ISE08/20-21

• Child abuse^{1Legend symbol denoting According to the guideline of SWD, child abuse is defined as "any act of commission or omission that endangers or impairs a child's physical or psychological health and development of an individual under the age of 18". See Social Welfare Department (2020a) and Child Fatality Review Panel (2019).} is a recurring concern in Hong Kong, with six deaths caused by assault on average each year. During 1999-2019, new cases of child abuse reported to the Social Welfare Department ("SWD") has gone up by 75% to 1 006, but this number is widely believed to be an understatement.^{2Legend symbol denoting 蘋果日報(2019) and 陳仲謀(2019).} Under the existing system of voluntary reporting, both family members of the victims and relevant professionals (e.g. doctors, teachers and social workers) do not have a statutory duty to report suspected abuse cases, hindering early identification and intervention to protect vulnerable children.
• Ill-treatment and sexual abuse of children are already criminal offences in Hong Kong, albeit without any dedicated legislation on child abuse as seen in other places. While SWD has prepared elaborate procedural guidelines to handle child abuse, the voluntary reporting approach is criticized as too "passive and remedial".^{3Legend symbol denoting 李明生(2018) and 蔡蘇淑賢(2018).} For earlier pre-emptive action, the Ombudsman recommended "mandatory reporting" of suspected child abuse in October 2019.^{4Legend symbol denoting Office of the Ombudsman (2019).} This is followed by a Member's Bill on mandatory reporting submitted to the Legislative Council ("LegCo") in December 2019, though it could not proceed further as the Bill was ruled to have contravened the Rules of Procedure of LegCo.^{5Legend symbol denoting On 9 December 2019, the Panel on Welfare Services discussed a Member's Bill proposed by Dr Hon Fernando CHEUNG about the implementation of mandatory reporting mechanism on child abuse and prohibition of corporal punishment. On 14 July 2020, the President of LegCo ruled that the Bill would result in "significant changes to the existing work procedures" of the Government, and hence, could not be introduced into LegCo in accordance with Rule 51(3) of the Rules of Procedure of LegCo. See Legislative Council (2020).}
• Globally, mandatory reporting of suspected child abuse is a statutory duty in at least 70 places by 2018.^{6Legend symbol denoting International Society for the Prevention of Child Abuse and Neglect (2018).} More specifically, such reported duty on child abuse has been legislated in certain states in Australia for up to 50 years, whereas its reporting framework is acclaimed as an effective approach to identify hidden abuse cases.^{7Legend symbol denoting World Health Organization (2006) and Mathews, B. et al. (2007).} This issue of Essentials will look into key measures to tackle child abuse in Australia, after a quick review of the latest policy development in Hong Kong.

Policy developments to combat child abuse in Hong Kong

• Legal provision: Legal protection of children from ill-treatment and sexual abuse is scattered in various ordinances, including the Offences against the Person Ordinance (Cap. 212) and the Crimes Ordinance (Cap. 200). Yet there are concerns over gaps in such laws, including (a) inconsistent age definition of children ranging between 14 and 18; (b) ambiguity between child abuse and corporal punishment in parenting; (c) high threshold in adducing evidence and prosecution; and (d) small deterrent effect due to light penalty.^{8Legend symbol denoting In June 2018, whilst passing a judgment on a seven year-old girl in a vegetative state after abuse, the High Court expressed the view that the current maximum penalties of 10 years for Cap. 212 should be increased further to cover extreme cases. See Reform Commission of Hong Kong (2019).} While the Government acknowledges "merits" of a suggestion to enact a dedicated law on child protection, it is yet to be included in its policy agenda.^{9Legend symbol denoting Legislative Council (2018).} With these loopholes, child abuse tragedies happened from time to time. During 2006-2015, a total of 58 children died on assault, with 72% of perpetrators as parents of the victims, and 10% as relatives.
• Voluntary reporting system: Since 1981, SWD has prepared a set of procedural guidelines on child abuse for relevant professionals to report and handle such mishaps on a voluntary basis.^{10Legend symbol denoting "Procedural Guide for Handling Child Abuse Cases" was first introduced in 1981, and was updated five times in 1993, 1998, 2007, 2015 and 2020 respectively. See Social Welfare Department (2020b).} Annual new cases of child abuse reported to SWD has gone up by 75% in two decades to 1 006 in 2019, with physical abuse as the most common form of abuse (with a share of 43%), followed by sexual abuse (30%) and neglect (24%). Matching with the children population aged below 18, the incidence rate of new case was estimated to be around 0.1% in 2019.^{11Legend symbol denoting Social Welfare Department (2020a).}
• Limitation of the existing system: However, these statistics are believed to be under-reported, and hence, misleading. Taking family members of the victims as an example, they tend to stay silent if the suspects live in the same families. Even for professionals, "under-reporting was common" because of concerns over a lack of "sufficient evidence" and "producing more harm than good" to both the victims and families, based on a survey on doctors published in 2010.^{12Legend symbol denoting Leung, P.W.S. et al. (2010).} Some concerned groups with frontline counselling services also claimed that the caseload of SWD represented just a tip of the iceberg in child abuse.^{13Legend symbol denoting In a submission to LegCo by "Against Child Abuse" in 2018, it emphasized the inadequacy of existing mechanism in handling abuse. It quoted a survey conducted by University of Hong Kong in 2003-2004, claiming that the reported case of child abuse accounted for only 1% of the overall incidents. See 防止虐待兒童會(2018).}
• Policy reviews conducted by public bodies: In a direct investigation report released in October 2019, the Ombudsman recommended exploring "the feasibility of mandatory reporting of suspected child abuse", especially so for professionals with direct contact with children (i.e. doctors, nurses teachers and social workers). Separately, the Law Reform Commission ("LRC") is deliberating a new criminal offence for responsible persons (e.g. parents and carers) failing to protect children under their care, even if they are just bystanders.^{14Legend symbol denoting Law Reform Commission of Hong Kong (2019).} LRC is consolidating views gathered from a public consultation completed in August 2019 for final recommendations.
• Major issues of concern: While mandatory reporting can facilitate early assistance to the victims of child abuse, there are implementation concerns. First, it is deemed difficult to differentiate corporal punishment in parenting from genuine cases of child abuse, resulting in false alarms.^{15Legend symbol denoting In Hong Kong, mild corporal punishment (e.g. hitting on child's palm or ask them to remain standing) carried out by parents to their children are merely considered as "parenting problems", but not abuse in legal sense. See Legislative Council (2019).} Taking Canada as an illustration, as much as 31% of reported caseload turns out to be unsubstantiated, while 4% was even intentional fabrication.^{16Legend symbol denoting Trocme, N. and Bala, N. (2005).} Secondly, the upsurge in unsubstantiated reported cases will overload the child protection system and create pressure on public finance. In June 2020, SWD indicated that implementation of local mandatory reporting would require at least 70 new permanent posts for investigation, with extra recurrent expenditure of HK$60 million annually, though this calculation is countered as an exaggeration.^{17Legend symbol denoting A Member of the LegCo responded that the expenditure estimation made by the Government was "unnecessary and obviously exaggerated". See Legislative Council (2020).} Thirdly, young victims may become more reluctant to disclose the abuse incidents to their trusted persons for fear of legal proceedings. Similarly, two-fifths of surveyed doctors indicated their unwillingness to "get involved with the court or legal systems" in suspected cases of child abuse.^{18Legend symbol denoting Leung, P.W.S. et al. (2010).}

Mandatory reporting of suspected child abuse in Australia

• In Australia, there were 5.6 million children aged below 18 by mid-2019, taking up 22% of the entire population.^{19Legend symbol denoting Australian Bureau of Statistics (2020).} Child protection is accorded high priority and the Government devotes considerable resources to investigate reported child abuse cases. Reflecting increased awareness in the community, the number of children confirmed to be subject to abuse has surged by 120% in 20 years to 47 500 in 2018-2019, with an incidence rate of 0.9%.^{20Legend symbol denoting Australian Institute of Health and Welfare (2000 and 2020).} Psychological abuse is the largest category of child abuse in Australia (with a share of 54%), mainly caused by "witnessing domestic violence".^{21Legend symbol denoting Psychological abuse is also named as "emotional abuse" in Australia. Since the 2000s, "witnessing domestic violence" was also recognized as a kind of psychological abuse.} This is followed by neglect (21%), physical abuse (15%) and sexual abuse (10%).
• Legal framework: It is lawful for parents to use "reasonable corporal punishment" to their children as a means of discipline across six states and two territories in Australia, but not so for child abuse.^{22Legend symbol denoting Common measures of "reasonable" physical punishment usually hinge on (a) age and size of the child; (b) method of punishment; (c) capacity for reasoning of the child; and (d) harm caused. In December 2001, New South Wales also legally defined "unreasonable" corporal punishment, prohibiting parent to apply physical punishment to child's head or neck and make long-lasting injury to them.} Legal protection of children falls within the remit of regional governments of all these eight places. By and large, there is a tightening in penalty for offences in child abuse in these eight places over the years.^{23Legend symbol denoting Taking New South Wales as example, the Government enacted an amendment in June 2018 to increase the maximum penalty of the offence on "persistent child sexual abuse" from 25 years to life imprisonment. Similarly in May 2019, the Queensland parliament passed an amendment to increase the maximum penalty of the offence on "failure to supply the necessaries" from 3 years to 7 years imprisonment. See New South Wales Government (2018) and Queensland Government (2019).} Country-wise, the National Framework on Child Protection was released in June 2009, with action plan updated on a triennial basis. Child protection has become "everybody's business", calling for universal prevention and early intervention.^{24Legend symbol denoting Council of Australian Governments (2009) and Department of Social Services (2018).}
• Legislation on mandatory reporting system: After an amendment to the Children's Protection Act in 1969, South Australia became the first state in Australia to introduce mandatory reporting duty on suspected child abuse. Similar laws were enacted in other states and territories during 1975-2009.^{25Legend symbol denoting Mathews, B. (2014).} On the federal level, the Family Law Act was also enacted in 1975, spelling out the obligations to notify child abuse. In spite of variations in details, the mandatory reporting system across Australia shares some common features, as briefly summarized below:
  
  

  (a)	Reporting duty of selected professionals: By and large, at least four categories of professionals with more direct contact with children are "mandated notifiers", including (i) teachers; (ii) police; (iii) doctors; and (iv) nurses. For some states, notifiers also include social workers, while mandatory reporting duty is even extended to all citizens in the Northern Territory;
  (b)	Scope of abuse subject to mandatory reporting: "Physical abuse" and "sexual abuse" are must-report items across Australia, whereas five states also include "emotional abuse and neglect". Notifiers should report known and suspected abuse cases whenever they believe "on reasonable grounds" that the abuse could inflict "significant harm" on children;
  (c)	Legal protection for notifiers: To protect notifiers after filing reports, their identities are kept confidential in Australia. In addition, notifiers are entitled to legal immunity from civil and criminal proceedings or from negative consequence at workplaces, if their reports are made in good faith. Similar protection applies to voluntary notifiers as well;
  (d)	Penalties for not reporting: If the professionals fail to comply with the reporting duty, they are subject to fines across Australia, except in New South Wales.26Legend symbol denoting New South Wales used to impose a maximum penalty of A$22,000 (HK$122,760), yet it was removed under the recommendation of the Special Commission of Inquiry into Child Protection Services in 2008. See Mathews, B. (2014). Maximum fines range from A$1,410 (HK$7,860) in Victoria to A$26,000 (HK$145,080) in Northern Territory. For the Australian Capital Territory, offenders may also subject to a maximum imprisonment of 6 months. By and large, these penalties generally have the effect of encouraging reporting;
  (e)	Reporting channels: All child protection departments of State Governments have set up dedicated and 24-hour reporting hotline on child abuse. Notifiers need to provide details of suspected cases (e.g. description of the abuse incidents, family history of the victims, risk faced by the child) to the child protection officers ("CPO");
  (f)	Follow-up action: Based on reported information, CPO will then investigate the cases that meet threshold of harmful risk to children. For those substantiated cases, intensive family support services will be provided. If the abused child is deemed to be unsafe in the existing home environment, the child protection departments may intervene further as the last resort. In 2019, care and protection order and out-of-home care were provided to one-fourth of children in substantiated cases for safety concerns; and
  (g)	Legal support for the abused child: For legal cases involving serious physical and sexual abuse, the Family Courts throughout Australia introduced a fast-track programme in July 2003 to speed up the trials within a timeframe of six months. Same judges will manage and hear the entire process, whereas independent lawyers will be assigned to the victims with uncapped legal aid funding.27Legend symbol denoting Family Court of Australia (2016).

• Increased notification amidst enhanced awareness: Under the mandatory reporting system in Australia, notifications of child abuse surged by 337% in 20 years to 451 200 cases in 2018-2019. About 342 600 or three-fourths of these notifications required support services from the child protection departments, within which 62% were relatively mild incidents just in need of advice provision or services referral, while the rest of 14% were more serious abuse in need of intensive case management and family support.^{28Legend symbol denoting Australian Institute of Health and Welfare (2000 and 2020).} For the rest of 68 700 or 15% of notifications, they were unsubstantiated cases partly due to confusion with "reasonable corporal punishment" in parenting.^{29Legend symbol denoting Australian Institute of Family Studies (2017).}
• Additional resource requirement: To handle the growing caseload on child abuse, the recurrent expenditure on "intervention services" of child protection in Australia has leaped by 30% in just five years to A$1.6 billion (HK$8.8 billion) in 2018-2019, outpacing the 17% growth in overall recurrent spending in the Australian fiscal budget.^{30Legend symbol denoting Productivity Commission (2020).} In spite of additional resource commitment, some academics comment that mandatory reporting is necessary for child safety, as its "economic and social justice advantages" far outweigh "any disadvantages".^{31Legend symbol denoting Mathews, B. and Bross, D.C. (2007).}

Concluding remarks

• For early identification of children subject to abuse, there is a suggestion to introduce mandatory reporting system in Hong Kong. Yet there are concerns that this may lead to additional resources for screening and investigating increased caseload, as well as follow-up support to victims.
• In Australia, certain professionals (e.g. teachers and doctors) are mandated as notifiers of suspected child abuse, with protection of legal immunity and confidentiality. Non-compliant notifiers are subject to fines and even imprisonment. In spite of additional resource commitment, the mandatory reporting system in Australia is seen to have facilitated early identification of child abuse cases and enhanced social awareness of child protection.

Prepared by Sunny LAM
Research Office
Information Services Division
Legislative Council Secretariat
1 December 2020