NEWS

“If you know what’s good for you, keep quiet and do your job.”

This phrase was mentioned in one of IICSA’s reports as being the response of a head teacher to a member of staff who had concerns about a colleague. We now know her concerns were justified because the colleague in question, Father David Pearce of Ealing Abbey, was subsequently convicted of 11 counts of child sex abuse and jailed for 5 years. Had her concerns been acted on earlier, Pearce’s later victims would not have suffered. IICSA received huge quantities of evidence of this kind of incident leading to non-reporting of suspected abuse. This is the context in which the IICSA recommendations must be judged – will they help prevent this happening again?

IICSA’s final report includes 20 recommendations. Three of them are key to detecting and (ideally) preventing and deterring abuse.

• Mandatory reporting.
• Child Protection Authorities for England and for Wales.
• Improving compliance with the statutory duty to notify the Disclosure and Barring Service.

Unfortunately they are all underpowered and unlikely to make the big change needed.

Mandatory reporting

The recommendation starts well.

The Inquiry recommends that the UK government and Welsh Government introduce legislation which places certain individuals – ‘mandated reporters’ – under a statutory duty to report child sexual abuse where they:

• receive a disclosure of child sexual abuse from a child or perpetrator; or
• witness a child being sexually abused; or
• observe recognised indicators of child sexual abuse.

This is exactly what we were looking for. Unfortunately, it is almost entirely undone by the text at the end of the recommendation, defining what the mandatory reporting law should require.

It should be a criminal offence for mandated reporters to fail to report child sexual abuse where they:

• are in receipt of a disclosure of child sexual abuse from a child or perpetrator; or
• witness a child being sexually abused.

What happened to “observe recognised indicators of child sexual abuse”? It’s been called mandatory but hasn’t made it into the proposed law recommended by IICSA. This is quite deliberate on IICSA’s part, paragraph 117 of this section of the report states:

Where a mandated reporter recognises indicators of child sexual abuse (but has not directly witnessed abuse or received a disclosure of abuse from an alleged perpetrator or victim), it would not be appropriate to enforce the duty to report with criminal sanctions.

This is a version of mandatory reporting in use nowhere else in the world to our knowledge. It’s not in use because it has almost no merit. Child sex abuse happens most often in secret, there are hardly ever any witnesses, still less witnesses who are mandated reporters. So making it mandatory to report witnessed abuse helps very little.

Perpetrators rarely disclose abuse but an exception as we know can be during confession. Even if they are deluded enough to believe that their victims welcome their attentions, and therefore they think that morally speaking they are doing nothing wrong, they know they are committing an offence and will be punished if caught. So they don’t usually tell anyone except perhaps someone who shares their interest in children.  

And children rarely disclose sexual abuse for well-established reasons. As IICSA Chair Alexis Jay said in her press statement announcing the report “many victims only disclose their abuse after many years, the average time being 26 years”. With this average, the proportion of children disclosing while still children, and so triggering a mandatory duty to report, is going to be vanishingly small.

IICSA has proposed a law mandating people to report in circumstances that hardly ever happen. It does nothing to support those adults working in Regulated Activities who have suspicions and dare not report, and it does nothing to protect those who want to report but are threatened into keeping quiet. IICSA’s recommendation is mandatory reporting in-name-only (‘MINO’) and has the appearance of having been specifically designed to make no difference to the number of referrals of child sexual abuse while claiming England and Wales have mandatory reporting of child sexual abuse. In MR jurisdictions child sexual abuse accounts for ~10% of total referrals with Mandated Reporters accounting for just over half of these.

Meanwhile live in Parliament, at the time of posting this article, is a Private Members Bill tabled by Baroness Tanni Grey-Thompson to introduce mandatory reporting of child sexual abuse by Regulated Activities. It makes use of our current legislative model and is designed to support staff to report prescribed concerns. It’s evidenced, has operating precedent, and provides everything IICSA’s proposal does not. 

Here is a submission to IICSA from Prof Mathews for proposed legislation for the mandatory reporting of child sexual abuse in England and Wales – starts at paragraph 5 page 9.

Child Protection Authorities for England and for Wales

There’s the germ of a good idea here which looks to have been partly copied from The Royal Commission into Institutional Responses to Child Sexual Abuse Australia. IICSA’s version is hobbled by inadequate execution. A CPA is proposed for each country to:

• improve practice in child protection,
• make recommendations to government,
• monitor implementation of the inquiry’s recommendations, and
• inspect institutions as necessary

The first three points are fine. The inspection part would be good if not messed up within the detailed description in the report. At the moment Ofsted and ISI inspect schools, both for education provision and safeguarding, though they spend most of their time on education. IICSA has heard numerous examples of failures by Ofsted and ISI to detect safeguarding failings. So to move their safeguarding functions to a new specialist body is a good idea and something we recommended to and expected from the inquiry. Except IICSA hasn’t done that. Ofsted and ISI continue as before. The CPAs will be able to do additional inspections if they choose, both on settings inspected by other inspectorates and on settings currently uninspected by anyone, such as youth clubs and places of worship. The duplication involved is a recipe for chaos and turf wars.

It’s made worse by the fact that the CPAs will have no regulatory or enforcement powers. IICSA says that “The public exposure of failings in any report is envisaged to be sufficient to bring about the necessary changes.” This is embarrassingly naïve. Both the Roman Catholic Church and the Church of England for instance have had decades of bad publicity about safeguarding and seem to have learned little from it.

Disclosure and Barring Service

Failure to make DBS referrals often went unnoticed by Ofsted and ISI. They also never inspected against referrals because, as we discovered some years ago, they were not in receipt of these before inspecting a school.  The proposal that “all relevant regulators and inspectorates now include compliance with the statutory duty to refer to the Disclosure and Barring Service” is welcome.

Although there is already a mandatory obligation for schools and other organisations to make a safeguarding referral to the DBS in prescribed circumstances, there has never been a prosecution for failure to do so. The inquiry heard several cases where failure to make a DBS referral was uncovered but the setting was told to do nothing more than retrospectively make a referral. (This line of questioning was taken directly from one of our submissions to the inquiry’s Chair.) IICSA recommends that “the National Police Chiefs’ Council works with relevant regulators and inspectorates to ensure that there are clear arrangements in place to refer breaches of the duty to the police for criminal investigation”.

This is a clear acknowledgement that there have been no such arrangements in the past.  Our letter to the Chair of IICSA (above) set out further weaknesses in this system that also need to be addressed. The problem with IICSA’s proposal is there will still be no defined single body responsible for mounting prosecutions, and we are concerned that no change will occur in practice. People believe that the DBS screening provides effective protection, but it is only as good as the data it is fed.

In conclusion, IICSA has given us three key recommendations – mandatory reporting, Child Protection Agencies, and better DBS enforcement. All three are good ideas in principle, but they need to be well-designed and implemented effectively to do any good. The first two have been so thoroughly hamstrung as to be of limited value, the last is possibly useful but depends on effective arrangements which have not been spelled out in any detail.

We will be providing a granular review of the big-ticket safeguarding recommendations in January 2023.