Children First, No Exceptions: The New Paramount Consideration Duty for Early Childhood Services
From 27 February 2026, the Education and Care Services National Law (National Law), was amended to introduce a new statutory duty.
Section 2A of the National Law and section 3A of the Children (Education and Care Services) National Law (NSW) requires approved providers to treat the safety, rights and best interests of children as the “paramount consideration” in all Service operations, decisions and functions.
What was previously a guiding principle under the National Quality Framework has now been legislated as a legal requirement. Approved providers must ensure compliance with this duty or risk regulatory investigation, enforcement action and significant penalties.
This guidance note explains the changes to the National Law and provides support on how early learning services can navigate compliance with the new “paramount consideration” duty, including practical strategies to embed the duty across policies, procedures, and everyday decision-making, ensuring children’s safety, wellbeing and best interests are consistently prioritised.
What Has Changed Under the National Law?
From 27 February 2026, the National Law now contains an express provision requiring that the protection of the safety, rights and best interests of each child attending an education and care service must be the paramount consideration when exercising powers, making decisions, or performing functions under the legislation.
Importantly, the duty applies broadly to every individual and stakeholder involved in the operation of an education and care service, including:
- Approved providers
- Persons with management or control (PMCs)
- Persons in day-to-day charge (responsible person)
- Nominated supervisors
- Educators and teachers
- Staff members
- Volunteers, including students
Any perceived or actual conflict of interest must be identified, declared and managed immediately to ensure it does not influence decisions relating to children’s safety or wellbeing. If a conflict arises, the individual must withdraw from the decision-making process to maintain objectivity and uphold the child-first principle.
In New South Wales, the legislation goes further. It states that the safety, rights and best interests of children must prevail over the financial interests of approved providers and applies to any person exercising functions under National Law, including the regulatory authority.
In practice, this means early childhood services must be able to demonstrate that decision-making consistently prioritises the child’s interests above competing considerations.
Examples of operational decisions that may be assessed include:
- Staffing decisions; including developing staffing rosters, the hiring or terminating employees
- Managing unsafe environments; including procuring or replacing equipment and technology, the structure of learning environments
- Interactions with children; including behaviour guidance, inappropriate conduct and inappropriate discipline
- Supervision planning
- Preparing policies and procedure manuals
- Responding to complaints
- Incident reporting and response procedures
Implications of Failing to Prioritise the Child’s Best Interests
Authorised officers may now assess whether practices, decisions, or actions demonstrate a priority of the child’s safety, rights and best interests. As a result, conduct previously treated as minor procedural failures may now constitute statutory non-compliance.
Breaches may result in:
- Service approval conditions
- Suspensions
- Significant fines
- Potential criminal prosecution in serious cases
Support for Early Childhood Education and Care Services
For approved providers already maintaining high safety standards, the new duty may not require major operational changes. However, it does require services to clearly evidence that child-centred reasoning informed every decision.
The Desktop has reviewed and updated key child safe policies, procedures and resources to explicitly state that children’s safety, rights and best interests are the paramount consideration.
Key policies updated:
- Governance Policy
- Child Safe Environment Policy
- Child Protection Policy
- Management Committee Policy
- Performance Management Policy
- Recruitment Policy
- Behaviour Guidance Policy
- Behaviour Guidance – Bullying Policy
- Interactions with Children, Families and Staff Policy
- Staffing Arrangements Policy
- Student, Volunteer and Visitor Policy
- Writing and Reviewing Policies Policy
- Supervision Policy
- Dealing with Complaints Policy
- Code of Conduct Policy
Additional resources reviewed and updated include:
- Staff/Family/FDC Educator/Student Handbooks
- Code of Conduct Staff Acknowledgement
- Inductions: Staff/Student/Volunteer/Visitor
Embedding Paramount Consideration Duty
Services must recognise that the child’s best interests are the paramount consideration in all decisions and actions. Failure to comply with this requirement may result in significant consequences, including formal enforcement action and financial penalties. Ensuring a thorough understanding of these obligations and consistent compliance is essential to maintain the integrity and safety of the service.
The following practical examples demonstrate how services can apply the paramount consideration duty across key areas of operation. They provide actionable strategies and considerations to ensure that every decision and practice prioritises children’s safety, wellbeing and development.
- Leadership and Governance
Ensure management and committees prioritise children’s safety and wellbeing in all strategic and operational decisions. Include paramount consideration principles in policies, procedures, and code of conduct. Regularly review governance practices to ensure decisions align with child-focused priorities.
- Policies and Procedures
Update all key policies to reflect the paramount consideration duty, including supervision, behaviour guidance, staffing, excursions and risk management. Implement clear procedures for decision-making that document how children’s best interests are prioritised. Conduct regular policy reviews and audits to ensure compliance.
- Staff Practices and Training
Provide thorough inductions for staff, volunteers and students to ensure they are aware child-first principles and how they can apply this in daily practice, including risk assessment, behaviour guidance and interactions with children. Include examples and case studies showing how decisions should prioritise child safety and wellbeing. Encourage staff to speak up if decisions or practices compromise the child’s best interests.
- Risk Assessment and Supervision
Ensure staffing ratios and qualifications always support safe supervision and responsive care. Conduct regular risk assessments for activities, excursions and routines with a child-first lens. Document safety checks, headcounts and supervision practices to demonstrate prioritisation of children’s wellbeing.
- Family and Community Engagement
Engage families in decisions affecting their child’s safety, learning, and wellbeing. Encourage feedback from parents and the community to inform child-focused decision-making. Maintain transparent communication about how the service prioritises children’s best interests.
- Monitoring and Continuous Improvement
Use audits, incident reviews, and feedback to identify gaps where children’s best interests may not have been fully considered. Adjust practices and policies to continuously embed the paramount consideration duty into the service culture.
Additional guidance available from ACECQA CHILD SAFETY Understanding paramount consideration.
Stay confident that your Service meets current regulatory requirements. Explore our updated policies, procedures, and resources to help you ensure all decisions and practices consistently prioritise the child’s safety, rights and best interests.
Learn more here: The Desktop