86. Mandatory reporting is a powerful weapon against child sexual abuse, but caution must be exercised to ensure that the legislation works for the people it is intended to protect. Having considered a range of views during its investigations and the various possible approaches to a scheme, the Inquiry has concluded that mandatory reporting is required so that those who work with children in certain roles report child sexual abuse to the police or social services.
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:
The following persons should be designated ‘mandated reporters’:
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.
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:
These exceptions should not, however, apply where the alleged perpetrator is in a position of trust within the meaning of the 2003 Act.
Where the child is under the age of 13, a report must always be made.
Reports should be made to either local authority children’s social care or the police as soon as is practicable.
It should be a criminal offence for mandated reporters to fail to report child sexual abuse where they:
87. Mandatory reporting laws are designed to facilitate the prompt and efficient reporting of child sexual abuse and to remove subjective filters of self-interest, fear, seriousness or credibility. They are not designed to encourage people to undertake their own investigations where they suspect abuse, or to conduct their own assessment about whether or not they believe an allegation to be true or false. Nor are they designed to interfere with the private enjoyment of sexual relationships between young people that are safe and consensual. The law must clearly define the level of ‘knowledge’ a person is required to have and the ‘abuse’ that triggers a report.
88. A mandatory reporting duty must define what individuals need to know before a report is required to be made. Some mandatory reporting laws relate to ‘known’ abuse, whereas others refer to ‘alleged’ or ‘suspected’ abuse. In the Republic of Ireland, for example, the Children First Act 2015 requires reports from a mandated person who “knows, believes or has reasonable grounds to suspect … that a child – (a) has been harmed, (b) is being harmed, or (c) is at risk of being harmed”.[1]
89. A law requiring an individual to ‘know’ that a child has been sexually abused implies that the reporter would have to be satisfied of the truth of the allegation. In some cases this is uncomplicated; ‘knowledge’ might be based on the fact that a reporter has witnessed the abuse, has seen evidence of it (by, for example, having seen incriminating messages or images) or has heard a confession by the perpetrator.
90. However, ‘knowledge’ might be taken to imply a subjective test, which can lead to prejudice and bias, and may encourage individuals to conduct some level of investigation into an allegation themselves. All that should be required is that the individual knows – or ought to know – that the information they are presented with amounts to an allegation of sexual abuse.
91. A person should be required to report when they either receive a disclosure of child sexual abuse from a child or perpetrator, or witness a child being sexually abused. A failure to report in those circumstances should be a criminal offence, as discussed below.
92. In many circumstances an individual working with children may recognise indicators of child sexual abuse that give rise to a reasonable suspicion that the child has experienced, or is experiencing, sexual abuse. It was evident throughout the Inquiry’s investigations, and supported by accounts provided in the Truth Project, that in a number of cases clear signs of child sexual abuse were missed or not acted upon. These included, for example, sexualised or sexually harmful behaviour, physical signs of abuse or consequences of sexual abuse such as pregnancy or sexually transmitted diseases.[2] There should also be an obligation to report abuse based on well-recognised indicators of child sexual abuse. Those indicators should be set out in detailed guidance that can be updated and amended as needed. However, the Inquiry acknowledges that identifying indicators of abuse is more complicated than witnessing or receiving a disclosure of child sexual abuse and so a failure in respect of this aspect of the duty should not attract a criminal sanction.
93. For the purposes of mandatory reporting as recommended by the Inquiry, a mandated reporter should report any act that would amount to an offence under the Sexual Offences Act 2003 (the 2003 Act, or any subsequent relevant legislation) where the alleged victim is aged under 18.
94. However, in some limited circumstances where the victim is aged between 13 and under the age of 16 a different approach may sometimes be necessary.
95. In England and in Wales, the legal age of consent is 16. The 2003 Act therefore criminalises a wide range of sexual abuse committed on children under the age of 16 including rape, penetrative and non-penetrative sexual assaults, sexual activity with a child, and grooming offences. In law, children under the age of 13 cannot consent to any sexual activity and so the 2003 Act also includes separate offences for children aged under 13.
96. It is not always the case that all sexual activity involving children under the age of consent is prosecuted. While there is no suggestion that acts of this nature be decriminalised, Crown Prosecution Service guidance states that consensual sexual activity between teenagers should not be prosecuted unless there are aggravating features such as an element of abuse or exploitation.[3] Just as it is not in the public interest to prosecute children and young people in a consensual relationship, it is not in the public interest to criminalise mandated reporters for failure to report consensual teenage sexual activity that would not ordinarily be prosecuted.
97. An exception to the mandatory reporting regime is therefore essential. Without it, for example, a teenager (in a relationship with someone close in age) who seeks advice on contraception or sexual health may worry that a formal report will be made to the police or social services and that there may be an investigation into the circumstances of their relationship. This is likely to deter young people in non-abusive relationships from seeking advice.
98. Internationally, many mandatory reporting laws carry exemptions for particular forms of sexual relationships between children and young people. For example, in the Republic of Ireland there is an exemption in respect of sexual activity involving a child “who is aged 15 years or more but less than 17 years” where the other party is no more than two years older and there are no issues regarding capacity to consent or a relationship of power over the younger party.[4] In Canada, there is a ‘close in age’ exception to the statutory age of consent which means that a child aged 14 or 15 can consent to sexual activity with another person who is less than five years older, and a child aged 12 or 13 can consent to sexual activity with another person who is less than two years older, providing there is no position of trust and the activity is not exploitative.[5]
99. The Inquiry therefore recommends that where the sexual activity relates to a child:
100. There are also specific child sexual abuse offences designed to protect 16 and 17-year-olds from sexual relationships which would not be criminal but for the perpetrator’s position of trust in relation to the child. In short, while the child ostensibly consents to the activity, the law considers that consent is not relevant because of their particular relationship with the abuser. Individuals within the scope of a position of trust offence include those who look after children under the age of 18 in local authority accommodation, in care homes, hospitals and educational institutions as well as those who regularly coach or teach in a sport or a religion. Evidence heard by the Inquiry into the scale of abuse in these settings makes it essential that these cases come within the mandatory reporting regime. Accordingly, 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.
101. In international models of mandatory reporting, the individuals subject to a duty to report are most commonly those employed in education, health, the police and social care. In the Republic of Ireland, mandated professionals include those working in health and social care, organised sports, religion, teaching and law enforcement, and managers of language schools, domestic violence shelters and accommodation for asylum seekers and those who are homeless. Across Canada, mandated professionals include those who work in healthcare, education or childcare, religious officials, lawyers, government employees and police officers. Several jurisdictions have a relatively lengthy list of mandated reporters that includes people employed in or associated with non-public bodies.[6]
102. Typically, mandatory reporting duties apply to individuals. In a minority of jurisdictions, such as Australia’s Northern Territory, mandatory reporting applies to all (adult) citizens.[7] In Ontario, Canada, both the public and professionals are mandated to report, but the sanction for failure to do so (a fine of up to the equivalent of £3,000) only applies to professionals.
103. The category of individuals who are to be required to report must be carefully identified. Individuals engaged in regulated activity (as set out in Part E) are among the individuals who are most likely to become aware of an allegation of sexual abuse from a child, or to observe indicators of child sexual abuse from a child’s behaviour or physical presentation. They should therefore be subject to a law of mandatory reporting.
104. There are other professions to which a responsibility to report should also apply. The Sexual Offences Act 2003 (the 2003 Act) contains ‘abuse of position of trust’ offences, criminalising sexual abuse committed by adults who occupy a position of trust as defined in the 2003 Act. Currently, those in ‘positions of trust’ are persons who ‘look after’ (are regularly involved in caring for, training or supervising, or have unsupervised contact with) children who are:
105. Positions of trust in the 2003 Act also include adults who look after a child on an individual basis or have regular unsupervised contact with children because of a specified statutory or court-appointed duty, such as guardians or carers, and includes foster carers. This has recently been amended to extend the definition of positions of trust to include coaching, teaching, training, supervising or instructing in a sport or a religion, where this is done on a regular basis.[8]
106. There are several groups of individuals whose work may bring them into contact with children but who do not fall within the definition of positions of trust or regulated activity. Some of those may, because of the nature of their role, become aware of reports of child sexual abuse of the sort that ought to be subject to mandatory reporting. In particular, police officers in the course of their work might receive a disclosure or become aware of evidence of child sexual abuse whilst investigating an allegation of a non-sexual crime. A failure to formally report such disclosure should be covered by mandatory reporting laws.
107. In the absence of a statutory category that extends to all the groups of people who ought to be subject to a duty of mandatory reporting, the Inquiry recommends that mandatory reporting should apply to all individuals who fall into the existing statutory categories of regulated activity and positions of trust, and to police officers. It will be for the government to consider whether present statutory categorisations of individuals who work with children require review.
108. Institutions should make arrangements so that there are not multiple reports of the same incident. For example, where an organisation has procedures for reporting child protection concerns (such as an appointed designated safeguarding lead), reports could be escalated through those procedures and a report made on behalf of the organisation. Individuals should also be assured – by both their organisation and the mandatory reporting scheme – that they will be afforded protection from repercussions when making a report in good faith in line with the duty to report.
109. Some core participants and witnesses argued that a mandatory reporting law ought to provide exemptions for some faith-based settings or personnel and, in particular, in the context of sacramental confession.[9] As the Inquiry has already noted, the respect of a range of religions or beliefs is recognised as a hallmark of a liberal democracy.[10] Nonetheless, neither the freedom of religion or belief nor the rights of parents with regard to the education of their children can ever justify the ill-treatment of children or prevent governmental authorities from taking measures necessary to protect children from harm. The Inquiry therefore considers that mandatory reporting as set out in this report should be an absolute obligation; it should not be subject to exceptions based on relationships of confidentiality, religious or otherwise.
110. All mandatory reporting laws specify the agency to whom the report must be made, typically the police, social services or a dedicated agency. For example, in the Republic of Ireland, the Child and Family Agency receives reports.[11] The Child and Family Agency also provides literature and online training to assist mandated professionals in their reporting duty, as well as designated points of contact in each jurisdiction to provide advice and clarification.[12]
111. In England and in Wales, existing practice (pursuant to statutory guidance) is that child safeguarding concerns should be reported to local authorities.[13] If a child is in immediate danger, a report should be made to the police immediately. A mandatory reporting law should therefore provide that reports should be made to local authority children’s social care or the police, to allow mandated reporters to direct their report to the most suitable agency depending on the circumstances. In the majority of circumstances, this will be local authority children’s social care services, who can take action as appropriate to protect the child, including involving other agencies such as the police. An individual social worker or police officer in receipt of information that would trigger the duty to report must make a report to the appropriate department defined by their institution.
112. To ensure the effectiveness of any mandatory reporting duty, the government must ensure that agencies receiving reports are sufficiently resourced to be able to respond to any increase in reports about child sexual abuse that mandatory reporting laws generate. The UK government and the Welsh Government should collect and publish data on the operation of the mandatory reporting scheme.
113. Most, but not all, mandatory reporting laws also stipulate a sanction for failure to report. Some sanctions are criminal in nature (such as a fine or custodial sentence).
114. Criminal sanctions for failures to report vary in severity. For example, mandated reporters who fail to report child sexual abuse in line with their statutory duty in Western Australia face a $6,000 fine.[14] By contrast, Article 434-3 of the French Penal Code stipulates that a failure to report allegations of sexual abuse to the relevant authorities carries a three-year prison sentence and a €45,000 fine, or five years’ imprisonment and a €75,000 fine where the offence concerns a child aged under 15.[15] Some jurisdictions have introduced mandatory reporting without a criminal penalty, such as the Republic of Ireland, and in New South Wales the criminal penalty for mandated reporters who fail to report was removed in 2010.
115. In England and Wales, criminal sanctions exist for failure to report safeguarding concerns to the appropriate authority. For example, regulated activity providers must make a referral to the Disclosure and Barring Service where a person working in regulated activity has resigned or been dismissed, or moved to a different role, due to concerns that they may pose a risk of harm to children or vulnerable adults. Failure to comply with this duty is a criminal offence, punishable with a fine.[16]
116. Where an individual to whom mandatory reporting laws apply has witnessed or received a disclosure of child sexual abuse, it should be a criminal offence to fail to report that to the relevant local authority or police force. Such a failure would amount to a deliberate decision not to pass on information about child sexual abuse to those authorities empowered to protect children from harm and to prevent future abuse by investigating and prosecuting it when it occurs. For those who work with children or are in a position of trust to fail to facilitate that is inexcusable, and the sanction for such an omission should be commensurate.
117. 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. Reports of this nature must be encouraged, and organisations must provide their staff with necessary and regular training to support recognition of indicators of child sexual abuse.
118. The introduction of this statutory duty is not intended to discourage an individual from reporting concerns about child sexual abuse which do not fall within the specific ambit of the mandatory reporting regime.
119. The current absence of mandatory reporting laws in England and in Wales marks these jurisdictions as outliers among internationally comparable jurisdictions. As regards reporting obligations, the current provisions are confusing, unfocussed and ineffective. The Inquiry’s recommendation for mandatory reporting resonates with that found in many other jurisdictions and will represent a fundamental change to the way institutions identify and report child sexual abuse.