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From the editor's desk

Clarify the law to help children
28 August 2014

Public outrage at the full extent of child abuse in Rotherham, South Yorkshire, is heightened by the knowledge that so far no public official has been called to account over the affair. Once again, institutions with a duty to protect children have given greater priority to protecting themselves.

The official report into abuse in Rotherham revealed that an estimated 1,400 children were left prey to the depraved activities of a small group of men, almost all of them of Pakistani origin, over a period of at least 10 years. Both the council’s social services department and the local police were aware of this but pretended they were not, for a variety of reasons. They have apologised and promised not to let it happen again. But that is not enough. The whole question of moral and legal responsibility for the safeguarding of vulnerable young people needs looking at again.

The uncertain legal position was epitomised in a recent live video exchange between Cardinal George Pell and a Royal Commission hearing in Melbourne. The commission was looking into institutional responses to child abuse, including the response of the Catholic Church. The legal issue is known in common- law countries as “vicarious liability”. It attempts to answer the question “When is an employer – or in the Church’s case, a bishop whose relationship to his priests is held to be analogous to an employer’s – legally liable for the wrongdoing of an employee?”

Judges have ruled that institutions responsible for the individual can be held legally responsible for their wrongdoing when it was clearly not part of their duties but had a close connection with them. Against this, Cardinal Pell mentioned the case of a lorry driver who molests a woman he picks up while being paid to drive his employer’s lorry. He said the employer would not be liable to compensate the victim, for the abuse was not what the driver was being paid for. But Cardinal Pell appears out of step with the judicial trend. A priest’s opportunities for abuse clearly arise from and are closely connected to his role as a pastor.

Applied to Rotherham, Pell’s argument would suggest that the police authority or social services department could escape liability because individual social workers or police officers had failed to discharge their contractual duty to investigate complaints. But just as bishops have a duty to supervise priests, senior police officers or local government officials have a duty to supervise junior ones.

Vicarious liability is an uncertain area of law, and needs further clarification. In particular, there is a need for unambiguous liability on any person or institution with a duty of care towards children, and that would include bishops (in Melbourne and elsewhere), social workers and police officers (see Rotherham), and even the BBC (for instance in connection with the Savile affair). Such a law would also place an onus on anyone in authority who knew of an abusive situation, to take such steps as were necessary to halt it. That would include reporting it to the proper authorities – provided they were not, as in Rotherham, turning their own blind eye.



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