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WHERE’S THE MISCHIEF?

ABSTRACT

This paper considers the points made in the Home Office paper of 2017 and preliminary reports from the Independent Inquiry into Child Sex Abuse (IICSA) . It argues that the UK government may be more concerned with addressing the performance of the agencies that it can controlin the field of child sex abuse - rather than the larger target of the reporting of such abuse by the general public.

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In 2013 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.”

The 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.

The 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.

It 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 statute law.

It follows that, when drawing up a Bill, the legislative arm of government should consider three questions.

(i) First, before making such changes, they must consider what is already in common law.

(ii) 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’.

The 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.

We ask, 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?

The 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.

The 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”.

So where exactly is the “mischief”?

A 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.

The 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 be strengthened.

The 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 iceberg”.

Thus, 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.

Some of 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.

Such 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 authority.

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 “natural”?

Such 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.

The "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.

If the 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.

Many in 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.”

“Responsibility 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 Education 2015’.”

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”

However, the reality is that, at the moment, there is no legal requirement on professionals to report.

Nevertheless, a 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.

The central 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.”

However, the paper offers no solution on this issue, merely stating:

“These 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.”

One of 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.

A 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”

We have 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” exercise.

The 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.

Child 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.

One can 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.

In the 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.

We might ask “where is the mischief” in this aspect of the problem.

The 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.

As 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.

The 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.

There 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.

Schools 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.

LESSER MISCHIEFS.

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 large scale,.

The paper does not mention similar cases in Aylesbury, Banbury, Bristol, Derby, Peterborough, Telford, Keighley and Halifax.

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 departments.

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.

The 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.

The 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.

At 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.

In the 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 perpetrators.

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.

One 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.

The 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.”

Yet in 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.

In 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.

Does 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?

A 2017 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.

Once 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 individual.

The 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.

It 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.

The 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.

The law 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?

To take 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?

The law 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.

There 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?

And finally, the government must consider at what point would the general move, towards mandatory reporting becoming law, lead to a law which is not enforceable?

The true “mischief” in the present situation lies in lack of clarity and ignorance.

A 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.

Some 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 Lanzarote agreement.

Some 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.

Recent 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 of education.

Unless 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 subsequent trials.