The provisions on mandatory reporting of child abuse in the Child Protection (Alternative Care) Act enacted in 2017 were very similar in content to the provisions in the first draft of the law tabled in Parliament by then Minister Marie-Louise Coleiro Preca in 2014. Both drafts made it a moral obligation on individuals to report knowledge or suspicion of situations wherein children were suffering or were at risk of suffering harm.
Both drafts also provided that professionals working with children had a legal obligation to report knowledge or suspicion of situations where a child was suffering or likely to suffer harm. Moreover, the same professionals had the obligation to report pregnant women who were causing or likely to be causing harm to their unborn child.
In the proposed draft launched in mid-June, titled the Minor Protection (Alternative Care) Act, the wording has been changed drastically, which changes may lead to unfavourable repercussions. Professionals are obliged to report knowledge of situations of abuse on children that constitute a criminal offence. Immediately, this raises concerns for professionals as to what constitutes a criminal offence and which situations do not. This may be addressed in training, but training is most often dependent on resources and therefore cannot be considered a given.
More worrisome is the fact that this requirement is discriminatory among children. Article 247A of the Criminal Code, which is the principal article criminalising child ill-treatment and neglect, states: “Whosoever, having the responsibility of any child under twelve years of age, by means of persistent acts […] ill-treats the child or causes or allows the ill-treatment by similar means of the child shall, unless the fact constitutes a more serious offence under any other provision of this Code, be liable on conviction”. Similarly, article 246 of the criminal code makes it a criminal offence for anyone to abandon a child under the age of seven years.
Therefore, as it stands, the draft law has not provided for the protection of all children. A professional with the knowledge of a younger child being ill-treated will be obliged under the draft law to report that knowledge, but a professional does not have the same mandatory duty to report if the child falls in the age gap between 13 and 18. The law should seek to protect all vulnerable children, without creating distinctions.
The current draft law has also done away with the words “is likely to suffer” that were found in the previous law passed in 2017. The implications of this removal are that the obligation to report and to act in order to protect the child arises only when the child is going through actual significant harm that will lead to the perpetrator being convicted of a criminal offence. In the first iteration of the law, a moral duty was imposed on everyone to report even when “risk” alone was suspected.
Why should a child be left to suffer until there is undeniable significant harm caused to that child?
The difference is crucial because research shows that unless obliged to report, many professionals with indisputable knowledge will try to help the family but not report to the authorities, for various reasons. Why should a child be left to suffer until there is undeniable significant harm caused to that child?
Moreover, what about situations that prejudice to a great extent the well-being of a child but do not constitute a criminal offence, for example when there are severe mental health problems making the caregiver unable to look after the child adequately?
The same can be said in relation to the unborn child. The relative provision has now been reduced to knowledge of an act that constitutes a criminal offence causing significant harm to an unborn child. Therefore, by implication it has to be knowledge that is certain as the words ‘at risk’ or ‘suspicion’ which were included in the previous drafts have been discarded.
When one considers that the principal aim behind the law is to provide support services to these vulnerable families rather than to prosecute the perpetrator, it becomes clear why the earlier the intervention the less intrusive this may be. In a situation where a mother consumes excessive amounts of alcohol or makes use of drugs, the mother is referred to a multidisciplinary team that works with her and provides her with the support she needs throughout her pregnancy. The aim is for her to rehabilitate herself and, once the child is born, to put her in a position to take care of the child herself.
If this referral is not made and the mother does not receive such support, the chances are higher that child protection services will be brought in after birth and that the child will be taken away from the mother.
These services offered to pregnant mothers are life-changing, both for the mother, as the pregnancy can be used for her rehabilitation, as well as for the child who does not have to endure the horrible effects of alcohol or drugs which may include abnormalities, lack of development and actual symptoms of withdrawal. It is in the best interest of these children that suspicions are reported so that if necessary, intervention is as early as possible.
In fact, the previous drafts specifically stated that all efforts were to be made to keep the mother and child together after birth unless this is manifestly contrary to the safety and wellbeing of the child. Unfortunately, such a provision has also been eliminated in the proposed draft.
Many may ask why all this pressure to make it mandatory for professionals to report when social workers are already inundated with work and many suffer from burnout. There are two main reasons for this.
First, the lack of resources should not act as a justification to ignore a child suffering from abuse or neglect. It is the duty of the State to protect the most vulnerable, including children whose safety and well-being are threatened by those who are supposed to be raising them in love and care.
Secondly, research clearly shows that unless professionals have a legal duty to report, most will not report, citing various reasons for not doing so. Some of the reasons given are lack of knowledge or doubt as to when this duty arises, fear of retaliation on themselves, their loved ones or their property, and fear of exposing themselves to lawsuits or not wanting to be involved in court proceedings.
Some professionals let their personal beliefs get in their way, such as lack of trust in the social services or that the family’s situation can improve by means of informal help and guidance. These reasons may all delay intervention till the situation would have caused significant trauma on the child, or till, unfortunately, it is too late.
In conclusion, I believe that the provisions on mandatory reporting should be changed back to those in the previous drafts given that the previous version applied to all children under 18 suffering or likely to suffer significant harm. The previous versions protected the unborn child earlier and more concretely and therefore in principle better respected the spirit of the law to act in the best interests of the child. It also fulfilled better the State’s obligations under the international Conventional for the Rights of the Child.
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