Mandatory reporting of child sexual abuse: The Consultation

In April 2023, in response to the final IICSA report, the Home Secretary announced that the Government would seek to deliver a mandatory reporting regime, which would be informed by a full public consultation. A call for evidence on the potential implementation of such a duty began on 22 May 2023 and concluded on 14 August 2023. Views were sought on how implementing the duty was likely to impact children and organisations, as well as workforces and volunteers and how different aspects could be implemented. It received over one thousand responses.

Lauranne Nolan, Associate and Safeguarding Lead in Keoghs specialist abuse team, previously discussed this recommendation following the final report here in addition to a further article following the Government’s response to the recommendation and the call for evidence which can be found here.

Present position

The Government has now collated the views produced via the call for evidence and is launching a consultation to set out proposals for delivering a mandatory reporting duty and test the remaining undecided policy questions. It then intends to issue a single response to address both exercises. This current consultation is shorter than the call for evidence, opening on 2 November 2023 to run to 30 November 2023. The Government has indicated that responses will be produced within 12 weeks, which would be mid to late February 2024.

Outcome of the call for evidence

It is understood that the call for evidence demonstrated several areas of general agreement such as who should be considered to be a mandated reporter and the potential benefits of the creation of such a duty in order to improve the child protection system. There was also agreement on the critical importance of ensuring the new duty contains appropriate protection for individuals who make their reports in good faith.

However, there were points which generated mixed opinions. While it was agreed there should be protections for reports made in good faith, views were split on whether or not failing in the duty to report should be a criminal offence, with many saying different forms of punishment should be available based on the context and severity of failures. It appears that views were also split on what should be reported. Many consider that the duty to report should only apply when they are directly told of sexual abuse by a child or perpetrator or witness it themselves, whereas other respondents felt that being required to report when recognised indicators were observed would highlight the importance of early identification preventing more severe harm.

The call for evidence has also identified a range of issues that require further consideration before the duty is implemented, including reporting processes, training, and guidance. In addition, a consultation impact assessment has been prepared – this indicates that certain groups are likely to be particularly affected by the introduction of a mandatory reporting duty as it may lead to additional costs for businesses, charities, the voluntary sector, and the public sector. Most of these costs are expected to impact the public sector, driven by an increase in the cost of police investigations into child sexual abuse. Costs to police are estimated between £15.8 million and £84.9 million with a central estimate of £48.7 million over 10 years. Other affected groups are likely to include the Crown Prosecution Service for prosecuting additional offences, and victim organisations to cover additional victims who need to access support services.

The Consultation

The Government is seeking further views on:

• How the Government should define who is subject to the duty: IICSA recommended that the duty applies to persons engaging in regulated activity, persons occupying positions of trust and police officers. It is thought that while this is to be the foundation for who is subject to the duty, the Government is proposing to create a bespoke list of additional roles that would also be subject to the duty, rather than relying on the positions of trust legislation.
• What protections should be in place for reporters: It is proposed that there will be specific protections for individuals when reports are made in good faith, as well as protection against repercussions on the basis of having made a report or having raised that a report has not been made.
• Limited circumstances in which the reporting duty may not apply: IICSA suggested that where there is a consensual relationship between young people this would not be considered child sexual abuse in the absence of coercion or significant differences in age or maturity, and an exception should be made under the duty in such circumstances. However, as the inquiry did not set out any further exceptions which should apply to the reporting duty, the Government is seeking views on whether there are other circumstances in which a report may not need to be made.
• Whether the duty should apply to known or suspected incidents: IICSA recommended that the duty applies where a reporter is told about abuse, witnesses abuse or recognises signs which may indicate abuse is taking place. The current view appears to be that the duty should be limited to disclosures and incidents the reporter has personally witnessed. This means that breaching the duty will involve deliberate inaction, rather than a subjective assessment of indicators.
• What sanctions should apply in respect of the duty: IICSA recommended that failure to report disclosures or witnessed incidents should be a criminal offence. A number of respondents to the call for evidence suggested that sanctions for breaching the duty should be determined and imposed by professional regulators for those in regulated professions. All mandated reporters, whether professionally regulated or not, should be referred to the Disclosure and Barring Service (DBS) for discretionary barring consideration. The Government is seeking views on whether non-criminal sanctions might provide more proportionate penalties which take into account the different levels of responsibility and experience applicable to the wide range of people who undertake regulated activities in relation to children, including volunteers. The Government is, however, considering a separate criminal offence reserved for anyone who deliberately obstructs an individual from carrying out the duty by destroying or concealing evidence or applying pressure on an individual to prevent them from reporting.

Conclusion

The Government has received much criticism on the basis that it is now over a year since the final report was published and not one of the main recommendations has been implemented, despite the amount of money spent on an inquiry that lasted eight years. However, it does appear that while progress may be slow, the Government remains committed to this recommendation and the implementation of a mandatory duty to report child sexual abuse.

For more information, please contact:

Lauranne Nolan, Associate

Email: LNolan@keoghs.co.uk