MANDATORY CHILD ABUSE REPORTING LAWS IN SOUTH AFRICA : INTRODUCTION
In line with its international obligations, South Africa has mandatory child abuse reporting laws on its statute books.
There are two specific pieces of legislation in place to deal with the mandatory reporting of child abuse suspicions and knowledge. These two Acts require that the suspicions for the abuse must be reasonable and that the report of such reasonable suspicion is made to the relevant specified authorities. These two pieces of legislation are the Children’s Act 38 of 2005 and the Sexual Offences Amendment Act of 2007.
REVIEW OF THE MANDATORY CHILD ABUSE REPORTING LAWS IN THE CHILDREN’S ACT
WHO MUST REPORT REASONABLE SUSPICIONS OF CHILD ABUSE AND NEGLECT ?
Section 11o(1) of the Children’s Act mandates the following category of professionals to report any reasonable suspicion of child abuse and neglect to the relevant authorities: correctional official, dentist, homeopath, immigration official, labour inspector, legal practitioner, medical practitioner, midwife, minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious leader, social services professional, social worker, speech therapist, teacher, traditional health practitioner, traditional leader or member of staff of volunteer worker at a partial care facility, drop-in centre or child and youth care centre.
WHAT MUST BE REPORTED ?
A report by the aforesaid category of professionals must be made whenever there is a reasonable suspicion that a child has been abused in a manner causing physical injury or where the child has been sexually abused, or deliberately neglected.
TO WHOM MUST THE REPORT BE MADE ?
The reporting of the reasonable suspicion of abuse must be made to either a designated child protection organisation (Child Welfare/ Childline ); or to the Provincial Department of Social Development, or to a Police Officer. The Report made by the professional must be in the prescribed format which is Form 22 of the Regulations to the Children’s Act.
WHEN MUST THE REPORT BE MADE ?
The Report must be made as soon as the professional is able on reasonable grounds to conclude that a child has been abused either physically or sexually or has been neglect. The law does not require the need for conclusive evidence of abuse before the professional makes such report, what is required is that from an objective assessment based on the facts at hand it would appear that the child is being abused or neglected. Further, that a professional in the same field as the Reported, presented with the same set of facts and dynamics would come to the same conclusion of abuse or neglect.
IS THERE ANY LIABILITY FOR FAILURE TO REPORT ?
Failure to report is a criminal offence.
Failure to report can open up the professional to a civil claim for damages by the victim (or a third party on behalf of the victim) for failure to report the abuse and to put in place safeguards to protect the future well-being and safety of the victim.
CAN THE PROFESSIONAL REPORTER BE SUED BY AN ALLEGED PERPETRATOR FOR MAKING THE REPORT ?
On proviso that the report is made by the professional in good faith, any claim made against the professional will not succeed. The test for good faith reporting is an objective test and regard would be had to the state of mind of the reporter at the time of making the report and whether or not the reporter was acting with malicious motive at the time of making the report.
REVIEW OF THE MANDATORY REPORTING LAWS IN THE SEXUAL OFFENCES ACT
Section 54 of the Sexual Offences Act of 2007 provides that
- any person who has knowledge that a sexual offence has been committed against a child must immediately report this to a police official ;
- any person who has knowledge, belief or suspicion that a sexual offence has been committed against a person who is mentally disabled must report this to a police official.
As is apparent from the aforesaid, the report must be made to the police immediately upon the person becoming aware of the commission of a sexual offence against the child. Failure to report the aforesaid is a criminal offence and a person convicted in terms of this section is liable on conviction to a fine or imprisonment for a period not exceeding five years or to both such fine and imprisonment. The Act is silent as to the protection of the Reporter for good faith reports made in respect of the commission of an offence of a sexual nature against a child. Many writers are however of the opinion that the provision under section 54 of the Act being section 54(2)(c) is applicable to reports made in respect of acts against children and acts against persons who are mentally disabled.