Practitioners could face criminal sanction for failure to report child abuse

A wide range of practitioners or organisations that work with children could face criminal sanctions for failing to report child abuse and neglect, under proposals contained in a Government consultation.

In a consultation paper the Home Office and the Department for Education are seeking views on the possible introduction of one of two additional statutory measures:

• a mandatory reporting duty, which would require certain organisations and any person working with children to report child abuse or neglect if they knew or had reasonable cause to suspect it was taking place;
• a duty to act, which would require them to take appropriate action in relation to child abuse or neglect if they knew or had reasonable cause to suspect it was taking place.

The consultation paper said that if a mandatory reporting duty were introduced in England, reports would be made to local authority children’s social care.

Various mandatory reporting systems are already in place, notabl in the US, Australia and Canada. However, the Government’s consultation paper does not propose a specific model, instead developing broad elements of the scope of a model.

“A range of sanctions for those who breach the duty (i.e. fail to report child abuse or neglect) could be made available,” the paper said. “These could range from employer and/or regulatory sanctions to criminal sanctions…Sanctions could be used for those who failed to report for any reason (other than genuine errors or mistakes, e.g. if an individual mistakenly thought that a report had been made, or because a practitioner knew that a report had already been made). This could include, but would not be limited to, deliberate or reckless failures.”

The possible benefits of such a mandatory reporting duty would include increased awareness of the importance of reporting child abuse and neglect, more cases of child abuse and neglect being identified (and at an earlier point), and the creation of a higher risk environment for abusers or potential abusers.

The paper noted a number of possible risks and issues, however. These include an increase in unsubstantiated referrals, a diversion of resources from actual cases into assessment and investigation, and the making of poorer quality reports “as there might be a perverse incentive for all those who might be covered by the duty (from police officers to school caterers) to pass the buck”.

It added that children might be dissuaded from disclosing incidents “for fear of being forced into hostile legal proceedings”.

The other statutory measure would impose a legal requirement on certain groups, professionals or organisations to take appropriate action where they know or suspect that a child is suffering, or is at risk of suffering, abuse or neglect.

The consultation paper said this duty would apply the same principles as wilful neglect, but be specifically focused on the protection of children rather than the provision of health and adult social care services.

“It would cover a broader range of behaviours and practitioners/organisations than wilful neglect and would provide a more comprehensive response to the institutional failures….seen in Rotherham and elsewhere,” it suggested.

The focus of this duty would be broader than mandatory reporting, and the sanctions for breaches would therefore apply differently, the paper proposed. “Under the duty to act, sanctions for breaches would be focused on cases where there were reckless reasons for failure to act, or because practitioners and/or organisations were indifferent to the harm, or potential harm, that might be caused.

“This means that an individual would have to consciously take a decision not to take action, or take action which was clearly insufficient or inappropriate, in the knowledge that they were not doing the right thing or reckless as to whether they were,” the paper added.

The possible benefits of this duty might include a strengthening of the existing mechanisms for ensuring accountability arrangements in the child protection system, increased awareness of the importance of taking action, and change in the behaviour of those covered by the duty.

Possible risks and issues that might be relevant to a duty to act could include an increase in unnecessary state intrusion into family life by increasing inappropriate activity throughout the system, those bound by the duty feeling less able to discuss cases openly for fear of sanctions “hindering recruitment and leading to experienced, capable staff leaving their positions”, and scope for those bound by the duty to make incorrect judgements about what action is appropriate in some cases.

The consultation paper includes a table setting out the key differences between a mandatory reporting duty and a duty to act. It also sets out the range of criminal sanctions for individuals and organisations. Fines could be levied on both, while individuals could face imprisonment. Remedial orders and publicity orders could also be made available for organisations.

The consultation runs until 13 October 2016. The consultation paper can be viewed here.

Minister of State for the Department of Education Edward Timpson said: “We must do all we can to protect children and young people from abuse and neglect. That’s why we’re making radical improvements to make sure services identify children at risk as early as possible and take swift action to give them the protection and care they need, but events in Rotherham, Oxford and elsewhere show there is still more to be done.

“It’s right therefore that we look at whether it’s necessary to strengthen the law to better protect the most vulnerable.”