Mandate Now review of NSPCC Submission to the consultation on reporting and acting on child abuse and neglect which closed on 13 Oct 2016 :
Mandate Now review comments are italicised.
The submission appears to have much more to do with the relationship the NSPCC has with Government than it does with the effective protection of children by Regulated Activities. Its support for the Government’s preferred option of ‘Duty to Act,’ which relabels the status quo with the prime objective of keeping any increase in referrals to a minimum, indicates the charity’s strapline ‘every childhood is worth fighting for’ is in doubt.
- NSPCC is concerned that mandatory reporting will identify more abused children than social services can cope with.
- Rather than calling for resources to help these newly-identified abused children, it opposes the general application of mandatory reporting so as to protect services operating at the existing level. NSPCC appears more concerned to protect Local Authority Children’s Services from overload than it is to protect children.
- NSPCC supports a government suggestion for what the consultation terms mandatory reporting, but only for “closed institutions” (settings with beds) which affects very few children and ensures a minimum increase in possible referrals. e.g. hospitals, boarding schools.
- NSPCC supports the “Duty to Act” proposal even though it acknowledges that the proposal is so vague that it is not clear what action is expected in any situation.
- While supporting “Duty to Act” NSPCC offers no suggestions about how the proposal can be clarified to make it viable. Instead it offers to assist the government with advice offered in private and gives no public indication what that advice will be.
- NSPCC supports disciplinary sanctions for most examples of failure in the Duty to Act. Since disciplinary sanctions are already available and require no new law, the NSPCC is in effect saying that no change in the law is needed in most cases.
- The only situation where NSPCC proposes a criminal sanction is where institutions cover up known (as opposed to merely suspected) abuse. The number of cases where it can be proved that abuse was both known and covered up will be vanishingly small and will have no effect on overall child protection culture.
- The NSPCC offers no explanation for, on the one hand, supporting the introduction of Mandatory Reporting for FGM, but not for suspected sexual abuse, physical abuse or neglect.
- The NSPCC supports proposals that add complication to an already complex and dysfunctional child protection framework in Regulated Activities and there is a dearth of evidence to support this Government proposal or the NSPCC’s support for it.
NSPCC response to the consultation on reporting and acting on child abuse and neglect
Every child should have a childhood free from abuse. To achieve this we must improve reporting and action on child abuse and neglect. Too many cases have illustrated what can happen if people do not report concerns or action is not taken. This is not good enough and survivors of abuse deserve better. We must take action to stop cover-ups where people have been unable or unwilling to speak out and those in charge have chosen to turn a blind eye or worse.
To be effective, any reporting system must:
- promote the best interests of children;
- be part of a strong end to end system where there is recognition of concerns, clear reporting processes, appropriate assessment, and effective intervention; and
- be supported by robust intervention backed up by appropriate sanctions in cases where there is clear failure.
This is a “motherhood and apple pie” statement with which nobody will disagree.
We have previously set out our support for restricted mandatory reporting specifically in “closed” institutions where there are greater risks that the interests of the institution might be placed above the safety of a child. But we have concerns about the risk of counterproductive consequences from a full form of mandatory reporting. In particular, we have concerns that the application of full mandatory reporting would not always be in the best interests of the child and would not come with resources sufficient to be confident that effective help could be given where and when it is needed.
This is an argument against any variety of reporting, not just mandatory. There are two parts to it.
The first is that NSPCC argues that reporting might not be in the interest of the child, though tellingly does not give examples. There is nothing unique about a report from a mandated reporter that would justify this concern specifically in the context of mandatory reporting. The second is the argument that a report is undesirable if there are not the resources to take action. Again there is nothing in this argument that is unique specifically to mandatory reports.
It is hard to credit that the NSPCC actually believes its own argument. We have the country’s only statutory child protection charity arguing against bringing child abuse concerns to the attention of those with the authority and training to protect the child. They are doing so in part on the assumption that the resources to act are unavailable and that NSPCC is not even prepared to try and make the case for ensuring that the resources are found.
Moreover, by arguing both that mandatory reporting is a good idea for what it calls “closed institutions” and that there would not be sufficient resources to address the reports that would be generated if mandatory reporting were applied to greater percentage of regulated activities, NSPCC is implicitly admitting that mandatory reporting does work and would protect children.
We are attracted, therefore, by the alternative proposal in the consultation paper for a Duty to Act. We think that this may make it more likely that children are given the support they need according to their circumstances and it leaves professionals with some discretion to decide and record what action is appropriate (which could include reporting a case to the appropriate authorities). We would welcome the opportunity to work with the government on the potential development of a Duty to Act as there are significant details that need more working through to ensure effective design and implementation.
So, the NSPCC isn’t prepared to say in public how it thinks the Duty to Act proposal should be refined. That would make it accountable to others who might review or critique their proposals. Instead, it proposes to advise the government in private.
Below, we set out what we consider to be the characteristics of a good reporting system, and then respond to the Government’s mandatory reporting, duty to act and enforcement proposals in light of this.
1. A reporting system that promotes the best interests of children
The NSPCC is clear that any system for reporting abuse or neglect should always be focused on promoting the best outcomes for children. This requires a system where:
- The best interests of children are the primary consideration at every stage of the process.
- Children are confident that their wishes will be listened to, feel that they are able to ask for help, and feel able to trust practitioners with disclosures of abuse or neglect.
- Children are helped to know what abuse is, that it is unacceptable, and never their fault.
- Families feel able to ask for help without fear that this will lead to a stigmatising intervention from statutory services.
- Adults – including professionals working with children – are able to recognise abuse and to respond appropriately.
- Adults – including professionals working with children – feel free and confident to share information when this is in the best interests of the child.
- There is sufficient flexibility to support children in a way that helps them the most. Each case is unique, and the interventions, support systems, or services required to help families will depend on a range of factors.
- Early help is available to offer support and advice when problems first arise.
The interests of children are best served when the child is well informed and enabled to disclose on their terms and at their own pace. Practitioners and organisations must be empowered to facilitate disclosures that they can be confident will be acted upon speedily and in the best interests of the child. This means they need the flexibility to use their professional judgment within a clear set of expectations about how, when, where, and why a report should be made and what the likely consequences could be for the child in question.
The relationship that children might hold with a teacher, teaching assistant, doctor, or other trusted adult is an important part of helping children to feel safe, thereby enabling disclosure. If that individual was bound to report immediately on any signal of uncertainty, the quality of this relationship could be hampered.
Disclosing abuse can be a slow process for children. Research by the NSPCC  on disclosing abuse has highlighted that children will often test the responses of adults around them by making a series of partial disclosures, which build over time into a full disclosure. For example, a child may share a small amount of information which could be a concern but if this triggers a response that is overwhelming for the child, it could result in them refusing to disclose any further information. In such cases the practitioner will want to build trust with the child in order to make them feel safe and able to share their experience.
There are, of course some situations that require an immediate report – for example where a child discloses an immediate threat to their safety, or where a practitioner has reason to believe a child is in immediate danger. A police officer visiting a home on a domestic abuse call may find children at immediate risk of harm and may need to remove the children to protect them.
The vast majority of children who are sexually abused do not disclose abuse in the immediate or near aftermath of the abuse occurring, and most victims wait until adulthood before coming forward to authorities [5 Smith, N, Dogaru, C and Ellis, F (2015) Hear Me. Believe Me. Respect Me. A survey of adult survivors of child sexual abuse and their experiences of support services. University Campus Suffolk and Survivors in Transition.] The amazing thing about this whole section is that disclosure by a child at the time of the abuse is the only form of evidence that appears to be considered. NSPCC appears to take the view that a report should be made only when a child makes an informed decision to disclose and give permission for that disclosure to be forwarded to children’s services. Other forms of evidence (behavioural, medical, eyewitness) appear not to be considered at all. For instance:
- Teachers at Daniel Pelka’s school noticed his hunger, low weight and visible unexplained bruises.
- Staff and pupils at Bishop Bell school witnessed events between Jeremy Forrest and a pupil which suggested that an inappropriate relationship existed.
- Staff at Downside School were aware that Father Nicholas White had abused a pupil and chose not to report the matter to the authorities. White was permitted to continue teaching even though the abuse was known (and admitted) and not merely suspected.
- Staff at Hillside first school Weston super Mare reported 11 of 30 concerns to the school Head over 15 years – none were reported to the Local Authority. [Extract from Serious Case Review for Hillside First School ‘Overview Report’ published on the 25th January 2012: ‘On one occasion a voluntary classroom assistant saw Teacher A sitting on some cushions in the library area with a child for approximately 20 minutes and observed that Teacher ‘A’ had an erection.’ Para 26, page 8.]
In practice, children mostly don’t disclose for a variety of reasons, so contemporaneous disclosures will remain relatively rare. Therefore, if abuse is to be fought effectively, other forms of concern need to be brought to the attention of the Local Authority. But the NSPCC appears against such concerns being forwarded since the child has not disclosed and has not given permission for the evidence to be shared. This leaves children at risk in ways that the NSPCC ought to be vigorously opposing.
It is interesting that NSPCC chooses to include a half-page plug for Childline in its response. Childline would not be subject to mandatory reporting or Duty to Act under the government’s proposals and so is not in any way relevant to the consultation. Perhaps Childline has skewed NSPCC’s thinking? Mandatory reporting is not a threat to Childline for which there will always likely be a place.
2. Mandatory Reporting
If the government chooses to implement a form of mandatory reporting rather than a duty to act, we believe that the focus ought to be where children face particular risk. Recent revelations about the abuse by people in a position of trust, powerful individuals and celebrities that occurred in closed institutions, such as boarding schools and hospitals, illustrate the terrible consequences when an organisation fails to listen to children or their staff, or do not have clear procedures in place to respond appropriately to concerns.
Judgment is at the heart of practitioner/child relationships if we are to foster trusting relationships in which abuse is spotted and children disclose. However, in “closed” institutions we are concerned that the isolation of children in these contexts can lead people to put the protection of an institution above the safety of a child, which is why we supported mandatory reporting in such contexts.
Our main concerns about the reporting of abuse in closed institutions are that:
- Children living in closed institutions have a smaller support network of adults that they can disclose abuse to and this limited network also means that there is a greater power imbalance between children and adults in those institutions.
- The pressure on adults working within a closed institution to protect its reputation is higher and there may be greater pressures to suppress or ignore allegations an alternate system is therefore required to circumvent this loyalty.
- Individuals seeking to harm children may be drawn to institutions in which they have access to children with limited access to other adults.
If such a proposal was adopted, work would be needed to ensure the definitions are right. We do acknowledge that a form of mandatory reporting specifically for closed institutions raises definitional difficulties. Any mandatory reporting system – in order to be an improvement on what exists now – requires very well organised delivery if all are to be confident that reports will be well made and trigger timely, meaningful and effective responses where needed and not cause a host of problems where they do not.
Our support for this limited form of mandatory reporting is based on our view that this would help children to speak out about abuse, as well as simplify the process for professionals working within closed institutions where risks are elevated.
Boarding schools educate less than 1% of children in England and Wales. Limiting mandatory reporting in education only to boarding schools is essentially introducing more effective child protection just for posh children. Recent cases of abuse by people in a position of trust are by no means limited to boarding schools. The NSPCC’s earlier paper on mandatory reporting has neatly made a list of the categories of institution at which Jimmy Savile abused, and ignored all the rest.
These days, with children having access to the internet and mobile phones, the kind of isolation described here simply no longer exists. Even in hospital or boarding school children have the ability to talk to their parents freely. Children become vulnerable not though physical isolation but rather through social isolation, which can occur no matter what kind of school they attend.
The temptation to protect an institution’s reputation is not limited to those schools where there are beds. Nor do failures to report abuse arise solely from a desire to protect an institutional reputation. An example is Hillside First School (a local authority maintained primary school, not a boarding school) at which Nigel Leat abused for many years. Behaviour of concern was noticed by staff on at least 30 occasions. Eleven reports were made to the head teacher. None was forwarded to children’s services. Leat was caught when a child told her mother who contacted the police directly.
The NSPCC position on mandatory reporting within closed institutions only appears to consider abuse that is perpetrated by those in a position of trust within the institution. It ignores the fact that the vast majority of child abuse occurs within the family, but evidence of it can often been seen when the child is outside the care of the family, for instance while at school. The reporting of suspicions by staff of abuse arising outside the setting when evidence becomes available (‘sentinel reporting’) is of the highest importance, whether the evidence is a child’s disclosure or (as in the case of Daniel Pelka) other indicators.
However, the NSPCC considers that a mandatory system of reporting across the board would not achieve an effective reporting system as described above. We have accepted that mandatory reporting has its limitations and would not guarantee that reports to resource starved statutory authorities would be followed up. For example, it is the likely that full mandatory reporting would lead to an increased number of reports (based on evaluations from those countries where there is a mandatory reporting system), which could lead to less robust triage and result in further increasing already high thresholds for services, unless they are organised and resourced far better than is currently the case.
In the first sentence of the paragraph above NSPCC suggests that the form of mandatory reporting it thinks would be effective for boarding schools would not be effective elsewhere, but doesn’t say why or provide any evidence.
However in the second and subsequent sentences it suggests in fact that mandatory reporting would be effective elsewhere, to the extent that it would produce a large number of reports that children’s services are inadequately resourced to address.
The system failures that NSPCC goes on to describe are not failures of mandatory reporting, they are expected consequential failures resulting from what they anticipate to be the success of mandatory reporting generating additional reports and bringing more abused children to the attention of the authorities. The appropriate response to identifying these consequential failures is not to oppose mandatory reporting but rather to argue that if large numbers of abused children are being failed though lack of resources, then resources should be increased.
The NSPCC is suggesting that since the system at present resource levels can only cope with current levels of demand, we should avoid finding out about abused children who currently don’t come to our attention. This would appear to be a thoroughly immoral argument not worthy of Britain’s only statutory child protection charity.
This argument, if true, would apply to any initiative to increase reporting of abuse, including confidential helplines such as Childline. Taking the NSPCC’s argument to its logical conclusion, NSPCC should close Childline in order to reduce the burden on local authority children’s services!
The only reason this is not instantly obvious is that Childline is already known to identify abused children and so the immorality of closing it is clear. Mandatory reporting is a new measure not currently in effect and so the children who would come to light are not already known about. Ignoring them is easier but just as immoral if it is accepted that there are children in need of protection who would be reached by mandatory reporting if it were implemented. Just 1 in 8 victims of sexual abuse come to the attention of statutory agencies. [Children’s Commissioner – Protecting Children from Harm 2012]
3. Duty to Act
We are attracted, therefore, by the alternative proposal in the consultation paper for a duty to act. We think that this may make it more likely that children are given the support they need according to their circumstances and it leaves professionals with some discretion to decide what action is appropriate. The appropriate actions could include reporting a case to the appropriate authorities but they could also include a decision not to act or report at this stage based on the best interests of the child, and in such cases the decision could be recorded. The NSPCC considers a Duty to Act has the potential to support the development of a reporting system which is part of a strong end to end system that promotes the best interests of children. It could do this by supporting professional-led decision making on a case by case basis whilst also emphasising the need to ensure they proactively consider the best response, and by recognising that reporting alone doesn’t keep children safe and action is required as demonstrated in recent cases of CSE in Rotherham and the death of Daniel Pelka.
Reporting alone doesn’t protect children. That is acknowledged. But unless a report is made, Children’s Services remain unaware of the existence of a problem and are unable to act. It was this simple principle that prompted Northern Ireland to introduce its form of mandatory reporting following the Cabin Hill school inquiry. The largest single cache of evidence that Pelka was being abused was available to his school and was not passed on. While other failures occurred around Pelka this was the largest single failure, and merited a third of the Serious Case Review’s executive summary.
Moreover, the NSPCC appears to be suggesting a false dichotomy, that the choice facing us is between mandatory reporting considered in isolation, and all the other measures NSPCC can think of taken together. Clearly any measure designed to increase reporting (including things such as the NSPCC’s own #TalkPANTS initiative) will have limited utility if the result is that the reports are ignored because of lack of resources.
We would, therefore, like to see the duty to act worked out in more detail and are ready to help the Government in fleshing it out. In doing so we are concerned that a decision to act should be taken always in the best interests of the child. The Government has set out an outline of an approach and more detailed thinking is needed. The following issues, and others, will need further working through:
- If a duty to act is not linked to a particular action or outcome, how would practitioners know when they had fulfilled their duty?
- Given that different organisations operate under different thresholds, whose thresholds would be used as a standard?
- If there were no services that a child or family could be referred to, how would a duty to act be discharged?
- What standard of evidence would professionals be required to provide in cases where a professional had failed in their duty to act?
These are all very fundamental failings in the government’s ‘Duty To Act’ proposal. In Mandate Now’s view, these (and other) failings are so fundamental as to render ‘Duty to Act’ utterly unworkable as we have described from page 28 onwards in our submission. Instead NSPCC asks these fundamental questions about how it can possibly be made to work, offers no answers and yet supports the proposal.
4. Enforcement: robust methods of intervention if the system is failing
We have been, and remain, fully supportive of measures to address conscious cover up of abuse. This means making professional duties and their consequences more clear. An effective reporting system must be supported by robust intervention including sanctions on professionals in cases where there is clear failure.
We need to support and reinforce the need for employers and professional bodies to hold members and staff to account for their child protection duties and ensure that organisations and employers fulfill their responsibility to train, support, and pursue reports from their staff.
It is important that there are clear guidelines for practitioners working with children. Current guidelines should be reviewed and updated to ensure that there are clear processes in place, and that if practitioners fail in this regard, this could result in professional sanctions or a disciplinary procedure. Training should make the expectations that will guide decisions about their fitness to practice absolutely clear.
The NSPCC uses the word “clear” several times in the paragraphs above. Clarity is an essential prerequisite of accountability. Nobody can be held accountable for their actions unless what they were expected to do is clearly stated. This makes it all the more incomprehensible that NSPCC opposes mandatory reporting (where the required action is eminently clear) in favour of the extremely unclear Duty To Act proposal allied to its own policy that reporting is not at all necessarily the appropriate action to take when evidence of abuse becomes available.
Depending on the nature of the failure, sanctions (which could range from a restriction of duties, training and supervision requirements, or capability assessments, to dismissal and potential referral to the Disclosure and Barring Service) should be considered. In extreme cases, where a practitioner’s actions (or inaction) directly contributes to a child being harmed, then it may be appropriate to apply criminal sanctions (which currently apply to other areas of professional negligence).
Almost all these sanctions are already available under existing law, and the net result is that according to research for the Children’s Commission for England, seven out of eight abused children don’t come to the attention of local authority children’s services.
This is in fact a major shortcoming in the NSPCC’s position. It makes no attempt to analyse what sorts of evidence are available which might be reported, where that evidence is available and why so often it is not reported. Unless it does so, it is in no position to say what measures would be appropriate to rectify this.
Organisations play a pivotal role in creating an environment where children and staff feel supported reporting safeguarding concerns. When a serious safeguarding concern arises, or an investigation occurs, a reviewer may examine issues, such as whether the organisation had given the individual (or team) involved the right support. The training, support, management, and resourcing offered by an organisation would be interrogated, to consider whether the individual had the capacity to perform the duties expected of them. If it was found that an organisation had failed in any of the respects above, the organisation would be penalised for this failure.
At present, because there is no legal obligation to report abuse, a staff member who wishes to report is dependent on there being a supportive organisation. In the absence of that support, the staff member is a whistleblower, and puts his or her career at grave risk. The Duty To Act proposal doesn’t change this because nothing is described about the required action except that it be “appropriate”.
The NSPCC considers that a duty to act, built around these expectations, could help to ensure that organisations, as well as individuals, are clear about the level of training, support, and help that professionals should receive from their employers.
There’s an awful lot of “could” and “should” here. “Should” implies a degree of discretion that would be absent if the word “must” was used instead. If organisations are to have discretion on what they do in response to a Duty to Act, then there is in effect no scope for punishing an organisation for using its discretion in a way that others in hindsight disagree with.
In those instances where there is a deliberate attempt to cover-up concerns, or where an active decision was taken and it was understood that this would lead to the suppression of concerns, the NSPCC considers that it should be possible to hold organisations and individuals to account. We believe that a framework similar to wilful neglect could be a useful way of structuring this approach. Where professionals cover up crimes against children by consciously failing to report known abuse of a child this should be an offence.
This is simply a ‘stable door’ sop which sounds tough and delivers nothing. Duty to Act provides no legal protection for staff who remain whistleblowers. It is the worst of all worlds. Furthermore such a crime would be extremely difficult to prove. If this extremely rare scenario is the only situation where criminal (as opposed to merely disciplinary) sanctions would apply, then NSPCC is proposing a continuation of the existing arrangements where there is no legal duty to do anything specific in response to reasonable suspicions of abuse. It is being dressed up as something new in the “Duty to Act” proposal but if there is no specific defined action, no legal obligation to carry out that action and no criminal sanction for failing to do so, then in effect no new measure is being suggested. It is all window-dressing to fool the public into thinking something is being done.
This is a position that the NSPCC set out in 2014, and we believe such a backstop power will be important in ensuring those cases of deliberate cover up are dealt with properly.
The NSPCC strapline is currently :
In light of its submission perhaps this should be considered :
 https://www.nspcc.org.uk/globalassets/documents/information-service/policy-briefing-strengthening-dutiesprofessionals-report-child-abuse  P Miller & D Allnock, 2014, No-one noticed, no-one heard, a study of disclosures of childhood abuse, NSPCC.  ttps://www.nspcc.org.uk/globalassets/documents/information-service/policy-briefing-strengthening-dutiesprofessionals-report-child-abuse  https://www.nspcc.org.uk/globalassets/documents/information-service/policy-briefingstrengthening-duties-professionals-report-child-abuse
A .pdf version of the NSPCC submission to the consultation is available here: nspcc-2016-consultation-reporting-acting-child-abuse-neglect