IICSA: Mandatory reporting of abuse

As part of its final report, one of the centrepiece recommendations of the Inquiry’s work was the introduction of a statutory requirement for mandatory reporting of abuse.

Lauranne Nolan, Associate in the specialist abuse team at Keoghs, previously discussed the Regulated and Other Activities (Mandatory Reporting of Child Sexual Abuse) Bill which has been presented to the House of Lords and awaits its second reading. Lauranne considers what, if any, changes may be made to the Bill in light of the recommendations by IICSA.

Current position

In England, there is currently no statutory obligation requiring individuals or institutions to report child sexual abuse. The guidance available states that anyone who has concerns about a child’s welfare “should make a referral to local authority children’s social care”. This referral should be made immediately if there is a concern that the child is experiencing significant harm or is likely to do so. However, it only creates an expectation that individuals will make a report – it does not impose a legal requirement to do so.

The Bill

The Bill proposes to mandate those providing and carrying out regulated or other activities with responsibility for the care of children to report known and suspected child sexual abuse. In addition the Bill will create a criminal offence for failing to report concerns of child sexual abuse, but also aims to enact provisions to protect mandated reporters from detriment in any personal, social, economic and professional settings.

The recommendation: Mandatory Reporting

As anticipated, IICSA has formally recommended that the government introduce laws requiring certain people to report child sexual abuse and that these people will be called “mandated reporters”. These individuals would be placed 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.

The following persons should be designated mandated reporters:

• Any person working in regulated activity in relation to children (under the Safeguarding and Vulnerable Groups Act 2006, as amended);
• Any person working in a position of trust (as defined by the Sexual Offences Act 2003, as amended); and
• Police officers.

For the purposes of mandatory reporting, “child sexual abuse” should be interpreted as any act that would be an offence under the Sexual Offences Act 2003 where the alleged victim is a child under the age of 18. This is in line with the proposed draft Bill which refers to a child being defined as anyone under the age of 18. However, the IICSA report considers that in some limited circumstances a different approach may sometimes be necessary. It proposes that where the child is aged between 13 and under 16 years old, a report need not be made where the mandated reporter reasonably believes that:

• The relationship between the parties is consensual and not intimidatory, exploitative
  or coercive; and
• The child has not been harmed and is not at risk of being harmed; and
• There is no material difference in capacity or maturity between the parties engaged in the sexual activity concerned, and there is a difference in age of no more than three years.

The reason for this is that consensual sexual activity between teenagers is unlikely to be prosecuted unless there are aggravating features such as an element of abuse or exploitation. As it would not be considered to be in the public interest to prosecute children and young people in a consensual relationship, it would, therefore, not be in the public interest to criminalise mandated reporters for failure to report consensual teenage sexual activity.

Where the child is under the age of 13, a report must always be made. In addition, irrespective of the age of the child, where the alleged perpetrator is in a position of trust as defined by the 2003 Act, a report must be made.

Summary

Mandatory reporting laws have the capacity to significantly improve the help and support that is made available to child victims of sexual abuse. Some have argued that there is no need for the introduction of a law as reporting rates in England and in Wales are “comparable or already higher” than in jurisdictions which have mandatory reporting.

However, we already know that a Bill has been proposed to the House of Lords to deal with the issue of mandatory reporting therefore, subject to the Bill passing successfully and becoming an Act, mandatory reporting will be introduced by the government in some shape or form. For the most part the Bill appears to already include the majority of the recommendations from IICSA. The main discussion is now likely to move on to in what circumstances reports will be required to be made taking in to account the potential for consensual activity of a child between 13 and under 16 which the Bill in its current draft does not acknowledge.