The Home Office has recently issued a call for evidence on its plans to implement a mandatory duty to report child sexual abuse for those working with children. The call for evidence is relevant to the education sector (schools and further education), the NHS, local authorities, and anyone working or volunteering with children in any capacity.
The Home Office is seeking views on how it should implement mandatory reporting and the appropriate sanctions for breach of the duty. Regarding the scope of the mandatory reporting duty, views are also sought as to whether the duty should:
- Cover other forms of abuse and neglect beyond child sexual abuse.
- Be on individuals, or at organisational level, or both.
- Cover only known incidents, or also include suspected abuse.
- Be disapplied in certain circumstances.
We consider the background to the commitment to introduce mandatory reporting, and the scope of the proposals under consideration in more detail below.
Background: the Independent Inquiry into Child Sexual Abuse (2015-2022)
The Independent Inquiry into Child Sexual Abuse (IICSA) was a statutory inquiry for England and Wales established in 2015. Over a period of eight years, IICSA heard ‘heart-breaking testimony from thousands of victims let down by professionals turning a blind eye to their suffering’, including over 6,000 victims and survivors of Child Sexual Abuse. IICSA published 19 reports on 15 investigations, covering a wide range of institutions.
IICSA published its final report in October 2022. One of the final report’s key recommendations, which was said to ‘form the centrepiece of the Inquiry’s work’ was for the introduction of a statutory mandatory reporting requirement.
IICSA Recommendation 13: Mandatory Reporting
(From p255 IICSA final report)
‘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:
- 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 regulated activity in relation to children (under the Safeguarding and Vulnerable Groups Act 2006, as amended);
- 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.
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.
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. 226 The Report of the Independent Inquiry into Child Sexual Abuse.
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:
- are in receipt of a disclosure of child sexual abuse from a child or perpetrator; or
- witness a child being sexually abused.’
What are the ‘recognised indicators of child sexual abuse’?
(From p208 IICSA final 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;
- Children with physical sexual health problems, including soreness in the genital and anal areas, sexually transmitted infections or underage pregnancy.
Some of the following signs may be indicators of sexual exploitation:
- Children who appear with unexplained gifts or new possessions;
- Children who associate with other young people involved in exploitation;
- Children who have older boyfriends or girlfriends;
- Children who suffer from sexually transmitted infections or become pregnant;
- Children who suffer from changes in emotional well-being;
- Children who misuse drugs and alcohol;
- Children who go missing for periods of time or regularly come home late; and
- Children who regularly miss school or education or don’t take part in education.’
Background: Home Office publicly commits to introduce mandatory reporting (April 2023)
On 2 April 2023, the Home Secretary, Suella Braverman MP, made a public commitment to introduce a mandatory reporting duty for those working or volunteering with children to report child sexual abuse (see our report here). Braveman said: ‘Child sexual abuse is one of the most horrific crimes facing our society, it devastates victims, families and whole communities. The protection of children is a collective effort. Every adult must be supported to call out child sexual abuse without fear. That’s why I’m introducing a mandatory reporting duty and launching a call for evidence. We must address the failings identified by [IICSA] and take on board the views of the thousands of victims and survivors who contributed to it…it is important to have a national conversation about this to help to shine a light on this terrible – but too often hidden – crime.’
Government response to IICSA’s final report (May 2023)
On the 22 May 2023, the Home Office published the government response to the final report of the Independent Inquiry into Child Sexual Abuse. With regards to IICSA’s recommendation 13 for mandatory reporting, the government response confirms: ‘We accept the need for mandatory reporting; the government has agreed to implement a mandatory reporting regime for child sexual abuse which will be informed by a full public consultation, beginning with the publication of a call for evidence alongside this response.’
Mandatory reporting of child sexual abuse: call for evidence (May 2023)
The Home Office has issued a call for evidence, seeking views on how implementing a mandatory duty to report child sexual abuse is likely to impact children, organisations, and affected workforces and volunteers; how different aspects of the mandatory duty could be implemented including its scope; and what the sanctions for breach of the duty should be.
Specifically, the call for evidence is seeking views on the following issues:
- Who should the mandatory reporting duty apply to? IICSA recommended that the mandatory reporting duty should apply to those working in ‘regulated activity’, those in ‘positions of trust’ and police officers. Views are sought about the possible inclusion of volunteers, who would currently be considered to be undertaking regulated activity if unsupervised, as well as those working with children who don’t fully meet the requirements of regulated activity.
- Should the mandatory reporting duty be at an individual or organisational level or both? IICSA recommended that the mandatory reporting duty should apply at an individual level. The government notes that this does not directly address the responsibility of organisations to ensure reports made within their corporate structures are referred onwards appropriately, so views are sought on whether mandatory reporting should be at an individual or organisational level, or both.
- Should the mandatory reporting duty apply to ‘suspected’ incidents? As well as direct disclosures and witnessed incidents of child sexual abuse, IICSA recommended a mandatory duty to report any observation of ‘recognised indicators’ of child sexual abuse. The government notes that making judgements in this area requires skill and experience, and that many individuals who will be subject to the mandatory reporting duty may only have limited/basic safeguarding training. Views are sought as to whether the existing guidance and resources that are available to help professionals to understand, identify and respond appropriately to concerns of child sexual abuse are sufficient, and what more could be done to equip workforces with the knowledge to identify child sexual abuse.
- Should the mandatory reporting duty cover other forms of abuse and neglect beyond child sexual abuse? The IICSA recommendation was focused on child sexual abuse, but views are sought as to whether to extend this to cover other forms of abuse and neglect.
- What should be the consequences of failing to make a mandatory report? IICSA recommended that in certain circumstances failing to make a mandatory report should be a criminal offence. The government notes that the level and manner of sanctions applicable to any breach of the duty will be a key consideration for effective implementation, that the introduction of a bespoke criminal offence may not be proportionate, and that separate consideration will need to be given to organisational level sanctions if the IICSA recommendation is expanded to the organisational level. Views are also sought from regulators and inspectorates that may also have a role in imposing non-criminal penalties to any breach of the duty by a member of a registered profession.
- What exemptions should apply to the reporting duty? IICSA recommended a single exemption for consensual relationships between children aged 13-16, subject to a number of conditions. This would require mandated reporters, who may have varying levels of sills and experience, to maintain a level of competence in applying judgements to any inter-personal relationships which they are aware of. The government is also conscious that it remains the case that sexual activity under the age of consent (16 years old) is illegal.
- What protections should mandated reporters have when they make a report? IICSA recommended that mandated reporters should be ‘afforded protection from repercussions when making a report in good faith in line with the duty to report.’ Whistle-blowing protections for individuals when reports are made in good faith might include a removal of liability for civil proceedings or breaches of professional conduct; or sanctions which could be applied to anyone acting to their detriment on the basis of their report. The government notes that this may have particular relevance to those in the healthcare workforce and others with professional memberships and registrations.
When and how to respond
The call for evidence, which closes on Monday 14 August, can be found here.
Those wishing to respond to the public consultation can do so here.
For further information, please contact:
Michael Wright, Partner, Hill Dickinson
michael.wright2@hilldickinson.com
