© Springer Science+Business Media Dordrecht 2015Ben Mathews and Donald C. Bross (eds.)Mandatory Reporting Laws and the Identification of Severe Child Abuse and NeglectChild MaltreatmentContemporary Issues in Research and Policy410.1007/978-94-017-9685-9_23
23. Mandatory Reporting of Child Abuse and Marginalised Families
Law School, The University of Queensland, St Lucia, QLD, Australia
KeywordsMandatory reportingChild abuseProtective servicesChild protectionDecision-makingReportingCultural differencesDisparity and child abusePovertyDomestic violence
The introduction of laws requiring the mandatory reporting of serious child abuse and neglect, usually by professionals, has received significant attention, and many researchers have considered the advantages and disadvantages of mandatory reporting (Mathews and Bross 2008; Melton 2005). One advantage, it has been argued, is that the requirement sends a strong message that child abuse will not be tolerated (Takis 2008, p. 126). Other advantages include that it raises awareness of child abuse (Cashmore 2002, p. 9) and that it resolves conflict for some about whether or not to report incidents (Australian Law Reform Commission 1997, p. 435; Tomison 2002a, p. 17). Mandatory reporting laws can ensure that cases of child abuse are brought to the attention of child protection authorities so that further harm may be prevented and services can be provided, especially in cases where, without such laws, the family would remain hidden (Mathews and Bross 2008, p. 515; Cashmore 2002, p. 9). It has also been pointed out that reporting of child abuse by clinicians is consistent with other duties to report, for example, suicide risk and homicide risk (Wekerle 2013, p. 93).
At the same time, some disadvantages associated with mandatory reporting laws have been identified. It has been claimed that they lead to overreporting and greater numbers of unsubstantiated reports and that this puts unnecessary pressure on an already under-resourced child protection system (Takis 2008, p. 126; Jacob and Fanning 2006). Professionals have also raised concerns about loss of the family as clients if they report and many have expressed doubts about the benefits of contact with the child protection system for families under their care (Pietrantonio et al. 2013, p. 105). Another key concern raised about mandatory reporting laws is that they may force parents and children underground and deter them from seeking help (Adler 1995, p. 194; Australian Law Reform Commission 1997, p. 2333; Stretch 2003; Melton 2005, p. 14).
In this chapter we draw on two qualitative studies we conducted in Queensland, Australia, to consider how frontline workers (both support workers in nongovernment organisations and lawyers) who work with marginalised groups, for example, with families from culturally and linguistically diverse (CALD) groups,1 Indigenous families and families experiencing poverty and homelessness or domestic violence, view mandatory reporting of abuse to child protection authorities. Our research has suggested that workers’ experiences of the interaction between their clients and child protection services are extremely negative overall (Douglas and Walsh 2009; Walsh and Douglas 2012). As a result, some workers are very reluctant to report abuse because they perceive the response of child protection services to be poor. The kinds of abuse most often referred to by participants in this research were neglect, domestic violence, physical violence and emotional or psychological abuse. Sexual abuse was not specifically discussed by our participants. Thus, our findings are most applicable to situations in which non-sexual abuse is alleged to have occurred.
We begin with a brief outline of the Australian laws that require mandatory reporting. This is followed by a discussion of some of the issues raised in our studies of child protection and the broader literature. In the final section we draw some conclusions about the potential value and risks of mandatory reporting in the context of working with marginalised families and consider possible improvements to current approaches.
Mandatory Reporting in Australian Law
All Australian states and territories have legislated to impose mandatory reporting requirements on at least some professional groups.2 The requirements vary widely across the jurisdictions: in some states and territories, only a few classes of professionals are required to report suspicions of child maltreatment (most often doctors, nurses, teachers, child care workers and police officers), while in the Northern Territory, every adult who suspects that a child is being harmed or likely to be harmed has a legal duty to report. In Victoria and the Australian Capital Territory, mandatory reporters are only required to report suspicions of physical or sexual abuse. In Western Australia, only sexual abuse must be reported. In all other states and territories, the types of reportable maltreatment are broader than this. For example, suspicions of neglect and emotional or psychological abuse must be reported by mandatory reporters in New South Wales, the Northern Territory, Queensland, South Australia and Tasmania. In New South Wales, the Northern Territory and Tasmania, mandatory reporters must also report if they are aware that a child has been exposed to family violence or is living in a household where family violence is occurring, provided the required level of harm exists or is likely to occur.3 Most statutes stipulate financial penalties if professionals fail to report when required to (Mathews et al. 2006, p. 507). Mandatory reporting does not guarantee a particular intervention; rather it operates as a notification to child protection authorities who make a decision about what needs to happen.
Specifically in Queensland, the Australian state where our research was undertaken, section 148 Child Protection Act 1999 (Qld) (the Act) states that a ‘responsible person’ who:
…becomes aware, or reasonably suspects, that harm has been caused to a child placed in the care of an entity conducting a departmental care service or a licensee, the person must, unless the person has a reasonable excuse, report the harm, or suspected harm, to the chief executive- immediately…
The Act defines ‘responsible person’ for the purposes of the provision as ‘an authorised officer’ or ‘an officer or employee of the department involved in administering’ the Child Protection Act 1999 (Qld) or ‘a person employed in a departmental care service or licenced care service’.4 ‘Harm’ is broadly defined as ‘any detrimental effect of a significant nature on a child’s physical, psychological or emotional well-being’ and can be caused by physical, psychological or emotional abuse or neglect or sexual abuse or exploitation resulting from a single act or series of acts.5 ‘Significant’ harm is not defined in legislation; however the Department of Communities, Child Safety and Disabilities (2013) defines significant harm as harm that is substantial or serious and more than transitory; ‘it must be demonstrable in the child’s presentation, functioning or behaviour’. This definition is obviously open to interpretation, and in a risk-averse environment, where child protection agencies operate in a ‘better safe than sorry’ culture (Carmody Inquiry 2013, pp. xvii, 205), ‘significant harm’ may be interpreted widely. This is a particular problem for certain types of child abuse and neglect, especially exposure to domestic violence and emotional abuse (Mathews 2012). The Queensland Civil and Administrative Tribunal (QCAT) has acknowledged that witnessing domestic violence can cause harm to children (CT v Commissioner for Children and Young People and Child Guardian  QCAT 354 at 49–50).
Further, staff of the Commission for Children and Young People and Child Guardian,6 and doctors or registered nurses7 who become aware, or reasonably suspect during the practice of their profession, that a child has been, is being or is likely to be harmed also have a duty to report. Staff members of state and non-state schools are required to report sexual abuse or likely sexual abuse of students under 18 years.8 Penalties apply as a consequence of failure to report.9
Marginalised Mothers and the Child Protection System in Australia
It is well established that marginalised mothers, particularly those who are poor, homeless, Indigenous or victims of domestic violence, are more likely to become known to child protection authorities (Thomson 2003; Keegan Eamon and Kopels 2004; Busch et al. 2008; Marts et al. 2008). Dettlaf and colleagues (2009) suggest that there is an important relationship between race, income and risk assessment but also that disproportionality in the child welfare system is a complex phenomenon that cannot be explained by a single factor.
Poverty has long been associated with child maltreatment but the causal effect of poverty on child maltreatment has received limited attention (Walsh and Douglas 2008). Studies undertaken in Missouri, by Drake and colleagues (2009, p. 315, 2011, p. 471), concluded that there is no evidence that visibility to mandated reporters causes higher reporting rates among the poor whatever their race. In contrast, and drawing on a number of empirical studies undertaken in the United States, Roberts (2012, p. 1478) focuses on the intersectional nature of race and poverty and argues that foster care ‘is only one example of the many forms of over policing that overlap and converge in the lives of poor women of colour’. She observes that mothers involved in the child welfare system in the United States are disproportionately poor women of colour (Roberts 2007, 2008), a situation that is mirrored in Australia (Douglas and Walsh 2013). Aboriginal and Torres Strait Islander children in Australia are increasingly on child protection orders; in 2011–2012 they were almost ten times more likely than other children to be subject to a child protection order and to be in out of home care, with the most common type of abuse reported being neglect.10 Of course, neglect is often directly associated with poverty. The conflation of harm and neglect is questionable because an inability to materially provide for a child does not mean the child lacks nurturing or protection. It would seem cruel and inhuman to punish a mother and child with removal for reasons of neglect resulting from poverty, when supports and less invasive interventions through differential response approaches could remedy the situation (Walsh and Douglas 2009; Mathews and Kenny 2008; Mathews 2012). However in Australia, few child protection statutes explicitly mandate against removal on the basis of neglect even if the neglect is the result of poverty.11 Recent United States research has found that poverty is associated with reports of child abuse but that ensuring that mothers receive all eligible child support for their children significantly reduces the reporting of child maltreatment (Cancian et al. 2009, p. 14).
American studies have also noted the disproportionate representation of ethnic minorities in out of home care. For example, in a study in Indiana, Hispanic and black children were disproportionately encountered in out of home placements compared with white children (Busch et al. 2008, pp. 256–257). In Australia there are no reliable figures on the numbers of children from culturally and linguistically diverse (CALD) backgrounds in the child protection system (Kaur 2012, p. 17). However misunderstandings of cultural differences in child rearing practices may contribute to a finding of child abuse.12 For example, such misunderstandings might include different approaches to physical discipline in other cultures (Brophy 2008, p. 82).
Studies in the United States have also noted that there are broader ‘treatment disparities’, with black and Hispanic children much slower to exit care than their white counterparts (Busch et al. 2008, p. 256; Derezotes 2009, p. 44; Church 2006). Racial bias in decision-making has been found to be an important consideration in decision-making about child protection responses (Dettlaff et al. 2009, p. 1635). The United States policies such as reducing in-home support for families, focussing increasingly on out-of-home care and emphasising adoption as a solution to the rising foster care population, reflect, according to Roberts (2012, p. 1485), an increasingly punitive approach to child welfare and that it has been a political choice to fund punitive rather than supportive programmes. These punitive approaches also feature in Australia’s child protection environment. Increasingly, some child protection advocates are pushing for long-term guardianship orders and adoption, and child protection services are focussed on tertiary intervention rather than focussing on building the strengths of families (Betts 2013; Rath 2001). Roberts (2012, p. 1486) maintains that this punitive response is justified by ‘stereotypes of black maternal unfitness’. She argues that in some United States communities the spatial concentration of child welfare supervision and removal creates an expectation of supervision and removal and it has become normalised. This is also occurring in some Australian communities with, in some cases, five generations of Indigenous children being placed in care (see McGlade 2012). Given the history the removal of Indigenous children from their families, many Indigenous people perceive current child protection interventions as an ongoing process of removal (Bamblett et al. 2010, p. 19). Roberts (2012, p. 1491) describes how the child welfare system in the United States operates to discipline and control poor women and poor black women. Such a claim could also be made about Australian approaches to child protection. In the Australian child protection context, there have been concerns expressed about the lack of cultural competency among child protection workers and the very limited number of Aboriginal people employed as child protection workers (Kaur 2012, p. 15; Bessarab and Crawford 2010, p. 190).
There is a risk that, in this environment, mandatory reporting requirements are likely to further entrench the disproportionate representation of poor and Indigenous or ethnic families in the child protection system.13 Also, if professionals who work with children and families are not able to collaborate effectively with child protection authorities and there is a context of mutual distrust, there is a risk that professionals may not comply with their reporting obligations.
Empirical Research in Brisbane, Australia
We undertook two studies in Brisbane, Australia. The aim of both studies was to investigate professionals’ views on the nature of mothers’ experiences within the child protection system in Queensland. In the first study, five focus groups were held at community organisations in Brisbane involving 32 workers (hereafter referred to as ‘community service providers’).14 The community organisations that participated are all engaged in direct service delivery and have a client base which consists, at least in part, of mothers of children either in the care of, or ‘known’ to, child protection authorities. They provide services to a wide range of female clients including poor and homeless women, women experiencing domestic violence, Aboriginal women and women from CALD communities.15 The second study involved 21 interviews with 26 lawyers with substantial experience in child protection law (in five of the interviews there were two participants). A snowball sampling method was employed whereby interviewed lawyers recommended other child protection lawyers for interview (Doreian and Woodard 1992). All of the lawyers we interviewed commonly represented parents or children in child protection matters, either in private practice or within a legal organisation such as Legal Aid or a community legal centre.16 Three had previously worked within child protection departments. Both studies focused on the experiences of mothers as they are more likely to have care responsibilities for children particularly in those cases where there is child protection intervention (see Lewis and Welsh 2005). Neither study focused on mandatory reporting, but the issue of mandatory reporting was raised and discussed in the focus groups and interviews.
Based on a literature review, a semi-structured interview guide was created for each study. The guides focused on facilitating in-depth discussion and analysis of current practices and challenges associated with working in the child protection field. Ethical approval was obtained from the Ethics Committee at the University of Queensland. Each focus group and interview ran for between 60 and 90 min. Focus groups and interviews were recorded and transcribed, and the qualitative data yielded was pattern coded (Miles and Huberman 1994, pp. 69–72). The limitations of our approach are conceded. The findings reported on here are based on accounts of lawyers and community service providers who advocate for and represent mainly parents within the child protection system in Queensland. It cannot be understood as a literal description of the system as a whole or of the workings of the child protection systems in other states (Dingwall 1997, p. 54).
Our research participants identified a number of concerns regarding mandatory reporting. The concern most commonly noted was that mothers might choose not to seek help and support for medical issues, housing or police intervention in response to domestic violence as examples, if they are fearful that they might be reported to child protection authorities and their children could be removed.
Some of our participants said that their clients avoid social services altogether, including family support services and homelessness services, because they fear being referred to child protection authorities. In one of our focus groups, the following comments were made:
There are those family crisis centres, but that’s where they’re reporting to Child Safety … So, you’re giving them that invitation to take you kids while you’re trying to escape violence.
And they don’t want to tell anyone cause if they tell anyone then their children will be taken away and then they can’t get their kids back. Cause even if they are homeless and they do get shelter, where do you get a place where you can have your kids for 3 nights a week, because with homelessness at the moment, even in a boarding house it’s full of really intense issues and it’s not a safe place and there’s usually not any other immediate housing other than a boarding house or a refuge, where they take the kids off you anyway. And it’s meant to provide safety for you and your children, but if you take them there you’ll end up losing them.
In another focus group, participants said that some women avoid accessing health services because they fear being reported to Child Safety. The following exchange occurred:
Worker: I.’ve found that. It is often that the children get taken to visit a GP and it is on that occasion that a notification results from that.
Facilitator: What kinds of things are alerting the doctor?
Worker: I don’t know. Maybe they go in for a cold or something and then next thing they know there is a notification made against them.
This worker is not suggesting that child protection authorities have become involved simply because the child has a cold; rather the worker is emphasising the point that it is an attendance at a doctor’s appointment which has triggered involvement of child protection services.
The lawyers in one of our interviews claimed that some young women even try to avoid giving birth in the hospital because of the fear that they will be reported to Child Safety and have their child removed:
Lawyer 1: So really, in some ways, it’s putting child safety – in that way putting the child’s life and the mother’s life at risk if they then decide to, okay, I can’t go to hospital because I know they’re going to take my baby so I’ll have it at home …
Lawyer 2: Oh, yeah, women do do that. You know, they will try and run away to have the baby and …
Lawyer 1: Self-preservation sort of thing.
The two lawyers here are reporting on their clients’ behaviours. Their point is that young women may avoid contact with health professionals because they believe there is a risk that they may be reported to child protection authorities.
In the context of domestic violence, some participants suggested that women may decide not to report abuse to police because they fear the removal of their children. In one focus group, the following exchange occurred:
Facilitator: Do you think that the fear of their kids being taken away stops them calling the police about violence?
Speaker: Yeah, because as soon as you call the police, there’ll often be a juvenile aid [worker] that comes out with them
In a separate group, a similar comment was made:
Facilitator: So do you think that women are less likely to seek help from the police [who have mandatory reporting requirements] than ringing [a crisis counsellor who does not have a mandatory reporting requirement]?
Worker: Yeah,because the police stuff, particularly. But also I think generally, because they’re scared because, even with a shift in the culture people are going to be scared about what to say, and whether to give their name. Is it confidential and what does confidential really mean? A lot of the clients, even without reporting issues, they are very sceptical about whether or not to trust us. And that issue of reporting, I mean, it’s something that has come up for us a number of times.
The fear of intervention may seem unreasonable, but often it arises because of some prior experience with child protection authorities, for example, where the mother was subject to a child protection order as a child or where the mother is otherwise ‘known’ to child protection authorities. One of the lawyers we interviewed said:
The police have an obligation to report child abuse or domestic violence of course.17 Clearly this information is exchanged between the various child protection units in the core service delivery areas. That needs to happen. But, sometimes, yes I have seen that because certain families do come to the attention of a particular service delivery agency they may have a perception that they are being targeted. Although I’ve not seen that to be vexatious or scurrilous. They are people that, unfortunately, are known because there is a particular history there.
Another lawyer stated:
No one is going to go, after having their child in protection for a short period of time or a long period of time, are going to go to the Child Safety and say, listen, John’s beating me or Sue’s beating me, or whatever, for the pure fear factor that they’re going to lose their kids again.