Emil Ford Lawyers

Mandatory reporting: children's statements to teachers about abuse

One day in 2010 a three year old boy arrived at his preschool in Ohio with a bloodstained eye. Two teachers at the preschool asked the boy ‘who did this to you?’ The boy replied it was his mother’s boyfriend. The teachers contacted Ohio’s child welfare agency, as they were required to do under the state’s mandatory-reporter law. The agency’s investigation led to charges of assault and endangering children against the boyfriend.

At trial, the boy was said to be unable to testify, so prosecutors relied on the boy’s identification of his mother’s boyfriend in the statements to his teachers. The mother’s boyfriend was convicted and sentenced to 28 years in prison.

However, the boyfriend appealed to the Ohio Supreme Court which came to the surprising view that the mandatory duty for teachers to report child abuse goes further than the mere act of reporting. If the need to report arises, the state can expect teachers to engage in a fact finding mission to help identify the perpetrators of abuse.


"... the court said the trial judge should have allowed the three year old to be called and cross examined ... There was, unsurprisingly, much outcry from educational groups about this decision" 

It should be noted that this decision was made in the context of the confrontation clause of the Sixth Amendment to the US Constitution. This amendment states that an accused has the right to call a witness testifying against them before the court. In the Court’s view, since teachers become agents of law enforcement, the boy’s conversation with them was akin to an official interrogation by police officers. As a result, the court said the trial judge should have allowed the three year old to be called and cross-examined in the court room! There was, unsurprisingly, much outcry from educational groups about this decision.

This decision was appealed to the US Supreme Court, which disagreed with these findings. The Court said that the mandatory duty for teachers to report child abuse goes no further than the act of reporting. Teachers are not meant to gather evidence of incriminating behaviour. The conversation between the teachers and the boy was motivated by a desire to protect him and remove him from harm’s way. It was nothing like an official interrogation by the police. As a result, the boy’s statement did not invoke the Sixth Amendment and he did not have to be called as a witness.

But would the same decision have been reached in Australia? Most states and territories have laws similar to NSW legislation, under which teachers have a duty to report to child-welfare agencies if they suspect on reasonable grounds that a child is at risk of significant harm. Like the US Supreme Court said, it is not an evidence gathering mission.

In Australia, alleged perpetrators do not have a constitutional right to call a witness that has testified against them. Nevertheless, there are various Commonwealth and State laws that mean such witnesses can, and in many cases should, be called before a court.




"A child can be called as a witness if they understand the obligation to tell the truth."

A child can be called as a witness if they understand the obligation to tell the truth. In one Australian case, an eight year old child, who was the alleged victim of sexual assaults, was called as a witness. However, it was later said that the child should not have been called as he could not understand the obligation to give truthful evidence. Since there were doubts about calling an eight year old to give evidence, a three year old would almost certainly not be called in Australia.

What does this mean for schools?

It means that, although teachers have a duty to report, they do not have to go further than reporting. In other words, they do not have to engage in a fact finding mission to assist with criminal charges. They should also take comfort from the fact that a young child is unlikely to be called as a witness to give evidence, should the situation progress to trial.

If you would like to know more about mandatory reporting in schools, please contact  or
 

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