Failing to report a child sexual offence is an offence

The obligation in short

If you are over 18, you must report to police any sexual offence against a child that you reasonably believe is occurring, has occurred, or is at risk of occurring, unless you have a reasonable excuse not to.

That is the whole rule. Everything else is detail about what each element means.

Note what it does not require. You do not need proof. You do not need to have witnessed anything. You do not need to be a mandatory reporter under any other scheme. The obligation attaches to belief on reasonable grounds, and it attaches to everybody.

What counts as a child sexual offence

The statutory definition is unhelpfully circular. A child sexual offence means an offence of a sexual nature committed in relation to a child.

In practice it covers the range of offences you would expect, including:

• rape;
• incest;
• grooming;
• child exploitation material;
• indecent treatment of a child, which itself covers fondling, asking a child to touch sexual body parts, and taking sexual images of a child.

This article cannot list every possible offence. The working rule is straightforward. If the conduct is sexual in nature and involves a child, treat it as within scope and make further enquiries if you are unsure.

Who is a child for this purpose

For the reporting obligation, a child is a person under 16, or a person under 18 who has an impairment of the mind.

The phrase "impairment of the mind" is not defined in this context, so neither the type nor the degree of impairment is spelled out. The evident purpose is to extend protection to people who remain vulnerable past 16.

If you are dealing with a 16 or 17 year old and you are unsure whether the second limb applies, that uncertainty is a reason to get advice, not a reason to do nothing.

Reasonable belief is where it gets difficult

The duty is triggered where an adult gains information, and that information either causes them to believe on reasonable grounds, or ought reasonably to cause them to believe, that a child sexual offence is being or has been committed against a child by another adult.

Some situations are clear. A child tells you an adult has sexually assaulted them. You have an obligation, unless an excuse applies.

Plenty are not clear:

• a child you know starts behaving very differently and you are worried that something is happening, without knowing what;
• you notice injuries that could be consistent with sexual abuse, and could equally be consistent with something else;
• you notice an interaction between a child and an adult that seems unusual, without being able to say why.

These sit in a grey area, and the test does not make it easier. This is not the usual ordinary person standard. It is about you, in your circumstances, with the information you actually have.

A police investigation started on thin material has serious consequences. So does an investigation that never starts. Faced with that, work through three questions:

1. What information do I actually have, as distinct from what I am speculating about?
2. What does that information naturally cause me to believe?
3. If I remain unsure, who can I ask, whether that is a lawyer or someone else I trust?

The reasonable excuse exceptions

Where the criteria are met, you must report the information to a police officer unless you have a reasonable excuse. That term is not exhaustively defined. The legislation gives examples rather than a closed list:

• you reasonably believe the information has already been reported, whether to police or to another prescribed body such as child protective services;
• the child has since become an adult, and you reasonably believe that person does not want the information disclosed to police, for example because they have told you so;
• both of the following apply, that you reasonably believe reporting would endanger the safety of someone other than the alleged offender, and that not disclosing is a reasonable response in the circumstances.

If one of those fits your situation, you are on reasonably firm ground. Other circumstances might also amount to a reasonable excuse, but the legislation does not say what they are, so it would be a guess to try to list them.

Penalty and other things worth knowing

The offence is a misdemeanour carrying a maximum of 3 years imprisonment.

Three further points matter:

• No retrospective operation for old knowledge. If you gained the information before 5 July 2021, the section does not apply to it.
• Old conduct is covered by new information. If you receive information now about conduct alleged to have occurred before 5 July 2021, the obligation applies.
• You are protected if you report in good faith. The legislation shields you from civil, criminal and administrative liability for reporting. You cannot be sued for complying with it.

The wider picture

This offence, and the related failure to protect offence in section 229BB directed at people in institutions, came out of the recommendations of the royal commission into institutional responses to child sexual abuse.

The problem being addressed was real. Conduct was known about and not passed on, sometimes for decades, and institutions managed the reputational risk rather than the child.

The drafting is nonetheless subjective. The entire obligation rests on what an adult reasonably believed, or ought reasonably to have believed, from information they held. That will produce genuine uncertainty about where the line falls, and it will do so in situations where people are already distressed.

If you are unsure whether you have an obligation, get advice quickly rather than sitting on it. If you have been charged with this offence, get advice before speaking to police.