Kellyville Ridge: Helen Jacobs and Berry Patch Preschool appeal conviction for failing to protect children of harm

The boss of a childcare centre found guilty of failing to protect children of harm has argued there were no legal requirements to physically check if children were breathing while sleeping.

(left) 16-month-old Arianna Maragol and The Berry Patch Preschool owner Helen Jacobs.

The boss of a childcare centre found guilty of failing to protect children from harm has argued there were no legal requirements to physically check if children were breathing while sleeping.

Facility owner Helen Jacobs and the Kellyville Ridge Berry Patch Preschool, are appealing a conviction which found them guilty of failing to protect children from harm and not adequately supervising children in their care.

The charges were issued after 16-month-old Arianna Maragol was left unchecked for three hours on August 24, 2018, before she was found unresponsive in her cot. Arianna later died at hospital.

Photo of Arianna Maragol who passed away in 2018 after she was found unresponsive at a childcare centre. Picture: Sam Ruttyn

Neither Jacobs nor the preschool were charged in relation to her death.

On Thursday, prosecuting barrister Kenneth Averre told Sydney District Court the preschool’s reliance on CCTV and audio monitoring of children, including Arianna, was not sufficient supervision.

Mr Averre told the court according to 2018 standards of excellence set out by the Australian Children’s Education and Care Quality Authority (ACECQA), educational care facilities should ideally conduct regular “cot checks” every 10 minutes with every second check to be made physically by an educator or nominated supervisor.

However at the Kellyville Ridge facility, cot checks were mostly done remotely through CCTV cameras with educators only entering the cot rooms if a baby was awake and fussy, the court was told.

Mr Averre said CCTV supervision alone had “deficiencies” including the inability to check whether a sleeping child was still breathing or to properly see if their skin colour had changed.

Helen Elizabeth Jacobs leaves Sydney District Court in 2022.

However defence barrister John Agius argued between the time the preschool first opened in 2009 and 2018, there was no requirement by ACECQA or Red Nose Australia – the leading standard on childcare – to physically check if sleeping babies were breathing.

“Checking the colour of skin and breathing wasn’t in ACECQA or Red Nose’s (standards),” he said.

“(The prosecution) never proved that there was any standard that was required to be followed.

None of the agencies require a physical check.”

He said while ACECQA set out a standard of excellence, there was no baseline supervision policy that required a minimum number of cot checks to be done, nor detailed how they should be done.

In 2014, the preschool was inspected by officers from ACECQA who found that the facility met its standards, Mr Agius said.

“How is it that (Mr Averre) can say something is deficient if there’s no evidence as to what it should be?” he questioned.

“It is not in anything from ACECQA, nor was it raised by the inspector in 2014.

“In fact (supervisors and educators) are specifically told ‘do not go in the room unless (the children) are awake’.

“The absence of something doesn’t prove beyond a reasonable doubt a failure of safety. It is our submission that the supervision was adequate because there is nothing to compare it to.”

Mr Averre conceded there was a “deficiency in the policy” at the time.

Judge Ross Hudson adjourned the matter to February 13 for judgement.