IICSA – where to next for mandatory reporting in England and Wales

On the 29 and 30 April 2019 IICSA held its second seminar on mandatory reporting of child sexual abuse. The seminars were not formal evidence gathering sessions but rather an analysis of all the views expressed at the seminar.

The seminar was attended by representatives from government departments in England and Wales, third sector representatives, campaign groups, professional representatives and victims and survivors of child sexual abuse. The full list of participants can be found here.

The sessions looked at the pros and cons of introducing mandatory reporting in England and Wales and what the practical implications were of legislating in this very challenging area.

Mandatory reporting laws were first enacted in the USA in the 1960’s to deal with concerns that medical professionals were not taking appropriate action to respond to signs of physical abuse of children.

Australia introduced mandatory reporting laws in the 1960’s, again the thinking behind this move was that professionals dealing with children were not acting on signs of abuse of children and children were not coming to the attention of child protection services and so no preventive measures could be taken. While all Australian states and territories have provided for mandatory reporting for child sexual abuse, some have gone a step further and have provided that mandatory reporting laws apply to all forms of abuse and neglect.

Readers of this blog might remember that in a blog on 18/10/2017 we covered the introduction of mandatory reporting in the Republic of Ireland, at that time the then Minister for Children, Katherine Zappone announced her intention to commence all of the provisions of the Children First Act, 2015 to include the provisions in relation to the mandatory reporting of child abuse, which put mandatory reporting of child abuse on a statutory footing in Ireland.

Among the issues identified and discussed at the seminars are as follows:-

  • Whether there should be a different approach to the mandatory reporting of child sexual abuse compared to other forms of abuse and neglect;
  • There was a feeling that focusing solely on reporting child sexual abuse could lead to missing out on wider information which might be indicative of a child being sexually abused;
  • Others made the valid point that other types of abuse and neglect can be equally as damaging as sexual abuse and a different approach to sexual abuse ran the risk of creating a hierarchy of response, which was to be avoided;
  • Participants did not anticipate that mandatory reporting would prevent or discourage a child from disclosing abuse and that the main determinative factor in a child deciding to disclose abuse is whether they feel they are in a safe environment to do so:
  • There was a lack of consensus as to whether the non-statutory duties and policies currently in place in England and Wales were sufficient to encourage reporting, it was noted that while there has been a significant increase in the number of referrals over the last 10 years, there has been a decrease in the number of children being place on child care plans;
  • On the subject of whether non-recent child sexual abuse should be included in mandatory reporting there was also a difference of opinion with some saying that mandatory reporting should require institutions to report previously undisclosed incidents while others felt it should be left to the discretion of the adult victim and survivor to report;
  • There were also differing views on whether there should be consequences up to and including criminal sanctions for those who fail to report child sexual abuse in line with their statutory duties. The concern with introducing such sanctions was noted to be that they could result in a fear or blame culture developing and this might lead to an increase in a number of inappropriate referrals being made, it might deter professionals from working with children and it could discourage people who work with children to use their professional judgement when making decisions about the welfare of children under their care.

The seminars were presented with five different studies into the impact of mandatory reporting of child sexual abuse in various states in Australia and these studies demonstrated that there was a substantial gain to be made from the introduction of mandatory reporting. Legally enacted mandatory reporting had led to enhancing reporting outcomes for children, it had identified children who were at risk of being harmed and even when reports of child sexual abuse were found to be unsubstantiated the reports had identified other harms and risk factors in the child’s life.

The finding of these five studies did not support the concern of some of the representatives present that the introduction of mandatory reporting might lead to undesirable reporting and a significant increase of unsubstantiated referrals. However, existing evidence does indicate that mandatory reporting is associated with a greater number of referrals being made to health services and children in need of protection being placed under formal child protection orders.

In reflecting at the end of the seminars as to what action could be taken to improve the reporting of child sexual abuse in England and Wales it was noted that:

  • Changes had been implemented to improve reporting and response to child sexual abuse in recent years due to strengthening legislation around safeguarding with particular reference to the Children and Social Work Act, 2017;
  • There was recognition that Government had taken steps to create and improve a learning environment where professionals share best practice around safeguarding though there was more to be done in this area;
  • There is evidence that legislative mandatory reporting will only be successful if it is accompanied by investment in systemic responses to support implementation;
  • Statistics highlighted that the UK was behind other countries in supporting the implementation of mandatory reporting;
  • In addition to legislating for mandatory reporting there needs to be a cultural change so that the emphasis is on prevention and early intervention as well as reporting and to effect this culture change people need to be educated and trained so that they understand the role that they have to play in protecting children.

IICSA said that the seminars had provided it with information about the impact of mandatory reporting legislation in countries in which it has been introduced while also providing valuable insight into the possible advantages and disadvantages of different approaches to statutory reporting duties, particularly with regards to England and Wales. The seminars will inform IICSA’s wider consideration of the important issue of mandatory reporting of child sexual abuse and will be considered in conjunction with the evidence and information on this topic that IICSA is gathering through its investigations, the Truth Project and the recent survey of the Victims.

What is striking in the report from IICSA on these seminars is that they make no reference to the Government’s stated position, which is that it appears to be against the introduction of functioning Mandatory Reporting. It’s position is as set out in the ‘Reporting and Acting on Child Abuse and Neglect’ consultation, the DfE and Home Office proposed a ‘Duty to Act’, which falls well short of  mandatory reporting. In the course of this consultation in 2016 the Government accepted that “There is currently no general legal requirement on those working with children to report either known or suspected child abuse or neglect” but despite this fact there is no apparent urgency by the Government to introduce legislation in this area.

However, what seems certain now is that IICSA will have to address this thorny issue in its final report if not before and this is a can that cannot be kicked down the road forever if we as a society are serious about putting child protection at the centre of our public policy.

Written by Sharon Moohan sharon.moohan@blmlaw.com

A snapshot of progress of the IICSA

The next three hearings of the IICSA proceeded on 27 July giving more clarification about the investigations in to the Anglican Church; Lambeth Council; and Rochdale, Cambridge House and Knowl View. An overview of their progress is as follows:

Lambeth – “the scale of the disclosure exercise is genuinely enormous.” In addition to the CHILE (a previous inquiry) archive there are 100,000 items in the “Restore” archive (mostly children’s files), and 26,000 further boxes of material. Continue reading

Hearings, costs, music, dance and cadets

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Limitation in Scotland – including revival of old claims?

Last year the Scottish Government held a consultation on the removal of limitation in claims arising from sexual abuse. Since the consultation closed in September little has been said but it has now been announced that the recommendations will be progressed by the end of March. Continue reading