Law Society warns on mandatory child abuse reporting duty

A mandatory duty to report child abuse and neglect would simply lead to high volumes of unsubstantiated reports that fall far below the significant harm threshold, the Law Society has warned.

In its response to a Home Office consultation on the proposed introduction of such a duty, Reporting child abuse and neglect, Chancery Lane said: “Inescapably, investigating these reports will place a greater burden on already limited local authority resources. In addition, where professionals face strong, possibly criminal, sanctions, there is a danger that they become preoccupied with the quality of their reporting.

“This preoccupation to report, and subsequent requirement to investigate, would draw resources away from meaningful early support for those children and families who could be better helped outside of the care system and those most at risk of abuse and neglect. We are not convinced that this is a suitable solution for children.”

The Law Society pointed to comments made recently by the President of the Family Division, Sir James Munby, where the judge said the courts faced “a clear and imminent crisis” as a result of the rapidly rising number of care case.

“The reasons for this increase are undoubtedly multifaceted but are likely attributable to defensive practice,” it said. “The introduction of a mandatory duty to report may exacerbate this, leading to unnecessary intrusions into family life. It is highly likely that a perverse consequence of a mandatory reporting duty would be to increase the numbers of cases brought before the family courts. The family justice system, without a substantial increase in resources, would struggle to cope with any such increase.”

Under the Home Office/Department for Education proposals, a wide range of practitioners or organisations that work with children could face criminal sanctions for failing to report child abuse and neglect.

The consultation sought views on the possible introduction of one of two additional statutory measures:

• a mandatory reporting duty, which would require certain organisations and any person working with children to report child abuse or neglect if they knew or had reasonable cause to suspect it was taking place;
• a duty to act, which would require them to take appropriate action in relation to child abuse or neglect if they knew or had reasonable cause to suspect it was taking place.

The consultation paper said that if a mandatory reporting duty were introduced in England, reports would be made to local authority children’s social care.

Chancery Lane said it understood the policy considerations driving the proposals but cautioned against the introduction of new wide reaching duties. It also warned that new statutory measures could introduce unintended consequences.

The Law Society said that although mandatory reporting had been deployed as a child protection tool in various countries, it was not convinced by the data cited from international jurisdictions. Professionals in England and Wales operate within a robust statutory framework, it added.

“There are clear consequences for the small proportion of professionals who work regularly with children but fail to adequately safeguard their welfare, including employer sanctions and redress through the courts for serious failings,” it said, adding that research by the NSPCC showed that between 2014/2015, over 600,000 referrals were made to local authority children's social care services. These referrals were made by professionals within the health service, the police force, schools and local authorities.

Chancery Lane said it would support measures which encouraged shared responsibility and accountability for practitioners working with vulnerable children. “The duty to act attempts to introduce this, however, as currently proposed, it is difficult to envisage how this duty would operate in practice,” it argued.

The Law Society called for further consideration "as to how a duty to act could be effectively drafted and implemented to:

• protect the right to family life and ensure intrusions are proportionate;
• ensure appropriate actions are taken in all cases by appropriate practitioners: it is vital that only those professionals trained to engage with children and families carry out interventions. It is also essential to ensure ownership of children's social work is not diluted away from local authorities;
• minimise the potential for excessive action, particularly where suspected abuse or neglect does not meet the significant harm threshold;
• retain data protection safeguards;
• effectively and proportionately impose sanctions at the correct levels (whether on the individual practitioner or an organisation);
• minimise any adverse effects on the recruitment and retention of staff."

Chancery Lane meanwhile expressed concern at a suggestion that a mandatory duty to report or a duty to act should extend to vulnerable adults.

“Although we welcome the strengthening of legal protections for vulnerable individuals, the consultation makes little reference to the complex statutory framework underpinning the services and safeguards already in place for this group. We caution against extending either duty without careful consideration and a strong understanding of the services available to support vulnerable adults. To ensure any proposed changes are effective, we welcome a separate consultation exploring the impact a mandatory duty to report or to act might have on vulnerable adults,” it said.