Reporting child abuse

Reporting child abuse

Reporting child abuse 800 533 Hugill & Ip
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Child abuse is a serious problem in Hong Kong. The number of cases of abuse is staggering but most go unreported. Dealing with the problem is a priority for the courts and the Government but identifying and acting on such cases is fraught with difficulty.

Earlier this year, the Government opened a public consultation on proposals to introduce mandatory reporting of child abuse, after encouragement from civil society and the Law Reform Commission Subcommittee on Causing or Allowing the Death of a Child or Vulnerable Adult. Such legislation is long overdue. It is not a panacea, but it is an essential first step.

The need for mandatory reporting

At present, there is no explicit legal mandatory reporting requirement for child abuse in Hong Kong. Despite the likely existence of a common law duty to report suspected abuse where a person has a professional or other responsibility for the welfare of a child,[1] in practice many do not report all cases of child abuse and do not have formal training on handling such cases.[2] This is partly because the law is not clear.

Professionals have express duties to the children they serve.[3] Failure to take appropriate action (e.g. reporting concerns to the relevant authorities) may constitute professional negligence creating liability for both professionals and their employers.[4] Where a person (even a lay person) is in loco parentis to a child[5], they may commit an offence if they wilfully (i.e. recklessly)[6] expose or cause to be exposed a child in their “custody, charge or care” to assault, ill-treatment, neglect, abandonment or unnecessary suffering or injury to the child’s health (see section 27 of the Offences Against the Person Ordinance, Cap 212). It is arguable that this offence may be committed where a person who has care, custody or charge of a child relinquishes the child into circumstances where that person knows the child is at imminent risk of such abuse. However, there have never been prosecutions under this section in Hong Kong in such cases.

How to Report Child Abuse

Pursuant to the Social Welfare Department’s Procedural Guide, where a complaint is made to the Department about suspected child abuse, the normal practice is to hold a confidential, multi-disciplinary case conference (MDCC). The MDCC is a forum for professionals (eg social workers, school teachers, medical officers, police officers) having a major role in the handling and investigation of the suspected child abuse case to share their professional knowledge, information or concerns.

The police have specific duties to record and investigate reports of offences against children.  In cases of serious physical or sexual abuse, the Child Abuse Investigation Unit (CAIU) of the police force will investigate.  In such cases, upon referral, the CIAU will form a multi-disciplinary Child Protection Special Investigation Team (CPSIT) (including social workers or clinical psychologists from SWD with special training) to provide consultation and/or conduct joint investigations.  In turn, they will coordinate and work with the pathologists and Medical Coordinators on Child Abuse (MCCAs) from the Hospital Authority.

To protect children, the law must also protect those who report abuse. Where a report is made, the identity of the complainant may not be disclosed.[7]  It is also government policy not to prosecute informants if a reported suspected case is found to be unsubstantiated. The government have proposed to go further and protect mandated reporters through specific prohibitions that the “employer or supervisor of the mandated reporter must not dismiss him or her, or discriminate or retaliate against him or her for making the report.”

Views of the HKCCR on the Mandatory Reporting Consultation

The Hong Kong Committee on Children’s Rights (HKCCR) is pleased to see that the Government is making progress on the proposed Mandatory Reporting Requirement for Suspected Child Abuse Cases. We applaud the positive response to many valuable comments made by the civil society, which have now included in the revised proposal. We thank the Government for opening public consultation across communication platforms, and we hope the Government will continue to discuss this important issue with the community. Below please find our views on the proposal.

1/ Whom to protect?

We are glad that the Government listened to the views of child rights advocates and now proposes to protect children up to the age of 18, in accordance with the international standards and conventions such as the Convention on the Rights of the Child (CRC). We hope that all the other laws relating to children will be similarly aligned to this standard in future. Children up to that age are very vulnerable to abuse and rely upon Government, professionals, and the community for protection. Where children are still reliant upon others, they should be entitled to the same protections from abuse.

2/ Who are mandated to make reports?

We agree to the proposal to include those professionals who have frequent contacts with children and whose professions are currently subject to self-regulation or regulation by the Government like teachers, child care workers, nurses, doctors, Chinese medicine practitioners, health care professionals, social workers. We also agree to the widening of scope to include clinical psychologists, education psychologists, counsellors, workers in residential care homes. However, we object to the current exclusion of foster parents, home-based child carers, clergymen, private tutors, coaches or instructors, as those persons are in a very good position to spot the traces of harm and they already have duties of care over children. At the same time, the imbalance of power between them and the children under their care makes it more difficult for those children to speak out in circumstances of adversity. Regrettably, we have already seen situations involving these adults where failures to report have led to tragic consequences in the past.

We agree that the new scheme may need phased implementation in order to provide adequate training and education. Such training should start with professional groups first. However, from the very beginning, the government must give a strong signal that child protection is not only the duty of some specific people but also the whole community as a whole (in the words of Article 20 of the Hong Kong Bill of Rights: “family, society and the State”). We need a culture of reporting child abuse to percolate down to other groups. In particular those acting in the position of parents (‘in loco parentis’), who have legal duties of care of a parent over a child, should be expected to report. Thus, we support the Government’s proposal that the list of mandated reporters should be set out in a Schedule to the legislation so that the list may be amended from time to time by way of subsidiary legislation in a prompt manner to keep abreast of changing circumstances.

We would also like to inquire about the role of agencies in the mandatory reporting system. All along, we have been advocating for clear child safeguarding policies for every agency. This is also clearly stated in Chapter 13 of the Protecting Children from Maltreatment – Procedural Guide for Multi-disciplinary Co-operation (Revised 2020) published by the Social Welfare Department. So in case of emergency, the agency will form a team to support the staff who first came to know about the child abuse situation. The proposal now, however, does not specify the role of agencies and the legal duty of reporting is instead solely assigned to the list of mandated reporters. We believe role of agencies is important and their support is crucial for staff in handling emergency situations and giving them a clear signal that they are not shouldering the pressure alone.

3/ What types of suspected cases are to be reported?

The consultation paper proposes that mandated reporters should be required to make a report if they have reasonable grounds to suspect that a child “has suffered serious harm” or “is at an imminent risk of suffering serious harm” for four defined types of suspected child abuse, namely physical abuse, sexual abuse, neglect and psychological abuse, during their course of work and pertaining to their scope of professional practice. It further proposes a 3-tier reporting mechanism to guide mandated reporters “to report” (The child being seriously injured/harmed), “encouraged to report” (The child is not seriously injured/harmed but at risk of being injured/harmed), or “refer cases to appropriate units” (There is no indication of the child possibly be abused/harmed but the family/child has other service needs).

We welcome the proposal to give a legal definition of child abuse, after all these years. However, we query why “The child is not seriously injured/harmed but at risk of being injured/harmed” is only categorized as “encouraged to report” under the proposal, when the spirit of the mandatory reporting system is to prevent children from harm before it is too late. We propose to combine the first two tiers into one to make it clear that one has a legal duty to report all serious cases unless it is in the best interests of the child not to do so. The government should specifically consider onus of proof for any defenses to duties to report.

4/ What should be the appropriate level of penalty?

The consultation paper proposes a 3 months’ imprisonment and a fine at level 5 (i.e. $50,000) for failure on the part of mandated reporters to report child abuse cases as defined under the legislation, as compared with the maximum of 10-year imprisonment for perpetrators under section 27 of the Offences against the Person Ordinance (Cap. 212). We invite the Government to consider whether a more severe sentence may be appropriate in extreme cases. We further invite the Government to clarify that criminal liability under the new offence is without prejudice to the possibility that a person may also commit an offence under section 27. For example, where a child care professional in loco parentis releases a child into the care of a person that they know continues to seriously abuse a child and does not report such abuse, they may commit both offences. See e.g. HKSAR v. KKK [2011] HKCFI 1849; HCCC 278/2011 (22 November 2011).

5/ How to safeguard mandated reporters’ interest?

We welcome the Government proposal to safeguard mandated reporters and the interests of children by confidentiality and safeguard provisions conferring the former with immunity from any civil, criminal or administrative liability arising from a report made in good faith should be incorporated into the new legislation and/or guidelines. However, we believe that the current proposals are insufficient. There needs to be a crime and statutory tort of retaliation against reporters who have made report of suspected child abuse in good faith. It should be unlawful for any employer to discriminate against or victimize any employee (reporter of abuse) in access to opportunities for promotion, transfer or training; dismissing or subjecting that employee to any other detriment. Similar protections should be provided in the context of educational institutions and other bodies.

The Government is also encouraged to urgently consider measures to ensure the physical protection and psychological support for those reporters who may be involved in the same family. Such measures should be taken as soon as possible, even prior to the introduction of the proposed legislation.

REPORTING CHANNEL

The consultation paper proposes the mandated reporter will be required to report the child abuse/neglect cases as specified in the legislation to the Police or SWD’s Family and Child Protective Services Unit by phone or any other means within a reasonable timeframe, to be followed by a written report. We wish to know what resources and how many trained personnel will be provided for the dedicated teams of Police and SWD to cover the expected increase in case workload.

We would also like to inquire whether a special telephone line will be established in the Police to deal with the reports under the legislation. The usual emergency line of 999 accepting all sorts of emergencies from the public is obviously unsuitable to handle the suspected child abuse/neglect cases under the new law. We suggest that trained personnel like the members of the Child Abuse Investigation Unit should be engaged to handle such calls so as to smoothen the initial investigation process for the best interests of the child.

TRAINING

We welcome SWD to set up an e-learning platform to give out appropriate training for mandated reporters to enhance their capacity for early identification and handling of suspected child abuse/ neglect cases. This is an accessible and flexible way to reach out to a large number of people. We urged SWD to widen the scope by integrating the training programme in the pre-service training programmes in various disciplines so as to raise their awareness and skills. The e-learning platform should also be extended to all in-service children and youth related workers who are not put under the current list of mandated reporters. We believe child protection training should be provided to all child-related professionals and workers in a systematic way to improve their child protection awareness.

Effective child protection training should be measured with width and depth. Apart from the e-learning platform, regular in-depth training and sharing sessions should be conducted with real case analysis. Cross-disciplines sharing sessions should be arranged to allow people to hear the voices and challenges from each sector and directly interact with the authorities concerned. In this way, we could really improve the child protection ambience in Hong Kong with joint forces for the best interests of the child.

OTHER COMMENTS

Need to include children’s voices in the consultation

Engaging the public is key for any public policy and it must begin with children. Children have the right to express their views on matters related to them: see article 12 of the Convention on the Rights of the Child. The current public consultation process needs to listen to the voices of children and measure the impact on them properly. This is essential as, in reality, children are often the true ‘first reporters’. Without their willing involvement, most cases do not come to light. Overseas experience quoted in the previous consultation paper warned that “It might dissuade children from disclosing incidents for fear of being forced into hostile legal proceedings.” Some children and young people have expressed to us that they will be scared if they might end up in residential homes for disclosing abuse. We need to find out more from children so we can have a better response and more effective regime.

Need for public education

Any success of a new law or system needs strong public support. It is important for the Government to explain the new law and policy to the general public. Special efforts should be made on sensitizing the ethnic minority community, new immigrants, families in refugee or asylum-seeking status, and children and families in deprived circumstances. Besides, public education on child protection and children’s rights should also be enhanced so everyone in the community understands that he or she has a role in child protection.

Child Safeguarding Policy/Whistle Blowing Policy for schools and organizations

The government needs to invest resources to help organizations, schools and companies to set up Child Safeguarding Policy/Whistle Blowing Policy so all the new recruits and existing staff have the awareness through training and capacity building to deal with the situation when suspected child abuse situation arises. This also aligns with the Protecting Children from Maltreatment – Procedural Guide for Multi- disciplinary Co-operation (Revised 2020) in Chapter 13.

Strengthened Budget and supporting measures

The Government needs to have determination in committing resources in manpower, tailor made training for various stakeholders concerned, and strengthened supporting measures (eg. sufficient alternative care and placement for children caught in emergency situations) so the reports made by the mandated reporters would be properly followed through. The Government should reserve a reasonable budget on improving the child protection system in each fiscal year.

Need for a statutory Children’s Commission

We strongly urge the Government to consider the formation of a statutory and independent Children’s Commission. Such a commission would provide essential support for the implementation of mandatory reporting, including public education, training, investigation, ongoing public consultation, and publication of best practices to help the community better protect children from child abuse.

Conclusion

Mandatory reporting is only one of the necessary measures for child protection, but it should not be the only measure. This consultation paper has focused on the creation of a crime of failure to report. This is a valuable step, but greater child protection reform is surely needed. We encourage the government to begin with public consultation on the “Protection of Children Legislation (Amendments) Bill” that the civil society has put forward to the government in 2020.

With respect to the consultation, we strongly encourage the Government to include: (i) a general duty to report that applies to a broader category of people that could come in stages; (ii) any serious cases that harmed or at risk of harm of the child should be reported; (iii) make retaliation against reporters who have made report of suspected child abuse in good faith a crime. Besides, the government needs to provide sufficient and sustainable resources, enhancing public education and addressing the training needs on child protection in width and depth for both in-service and pre-service child-related professionals and workers on a regular basis. We also need a reasonable budget in each fiscal year to improve the child protection system. Last but not the least, we call on the government to kick start a Child Protection Reform by reviewing all the current laws and systems related to the protection of children in Hong Kong to keep in line with the world paces.

Notes:

[1] See discussion in D v East Berkshire Community Health NHS Trust [2005] UKHL 23 (HL); also AB v Victoria (unreported, Supreme Court of Victoria, Gillard J, 15 June 2000); and John G Culhane, Duty Per Se: Reading Child Abuse Statutes to Create a Common Law Duty in Favor of Victims (21 May 2012), Widener Law Review, Vol 19, 2013. The effect of failing to report child abuse can be devastating: eg HKSAR v KKK [2013] 2 HKLRD 676, where three children had been systematically abused and raped by their father over a four year period, but were repeatedly ignored by those caring for them.

[2] See Leung PW, Wong WC, Tang CS, Lee A, ‘Attitudes and child abuse reporting behaviours among Hong Kong GPs’ (Apr 2011) Fam Pract 28(2):195-201. See also Preventing Family Violence: A Multidisciplinary Approach (2012, edited by Ko-Ling Chan), Chapter 3 ‘Child Abuse and Child Policy’ by Dr Patrick PK Ip and Dr Chun-Bong Chow at page 88.

[3] See eg the Social Workers Code at the Preamble and §§1 and 42; Police General Orders Chapter 34; Code for the Education Profession of Hong Kong at §2.5.7; and the Code of Professional Conduct for the Guidance of Registered Medical Practitioners at §2.12.

[4] Regarding vicarious liability for sexual abuse by employees, see: JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, The Catholic Welfare Society v the Institute of the Brothers of the Christian Schools [2012] UKSC 56, H v Lau Ka Yee Michael [2006] 4 HKLRD 579, Chan Kin Bun v Wong Sze Ming [2006] 3 HKLRD 208, and T v Kan Ki Leung [2002] 1 HKLRD 29.

[5] Such as teachers taking care of children during a school day, doctors treating children in a hospital, or childcare professionals.

[6] See R v Sheppard [1981] AC 394.

[7] D v National Society for the Prevention of Cruelty to Children [1978] AC 171, [1977] 2 WLR 201, [1977] 1 All ER 589: the identity of a complainant is subject to the same privilege from disclosure as a police informant. See also Campbell v Tameside MBC [1982] QB 1065, [1982] 3 WLR 74, [1982] 2 All ER 791.

 


The article co-written by Azan Marwah and Billy Wong is part of The Shield of Justice campaign, which will run until December 2022 in support of Hong Kong Committee on Children’s Rights

 

Let’s join hands to create a violence-free and child friendly environment!
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