Two potential duties are being looked at by the Home Office; a mandatory reporting duty, or a ‘duty to act’, both of which would place the reporting of child abuse on a statutory footing.
The ‘duty to act’ would require certain practitioners or organisations to take appropriate action (which could include reporting) if they had reasonable cause to suspect that child abuse or neglect was taking place. There is currently no legal duty meaning social workers have to do this, only an acknowledgement in the Working Together guidance that they should.
The consultation document says “a range of sanctions” for professionals who fail to report child abuse or neglect could be made available, from “employer and/or regulatory sanctions to criminal sanctions”.
The two potential duties:
Mandatory reporting: Would require practitioners or organisations to report child abuse or neglect if they knew or had reasonable cause to suspect it was taking place. A comparison with other countries that have mandatory reporting systems in place found that England already has a higher referral rate. If such a duty were to be introduced in England, reports would be made to local authority children’s social care. It could replace or operate alongside the existing duty to report known cases of female genital mutilation involving under-18s in England and Wales.
A duty to act: Would require practitioners or organisations to take appropriate action (which could include reporting) in relation to child abuse or neglect if they knew or had reasonable cause to suspect it was taking place. What would be considered appropriate action under the ‘duty to act’ would “depend on the particular circumstances of each case”. It “may include reporting, but it would not be limited to this. In cases where a report has already been made, for example, the duty to act would require further action to be taken if that was appropriate. This might include sharing information with other agencies – an issue highlighted in a number of Serious Case Reviews – which can help social workers to reassess risk and, if necessary, take further protective action. It might also include providing timely and appropriate help to a child or stepping in to protect a child in a domestic violence incident.”
When plans for this consultation were first announced last year, then Prime Minister David Cameron said the government would look at whether the crime of wilful neglect, which currently applies in adult care settings, could be extended to children’s social workers, as well as other professionals working with children.
However, the consultation suggests wilful neglect would not be a criminal sanction considered.
“Extending this offence therefore involves stretching it beyond its original purpose, which could have unintended consequences,” a supporting document says.
“The wilful neglect offences nevertheless are a useful illustration of a statutory measure with both individual level and organisational level aspects.”
The principle of wilful neglect, a statutory measure with both individual and organisational elements, could still be used to construct a statutory duty “with or without an associated criminal offence”. This has informed the ‘duty to act’ option.
Potential punishment for social workers who breach either duty if they were brought into force could include existing practitioner sanctions (such as through the profession’s regulator, the Health and Care Professions Council), additional processes involving the Disclosure and Barring Service, or criminal sanctions at individual and organisational levels.
The maximum sentences for criminal sanctions would vary in severity, but for both individuals and organisation could involve fines, with imprisonment an option for individuals. Organisations could also be found criminally liable without a specific corporate criminal offence.
The report stresses that sanctions would only be introduced if either of the new duties are applied, and acknowledges that the possibility of sanctions could harm the workforce by hindering recruitment and leading to experienced, capable staff leaving their positions.
The consultation also says that a duty to act “would make practitioners more accountable” for their decisions, and would apply to senior members of organisations, like directors of children’s services.
“Even if senior managers are not delivering such activities themselves, but are in purely managerial positions, they should still be held accountable for the activities of their staff.”
The consultation asks for views on whether professionals think mandatory reporting or a duty to act would improve outcomes for children, and if a new statutory measure for reporting abuse should be introduced. It is also seeking views on what the main issues in the current child protection system are.
It closes on October 16.
When would sanctions be applied?
Under mandatory reporting, a sanction could be applied if a person failed to report abuse for any reason, other than “genuine errors or mistakes”.
“This could include, but would not be limited to, deliberate or reckless failures.”
Under a duty to act, sanctions for breaches would focus 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”.
It would mean a practitioner consciously deciding to take no action, or take action “which was clearly insufficient or inappropriate”.
Pros and cons of new duties
The document offers a series of positive outcomes for introducing new duties on professionals, as well as negative impacts of them.Mandatory reporting benefits:
- Increase awareness of the importance of reporting child abuse and neglect, both by those under a duty to report and the general public;
- Lead to more cases of child abuse and neglect being identified, and at an earlier point in a child’s life than is currently the case;
- Create a higher risk environment for abusers or potential abusers because the number of reports being made would be likely to increase; and
- Ensure that those best placed to make judgements about whether abuse and/or neglect is happening – social workers – do so. Practitioners have not always been able to confidently conclude when a child is being abused or neglect or is at risk of abuse or neglect. Requiring a wide range of practitioners to report would enable these difficult cases to be examined by social workers.
Mandatory reporting risks:
- Increasing unsubstantiated referrals, which may unnecessarily increase state intrusion into family life and make it harder to distinguish cases of abuse and neglect. Appropriate action may not be taken in every case as a result;
- Lead to a diversion of resources from the provision of support and services for actual cases of child abuse and neglect, into assessment and investigation;
- Result in poorer quality reports as there might be a perverse incentive for all those who may be covered by the duty to pass the buck;
- Focus professionals’ attention on reporting rather than on improving the quality of interventions wherever they are needed. This might encourage behaviour where reporting is driven by the process rather than focusing on the needs of the child.
- Lead to those bound by the duty feeling less able to discuss cases openly for fear of sanctions, hinder recruitment and lead to experienced, capable staff leaving their positions;
- Dissuade children from disclosing incidents for fear of being forced into hostile legal proceedings;
- Undermine confidentiality for those contemplating disclosure of abuse. Victims may be more reluctant to make disclosures if they know that it will result in a record of their contact being made;
- Have limited impact on further raising awareness of child abuse and neglect given the new government communications activity, the existing high level of media scrutiny and the work of the Independent Inquiry into Child Sexual Abuse.
Duty to act benefits:
- strengthen the existing mechanisms for ensuring accountability arrangements in the child protection system;
- aim to increase awareness of the importance of taking action in relation to child abuse and neglect, both by those under a duty to act and the general public; and
- change the behaviour of those covered by the duty by putting in place a clear requirement to take action in relation to child abuse and neglect. This could further clarify the expectations placed on individual practitioners and the organisations that they work for.
Duty to act risks:
- result in an increase in unnecessary state intrusion into family life by increasing inappropriate activity throughout the system. In some circumstances this might make it harder to distinguish real cases of abuse and neglect. Appropriate action may not be taken in every case as a result;
- lead to 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;
- allow scope for those bound by the duty to make incorrect judgements about what action is appropriate in some cases; and
- have limited benefits for further raising awareness of the importance of taking action in relation to child abuse and neglect given the new Government communications activity, the existing high level of media scrutiny and the work of the Independent Inquiry into Child Sexual Abuse.
Source: Community Care