Opinion | Child abuse: Mandatory reporting law needs expediting

By Grenville Cross

The United Nations Convention on the Rights of the Child (the Convention) protects the fundamental freedoms and inherent rights of children, and has been applied in Hong Kong since 1994.

It not only enshrines the child's right to life, to survival and to development (Art.6), but also its right to protection from all forms of violence, abuse, neglect and bad treatment, whether by parents or other carers (Art.19).

The Convention provides that, in all actions concerning children, whether undertaken by the public or private sectors, "the best interests of the child shall be a primary consideration" (Art.3). Its signatories, therefore, are required to take all necessary measures to respect, protect and fulfill children's rights (Art.4).

Since its creation in 1979, Against Child Abuse (ACA), the NGO, has vigorously campaigned for children's rights, promoting child welfare at every opportunity. By prioritizing protection and development, it has bolstered the work of the Social Welfare Department (SWD) and championed the interests of the most vulnerable in all areas.

Working on the frontline, ACA's social workers have provided an important outreach for children in danger, through its four dedicated centers. Whereas child abuse cases have been investigated and welfare decisions taken, the families of the children have, wherever possible, been involved in the process. Through multidisciplinary case conferences, ACA has sought to develop strategies that will most effectively advance child protection.

The problem, however, is that many children grow up in highly challenging circumstances. In 2020, The Hub reported that 274,900 children aged under 18 lived in poverty, and this has inevitably created problems. Many people live in subdivided flats (some 200,000 residents live in what the government has called "inadequate housing", including over 34,000 children), and this can lead to family conflicts, particularly in the summer months, when tempers flare.

It's therefore little wonder that child abuse not only exists, but is getting worse. According to the SWD, the incidence of child abuse rose from 0.6 per 1,000 in 2005, to 1.54 per 1,000 in 2022.

Throughout 2023, the alarm bells have been ringing, despite the retreat of COVID-19, which generated so much domestic stress.

In August, the police announced there had been a jump of almost 30 percent in child abuse cases in the first six months of this year in comparison with the same period in 2022. Of the 716 cases, about half involved physical violence, exposure, ill-treatment, or neglect of a child, while the other 50 percent involved sexual offenses.

The SWD has confirmed the problem, and it reported there were 1,439 child abuse cases last year, up 5 percent on the 1,367 reports in 2021. Of these, 45 percent of last year's cases involved physical harm, while 19 percent were related to child neglect.

On Nov 16, moreover, when ACA issued its annual report for 2022-23, its statistics made for somber reading. In the reporting period, its hotline received 1, 232 calls, an increase of 8.5 percent over the previous year. The calls included 187 cases of suspected child abuse, with 56 percent involving physical violence. Of the other cases, 16 percent involved psychological abuse, 11 percent multiple abuse, 9 percent sexual abuse, and 8 percent child neglect.

There were, ACA reported, 222 children and 206 abusers involved in the cases, and, tellingly, 70 percent of abusers (142 people) were family members of the victims (including 66 mothers and 42 fathers). About 25 percent of the suspected victims were aged 6 to 8, and they were the most affected age group, followed by children aged 9 to 11, and those aged 3 to 5.

These figures, while alarming, are not huge, but they are only the tip of the iceberg. Most child abuse occurs in domestic situations and is never reported. Behind closed doors, children face beatings, isolation and humiliation, and their plight rarely comes to light, with situations sometimes going from bad to worse. All too often, neighbors and others look away, and the victims have no idea of whom to turn to for help.

Although, moreover, child psychological abuse is a significant concern, the child cruelty law offers minimal protection. When cases are prosecuted, it is invariably on the basis of tangible evidence, including wounds or bruises. Although the equivalent UK law has been strengthened (the "Cinderella Law"), to make clear that emotional suffering is, like physical abuse, prosecutable, Hong Kong, despite ACA's entreaties, has yet to follow suit.

It's time for the Commission on Children, chaired by the chief secretary, Eric Chan Kwok-ki, to take up the cudgels and seek a strengthening of the child cruelty law. Once this is done, it will help to deter abuse and incentivize the reporting of cases.

In the meantime, child abuse can be combated only if the authorities are aware of it, meaning it must be reported. In 2011, the UN Committee on the Rights of the Child recommended that all Convention signatories should establish mechanisms for reporting violence against children. Over 70 countries have now enacted legislation to make compulsory the reporting of suspected child abuse, including Australia, Canada, Japan, Switzerland and the US.

In the Canadian province of Ontario, a highly effective model has been introduced. It places a duty on the public, including health professionals who work with children, to report if they have reasonable grounds to suspect a child is being mistreated. This means that not only doctors, nurses and teachers are expected to report abuse, whether emotional, physical or sexual, but also relatives and neighbors. It's no longer possible for people to simply do nothing, claiming "it is none of my business".

In Hong Kong, a child protection regime is finally on the horizon. In the Policy Address 2022, the chief executive, John Lee Ka-chiu, realizing that child protection needed to be prioritized, announced that his government would take forward "at full steam" the creation of a mandatory reporting regime.

On June 2, 2023, the Mandatory Reporting of Child Abuse Bill was gazetted, and it contains a legislative framework for a compulsory reporting regime for child abuse cases. On June 14, it was introduced into the Legislative Council for first and second readings.

The bill defines a child as a person under 18, and imposes a mandatory reporting duty upon professional practitioners in the social welfare, education and healthcare sectors. Although not as comprehensive as the Ontario model, the bill requires the mandated reporters to make a report to the authorities as soon as practicable if there is a reasonable ground to suspect that a child has been suffering or is at real risk of suffering serious harm.

The bill provides protections for the specified professionals, and it is a defense if somebody has previously made a report about the child in question, or if there is an honest belief that another professional has already reported the matter.

Although the bill is a significant step in the right direction, the maximum penalties are very low, with offenders facing a maximum penalty of only three months' imprisonment and a fine of HK$50,000 ($6,406). If the legislation is to have teeth, these penalties may need to be adjusted. After all, it is a serious matter to endanger a child by not reporting its plight and the consequences can be tragic, and a sentence of three months' imprisonment is of a type currently reserved, for example, for somebody who causes an annoyance in a public place or urinates in public.

To prepare for the bill's enactment, the government intends to provide training for mandated reporters, and this is welcome. A practice guide is envisaged to assist them in identifying cases that require early identification, reporting and intervention (and also to avoid any superfluous reporting). The number of residential child care places will also be increased, so that emergency placements of children in danger can be speedily achieved.

The bill was considered by the LegCo's Bills Committee on July 25, Sept 9, Nov 11 and Nov 25, and the next meeting is scheduled for Friday. Although proper scrutiny is essential, there cannot be any foot-dragging. Some people may consider the proposals go too far, but the sooner the bill is enacted, the safer our children will be.

In recent years, there have been a number of tragedies involving children whose plight was known to others (including 5-year-old Yeung Chi-wai, who died in 2013 after prolonged abuse and risk), and whose deaths could have been avoided. The bill offers real hope that such tragedies, if not wholly eliminated, can at least be minimized for the future.

If the bill can be expedited in December and enacted by the New Year, it will be the best possible Christmas present for the city's children.

The author is a senior counsel and law professor, an honorary consultant to the Child Protection Institute of Against Child Abuse, and was formerly the director of public prosecutions of the Hong Kong Special Administrative Region.

The article was frist published in China Daily.