Earlier this month the NSPCC put out a call on twitter for professionals to respond to a survey they are running as part of the evidence gathering phase of ‘a project to support professionals to take the appropriate action when they have concerns about the safeguarding of children and young people’. That project is said to build upon an earlier project : ‘No one noticed, no one heard – A study of disclosures of childhood abuse’, which you can read about here. You can read about (and complete) the survey here. The original tweet appears now to have been deleted, but you can still see reference to it here :
@seethrujustice @SVPhillimore @suesspiciousmin it is a real shame you have adopted the word 'disclosure' when – ever since the 1987 Cleveland report – 'disclosure' for children saying what has happened to them has been judicially disapproved of (eg https://t.co/LNi4H4YbOW @)
— David Burrows (@dbfamilylaw) February 1, 2018
and in David Burrows’s** related, subsequent blog post here.
The tweet from @NSPCC, summarised and retweeted by Resolution, generated a twitter discussion in which a number of lawyers* raised concern about the use of the term ‘disclosure’ to describe accounts given by children. In short, where professionals start from a default position of belief of allegations made (whether by children or adults) there is a risk that accurate and truthful accounts will not be properly distinguished from those which are mistaken or untrue. Most child care lawyers will have experience of being told by social work professionals that their role is to believe the child, and will have heard the same professionals refer to a child’s account as a ‘disclosure’ even though it is neither proved nor accepted as true. Sometimes allegations turn out to be true, but sometimes when properly tested it becomes clear that they were not true, or at least that they can’t be treated as reliable accounts. There is very clear guidance to social workers about this, arising from the Cleveland Report in 1989, where failures to properly consider alternative explanations led to harm to children and families. Family Division Judge MacDonald J recently gave judgment in a case which is an example of how this still happens and how the guidance is still ignored :
despite the fact that the use of the term ‘disclosure’ to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children’s Guardian) used the term ‘disclosure’ to describe what the children had said to them). (AS v TH (False Allegations of Abuse)  EWHC 532 Fam).
What Cleveland and subsequent guidance tells us is that rather than believing a child or clinging to a suspicion of abuse, professionals need to listen to the child and the broader evidence before making their minds up. As David Burrows reminds us, ‘An open mind and open questions are essential’ when it comes to gathering the evidence of children – if evidence is gathered from a starting point that allegations are true evidence is likely to become contaminated (for example through leading questions) or through a failure to look for or see evidence that tells a different story. Professionals (of all disciplines, not just lawyers) need to be able to see alternative perspectives and hold them in mind simultaneously.
In a post by Sarah Phillimore** at Child Protection Resource entitled Mind your language – whats the problem with ‘disclosure’?, also prompted by the twitter discussion around the survey, Sarah reminds us of the very contemporary consequences in matters of criminal justice where concern is rising that the mandate to police officers and prosecutors to ‘believe the victim’, may have led to injustice both to those wrongly accused or convicted and to those whose truthful accounts cannot be proved because evidence gathering has been so flawed that evidence cannot be relied upon (see Henriques report referred to in Sarah’s post). But none of this is new. Cleveland led to the introduction of guidelines around the taking of childrens’ evidence, called the Achieving Best Evidence Guidelines, and it should be followed whenever children begin to give an account of abuse or where abuse is suspected. It’s underlying principles have wider application than just what goes on in a police video interview suite – just like police officers social workers should avoid leading questions, pressure or age inappropriate language and should keep accurate contemporaneous records of accounts given by children. However published judgments from the family court are littered with examples of very poorly conducted ABE interviews and evidence gathering practice, which have made it really difficult for the court to make sound findings and therefore to protect children (from the harm of abuse or the harm of being removed from an innocent and loving parent). The MacDonald J example is not an isolated one.
Sarah said :
This is concerning on so many levels. What does ‘disclosure’ mean? It is ‘the act of making new or secret information known’ . To call allegations or comments by a child ‘disclosure’ means you start the investigation from a perspective of ‘belief’ – exactly the position decried in the Henriques report.
Back to the NSPCC survey… Having received no response via twitter, David Burrows wrote directly to the NSPCC saying :
I have done the survey. The word ‘disclosure’ comes up again and again. In one short question it occurs four times. It is akin to a person being threated as guilty before the case is proved, a fundamental principle which our system of justice says is wrong.
Please review your use of ‘disclosure’ and reflect on the damage you may be doing to children who go to court if you misuse it.
In initial responses to David the NSPCC relied upon the widespread use of the term ‘disclosure’ by professionals and in guidance materials, including the 2015 Keeping Children Safe in Education Guidance and the 2008 Welsh Government Keeping Learners Safe Guidance. The NSPCC told David Burrows that :
We have chosen to use the word disclosure within the context of our Professionals Breaking the Silence project for a number of reasons. As the survey sets out, it is intended to be wider than allegation would suggest. Below is an example of a definition of ‘disclosure’.
“Disclosure is a complex process which can happen in many different ways, for example, verbally or non-verbally, directly or indirectly, partially or fully, and promoted or accidently. A disclosure may be made to family or friends, or to professionals such as social services or the police.”
…The use of the word in a justice context may of course have different implications…
The difficulty with what the NSPCC say about the use of terminology in a ‘justice context’ is that the process of gathering childrens’ evidence begins most often with social workers. The responsibility for protecting children is multi-agency, but criminal charges and convictions are there in part to help protect victims and potential future victims from this sort of harm. If social workers commit the sort of belief mistakes that Henriques and Cleveland decried, their efforts may make children less safe because when the case reaches the ‘justice context’ their evidence or the evidence they have touched or been involved in procuring will not stand the test of a proper fair forensic process. So it is impossible to separate out the ‘justice context’ from ‘real life’. As Sarah highlights, the choice of language both reflects and reinforces a dangerous mindset.
We asked NSPCC directly about this, explaining that we wanted to write a blog post on the topic. In response the Head of Policy and Public Affairs told us that their survey :
uses the term “disclosure” to reflect the process of a child starting to share their experiences with others, which in some cases comes even before they are ready to put their thoughts and feelings in order, sometimes before they are ready to make an allegation. In some cases, this process may never lead to an allegation. This process can be verbal or non verbal and can take place over a long period of time. We are therefore using disclosure in its wide definition, as it is often used and understood by professionals in a multiagency context. In that sense, the term allegation proposed as an alternative does not seem to capture to wider process of revealing information by young people.
To be clear, our use of the term disclosure should not be understood as implying that young people should automatically be believed. We understand that it takes extraordinary courage for a child to tell someone that they have been abused. Alleged victims of abuse need to know that they will be listened to and taken seriously, but this is not the same as being automatically believed. No alleged victim can or should be guaranteed that their testimony is assumed to be truth. This is our established position on the issue.
Sometimes when two worlds collide it is helpful to listen to the perspective of a complete outsider. Here is the perspective of our journalist colleague Louise Tickle :
…we are dealing with an issue of language available not being sufficiently subtle. It may be that we just don’t have the right word. Journalists deal with this by use of the word “said”. Except when they use the word “claim” which I think is loaded and should not be used except in very specific circumstances.
“Disclosure” is wrong because of what it implies.
“Allegation” doesn’t feel right because it’s a legal term and does not reflect the lived reality for the child giving the account – it seems to imply that they may be maliciously or deliberately making something up and as a starting assumption that feels as unhelpful as “disclosure”.
“Complainant” is just deeply unattractive. It should be neutral but in fact the word “complain” does not put someone in a very nice light.
I prefer “when a child tells an adult that they have been abused” which is a factual description of an event – but there is not a matching noun.
There is some force in the suggestion that ‘allegation’ is not a helpful term outside of a legal context. However we are not sure that this means that professionals therefore have to fall back upon ‘disclosure’, and we don’t agree with the NSPCC above that ‘disclosure’ somehow encompasses MORE than ‘allegation’ – an ‘allegation’ encompasses a range of possibilities : truthful, untruthful, coerced and genuine but mistaken accounts. ‘Disclosure’ shuts off all but one of those possible realities. We think that plain English phrases such as ‘a child said’ or ‘a child reports’ or ‘a child’s account’ would work just fine – avoiding both the narrowing effect of ‘disclosure’ and the legalistic ‘allegation’. Indeed, the 2015 Government non-statutory Guidance What to do if you’re worried a child is being abused – Advice for practitioners does just that :
If a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.”
There is not a single reference in that document to the term ‘disclosure’ and it is somewhat striking that the NSPCC do not refer to it. The 2015 Statutory Guidance that they do refer to Keeping children safe in education which does refer to ‘disclosure’ has a broader remit, and uses that term to refer to the Disclosure and Barring Service (pretty difficult to refer to such a system without using the term disclosure) and FGM only.
Similarly, the social worker’s guides on dealing with interviewing and safeguarding children (Achieving Best Evidence in Criminal Proceedings – Guidance on interviewing victims and witnesses, and guidance on using special measures and Working Together 2015) avoid use ‘disclosure’ in the way used by NSPCC.
The 2008 Welsh government guidance referred to was in fact updated in 2015 (you can read it here), and at 3.29 uses the term ‘disclosure’ in the context of a summary of the NSPCC No One Noticed… study. Indeed, some of the response from the NSPCC above is a verbatim quote from that passage of the guidance. A couple of paragraphs on there is a reference to children making ‘disclosures’. All other uses of the term ‘disclosure’ in that document relate to the DBS scheme. It is a shame that the Welsh and English Governments could not have agreed on a consistent use of terminology here. It appears that the Welsh guidance is the outlier.
What the NSPCC study showed was that it is really difficult for children to talk about the bad things that have happened to them, and that even when they do they are sometimes not heard – and professionals need to be prepared to listen, to work towards keeping them safe. But we would argue part of keeping them safe involves keeping an open mind and ensuring that investigations are thorough and that evidence is gathered properly. We would respectfully suggest that the wording in the 2015 Welsh guidance could easily be amended to remove references to ‘disclosures’ by children, without losing the very important messages about how important it is to listen to children’s attempts to tell adults about their experiences. We would invite the NSPCC to reflect on their use of disclosure just as perhaps lawyers could reflect on their insistence on its replacement with terms like ‘allegation’ (which to those outside the legal arena might sound a bit like disbelief, although that isn’t what they mean). We think that the NSPCC could, if it wished, play an important part in encouraging professionals to develop language and practice which better meets the joint aims of open minds and open ears.
Doing justice by and for children, and keeping them safe, requires us all to acknowledge that not everything that every child says will be ‘the truth’. Just like adults, children can be mistaken, confused or dishonest – perhaps more so. The message and evidence of children is of central importance to the work of child protection professionals, but the task of protecting children who give accounts of what appears to be abuse is more complicated than simply accepting their accounts at face value.
We would be happy to take guest posts on this topic, including the NSPCC – we think that it’s really important that professionals in different sectors and disciplines are able to talk about issues of language and practice, and to think about different perspectives. Guest posts don’t need to be just from professionals – whatever your perspective we’d like to hear your thoughts on these issues of language and will be happy to host them as part of a wider debate.
*including the author of this post, Lucy Reed
** David Burrows is a contributor to The Transparency Project and Sarah Phillimore is a Project member.