The next government must legislate to protect children from abuse in religious settings

In 2022 the Independent Inquiry into Child Sexual Abuse (IICSA) published its final report. IICSA was a seven-year long public inquiry examining how our institutions have responded to abuse. Unsurprisingly, given that churches have been such reliable incubators of abuse, much of the inquiry's work concerned religious settings, including minority religions alongside the Catholic and Anglican churches.

One of the inquiry's recommendations for change was mandatory reporting of abuse.

What do we mean by mandatory reporting? Very simply, a mandatory reporting law imposes a legal obligation on specified persons ("mandated reporters") to report known and suspected cases of child and vulnerable adult abuse to state agencies like the police or social services. Mandated reporters are generally personnel in institutional settings who work with children and can take steps to protect them: teachers, care workers, youth workers, and, of course, priests and religious ministers.

In most versions of mandatory reporting, the obligation to report is underpinned by criminal sanctions for non-reporting: if you don't report abuse, you can go to jail.

Most western countries have some form of mandatory reporting, and some have had it for decades. But Britain still doesn't. So as I write this today, a priest (for example) can know that a child has been raped, but is under no legal obligation to report it.

Clearly, that needs to change. Abuse survivors hoped that IICSA would be the catalyst for reform.

However, mandatory reporting laws vary widely, in terms of who is covered by the reporting duty, what must be reported, and the extent of criminal sanctions for non-compliance. Some work better than others. Design is all; badly designed laws are ineffective.

Unfortunately, IICSA's proposed law was one of those which is badly designed. I've explained why in a previous opinion piece. The biggest reason was the lack of criminal penalties for failure to report reasonable suspicion of abuse. Most situations where an institution covers up abuse are situations in which people suspect that something untoward is happening, but turn a blind eye because of reputational and other pressures.

We saw a graphic example when IICSA looked at events at St Benedict's School, a well known Catholic private school in west London attached to a Benedictine abbey. Cover ups at the school enabled clergy to subject boys to horrific physical and sexual abuse for half a century.

For a mandatory reporting law to work effectively, it needs to ensure reporting of reasonable suspicions. But the lack of any criminal penalty for non-reporting undermines both the impetus to do so, and the protection for those who want to report. So IICSA's proposal was a start, but in the eyes of mandatory reporting experts and abuse survivors, it wasn't good enough.

The government's mandatory reporting law – even worse?

The next development in this saga was last month, when the government proposed its own mandatory reporting law. I say 'mandatory reporting law', but in reality this proposal was nothing of the sort – if the IICSA proposal was inadequate, this was far worse. Because the devil is in the detail, it's easy for the flaws in the government proposal to get missed.

The government proposal has two elements: a "duty to report child sex offences", and an "offence of preventing or deterring a person from complying with duty to report child sex offences". Both sound like the kind of things we need; however, as drafted, they are anything but.

On close examination, it transpires that the "duty to report child sex offences" has no teeth. If you breach the duty, no criminal penalty arises. In contrast to most mandatory reporting laws worldwide, there is no offence of failing in the duty. The Home Office says that anybody failing to fulfil the "duty to report" known offences will be referred to the Disclosure and Barring Service, but there's no mechanism set out for this to happen. So failures to report are likely to be penalty-free, just like now – which makes them much more likely to happen.

What's more, there's no there is no requirement to report reasonable suspicions of abuse at all – so the inadequate IICSA version has been watered down even further.

It gets worse. Under the proposed legislation a report can be delayed for such time as the person reporting"reasonably believes that it is not in the best interests of the child"to report. This vague formulation, unlimited in duration, essentially means that a mandated reporter can delay for as long they like, claiming that the best interests of the child are best protected by doing nothing.

This rings some very loud alarm bells. As a lawyer who represents abuse survivors I've seen many cases over the years where a bishop told parents of an abuse victim that it wouldn't be "in the child's best interests" to report a paedophile priest to the authorities. A bishop shouldn't be making this sort of decision, because a bishop is inherently conflicted – as we saw in IICSA he (and it's usually a he) will be worrying about the church's reputation. It's a recipe for more cover-ups.

Then we have the final bit of the proposed law: an "offence of preventing or deterring a person from complying with duty to report child sex offences". This is just a mess. It's bizarre to draft a law in which it's not an offence to fail to report child sex abuse but it is an offence to discourage someone else from reporting it. And in any case, the same excuse is available here – 'I encouraged delay because that was in "the best interests of the child"'. Experience, particularly in religious organisations, tells us that this open ended excuse is ripe for misuse.

If you want to read more about the problems with the government proposal, Mandate Now have analysed it forensically here. But in summary, the government proposal is the most extraordinarily feeble piece of window dressing anyone could have come up with: no teeth, and lots of easy get outs to justify doing nothing.

The only positive news is that these clauses have not been passedas they weren't included in the pre-dissolution "washup" following the calling of the general election. It will be for the new government elected on 4 July to decide how to respond to IICSA's recommendations.

I hope that it will do so by revisiting what we actually learned in IICSA about the ways institutions, driven by reputational protection, try to keep abuse covered up: a problem that is particularly acute in religious organisations which claim to be moral beacons in society, and therefore have every incentive to keep abuse under wraps.

The lesson from seven years of IICSA hearings is that we need effective mandatory reporting legislation; something that so much of the Western world already has. Doing what is now the international norm shouldn't be a big ask. We can only hope that the next government will grasp this nettle.