Young v. Bella: Limits on Reporting Suspicions of Child Abuse

by: Shaun O’Brien

According to the Supreme Court of Canada, there is some duty to be reasonable in making a report of child abuse. In a recent decision, Young v. Bella, [2006] S.C.J. No. 2, the Court, while recognizing the important policy behind the quick reporting of suspected child abuse, also found that child abuse reports cannot exclude consideration of the legitimate interests of the person named in the report. This means that suspected abusers who are innocent, including teachers and other professionals working with children, receive some protection from irresponsible reports to child abuse authorities.

In Young v. Bella, the Director of Social Work at Memorial University reported a student to the provincial Child Protection Services because of a bizarre misunderstanding over a missing footnote to a term paper. The student, Wanda Young, was taking courses toward her goal of being admitted to the School of Social Work. Her paper, which pertained to “Juvenile Sex Offenders”, attached as an appendix a case study copied from a textbook. The case study was a woman’s “first person” account of being sexually abused as a child, then sexually abusing children in her care as an adult babysitter. The textbook from which the case study was taken was listed in Ms Young’s bibliography; however, the appendix was not footnoted in the body of the text. There was nothing in the body of the appendix to link the experiences it related to Ms Young herself.

Ms Young’s professor suspected that the appendix was an autobiographical personal confession. The professor did not raise these concerns with Ms Young, but did take her concerns to the Director of the School of Social Work. The Director of Social Work then sent the appendix from Ms Young’s paper to the provincial Child Protection Services suggesting that it may be appropriate for someone from that office or the RCMP to follow up.

Ms Young was subsequently refused admission at the School for Social Work. It took the CPS two years to investigate the matter. When they finally did contact Ms Young, she provided the textbook from which the excerpt had been taken within 24 hours and the entire matter was found to have been baseless. Because of the small social work community in Newfoundland, however, concerns about whether Ms Young was safe to hire hampered her ability to obtain any employment in social work both prior to her meeting with the CPS and for years afterward.

In finding that the University was liable for its negligent report to the CPS, the Court stated:

Those whose professional responsibilities include the exercise of such power over the careers and future lives of fee-paying students are required to take the necessary care to get their facts straight before taking a potential career-ending action in relation to a student. While legislative and judicial policy mandates the quick reporting of information of suspected child abuse, it does not do so to the exclusion of consideration of the legitimate interests of the person named in the report, or the interests of informants.

The Court noted that the University was not obliged to conduct its own investigation of the suspected abuse, nor even to have reasonable cause to believe abuse had in fact occurred before making a report, but they were required to have reasonable cause to make a report to the CPS. It was the absence of reasonable cause, even to make a report, which lay at the heart of the University’s negligence.

In finding that the University owed a duty to Ms Young, the Court was partly influenced by the University’s position of authority and responsibility in relation to Ms Young’s career. This suggests that whether a duty is owed to a suspected abuser, such as a professional working with children, may depend in part on the relationship between the person reporting the abuse and the suspected abuser. For example, it will be arguably easier for a court to find a duty owed by a employer to an employee than by a parent to a teacher.

The University claimed that its actions were protected by a provision of the Newfoundland Child Welfare Act which provided that a no action lies against an informant of suspected child abuse “unless the making of the report is done maliciously or without reasonable cause”. The Court, however, held that “without reasonable cause” in that provision did not require a finding of bad faith. Moreover, the Court found that, on the facts of the case, the University was without reasonable cause in making its report to the CPS.

In Ontario, the comparable provision in the Child and Family Services Act (s. 72(1)) reads:

Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society: [followed by a list of ways in which a child may have suffered harm]

Because the wording in the Ontario statute does not pair “reasonable grounds” with maliciousness, it is even easier to interpret it as not requiring bad faith. In other words, the Supreme Court’s finding that an informant needs reasonable grounds to make a report would also apply in Ontario.

While this ruling may protect teachers and others who work with children from baseless speculation, it also means that those who work with children need to exercise caution themselves in reporting suspected child abuse. Again, the Supreme Court found that it is not necessary to have reasonable grounds that abuse in fact occurred, but only reasonable grounds to make the report. This involves a minimum duty to ensure that the suspicions at least relate to the appropriate person. In some situations, it may require raising the concern with the appropriate person to ensure there is no easy and compelling explanation for the suspected abuse. However, where the report is not based entirely on speculation, it is the job of child protection authorities to follow up and conduct a proper investigation.