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Mandatory Reporting: the duties owed to children at risk of harm

Mandatory Reporting: the duties owed to children at risk of harm

Published on December 13, 2019 by Julia HarrisonJulia Harrison

Mandatory reporting is the legislative requirement to report suspected cases of child abuse and neglect to government authorities.

The Australian Institute of Family Services writes that the strategy of mandatory reporting acknowledges the prevalent, serious and often hidden nature of child abuse. The implementation of mandatory reporting frameworks and the accompanying legislative grounds for intervention promote a moral responsibility within the wider community to protect children and reinforce a culture that is intolerant to the abuse and neglect of children.

Legislation

In New South Wales, the applicable legislation is the Children and Young Persons (Care and Protection) Act 1998. Section 27 of the Act prescribes that workers or those within organisations who deal with children must make a report to the Department of Family and Community Services if they have reasonable grounds to suspect that a child is at significant risk of harm.[1]

Section 23 of the same Act sets out various circumstances where a child could be considered at risk of significant harm, including a child at risk of physical or sexual abuse, witnessing domestic violence and the parents or caregivers of the child failing to provide a child with education.

All Australian states and territories have enacted legislative frameworks governing mandatory reporting. Although the essence of the legislation is generally quite similar, there are differences in terms of who is required to report as well as what must be reported.

For example, in the Northern Territory there is a mandatory requirement upon all adults, regardless of occupation, to report certain circumstances of family violence where life or safety is under serious or imminent threat.[2] A similar requirement in Victoria imposes a duty on any adult to report a reasonable belief that a sexual offence has been perpetrated.[3]

Duty of care

The legislative mandatory reporting requirements co-exist with the common law duty of care, which has been codified into civil liability legislation. Briefly, if a person owed a duty of care to a child and failed to act where possible to avoid foreseeable and significant injury to that child, they may be liable for the injury that results from that failure to act.

It is noteworthy that the legislation in New South Wales prescribing mandatory reporting relates only to children and measures put in place do not afford the benefits of mandatory reporting to adults who are victims of domestic abuse.

While civil liability legislation may afford some measure of financial relief to victims regardless of age, damages are only awarded upon the suffering of some harm as a result of a breach of duty of care. Where the civil liability legislation is reactionary, the preventative nature of mandatory reporting is better suited to early detection of risk factors to potentially prevent harm from occurring.

Criticisms

A prevalent criticism of mandatory reporting is that it may discourage victims from seeking help knowing that a treating health professional, for example, would be legally obliged to disclose the harm.

Logistically, mandatory reporting may prove too difficult to enforce. Police and other authorities may not have the resources, capacity or willingness to investigate all reported cases of children being at risk of harm.

There are also concerns that mandatory reporting by a third party may undermine victim autonomy.  The fear of retribution or social stigma is often cited as a reason why victims do not report domestic violence; mandatory reporting by a third party in such cases may remove that choice from the victim when they are already in a powerless situation.

Additionally, the NT Attorney-General acknowledged that there might be problems with enforcing mandatory reporting and that certain occupations, such as health and legal professionals, could be professionally compromised. Although the NSW legislation protects reporters from penalties,[4] breaching patient or client confidentiality could potentially undermine trust in the profession and deter victims from seeking treatment or advice.


[1] Children and Young Persons (Care and Protection) Act 1998 (NSW) s 27.

[2] Domestic and Family Violence Act 2007 (NT) s 124A.

[3] Crimes Act 1958 (Vic) s 357.

[4] See section 29 of Children and Young Persons (Care and Protection) Act 1998 (NSW).

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