Brief Introduction to the Mandatory Reporting of Child Abuse Ordinance
With the passing of the Mandatory Reporting of Child Abuse Bill, the legal framework for child protection in Hong Kong has become more substantive. The Bill will come into enforcement 18 months after its gazettal. One of the highlights is that the statute has incorporated 25 types of Specific Professionals, including social workers, doctors and teachers, as mandatory reporters of child abuse, and introduces a two-tier penalty system. Professionals who violate the reporting obligation will be penalized according to the circumstances of the violation: a fine of up to $50,000 on summary conviction, and a fine of up to $50,000 on indictment conviction, in addition to a penalty of up to three months’ imprisonment.
Subjects of the mandatory reporting system
Section 4 of the Ordinance imposes a mandatory reporting obligation on professionals in the course of their work; there are currently twenty-five types of specified professionals under Schedule 1 of the Ordinance, which can be categorized into three types, namely:
1. Healthcare and Therapeutic Practitioners (Healthcare professionals): registered pharmacist, registered dentist, enrolled dental hygienist, registered medical practitioner, registered midwife, registered nurse or enrolled nurse, registered medical laboratory technologist, registered occupational therapist, registered optometrist, registered radiographer, registered physiotherapist, registered chiropractor, listed Chinese medicine practitioner or registered Chinese medicine practitioner, person whose name is listed on the accredited register for audiologists, person whose name is listed on the accredited register for clinical psychologists, person whose name is listed on the accredited register for dietitians, person whose name is listed on the accredited register for educational psychologists, and person whose name is listed on the accredited register for speech therapists.
2. Child Care Providers and School Practitioners (Education Sector Professionals): child care worker, registered teacher or permitted teacher, warden of a boarding school within the meaning of those Regulations that is a specified school (which excludes Government school, and a school providing post-secondary education; and Private schools offering non-formal curriculum), person employed as a member of the teaching staff or a principal of the Youth College of the Vocational Training Council, person employed by the Government as a teacher or a principal who is working in a Government school, and person registered by the Director as a superintendent of a residential child care service unit.
3. Registered Social Worker
Consequences of failing to comply with the mandatory reporting obligation
The Ordinance has made adequate arrangements for both pre- and post-reporting protection. Violations of the reporting requirements will be subject to legal sanctions, including fines and imprisonment. In addition, there are defenses provided by Section 5 to allow professionals to be immune from reporting under reasonable circumstances, for example, when a report has already been made by another professional or when it is in the best interests of the child to delay making a report, and so on, in which case professionals will not be held liable for such failure even if they have not fulfilled the obligation of mandatory reporting. However, in order to ensure that frontline staff have a full understanding and accurate judgment, the criteria and factors for assessing the “best interests of the child” need to be more clearly defined, which will facilitate effective communication and collaboration among different professionals and enhance the effectiveness of child protection work in practice.
Scope of mandatory reporting
According to Section 4(1) of the Ordinance, it is stipulated when a report has to be made, i.e. if a professional, while acting in his capacity as such, reasonably suspects that the child has suffered and is suffering from serious harm, or that the child is exposed to a real risk of suffering serious harm, the professional has to comply with his obligation to make a report as soon as practicable after he has become aware of such a risk. The Ordinance also provides for exemptions under specific circumstances. A professional will not be required to carry out the duty of reporting if the he/she honestly and reasonably believes that the serious harm was caused solely by the child himself/herself or by another child, or by the negligence of the responsible person of the child; or the situation has been reported by the professional before its occurrence, or it has been reported by another specified professional at (or before) the material time; or that there is a delay in making the report but the professional honestly and reasonably believes that such a delay is necessary to protect the interests of the child, etc.
As the Ordinance involves more than 20 professions with different backgrounds, the scope of “serious harm” is specified under Schedule 2 and examples are given accordingly. The concept of “serious harm” concerning child welfare encompasses various forms of endangerment to a child’s well-being. This includes physical harm necessitating immediate medical attention such as limb loss, organ injuries, fractures, burns, and severe wounds. Psychological harm is also considered, involving mental disorders or prolonged trauma, excluding normal emotional responses to life’s challenges. Additionally, harm caused by coercing a child into sexual acts or neglecting a child’s basic needs, leading to life-threatening situations, falls under the definition of serious harm. The definition aims to protect children from severe physical, psychological, and sexual harm, as well as neglect that jeopardizes their health and safety.
Process of mandatory reporting
Section 6 of the Ordinance provides that reports must be made to an authority designated by the Director of Social Welfare. This means that Hong Kong has centralized the mandatory reporting obligation in one department solely, i.e. the Social Welfare Department, making it more convenient for supervision and administration.
Summary
The enactment of this law stands to significantly bolster the legal safeguards for children, with over 100,000 professionals anticipated to collaborate with the Government in ensuring the well-being of children. However, the Legislative Council debate underscored controversies over the specifics of the Ordinance. Key points of contention center around the ambiguity in the statute’s directives, such loophole will potentially lead to practical uncertainty and professionals might fall in unwanted legal traps because of this, while other concerns question the efficacy of the penalties, that whether they too lenient to serve as effective deterrents. Given the law’s broad application across diverse professional domains, inconsistencies in interpretation may impede its enforcement. In response, Director may disseminate guidelines to aid relevant personnel in accurate reporting, alongside providing training to professionals to sharpen their acumen in identifying instances of child abuse.
