the road where the accident occurred was actually closed to traffic. In initially finding the defendant guilty, the court agreed that key safety measures were not carried out and safety experts at the event did not have the opportunity to check information that pertained to this stage of the race, prior to the race. The decision was overturned on appeal because it was found that the Judge had misdirected the jury on a key issue. For the law under which the race organiser was charged, she would have to be found to have acted recklessly. But the judge had only "invited the jury to convict if satisfied the appellant was negligent", which is a lesser degree of culpability. Because the prosecution could not prove that the race organiser "had actual knowledge that she had given the participants unclear and ambiguous information", the conviction was overturned.(Source: NZ Herald 23.09.2004) Le Race - wider impact The main point of controversy at the time was that the race organiser had a mostly very sound health and safety system. But based on the facts of the case, the system seemed to have failed in a few key areas which were enough to see the organiser facing a criminal charge. Many in the voluntary and sporting sector found this a harsh consequence. There was also some commentary that raised concerns that prosecutions in NZ for criminal nuisance were being carried out in response to ordinary human error, rather than gross negligence. A key issue raised during the case was the lack of clear industry guidelines for this kind of event. (In previous prosecutions of a similar nature, there had been a clear breach of relevant industry safety requirements.) As a result, more information did become available about appropriate procedures to follow in this situation. When the conviction was eventually overturned (3 years after the accident) the distinction was reinforced, between an error/oversight (which better guidelines would have helped prevent) and actual recklessness (as it applies in a criminal prosecution). Relevance to OSCAR – communication of safety information Compared to OSCAR, there are some key differences in this situation: OSCAR does have clear standards and a different relationship with the participants being children in a care situation, not adults. But the issues raised in the case around safety briefings have some relevance to OSCAR operations (particularly as regards preparing for holiday programme excursions). Source: http://www.sportslaw-uk.co.uk/ISLR%20issue%204.pdf “The safety instructions are the single most important material that the organiser of any event must draw to the attention of all those taking part in that event. It is also of crucial importance that the competitors are given ample time to assimilate this information in an appropriate environment. “The start point of the race with all the accompanying excitement and hubbub was clearly an unsuitable venue at which to discuss safety provisions. The start itself is a time when the attention of participants would not be on the organiser. This issue was discussed at some length in the Canadian case, Smith v Horizon Aero Sports Ltd, where the duty upon a parachute instructor to ensure the assimilated learning of safe jumping technique was of crucial importance. In this case, the plaintiff, making her first parachute jump sued with respect to injuries she received ... She alleged that insufficient checks were carried out to establish that the appropriate information given had been understood and more importantly fully retained by the students. The Court drew attention to the importance of taking extra care when imparting crucial safety information in a stressful environment.” (emphasis added) Sources: www.rivers.org.nz www.nzherald.co.nz Prosecution for quad bike fatality (2006) “Farmer found not guilty over daughter's quad bike death” (Source: NZ Herald 09.03.06) “Molly Vanner was killed when the 368kg bike rolled on top of her after her father stopped to make a cellphone call. The Crown told the court that Molly lost her life because her father had been negligent in allowing her to ride down a paddock on the four-wheel vehicle specifically designed for adults. [John] Vanner's counsel argued that the tragedy was simply the result of an accident… Outside the court, Crown solicitor Timothy Brewer said the prosecution was brought because Molly Vanner died in a way which was killing children on farms every year.” The defendant admitted his mistake and that he broke his own safety rules. But did he actually know that his daughter would be injured? Because this was clearly not the case, the defendant was found not guilty. The charge of criminal nuisance requires there to be a high degree of negligence, in fact recklessness. In legal terms, a consideration of "recklessness" includes that the person must have considered a safer option and opted not to take it. As with the Le Race case, this shows that to successfully prosecute under criminal laws, a very high degree of misjudgement needs to be proven. (In contrast, a finding under common law of "negligence" requires only that the person failed to take steps that a reasonable person would have taken… which means that what the particular person actually knew or thought is not relevant.) back to list Employer liability for staff conduct Nelson Dive School – diver fatalities (2000) Three diving students drowned and another three suffered serious harm while on a diving course run by Nelson Dive at French Pass, which was known to be a “turbulent and energetic piece of water”. The investigation by Occupational Safety and Health (OSH, now known as Worksafe) concluded that French Pass was an unsuitable site for student divers to undertake a “drift dive” and that the diving instructor, who was an employee of Nelson Dive, lacked the appropriate qualifications and experience. In response to the charges laid by OSH, Nelson Dive argued that it was not responsible for the accident and the diving instructor was not its employee. However, the District Court found that the diving instructor was Nelson Dive’s employee (not, as was argued, an independent contractor) and that Nelson Dive had failed to take all practicable steps to ensure that the diving instructor was appropriately experienced and competent. The District Court further said that Nelson Dive should have prohibited student diving at French Pass. Implications for employers – staff responsibilities & assumed competency The case highlights that an instructor manual, signed off by the instructor, did not transfer total responsibility from the employer to the individual instructor. It is common in OSCAR for staff to sign a declaration that they have read and understand certain policies. This should not be seen as a means for employers to hand all responsibility (and potential liability) to staff. Additionally, where a staff member holds a particular qualification or has previous experience, cases like this remind employers to consider carefully what an appropriate level of responsibility for that staff member should be and to not simply assume (based on qualification and previous experience) that the person actually has the indicated level of competency. This includes the possibility that, at least in the initial stages of employment, direct supervision by a suitably skilled member of staff may be required. back to list Playground injuries and liability - Australian case law A number of civil actions in Australian courts have helped clarify how judges view accidental injuries in school playgrounds. The following judge’s decision relates to a case bought after a student died after being accidentally struck with a hockey stick by another student. “The question of what amounts to reasonable care in a given case must be seen in the context that it is neither practicable nor desirable to maintain a system of education that seeks to exclude every risk of injury… Nevertheless, although student participation in games may result in breaches of discipline and irresponsible behaviour, our society recognises that that is no reason, of itself, not to encourage and teach young children to engage in such activities. “Risks of serious injury while playing games … while real and not far-fetched, are remote. They can be reduced further by training and supervision, and catering for the needs of the individual child. Because the risks are unlikely to materialise when the games are properly controlled, merely to allow children to participate in them will not, in the absence of special circumstances, be regarded as negligent. “It follows that the mere fact that a serious injury or even death may occur while children are playing a game at school will not automatically result in a finding of breach of the duty of care. It remains for the plaintiff to show that the school or teacher involved did not take such reasonable precautions for the safety of the child as would have prevented harm.’” From: The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 In other words, we don’t have a duty of care to protect children from all harm. “The fact that parents might sue, or threaten to sue, is a reality - but it does not mean that every civil action for negligence is successful. An examination of case law over several decades… overwhelmingly demonstrates that schools and teachers will not be liable for negligence when they have acted ‘as a reasonable person’ of normal disposition and have taken reasonable steps in the circumstances to minimise the risk of harm or injury. In cases where schools and/or teachers have been held liable, there has generally been clear evidence of a total absence of appropriate supervision or wholly inadequate supervision.” Source: Playing Safe But Avoiding a Greenhouse Generation of Children’ Joan Squelch, The University of Notre Dame Australia International Journal of Law & Education Vol 18, No 2, 2013, pp. 7-25 back to list Worksafe investigations and prosecutions While there are no recorded cases of an OSCAR service being prosecuted under Health and Safety legislation, anecdotal accounts confirm that the regulatory body has had cause to investigate accidents at OSCAR services. (Other concerns raised about an OSCAR service, such as where a service has lost a child, or there is a “near miss” injury incident, are more likely to have been investigated by the MSD Approvals team but that is outside the scope of this discussion on liability for actual injury.) It would appear that Worksafe and its predecessor bodies have discretion on whether or not to investigate, but that they are more likely to investigate 'playground type' injuries where there has been a more serious injury, or where there has been several accidents at the same location or involving the same activity, equipment etc. A number of investigations seem to have been prompted by parents raising concerns directly with the agency. Based on feedback from services where these investigations have been undertaken it seems that the approach of the regulator was constructive, with the main aims being to: establish the full facts surrounding the accident – hence the importance of complete incident reports and witnesses determine if there were any steps that could have been taken that would have reduced the likelihood of the injury occurring recommend reasonable steps to be put in place to reduce the risk of a similar accident occuring again. In regards to prosecutions, Worksafe weigh up the level of risk/harm; level of knowledge about the risk; what options were available to manage the risk and what was actually being done to manage the risk. Officials would also consider if this was a one-off incident or a recurrence. Current Worksafe policy in determining whether to prosecute includes the following clauses: there has been a disregard of health and safety requirements that is reckless, or negligent, or both; there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance

There are no mandatory regulations which govern pool safety in New Zealand, with the exception of pool fencing regulations and pool water quality standards. However there are useful guidelines provided for schools by the Ministry of Education and Water Safety New Zealand. These resources make it clear that any organisation using a pool should have a clear policies and guidelines for pool safety and supervision, including rules for swimmers. In all the guidelines we have reviewed, there are no recommended ratios for the number of adults that should be supervising groups of children in the water. Pool safety experts are usually reluctant to recommend a ratio, because children, even of the same age, can have very different levels of ability in the water. The provision of “active supervision” is often seen as a far more significant factor in preventing water safety incidents. Each OSCAR service should consider the particulars of their situation and set a suitable supervision level that takes into account the age and ability of the staff and participants, as well as the types of activities that will occur. We also strongly recommend that a sensible limit is set on the maximum number of swimmers in the water at any one time. Where only some of the children in a programme are swimming, as many staff as possible should be allocated to the group that is swimming, with non-swimmers engaged in activities that need much less supervision. Any ratios set down in your own policy document (or required by a pool operator) must be adhered to. You should take into account the characteristics of the pool, whether it is accessible to the general public, and the ability/experience of staff. To supervise effectively it is essential to avoid a “one size fits all” approach to staffing levels. In some instances it may be necessary to have more adults than what is required to meet your ratio. From our experience with OSCAR services, we would be concerned if there are over-long periods of “free play” during swimming sessions. Fun, structured activities such as relays, volleyball or something as simple throw and catch with a circle of children can further increase staff interaction and make pool sessions more manageable and safe. Above all else, staff must practice a very high standard of supervision at all times and stay alert to the real dangers that pools present. Further reading: The OSCAR Water Safety Handbook

Holiday programmes will often have a policy that they will only accept “duty of care” for a child once they are signed in by a parent/caregiver. But what if the child hasn’t been signed in? After all, children are often at school well before their classes start? The MSD Standards for OSCAR require clear polices for the programme hours and duty of care – when does the programme open and what are the expectations when children are dropped off at the programme? Similar polices apply when children are leaving the programme. Sign in and sign out procedures are part of the MSD requirements and programmes should stipulate that they will not accept duty of care until children are signed in. (Similarly, the duty of care ends when children are signed out at the end of the day.) A holiday programme which commences at 9am may have a policy of allowing children to the signed in at 8.45 or perhaps earlier. Providing “early care” (e.g. 8am to 9am) will require extra staffing and programmes will usually charge for this extra time. These policies need to be clearly communicated to parents when they enrol their children and then applied firmly and consistently. If a parent is allowed to drop a child at 8.45, they may try to extend this time frame out to 8.35. In our experience, if the policies are not enforced firmly there is likely to be slippage. If a parent simply leaves a child, without signing in, we would suggest a prompt follow up, preferably by phone, to make it clear that signing in is a requirement and if it occurred again the parent would be expected to come back to the programme and complete the sign in. If the child has not been enrolled at the programme the situation is more urgent – a parent/caregiver must be located as soon as possible. Proper parental consent for the current holiday programme must always be obtained before the programme can legitimately assume duty of care for any child. Regardless of what the parent may think they have done, if you cannot reach a parent/caregiver, you essentially have a “lost child” on your hands – in which case your only option may be to contact the police. Similar issues apply for children not collected at the end of the day – firm enforcement of polices (including ensuring that emergency contacts are regularly updated) is crucial. What can I do if children are still at the programme after closing time?

Including a waiver clause is a common practice. There are various wordings but it usually will say something like “staff will take all care…. but will accept no responsibility…” It would be fair to say that many parents will sign off on these without giving them much thought and staff, in the same way, accept that they are a fairly standard part of the enrolment process. What is a waiver? “I acknowledge in signing this form that neither the staff or management of ………………………. will be liable for any loss or damage to person or property ……. These types of clauses, sometimes also called disclaimers, are intended to release staff and the programme from liability for damage, loss or injury. They also act to alert people to the likelihood that some injury or loss could occur. Participants can then give “informed consent” that they wish to go ahead with the activity. For instance, I would probably not be allowed to take a bungy jump, or sky dive, without signing something to say that I am aware of the risk of injury or loss and still wish to do it. Participants sign on the understanding that there are risks and agree to accept responsibility if something does go wrong. In the case of children, parents would be expected to sign on their behalf, which is what often happens when enrolling in an OSCAR service. “While management of ……….., its employed and volunteer staff will take care to provide proper supervision of all children, neither the management nor the employed staff shall have any personal liability in respect of any act of omission out of any session or activity of the ……………. Programme.” What legal protection does a waiver give my organisation? There are a range of opinions on the effectiveness of waivers but most commentators agree that there are limitations. On the Ministry of Education web site is the following: “A signed waiver does not release the organisation, individual staff, or any person from their legal responsibilities for the prevention of harm.” Source Min. Ed. The SPARC web-site comments that: “If properly used, waivers… are an effective way to emphasise that an activity has potential risks and is not to be undertaken lightly… Note that courts will not always uphold waivers.” SPARC Link (refer to page 12) So in certain circumstances, waivers might help to limit potential liability but there is no guarantee that they will be upheld. By signing, people acknowledge that there may be risks associated with their child attending a programme. At the same time they expect that a suitable level of care and good practice will be consistently in place. So what happens if there is then some kind of mishap at a programme? Most legal opinions agree that signing a waiver will not prevent a parent from taking a complaint or concern further. If there was no injury or other loss (financial, damage to property etc.) the parent may simply wish for the situation to be investigated by an external body – MSD Approvals or Worksafe (if there was a health and safety issue). Most often, in these circumstances, the outcome would be some recommendations for improving practices and preventing a similar mishap in the future. If a child was injured, ACC will cover the costs of most injuries and ACC legislation would limit the parent from taking further legal action, except if the injury was caused by a very high level of carelessness. Refer to our FAQ on legal liability, for more information. What are my options if a parent has questions about signing a waiver? Many parents will not give a second thought to waiver clauses and will sign off on all kinds of wordings. If a parent does have concerns we would recommend the following steps Explain why you have the waiver clause and especially be clear that the programme and staff will act responsibly, follow proper procedures and carry out their duties diligently Listen to the parent’s concerns – is it particular activities that they are concerned about; is there more they can tell you about their child? Offer options – perhaps the child could opt out of a particular activity if the parent has safety concerns. Do not force the issue: if they do not want to sign the waiver, maybe this could be noted and the enrolment could proceed – but programme management would need to be on board with this. Review your enrolment form: is your waiver clause necessary? Could it be re-worded? Wordings for an enrolment form In seeking consent from parents for activities, you should aim to: explain risks fully, so the participant understands them invite parents to ask questions about the proposed activity be clear that activities will be entered into voluntarily and what other options might be available if the participant opts out. If you wish to have in place some form of waiver clause, the following clauses aim to provide risk disclosure and obtain informed parental consent, with an opt-out option made available. I have read and understood the information about the programme that I have been given and acknowledge that I have had the opportunity to ask questions and discuss any concerns. I will take this opportunity, if necessary, at any stage in the future. I accept responsibility for being informed about programme activities (and will refer to activity information posted at the programme), as well as any notices issued by the programme. I understand that it may be possible (where the programme schedule allows) for my child to opt out of some programme activities, but on the whole it is the philosophy of the programme to encourage children to participate in the full range of activities on offer. I give consent for my child to participate in the programme activities. I understand that there are risks associated with my child/ren participating and I accept that, to the extent permitted by law, the programme management and staff will not be liable for accidental injuries (and any associated losses) which can occur, especially when children are involved in active play. To minimise the risk of accidents, the programme has safety procedures, including rules and boundaries for children’s behaviour, that will be consistently applied. These procedures are in accordance with the MSD Standards for OSCAR, under which this programme is approved. I agree that, while the programme will exercise all due care, the programme and staff will not be liable for accidental loss or damage to any personal property that a child has at the programme. I understand that I must keep the programme fully informed about any changes to personal information provided on the enrolment form and I will provide complete information about any allergies and/or medical conditions that my child/ren has. Note: this example does not include other recommended clauses such as consent for excursions; the process to exclude children who are behaving unsafely etc. Please note: this information has been provided in good faith to highlight some of the legal issues when a child is injured at your programme. We hope this information will be a useful guideline but OSCN is not qualified to provide legal advice. We strongly recommend that expert legal assistance be obtained to properly manage the risk of legal liability for your organisation.

There are many different forms of insurance coverage that you could consider, but the most important would usually be insurance for your property and the facility that you operate from. Your programme property can be insured just like any assets. The building owner will have insurance for the building and facilities. It is recommended that there is an agreement with the owner for minor damage that your service causes e.g. that you will cover the cost of any damage up to the amount of the insurance policy excess. If the building you are using is seriously damaged, you could be liable if it is found that you caused the damage. For example if a school hall being used by an OSCAR programme (not operated by the school) catches fire. If it was found that this was caused by the programme (e.g. a heater that a staff member left on), the school’s insurance company could seek to recoup the cost of repairs from the programme operator. To protect against this form of liability most insurance brokers will recommend public liability insurance, which covers the cost of damage to the property of third parties. Because the liability for major building damage could be considerable, this is seen as a high priority for insurance coverage where an OSCAR programme is occupying someone else’s building/s. Other forms of insurance that could be offered include employers liability and professional indemnity. If you want to read further, this OSCN resource on OSCAR insurance coverage might be helpful.

While the majority of OSCAR operators do obtain Social Sector Accreditation, this is not mandatory (which is explained further at the establishment page.) Whether or not you decide to become MSD Accredited it is essential that any after school care or holiday programme has certain minimum procedures in place. Disclaimer: our on-line guidance does not provide comprehensive legal or regulatory advice. Please seek expert advice or contact us for further assistance. · Enrolment form · Written information for parents · Attendance / sign in-sign out register Taking care of other people’s children is a serious undertaking, with legal obligations such as duty of care. When you enrol children, you are forming a legally binding agreement with parents and it is best to do all this in writing. [Note: care of children under five years is likely to be subject to Early Childhood Regulations. Other than the children of on-site staff, we strongly advise that no under 5 year olds be enrolled in your service.] Written enrolment ensures that you get essential information such as any medical conditions, as well as emergency contacts and details of any people who are authorized to collect the children from your programme. In return, parents should receive from you information about how your service operates and what you expect from them, including terms and conditions around bookings, fee payments, late collections etc. Attendance registers and sign in/out sheets are essential to make it clear when you are accepting (and handing back) responsibility for the care of children, to keep tabs on children’s arrivals and departures, and if an evacuation of the facility or other emergency should occur. There is no required format for these, but programmes generally adapt templates to suit their needs. View some sample enrolment forms here (word documents will auto-download) After School Enrolm 1 After School Enrolm 2 Hol Prog. Enrolm PDF versions · Financial record-keeping: bank account, invoices & receipts If you are intending to collect fees and/or pay wages, you should keep accurate records. You don’t have to operate a dedicated bank account for your programme, but doing so will make financial record-keeping more straight-forward. Regular invoicing of parents will be vital to your cash flow if you have staff wages to pay. It is also important to be able to give parents accurate information on what they currently owe, when requested. If “running the books” isn’t your thing, we recommend that you get help from someone who can. You need to keep up with regular obligations like PAYE and GST (only if your programme crosses the GST income threshold) and if you receive any government funding, you are required to maintain accurate and up to date financial records. · Appropriate facilities & basic equipment The OSCAR sector doesn’t have a lot of regulation about where programmes can operate. Facilities need to be safe and comply with relevant building standards (check with your local council if you have questions). The facility should have adequate toilets, running water, hygienic food preparation facilities, secure storage for your equipment and you should be able to access telephone services at all times. If you are operating an after school service, or your holiday programme goes into the early evening, you should consider the safety of staff at the facility near the closing time of your service: building security, exterior lighting etc. For children’s activities, the facility should provide appropriate, safe indoor and outdoor space, taking into account the number of children likely to attend. We suggest that there is provision of dedicated space for quieter activities and also consideration of what provision can be made for active play when weather restricts outdoor access. Outdoor space needs to be away from traffic, car parks etc., or be suitably fenced. More information about OSCAR venues here. We don’t recommend buying lots of equipment when your programme is still getting started. If you wait until children start attending, you will get a better idea what you might need. It’s safe to say that you will need some balls of various sizes, including low impact balls for indoor use. Other basic equipment would include: pencils, felt tips, a supply of scrap paper, scissors, an assortment of small toys (cars, toy people, dolls etc.), playing cards and something that plays music. What equipment you need really depends on how you plan to run your programme. Op shops or second hand dealers can be a very good option to stretch your budget further. (While you are op shopping, get a supply of fun dress ups.) More extensive equipment list here · Health & safety procedures · Hazard identification · Regular safety checks & risk assessment · Emergency procedures · First aid kit (including sun screen) · First aid & basic safety training, including emergencies · Accident / incident register In any workplace, it is a legislative requirement to provide a safe environment for staff and everyone else. A basic safety system will cover all the elements listed above and someone must be checking that these procedures are being carried out. The legal minimums are just that – a minimum. Because you are looking after children, we recommend that you check the MSD Standards for OSCAR for further guidance on safe practices, including the guidelines provided there for programme supervision. Also look out for opportunities for health and safety training that OSCAR support bodies or other related groups might provide. See also: OSCN health and safety resources on-line · Job descriptions · Induction record – including police vetting & referee checks · Employment (or volunteer) agreements · Supervision & monitoring of all staff · Clear rules & boundaries Appropriate staff practices are fundamental to a successful programme and this starts with job descriptions. OSCN has samples that reflect commonly understood OSCAR tasks and responsibilities. Staff learn mostly about their role “on the job”, so on-job training, supervision, feedback and support are essential to building an effective team. A key part of any staff recruitment will be safeguarding your service through background checks and screening of applicants. This is a requirement under the Vulnerable Children Act 2014, which is explained further at this link. Children’s behaviour is hugely influenced by the expectations set by staff and the example that staff set in their own behaviour. A focus on fun is very important but that is best underpinned by a clear understanding of what behaviour is expected at the programme and what staff will do to promote these behaviours positively. Download a checklist of this information

Staff at OSCAR programmes have a ‘duty of care’ for children enrolled and attending their programme. The sign in/out process usually determines when the duty of care starts and finishes. ‘Duty of care’ means that staff will provide reasonable care and protect the child from unnecessary harm. Duty of care continues until that child is safely handed over to a parent or other person nominated by the parent, even if it is well past a programme’s closing time. Disclaimer: our on-line guidance does not provide comprehensive legal or regulatory advice. Please seek expert advice or contact us for further assistance. · Enrolment form · Written information for parents · Attendance / sign in-sign out register Taking care of other people’s children is a serious undertaking, with legal obligations such as duty of care. When you enrol children, you are forming a legally binding agreement with parents and it is best to do all this in writing. [Note: care of children under five years is likely to be subject to Early Childhood Regulations. Other than the children of on-site staff, we strongly advise that no under 5 year olds be enrolled in your service.] Written enrolment ensures that you get essential information such as any medical conditions, as well as emergency contacts and details of any people who are authorized to collect the children from your programme. In return, parents should receive from you information about how your service operates and what you expect from them, including terms and conditions around bookings, fee payments, late collections etc. Attendance registers and sign in/out sheets are essential to make it clear when you are accepting (and handing back) responsibility for the care of children, to keep tabs on children’s arrivals and departures, and if an evacuation of the facility or other emergency should occur. There is no required format for these, but programmes generally adapt templates to suit their needs. View some sample enrolment forms here (word documents will auto-download) After School Enrolm 1 After School Enrolm 2 Hol Prog. Enrolm PDF versions · Financial record-keeping: bank account, invoices & receipts If you are intending to collect fees and/or pay wages, you should keep accurate records. You don’t have to operate a dedicated bank account for your programme, but doing so will make financial record-keeping more straight-forward. Regular invoicing of parents will be vital to your cash flow if you have staff wages to pay. It is also important to be able to give parents accurate information on what they currently owe, when requested. If “running the books” isn’t your thing, we recommend that you get help from someone who can. You need to keep up with regular obligations like PAYE and GST (only if your programme crosses the GST income threshold) and if you receive any government funding, you are required to maintain accurate and up to date financial records. · Appropriate facilities & basic equipment The OSCAR sector doesn’t have a lot of regulation about where programmes can operate. Facilities need to be safe and comply with relevant building standards (check with your local council if you have questions). The facility should have adequate toilets, running water, hygienic food preparation facilities, secure storage for your equipment and you should be able to access telephone services at all times. If you are operating an after school service, or your holiday programme goes into the early evening, you should consider the safety of staff at the facility near the closing time of your service: building security, exterior lighting etc. For children’s activities, the facility should provide appropriate, safe indoor and outdoor space, taking into account the number of children likely to attend. We suggest that there is provision of dedicated space for quieter activities and also consideration of what provision can be made for active play when weather restricts outdoor access. Outdoor space needs to be away from traffic, car parks etc., or be suitably fenced. More information about OSCAR venues here. We don’t recommend buying lots of equipment when your programme is still getting started. If you wait until children start attending, you will get a better idea what you might need. It’s safe to say that you will need some balls of various sizes, including low impact balls for indoor use. Other basic equipment would include: pencils, felt tips, a supply of scrap paper, scissors, an assortment of small toys (cars, toy people, dolls etc.), playing cards and something that plays music. What equipment you need really depends on how you plan to run your programme. Op shops or second hand dealers can be a very good option to stretch your budget further. (While you are op shopping, get a supply of fun dress ups.) More extensive equipment list here · Health & safety procedures · Hazard identification · Regular safety checks & risk assessment · Emergency procedures · First aid kit (including sun screen) · First aid & basic safety training, including emergencies · Accident / incident register In any workplace, it is a legislative requirement to provide a safe environment for staff and everyone else. A basic safety system will cover all the elements listed above and someone must be checking that these procedures are being carried out. The legal minimums are just that – a minimum. Because you are looking after children, we recommend that you check the MSD Standards for OSCAR for further guidance on safe practices, including the guidelines provided there for programme supervision. Also look out for opportunities for health and safety training that OSCAR support bodies or other related groups might provide. See also: OSCN health and safety resources on-line · Job descriptions · Induction record – including police vetting & referee checks · Employment (or volunteer) agreements · Supervision & monitoring of all staff · Clear rules & boundaries Appropriate staff practices are fundamental to a successful programme and this starts with job descriptions. OSCN has samples that reflect commonly understood OSCAR tasks and responsibilities. Staff learn mostly about their role “on the job”, so on-job training, supervision, feedback and support are essential to building an effective team. A key part of any staff recruitment will be safeguarding your service through background checks and screening of applicants. This is a requirement under the Vulnerable Children Act 2014, which is explained further at this link. Children’s behaviour is hugely influenced by the expectations set by staff and the example that staff set in their own behaviour. A focus on fun is very important but that is best underpinned by a clear understanding of what behaviour is expected at the programme and what staff will do to promote these behaviours positively. Download a checklist of this information

Duty of Care: “A duty to use due care toward others in order to protect them from unnecessary risk of harm.” (Martindale-Hubbell Law Directory) Staff members in an OSCAR programme have a duty of care for the children who attend. This continues for as long as children are at the programme. For example, if a child has not been collected from the programme after it has closed, staff still have a duty to care for that child. Disclaimer: our on-line guidance does not provide comprehensive legal or regulatory advice. Please seek expert advice or contact us for further assistance. · Enrolment form · Written information for parents · Attendance / sign in-sign out register Taking care of other people’s children is a serious undertaking, with legal obligations such as duty of care. When you enrol children, you are forming a legally binding agreement with parents and it is best to do all this in writing. [Note: care of children under five years is likely to be subject to Early Childhood Regulations. Other than the children of on-site staff, we strongly advise that no under 5 year olds be enrolled in your service.] Written enrolment ensures that you get essential information such as any medical conditions, as well as emergency contacts and details of any people who are authorized to collect the children from your programme. In return, parents should receive from you information about how your service operates and what you expect from them, including terms and conditions around bookings, fee payments, late collections etc. Attendance registers and sign in/out sheets are essential to make it clear when you are accepting (and handing back) responsibility for the care of children, to keep tabs on children’s arrivals and departures, and if an evacuation of the facility or other emergency should occur. There is no required format for these, but programmes generally adapt templates to suit their needs. View some sample enrolment forms here (word documents will auto-download) After School Enrolm 1 After School Enrolm 2 Hol Prog. Enrolm PDF versions · Financial record-keeping: bank account, invoices & receipts If you are intending to collect fees and/or pay wages, you should keep accurate records. You don’t have to operate a dedicated bank account for your programme, but doing so will make financial record-keeping more straight-forward. Regular invoicing of parents will be vital to your cash flow if you have staff wages to pay. It is also important to be able to give parents accurate information on what they currently owe, when requested. If “running the books” isn’t your thing, we recommend that you get help from someone who can. You need to keep up with regular obligations like PAYE and GST (only if your programme crosses the GST income threshold) and if you receive any government funding, you are required to maintain accurate and up to date financial records. · Appropriate facilities & basic equipment The OSCAR sector doesn’t have a lot of regulation about where programmes can operate. Facilities need to be safe and comply with relevant building standards (check with your local council if you have questions). The facility should have adequate toilets, running water, hygienic food preparation facilities, secure storage for your equipment and you should be able to access telephone services at all times. If you are operating an after school service, or your holiday programme goes into the early evening, you should consider the safety of staff at the facility near the closing time of your service: building security, exterior lighting etc. For children’s activities, the facility should provide appropriate, safe indoor and outdoor space, taking into account the number of children likely to attend. We suggest that there is provision of dedicated space for quieter activities and also consideration of what provision can be made for active play when weather restricts outdoor access. Outdoor space needs to be away from traffic, car parks etc., or be suitably fenced. More information about OSCAR venues here. We don’t recommend buying lots of equipment when your programme is still getting started. If you wait until children start attending, you will get a better idea what you might need. It’s safe to say that you will need some balls of various sizes, including low impact balls for indoor use. Other basic equipment would include: pencils, felt tips, a supply of scrap paper, scissors, an assortment of small toys (cars, toy people, dolls etc.), playing cards and something that plays music. What equipment you need really depends on how you plan to run your programme. Op shops or second hand dealers can be a very good option to stretch your budget further. (While you are op shopping, get a supply of fun dress ups.) More extensive equipment list here · Health & safety procedures · Hazard identification · Regular safety checks & risk assessment · Emergency procedures · First aid kit (including sun screen) · First aid & basic safety training, including emergencies · Accident / incident register In any workplace, it is a legislative requirement to provide a safe environment for staff and everyone else. A basic safety system will cover all the elements listed above and someone must be checking that these procedures are being carried out. The legal minimums are just that – a minimum. Because you are looking after children, we recommend that you check the MSD Standards for OSCAR for further guidance on safe practices, including the guidelines provided there for programme supervision. Also look out for opportunities for health and safety training that OSCAR support bodies or other related groups might provide. See also: OSCN health and safety resources on-line · Job descriptions · Induction record – including police vetting & referee checks · Employment (or volunteer) agreements · Supervision & monitoring of all staff · Clear rules & boundaries Appropriate staff practices are fundamental to a successful programme and this starts with job descriptions. OSCN has samples that reflect commonly understood OSCAR tasks and responsibilities. Staff learn mostly about their role “on the job”, so on-job training, supervision, feedback and support are essential to building an effective team. A key part of any staff recruitment will be safeguarding your service through background checks and screening of applicants. This is a requirement under the Vulnerable Children Act 2014, which is explained further at this link. Children’s behaviour is hugely influenced by the expectations set by staff and the example that staff set in their own behaviour. A focus on fun is very important but that is best underpinned by a clear understanding of what behaviour is expected at the programme and what staff will do to promote these behaviours positively. Download a checklist of this information

When one OSCAR programme winds up and another opens on the same site, the new OSCAR provider will need to work through the same setting up process as any provider starting out: complete MSD Accreditation (if the provider wishes to access OSCAR Fee Subsidies and/or meet OSCAR Funding criteria) form an agreement to use facilities and/or to operate on a school site administer enrolments and registrations confirm staffing

Successful OSCAR services strive to be responsive to families in their local community – one aspect of this is striking a balance between meeting their running costs and charging an affordable fee. Across the sector there is a very wide range of fees charged, including some services charging almost no fee at all. When setting fees we recommend you first make a realistic estimate of your annual operating costs. (New services might initially develop a 6-month operating budget and update this, based on actual expenses, once the programme has been running a while.) This budget will include estimates for all relevant costs such as: wages, facility rental, equipment and resources, consumables and administration costs.

Schools are regulated by the Education Act and as education is compulsory schools must do their very best to manage behaviour and safety. OSCAR services may have a close relationship with schools but OSCAR is not part of the education sector and they are not bound by the same legislation. For this reason you could say that "OSCAR services have the right to exclude children." Equally though, children and their families have a right to fair treatment by any operator of an OSCAR service.

OSCAR accreditation is administered by Te Kāhui Kāhu, under the authority of the Social Security (Child Care Assistance) regulations 2004. In September 2022 Te Kāhui Kāhu launched it's online accreditation system. For all new accredtiations and reviews, documentation is now submitted and tracked through an on-line platform. Programmes will still be visited by an assessor but as the process is still relatively new we have not yet updated the guidance here to reflect ways that the process might proceed differently. Overall much of the information here should remain unchanged.

You may be aware of the rule change concerning seat belt and restraint requirements for children traveling in motor vehicles. The NZ Transport Agency (NZTA) has issued guidelines regarding the changes. The overall intention of the rule change is to help reduce preventable deaths and serious injuries to children traveling in vehicles. If you transport children (excluding the use of buses, taxis and other passenger service vehicles) there are significant changes to the regulations and we recommend that you read the full information on the rule change, as well as the clarifications below.