The Department of Education published a report “Working Together to Safeguard
Children”. It covered the legislative requirements of the relevant services to
safeguard the welfare of children. After publication, a spokesperson said that
mandatory reporting was "not the answer and there are no plans to change the
law. Guidance is already crystal clear that professionals should refer
immediately to social care when they are concerned about a child.”
Loudoun Trust generally agrees with this opinion, but with some reservations. We
come to our conclusions on the question of possible mandatory reporting after
applying “the Mischief Rule” to the matter.
mischief rule is one of the three rules of statutory interpretation
traditionally applied by judges in English courts. Its main aim is to determine
the "mischief and defect" that any statute has set out to remedy, and what
ruling would effectively implement this remedy. In applying the Mischief Rule,
English judges are essentially asking what part of current law is not covered,
- and was meant to be rectified by the parliament in passing a Bill into law.
is basic judicial guidance, having been first applied in the 16th-century.
Legislators must consider it before drawing up fresh legislation in any area of
follows that, when drawing up a Bill, the legislative arm of government should
consider three questions.
First, before making such changes, they must consider what is already in common
Secondly, they should define the ‘mischief and defect’ for which the common law
does not provide.
(iii) Lastly they should consider what remedy should be brought to Parliament to
remedy or cure the ‘mischief or defect’.
proposed change in the law should also be framed in a manner so that judges may
use it to suppress the mischief, advance the remedy, and
suppress any subtle inventions and evasions which might allow any
continuance of the mischief.
therefore, “where’s the mischief” in current law concerning child sex abuse. Is
a change necessary? Would any proposed change be beneficial and would there be
conflict between any new law and current legislation?
Loudoun Trust is of the opinion that mandatory reporting, as has been suggested,
is not necessarily the best way forward. We follow the opinion of the Department
of Education issued in 2013 that mandatory reporting is not the answer and there
should be no plans to change the law, either to enforce mandatory reporting or
to introduce punishment for “failure to act”.
However, we are also of the opinion that there needs to be clarification of
current law and clarification and harmonisation of current professional
guidelines for all professions that deal, in any way, with children. We further
believe that such guidelines that are issued to professional bodies should have
an equivalent for all persons who deal in any way with children.
Universal mandatory reporting and “failure to act” legislation, even with
“suspension” in certain cases, will punish “non-perpetrators” - some would call
them the “innocent” – instead of the perpetrators. It will actually suppress the
natural desires of such persons to report their suspicions in a case of child
sex abuse. This hardly addresses the true “mischief” in child sex abuse.
Trust is of the opinion that any modifications in the procedures concerning
child sex abuse should actively encourage and facilitate the reporting of such
suspicions, rather than suppressing them. Routine reporting of suspicions of
child sex abuse would clearly advance the remedy, it should not be obstructed by
the threat of “failure to act”.
where exactly is the “mischief”?
report in November 2015 by the Children’s Commission, entitled “Protecting
Children from Harm” recorded that up to two thirds of all child abuse cases
happen in and around the family; it hypothesised that only perhaps one in eight
instances of abuse comes to the attention of the authorities. Considering that
the physical effects of sex abuse are not as easily detected as are those of
general abuse of a child, one might hypothesise further that the ratio of
undetected child sex abuse crimes is even higher than one in eight.
Children’s Commission report, which concentrated on abuse within the family, was
based on data supplied by police forces. Most of the information collected by
the police came from professionals in the field of child care – clinicians and
teachers. The report recommended urgent action – in particular calling for the
practice of professionals in identifying children who are being abused to
report concluded that, despite a high level of commitment to tackling this issue
across all services, the evidence demonstrated that professionals are not always
confident in their ability to identify child abuse. It added that some
professionals are hesitant to seek information or clarification from a child for
fear that such actions will be construed as “leading the victim” and
jeopardising the potential outcome of the criminal justice process.
Significantly, the Commission created a “Survivor survey”. This consisted of a
series of questions designed to be answered by adults who had suffered abuse as
a child and “survived” it without any reference to the authorities. This was an
attempt to acquire information beyond official figures, for it became clear
during the period of research that official figures were only “the tip of the
although the Commission’s conclusions appeared to point to poor practices,
ignorance and fears within the agencies and professions which deal with
children, the report suggested that when it came to reporting suspicions of
child abuse, the true ‘mischief’ lay beyond the professions – in a vast number
of persons linked in one way or another with families in which child sex
abuse was going on.
the holes in the system are the consequence of a lack of training. Although the
DOE has courses for teachers, many teachers are ill-equipped to notice signs of
sexual abuse in children except in extreme cases. Police Officers are trained to
discover evidence of guilt, they have little training in recognising
signs of sexual abuse in the children they come in contact with. One might
consider that recognising signs of sexual abuse and discovering evidence are the
same – but there can be no search for evidence if one does not first recognise
psychological signs which may seem to have no direct bearing on sexual assault.
work is hampered by the fact that parents resent intrusion. They consider that
they hold rights over what happens within their families and that they should be
allowed to work through their difficulties without interference from any outside
Children too may demand their rights. A sexual relationship between two
teenagers may be unlawful – but it is common, and the consequence of natural
human urges. No doubt many such children are unaware that they are breaking the
law by having such sexual intercourse – after all, they may think, is it not
considerations suggest that if a better system of reporting of such abuse,
should perhaps be introduced to promote greater deterrence, and
consequent increased safety of our children. With such a system in place, focus
might not be on the professions alone.
According to the Children’s Commission report, the vast majority of cases which
require better systems of such reporting does not lie with the professional
agencies and institutions which deal with children, but with those outside
the regulation of such bodies.
"mischief" of child sex abuse lies in the area of reporting by the public at
large of such crimes. People often do not wish to become involved - or
they have cultural ethnic, or other societal considerations.
All current proposals fail to address such issues directly.
THE QUANDARY IN THE PROFESSIONS.
lesser mischief lies within professional bodies with their guidelines on how
members should act when they suspect a case of child sex abuse, then we must
question whether common law already covers this area adequately.
Opinions vary within the relevant professions as to the legal obligations of
professionals and their obligations within the guidelines of their profession.
the professions believe, or affect to believe, that the reporting of suspicions
of child sex abuse to the legal authorities (local authorities or the police) is
a legal requirement. This belief is based in section 3 of the Children Act 1989.
“Where a child
is suspected to be suffering, or likely to suffer, significant harm, the local
authority is required by s47 of the
Children Act 1989
to make enquiries, to enable it to decide whether it should take any action to
safeguard and promote the welfare of the child.”
for undertaking s47 enquiries lies with LA children's social care in whose area
the child lives or is found. 'Found' means the physical location where the child
suffers the incident of harm or neglect (or is identified to be at risk of harm
or neglect), e.g. nursery or school, boarding school, hospital, one-off event,
such as a fairground, holiday home or outing or where a privately fostered or
looked after child is living with their carers. For the purposes of these
procedures the LA children's social care in which the child lives, is called the
'home authority' and the LA children's social care in which the child is found
is the child's 'host authority'.”
“Each agency has
a duty to assist and provide information in support of child protection
enquiries. When requested to do so by LA children's social care, professionals
from other parts of the local authority such as housing and those in health
organisations have a duty to cooperate under
section 27 of the
Children Act 1989 by assisting the local authority in carrying out
its children's social care functions. All schools and educational establishments
have the same duty in line with the statutory guidance ‘Keeping Children Safe in
The core of the
belief that professionals must, in law, report any suspicions is probably based
in the line:
“Each agency has
a duty to assist and provide information”
reality is that, at the moment, there is no legal requirement on professionals
civil case might be brought against a clinician for neglect. Furthermore, a
professional who fails to act may be disciplined for having breached the
guidelines of his or her particular profession.
problem here lies in the definition of the word “suspicion”. A professional,
believing that legal action will inevitably follow from a report, may prefer to
decide that what has been observed does not constitute a “suspicion”. Time and
effort may be saved by making this judgment; however, a cover-up begins and
abuse may continue without scrutiny.
The Home Office
consultation paper recognises the problem of identifying “suspicions” and
organisations which become involved in “covering–up”. The
Rotherham, Rochdale and Oxfordshire cases are
mentioned as being:
“where practitioners failed to see child sexual exploitation for what it was and
subsequently failed to take action to stop and prevent it. In Rotherham there
was also evidence which suggested that senior local officials had recklessly or
deliberately covered up abuse.”
paper offers no solution on this issue, merely stating:
failings result from a variety of different factors, from not recognising abuse
for what it is to incorrect assessments of risk and from failures to properly
share information between agencies to deliberate cover-ups. Given that failings
can be a result of so many different factors, there is no single solution.”
the possible solutions is the practice of discussing such a possible suspicion
with a professional colleague of equal standing. Should both agree that what was
observed does not constitute a “suspicion” then not only is the person who first
had the hint of a suspicion backed up in that decision, but the possible
“suspicion” is probably a genuine one, but an erroneous interpretation. Further,
the possibility of a later accusation of a “cover-up” is lessened.
further solution is for all professional guidelines to give guidance on the
definition of the word “suspicion”. Exactly what are the signs, both medical and
psychological that might constitute a “suspicion”
noted that it is the experience of some in the professions that their managers
take an extremely cautious approach towards the problem of reporting suspicions
of child sex abuse. Relying on the section of the Children Act quoted above,
they insist that all suspicions, no matter how tentative, must reported upwards
within the organisation. Some clinicians see this as a “pass the parcel”
danger is that such initiatives may go too far. The confidentiality of the
clinician-patient relationship is often broken with disastrous effect on the
patient. The “patient” in such cases might be a child who is a potential victim
– or a potential and suspected perpetrator.
sex abuse is a difficult area in which to work. It requires long experience and
careful training. If we are not careful, we may reach a situation in which
current confidentiality is broken by management personnel who have no
training in the profession they manage. The insistence by management that
confidential files must be disclosed may even lead to files being disclosed
which were created long before there was any suspicion of child sex abuse.
see both sides of this argument. Clearly one would wish to investigate any
suspicions of child sex abuse. However, there is the right to privacy of the
patient to consider; patients on both sides of a case have rights of privacy
under the Human Rights Act, one of which is the agreement that, when they visit
a clinician, what transpires remains confidential.
Argument about the limits of confidentiality, not only between patients and
clinicians, but also between persons and priests, are becoming common. Of those
arguments, perhaps the most fundamental is whether the public interest is
being served by the current practice.
Societal changes over the past four decades have added confusion to the debate.
Management – particularly financial management – has become more dominant in the
NHS and other areas which deal with paedophiles and child sex abusers. It is
unwise to allow persons who are qualified in Business Management to have the
ability to over-ride the opinions of professionals who are trained to deal with
child sex abuse.
reporting of suspicions of child sex abuse, public pressure in the Press and TV
makes this likely that mangers will act with haste. They may consider the
financial well-being and the public reputation of their organisations to be
their main aim, particularly when any accusation that they covered up a case of
child sex abuse becomes a topic for public debate. Such actions could ruin the
reputation of an organisation – and cost management their jobs.
might ask “where is the mischief” in this aspect of the problem.
Loudoun Trust believes that the main mischief lies in a general ignorance. This
includes ignorance of the nature of child sex abuse, its many categories and
methods of treatment, ignorance of the law concerning confidentiality of the
clinician-patient relationship. Such ignorance must be addressed.
matters stand, the law does not make it clear what the term “suspicion” means,
nor does it make clear who has the right to not report any suspicions.
This situation should be clarified.
Loudoun Trust believes that the government should produce a “model” code of
conduct regarding the handling of suspicions of child sex abuse. The Trust would
recommend either the GMS guidelines - or the Institute of Psychiatry
guidelines, which improve slightly on the GMS.
would need to be separate guidance for schools, aligned with the model
guidelines, for the handling of suspicions of child sex abuse. Disruption of a
child’s education is a serious matter which must be taken into account in every
case of potential sex abuse.
should be primarily concerned with the protection and welfare of the child.
Although investigation of a potential perpetrator might seem essential, this is
best handled separately outside of the school environment. Such guidance
would therefore be best managed by the Department of Education rather than the
Home Office and the Ministry of Justice.
The Home Office consultation paper
mentioned a number of high profile cases have put a spotlight on these issues.
These cases include: Savile, Pelka, Rotherham, Rochdale and Oxfordshire. Of
these, only Pelka is not primarily a sexual abuse case. Indeed, the
Rotherham, Rochdale and Oxfordshire were cases of organised child sex abuse on a
The paper does not mention similar
cases in Aylesbury, Banbury, Bristol, Derby, Peterborough, Telford, Keighley and
In the Rotherham, Rochdale and
Oxfordshire cases there was a large number of children sexually abused.
The IICSA report, concerning
Rotherham, estimates that some 1400 children had been sexually abused. This is
perhaps the highest number of victims in one case, but all other cases quote
victims in their dozens. The report on the Rochdale affair listed 25
prosecutions,, four cases had some 20 victims; one case, in Sheffield simply
listed “numerous victims”.
Most reports on such cases consider
the work of the local social services organisation. They list, for example, the
number of children in care and under the supervision of the social services
Significantly this is hardly relevant
to the Jimmy Savile case – where, with the exception of the Broadmoor cases
involving him, there was no role for the social services personnel.
The Rotherham cases are also not
simply cases which the local social services might notice. Threats and violence
kept mouths shut.
IICSA inquiry quoted examples of children who had been doused in petrol and
threatened with being set alight, threatened with guns, made to witness brutally
violent rapes and threatened that they would be next if they told anyone about
what had happened.
report revealed that one child who was being prepared to give evidence received
a text saying the perpetrator had her younger sister and the choice of what
happened next was up to her. She withdrew her statements.
least two other families were terrorised by groups of perpetrators, sitting in
cars outside the family home, smashing windows, making abusive and threatening
phone calls. On some occasions child victims went back to perpetrators in the
belief that this was the only way their parents and other children in the family
would be safe. In the most extreme cases, no one in the family believed that the
authorities could protect them. The report highlighted the role of taxi drivers
in the town in facilitating the abuse.
Rochdale case, many of the girls were picked up in places such as food takeaways
– where members of the public may well have witnessed the approaches of the
horrific Oxford cases of 2006 – 2013 concerned some 300 girls from
dysfunctional backgrounds – many of whom reported the abuse to the police and
social services, only find that they were not believed.
Seeking the “mischief” in such cases is not easy. It is, however, easy to blame
the two primary organization – police and social services, when there are so
many other factors in play. This can only be a distraction; if it occurs, some
of the true perpetrators may escape punishment.
common factor in all of these cases - perhaps in every case of such child sex
abuse – is that there are others who know about the matter but who do not, for
one reason or another, report the matter.
Lanzarote agreement of 2007, which the UK government has signed, though not yet
ratified, made it quite clear that there is potential legal responsibility on
the part of families to protect children from sex abuse.:
“Every child has a right to such measures of
protection as are required by his or her status as a minor, on the part of his
or her family, society and the State.”
many of the above cases, this has been ignored – by the families and even in
some cases, by the police. There are several “delicate” reasons for this.
Rotherham, families were reported to have sent the victims back to the
perpetrators because “no one in the family believed that the authorities
could protect them.”
Another common factor is that in most of these cases, the perpetrators were of a
distinct ethnic origin – generally Pakistani and indeed Muslim. A
distinctive aspect of such communities is the dominance of the senior male
members in a family – and indeed throughout he community.
not the mischief in these cases lie in subjugation of the female members of
the community to the point where they are frightened to report sex abuse
which they know about – either by hearsay or as eye-witnesses – and their lack
of trust in the authorities which lie outside their ethnic community?
report by the Quilliam think tank pointed to the ethnic backgrounds of the
Rotherham case. It is thought that this is the first time that any such report
has been written. Within days, it was being criticized for racial
discrimination. Such are the dangers of dealing with this area of the problem.
again the government must take the lead. In such cases it is for the
government to bear the responsibility of conducting the research and writing a
report – not a non-governmental agency, and certainly not a private
Loudoun Trust concludes that the government, rather than concentrating on
tighter regulations on clinicians, should do what it is required to do – and
consider the confusions that current law introduces into the problem of
reporting child sex abuse.
should be made quite clear to everyone that every
child has a right to protection from sex abuse – by the family, by the people
who form the society around the child and, ultimately, by the State. Not to give
such protection is immoral and indeed unlawful. To suggest that there are
mitigating circumstances in ethnic cultural backgrounds is not enough to avoid
the penalties of the law.
government should begin by considering if there enough in Common Law to deal
with this problem and whether it is sufficient to not require further statuary
law. Proper enforcement might be enough.
should be clear on the duty of care that the ordinary person in the street has
to other people’s children. Is there a legal duty to report an incident where
one considers there is a suspicion of child sex abuse?
an analogous situation – if one witnessed a murder, would one be legally
required to report it; and if one did not report it, might one be considered to
be an accessory?
must also be clear on how far parental rights hold sway over the child’s rights
and the rights of persons outside the family circle to intervene if there is a
suspicion of child sex abuse.
should be consideration of whether there should be a difference in law between
pre-pubertal children being abused and those who have gone through puberty. Peer
on peer sexual activity may need special consideration.
Ultimately, the law should be clear on when is a child not a child. A young
person can marry at the age of 18, yet abuse of a child up to the age of 18 is
considered to be child sex abuse. Is there an area here where a married person
of 16 or 17 can be protected by laws concerned with child sex abuse?
finally, the government must consider at what point would the general move,
towards mandatory reporting becoming law, lead to a law which is not
true “mischief” in the present situation lies in lack of clarity and ignorance.
parent may be outraged that his or her child has been sexually assaulted. But
the parent will not necessarily realise that some of the fault may lie with the
parents - because they have not taught the child was constitutes sex abuse.
of the fault may also lie with the NHS for not providing the necessary treatment
for a potential child sex abuser. It can be argued that they have a duty to
protect children by providing such treatment, for this is a requirement of the
may be at fault for not realising that their own, distressing, mitigating
circumstances, that prompt them not to report a reasonable suspicion (or
actual knowledge,) of a child being sexually abused do not mitigate their
responsibilities to protect that child from sex abuse.
reports by the IICSA review indicate that the UK government may eventually
introduce some kind of mandatory reporting. Any regulation or statute will
inevitably concentrate on agencies which the government can control directly –
such as the medical professions within the NHS and the schools within the system
the government clearly defines where the “mischief” of child sex abuse lies, we
may find that there are unforeseen consequences of such legislation, such as
less diligent reporting by persons to whom the government requires to report,
and less consideration of cases before they are sent to legal authorities and to