During the week commencing 7th November, the Labour Party submitted its proposals to the Government Consultation titled : Reporting and acting on child abuse and neglect. In the 2015 Labour manifesto it said :
Here is our review of it. Our observations are indented in italics between the body of Labour’s submission.
Labour Response to the Consultation on ‘Reporting and Acting on Child
Abuse and Neglect’
1. Summary
In the Labour Manifesto 2015 we committed to, ‘introduce mandatory reporting of child abuse’. We have therefore focussed our response on how the mandate should be introduced. We have set out the pre-conditions, which we know from the responses we have received to be essential.
The Consultation offered an alternative to a compulsory Duty to Report. This broader Duty to Act included a voluntary option to report based on professional judgment. We do not support a voluntary reporting option. There is already a choice in existing law as to whether or not to report. The under reporting of child abuse would not be aided by a duplicate voluntary option.
This is fairly clear. Labour rejects both the Duty to act option and voluntary reporting, and supports mandatory reporting
The Duty to Report will strengthen the protection of professionals when making complex judgements about reporting child abuse and neglect to qualified and experienced social workers. While we were told sanctions should include a criminal penalty this was for reporters who deliberately and recklessly failed to report abuse or neglect. Evidence is clear that such a penalty has very rarely been used in jurisdictions with mandatory reporting. All reports made in good faith should be protected from civil and criminal sanctions.
Labour’s thinking looks slightly confused here. Labour is correct in saying that the duty to report will strengthen the protection of professionals when making judgements about reporting. But then it backtracks somewhat on whether it is supporting mandatory reporting (which if it is to be mandatory has to carry a criminal sanction) or merely supporting a criminal sanction for “deliberately and recklessly” failing to report. The latter would not provide the kind of protection reporters need. This is because if you limit the criminal sanction only to cases of reckless or deliberate failure, the message sent is that people only legally have to report a concern if it is blindingly obvious that abuse is happening. That is not going to provide the protection that reporters need or the impetus to act on some incidents.
For effective mandatory reporting the sanction (and the associated legal protection for reporters) must apply to reasonable grounds for suspicion of abuse so that those Local Authority Triage is able to independently inquire and assess the concern
The Duties in the consultation should not have been presented as alternatives. We reframe the Duty to Act in this response. It should focus on preventing children at risk suffering abuse or neglect. They are children in need of services and should not have to wait until matters deteriorate before they receive them. The pathway from report to a child’s needs being met will depend on the analysis by the recipient of the report, who must be a suitably qualified and experienced social worker. The analysis must include the scope to provide supportive and preventive services to a child in need of protection from the risk of significant harm and/or neglect. The Duty to Report should therefore result in either preventive, early interventions or in enquiries as expected under S 47 Children Act 1989 unless no further action is required.
Broadly speaking, it appears that Labour is redefining the Duty to Act in terms of saying that LA children’s services should carry on doing what they do now in response to the reports they receive (from mandated reporters or others), and be resourced appropriately for the purpose. That is an entirely sensible proposal. It doesn’t really need to be called “Duty to Act” and to do so when the government’s proposal of the same name is significantly different is to invite confusion.
2. Context
The context in which a mandatory reporting duty is introduced informs how that duty is introduced. The current context is of overworked and stressed staff both those expected to report and the proposed recipients; a lack of available, high quality and accredited training and a lack of overall capacity in the system to make the immediate introduction of a mandate to report viable.
The years of ‘austerity’ led by the Coalition and Cameron Governments have left local authorities with insufficient capacity to ensure little more than their statutory duties are met.
A good point well made. Mandatory reporting won’t do very much good if there is no capacity in the system to respond to the reports generated as a result. Mandate Now has always taken the view that mandatory reporting should not be considered in isolation but rather as an essential component of a functioning child protection system, and that systems for responding to reports of abuse will have to be adapted to cope with the increased levels of reporting anticipated from the introduction of mandatory reporting.
Deeply concerning is the recent attempt by Government to remove the statutory protections for children at risk of abuse and neglect and those in care, if asked to do so by a well-meaning local authority wanting to innovate. The scope for innovation within the law already exists (Localism Act 2011). Allowing innovation outside the law is unacceptable. To go down this road would be the antithesis of strengthening the law to protect children as is intended by the introduction of a mandate to report and our reframed Duty to Act.
This is not directly relevant to the subject of the consultation, but it is nonetheless making a justified point about the dangers of allowing Local Authorities to exempt themselves from their statutory duties.
If the Government really means its headline ‘Putting Children First’ it must invest in local delivery. This does not mean wasting public funds through allowing new providers into this ‘marketplace’ who will strip children’s services further by diverting funds into profit lines. Crippling local authority and other public service provision cannot continue.
Austerity, marketisation and deregulation have to be replaced by investment plus clarity, on reporting and action.
Again, political points are getting made here which are not directly relevant to the subject of the consultation. However, it is broadly consistent with the Mandate Now view that mandatory reporting by itself is not a magic bullet that will solve all child protection problems, but rather that it is a necessary component of a functioning child protection system.
3. Detailed response
3.1 Duty to Act
Already in place is S47 Children Act 1989 is a Duty to Act where the local authority, as a result of enquiries concludes that they ‘should take action to safeguard or promote the child’s welfare they shall take that action’
S10 Children Act 2004 developed the matter of ‘action’ further by setting out that ‘relevant partners’ , ‘ MUST make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children’ . Such partners’ MAY provide staff, goods, services, accommodation or other resources’
Experts state that a further Duty to Act is needed to strengthen Section 10 of the 2004 Act. The intention the Labour Government had in 2004 was to ensure that all agencies involved with children in need of safeguarding and of having their welfare promoted would co-operate and deliver together shared resources and activity to the benefit of those children. If ‘relevant partners’ and others are failing to deliver goods, services, accommodation or other resources in a spirit of co-operation to the measurable benefit of children then we agree a strengthening of the legal framework is needed.
Fair point describing previous meanings of the Duty to Act.
The Duty to Act proposed by Government makes individual practitioners accountable for the decisions they take to protect children. Where this includes a decision that the child requires goods, services and other resources surely the agency which employs them and other relevant partners must be held to account if the provision the professional believes to be in the best interests of the child is simply not available. The proposed Duty to Act risks placing greater delivery pressure on individuals who lack any control over the resources available to meet the needs of children. Many child protection social workers are worryingly overworked. We are concerned that the Duty to Act as proposed will do nothing to support a struggling workforce unless it is radically reframed.
Labour appears to take the view that the new individual Duty to Act as proposed in the consultation is unfair. Their grounds for opposing the Duty to Act aren’t the same as those suggested by Mandate Now, Mandate Now simply argued that the duty was so vague as to be unworkable. But the Labour argument also has some merit. They see the scope for this proposal being another social-worker-bashing measure.
The prevention of child abuse and neglect should be an absolute priority. Preventive interventions to divert a child at risk from harm, which could be significant or an early intervention to stop another incidence of abuse or neglect occurring, should be central to any Government’s strategy. The incumbent President of the Association of Directors of Children’s Services recently said, ‘ We’ve got to change the shape of children’s social care not through the lens of the Government’s touching faith in structural reform, but by investing prevention and early help’. It is therefore proposed that the Government should introduce a Duty to Act with the expressed intention of requiring early action by relevant partners and others.
This is an entirely reasonable objective. The problem with calling this “Duty to Act” is that it will get interpreted by the government as support for it’s own very different proposal. Moreover the suggestion is not really a legislative proposal at all, it is a proposal for changing funding priorities and working practices. It is unlikely that legislation would be required at all.
This will require investment in resources in all relevant partner agencies. A great deal needs to be considered before a Duty to Act to prevent abuse and neglect could be drafted in law. We must not create a bureaucracy. We need practical delivery. We propose that a further consultation is undertaken which focusses a Duty to Act on prevention and early intervention.
Given the aims and objectives of the Labour version of Duty to Act, Mandate Now questions whether any new law in this area is strictly necessary to achieve those aims.
3.2 Duty to Report
We congratulate the Government in making clear that currently there is no duty to report child abuse or neglect. To have left those working with children worried about possible or actual abuse and neglect with a legal framework which only says that they ‘should’ report has let down thousands of children who as adults have been able to talk about the abuses they suffered as children. We have to change the present law to make the future safer and less costly in human and financial terms. A leading child abuse lawyer when asked how many cases would have been diverted from civil litigations if there had been a Duty to Report said to us ‘ I would be out of a job’.
The obvious aim is to prevent abuse, and especially prevent its long-term continuation. It is heartening to see that Labour sees a duty to report as an essential and effective tool for this purpose. However the Duty to Report which Labour described here as being so essential is fatally undermined if it is limited (as described in the initial Summary) to “reporters who deliberately and recklessly failed to report abuse or neglect”.
While we have heard concern that a report will not be followed up with action we trust that by binding together existing law, a Duty to Report and a revised Duty to Act as we present it here, this will not be the case. Paper passing from one desk to another will never be sufficient.
The actions social workers are expected to take as a consequence of a report need to be diverse and appropriate to meeting the needs of the child. Diversion from abuse rather than waiting for it to occur must be the priority. We have been told of frustration among professionals that their early reports to social workers are not acted upon as they do not meet a ‘significant harm’ threshold. It seems that there is a willingness in the system to wait until abuse can be proven beyond doubt to be imminent or have occurred before there is action. We know that professionally qualified social workers do not wish this to be the norm any more than reporters. Rather we have heard how they want (and do) assist and support children but are frustrated by the lack of resources or inadequate staffing on which they can draw to take anything more than remedial action. We do not support the criticism of social workers nor of the many other professions that work with children but we do challenge the context they work within which is not of their making.
The point made here is that the duty to report won’t have much overall effect on outcomes if thresholds for action in LA children’s services have been set unreasonably high because of resource starvation. Failure to act on a report because of lack of resources is not a failure of mandatory reporting; it is a failure to provide the resources necessary to act. This is a distinction too often missed.
Protecting not criminalising professionals.
A Duty to Report can give more junior professionals a lever with which they can legitimately report concerns outside the organisation without the need to get the prior agreement of senior managers, trustees or governors which we have heard in too many instances not to be forthcoming. A Duty to Report can protect professionals who work in hierarchical organisations where their senior managers may be balancing concerns about reputation or income and hence reluctant to report. The Duty also removes the ambiguity in current law, for Trustees, governors and senior staff who do not work directly with children.
Absolutely spot on. This is very close to the Mandate Now reasoning
Who should be required to report?
The requirement to report suspicions or actual abuse should be placed on those professionals working in loco parentis with children and young people under the age of 18 in regulated settings. We have heard and support particular concerns about some children who live away from family and friends, who would typically look out for their welfare and safety, in boarding and residential settings. We do not support the report being extended to members of the public. The identity of reporters and the fact of a report should be kept confidential.
Again, this is very close to the Mandate Now position and line of reasoning.
To whom should a report be made?
As a number of reports will be from people who are unsure about whether the child is truly at risk of significant harm ( s47 threshold) we suggest that there is a need for a process of triage managed by the most highly qualified, social work professionals employed as local authority designated officers. This can be built on existing mechanisms which we are told work well in some areas but not all. Such a referral may not lead directly to a S47 enquiry but to consideration of other interventions which may divert a child from abuse. The recipient of the report should assess what they are told against other reports of either the same establishment or the same child. They can then refer on for a S47 enquiry if deemed the best course of action or to relevant partners invoking the Duty to Act as referred to above or if appropriate propose no further action is necessary. A child of whom a report is made may have needs while not being at risk of significant harm. These needs must be addressed.
What Labour appears to be supporting here is an enhanced LADO role to perform the triage that is necessary to make an initial assessment of the seriousness of the report. It is obvious that the triage is necessary, and that it needs to be conducted by people with the training and experience to do so. Mandate Now supports this idea wholeheartedly.
Types of abuse and neglect to be reported
Some types of abuse may seem better placed than others to be the focus of mandated reports e.g. child sexual abuse which is a secret crime named as a ‘national threat’ has an agreed definition whereas sexual exploitation as yet has no agreed definition. There are other examples. By being too specific about the nature of the suspected abuse to be reported we could be inhibiting those mandated to report from doing so early. We do not want them to wait until the ‘metaphorical bruises appear’ before they report but to pick up the phone and talk to an expert and discuss their suspicions.
Building the model of mandatory reporting on definitions or the lack of them, about particular experiences of children which we deem to be harmful for them risks becoming a bureaucratic diversion. In introducing mandatory reporting we must not become obsessed with labelling and categorisation.
These are good and valid points
Malicious reports are a tiny minority of reports and their occurrence should not be used as a deterrent from instituting mandatory reporting.
Also true
Timing of reports
There needs to be a level of professional judgment about when a report is made. To prescribe reporting within x hours or y days could serve to profoundly undermine a professional’s relationship with the child. Where it is possible for a child to be engaged in conversation about the concerns and the intention to report then their views and wishes must be taken into account. Following discussion with 49 children aged 11-15 the Children’s Commissioner concluded that young people, ‘wanted professionals to exercise good judgement, develop good relationships with young people in their care, speak with children before reporting any concerns, give young people an opportunity to ask for help or speak out, ensure that concerns are wellfounded, and to take the appropriate action to keep them safe while respecting their confidentiality.’ But where a child does not have the capacity to engage then the decision to report remains wholly with the professional. We acknowledge that determining the risk faced by children is not a simple task. It may take time to acquire sufficient evidence to justify a report.
The problem with not putting a specific time limit on the making of a mandatory report once a reasonable suspicion has been formed is that without any time limit, there is in effect no offence. Anybody found not having reported can say “I was going to report tomorrow”, and they are then arguably not in a position where they have failed in their duty. There is scope for a reasonable debate about how long the time limit should be, but the limit must exist. Furthermore, the evidence from the Children’s Commissioner is relevant to only one form of evidence: disclosure by a child. Especially in the case of sexual abuse, disclosure by the child is rare, and the duty to report must apply to all forms of evidence that give rise to reasonable grounds for suspicion.
Sanctions
There already exist sanctions through employment law and professional bodies. These can be used where there is a failure to report. There are areas where the current practice needs to be strengthened such as in relation to Disclosure and Barring. Criminal sanctions are very rarely applied in other countries where mandatory reporting exists. Nevertheless we heard that there is support for criminal sanctions if it can be proven that a person acted deliberately and recklessly in failing to report. Any professional subject to such an accusation should be able to use a defence of ‘acting in good faith’ where they can show this to be the case. Sanctions may also fall upon the institution, for example, if it failed to ensure its staff had access to and could complete the accredited training programme. A balance between sanctions on the professional and those on the institution will need to be struck. It should not simply be one or the other. We heard that the chances of justice for the child increase if sanctions apply to both individuals and organisations.
The fact that criminal sanctions are rarely applied in countries with mandatory reporting is not an argument for not needing them. It is a demonstration that the existence of a statutory duty with a criminal sanction ensures that those to whom the duty applies are clear in what is expected of them, and so breaches of the law are rare. This is exactly what a good law should achieve – it is sufficiently clear and reasonable that willing compliance is the norm and transgressions (and the need to prosecute them) are rare.
Moreover, offering a defence of “acting in good faith” when failing to report would fatally undermine the duty, because it would be an open invitation to institutions to act as before, handling abuse “in house” without reporting it to the LA. The thinking behind the Labour proposal here is seriously muddled.
4. Pre-conditions for introduction
- Accredited staff development/training programme for reporters. Those professionals who fall under the Duty to Report must attend and pass an accredited course of study prior to becoming subject to the sanctions of such a duty. For recipients of reports, whom we anticipate are qualified and experienced child protection social workers, there may be no need for further training but this is probably a matter for their regulatory body to determine. We would expect the Government to provide financial investment to meet this increased demand for staff development placed upon employers.
It is certainly reasonable for those to be subjected to the duty to report to receive adequate training. However, the duty should apply to the role rather than (as appears to be being argued here) allowing for exemptions for those in the role who have not yet been trained. If this is in fact the Labour proposal, again it is an invitation to institutions to evade the application of the duty by deliberately avoiding training their staff. This is not acceptable.
- Investment in capacity. The evidence from the longitudinal study produced by Professor Ben Mathews of Queensland University was not included in the
Government’s consultation document even though it was available. Professor Mathews makes clear that there will be a spike in reports following the introduction of mandatory reporting. This may last up to three years. There will also be more children identified. It would be irresponsible to introduce mandatory reporting without investment in the recipient capacity. This may mean additional supervision or additional staff to respond effectively. These should be qualified professionals and not call-centre style arrangements with sign-posters unqualified in the complex needs of children at risk of abuse and neglect. There should be no short cuts.
Indisputable.
5. Next Steps
- Building capacity as outlined above
- Phased introduction. We appreciate that a ‘toe in the water’ approach may not be agreeable to all those who support a mandate to report. However we have learnt from the nations with the mandate in place that the types of abuse, types of reporters and recipients as well as the scope for action following a report, is extremely varied. For example the excellent work of Professor
Mathews only looks at child sexual abuse not all forms of abuse. Some other nations lack the two pronged model established in the UK of children in need and children suffering significant harm. Therefore it seems appropriate to pilot the introduction of mandatory reporting rather than step fully into the water and drown. We have made clear there is a current deficit in staff development and in capacity. While these are being addressed plans should be put in place to undertake a staged introduction with full evaluation. The first stage should be a mandate for those working in boarding and residential settings.
This is not a sensible approach. First, boarding and residential settings address a tiny proportion of children (Less than 1% of children in education). Second, the difficulties in adequately defining a residential setting are almost insurmountable. Such “closed settings” are proposed by NSPCC as the only area where mandatory reporting might be introduced, and both the justification and definition of the NSPCC proposal has been analysed and comprehensively dismantled by Mandate Now. This proposal is impracticable either as a pilot for a more general scheme or as a permanent solution. How does one pilot law without the necessary law being in existence?
If the evidence (for instance from the Mathews longitudinal study in Western Australia) is convincing, then there is no justification in delaying the full implementation of the duty to report, along with providing the necessary resources to handle the resulting reports. Mathews suggests that as experience grows, tweaks to the system may become necessary, and so necessitating adjustments in the law, thresholds or working practices. The idea that we might not get it perfectly right first time is not a justification for trying to operate an impractical pilot.
- Evaluation and measurement. We understood from those who have experience of the introduction of mandatory reporting in the context of FGM that insufficient thought and preparation was given to introducing the mandate. We heard repeatedly that the measures for assessing mandatory reporting are inadequate. For example, measuring its impact by the numbers of ‘substantiated reports’ of abuse takes no account of the early reports that prevented abuse or of other interventions which followed from a report. New measures are required and should form part of the commissioning of an evaluation.
Correct, and well-reasoned.
6. Conclusion
A Duty to Act and a Duty to Report are required. The underlying intention should be to prevent or reduce the risk of further child abuse and neglect. But where there are suspicions of, or abuse is known to have occurred the duty to report must be unequivocal. Unless we adopt mandatory reporting it remains equivocal. We know there is a cost to introducing mandatory reporting. We believe that the safety and protection of children and of those professionals with concerns about safeguarding children the cost must be paid.
The conclusion avoids some of the muddled items within the body of the document. The commitment to the Duty to Report is admirably clear and unequivocal, as is the summary of the argument in its favour. The detailed proposals in Labour version of the Duty to Act unfortunately are seriously compromised by the following shortcomings
Only supporting a criminal sanction for “deliberately and recklessly” failing to report.
Not putting a time limit on the duty to report
The suggestion that mandatory reporting should not apply to individual unless and until they have received adequate training
Proposing a pilot scheme. On legal advice we sought when this suggestion was first proposed some years ago by others, we were informed it was impossible. Piloting practice happens frequently, law cannot be piloted unless it exists.