Abstract
Dozens of countries have now enacted mandatory reporting laws for child abuse and neglect in various forms, as part of a comprehensive system of child protection and welfare. In recent years, countries as diverse as Saudi Arabia and Ireland have enacted reporting laws or are in the process of doing so. Other countries such as the UK are currently considering enacting them. Even where the laws exist, debates continue about their use and effects, both for general and for specific types and extents of maltreatment. This chapter outlines the origins and provenance of the first mandatory reporting laws, discusses the nature of the laws and their place as one component of a public health approach to child maltreatment, describes major developments in the laws over time, and identifies some major empirical effects and consequences of the laws.
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Notes
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The primary subject matter of the reporting provisions is ‘abuse’ either explicit or as a natural and coexisting consequence of being the cause of the significant or serious ‘injury’ or ‘harm’ specified. The two are inextricably linked, and the coexisting causal relationship and link are often acknowledged directly in the provisions by the use of the term ‘caused by’. There are some instances where a type of abuse must be reported without any mention of harm – most often, for sexual abuse (e.g. in Australia, ACT, NT, SA, Tas, WA) and for physical injury by abuse (ACT). In five statutes the first concept used is ‘abuse’, with proceeding words or provisions relating to the abuse causing harm and the extent of this harm required to activate the reporting duty (ACT, Qld, SA, Tas, WA). In four statutes the first concept used is ‘harm’, with proceeding words or provisions identifying or recognising that this ‘harm’ is caused by various kinds of abuse and neglect (NSW, NT, Qld, Vic).
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As anyone who has taken the time to access and read a piece of legislation will know, mandatory reporting provisions, like many other types of legal provisions, are long and complex, may involve numerous different numbered provisions scattered through different parts of a statute (and sometimes several different statutes), and on top of this are subject to the rules of statutory construction (both legislative and common law) which apply to all legislation. A ‘mandatory reporting law’ is therefore not a simple creature which can be easily located, read, and understood.
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Children’s Protection Act 1993 (SA) s 6; Children, Young Persons and Their Families Act 1997 (Tas) s 3.
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A few States chose not to incorporate the ‘serious’ injury qualification (Paulsen 1967).
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The Child Abuse Prevention and Treatment Act 1974 (CAPTA, P.L. 93–247) s 3. The relevant provisions of the US Code are 42 U.S.C. 5101 et seq; 42 U.S.C 5116 et seq.
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The term ‘child abuse and neglect’ was defined as meaning ‘the physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child by a person who is responsible for the child’s welfare, under circumstances which indicate that the child’s health or welfare is harmed or threatened thereby’.
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The Child Abuse and Prevention and Treatment Act as amended by P.L. 111–320, the CAPTA Reauthorization Act of 2010 (42 U.S.C. 5101).
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In Australia, examples include Victoria’s Child and Family Information, Referral and Support Teams (ChildFIRST) system, which enables individuals who have a significant concern about a child’s wellbeing to refer their concern to ChildFIRST for help, rather than reporting to the department responsible for child protection (Children, Youth and Families Act 2005 (Vic) s 31). This provision complements the mandatory reporting provisions, where reports of specified cases of a child being ‘in need of protection’ must be made to the secretary of the department (Children, Youth and Families Act 2005 (Vic) s 184). Children and families who are referred to ChildFIRST are assessed and may be offered home-based family support or referred to other health and welfare services (Children, Youth and Families Act 2005 (Vic) s 33). ChildFIRST must forward reports to child protection services if the community-based child and family service considers that the situation may involve more significant harm or risk of harm, that is, that the child may be ‘in need of protection’ (Children, Youth and Families Act 2005 (Vic) s 33(2)). Equally, reports made to child protective services may be redirected to ChildFIRST if deemed not to require a child protection response (Children, Youth and Families Act 2005 (Vic) ss 187, 30). The ChildFIRST model was adopted in Tasmania under the name ‘Gateways’. Tasmania also amended its mandatory reporting laws to facilitate a preventative approach. Mandatory reporters could report their concerns about the care of a child to a ‘community-based intake service’, and this would fulfil their reporting duty (Children, Young Persons and Their Families Act 1997 Part 5B). In New South Wales, s 27A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) enabled mandated reporters to make reports to ‘Child Wellbeing Units’ which were established in the four major state government departmental groups (health, education, police, and family and community services). These units provide support and advice to mandated reporters on whether a situation warrants a mandated report and on local services which might be of assistance. The units’ focus is on ascertaining what the family needs to minimise or overcome their situation and on facilitating the most appropriate assistance.
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By Mathews, Bromfield, and colleagues.
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Penal Code art 434.
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Penal Law s 368D.
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Social Services Act Ch 14 s 1.
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The Wood Inquiry (2008) noted that the child protection system in New South Wales was under strain, but rejected the ‘limited, and primarily academic support expressed to the Inquiry for abolition of the mandatory reporting based on the alleged result that MR caused it to be ‘flooded with reports, the response to which used up scarce resources and diverted attention from those families whose children were in need of the State’s intervention’.
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Australian Bureau of Statistics, Patient Experiences in Australia: Summary of findings, 4,839.0, found that in the 12-month period 2012–2013 2.5 million visits to emergency departments were made by people aged 15 and over (71 % visited once, 23 % 2–3 times, 5.8 % 4 or more times): 13.6 % of the national population. Self-report data showed that only 49.6 % considered their condition serious or life-threatening, 25.5 % said they went simply because the time of day or week suited them, and 22.6 % admitted they could have been treated by a general practitioner. In Australia, over 12 million calls to the 000 emergency phone line are made per year; only around 44 % are genuine emergencies (M. Russel, ‘Abuse of 000 calls risk to lives – police’ 10 February 2008, Sun-Herald). Data are similar in the UK and USA. In the UK, 31 million calls are made annually, and half do not involve requests for help: British Telecom Press Release ‘999 celebrates its 75th birthday’, 29 June 2012. In the USA, there are 240 million calls per year (National Emergency Number Association).
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Mathews, B. (2015). Mandatory Reporting Laws: Their Origin, Nature, and Development over Time. In: Mathews, B., Bross, D. (eds) Mandatory Reporting Laws and the Identification of Severe Child Abuse and Neglect. Child Maltreatment, vol 4. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9685-9_1
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