Teachers' Duty to Report Child Abuse and Neglect and the Paradox of Noncompliance: Relational Theory and “Compliance” in the Human Services

• Published date: 01 July 2014
• Author: Kelly Gallagher‐Mackay
• Date: 01 July 2014
• DOI: http://doi.org/10.1111/lapo.12020

Teachers’ Duty to Report Child Abuse and

Neglect and the Paradox of Noncompliance:

Relational Theory and “Compliance”

in the Human Services

KELLY GALLAGHER-MACKAY

Based on in-depth interviews with thirty-eight individuals on the front line of child

welfare (educators, mothers, and child protection workers) this study analyzes

the attitudes behind educators’ acknowledged noncompliance with mandatory

reporting of child abuse and neglect by teachers. Regulatory theory posits that

“compliance” is affected by a mix of sanctions, capacity, motivation, and the

perceptions of legitimacy and moral purpose associated with particular rules.

Paradoxically, while the educators in this study were knowledgeable and support-

ive of the rule in principle, their accounts of reporting decision making were highly

contextualized and ambivalent. The interview data suggests that existing theories

of compliance may be usefully supplemented with an explicitly relational

approach that better accounts for decision making in the contexts of care and

dependency that characterize regulatory fields of human services such as educa-

tion and child welfare.

There is an extensive, mandatory, and detailed legislative framework for

reporting suspected child abuse or neglect in every North American jurisdic-

tion, and in most jurisdictions, professionals, such as teachers, are under an

even higher duty to report; teachers face significant penalties for failing to

report (see Child Welfare Information Gateway 2010, and links1in the Cana-

dian Child Welfare Research Portal). In the province of Ontario, Canada, for

example, any person must report directly to a Children’s Aid Society (CAS)

if they suspect that a child is being physically or emotionally harmed, or at

risk of harm; at risk of or experiencing sexual molestation; is abandoned; or

is not receiving necessary care or services. Those with professional or official

duties with respect to children, including teachers and other school board

This research emerged from my doctoral research, and I appreciate all the support from

faculty at OISE and UT Social Work, especially my outstanding supervisory committee, Jane

Gaskell, Joseph Flessa, and Shelley Gavigan from Osgoode Hall. Particular thanks to Joanna

Birenbaum, Jeannie Samuel, David Szablowski, and Eleanore Cronk for input and support in

the writing of this article.

Address correspondence to Kelly Gallagher-Mackay, 192 Crawford Street, Toronto, ON M6J

2V6, Canada. Telephone: (416) 532 6208; E-mail: Kgallagher-mackay@sympatico.ca.

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LAW & POLICY, Vol. 36, No. 3, July 2014 ISSN 0265–8240

© 2014 The Author

Law & Policy © 2014 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12020

personnel, are guilty of an offense punishable by a $1,000 fine if they do not

report a suspicion arising in the course of their duties.

After police, educators are the group that reports suspected maltreatment

most frequently in both Canada and the United States (Children’s Bureau

2011; Public Health Agency of Canada 2010). Despite these figures, however,

there is clear international evidence of underreporting—many studies over

the past twenty years have shown that teachers often do not report suspected

abuse or neglect (e.g., Alvarez et al. 2004; Kenny 2004; National Committee

for the Prevention of Child Abuse 1997; Abrahams, Casey, and Daro 1992).

In a study of schools, child protection services, and families, I conducted

in-depth interviews with educators (twenty-two), social workers (eight), and

mothers (eight) whose children had been found in need of protection due to

abuse, neglect, or exposure to domestic violence.2These interviews included

extensive discussions of reporting decisions. I was initially surprised when the

interviews quite consistently included acknowledgement that teachers often

do not report abuse and neglect. Interview data suggest that participants are

knowledgeable about the law, which contains explicit and significant legal

and social sanctions. It also suggests that the reporting regime is widely

regarded by affected professionals as legitimate, morally appropriate, and

quite helpful in the conduct of work with very vulnerable children. The

patterns of nonreporting evident in this data (and reflected in the quantitative

studies above) represent something of a paradox for dominant approaches to

ideas of compliance in regulatory theory, which posits that a mix of knowl-

edge, deterrence, and intrinsic or normative motivations are factors most

likely to predict compliance with the law. In this exploratory study, I use my

data as a case study to investigate and articulate how a relational approach,

in which individual decision making is viewed as being heavily shaped by a

range of contextual, institutional, and emotional factors, goes some way to

explaining this paradox and provides a supplement or even, in some cases, a

corrective to conventional regulatory theory.

Finally, I hypothesize that this type of seemingly paradoxical noncompli-

ance is more likely to occur within the regulatory fields of human services

such as education and child protection. Human services have been treated as

exceptional in a range of legal theories (see, e.g., Noonan, Sabel, and Simon

2009; following Fuller 1978) but have been a primary focus of research into

so-called street-level bureaucracies (Lipsky 1980). Mandatory reporting is a

legal requirement that seeks to protect vulnerable children by regulating the

actions of educators in both their capacity as officials ensuring that the state

performs its responsibilities to children—and as individuals. An understand-

ing of questions of compliance in this context—indeed, the strength of regu-

latory theory more broadly—will be enhanced to the extent that it grapples

explicitly with relational approaches. This research suggests that with this

additional lens, regulatory theory may have a great deal to offer our under-

standing of the human services area as well as the better-researched stomping

grounds of economic and environmental regulation.

Gallagher-Mackay TEACHERS’ DUTY 257

© 2014 The Author

Law & Policy © 2014 The University of Denver/Colorado Seminary

CHILD WELFARE AND SCHOOLS

There is a strong societal consensus that public action is required to ensure

the safety and improve the lives of children experiencing abuse and neglect,

and to enhance their prospects for the future. Overwhelming evidence points

to the immediate and long-term vulnerability of this group of children (see,

e.g., Gilbert et al. 2009; Springer et al.2007; Cicchetti and Toth 2005; English

et al. 2005; Hildyard and Wolfe 2002). Overstretched child protection ser-

vices cannot do their job acting alone. Public schools, as a near-universal

service for children four years of age and over, are a critical partner. School

is a key environment for children’s development, healthy or otherwise

(Geenen & Powers 2006; Lerner et al. 2002), and educational success is a key

element of children’s immediate and long-term well-being (see, e.g., World

Health Organization 2012; Public Health Officer of Canada 2009).

Educational outcomes for children experiencing abuse and neglect are

far below average, however (e.g., Brownell et al. 2010; Wulczyn, Smithgall,

and Chen 2009; Leiter 2007; Kufeldt 2006; Smithgall et al. 2004), and most

observers point to the prevalence of policy and bureaucratic silos across

different children’s services and the fact that there is relatively little legislative

or policy guidance about how schools and child protective services should

work together. The one exception is the duty to report, for which there is a

clear and detailed legislative and policy framework that explicitly defines the

responsibilities of educators who suspect abuse or neglect with respect to

child protection.

REGULATORY THEORY, COMPLIANCE, AND MOTIVATION

It is a basic insight of law and society scholarship that there is a considerable

gap between prescription and action: law “on the ground” (see, e.g., Sarat

1993) is both more pervasive and more unpredictable than the well-ordered

dictates and processes of law books and policy manuals. Formal legal

requirements operate in a variety of ways (for a recent typology, see Barnes

and Burke 2011). Among these, regulatory theory, over the last two decades,

has emphasized the challenges of identifying better ways to address inevitable

gaps between the law on the books and the law in action, and to identify

strategies, formal and informal, that better accomplish regulators’ desired

goals in an array of settings (e.g., Huising and Silbey 2011; Baldwin and

Black 2008; Thaler and Sunstein 2008; Baldwin 1990).

Within regulatory theory, the issue of compliance with legal regimes has

been significant: Under what conditions will people obey the law? (see, e.g.,

Tyler 1990, 2008; Braithwaite 2002; Sparrow 2000; Kahan 1999; Ayres and

Braithwaite 1992; Levi 1988). There is a substantial literature on this ques-

tion, in which both negative (also called social control, deterrence, or in-

strumental) and affirmative (or normative) factors have been identified as

258 LAW & POLICY July 2014

© 2014 The Author

Law & Policy © 2014 The University of Denver/Colorado Seminary