Critique of Draft Education (Early Childhood Services) Amendment Regulations 2025 over Child Safety and Enforcement Gap

Summary

The Office of Early Childhood Education (OECE) welcomes the opportunity to comment on the draft Education (Early Childhood Services) Amendment Regulations 2025, which aim to introduce a broader, graduated toolkit for managing compliance risk in early childhood education (ECE) services.

Key Concerns

• Weakened Enforcement
  The proposed changes shift focus away from child protection by making licence downgrades dependent on preliminary measures – delaying timely action in response to serious breaches.
• Lack of Evidence
  No data supports the claim of “over-reliance” on provisional licences. Available figures suggest underuse, even in high-risk cases.
• Missing Child Impact Assessment
  No formal Child Impact Assessment has been conducted to evaluate the potential effects on children’s safety, well-being, education or quality of care.
• Mischaracterisation of Licensing as a “Blunt” Instrument
  Licensing is not a blunt tool.  It involves defined requirements, multi-agency oversight, peer review, and ongoing monitoring. The draft amendment reflects a narrow view from the Ministry for Regulation and overlooks the licensing system’s built-in checks and complexity.
• No Meaningful Alternatives Proposed
  The draft introduces no genuine alternatives to licensing downgrades, such as targeted fines, spot checks, or mandatory professional development for service providers.
• Limited Scope of Consultation
  Feedback has been restricted to how the policy will be worded and implemented, without inviting input on the broader policy shift or its justification.
• Transparency and Accountability Gaps
  Discretionary provisions (e.g. “may record non-compliance,” optional public notice) risk inconsistent enforcement, reduced transparency, and delayed communication with families.

Key Additions and Most Needed Changes:

• Mandatory recording of non-compliance (Clause 29A) to prevent selective enforcement and ensure transparency.
• ECE services required to prominently display all actions taken against them, along with any remediation instructions (Clauses 29A to 29F), both at the service’s entrance and on their website (if applicable)
• Expanded definition of health risk to include mental health. (Clause 29C)
• Mandatory, truly independent specialist help (Clause 29D) with cost exceptions for community-governed services.
• Compulsory improvement plans (Clause 29E) linked to all enforcement actions, with a focus on sustained compliance.
• Notification of all complaints and incidents (Clause 59A), not just those investigated, plus a register to support family awareness and action.
• Immediate licence reclassification authority (Regulation 15) without requiring prior enforcement steps when children’s safety, health, education is at risk.

OECE Recommendations Include:

• Commission a Child Impact Assessment before finalising the Amendment Regulations.
• Broaden the consultation to include substantive policy questions and evidence review.
• Consider and include other approaches such as unannounced inspections, mandatory service provider professional development, and graduated fines.
• Retain immediate reclassification authority so licences can be reclassified as provisional without prerequisite steps and delays when children’s safety, well-being, or education is at risk.
• Strengthen transparency through mandatory recording of all breaches, registers of complaints and incidents, and timely public notifications with full service-provider attribution.

Conclusion

The draft Amendment Regulations dilute enforcement without offering proportionate alternatives or assessing impacts on children. OECE urges the Ministry of Education to prioritise children’s rights and safety by adopting these recommendations, ensuring a regulatory framework that is evidence-based, transparent, and consistently applied.

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Our Full Submission  

From: Office of Early Childhood Education (OECE)
Date:  October 15, 2025

1. Introduction

This submission outlines the OECE’s key concerns, identifies critical questions omitted from the current consultation, and offers recommendations to strengthen both the policy process and the regulatory framework.

2. Core Purpose and Shift in Practice

We understand that the primary intent of the Ministry for Regulation’s recommendation is to reduce the use of licence downgrades as a penalty for non-compliance with minimum standards. If enacted, the Amendment Regulations will:

• Shift the focus away from child protection and toward shielding service providers from meaningful regulatory consequences.
• Weaken enforcement mechanisms without introducing substantive or proportionate alternatives.

We are particularly concerned that no Child Impact Assessment (CIA) has been undertaken. In the absence of such an assessment, there is no formal review of how these changes may affect children’s safety, well-being, education, or quality of care.

3. Limitations of the Current Consultation

The consultation survey focuses on the wording and mechanics of the proposed changes, asking questions about:

• Clarity of each drafted statement
• Suggestions for wording improvements
• Practical implementation considerations
• Potential impact on children’s health and safety

It is important to note that respondents may reasonably answer “none” or “minimal” to the final question, given that the amendments soften enforcement rather than enhance safeguards. This reflects a consultation focused on drafting mechanics rather than the substance of the regulatory shift.

We believe the consultation should invite feedback on broader policy questions, including:

• What evidence did the Ministry for Regulation use to inform these Regulation Amendments? 
• What analysis of consequences – intended and unintended – were undertaken regarding children’s rights, family expectations, and accountability to tax payers?
• How will the proposed tools lead to more consistent compliance with minimum standards across ECE services?
• What researched measures of effective compliance were investigated to strengthen compliance, such as regular spot checks, graduated fines, or mandatory professional development?

4. Comment on Proposals for Actions by the Director for Regulation

Record of Non-Compliance (Clause 29A)

The word “may” should be removed from Clause 29A. Its use grants the regulator discretionary power, which could result in inconsistent application and the perception (or reality) of favouring certain service providers over others. It also means that not all instances of non-compliance will be recorded.

The public rightly expects the Ministry of Education to maintain a complete and transparent compliance history for every licensed ECE service, dating back to the original issuing of the licence. This information should remain accessible to parents, community members, and prospective operators who wish to know the service’s compliance history.

Formal Warning (Clause 29B)

Any formal warning issued to an ECE service must be required to be prominently displayed at the service’s entrance and on its website (if applicable), and remain visible until the warning is officially withdrawn.

Clause 29B currently lacks clarity on when authorities should issue a formal warning instead of a written direction or licence change. To ensure consistent enforcement, the regulation must include:

• Clear criteria for when a formal warning is appropriate, including the specific types or number of breaches that warrant it;
• A time limit for how long a formal warning can remain in place;
• A threshold for how many formal warnings may be issued before further regulatory action is required.

These additions will help prevent inconsistent application and ensure that formal warnings are used appropriately and effectively. 

Written Direction to Remedy Health and Safety Risk (Clause 29C)

Any written direction issued to an ECE service must be required to be prominently displayed at the service entrance and on its website (if applicable).

It is critical that the current provision allowing the regulator to act before the 10-working-day response period ends remains in place. Removing this authority could delay urgent interventions in situations where children’s health or safety is at risk.

To prevent ambiguity, the regulation must clearly define what constitutes a health risk and a safety risk. Without clear definitions, providers may argue that harmful practices are acceptable simply because they are not explicitly prohibited (for example, unsafe sleep practices for infants, which are addressed in guidance but not mandated by regulation).

The definition of “health risk” must be expanded to include both physical and mental health. This is essential to ensure that children’s emotional well-being is protected. Recent public statements by the Associate Minister for Education and service provider lobbyists have downplayed mental health concerns, including practices such as requiring children to sit for extended periods or seek permission to use the toilet – practices that cause distress and undermine children’s autonomy.

Clear definitions and retained enforcement authority are necessary to ensure timely, consistent, and child-centred regulatory action.

Specialist Help (Clause 29D)

ECE services must be required to prominently display a copy of any instruction to engage or use specialist help—both at the service entrance and on their website (if they have one).

The regulation must clearly define the threshold for requiring specialist help. It should be explicitly stated that specialist help will be required when a service provider lacks the necessary knowledge, understanding, or willingness to bring their service into compliance or meet the conditions of their licence. In such cases, intervention must not be optional—it must be imposed. If specialist help is deemed necessary, the regulation should state that the regulator will require the provider to engage it. Additionally, Clause 29D(1) must specify that any specialist help engaged must be:

• Independent of the service provider, and
• Approved by the Ministry of Education as a SELO (Strengthening Early Learning Opportunities) provider.

Without these safeguards, there is a risk that service providers will engage individuals with personal or professional ties—compromising objectivity and undermining the purpose of the intervention.

A concerning example reported in the media occurred in December 2020, when the Ministry of Education lifted a suspension on a centre’s licence on the condition that the owner/head teacher would not return while children were present, and that a specialist would be engaged to support the service and liaise with parents. The person engaged was a known associate of the owner and a senior member of the Early Childhood Council, which represented the centre’s business interests. This lack of independence eroded parent trust, silenced complainants, and allowed the centre to reopen under a veneer of Ministry approval. Yet, alleged practices at the centre included:

• Locking children in sleep rooms as punishment
• Medicating children without parental consent
• Dirty bedding and poor hygiene
• Unsafe water temperatures posing burn risks
• Poor food quality and inadequate ventilation
• Reports of the owner being physically violent toward children

To prevent such failures, Clause 29D must be strengthened to ensure that specialist help is both mandatory when warranted and demonstrably independent.

Clause 29D(5) appropriately states that the service provider must “employ or engage” and “pay the fees and reasonable expenses” of the person providing specialist help. This is a sound principle—specialist support should not be funded by the New Zealand taxpayer when addressing failures in services (previous examples include: Little Schools, Fern Garden Preschool, Country Kindy)

However, the regulations must include an exception for community-based services that operate a single licensed centre managed by a parent committee. These services are typically run by volunteers and lack the financial resources of private operators. In such cases, where non-compliance relates specifically to governance and management, the regulator should cover the cost of specialist help. This ensures equity across the sector and supports volunteer-led services to access support with governance and management if needed.

Improvement Plan (Clause 29E)

In Clause 29E, improvement plans must be a mandatory requirement for all non-compliant service providers — not optional or separate from other regulatory actions like provisional licensing or written directions. Clause 29E should be explicitly linked to all relevant enforcement tools to embed improvement planning as a core part of the compliance process.

Each plan should also include a statement on how compliance will be maintained long-term, ensuring improvements are not just reactive but sustained.

ECE services must be required to prominently display a copy of the improvement plan at the service entrance and on their website (if they have one).

Public Notice of Non-Compliance (Clause 29F)

As the Ministry of Education is aware, the OECE publishes annual lists of services that have had their licences downgraded or cancelled due to non-compliance. While this transparency is welcomed by teaching professionals and families, it is often resisted by service providers. We often receive complaints when information is made public — even when it is already part of the official record.

Nonetheless, public transparency is essential to maintaining trust in the regulatory system. Families, communities, and prospective service users have a right to be fully informed about the status and history of early childhood services.

To ensure Clause 29F is both effective and fair, we recommend the following enhancements:

• The regulation must specify a clear timeframe within which the public notification must be made – ideally within three working days of the licence reclassification decision. Delays in notification risk undermining public awareness and accountability. 
• The ECE service must be required to prominently display the public notice of non-compliance in its entrance way, and on its website (if it has a website). 
• The regulation must state where and how the notification will be published. This should include notices in local newspapers and community bulletins relevant to the service’s location.
• To avoid confusion, misattribution, or masking of responsibility, the regulation must require that the following details be included in every public notification:
  • The current name of the service
  • Any previous names the service has operated under
  • The name of the licence holder at the time of non-compliance
  • If ownership has changed, the name of the new owner and the date of transfer
  • The name of the shareholding company (if applicable)
  • The name of the listed licence contact person

This level of detail is necessary to ensure that responsibility for non-compliance is accurately attributed and that the identity of the service provider is not obscured. It also protects new owners from being unfairly associated with past breaches, while ensuring that the public is aware of the full compliance history of the service.

Give Public Notice, or Inform Parents and Caregivers of, Investigation of Complaint or Incident (Clause 59A)

Clause 59A(2) must be strengthened to remove ambiguity. The regulation should clearly state that all complaints and not just those the regulator chooses to investigate must be notified to all currently enrolled families and families starting at the service within 6 months of the date of the complaint or incident. 

Notification of all complaints would support families with similar concerns to have the opportunity to come forward.  This is also important because some complaints may reveal harmful or concerning practices that fall outside the scope of current licensing criteria or regulations. Even if such practices cannot be formally classified as non-compliance, parents still have a right to know and be supported to protect their child’s interests, health, and safety.

This regulation must state that service providers will be required to maintain a register of complaints and serious incidents, with clear guidance from the regulator on what must be recorded. The register should be publicly accessible at the early childhood service. This level of transparency allows families to make informed decisions and provides an avenue for others with similar concerns to come forward.

Finally, Clause 59A must require mandatory public notification when a complaint is upheld or a serious incident involving a child occurs, even if the service’s licence is not downgraded, suspended, or cancelled in response to the findings.

5. Regulation 15: Amendment on Reasons to Reclassify a Licence

The proposed loosening of wording will significantly weaken compliance enforcement.  It needs to be stated in the regulations that a probationary or full licence can be reclassified as provisional without the service provider first having:

• Failed to comply with a written direction;
• Been required to engage specialist help;
• Completed an improvement plan;
• Received a formal warning;
• Had their non-compliance formally recorded.

Reclassification should not depend on a service having gone through any of these steps or a sequence of prior regulatory action. If the regulator determines that a child’s health, safety, well-being, or quality of education is at risk, or that the service is failing to meet minimum standards, they must have the authority to reclassify the licence immediately.

Delaying action until a service fails one or more preliminary steps allows poor or harmful practices to continue. It postpones necessary improvements and increases the risk of harm to children.

Any licence reclassification must also follow a robust process, supported by clear evidence. 

6. Justification for Proposed Changes: Are the Reasons Sound?

The Ministry for Regulation has advanced four key rationales for broadening compliance tools. We’ve examined each claim below for evidential support and logical coherence.

Over-Reliance on Provisional Licences

The Ministry for Regulation claims there is “over-reliance by the Ministry of Education on changing the status of service licences to provisional to enforce compliance.”

• Of approximately 4,400 licensed ECE services, only 90 (2%) were issued provisional licences in 2024.
• Eight of those actions were directed at a single provider whose compliance issues were triggered by it entering liquidation. This data does not support the claim of widespread or excessive use.
• In the same year, only 17 services, all teacher-led centres, received a written direction to address serious health or safety risks. Most of these 17 centres had two or more breaches in health and safety, and one had 12 separate violations. 

This data suggests under-reliance, not over-reliance, on provisional licence status even in cases involving significant risk. 

“Blunt Instrument” of Licensing

The Ministry for Regulation claims that “enforcement relies on the blunt instrument of licensing.”

• Yet the proposed amendments offer no alternative tools.
• Measures like targeted fines, mandatory professional development, or impartial spot checks could strengthen enforcement without relying solely on licence sanctions.
• By failing to propose such options, the draft weakens the current system without meaningful replacements.
• Calling licensing “blunt” misrepresents its complexity. The process involves clear requirements, multiple agencies, peer review, and ongoing monitoring. This reflects a misunderstanding of regulatory models – whether tight, loose, or mixed – and the parameters that shape them.

Fear of Licence Downgrades for Minor Breaches

The Ministry for Regulation notes that “some providers are worried they may have their licence status changed in response to minor breaches,” creating “undue compliance costs and administrative burdens.”

• This concern reflects resistance to accountability and the cost of correcting substandard practice.
• In reality, the Ministry of Education already exercises discretion: minor breaches rarely trigger downgrades, and even serious breaches are often resolved without licence changes.

Insufficiently Graduated Compliance Tools

The Ministry for Regulation claims current tools “lack sufficient graduation” and “are not proportionate to the range of non-compliance issues.” However, it has not provided any examples.

Under the draft amendment, a licence downgrade would only follow a service provider’s failure to complete one of three steps:

• Engage specialist help;
• Implement an approved improvement plan;
• Comply with a written direction to remedy a health-and-safety risk.

Key observations:

• The written direction has been in place since 2021, so only the first two steps are genuinely new.  
• Making these steps prerequisites to licence action reduces the Ministry’s ability to use downgrades as a prompt for improvement.
• This change risks downplaying serious breaches and misleading parents and the public into believing enforcement remains robust when it is, in fact, being softened in providers’ favour.

7. Additional Concerns

Lack of Consultation and Child Impact Assessment

• No consultation was held on the recommendation itself. The Ministry of Education proceeded to draft the Amendment Bill without seeking input or critique on the necessity or effectiveness of the proposed changes.
• No Child Impact Assessment (CIA) has been conducted. There has been no formal review of how the proposed changes might affect children’s safety, well-being, or their right to high-quality care and education.
• ECE service providers were notified via the Ministry’s Bulletin and invited to comment only on the wording and mechanics of the draft. Outside of this, and its own internal advisory groups, broader stakeholder engagement appears to be absent.

Lack of Monitoring and Preventive Tools

• No introduction of regular monitoring or spot checks for all licensed services.
• No new penalties or proactive tools such as mandatory professional development for service providers on the regulatory requirements and their responsibilities. 
• The changes appear designed to reduce the likelihood of licensing actions or downgrades.

Centralisation of Authority

• The proposed changes align with legislation not yet passed, which would centralise decision-making in a single role: the Director of Regulation for ECE.
• This role would not be required to demonstrate impartiality in compliance decisions and could be subject to political influence from the Minister for Regulation.

Risk of Rewarding Non-Compliance

• The amendment introduces two steps that may now be used to avoid licensing action: engaging specialist help and completing an improvement plan.
• Previously, these steps were often part of the process for regaining a full licence after a downgrade. 

This raises critical questions:

• Why weren’t providers already taking these steps proactively to remain in compliance?
• Will serious breaches (such as failing to have a ‘person responsible’ on site) now be met with an improvement plan instead of a licence downgrade, even when they have not met core licensing requirements?

8. Recommendations

To ensure a robust, transparent policy process and regulatory outcome, the Office of Early Childhood Education recommends the Ministry of Education:

a) Provide Full Advice to the Minister of Education and the Associate Minister of Education
In your briefing to the Minister of Education Erica Stanford and Associate Minister of Education David Seymour, clearly outline that implementing the Ministry for Regulation’s recommendation through these draft amendment regulations:

• Dilutes enforcement without proportionate alternatives;
• Lacks evidence demonstrating a need for licence-downgrade relief;
• Proceeds without the guidance of a Child Impact Assessment.

b) Commission a Child Impact Assessment (CIA)
Engage with the Children’s Commissioner and child rights experts to complete a formal CIA before further progressing the Amendment Regulations.

c) Broaden the Consultation Scope
Expand the feedback scope to include substantive questions on the merits, evidence base, and effectiveness of the current and proposed compliance tools.

d) Research and Evaluate Alternative Enforcement Tools
Invite all affected parties to propose and assess stronger or more targeted measures, for example: unannounced regular inspections, graduated fines for licence breaches, and mandatory professional development for service providers, to ensure that non-compliance carries appropriately graduated consequences.

We urge the Ministry of Education to show leadership and integrity in managing New Zealand’s early childhood regulatory framework at this uncertain time. This means prioritising the rights and best interests of children – not the preferences of a few politically influential service providers or their representative groups.

The Ministry has a core responsibility to protect children and uphold the integrity of the sector. By acting on these recommendations, it will meet its statutory and moral obligations. The regulatory system must be focused on safeguarding those who are most vulnerable – children.

9. Conclusion

None of the Ministry for Regulation’s four stated reasons for introducing “a broader, graduated set of regulatory and compliance tools to manage varying levels of compliance risk” withstands scrutiny.

The draft Education (Early Childhood Services) Amendment Regulations 2025 dilute enforcement without offering substantive or proportionate alternatives. There is no evidence of a problem to justify the changes, no viable replacement tools proposed, and no prior assessment of the impact on children’s safety, well-being or the quality of care they receive.

The Ministry of Education must reconsider this approach and ensure that any regulatory reform is guided by evidence, child-centred principles, and meaningful stakeholder engagement.