Duty to report child abuse.

• Author: Doctor, Eleanor

Eleanor Doctor is a lawyer and Managing Editor of the Education Law Reporter in Calgary, Alberta. This article first appeared in the Education Law Reporter, Volume 9, page 67, and is reprinted with permission.

In all Canadian jurisdictions, except the Yukon, there is a statutory duty for members of society generally to report child abuse and neglect. In addition, several jurisdictions place a somewhat heavier onus, to report mere suspicion, upon those who discover abuse in the course of performing their professional and official duties. The onus to report to the designated parties is personal and cannot be delegated, for example, by a teacher to her principal. Where the designated party is the Minister or Director or other senior civil servant, their function is usually delegated to local social service agencies.

An employee may wish to consult his or her employer prior to reporting child abuse and to determine what, if any, school board protocol must be followed. In addition, potential informants may wish to consult with law enforcement officers or social services to help them ascertain, without naming the child, whether the facts at hand trigger a duty to report. Ultimately, the buck stops with the individual to satisfy the statutory requirement to report in child welfare legislation.

With the exception of solicitor-client privilege in most jurisdictions, the duty to report overrides the professional duty of confidentiality and professional codes of ethics. Teachers or school counsellors, for example, must report abuse and may be forced to testify in court with respect to confidential information given to them by students.

Reporting should be done as soon as possible and immediately if, for example, the abuse is occurring at home and the child may be at risk if dismissed from school. In a school context, the term "forthwith" in Ontario legislation has been interpreted to allow a few days for the school to deal with parents and students so long as there is no imminent danger to the child (e.g. the alleged offender is suspended). Where students are not "children" by statutory definition, educators may wish to ensure that they receive counselling from someone trained to deal with abuse and, as well, advice with respect to avenues of legal redress.

A person receiving a report of abuse should be supportive and accepting of the information without asking leading questions or probing the facts. Leave that for the police or social services, at least initially. In all cases which are disclosed in school, a simple one or two page record should be made including the following information:

1. The informant's name, relationship with the child and where the informant may be contacted.

2. Name, address, age, sex of child and any other information that might be helpful to the person receiving the report, e.g. whether the child has special needs;

3. Details of communication, if any, with social services or police prior to reporting;

4. How the matter came to the informant's attention, including dates and places;

5. An accurate report of what the child said or how the informant came to believe or suspect abuse, using factual and objective language to explain who, when, what, where and how;

6. A simple drawing showing the parts of the body allegedly touched;

7. What, if any, preliminary action was taken with respect to the child and the accused; e.g. whether the accused was suspended with pay summarily, whether parents were contacted, whether other students were involved or interviewed;

8. The name of the person and agency to which the report was made and a space to follow up and ensure that action was taken by that agency;

9. A space for the informant's signature and date of making the report.

   While some protocols call for immediate suspension of a staff member accused by a student of abuse, particularly sexual abuse, others may call for some form of preliminary investigation before suspension. In most cases, there is likely to be a complete investigation at some future time. Law enforcement and social services agencies prefer schools to delay any investigation that may contaminate their evidence, particularly repeated questioning of the child. While school board personnel should attempt to cooperate with these agencies, they must first and foremost act in the best interests of students and in keeping with their legal obligations as employers. It may be, for example, that a student will need counselling prior to the time when the police have completed their investigation. In our view, the child's needs should be paramount, even if it means inadvertently and unintentionally contaminating the evidence.

   Following are the basic provisions governing the reporting of child abuse in Canadian jurisdictions:

   Quebec

   Youth Protection Act 1977 as amended to 1995

   Who must report and under what circumstances?

   Any person who has reasonable grounds to "believe" that the security or development of a child is considered to be in danger as a result of sexual abuse or physical ill-treatment through violence or neglect must report. Any person "may" report for other enumerated risks to a child's security or development. Any adult must assist a child who wishes to report endangerment to the security of the child, his or her siblings, or another child.

   Every professional providing care and assistance to children and any employee of an institution, teacher, or policeman who, acting in his or her professional capacity, has reasonable grounds to "believe" that the security or development of a child is or may be considered to be in danger by virtue of sexual abuse or physical ill-treatment through violence or neglect or by virtue of a long list of other factors relating to physical, intellectual, psychological, moral or material endangerment a child, must report.

   How is "child" defined?

   Under eighteen years of age.

   To whom must the report be made?

   Without delay, to a Director of Youth Protection at an institution operating a child and youth protection centre.

   Can a civil action be maintained against the reporting person?

   Not if the reporting is done in good faith. The identity of the informant is protected.

   What are the related offences and maximum penalties under the Act?

   For concealment or false declaration and failing to report, a fine of $2,500.

   Ontario

   Child and Family Services Act as amended to 1994

   Who must...