Mandatory reporting of suspected child abuse cases – the worldwide debate continues

In previous blogs we have commented upon the continuing debate about the pros and cons of mandatory reporting of child abuse and we have commented upon the work IICSA has done to consider whether or not to make recommendations to introduce mandatory reporting. We will not know IICSA’s final thinking until its final report is published. In the meantime, in Hong Kong the issue is also being considered and the debate there provides a timely opportunity to review how mandatory reporting has worked in Australia.

Mandatory reporting of suspected child abuse is a statutory requirement in at least 70 jurisdictions worldwide. However, there is currently no general legal requirement in the UK on those working with children to report known or suspected cases of child abuse or neglect. Statutory guidance does stipulate that individuals that work with children and families should report to their local authorities suspicions of abuse or neglect related to children. In 2016, the UK government introduced legislation in parliament which proposed placing people who work in roles that bring them into regular contact with children under a statutory duty to report or act on suspicions of child abuse or neglect.

Two possible models were outlined in a consultation document that was published by the Home Office and Department of Education in 2016. Following a comprehensive consultation, ministers concluded that the evidence and responses received did not demonstrate that either of the models would sufficiently improve outcomes for children. The measures carried a risk of creating onerous burdens which could hamper professional judgment. It was also noted that England already had a higher rate of reporting than some countries where statutory duties already exist.

Mandatory reporting policies are currently being considered in Hong Kong with proponents of reform drawing attention to Australia and the successes of their existing policies. Some Australian states have had mandatory reporting laws in place for up to 50 years. For instance, South Australia became the first state to introduce mandatory reporting duties for suspected child abuse following an amendment to the Children’s Protection Act in 1969. On a national level,  the Family Law Act, enacted in 1975, clearly set out obligations to notify child abuse suspicions. Australian regional governments devote considerable resources to investigate reported child abuse cases and this is reflected in the 120% increase in confirmed cases between 1999 and 2019. The National Framework on Child Protection, released in June 2009, encouraged further universal prevention and early intervention mechanisms.

Although there are variations in details, the mandatory reporting policies across Australia share the following common features:

  1. Reporting duty on select professionals: teachers, police officers, doctors, and nurses are classified as “mandated notifiers” due to the regular direct contact they have with children. Some states also impose the duty on social workers.
  2. Scope of abuse subject to reporting: known or suspected cases of physical and sexual abuse are deemed as must-report offences across the country. Five states also include emotional abuse and neglect as within the scope of mandatory reporting duties. Notifiers must report cases if they believe on reasonable grounds that the abuse could inflict significant harm on a child.
  3. Legal protection for notifiers: the identities of notifiers are kept confidential. Notifiers are also entitled to legal immunity from civil and criminal proceedings and from negative consequences at the workplace if reporting is made in good faith.
  4. Failure to report penalties: professionals that fail to comply with reporting duties are subject to fines across Australia (except in New South Wales). Maximum fines range from A$1,410 (£798.66) in Victoria to A$26,000 (£14,727.03) in Northern Territory. In the Australian Capital Territory, an offender could also be subject to a maximum of 6 months imprisonment.
  5. Reporting channels: child protection departments have dedicated 24-hour reporting hotlines for child abuse cases. Notifiers must provide details of suspected cases such as a description of the abuse incidents, family history of victims, and further risks faced by the child to child protection officers (CPO).
  6. Follow up actions: The CPOs will initiate investigations into cases. Substantiated cases will be provided with intensive family support services. If a child is deemed to be unsafe in their homes, CPOs will intervene as a last resort. Care and protection orders and out of home care was provided to 1/4th of children in substantiated cases due to safety concerns in 2018-2019.
  7. Legal support: Family courts throughout Australia introduced fast-track mechanisms for cases involving serious physical or sexual abuse in order to speed up trial time frames to within six months of the commencement of proceedings. The same judge will manage the entire legal proceeding and independent lawyers will be assigned to represent the victims with the provision of uncapped legal aid funding.

Consequently, notifications of child abuse surged by 337% in 20 years to 451,200 cases in 2018-2019. Around 342,600 of these notifications required support services from child protection departments. Of these, around 15% were deemed to be unsubstantiated and partly due to confusion as to “reasonable corporal punishment” in parenting. A further 62% were described as relatively mild incidents requiring only the provision of advice or referral services. However, 14% of these were categorized as serious requiring intensive case management and family support services.

The Australian reporting frameworks have received acclaim from policymakers worldwide as being effective in identifying abuse cases that would otherwise go under the radar. Although these policies and services have resulted in a significant increase in government expenditure (A$1.6 billion or £906 million in 2018-2019), the mandatory reporting system in Australia is seen to have facilitated early identification of child abuse cases and enhanced social awareness of child protection. Academics are also quick to point out that long term economic and social justice far outweighs any short term costs.

From 1999-2019, new cases of child abuse reported to the Social Welfare Department (SWD) in Hong Kong went up by 75% to 1006. Under the existing system of voluntary reporting relevant professionals such as doctors, teachers, and social workers, do not have a mandatory duty to report suspected cases. Although the SWD has distributed procedural guidelines on how to handle child abuse cases, the system of voluntary reporting is described as being too passive and remedial.

Under reporting in Hong Kong is rife amongst even professionals due to concerns over a lack of sufficient evidence and a fear of causing more harm than good to both victims and families. As a result, in October of 2019 the Ombudsman suggested mandatory reporting to try and improve the system. In addition, the Law Reform Commission is deliberating over a new criminal offence for responsible persons (such as parents and carers) that fail to protect children under their care.

Detractors of policy reform in Hong Kong highlight many implementation concerns. They says it is too difficult to differentiate between corporal punishment in parenting from genuine cases of child abuse. They are also concerned that an upsurge in unsubstantiated cases will overload the child protection system and create too much pressure on public finances. In June 2020, the SWD indicated that implementation of local mandatory reporting would require at least 70 new permanent posts for investigation. Two-fifths of surveyed doctors have also expressed an unwillingness to engage with the court or legal systems as a result of suspected cases of child abuse.

The debate as to the value of mandatory reporting laws in Hong Kong is alive and this is an area of policy that will continue to receive a lot of attention and consideration in the coming months and years.


Written by
Abhinav Parameshwar at BLM
Abhinav.Parameshwar@blmlaw.com

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