At first sight it would seem that the mandatory reporting of child abuse and neglect is a good thing. So often we seem to hear of a tragic death or maiming of a child which was preceded by incident after incident of obvious abuse and/or neglect which has gone uninvestigated until it is too late. In the terrible case of Daniel Pelka who died at the hands of his mother and step-father, it was felt that teachers at his school should have noticed and reported that Daniel was injured and neglected. In fact, Daniel’s death has given rise to a new push for the introduction of laws on mandatory reporting.
But does mandatory reporting legislation really fulfil the stated aims of protecting children from abuse and neglect?
The potential benefits of mandatory reporting
Mandatory reporting is a very direct acknowledgement that child abuse and neglect is prevalent, serious and often hidden. Its aim is to enable early detection of cases of harm to children which might otherwise escape the notice of relevant authorities or helping agencies. It also reinforces the moral obligation on every adult citizen to care for and protect all children from abuse and harm and helps to create a culture which is more child-centred and less and less tolerant of abuse and neglect of children. There can be little doubt that the introduction of mandatory reporting was intended to address all these issues and any criticism that follows is not intended to denigrate the heroic efforts of early pioneers like Dr Harry Kempe who was instrumental in bringing about the introduction of mandatory reporting laws in the USA.
The problem is that in reality, very few of these worthy aims have been fulfilled.
The difficulties and drawbacks of mandatory reporting
The first, and most fundamental difficulty with mandatory reporting arises because it is based on a wrong assumption. When Kempe and his colleagues wrote their ground breaking article “The Battered Child Syndrome” they were focusing only on children subjected to severely violent physical abuse. They determined that this kind of child abuse in the USA affected only a few hundred children each year who were subjected to the violent behaviour of seriously disturbed parents. They reached the conclusion, therefore, that the best policy response would be to require health professionals to report those isolated but glaring cases to public authorities. They did not believe that such a requirement would create a significant burden on the existing infrastructure and they did not recommend that any additional funding should be provided. This assumption of the isolated and infrequent nature of violent assaults on children was not, in itself, a faulty one, for subsequent experience has shown that such assaults are relatively rare and declining.
The problem has arisen because very quickly the same requirements for reporting was extended to professions other than physicians and many other kinds of child abuse and neglect were included with no significant increase in resources to the relevant authorities. There is no doubt now, that there are millions of incidents of child maltreatment every year ranging from the relatively mild to the severe, not just the hundreds of extreme cases Kempe focused on, and reporting of these incidents has multiplied correspondingly.
The Problem of Over Reporting
This is not surprising. The way reporting laws work is that a certain group of people are required to report their suspicions that a child is being abused, on penalty of some kind of sanction. The sanction can run from simple shaming, to fines, even to imprisonment. Given the risks of not reporting, it is reasonable for those who think they might fall under these laws to err on the side of reporting rather than silence. In all the jurisdictions which have mandatory reporting, the number of cases reported has exploded. In the USA, for example, between 1963 and 2011, there was more than a 2000% increase in reports of suspected abuse and neglect. In other jurisdictions like Australia the introduction of mandatory reporting did not cause quite such an explosion but this is probably because mandatory reporting was introduced so much later when voluntary reporting had largely become the norm. Even so, over reporting (the making of reports which cannot be substantiated) has become a significant problem. In 2002-03 throughout Australia there were 198,355 notifications of child abuse and neglect, and there were 40,416 substantiations.
This particular statistic has no real significance when it stands alone. It could be argued that despite the disparity between the number of referrals and the number of substantiated reports the overall number of substantiated reports must have increased along with the number of referrals and any increase in the number of children protected from abuse is a good thing and should not be perceived as a problem.
There is, however, a significant problem. An increase in the number of referrals has led to an increase in the number of substantiated reports but it has also led to an increase in the number of unsubstantiated reports, all of which must be investigated. The explosion in referrals has resulted in many agencies and departments being completely overwhelmed with cases to investigate. In every jurisdiction there are complaints that the agencies involved in protecting children from abuse have become overburdened and in many cases, completely unworkable. The very real danger is that genuine cases of abuse and neglect are lost or overlooked in the great avalanche of reports which must be investigated. Thus the very problem mandatory reporting was designed to overcome – preventing vulnerable children from “slipping through the cracks” – becomes entrenched in the system.
In 2002 Frank Ainsworth undertook a study comparing the 1999-2000 reporting and substantiation statistics from New South Wales, which had mandatory reporting, and Western Australia which did not (it does now). He discovered that New South Wales had a much higher proportion of unsubstantiated reports (45.2%, 1196 in total) than Western Australia (25.1%, 7628 in total). The percentage of substantiated reports in Western Australia (44.2%) was much higher than in New South Wales (21.3%). He also found that the proportion of reports investigated in New South Wales was 59.6%, whereas in Western Australia it was 97.4%. The comparative proportion of final investigations completed was 46.4% (NSW) to 89.4% (WA). These statistics are quite alarming for they point to large proportions of the child protection budget being spent on unsubstantiated case investigations (up to 75% of the budget according to Ainsworth’s estimation). What is even more alarming is the number of reports that were not completed – perhaps never begun – and the question arises as to how many of those uncompleted reports concerned children in very real danger.
It is not unreasonable to think that perhaps some of those funds could have been better spent on family support services.
In addition, given the high investigation and completion rates together with the much higher substantiation rate in Western Australia, these statistics make one wonder why Western Australia introduced mandatory reporting in 2008.
Trauma and Damage
The other major difficulty with mandatory reporting is the trauma and damage done to children and families when unsubstantiated reports are investigated. Long, often repeated interrogations and physical examinations can leave children emotionally scarred and innocent caregivers thoroughly traumatised, thus reducing their capacity to care for their children in the future.
In most jurisdictions there is provision for the forcible removal of children from the family home. In 2001 approximately 100,000 children were removed from their homes in the USA and later found not to have been maltreated in any way. Very little imagination is required to recognise the damage which might eventuate from this procedure. The removal of children from loving homes and the placement in foster homes, however good those foster homes might be (and they are not all good), often leaves children with crippling separation anxiety which can last many, many years. Such removals also do untold damage to the parent/child bond.
An accusation of wrongdoing will undoubtedly disrupt a family even if allegations are dismissed. Accusations of child abuse often carry with them a popular assumption of guilt. Falsely or erroneously accused parents can suffer shame and misplaced guilt leading to feelings of powerlessness, inadequacy and sometimes life-threatening depression.
In 2001 the High Court of Australia decided two cases together: Sullivan v Moody and Thompson v Connon.  HCA 59. Each case involved an inaccurate report made by a mandated reporter of child sexual abuse. The cases revolved around whether mandated reporters owe a duty of care to persons whom they suspect of abuse, and are thus liable for damages to a person whom they report if the report is not substantiated. The High Court held that no such duty existed because of the mandatory nature of the report. It is hard to see how it could be otherwise. Professionals who are forced to report their suspicions do need to be protected when they make honest mistakes in the performance of their mandated duty.
Nevertheless, the factual aftermath of the reports made in both Sullivan and Thompson are evidence of the potential for horrible consequences of mandatory reporting laws. In Sullivan, the child’s father came under suspicion as the perpetrator of sexual abuse. Criminal charges were laid but the report was later found to be inaccurate and criminal charges were dropped. This did not stop the allegations being pursued in the Family Court and the Family Court also found in the father’s favour. As a result of the report and the action surrounding it the child’s father (and therefore the child) suffered severe consequences. His marriage broke down and he suffered shock, distress, psychiatric injury and personal and financial loss. In the Thompson case, the initial report of child sexual abuse was made by a medical practitioner and was concurred with by government community welfare investigators. Police charged Mr Thompson with sexual offences but these charges were later dropped. As a consequence of this series of events, Mr Thompson also suffered shock, distress, psychiatric injury and personal and financial loss.
Often, removal of children is carried out as an “emergency”. No notice is given and no hearing has determined whether the accusation is valid or not. In addition to the personal trauma which eventuates for parents and children alike when this happens, there is denial of due process, an invasion of privacy and a tarnishing of reputations. There is also often a considerable economic harm inflicted as parents/caregivers are forced to obtain legal representation to defend themselves against the allegations.
Again we see that mandatory reporting is not a simple matter. There are complications and ambiguities in terms of who and what is mandated. Significant overloading of already stretched systems occurs as people err in their judgments out of fear of prosecution, and this can result in actual cases of serious abuse being swamped in the avalanche of mandated reports. If society wants to rely on the comforting idea that mandatory reporting does find significant numbers of hidden cases of child abuse, the investigative services should at least be sufficiently large and well-funded to do their jobs quickly and completely. But even that will not entirely solve the problem of erroneous reports, with the consequent harm done to innocent caregivers and children.
The goal is a society without child abuse. It flourishes in secrecy, in darkness. Making it possible for well-meaning adults to recognize the symptoms in children they know and intervene effectively, and for children to feel empowered to speak about abuse they are suffering to people who can help them and be believed, is the best solution. Mandatory reporting is a step along the path towards that goal, but it has drawbacks too. There are calls in England and Wales for the introduction of mandatory reporting and the voices must be heard and acknowledged. Nevertheless, before such legislation is introduced into England and Wales, I would urge extreme caution and a thorough examination of all the available data from jurisdictions which now have years of experience in this matter.