Missed opportunity to protect children with new laws on duty to report sexual abuse

Proposed laws to protect children from sexual abuse do not go far enough, we believe.

The Government has published its response to hundreds of organisations involved in child safety, including Bolt Burdon Kemp, who gave their thoughts on whether there should be a legal duty to report child sexual abuse.

The call for evidence was launched in May last year after the Independent Inquiry into Child Sexual Abuse made recommendations to change the law in its final report in October 2022.

While overall we support any changes to make children safer, unfortunately it looks like the inquiry’s proposals will be watered down and this is a missed opportunity.

The Inquiry had been established by the then-Home Secretary Theresa May to look at the extent to which state and non-state institutions in England and Wales have discharged their duty to protect children from sexual abuse.

The report laid out its investigations and in doing so documented unacceptable cases of organisations and institutions failing to protect those in their care from child sexual abuse. It set out a number of recommendations to improve the current failings.

One of those recommendations was for the Government to introduce a mandatory reporting duty for cases of child sexual abuse.

The Inquiry recommended new legislation that places certain individuals 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.

According to the Inquiry, reports should be made to either local authority children’s social care or the police as soon as practicable, and it should be a criminal offence for mandated reporters to fail to report child sexual abuse where they receive disclosure of child sexual abuse or witness a child being sexually abused.

The changes BBK wants to protect children

In light of the Inquiry’s recommendation, on 22 May 2023 the Government launched a call for evidence asking for views on how implementing a duty to report child sexual abuse is likely to impact children, organisations and volunteers, and how different aspects could be implemented.

Protecting and ensuring the safety of children goes to the heart of what BBK’s Abuse department does. In acting for thousands of survivors of abuse, and as specialists in abuse law, we have seen firsthand the damage that institutional failures in protecting children can cause.

We were therefore passionate about taking part in the shaping of this new legislation and a Partner in the Abuse team, Rebecca Sheriff, wrote to the Government on behalf of BBK.

The overarching message of the letter was this: We must prioritise the protection of vulnerable children and ensure those who are looking after them have a duty to report sexual abuse.

Our letter listed a whole range of specific roles we believe should be subject to the mandatory reporting duty including medical professionals, the police, religious organisations, sports clubs, and anyone entrusted with the care of a child.

We also made it clear that to see wholesale change, there should be real repercussions for non-reporting. We suggested a prison sentence should be considered for those who deliberately obstruct a report of child abuse being made under the new duty and that fines should be considered where a report has been obstructed due to indifference or negligence.

In short, the Government must take a hard stance to protect the safety of children.

The Government’s response

Last Friday, the Government published replies to some of the issues raised by those who gave evidence.

According to the Government the call for evidence attracted more than 1,000 responses and opinions were split on a number of issues, including whether breaching the duty should be considered a criminal offence. Many respondents said introducing the mandatory reporting duty could lead to the closure of, or significant disruption to, services for children and young people where confidentiality is essential to delivery.

The Government stated the mandatory duty to report child sexual abuse will not be accompanied by criminal penalties if an individual fails to report, however a new criminal offence will be designed targeting punishment at those seeking to prevent the duty from being carried out.  Should an individual seek to obstruct a reporter from carrying out their duty, they could face up to seven years imprisonment.

The Government has also provided a mechanism which can disapply the duty for disclosures made in very exceptional circumstances (for example, confidential helplines where the loss of confidentiality would fatally undermine the service model).

Our thoughts

Our Abuse department here at BBK welcomes the introduction of a mandatory duty to report child sexual abuse.

However, as the consultation currently stands, we do not think the Government has gone far enough in its attempts to protect children through the proposed new duty.

In our letter to the Government, we made it clear organisations should fall under the mandatory duty to report including social services and the police, however the Government has decided not to include organisational reporting at this time. We agree with other respondents that bringing forward a duty on individuals and not organisations or institutions represents a missed opportunity.

We also disagree with the Government’s decision not to make organisations financially liable for their employees who fail to report child sexual abuse. We suggest making organisations responsible for, and liable to be penalised for, their employees’ or volunteers’ breaches would lead to real impetus for organisational-wide change.

Nevertheless, overall we support this new mandatory duty and we look forward to receiving updates from the Government as they progress their consultation and move closer to finalising and introducing the duty.

We will continue to communicate our views and advocate for victims of abuse with the hope the Government will take as strong a stance as possible when introducing this new duty to report childhood sexual abuse.

A child’s safety should always come first, and we believe the reputations and concerns of organisations who may be affected by the new mandatory reporting duty are not and should not be treated as a priority.