http://www.sbpost.ie/commentandanalysis/mandatory-reporting-may-not-be-right-for-child-abuse-57632.html

24 July 2011 By Helen Buckley

Experience in other jurisdictions suggests that the mandatory reporting of child abuse - which may be introduced in Ireland in the near future - may be more of a problem than a panacea

The Minister for Children, Frances Fitzgerald, has signalled her intention to draft new legislation to address the issues raised in the Cloyne report on clerical sexual abuse, and it is expected that this will include mandatory reporting. The experience of other jurisdictions, however, shows that this would not improve child protection, and could lead to services being completely overwhelmed by unnecessary reports.

When referring to the mandatory reporting of child abuse, we are essentially talking about a legislative requirement for certain nominated, or ‘‘mandated’’, individuals to report suspected or alleged child abuse to statutory authorities.

Child abuse can be any degree of neglect, physical, emotional or sexual abuse. Depending on the type of legislation, failure to report may constitute either an individual criminal offence or an institutional breach of a statutory requirement which carries certain penalties.

Legislation of this nature is generally considered to be symbolic of the state’s commitment to children’s welfare and safety. It is said to relieve individuals of the decision whether or not to pass on their doubts or anxieties, to overcome reluctance to report and reinforce the moral responsibility of communities.

Given the number of child abuse scandals uncovered in Ireland over the past 20 years, it is easy to see how measures like mandatory reporting have come to represent a kind of ideal solution. It is perceived to offer a solution to the inaction and indifference that has resulted in children suffering unnecessarily, and a means of ensuring that no further cases of child abuse are concealed.

Legislating for the reporting of child abuse was first mooted in Ireland when the Kilkenny Incest Inquiry was published in 1993, followed by the review of the death of Kelly Fitzgerald in 1996. Both of these reports recommended mandatory reporting.

At that time, the Fine Gael-led coalition government, with Austin Currie as minister for children, explored the feasibility and potential consequences of introducing it. Following a widespread consultation process, it decided against legislation and instead introduced some system reforms.

In the subsequent lead-up to the 1997 election, Fianna Fáil promised to introduce mandatory reporting if elected. However, on entering government, minister for children Frank Fahey gave the matter further consideration and decided against it.

The issue arose again following the publication of the Ryan Report in 2009, but was put aside when then minister Barry Andrews became aware of evidence of its negative impact in other jurisdictions.

Three times over the past 18 years, there appeared to be apolitical imperative to legislate on the reporting of child abuse and, on each occasion, the government, after studying detailed analysis, determined that it was not the panacea it was purported to be. It now appears, however, that the Fine Gael/Labour coalition will introduce the measure.

So why has such indecision surrounded the introduction of mandatory reporting when there is such a high level of public concern about child abuse? Essentially, it is because the issue is far more complex than it first appears, and is known to elicit a number of unintended, and not always positive, consequences.

For example, New South Wales (NSW) in Australia introduced a mandatory reporting law in 1999. In 2007, eight years after the reporting legislation was implemented, the rate of reporting to statutory child protection services had risen by 600 per cent.

At that point, less than one-eighth of the reports were substantiated, and it was considered that the remaining seven-eighths did not warrant intervention by statutory services, but would have benefited from services delivered in a less formal manner in their own communities.

Effectively, mandated professionals had overzealously reported out of fear of retribution for failure to fulfil their obligations, and had consequently overloaded the system. The proportion of time invested by child protection practitioners in processing the reports was so great that few resources remained available to the children who were suffering abuse and neglect.

The net result was that the protection of children was not advanced. A critic of the system compared it to a situation where sufferers of minor ailments bypassed the pharmacist and GP, and went directly to the emergency department, thereby depleting the services available to acutely ill patients.

It was also considered that pressure on services resulted in the adoption of a ‘one-size-fits-all’ type of approach that is perceived by children and families as intrusive, heavy-handed and not conducive to the type of therapeutic relationship that promotes positive change. There were further concerns that reporting requirements undermined the aspiration towards shared professional and community responsibility for protecting children, as referrers tended to consider their duty to have been discharged once they had made reports.

Other states in eastern Australia suffered the same outcomes from mandatory reporting legislation, and when Western Australia came under pressure to introduce it in 2009, the reporting law was restricted to child sexual abuse in order to avoid replicating the experience of the east.

In 2008, the NSW government acknowledged that, despite considerable investment of resources and the doubling of social work posts, its child protection system was still unsafe. It recently responded to the crisis by raising the threshold for reporting from ‘‘risk of harm’’ to ‘‘risk of significant harm’’, and by introducing a two-tier reporting system whereby referrals are initially assessed by community-based organisations which filter out those that fall below the threshold for statutory intervention. There is evidence that this is beginning to stabilise the rate of reporting and increase the proportion of reports that are substantiated.

In light of that evidence, how would mandatory reporting impact on Irish child protection services? Irish statistics on child abuse demonstrate a steady increase in reports over the past ten years. The current substantiation rate, ie the number of confirmed cases of child abuse, tends to be approximately 10 per cent of those reported annually to the HSE. This indicates that we already have a high rate of what might be described as inappropriate or indiscriminate reporting.

As a result, a lot of social work time is spent processing reports that are ultimately screened out, and many families are unnecessarily subjected to the stress of a child abuse investigation. Given the evidence from other jurisdictions, it is inevitable that mandatory reporting would further reduce the capacity of the Irish system to respond to children in need, even if there were increased investment in resources.

The Irish government is already committed to putting child protection procedures on a statutory footing. At this point, Fitzgerald still has a number of choices open to her in designing a workable legislative framework. One option would be to introduce a requirement for ‘‘mandatory consultation’’ in order to triage reports before they formally enter the system.

Another alternative would be to restrict the reporting law to child sexual abuse, as occurred in Western Australia.

It should be noted that failure to report has not been a major issue in respect of recent high-profile cases, the notable exception being those cases associated with the Catholic Church.

Although highly publicised, clerical abuse cases in fact represent only a tiny percentage of the total. The Church’s reluctance to report clearly needs an urgent and specific response, but it would be counterproductive to undermine the entire system in the attempt to do so.

Many positive and welcome reforms have been initiated in Irish child protection services since the publication of the Ryan Report. These include the appointment of a new National Director for Children’s Services in the HSE last year, and the introduction of a new government department this year. Before we squander the opportunities provided by these changes, we need to reflect and learn from the experiences of other jurisdictions.

Dr Helen Buckley is a senior lecturer in the School of Social Work and Social Policy in Trinity College Dublin