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Forbes Social Services & Abuse Claims blog series into the IICSA Report - Series 3: Recommendation 13, Mandatory Reporting

This article is the third in our IICSA blog series and will explore recommendation 13, which suggests that the UK and Welsh government introduce mandatory reporting requirements for those who work with children in certain roles to report child sexual abuse to the police and social services.

What is the recommendation?

The Inquiry recommends that certain individuals should be 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, such as physical signs of abuse or consequences of abuse such as pregnancy or sexually transmitted diseases.

The Inquiry also notes that the following groups should be designated 'mandated reporters';

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

Mandated reporters will therefore include;

• anybody regularly involved in caring for, training or supervising, or having supervised contact with children who are:
  • detained in an institution;
  • resident in a home provided by a Local Authority or voluntary organisation;
  • accommodated in a hospital, care home, children's home or community home;
  • receiving education at an educational establishment.
• and 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.

In terms 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.

If the child is aged between 13 and under 16 years old, the Inquiry proposes that a report does not need to be made if the mandated reporter reasonably believes that the relationship between the parties is consensual and not intimidatory, exploitative or coercive. In addition, the mandated reporter must also reasonably believe:

• that the child has not been harmed or is not at risk of being harmed;
• that there is ultimately no material difference in capacity or maturity between the parties engaged in the sexual activity concerned and
• that any difference in age is of no more than three years.

unless the alleged perpetrator is in a position of trust within the meaning of the 2003 Act, in which case the exemption is disapplied.

The Inquiry proposes that where the child is under the age of 13, a report must always be made.

The Inquiry recommends that reports be made to either the Police or the Local Authority children's social care department as soon as is practicable.

Proposed Sanctions

The Inquiry believes that 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 if they witness a child being sexually abused.

Mandatory reporting laws in other countries stipulating sanctions for failure to report can range from fines to custodial sentences.

Why has the recommendation been suggested?

England and Wales currently do not have mandatory reporting laws in place unlike other international jurisdictions such as Australia, France and the Republic of Ireland.

The Inquiry believes that the current provisions for reporting obligations are confusing, unfocused, and ineffective.

The Inquiry's recommendation to implement mandatory reporting echoes that found in other jurisdictions; the Inquiry believes this will make a fundamental change to the way institutions identify and report child sexual abuse.

The Inquiry has stated that its proposals should not discourage individuals from reporting concerns which may fall outwith the specific ambit of the mandatory reporting regime.

What would be the effect on Local Authorities and the Public Sector?

Mandatory reporting has always been controversial. In 2014, the Government announced plans to consult on whether to bring in mandatory reporting as a result of pressure to make it easier for professionals to report abuse concerns in the wake of high-profile child sexual exploitation cases around the country, however, no changes were introduced at that time.

The issue has not gone away, and clearly Alexis Jay and the Inquiry feel that there is merit in placing the duty to report abuse on a statutory footing.

Those identified as 'mandated reporters' will perhaps feel greater pressure to make referrals, and this could foreseeably lead to a greater numbers of referrals, putting social services departments under greater strain. There are those who also believe that resources may be taken away from tackling child abuse at ground level.

Judging when a relationship is harmful is intrinsically subjective and often complex, especially when working with those aged 15 and 16. The need to take the reporting of child sexual abuse seriously however, must be encouraged, albeit we recognise that the imposition of sanctions for failures may have adverse consequences for those charged with decision making.

For more information contact Lucy Harris in our Insurance department via email or phone on 01254 222443. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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