#CSA – Mandate Now

The Government’s useless Child Sexual Abuse Reporting law

We now have the government’s legislative proposal in response to the IICSA public inquiry’s recommendation on mandatory reporting of child sex abuse.

It is utterly useless, and it is intended to be. You can read the legislative text here.

There are two main parts to the legislation. The “Duty to report child sex offences”, and an “Offence of preventing or deterring a person from complying with duty to report child sex offences”

Duty to Report

The key measure is the amendment Gov NC65 “Duty to report child sex offences”. Here’s the start of it.

Duty to report child sex offences

(1) A person aged 18 or over must make a notification under this section if, while engaging in a relevant activity in England, the person is given reason to suspect that a child sex offence may have been committed (at any time).

(2) A notification under this section—

(a) is to be made to a relevant chief officer of police or a relevant local authority director (or both);

(b) must identify each person believed by the person making the notification to be involved in the suspected offence and explain why the notification is made;

(c) must be made as soon as reasonably practicable;

(d) may be made orally or in writing.

(3) If the person making the notification believes that no relevant child resides in England and Wales, subsection (2)(a) applies as if it referred to a relevant chief officer of police only.

Note that it is framed as a “duty”. But there is no offence of failing in that duty. In the legislation there is no criminal or other sanction for failing to report. So even through it uses the word “must” there is no force behind it. This is not mandatory reporting. It is a waste of parliamentary time, putting new words on the status quo.

The Home Office claims that anybody failing to fulfil the Duty to Report is liable to be subject to a referral to the DBS. But the Home Office has provided no description for how that will be done, either in the legislation or anywhere else.

DBS referrals don’t happen by magic. They have to be sent by people to the DBS. Who will send them? In what circumstances are the required to make a referral? What sanction is applied to someone who does not make a required referral.

There is already a required referral mechanism where an employee is thought to be a danger to children. The Safeguarding Vulnerable Groups Act Section 35 (for regulated activities) and Section 36 (for personnel agencies) provides a duty to make a DBS referral about somebody through to be a danger to children, when you sack them or they leave when you would have sacked them had they stayed. Section 38 of SVGA 2006 makes it an offence (punishable by a fine) not to make a required referral.

But the government has been entirely silent on how and when DBS referrals will be made for failing in the duty to report. So until an enforcement mechanism is published, we have to assume that it simply doesn’t exist, and that there is no enforcement and no sanction, and that that Duty to Report is a waste of printer’s ink.

The next part of the section is very curious. Even in its non-mandatory unenforceable form, the government seems intent providing as many loopholes as possible to the Duty to Report, making sure that current excuses for not reporting will remain OK.

(4) The duty under subsection (1) does not apply to a person—

(a) if the person reasonably believes that another person has previously made, or will imminently make, a notification under this section in connection with the suspected offence;

(b) for such time as the person reasonably believes another person who engages in a relevant activity in England has made or will make a notification under this section on their behalf;

(c) for such time as the person reasonably believes that it is not in the best interests of each relevant child to make a notification under this section.

Section 4(a) is something of a problem in that it not only allows a person not to report if they know somebody else already has reported, but also allows them not to report if they believe that somebody else is about to report. It really ought to be only if you know that a report has already been made, and within a fairly strict timeframe e.g. 7 days or so.

Section 4(b) is similar but introduces a different issue, the idea that somebody else can make a report on your behalf. In effect, this is delegating what the government described as a legal duty. The weakness of the wording is that you can report internally to your designated safeguarding lead (DSL) and under 4(b) claim that you have a reasonable belief that the report has been sent on. But the DSL, only having the evidence second-hand, doesn’t have a legal duty to pass it on. Placing the duty at the organisational level rather than making people individually responsible greatly increases the risk that no report will be made at all. Professor Ben Mathews of the Queensland university of technology, who is the leading academic on this subject, gave evidence on this topic to the IICSA inquiry. He said of the Australian system:

The person under the duty to report is the person who themselves generates the knowledge or suspicion. If they are working with a more senior colleague, they can perhaps consult with that colleague, to check on whether they think that suspicion is well based. And if they’re working with a senior colleague in treating a child, they can certainly inform that colleague of their intended course of action and of their action.

The point is that internal communication is consultation and information, but in Australia the legal obligation is on the person with the knowledge of the matter directly to inform the external authorities. That obligation cannot be delegated.

But it is section 4(c) that really beggars belief. You can delay making your report for as long as you think it is in the child’s interest for you to keep quiet.

Teachers and others caring for children aren’t trained social workers and they are not remotely equipped to make that decision. The idea of having the discretion to delay reporting is entirely contrary to modern safeguarding practice and contradicts the government’s own Statutory Guidance. For instance if you take a look at Keeping Children Safe in Education and turn to Section one: Concerns or allegations that may meet the harm threshold, you don’t get very far down before you reach The initial response to an allegation and paragraph 360 immediately below.

360. Where the school or college identifies that a child has been harmed, that there may be an immediate risk of harm to a child, or if the situation is an emergency, they should contact local authority children’s social care and as appropriate the police immediately as per the processes explained in Part one of this guidance.

It says “immediately”. It specifically does not give anyone at the school the discretion to decide whether it is in the child’s best interests to wait a bit.

But when you have evidence that a child has already been harmed in a way that would trigger the Duty to Report, Section 4(c) does allow you to wait a bit, or wait a long time, or even wait for ever because there is no limit in the legislation to the duration of the delay. So anyone accused of failing in their duty to report can say “I didn’t fail to report, I was waiting for the moment when it was in the child’s best interest to report, and in my judgment it has not yet arrived.”

There is also no requirement to report if the potential reporter believes the activity is consensual sexual activity between children over the age of 13.

So, we have an unenforced non-mandatory duty to report with so many exceptions that even if it were mandatory it would have no effect.

But there’s more. There is a further section “Reasons to suspect child sex offence may have been committed” which describes the types of evidence that will trigger the duty to report. There are just four cases which qualify.

(1) For the purposes of section (Duty to report child sex offences), a person (P) is given reason to suspect that a child sex offence may have been committed in each of the following 4 cases (and no others).

(2) The first case is where P witnesses conduct constituting a child sex offence.

(3) The second case is where a child communicates to P something which would cause a reasonable person who engages in the same relevant activity as P to suspect that a child sex offence may have been committed.

(4) The third case is where another person (A) communicates to P something which would cause a reasonable person who engages in the same relevant activity as P to suspect that A may have committed a child sex offence.

(5) The fourth case is where P sees an image or video recording, or hears an audio recording, which would cause a reasonable person who engages in the same relevant activity as P to suspect that a child sex offence may have been committed.

The first case is if you actually witness a child being sexually abused. The IICSA report said this about witnessed abuse.

“Child sexual abuse almost invariably happens in private. The chance of the abuse being witnessed is therefore likely to be rare.”

The second case is disclosure of abuse by the child. This is what the IICSA report had to say about children disclosing their abuse.

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.

An average delay of 26 years before something is disclosed is largely useless for safeguarding purposes. How many other children does an abuser have the chance to harm in the intervening period? It does happen sometimes that a child discloses the abuse while still a child, but all the evidence is that this is a small minority of cases. The children who are psychologically manipulated by their abusers into not disclosing deserve protection as well.

The third case is disclosure by the abuser. This is so rare that the IICSA report doesn’t mention any examples at all of it happening.

The last case is seeing an image or video of abuse or hearing an audio recording. This is essentially a variant of either witnessing abuse or disclosure by the abuser. Child abuse images are already subject to existing laws, and anybody who hangs on to one while waiting for the appropriate moment to report it is probably breaking much more serious laws than this one.

And that’s your lot. The only events triggering the duty to report are ones that are extremely unlikely to occur. This is designed to achieve nothing.

The many other indicators of abuse listed in the IICSA report do not trigger the duty. Here is a non-exhaustive list included in the IICSA report.

Some of the following signs may be indicators of sexual abuse:

Children who display knowledge or interest in sexual acts inappropriate to their age;

Children who use sexual language or have sexual knowledge that you wouldn’t expect them to have;

Children who ask others to behave sexually or play sexual games; and

Children with physical sexual health problems, including soreness in the genital and anal areas, sexually transmitted infections or underage pregnancy

Under the government’s own (non-mandatory) Statutory Guidance, all of the above should be subject to an immediate report to children’s services. In Australia all of this is subject to mandatory reporting. No other country has introduced a form of mandatory reporting based on such a deliberately narrow set of criteria for what triggers a “mandatory” report.

We know the government’s proposal is designed to achieve nothing because it is even weaker than the proposal put by government in a public consultation last November which at least suggested some possible professional sanctions. The government estimated in Table 3 of the accompanying Consultation Impact Assessment that the proposal would increase referrals to children’s services by between 1% and 3%, or between 780 and 2,300 children per year. That is about 2.5 to 7.5 children per local authority per year.

The IICSA report stated that 58,000 offences of contact CSA were reported in the year ending March 2020. IICSA estimates that the number of children abused each year is about 500,000. This means that only about 11.6% of offences get reported, and 88.4% of offences do not. If the maximum 3% increase in reporting expected by the government as a result of this measure, then the proportion of unreported offences would only fall from 88.4% to 88.1%. This is such a small number that it won’t even be noticed in yearly variations.

In comparison, studies have shown that proper mandatory reporting as implemented across Australia more than doubles the number of referrals from people working in their equivalent of Regulated Activities. In New South Wales, after the introduction of mandatory reporting, teachers referred 24% of all child sexual abuse cases. The government knows this, and has chosen bring in a measure that it believes will have almost no effect.

Offence of Preventing or Deterring a Report

Along with the non-mandatory “mandatory reporting” measure, the government also introduced an offence of “preventing or deterring a person from complying with duty to report child sex offences”.

Offence of preventing or deterring a person from complying with duty to report child sex offences

(1) A person commits an offence if they—

(a) know that a person is under a duty under section (Duty to report child sex offences), and

(b) engage in any conduct with the intention of preventing or deterring that person from complying with that duty.

This is completely backwards. It’s not an offence to fail to report child sex abuse but it is an offence to discourage someone else from reporting. I mean, how mad is this?

This is obviously the bit the government want to bring forward to show how performatively tough they are. You can always tell by the size of the sentences they wave around to display their manhood. In this case 7 years maximum.

(4) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).

But all is not quite as it seems. It’s apparently perfectly OK to encourage someone to delay reporting, just so long as you say it’s OK for them to report at some indeterminate point in the future when the time is right.

(2) It is a defence for a person charged with an offence under this section to show that the conduct that they engaged in consisted of making representations about the timing of a notification under section (Duty to report child sex offences) in light of the best interests of any person who they reasonably believe to be a relevant child.

(3) A person is taken to show the fact mentioned in subsection (2) if—

(a) sufficient evidence of the fact is adduced to raise an issue with respect to it, and

(b) the contrary is not proved beyond reasonable doubt.

There is no limit to the duration of the delay a person can try and achieve, just as in the Duty to Report there is no limit to the duration of the delay someone can choose by themselves.

Also there’s something else off about this. Even though government’s notes to journalists say that “anyone who seeks to obstruct a reporter from carrying out their duty to report will face the prospect of up to seven years’ imprisonment”. This section has a very peculiar limitation at the end of it.

(6) This section applies to persons in the service of the Crown.

The formal definition of servant of the Crown is “a person holding an office or employment under the Crown”. Broadly this means the armed forces, diplomats etc. It does not mean all government employees and it most certainly does not mean “anyone”. The effect of subsection (6) is that you have to read subsection (1) as if it says “A person in the service of the Crown commits an offence if they….”. It makes quite a radical change to the meaning of the phrase and the scope of the offence, especially as very few people in the service of the Crown will be involved in any kind of work with children.

This measure is clearly designed and intended never to be used. Even if it were rendered completely irrelevant by the limitation to crown servants, it would be largely useless anyway.

A large part of the reason child sex abuse is under-reported is self-censorship. For instance, people worry that they are going to wreck someone’s career if they are wrong. This happens a lot even without overt discouragement from anyone else. That’s why we need actual mandatory reporting, not to criminalise people who don’t report, but rather to get people who want to do the right thing actually to go ahead and do it. In the same way, seat belt laws aren’t there to criminalise drivers, they are there to get us to be safer wearing them and so less likely to be killed or injured if we are unlucky enough to be in an accident.

Also, institutional hostility to reporting abuse can easily be expressed in a very British series of nods and winks without anything obvious being said. Discouragement done this way would be pretty much impossible to prosecute.

There’s also no protection for reporters from subsequent retaliation by disgruntled employers. If someone is sacked after reporting abuse, everyone else will get the message loud and clear without anything needing to be said.

The government just wants to say “We’re being tough on child sex abuse! Look, seven year sentences!” Phooey.

If you want to see what a well-designed mandatory reporting law looks like in comparison to what has been served up by the government, take a look at the Private Members Bill which Baroness Tanni-Grey Thompson introduced in the House of Lords. Mandate Now helped with the drafting. It was based on all the best knowledge available of what works for mandatory reporting, particularly from the Australian studies. It got nowhere for lack of government support. Click the link below to see it.

May 14th, 2024|

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.

(more…)

February 6th, 2023|

IICSA final report 20.10.22 – a flurry of pulled punches

“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.

November 16th, 2022|