The Government has issued its response to the call for evidence and consultation on the issue of mandatory reporting of child sexual abuse in England. The mandatory reporting duty will be introduced through amendments to the Criminal Justice Bill, which is at the Commons report stage, and the Government will draw on the outcomes of the consultation when considering the amendments to the bill. Lauranne Nolan, Associate and Safeguarding Lead in the Keoghs specialist abuse team, considers the response further below.
Following the call for evidence and as part of the consultation process which closed on 30 November 2023, the Government invited comments on:
- who the duty should apply to;
- how reporters could be protected;
- any exceptions which should apply; and
- the nature of sanctions which should apply to non-compliance with the duty.
The responses
A total of 350 responses to the consultation paper were received, which fell into the following four themes:
- Impact on children and young people. Some respondents raised the potential impact of a mandatory reporting duty on the provision of safe spaces for children to discuss their concerns. Concerns were also raised in relation to limiting the duty to direct disclosures which would be disadvantageous to babies, children and young people who are non-verbal or experiencing language barriers.
- Preparing for the duty. A consistent theme among the responses was the need for reporters to receive adequate training and guidance. The Government has advised that it will set out clear guidance on the operation of the duty in addition to working with regulators and professional standards-setting bodies to ensure the new duty is clearly communicated ahead of implementation. However, incorporating knowledge of the duty within recruitment, induction and working practices will be a task for all individuals and organisations affected by the duty.
- Wider impacts. A considerable number of responses raised issues with the potential impact on recruitment and retention in reporting roles with many stating that the obligations surrounding the reporting duty could dissuade members of the public from roles involving children and young people. In addition, some responses highlighted that introducing a duty to report child sexual abuse may create a ‘hierarchy of abuse’ in England, with physical abuse, emotional abuse, and neglect in danger of being perceived as less important and, as an unintended consequence, receive a less robust response from safeguarding professionals and organisations. Finally, the cost of supporting the additional victims identified by reporting under the duty and the potential impact on the criminal justice system was also raised as a concern.
- Alignment with other reforms and strategy. The duty is to be implemented in England and it must sit within an integrated cross-government strategy to prevent harm, deal effectively with perpetrators, and support victims and survivors. Concerns were raised as to how the duty would interact with reporting and safeguarding regimes in the UK’s devolved administrations.
The Government’s responses to the consultation questions
- Who the duty should apply to. Several respondents were concerned that defining specific roles could lead to unintentional loopholes in the duty. The Government has confirmed that it will consider setting out a clear list of activities or functions in relation to children rather than roles, as well as providing a regulation-making power in legislation to ensure any identified gaps can be filled, as well as to future-proof the mandatory reporting duty against the emergence of new functions or settings which would fall under the duty.
- How reporters could be protected. The responses suggested more of a preference for anonymous or confidential reporting as an appropriate protection. However, the Government considers that anonymous reporting would pose some contradictions with the implementation of a duty on individuals. It will be in the reporter’s interest to ensure the actions they have taken in respect of the duty are clearly documented. The Government has confirmed it will provide clarity to relevant agencies on how a reporter’s details should be handled from the point of a report being made, including that it should be made available only to those who require it.
- Any exceptions which should apply, other than the exemption of consensual peer relationships. The overwhelming response to this indicated that no further exemptions should apply to the reporting duty. However, some health sector respondents were concerned that disclosures or confessions made by someone who lacks mental capacity or recounts a false memory or a delusion suffered during a mental health crisis would have to be reported under the duty. The Government has confirmed that it will ensure that the duty excludes cases where a suitable professional has assessed, with a reasonable foundation, that a disclosure or confession is not genuine and results from a person’s mental illness.
- The nature of sanctions which should apply to non-compliance with the duty. Responses to this indicated a reasonably even split between the options of fines, imprisonment or both. The Government is, therefore, considering this further but has remained clear that liability will extend to the person engaging in such conduct, and not organisations. A key criticism that has been raised here is that the Government has chosen not to attach criminal penalties to failures under the reporting duty, considering referrals to the Disclosure and Barring Service (and professional regulators where applicable) to be a more appropriate outcome. On the other hand, the reporting duty itself is accompanied by tough, punitive measures for anyone who seeks to cover up abuse. An individual who seeks to obstruct a reporter from carrying out their duty to report will face the prospect of up to seven years imprisonment.
Conclusion and next steps
The mandatory reporting duty will, first and foremost, be a safeguarding measure. A report made under the duty is essentially sharing information with the appropriate agencies, who can consider it further and take appropriate action to safeguard and support the child involved where necessary.
The Government is keen on an effective and consistent roll-out and once the Criminal Justice Bill receives royal assent will allow a period of time for impacted workforces to update relevant policies and processes before commencing the duty. Following this and a specified period of time, there will be an evaluation of the operation of the duty which will consider the impact of the duty on outcomes for children and young people as well as system operations.
As stated above, the Government has decided against criminal penalties where an individual fails to report but has proposed criminal sanctions for an individual who blocks someone from reporting abuse. Many consider this occurrence will be rare and it would be far more likely that the person who suspected or received the disclosure simply did not report it and the criminal sanctions are, therefore, not going to be sufficiently utilised.
It remains to be seen how the implementation process will work and what, if any, impact it will have on reporting child sexual abuse. However, the Government is keen to stress the importance that introducing a duty on specific roles and or activities and functions does not undermine the message that safeguarding is everyone’s responsibility.
