Mandatory reporting of child abuse cases is an issue of debate amongst the legislative, professional, and academic community in the UK. There is no statutory obligation to report abuse in the UK. Is there a causal link between this lack of statutory obligation and the historic failure of professionals to report child abuse? Would mandating the reporting of abuse change behaviour? In many of countries in the Commonwealth and in most US states, mandatory reporting is part of statute law. The Sir William Dale Legislative Drafting Clinic considered the necessity and content of possible legislative intervention in the UK.
The file was assigned to Ronan Cormacain, who worked together with Dr. Mazhar Ilahi. Ronan organised a scoping workshop with wide participation from child abuse charities, legal practitioners, and legislative counsel. The aim of the workshop was to hear the case for and against the introduction of a statutory obligation to report child abuse. The workshop took place on 10 December 2013, and attracted a large and diverse audience. The speakers at the workshop were (in alphabetical order):
Peter Garsden (Partner, Abney Garsden Solicitors, President of the Association of Child Abuse Lawyers)
Laura Hoyano (Senior Research Fellow in Law, Wadham College, University of Oxford)
Dr Mazhar Ilahi (Director, Sir William Dale Legislative Drafting Clinic)
Anne Lawrence (Barrister, advisor to MandateNow)
Sir Stephen Laws KCB, QC (former First Parliamentary Counsel)
Peter Turner (Safeguarding Adviser, Roman Catholic Diocese of Westminster)
The event was chaired by Professor Helen Xanthaki and Ronan Cormacain.
The Clinic and its staff express their sincere gratitude to each and every one of the speakers, who have offered their services to the Clinic on a voluntary basis. Special thanks are due to Mandate Now for offering background information. And to Sir Stephen Laws who explained clearly and in some depth the issues considered by legislative drafters when they are faced with a request to legislate. Special thanks to the IALS student community, and especially LLM in Advanced Legislative Studies students, for compiling a report of the workshop.
The methodology adopted was an attempt to replicate the law reform process in microcosm. The first question was whether there was a need for legislation. This involved identifying the social problem, identifying various solutions to that problem and demonstrating that legislation was a justifiable solution. Legislation, particularly criminal legislation, is generally regarded as the last resort in addressing social problems.
The second question made a rather large assumption that legislation was necessary and asked about the content of that legislation. The basic idea of many law reform projects can often be set out quite easily. However, the policy needs to be fully developed before legislation can be prepared. In the context of mandatory reporting, it is important to fully set out: the identity of the person who has the duty to report, the circumstances in which they are meant to report, the identity of the person to whom the report must be made, the threshold of suspicion before a report must be made, any defences, what sanctions are to be imposed for failure to report. These questions just scratch the surface of the full policy development that is required.
The third question is the practical one of how legislation is actually made. This was split into two parts. Firstly, the drafting of legislation was explained, how clients prepare instructions, send them to a legislative counsel who drafts legislation in response. Secondly, how Bills get turned into Acts. There are three broad mechanisms for this: (a) lobbying government so that they adopt your policy proposals and incorporate them into their own bills, (b) lobbying parliamentarians so that they introduce a Private Members’ Bill or amend a government Bill to give effect to your policy, (c) persuade the Law Commission to adopt your policy proposals and include them in one of their Bills which will then be brought before Parliament.
Although there was clear agreement on the need to do more to tackle child abuse and to encourage more reporting of it to the authorities, there was no consensus within the Workshop on the actual solutions which would produce this end result. It was clear that in many instances the current system had failed and that serious abuse had gone unreported. However, some of the empirical evidence suggested that mandatory reporting would not necessarily remedy that abuse, and that it might have unintended side effects. As against this, there were strong arguments that a mandatory reporting law would effect a cultural change within institutions which had historically failed in that regard.
The Clinic has drawn no firm conclusions. Instead it sets out a number of options.
- Retain the current legislative structure but encourage greater reporting via training and education.
- Create incentives and support for reporting by means of new legislation which encourages and gives protection to whistleblowers.
- Enact new legislation which criminalises a failure to report in very narrow and tightly defined circumstances. This legislation would contain the following elements: application only to institutional child sex abuse, in regulated activities, failure to report applies to certain professions, a mechanism for reporting.
These options (and others) will be explored in a special issue of the Institute of Advanced Legal Studies Student Law Review. The Review has issued a general call for papers. Speakers and attendees from the Workshop are warmly invited to submit papers for this special issue.
Presentation by Laura Hoyano (1 PowerPoint)
Presentation by Peter Garsden (1 PowerPoint)
Supplementary information from Peter Garsden (1 Word doc)
Presentation by Anne Lawrence (1 Word doc)
Summary of Proceedings by LLM students
Call for Papers