Do I Have A Duty to Report Child Abuse to a Children’s Aid Society?

Children’s aid societies are not like the police in that they do not go out patrolling looking for child abuse and neglect. Even if they did, that would not help as most cases of child abuse and neglect happen in private – where people can’t see them and leave only, sometimes vague indications of what had occurred that could NOT picked up by people unless they have some first-hand knowledge of the kids involved. For that reason, children’s aid societies rely on people bringing their suspicions forward. Most commonly, reports to children’s aid societies are not first-hand accounts of witnessing horrific child abuse. Most often, it is a series of reports that something strange is going on, that when put together lead a children’s aid society to “check things out” and only then learn how much the children have been suffering.

Section 125 of the Child Youth and Family Services Act requires everyone who has a professional duty toward children to report suspicions of child abuse or neglect that fall into several categories. The duty covers everyone who works with and around children, from lifeguards and sports coaches to first responders, and medical professionals, teachers, social workers, babysitters and daycare providers. If the job involves working with or around children, then there is a duty to report child abuse. The exception is lawyers – lawyers don’t have to report child abuse if they learn about it in the context of solicitor-client privilege so they can give legal advice to the person who mentioned it. But, lawyers can still report child abuse in that context if they have made it clear in their retainer agreement with the client that they will.

The law requires professionals working with or around children to make a report directly to the children’s aid society if they become aware of several types of child abuse or neglect. They cannot have someone else report on their behalf. It is not sufficient for a professional to report the suspicions to a supervisor, or assume that a co-worker has made the report. The law requires each professional who has reasonable suspicions of child abuse or neglect to call the Children’s Aid Society him or herself. If a professional reports concerns to a supervisor, then that supervisor also has a duty to report.

The types of abuse and neglect that professionals should look out for are set out in section 125 of the Child Youth and Family Services Act. The types of concerns are quite broad and include:

1. Physical abuse (hitting, slapping, burning, etc.) – even if it may be part of a course of discipline as what is permissible under criminal law may not be for child protection law.
2. Physical harm caused by a caregiver’s failure to properly care for or supervise a child.
3. Physical harm is caused by a pattern of neglect.
4. Any risk that a child may suffer those types of physical harm in the future.
5. Any sexual abuse or exploitation of a child or any act or omission that may put a child at risk of being sexually molested or exploited
6. Any failure of a caregiver to prevent a child from being sexually abused or exploited.
7. A child has been subjected to child sex trafficking
8. There is a risk that the child will be sexually abused or exploited.
9. Whenever a person with care of a child refuses, or fails, to get adequate medical treatment for that child.
10. The child is at risk of serious emotional harm that is characterized by: anxiety, depression, withdrawal, self-destructive behaviour or delayed development. Note that it is not any type of emotional harm, but just emotional harm that is so serious it causes one of those five types of long-term problems. One of the most common causes of this type of emotional harm is when a child is exposed to adult conflict or domestic violence.
11. The refusal of a caregiver to get assistance for a child who is at risk of the type of serious emotional harm I just described.
12. The child suffers a mental, emotional or developmental condition and the caregiver refuses to get assistance for the child.
13.  A child is abandoned.
14. A child less than 12 years old has killed or seriously injured another person or done serious damage to property and the person looking after the child fails to get services or treatment to prevent a recurrence of that behaviour or encourages that behaviour.

If a professional working with children, is not sure whether to make a report, then he or she should report and let the “experts in child abuse and neglect” at the Children’s Aid Society decide whether an investigation is warranted. Alternatively, it is possible to make an anonymous phone call to the children’s aid society and ask if it is necessary to make a report based on what the caller knows.

Professionals do not have to be certain that child abuse or neglect is occurring to have a duty to report to the local children’s aid society. They only have to have reasonable grounds to have a concern. That concern is not even that abuse or neglect is actually occurring. All the concern has to be is that a child is at risk of suffering abuse or neglect as described above. If any professional who assists children has reasonable grounds to believe that a child is at risk of abuse or neglect, then that professional has a duty to report.

To give an example, a professional does not need to see suspicious bruises to have a duty to report. All that is necessary is a parent, or other caregiver, threatening to hit a child to trigger that duty to report.

In addition, reporting once is not sufficient if the professional becomes aware of additional incidents of child abuse or neglect after the first report. Section 125(2) of the Child Youth and Family Services Act says that a professional has a duty to make a further report if the professional becomes aware of further abuse or neglect – it is not sufficient to just rely on the first report. A professional must make a report each time they have a new suspicion that a child has been abused or neglected.

Professionals do not have to give their names when they make a report to a children’s aid society. Anonymous reports are fine and they do fulfill the duty to report suspicions of child abuse or neglect under the Child and Family Services Act. Sometimes it can be better to report anonymously because a professional does not want a parent or other caregiver to avoid calling for help in the future.

When a professional reports anonymously, it is important to keep a record of the report to avoid getting in trouble as there is the possibility of being prosecuted for failing to report. When making an anonymous report, a professional should ask the call-taker at the children’s aid society for his or her name or another way to identify and record that the call was made. Then the professional should keep the notes of the call as proof it was made, or complete an incident report for his or her employer for the same purpose.

Professionals often worry that reporting to a children’s aid society may be a breach of confidentiality or privacy rules. That is not the case. Section 125(1) of the Child Youth and Family Services Act says that the duty to report exists even if the information provided is confidential or privileged. That specific law overrides other privacy legislation or confidentiality rules.

Professionals who have a duty to report suspected child abuse or neglect face serious consequences if they do not comply with their duty. At the moment, the maximum penalty for a professional who fails to report a suspected child and any per incidence of failing to report is a fine of $5,000.00. In addition to a fine, the provincial court may require an offender to pay costs to the court or a victim’s fine surcharge. In addition, a professional who fails to abide by the duty to report child abuse or neglect can incur the cost of hiring a defence lawyer or the time missed from work to go to court. Some professional colleges may impose additional penalties where the failure to report also breaches professional standards.

Professionals also worry that they could face some sort of civil liability for damages if they make a report that turns out not to be correct. Many families find it very upsetting to be investigated by a children’s aid society. However, s. 125(10) of the Child Youth and Family Services Act says that a professional can only be sued for making a report if that professional made the report maliciously or without reasonable grounds to believe that the child was being abused or neglected. Acting maliciously means to act knowing that the report is false and with the intention to cause harm or upset by subjecting the family to a children’s aid society investigation when there has been no abuse or neglect. 

Professionals can also face civil liability if they do not have a good reason to believe that abuse or neglect has occurred or could occur. This happens when a professional is overzealous in reporting, or makes the report out of a preconceived bias against the parent rather than looking at the situation objectively. Still, in considering the types of suspicions that trigger the duty to report, it is clear that the degree of suspicion is very low to trigger a duty to report.