A new ruling in the Court of Appeal has attempted to stop child abuse survivors from filing law suits against councils who knew at the time about the abuse but did nothing to stop it.
The ruling has understandably caused enormous distress to survivors who have already lodged claims against local authorities, and those hoping to do so.
Whilst the judgment does not appear to have been made public, what has been made available suggests there is more to the decision than is being reported.
The judgment seeks to prevent claims from survivors who were known to be suffering but did not find themselves in full time state care, or subject to a care order of any kind. Potentially affected victims in this context then, could include those groomed by gangs or physically and sexually abused at home.
The judges in the case have clearly decided to draw a line in the sand, after a ground breaking decision in the same court last year, which ruled that children in foster care could sue local authorities for abuse they had suffered. The decision left councils all over the country terrified at the prospect of being sued by thousands of survivors, and having to pay out crippling sums in compensation. Researching Reform also questioned whether councils should be sued for child deaths whilst in the care of adoptive parents, after the tragic death of toddler Elsie.
Whilst this latest development, which looks a little like an attempt at relieving growing pressure on councils to address historical negligence, is something of a setback, implementing a mandatory duty to report abuse would make this judgment irrelevant.
A mandatory duty to report child abuse is a legal duty imposed on child welfare professionals, to ensure that abuse does not go undetected. Countries all over the world have already implemented this duty, making it a legal requirement, not just a guidance note on best practice, or policy. This creates a legal duty of care, which if breached, becomes actionable.
And despite the protestations of councils and social workers around the world about the perils of having a legal duty like this one in place, which research is tangibly disproving, Ireland is the latest country to have gone ahead and added a duty to report.
Now it’s England and Wales’ turn. A consultation seeking views on whether or not we should have our own laws about reporting was launched on July 2016, but to date the results have not been published. If we do enact legislation to make reporting suspicions about child abuse mandatory, the list of child welfare professionals included could be vast, including social workers, teachers, doctors, counsellors and psychologists.
A mandatory duty to report child abuse would allow survivors the chance to hold negligent professionals to account, and could potentially lead to a floodgate of claims, which could cripple councils after all. Perhaps that’s why the government is dragging its heels on this consultation.
It will be interesting to see what the consultation recommends once its report is published. One thing is certain, a mandatory duty to report is a loaded gun, and certainly one to watch in 2018.