The case for mandatory reporting laws in the UK

The resignation of the Rt Rev Justin Welby as Archbishop of Canterbury in the wake of the publication of the Makin review highlights, once again, the need in this country for a mandatory reporting law.

The Makin review into the Church of England’s most known prolific abuser John Smyth revealed that had the Archbishop, and others before him, acted with more resolution when faced with the allegations of physical, sexual and emotional abuse, then children and young people would have been spared the pain and indignity that they were to, tragically, endure.

Smyth in his day was a prominent QC and is recalled for representing the high-profile morality campaigner the late Mary Whitehouse. He carried the trappings of success and was “well connected”. He is said to have been charismatic and clearly had a forceful personality given our understanding of his interest in Christian evangelism.

Smyth has been labelled elsewhere as a “muscular Christian” with an evangelical bent which involved him in helping to run and later set up camps in the UK and Zimbabwe for public school boys and young men. These seem to have been relatively popular and successful, and were seen by Smyth and his like-minded colleagues - and later followers - as a means for recruiting the Church’s future leaders. The Archbishop, interestingly before he was ordained, helped at one of these camps and came across Smyth. 

Smyth’ evangelism, if that is really what it was, was sadistic in nature because he would beat boys and young men on their bare buttocks, under the pretense of teaching scripture. The beatings would cause pain, welts, and wounds that bled. Clearly his behaviour was sexual in nature, given the reasons he would give to explain why punishment was necessary. Moreover, his general behaviour at the camps, which involved nudity, exposes the current that runs through the abusive experiences of the victims.

Missed opportunities and systemic failures

From the early 1980s, knowledge of Smyth’s abusive behaviour was becoming common currency amongst those in the Church who knew him. The Makin report explains in considerable detail how, in some cases, Church officers deliberately chose not to report what they knew of the abuse to the authorities. It is clear there was a desire to protect reputations which they feared would be damaged by any publicity. There was also victim blaming occurring, as well as muddled thinking as to the lawfulness (or lack thereof) of the beatings that were being meted out (corporal punishment of course had yet to be outlawed and some did not seem to appreciate that beating a child and drawing blood was a criminal offence: actual bodily harm).

Later day attempts by the Church to report Smyth were ineffectual and by the time Hampshire Police began to investigate, it was too late. Smyth died before the police investigation was concluded.

The Maken review highlights the missed opportunities when Smyth should have been reported to the police, and his offending brought to a halt.

Mandatory reporting: a pillar of child protection

Those missed opportunities reinforces the recommendation of the Independent Inquiry into Child Sexual Abuse (IICSA) that there should be a mandatory reporting law requiring child sexual abuse to be brought to the attention of the police. To quote from IICSA:

“Mandatory reporting laws are designed to facilitate the prompt and efficient reporting of child sexual abuse and to remove subjective filters of self-interest, fear, seriousness or credibility.”

The rationale is to change the culture and attitudes in organisations to ensure that concerns are reported promptly. It is not simply about punishing those who fail to report.

Had mandatory reporting been in place at the time of Smyth’ s offending, those in the Church who were aware of the abuse would have been under a legal obligation to go to the police.

The UK is very much an outlier by not having this vital pillar in child protection and safeguarding in place, and two years on from IICSA, there is no sign of mandatory reporting laws coming about any time soon.

If we were to have such a law in place, a decision would have to be made as to who would obligated to report.

IICSA was specific in its recommendation:

“[the] legislation …[would place]  certain individuals – ‘mandated reporters’ – under a statutory duty to report child sexual abuse where they:

• receive a disclosure of child sexual abuse from a child or perpetrator; or
• witness a child being sexually abused; or
• observe recognised indicators of child sexual abuse.

The following persons should be designated ‘mandated reporters’:

• any person working in regulated activity in relation to children (under the Safeguarding and Vulnerable Groups Act 2006, as amended);
• any person working in a position of trust (as defined by the Sexual Offences Act 2003, as amended); and
• police officers.

By way of contrast, the Northern Territory (Australia) places the obligation on all adults. There is, of course, power in the argument that all adults should be under the obligation to report, but is that unrealistic? The question may be answered by revisiting what happened in the Smyth case and examining whether the various individuals in the Church who knew of his offending would be captured by the IICSA recommendation. Much would depend on the duties of the clergymen in their parishes and dioceses at the time, but one can see the thinking that unless they themselves were working with children and young people, they could possibly escape the legal obligation to report.

Balancing obligations and consequences

If and when Parliament addresses the ICCSA recommendations, it needs to be very much alive to unintended consequences of any legislation enacted. If mandatory reporting law is too limiting for those obliged to report then those who should have reported in Smyth – were the case to happen again – would still be under no obligation to do so, rendering the law pointless.

Where does this leave victims and survivors, when there is a failure to report? And would their position be improved even if there was a mandatory reporting law? I have in mind the ability of the failed victim being able to hold the individual or organisation that failed to account because currently it is difficult to do so. 

The Supreme Court recently – in the case of Tindall and another v Chief Constable of Thames Valley [2024] EWCA 25 – held once again that there is no duty of care, and no liability in negligence, for failing to confer a benefit, which includes failing to protect an individual from personal injury, as opposed to making matters worse. Differentiating between failing to protect and making matters worse is often very difficult in practice and this seems to have been recognised by the court.

The Supreme Court accepted and held that there can be liability under the principle of interference, in that there can be liability in negligence where a person intervenes knowing of, or ought reasonably to have known, that the intervention may stop another person (for example reporting child abuse concerns). Arguably, one can see that persons knowing of allegations coming together and deciding to suppress them - thus thwarting reporting - could be held to be interfering. The meeting to discuss and decide not to report is arguably more than just failing to act, it is a deliberate or step to prevent reporting of child abuse.

A mandatory reporting law in itself would not create a duty of care but, arguably, could frame common law arguments. Ignoring child abuse may be morally incomprehensible, but it is an omission that would generally not give rise to any liability to the child harmed. The presence of a reporting obligation would provide a prism through which to consider one’s actions in failing to report. By way of example, if a teacher suspects that a colleague is abusing a pupil, and instead of reporting persuades him or her to leave the school, then this is more than a simple omission. Putting aside any right of action the child may have for the abuse, arguably there would also be one arising from the failure to report if the abuse continued. A school has a duty of care to the child, assuming responsibility for his or her welfare, and thus is failing to protect the victim by not reporting what a member of staff knew.

The general public would, with justification, say that if there was a mandatory reporting law in place and a person failed to report, then they should be liable for the consequences. 

Justice for victims: hope for change

As for the Smyth case, we have not heard the last of it. The Makin review will, in the coming years, influence legal arguments with regards to the obligations of individuals and organisations to report child abuse allegations. The question is whether policy makers and the Supreme Court recognise that the reaction to the Makin review shows that the public is ahead of them with regards to what society expects when it comes to failing to adequately safeguard children and young people.

In their long quest to find justice, Smyth’s victims have graphically exposed the Church’s failings, but they have also highlighted deficiencies in the law as well as possible answers in making good. We live in hope.