IICSA’s final report recommendations fail to address its own reasoning

IICSA’s recommendation for mandatory reporting makes little sense. It is also contrary to the evidence and reasoning the inquiry includes in its own report.

This article is a summary of the detailed: Mandate Now two column review of the key recommendations made in the final report of the Independent Inquiry into Child Sexual Abuse.

Deserving of its own article is this: IICSA’s seeming misunderstandings of law contained in its final report.

The inquiry (almost certainly correctly) concludes that child sex abuse is very much under-reported. IICSA quotes estimates from a document published by the Centre for Expertise on Child Sex Abuse that “the number of children abused in a single year is around 500,000”^[1].

The report states:

‘As set out in the UK government’s Tackling Child Sexual Abuse Strategy (2021):

“Over 83,000 child sexual abuse offences (including obscene publications) were recorded by police in the year ending March 2020, an increase of approximately 267% since 2013. Of these, around 58,000 would be considered contact offences, which have increased by 202% in the same period.”’^[2]

If the 500,000 per year estimate is correct, then only 11.6% of contact CSA is even being recorded.

The report stated that “the Inquiry agrees that it is difficult to measure accurately the scale of child sexual abuse in England and Wales. The Inquiry is in no doubt, however, that the scale of abuse and exploitation is considerably greater than is currently recorded by the statutory agencies. This was a conclusion in nearly every investigation conducted by the Inquiry.”^[3]

Undiscovered and under reported child sexual abuse is the context in which all of the inquiry’s recommendations need to be considered, particularly its recommendation for mandatory reporting. Child sexual abuse cannot be stopped unless and until the statutory agencies learn of their suffering.

Section C.2 of the report (starting on page 151) summarises “The current system for safeguarding and child protection”. A key point is that “Although the statutory agencies have well-rehearsed responsibilities, other institutions do not.”^[4] The report points out that “Statutory inspection activity does not always identify poor practice” and that “Some institutions such as supplementary schools or out of school settings receive little, if any, independent assessment of their child protection practices. There is no power to compel them to have child protection policies and no power for existing inspectorates to inspect the quality of the services provided.”^[5]

The report states “Institutions frequently valued reputation, including personal and professional reputations, above the interests of children. As a result, whether by design or carelessness, allegations of child sexual abuse were often marginalised.”^[6] This happened even where abuse was known about. “Many people within the institutions examined by the Inquiry knew, or should have known, that serious allegations of child sexual abuse had been made in circumstances where the institution bore some responsibility for the child’s welfare.”^[7]

As a result, the report states “As set out further in this report, the Inquiry recommends the introduction of mandatory reporting for relevant individuals and the establishment of Child Protection Authorities (CPAs) for England and for Wales.”^[8]

The inquiry has noted that “The introduction of mandatory reporting in other jurisdictions has led to an increase in the number of referrals made about child abuse to authorities and in the number of children subsequently identified as being in need of protection from sexual abuse.”^[9] Various examples of mandatory reporting laws are given. In particular, the experience of Western Australia is noted (our emphasis added).

“In 2009, the State of Western Australia introduced legislation giving doctors, nurses, midwives, teachers, the police and boarding supervisors a statutory duty to report any reasonable belief of child sexual abuse. Analysis of reporting trends in the three years prior and the four years following enactment found that, on average, following the introduction of mandatory reporting the number of children identified as in need of protection from sexual abuse doubled. This means that the law enabled children’s services to provide help to more of those children who needed it.”

The legislation that introduced mandatory reporting to Western Australia was “The Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008”. Paragraph 124B under the heading ‘Matters concerning sexual abuse of children to be reported by certain persons’ states that if the ‘certain persons’ prescribed as mandated reporters believe or form a belief on reasonable grounds that a child (i) has been the subject of sexual abuse or (ii) is the subject of ongoing sexual abuse, a report must be made. A criminal sanction and a fine are applied for failure to comply.

Recommendation 13 of the IICSA report identifies three types of evidence that could be subject to a mandatory reporting law: where someone might “receive a disclosure of child sexual abuse from a child or perpetrator; witness a child being sexually abused; or observe recognised indicators of child sexual abuse”^[10] These categories of evidence each need to be considered in turn.

Concerning where someone might “receive a disclosure of child sexual abuse from a child”, the report indicates that this is relatively rare. The report mentions “Research by the All-Party Parliamentary Group on Adult Survivors of Childhood Sexual Abuse indicates that the average time for victims and survivors to disclose sexual abuse is 26 years.”^[11] If the average delay is 26 years, it is reasonable to suggest that the proportion of victims who disclose while still children is small. The report describes “large numbers of adult victims and survivors who … were not able to disclose the abuse as children”^[12]

Disclosure of child sexual abuse by a perpetrator is even rarer, the inquiry report offers no examples of this having occurred, though it does discuss the possibility of disclosure in religious settings during sacramental confession.^[13]

Witnessed abuse is also rare. The report states “Child sexual abuse almost invariably happens in private. The chance of the abuse being witnessed is therefore likely to be rare”.^[14]

It is therefore “recognised indicators of child sexual abuse” which are the most common kind of evidence which can lead to a reasonable belief that abuse is occurring. The report concludes that the following elements are needed in a mandatory reporting law.

“The core elements of the Inquiry’s recommendation are that:

as well as an obligation to report witnessed or disclosed child sexual abuse, there should be an obligation to report abuse based on well-recognised indicators of child sexual abuse;
criminal liability should attach where there is a failure to make a mandatory report in certain specified circumstances;
those engaged in regulated activity or positions of trust as well as police officers should be subject to a law of mandatory reporting; and
reports should be made to local authority children’s social care or the police.”^[15]

Notice that there is no distinction given at this point between the different categories of evidence: witnessed abuse, disclosure, and well-recognised indicators.

In terms of both the evidence triggering a mandatory duty and the range of people covered by the duty, the paragraph above broadly follows the pattern adopted by most states of Australia which have introduced mandatory reporting laws.

And the report explains why it is so important that mandatory reporting is implemented. “Mandatory reporting laws are designed to facilitate the prompt and efficient reporting of child sexual abuse and to remove subjective filters of self-interest, fear, seriousness or credibility.”^[16]

The report explains why reporting indicators of abuse is especially important. “In many circumstances an individual working with children may recognise indicators of child sexual abuse that give rise to a reasonable suspicion that the child has experienced, or is experiencing, sexual abuse. It was evident throughout the Inquiry’s investigations, and supported by accounts provided in the Truth Project, that in a number of cases clear signs of child sexual abuse were missed or not acted upon. These included, for example, sexualised or sexually harmful behaviour, physical signs of abuse or consequences of sexual abuse such as pregnancy or sexually transmitted diseases. There should also be an obligation to report abuse based on well-recognised indicators of child sexual abuse.”^[17]

And yet, later in that same paragraph, all the good work is undone.

“Those indicators should be set out in detailed guidance that can be updated and amended as needed. However, the Inquiry acknowledges that identifying indicators of abuse is more complicated than witnessing or receiving a disclosure of child sexual abuse and so a failure in respect of this aspect of the duty should not attract a criminal sanction.”

The inquiry makes no attempt to explain why this is too complicated for England and Wales when it has already been successfully introduced elsewhere. It simply makes an unsupported assertion.

If there’s no criminal sanction, then for all practical purposes, this most important aspect isn’t mandatory. We are back in the realms of people merely being expected to report, without protection against a possibly hostile institutional leadership, and with nothing to overcome the “subjective filters of self-interest, fear, seriousness or credibility” that the inquiry has described. In other words, the position of individuals would remain as it is today which IICSA has clearly shown isn’t working.

In this context, a criminal sanction is not intended to be used very often. Just as the law on wearing seatbelts (and its associated criminal sanction) is not intended to result in the prosecution of a large number of drivers, the criminal sanction to back a mandatory reporting law is there to make it clear what behaviour is expected and encourage the law-abiding majority to act accordingly. The fact that “identifying indicators of abuse is more complicated than witnessing or receiving a disclosure of child sexual abuse” is not a reason to omit the criminal sanction altogether, it simply means that prosecutions are in practice only likely to take place in very clear-cut cases. Any prosecution would need to pass the CPS two-stage test: that there is enough evidence to provide a realistic prospect of conviction, and that a prosecution is needed in the public interest.^[18]

Also, the inquiry does not explain how it expects this sanction-free mandatory-in-name-only reporting to make any difference. In fact it is fairly certain that it expects this arrangement will make no difference relative to the status quo. The report describes how “In 2016, the Welsh Government enacted a duty for specified public bodies to report children at risk of harm. Under section 130 of the Social Services and Well-being (Wales) Act 2014, specified public bodies must inform the local authority if they have ‘reasonable cause to suspect’ that a child within the local authority’s area is ‘at risk of abuse, neglect or other kinds of harm’.”^[19] However “The Inquiry was informed that, by November 2020, the introduction of the referral-reporting duty in Wales had not led to ‘a substantive change in practice’.”^[20]

It is particularly important to note that regulated activities (particularly teaching which is the largest) are places where children spend most time outside the family. It is personnel in these settings that have the most opportunity to recognise changes in a child’s behaviour that indicate abuse could be happening. The inquiry’s approach to these all important ‘sentinel’ reporters is confused.

“The Inquiry’s scope did not include sexual abuse of children which occurred within a family setting, as opposed to within an institution. It did, however, include circumstances in which a child disclosed familial abuse to a person in an institution, such as a school or a church, and that person or persons failed to act upon this information or otherwise failed to identify child sexual abuse.”^[21]

In fact, IICSA’s Terms of Reference were to “consider the extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation”^[22]. This is not limited to sexual abuse which has occurred within the institution, but rather applies to the institutional response to signs of abuse, wherever that abuse may have occurred. The Truth Project took details of the relationship of the perpetrator to the Truth Project participant, and found that 47% of participants were abused by a family member.^[23] The inquiry has also found that abuse by a family member or foster family member on average starts at an earlier age than abuse by other perpetrators.^[24] Younger children are less likely to have the vocabulary to describe their abuse, and it is likely to be particularly difficult for a child to disclose abuse by a family member to someone outside the family, since the opportunity for coercion or psychological manipulation to keep the victim quiet is much greater. This means that sentinel reporting of recognised signs of abuse is vitally important for familial abuse (by far the largest single category), even more than for other perpetrators.

In conclusion, IICSA has described in great detail the following:

That child sexual abuse is grossly under-reported at present.
That a mandatory reporting law is needed to overcome this.
It has described who the law needs to apply to.
It has described the kinds of evidence (witnessed abuse, disclosures, and observing recognized indicators of abuse) that need to be covered by the law.
It has clearly shown that witnessed abuse and disclosures are both rare relative to observable recognized indicators of abuse. This is particularly so for victims of abuse by a family member.
It has pointed out the need for a sanction to overcome people’s hesitancy to report, and that a duty without a criminal sanction has been found to make no difference.

But it has then failed to follow its own reasoning by excluding the vitally important ‘observing recognized indicators’ from its recommendation for mandatory reporting supported by criminal sanction.

It is completely baffling.

In conclusion, IICSA has described in great detail the following:

Home Office “MR” consultation #2. It’s not MR!

IICSA’s final report first anniversary – government is looking on and doing little

Our submission to the Home Office consultation: Mandatory reporting of child sexual abuse

“The mountain hath laboured and brought forth a mouse.” The Government Response to IICSA 22.5.23

Ideology stops government introducing well-designed Mandatory Reporting

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IICSA’s final report recommendations fail to address its own reasoning