On the 9/7/14 on the BBC Radio 4 Today Programme, the NSPCC announced what many mistakenly understood to be ‘U’ on their hitherto anti-mandatory reporting stance.
The BBC has said “The man leading a review into how the Home Office handled historical allegations of child abuse has said people who cover up such crimes should be prosecuted.”
David Cameron (PM), speaking during Prime Minister’s Questions later the same day, said: “Should we change the law so there is a requirement to report and make it a criminal offence not to report? The Government is currently looking at that and of course both reviews will be able to examine this particular point and advise us accordingly. I think it may well be time to take that sort of step forward.”
But we need to look carefully at exactly what it is the NSPCC has suggested. James Meikle in the Guardian made a pretty accurate report, one of relatively few in the media.
The NSPCC, however, made clear it was not advocating blanket mandatory reporting and in other interviews with the broadcaster said it was calling for something much more narrow – “wilful cover-up of abuse” – to prevent unfounded concerns being raised about people or organisations.
Alan Wardle, its head of corporate affairs, told Radio 4’s Today programme: ”We don’t think it should be across the board.”
There should be “quite a narrow approach” applying particularly to those in charge of organisations where children were away from home, such as boarding schools, children’s homes and hospitals, he said. These should be placed under a particular obligation because of the vulnerability of those they were looking after.
So let’s have a look at the NSPCCs proposal as stated on its website. The key to it is in the four bullet points. The first shows the area that NSPCC is looking at.
The scale of abuse that has been reported in the last couple of years in places like hospitals, boarding schools and children homes shows that the current system isn’t protecting children as it should.
It has become evident that some of our institutions are utterly failing to protect children, which shows the need for reform.
Hospitals, boarding schools, children’s homes. The institutions Savile targetted. And yes, they did fail. But Savile isn’t the sole failure of the system. Think for instance of the Catholic Church and how it has been able with impunity to cover up abuse.
The NSPCC needs to explain why it is that it thinks that children in these specific settings are deserving of the protection of mandatory reporting, while the vast majority of children not in residential settings do not deserve the same level of protection.
Some of these cases have involved abuse being covered up or swept under the carpet. This is morally indefensible and people should be prosecuted where this has happened.
The NSPCC is very late arriving at this point, but finally it agrees! that this sort of thing is morally indefensible and that prosecutions should follow.
The fact is that much abuse has been covered up simply because it could. There are no criminal sanctions for failing to report a crime, even when the crime is child sex abuse, and you are running the school which is caring for the child affected.
So, the NSPCC now sees a case for criminalising the act of cover up; that is, the failure of an individual within an institution responsible for the care and well-being of a child, to put the safety of a child before the disclosure of what they know to be a criminal act.
We want to discuss the details with people in government and other experts, including which institutions it should apply within. But allowing abuse to be covered up or swept under the carpet cannot be allowed to continue.
This is where the “devil is in the details” phrase is apt. In this case, the key detail is that phrase “the disclosure of what they know to be a criminal act”. People don’t know that a criminal act of child abuse has taken place unless they witness it (very rare) or the perpetrator admits it and there is a signed admission (even rarer). In all other situations, you don’t know, you just have a suspicion of varying degree depending on what you have seen or what a child has disclosed.
A reasonable suspicion is a justified basis for starting an investigation, and it is mandatory reporting of reasonable suspicions which MandateNow is calling for. But if a report doesn’t have to happen until a person already knows, then few investigations will ever get started. So by restricting mandatory reporting to cases where people “know” that a criminal act has occurred, you eliminate almost all practical situations from the scope of the NSPCC’s proposal. Moreover, if you introduce mandatory reporting with such a narrow scope, you are likely to reduce the reports that come from situations outside the mandatory scope, because the law is clearly saying that not reporting in those situations is acceptable.
Also, it seems very strange that the NSPCC wants to restrict the new law to just certain institutions – the initial idea is hospitals, boarding schools and children’s homes. It’s a bit like concluding that you need a law on drink driving, but then deciding it should be applied only to lorry drivers.
In addition, because we see particular risk in more closed institutions (such as boarding schools and residential care homes) we also wish to explore if there are further corporate, legal liabilities that should be placed upon them.
This is so vague as to be pretty meaningless. But we are interested in their use of the term “closed institutions”. One gets the impression that they think that boarding schools are places where the children have little contact with their parents or the rest of the outside world. This might have been true 40 years ago, but with mobile phones and internet, it is certainly not true now. There are almost no closed institutions in the sense that boarding schools used to be, something trumpeted at every possible opportunity by the Boarding Schools’ Association.
In practice, it is social isolation which commonly renders children vulnerable to grooming and abuse, and social isolation can occur in any school. It is quite alarming that this seems not to have been recognised by NSPCC.
The last part of the statement is also revealing:
None of this substitutes in any way for the emphasis we will continue to place upon promoting open cultures within institutions where well trained staff can speak up and speak out about their concerns without fear of the consequences. It is precisely the lack of mandatory reporting which means that trained staff too often cannot “speak up and speak out about their concerns without fear of the consequences”.
Consider this scenario: A junior teacher sees in the distance a senior colleague and a female pupil sitting on a bench in a remote corner of the school grounds. Their behaviour appears to be intimate such as holding hands. As the teacher approaches, they notice him and hurriedly separate, walking off in different directions. The teacher reports the incident to the head, who says he must have been mistaken, and firmly tells the junior teacher to mention this to nobody.
You are that junior teacher. You have a very reasonable suspicion that an inappropriate relationship exists between the senior teacher and the girl, and that the girl is therefore at risk, but you have not seen any crime committed. What do you do? Do you turn whistleblower and phone children’s services yourself, or do you obey your head teacher? Most teachers understandably will do the latter, having a mortgage to pay and a family to support. It was by ignoring signs like this that Bishop Bell School failed to take action before Jeremy Forrest fled to France with a pupil he was having an affair with.
If the teacher is a hero and decides to call children’s services off his own bat, and they call the school asking to investigate, then it will take the head teacher about 3 seconds to work out who called them. The junior teacher will not last long in his job. Whistleblowers are usually sacked for the sin of ‘doing the right thing’, unless management has actually done something criminally wrong.
This sort of thing does really happen. Listen to this chilling account from a special needs teacher.
This is where mandatory reporting should come in. Take the same scenario, but where there is a law on mandatory reporting of reasonable suspicions which applies to all schools and other institutions caring for children.
The head teacher would now be far less likely to try and squelch the report. Few people are willing to risk jail in order to cover up somebody else’s suspected abuse. So in all probability the report will get forwarded to the authorities, which is what we want to achieve.
In the unlikely event that the head is being extremely reckless and still tells the junior teacher to tell nobody, the junior teacher is in a much stronger position. If he now phones children’s services, he has two incidents to report: the original child protection concern and the criminal action of the head teacher in not passing on a reasonable suspicion. The junior teacher is much less likely to be sacked since he was following the law in making the report.
But NSPCC clearly isn’t interested in any of this. Peter Wanless is quoted later on the NSPCC page as follows:
However, our focus for criminalisation is on cover up, not the merest suspicion that a child might have been harmed. Evidence from elsewhere shows that such arrangements can over emphasise process and onward referrals many of which never get properly dealt with, at the expense of focused action to support and protect those children most in need.
It is an extraordinarily dismissive comment from the CEO “the merest suspicion that a child might have been harmed.” What is the definition of the ‘merest suspicion’? It seems to be an NSPCC attempt to denigrate and dismiss the veracity of reports made under mandatory reporting. It goes hand in hand with ‘unintended consequences of mandatory reporting’ which is the latest incantation from Department for Education media Department. But it must be pointed opout that the ‘known consequences’ the current system of ‘discretionary reporting’ is the continuation of known and suspected abuse being unreported which is at last starting to be revealed and which led to the Child Abuse Inquiry being announced by the Home Secretary.
But even more amazing is that Mr Wanless’s statement got past press officers and other senior people at NSPCC without being noticed. Such a cavalier attitude to the safety of children is troubling coming from an organisation whose strap line is “Everything we do protects children, prevents abuse and transforms society so it’s safer for all children.”
The second sentence, about services being swamped, is a rehash of the NSPCC’s previous paper opposing mandatory reporting in all its forms, which was dismantled by us some months ago. Quite simply, the evidence isn’t there to justify the assertion.
So let’s consider a few recent cases which I’ve discussed here on this blog.
The NSPCC proposal would have done nothing for the decades of abuse at St Benedict’s School, which was finally exposed in 2009, because the school is non-residential, and partly because (to the best of our knowledge) criminal acts were neither directly witnessed by other staff nor admitted to by their perpetrators.
The NSPCC idea might have affected Downside School, in that the school consulted its lawyers to see if they had to report the admitted abuses of Richard White, and were told “no”. It’s reasonable to suppose that had mandatory reporting of known abuse been in place, the lawyers would have advised differently and the school would have acted accordingly. White would therefore have been caught some 20 or so years before he actually was.
The NSPCC proposal would have done nothing to help prevent the death of Daniel Pelka. His emaciation, constant hunger and unexplained bruises were noticed by his (non-residential) primary school, but not passed on as child protection concerns. However, no crime was witnessed, so the abuse was not known, merely suspected.
And it would not have helped protect the children of Hillside First School, where Nigel Leat abused for 14 years. Eleven separate reports were made to the head teacher by staff concerning suspicious behaviour by Leat, but none was passed on by the head teacher to the authorities. Again, no crime was witnessed.
Nor would the victims of Bruce Roth have been helped. Suspicions about his behaviour were known at Kings School Rochester but not reported to the authorities, and Roth was permitted to move to Wellington College with a good reference. Roth abused pupils at both schools.
You need mandatory reporting in cases where somebody knows or suspects, or has reasonable grounds for knowing or suspecting that abuse has occurred. “Reasonable grounds” is a well-established legal term, and prosecutors aren’t going to be interested in going after marginal cases where it is arguable whether somebody ought to have suspected. They will only be interested in clear cases where management for instance has suppressed and failed to pass on definite reports from staff. If you exclude reasonable grounds of suspicion, it would become almost impossible to prove that somebody knew that criminal abuse had occurred, and so nobody in practice would ever get prosecuted.
So the fact is that the NSPCC proposal as it stands would provide additional protection to almost nobody. Few or no prosecutions will result, and since in most cases it provides no legal protections to those who would report the NSPCC proposal does nothing to help its own stated objective of “promoting open cultures within institutions where well trained staff can speak up and speak out about their concerns without fear of the consequences”.
In other words, the NSPCC proposal is a disguised recommendation to maintain the status quo and is now exposed for what it is.