Mandatory Reporting Laws: Their Origin, Nature, and Development over Time
Dimension of the reporting law
Usual features and typical differences
Defines which persons must make reports
Usually restricted to members of key professions who deal regularly with children in the course of their work, such as police, teachers, nurses and doctors; but sometimes applied to all citizensa
Defines what state of mind a reporter must have before the reporting duty is activated
Usually the possession of ‘reasonable grounds to suspect’ or ‘reasonable grounds to believe’; certainty is not necessary, but it requires something more than an inkling
Defines the types of abuse and neglect that must be reported
Varies widely across jurisdictions: some only require reports of sexual abuse; some only of physical and sexual abuse; many require reports of physical, sexual, and emotional abuse and neglect; some require reports of these four types and exposure to family violence and more
Defines the extent of harm/abuse or neglect which requires a report
The ‘significant harm’ aspect is defined using a range of terms and is used in most but not all jurisdictions. Often, the significant harm aspect is not applied to sexual abuse. Some jurisdictions do not clearly specify the degree of ‘harm’; unless complemented in reporter training, this may produce more reports (but this may fit with the more preventative intention of these jurisdictions)
Defines whether the duty applies only to past or present abuse/harm or also to future abuse/harm which has not occurred yet but which is thought likely to occur
All laws apply to the former (the classical Kempe scenario of tertiary response). Some laws include the latter also: this is clearly a more preventative aspiration, and a good example of this is the duty to report suspected likely future sexual abuse – which can be seen in situations of grooming of a child for sexual abuse
Defines other familial circumstances which must be present to require a report
Some jurisdictions (e.g. several in Canada, Victoria in Australia) limit the reporting duty by only requiring a report if the reporter believes the child’s parents ‘have not protected, or are unlikely to protect the child’ from the harm
Defines penalties for failure to report
These vary widely but are meant to encourage reporting rather than police it; prosecutions are extremely rare, but high penalties may produce hypersensitive reporting. The New South Wales legislation removed its penalty in 2010
Provides a reporter with confidentiality regarding their identity
An important protection for reporters
Provides a reporter with immunity from suit
Also a critical protection for reporters, as shown by the experience of jurisdictions without legislation (Mathews et al. 2009)b
States when the report must be made
Usually immediately
States to whom the report must be made
Usually to the government agency responsible for child protection; but now, often, reports of lesser situations of need rather than harm can be reported to differential response agencies
States what details a report should contain
Usually all relevant information about the child, the injuries, the circumstances, the statements, the child’s family situation, and the contact details
It should also be noted that the laws also enable non-mandated persons to report suspected cases, and in fact, the data shows that mandated reporters make only around 50–60 % of all reports. These explanations are important because one of the asserted problems caused by mandatory reporting – that ‘it produces too many unwarranted reports’ – is based on an incorrect assumption about their nature, a failure to distinguish between different patterns of reporting by different reporter groups and for different types of maltreatment, and a misunderstanding about the nature of substantiation (Drake 1996; Drake and Jonson-Reid 2007; Kohl et al. 2009). It is true that instances of ‘undesirable’ reporting have sometimes occurred, but in these instances, arguably the major factors have been poor planning and drafting and a failure of public administration by governments in not properly preparing reporters to comply with their duty and in inadequate resourcing of response systems (Mathews 2012). Later in this chapter, I will indicate a clear example of flawed public administration which appeared to produce undesired effects but which does not detract from the principle animating the reporting law.
Developments over Time: Extensions and Contractions of Mandatory Reporting Laws and Adoption by Many Countries in Various Forms
In the USA, the scope of states’ initial legislation was restricted to require medical practitioners to report serious intentional physical injury,5 with the laws being heavily informed in this respect by draft legislation recommended by the Children’s Bureau, the American Medical Association, and the Council of State Governments (Paulsen 1967). Only a few states included a requirement to report serious injury caused by neglect. The general ambit of these laws soon expanded in three ways. Importantly, and unlike many other countries, these expansions were strongly influenced by the effect of the passage in 1974 of the Federal Child Abuse Prevention and Treatment Act (CAPTA), which allocated funds to states based on the parameters of their laws. In essence, state laws were obliged to make their reporting laws have certain parameters to qualify for receipt of federal economic support for child welfare. One key provision in this regard in the first version of CAPTA was the definition of ‘child abuse and neglect’ as (author’s emphasis)6
The physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of eighteen by a person who is responsible for the child’s welfare under circumstances which indicate the child’s health or welfare is harmed or threatened thereby.
The three major expansions were as follows. First, state laws were gradually amended to require members of additional professional groups beyond medical practitioners to report suspected cases of abuse; some states would require all citizens to make reports. For example, in 1974, all laws required medical practitioners to report, but only nine required police officers to report; by 1986, many more states had added other professions to their lists of mandated reporters (Fraser 1986; Zellman and Fair 2002).
Second, the types of reportable abuse were expanded to include not only physical abuse but sexual abuse, emotional or psychological abuse, and neglect (Zellman and Fair 2002). Third, as seen in the definition above, the extent of harm to have been caused or suspected to be likely to activate the reporting duty was required by CAPTA to be unqualified by expressions such as ’serious‘ or ’significant‘ harm; most states abandoned such qualifications, and this would broaden the scope of the reporting duty (Kalichman 1999; Mathews and Kenny 2008).
It can be noted that these extensions were in part influenced by growing recognition of the nature and consequences of other forms of child maltreatment. After Kempe’s initial primary concern with severe physical abuse, different maltreatment types were recognised: sexual abuse, emotional or psychological abuse, and neglect. For example, research in the late 1970s and early 1980s brought incest and other classes of child sexual abuse to greater prominence (Giarretto 1977; Kempe 1978; Summit and Kryso 1978; Finkelhor 1979).
CAPTA would periodically be amended and reauthorised and was completely rewritten in 1988 (P.L. 100–294). At this point, the definition in s 14(4) still retained the essential features established in 1974, although it had broadened the concept of sexual abuse.7 By 1986, most states had mandated teachers, nurses, social workers, and mental health professionals as reporters (Fraser 1986).
However, a significant change was made in 1996 (P.L. 104–235), when the definition of ’child abuse and neglect‘ was modified by s 110(3) inserting a qualification of ’serious‘ harm. The definition then read (author’s emphasis):
the term ‘child abuse and neglect’ means, at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm.
The most recent revision of CAPTA in 2010 retains this definition of ‘child abuse and neglect’ (42 U.S.C. s 5106 g(2)).8 The emphasis is clearly on, at a minimum, acts of abuse and neglect which have caused significant harm. This insertion of the ‘serious harm’ qualification effectively contracts the required scope of state legislation. However, state legislatures may still choose to adopt a broader definition, and some states have done so (Mathews and Kenny 2008). Where such qualifications regarding significant harm are not present, a jurisdiction has chosen to have a higher emphasis on prevention of more serious maltreatment by intervening at an earlier point in the process of maltreatment, as well as interrupting serious harm or abuse. Such an approach often uses both child protection systems’ investigative function and a differential response approach which focuses on a different post-report response pathway.
A more explicit focus on significant harm is found in most US state laws and in most of the legislation across Australia. Moreover, some jurisdictions add a further qualification to the reporting duty, also restricting it to cases where not only is the significant harm qualification present but, in addition, the child does not have a parent able to protect them from the harm. Examples of this approach can be found in several provinces of Canada and in Victoria in Australia (Mathews and Kenny 2008).
Mandatory Reporting Evolving to Include Differential Response Approaches
Mandatory reporting legislation continues to evolve and adapt in virtually all jurisdictions which have adopted it. One of the most significant recent changes can be seen in many jurisdictions which are attempting to balance, on the one hand, the need for government child protection agencies to receive reports of significant harm and employ a traditional investigative response from child protective services teams to determine whether maltreatment has occurred and what response is most appropriate and, on the other hand, to ease the burden on child protection departments by diverting reports to welfare agencies of clearly less serious situations in which either there is no maltreatment at all, but simply need based on poverty, or which involve only minor harm or maltreatment which does not require more formal systemic responses. This latter focus on ‘differential response’ is seen by most as a generally positive development and is becoming more widespread both in the USA and Australia,9 although its contours and implementation are not uniform (Fluke et al. 2013; Conley and Berrick 2010; American Humane Association 2008). In general, it aims to provide an additional mechanism to respond more efficiently and justifiably to reported cases of a different type of situation which have a different type of needed response. The focus is on provision of services to the child’s caregivers and the child. In principle, a nuanced approach to response is essential: an otherwise happy and healthy 8 year old who sometimes does not have appropriate clothing or food due solely to his single mother’s poverty requires a far different response to a 3-week-old neonate whose drug-addicted parents beat him severely, and will not engage with support.
Arguably, if implemented soundly, differential response is as essential a part of a public health approach as are the reporting laws. However, it has been observed that such systems must be shown to be successful (and not only by measures of parental satisfaction), should not compromise the child’s safety, should be backed by a capacity to compel parental compliance where necessary (noting that parental engagement is voluntary), and must not be used by politicians to withdraw net funding from the child protection and child welfare endeavour (Bartholet 2012; Bartholet and Heimpel 2013; Heimpel and Bartholet 2014).
The process of development and evolution of the laws, including the incorporation of differential response mechanisms, and the adoption of different approaches across the spectrum of choice can be illustrated by a concise chronological overview of developments in Australia from the 1960s to date.
An Example of Developments and Differences: An Australian Overview
Soon after Kempe’s work, some early Australian research also made similar observations about the physical abuse of children (Birrell and Birrell 1966; Wurfel and Maxwell 1965). This research helped to inform the development of the first mandatory reporting laws in Australia, including the first enactment in South Australia in 1969. The first Australian mandatory reporting laws in the late 1960s and early 1970s focused primarily on physical abuse and, to an extent, severe neglect. Like their American counterparts, usually these first laws were limited to requiring medical practitioners to report.
Subsequently, all eight Australian states and territories have introduced, and incrementally expanded, mandatory reporting requirements. Legal historical analysis by Mathews (2014) revealed the disjointed process of introduction of mandatory reporting laws in time, place, and subject matter in Australia. Table 1.2 shows the national chronology.
Table 1.2
Chronology of introduction in Australian states and territories of first mandatory reporting laws and their focus
Date of first mandatory reporting provision | Jurisdiction | Focus of original reporting duty |
|---|---|---|
27 November 1969 | South Australia | Neglect and ill-treatment by parents and caregivers |
22 October 1975 | Tasmania | Physical abuse and neglect |
1 July 1977 | New South Wales | Physical abuse and neglect |
14 June 1980 | Queensland | Physical abuse and neglect |
20 April 1984 | Northern Territory | All forms of child abuse and neglect, where the child does not have a parent who can protect the child from the abuse |
4 November 1993 | Victoria | Children in need of care and protection as a result of harm from physical injury or sexual abuse and lack of a parent who can protect the child from that harm |
1 June 1997 | Australian Capital Territory | Physical abuse and sexual abuse |
1 January 2009 | Western Australia | Sexual abuse |
A Dynamic, Flexible Instrument of Social Policy
The example of Australia also shows how the laws are a dynamic, organic measure which is adaptable to change. As with all legislation, mandatory reporting legislation are instruments of sociolegal policy which are able to be refined and developed – whether by expansion, contraction, or refinement – to accommodate new knowledge, policy imperatives, and systems changes. The developments in the laws and in differential response systems in the last decade or so provide a clear example of this. The refinements made in each Australian state and territory in the last decade alone show how governments can choose to modify this important instrument, either enlarging, contracting, or otherwise modifying its technical scope (parameters of the law) and practical implementation (e.g. mandated reporter training and systems approaches). Research is important in this respect as it can identify differential reporting practices between jurisdictions with different legal frameworks, between reporter groups, and between different types of maltreatment and can help to identify areas of more or less effective reporting practice and areas of systemic need. National research in Australia is currently being undertaken in this regard.10 Research into reporting systems is an essential aspect of the monitoring component of a public health approach.
This point is important because it demonstrates how, when research and monitoring reveal problems with the law, appropriate changes can be devised and implemented. Creation of a legal framework does not bind policy and strategy forever. It also means that when a problem is identified, we can carefully consider principles and evidence and figure out how best to respond to it. This reasoned approach guards against unnecessary ‘all or nothing’ overreactions and extreme exhortations to abandon the entire policy; such exhortations are extremely rare but have been made (Melton 2005) and later strongly criticised (Drake and Jonson-Reid 2007; Mathews and Bross 2008).
Legislative analysis of each Australian jurisdiction reveals many changes in the decade 2003–2012, of which the following are the most substantial developments (Mathews 2014) (Table 1.3).
Table 1.3
Chronology of notable legislative developments and refinements in Australian state and territory mandatory reporting laws, 2003–2012