Child sexual abuse, safeguarding failures and mandatory reporting

The Government’s view on mandatory reporting

On 10 September, Baroness Walmsley (LD) asked an oral question in the Lords about how the Government plans to respond to the report of the Independent Inquiry into Child Sexual Abuse regarding safeguarding failures at Downside and Ampleforth schools, published in August 2018.

In reply, the Parliamentary Under-Secretary of State, Department for Education, Lord Agnew of Oulton, said this:

“The report of the independent inquiry into child sexual abuse regarding Downside and Ampleforth schools did not make specific recommendations to my department. However, a regulator of independent schools is carefully considering the inquiry’s findings. We have asked inspectors to pay close attention to the matters in the report at the next inspection of Downside. Ampleforth is currently under regulatory action and must improve or face further action, which could include closure.”

In response to a supplementary, he added:

“My Lords, it is absolutely unacceptable for anyone to conceal abuse. The Government are committed to ensuring that legislation can adequately deal with this. We will scope this issue fully during the current Parliament. What individuals and organisations should do is already clear in statutory guidance. The guidance also makes it clear that there is a legal duty on employers to make a referral to the Disclosure and Barring Service in certain circumstances.”

On mandatory reporting, however, he appeared to be less convinced:

“I know that there are calls for mandatory reporting and the noble Baroness, Lady Walmsley, who asked the Question, is a keen advocate of it. All noble Lords will be aware that we have consulted on this matter. We had 760 responses from social workers, police officers and other connected parties. Some 70 per cent of them felt that mandatory reporting would have an adverse impact; 85 per cent said that it would not, in itself, lead to the appropriate action being taken.”

The current law and the confessional

In his evidence to the IICSA proceedings on 13 March, the Revd Canon Rupert Bursell, commenting on the seal of the confessional, said this:

“I believe that government should be passing an Act of Parliament imposing a duty, particularly on the clergy, but actually on other people as well, to notify the relevant authorities – social workers and/or the police – of any suspicions or actual abuse of children. That would be binding on the Church of England, just as the Terrorism Act is…”.

The provisions of the Terrorism Act 2000 referred to in the Annex to Dr Bursell’s Witness Statement ACE025279 are s.19(1) Disclosure of information and s.38B Information about acts of terrorism. In the House of Lords debate noted above, Lord Agnew acknowledged that there were few areas in UK law where there is a mandatory requirement to report any suspicions or evidence of it to the police, but cited the example of female genital mutilation (FGM).

The example of the Female Genital Mutilation Act 2003

The legislation referred to by Lord Agnew was s.5B Female Genital Mutilation Act 2003. This duty was added through s74 Serious Crime Act 2015 and was effective from 31 October 2015; it requires regulated health and social care professionals and teachers in England and Wales to report “known” cases of FGM in under-18s which they identify in the course of their professional work to the police. This provision and the associated procedural information provides a useful insight into how mandatory reporting is undertaken in relation to these “regulated professions” identified in s.5B(2)(a) of the Act, and as amended by the Secretary of State under s.5B(8).

With regard to breaches of confidentiality, s.5B(7) states that “disclosure made in an FGM notification does not breach—(a) any obligation of confidence owed by the person making the disclosure, or (b) any other restriction on the disclosure of information. The procedural information clarifies this as:

“Complying with the duty does not breach any confidentiality requirement or other restriction on disclosure which might otherwise apply, including any legal requirements. If you are a relevant professional and you become aware of a case where the duty applies, the legislation requires you to make a report to the police.”

“The duty is a personal duty which requires the individual professional who becomes aware of the case to make a report; the responsibility cannot be transferred.”

However, the section of Act relating to offences is silent on breaches of the duty; the procedural information states that “cases of failure to comply with the duty will be dealt with in accordance with the existing performance procedures in place for each profession”.

Comment

An earlier post considered mandatory reporting in relation to the Peter Ball IICSA inquiry. We noted that on 5 March 2018, the Government published its response to its 2016 consultation in which its outlined “strengthened plans to tackle child abuse“ but drew back from the introduction of mandatory reporting. Lord Agnew’s statement in the House of Lords debate reinforces this position.

It seems unlikely, therefore, that the Government itself will introduce such legislation in the short term – and even if it were to do so, the example of the FGM Act is unlikely to provide a solution satisfactory to the advocates of mandatory reporting, given its lack of statutory sanctions and the reliance on controls within the professional bodies concerned.

DP & FC

Cite this article as: David Pocklington and Frank Cranmer, “Child sexual abuse, safeguarding failures and mandatory reporting” in Law & Religion UK, 14 September 2018, https://wp.me/p2e0q6-bVn.

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