JonathanSkeptic

A year ago, we published an article “The Government’s useless Child Sexual Abuse Reporting law

Unfortunately, we now have to publish “The Labour Government’s useless Child Sexual Abuse Reporting Law”. Because the Labour government’s measure, in Sections 45-54 of the Crime and Policing Bill is almost identical to what the Conservatives proposed a year ago.

An effective mandatory reporting measure requires three things.

1. A statutory duty to report both known (i.e. witnessed or disclosed) child sexual abuse and reasonably grounded suspicions of child sex abuse
2. A modest criminal sanction for failing to fulfil the duty to report
3. Protection for mandated reporters reporting in good faith from any kind of retaliation for reporting.

The need to report suspected abuse

Child sexual abuse (being a private act) is very rarely witnessed. According to data from the ONS, children very rarely disclose sexual abuse to a person in authority – less than 10% will disclose rape or other contact sexual abuse to a person in authority at the time. And according to the NSPCC, those who do make some kind of disclosure are often indirect or incomplete in what they say, only half of disclosures are direct. So if mandatory reporting is limited to these cases, very few mandated reports will be generated. The great majority of cases documented by IICSA of abuse going unreported (sometimes for years or even decades) were of abuse that was suspected because of the behaviour of the abuser or of the victims, but where do direct disclosure was made by a child.

IICSA argued persuasively for mandatory reporting to apply to suspected as well known abuse, but lost its nerve in terms of including that in the final recommendation.

Neither the Conservative government nor the Labour government has included suspected abuse in its proposed mandatory reporting measure.

The need for a criminal sanction for non-reporting

Recommendation 13 of the IICSA final report specifically recommended that the statutory duty be backed by criminal sanctions for failure to report. IICSA also recorded a considerable number of cases of institutional hostility to reporting abuse “Leaders were sometimes more focussed on controlling what information about allegations of abuse became public rather than on ensuring authorities were properly notified so that allegations were investigated.”

IICSA described how a great many cases are not reported where knowledge or at least clear suspicions existed. It described the “desire to protect an individual or institution from reputational damage”. IICSA concluded that nothing less than a criminal sanction would change behaviour. For instance, it noted that the Welsh government had enacted a duty for specified public bodies to report children at risk of harm, but that this duty did not involved criminal sanctions for individuals who fail to comply with the duty. IICSA found that “the introduction of the referral-reporting duty in Wales had not led to a substantive change in practice”.

The Conservative government, when deciding on its approach after conducting further consultations after IICSA had reported, decided against a criminal sanction for non-reporting. It knew and documented the fact that the measure would have almost no effect. The Impact Assessment published by the Home Office stated that the rise in report was expected to be 2% – a trivial number given that most abuse (probably 85%)  goes unreported.

The Labour Government has copied the Conservative approach and chosen to have no criminal sanction for non-reporting.

DBS Referral for non-reporting

The Labour measure does differ very slightly from the Conservative approach. The Conservatives claimed that people would be referred to the DBS if they failed to report, but included no legislative mechanism for this to happen. Labour has included a legislative mechanism, but it is unlikely ever to be used and so is not going to change behaviour.

At present, under the Safeguarding Vulnerable Groups Act 2006, if a regulated activity  or an employment agency providing staff to a regulated activity (such as a school) believes that someone has harmed a child or is a risk to children, and decides as a result to sack them or move them from child-facing duties, or the person resigns first when they would have been sacked, then there is a legal obligation to refer that person to the DBS. Under the Labour bill, the same duty would apply if the person was sacked etc for not making a report of child sex abuse.

Some important things to realise about this

1. The decision to make the report is in the hands of the employer, and IICSA found that many employers are hostile to reporting child sex abuse.
2. The obligation to report only arises if the person is being sacked, moved from child-facing duties or resigns when they would otherwise have been sacked, only if harm to the child (or non-reporting of abuse in the new bill) is the specific reason for acting. If the employer doesn’t sack the person, or chooses to claim that there was a different reason for doing so then not only does the employer not have to make a DBS referral, but they cannot make a referral.

Those organisations that encourage proper reporting are unlikely to need to make a DBS referral for non-reporting. Those organisations that don’t are unlikely to want to make a DBS referral and so will engineer a situation where legally they don’t have to. Either way, this will have no effect.

Protection of reporters

Both the Conservative and Labour bills do a little better here. They make it clear that making a mandated report can’t  be considered to be a breach of confidentiality or other restriction on disclosure of information, and provides for an offence of “Preventing or deterring a person from complying with duty to report suspected child sex offence”.

There are three serious problems though with the offence as it stands

1. It only applies to attempting to prevent the making of a report required under the duty to report. Most of the reports we need are reports of suspected abuse rather than disclosed or witnessed abuse, but these reports are not subject to the duty to report, and so the offence of preventing or deterring a report does not apply here. Most reporters will remain unprotected whistleblowers.
2. The description of the offence allows for someone to persuade a reporter to delay making a report, so long as they don’t try and stop them making a report altogether. There is no time limit specified for the delay involved. It’sa very large loophole.
3. There is no protection for a reporter who makea areport from subsequent retaliation.

In this, the Conservative and Labour bills are identical.

The Labour bill is just as useless as the Conservative bill. It will have almost no effect on reporting. The government knows this and doesn’t appear to care.