#IICSA

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.