Historically, dating back to ancient times, children have suffered violence (been menaced, maimed and murdered) at the hands of adults (Johnstone 1999b). Today, the abuse of children constitutes one of the world’s most longstanding and tragic public health issues (World Health Organization [WHO] 2002b; WHO & International Society for the Prevention of Child Abuse and Neglect [ISPCAN] 2006). Child abuse continues to occur in epidemic proportions and, despite global efforts to redress it, its incidence and negative impact continues to be largely under-recognised, under-reported and poorly addressed by governments across the globe (WHO 2001b: 2; see also Pinheiro 2006; WHO & ISPCAN 2006). Although child abuse and its adverse effects on the health and wellbeing of children (and the adults they become) are ‘more visible’ today, as noted by the WHO and the International Society for the Prevention of Child Abuse and Neglect (ISPCAN), the degree of this increased visibility ‘is far from sufficient’ (WHO & ISPCAN 2006: 1).

In 1999 the WHO estimated that globally over 40 million children aged 0–14 years suffer from abuse and neglect each year, and require health and social care (WHO 1999). The WHO further estimates that around 53000 children are murdered each year, and that between 73 million boys (7%) and 150 million girls (14%) under the age of 18 years are subjected to some form of sexual violence or forced sexual intercourse each year (WHO 2007a: 1). In some countries, it has been estimated that between 25% and 50% of children suffer severe and frequent physical abuse (including being beaten, kicked or tied up by parents) (WHO & ISPCAN 2006: 11). The burden of ill-health caused by child abuse-related injuries has been calculated to be ‘staggering in terms of cost and socio-economic development’ (WHO 1999). In the United States (US), for example, it has been conservatively estimated that the financial cost of child abuse is around $103.8 billion in value per year (Wang & Holton 2007).

Child maltreatment (literally the ‘wrong handling’ of children) and its harmful consequences can and ought to be prevented (WHO & ISPCAN 2006). As the United Nations (UN) has made clear:

Nurses, like others, have a strong professional, legal and moral obligation to take appropriate action to prevent child maltreatment and the burden of suffering that is so demonstrably associated with it. However, the nature and implications of this obligation requires critical examination in order to improve understanding of the conditions under which it might be held to be binding, and to ensure that it is fulfilled in a manner that genuinely maximises the moral interests of vulnerable children.

Historically, the problem of child maltreatment and protection has prompted a variety of responses at a social, political, legal and professional level (Johnstone 1999b). Notable among these has been the controversial introduction of contemporary mandatory (and permissive) reporting legislation. The introduction of this legislation has had important implications for the nursing profession as a whole as well as for individual nurses.

Today, the mandatory and voluntary reporting of child maltreatment constitutes an important ethical issue for members of the nursing profession, and for authorities formally charged with the legal responsibility of regulating nursing standards and practice. Despite this, the issue has received relatively little attention in the nursing (ethics) literature, and has received even less attention in mainstream child abuse, bioethics, jurisprudence and other related literature (see also Nayda 2002). Of particular concern, and the subject of this chapter, is the lack of attention given to examining the nature and implications of the (professional, legal and moral) obligation of nurses to report child maltreatment, and the ‘special issues’ this obligation may raise for individual members of the nursing profession. It is an important aim of this chapter to redress this oversight, and to identify and address key issues warranting attention by individual nurses, nurse registering authorities, professional nursing organisations, and others who are not nurses but whose work may involve liaison and collaboration with members of the nursing profession.

In the discussion to follow, attention will be given to providing a definition of child abuse, to providing a brief historical overview of the development of the modern child protection movement, to examining why child abuse constitutes a significant moral issue for members of the nursing profession and the community at large, and to addressing some of the key ethical issues raised by mandatory reporting requirements.

Incredibly, up until 1999, there was no internationally recognised operational definition of child abuse (Johnstone 1999b). This situation made the conduct of comparative research and scholarship on the incidence and impact of child abuse (in all its forms) very difficult — a situation that, in turn, added to the complexities of trying to get ‘good information’ about the problem and to inform the development and operationalisation of effective child protection policies and programs (WHO 2002b). Following the publication of a study by ISPCAN (published 2000), in which the definitions of child abuse from 58 countries were compared, this situation changed. In 1999, the WHO Consultation on Child Abuse Prevention drafted the following definition (now recognised as the universal definition of child abuse):

In the process of formulating and adopting this definition, there has also emerged a much greater — and long overdue — appreciation of child abuse constituting an act of violence, which in turn has been defined as:

This shift in thinking and attitude is now seeing a concerted effort, locally and globally, to end violence against children (Pinheiro 2006).

In the US, reported cases of child abuse date back to the 17th century. In 1655, for example, a master was convicted in a Massachusetts’ court and punished for the death of his 12-year-old apprentice (Watkins 1990: 500). Almost 200 years later, in Johnson v State (1840), ‘a Tennessee parent was charged with excessive punishment of a child’ (Watkins 1990: 500). In this case, the court held:

It is also known that in the early 1820s, public authorities in New York recognised their duty to intervene in cases of child abuse (including parental cruelty and gross neglect). This, however, often resulted in children being indentured (i.e. placed into service or an apprenticeship) in conditions as bad or worse than those from which they had originally been removed (Folks 1902, cited in Watkins 1990: 500). The practice of indenture did not fade out until about 1875 following the passage of the 13th Amendment in 1867, which ended not only slavery but ‘involuntary servitude within the USA or any place subject to its jurisdiction’ (Watkins 1990: 500).

Significantly, laws which could be used to protect children from cruelty existed long before the date of the 13th Amendment being passed. As an early commentator on the care of destitute, neglected and delinquent children noted, during the 1800s, ‘laws for the prevention of cruelty to children were considered ample, but it was nobody’s business to enforce the laws’ (Folks 1902, cited in Watkins 1990: 501, emphasis added). Although American ‘state statutes were adopted after 1825 that established a public duty to intervene in cases of cruelty or neglect of children’, these were rarely enforced (Folks 1902; Thomas 1972, cited in Watkins 1990: 501). Further, these statutes stopped short of mandating ‘a responsibility to search out children at risk’ (Watkins 1990: 500). Significantly, it was not until after the landmark (and now legendary) Mary Ellen child abuse case of 1874 (described below) that this situation began to change, largely due to the establishment and development of a formal movement for the protection of children which was initiated as a result of the widespread publicity given to this case. A key feature of this movement was to make it ‘somebody’s business’ to enforce child protection laws.

The North American experience was to be influential in the development of the child protection movement in the United Kingdom, with the first Society for the Prevention of Cruelty to Children in England being established in 1883 and ultimately receiving Queen Victoria’s patronage in 1889 (Fogarty & Sargeant 1989: 17). Like its North American counterparts, this society aimed, among other things, to achieve specific child protection and rescue law reforms, which up until then had failed to be passed. For example, in the 1870s, attempts to introduce anti-cruelty legislation into the English parliament were ‘entirely rebuffed’ with the prime minister of the day, Lord Shaftesbury, defending:

Australia, as a colony of England, was very much influenced by British attitudes and political antipathy in dealing formally with the issue of cruelty to children (Renvoize 1993: 31; Fogarty & Sargeant 1989: 16–17). Of particular interest to this discussion is the situation in the Australian state of Victoria which was not exempt from the problem of child abuse. For example, in 1863, inquests into the deaths of children under 3 years of age found that approximately one-quarter had died as a result of causes ‘denoting neglect, ignorance or maltreatment’ (Gandevia 1978, cited by Goddard 1996: 10). Although child-specific welfare legislation was passed as early as 1864 (the Neglected and Criminal Children’s Act) and a Society for Prevention of Cruelty to Children (modelled on the British society) established in 1897, as Fogarty and Sargeant comment (1989: 16):

A notable example of this antipathy can be found in an argument that was advanced against a proposed Bill introduced into the Victorian parliament in 1891 and which was aimed at ‘making incest a criminal offence’ (Renvoize 1993: 31). In rejecting the passage of the Bill (which was later passed), it was argued ‘that it would be better that a few persons should escape than that such a monstrous clause as this should be placed upon the statute book in this colony’ (Renvoize 1993: 31). Later examples show that this antipathy persisted well into the 20th century. For example, between 1966 and 1968, concern about child maltreatment and protection in Victoria was again highlighted when two medical researchers, publishing in the Australian Medical Journal, recommended the introduction of mandatory reporting laws (Birrell & Birrell 1966, 1968). The government of the day, however, rejected this recommendation on grounds that it would ‘run counter to “welfare ideology” and could lead to hysteria and an urge to punish cruel parents’ (Hiskey 1980, cited in Mendes 1996: 27). In its stead, a system of voluntary reporting was recommended. A decade later, in 1986, a recommendation for mandatory reporting was again opposed by the government of the day, this time on grounds that ‘it was punitive rather than preventive and likely to lead to a large increase in false reports’ (Colyer 1986, cited in Mendes 1996: 27).

Today, the issue of child maltreatment and the need for effective child protection services remains problematic and an ‘endless challenge’ in countries around the world, including Australia. According to the latest figures released by the Australian Institute of Health and Welfare (AIHW), the number of child protection notifications between 1999 and 2005 has more than doubled from 107134 (for the period 1999–2000) to 252831 (for the period 2004–2005), with the number of substantiations also increasing (AIHW 2006: xiii). These figures have been interpreted by some as indicating that an ‘Australian child was harmed, or found likely to be harmed, every 11 minutes in 2004–2005’ (NAPCAN Foundation 2006). Worryingly, Aboriginal and Torres Strait Islander children are conspicuously over-represented in the child protection figures and systems reported.

It has long been evident that ‘the system’ of child protection in Australia — like its overseas counterparts — has not been able to cope with the increase in demands that have constantly been placed upon it. Despite a rise in the reporting of child abuse, significant numbers of children are still maimed and killed each year as a result of abuse received at the hands of their primary carers (AIHW 2006; Strang 1996). A troubling aspect of this scenario is that in Australia, as has been shown to be the case overseas, very often ‘the circumstances leading to the most serious cases of child abuse almost always were known to the authorities, but there was no intervention because no-one would take responsibility’ ( Monash Review 1986: 11, emphasis added). In 1996 these failures of the Australian child protection system were described by one critic as a ‘national tragedy’, and prompted calls by the then Chief Justice of the Family Court, Justice Alastair Nicholson, for the system to be investigated by a royal commission of inquiry (Milburn 1996: 3). This call has, however, been largely ignored at both a social and political level (Johnstone, 1999b, 1999c). Over a decade later, child protection authorities are still quoted in the Australian news media as stating that ‘child protection systems across the country [are] poorly monitored’ (Hannan 2006: 4) and that there is an urgent need for a national non-partisan, sustainable and integrated policy platform in the areas of child development and child protection (Gaughwin 2007: 13).

Important questions remain as to why there is such apathy, at all social, cultural, political and legal levels, to challenge and change the status quo. There are many reasons for this — including, but not limited to: the emotional sensitivities involved, the lack of understanding of the serious long-term health effects of child maltreatment (not to mention its economic costs as well), a lack of awareness of effective prevention strategies, and the ‘pervasive demand for immediate returns on public investments’ (WHO & ISPCAN 2006: viii). What, perhaps, also lies at the basis of this social and political inertia is an even more insidious moral inertia and a culpable lack of moral will to challenge and change the status quo. What will shift this moral inertia remains an open question. What is certain, however, is that this moral malaise will continue until it is recognised and understood that child maltreatment is most profoundly a moral problem and, as such, deserves a sustained and comprehensive moral response.

Child abuse constitutes a significant moral problem and, as such, demands a substantial moral response. Reasons for this are outlined below.

As previously considered in Chapter 3 of this book, it is generally accepted that something involves a (human) moral/ethical problem where it has as its central concern:

Adjunct to these concerns is an additional consideration, namely, that people have a moral responsibility to not cause unnecessary harm to others and, where able, ought to come to the aid of those who are suffering and in distress. As Amato (1990) notes in his Victims and values: a history and a theory of suffering (p 175):

These considerations all apply in the case of child abuse. As can be readily demonstrated, the problem of child abuse fundamentally concerns:

Adjunct to these concerns is an additional consideration involving the moral responsibility people have to not cause unnecessary harm to children and, where able, to come to the aid of children who are suffering and in distress as a result of being maltreated and/or neglected by others.

Underscoring child abuse as a moral problem are a number of other important considerations revolving around the extraordinary vulnerability of children generally. Children are among the most vulnerable members of our community. For the most part, they are unable to protect themselves from the harms imposed on them by people more powerful than themselves. Invariably children have to rely on others for help if their wellbeing and welfare is to be safeguarded. It has long been recognised that without intervention and help offered by others, the abuse and neglect of children rarely stops (Child Protection Victoria 1993: 9; Goddard 1996). Historically, however, children have not always been able to rely on others (including benevolent citizens, health professionals and public officials) to intervene and help them (Johnstone 1999b). Nor have they been able to rely on legal law and its processes. As has been pointed out elsewhere, children have long been considered ‘different’ under law and stand as the ‘paradigmatic group excluded from traditional liberal rights’ otherwise accorded to and protective of autonomous adults (Minow 1990: 283).

Equally troubling, neither have children been able to rely on ethics/morality to protect them. Historically, as in the case of law, ethics has also treated children as ‘different’; specifically, as not deserving the moral respect otherwise accorded to rationally competent adults (usually men) and which, if accorded to children, could have resulted in ‘substantial [and unwanted] intrusion’ into the lives of parents (especially fathers) and guardians (male benefactors) (adapted from Schrag 1995: 357). Because of not being able to rely on others, law or ethics for help, children historically have remained at risk of and have experienced otherwise avoidable harms which, if experienced by adults, would have been (and would be) universally condemned, even by the most rudimentary of moral calculations, as being morally unacceptable.

In light of these and other considerations, it is manifestly evident not only that child abuse is a significant moral problem, but that it warrants a substantial moral response. To be effective this response must include moral initiative and action at an individual, group, community and state/territory level aimed at providing genuine presence (‘being there’) for the children who require the assistance of others in order to get the protection they need from a situation of potential or actual abuse and/or neglect.

In an attempt to redress the historical and legitimated vulnerability of children in the case of child abuse and neglect, governments have responded by enacting either mandatory or voluntary reporting laws obligating certain people (on either legal or moral grounds) to intervene by reporting known or suspected cases of child abuse to child protection services. This response has not been without controversy, however. Pivotal to the controversy have been variant moral beliefs, values and attitudes concerning what constitutes the morally most appropriate response to child abuse given the complexity of overlapping relationships, responsibilities and variant moral calculations that are inherent in any potential or actual child abuse situation. So intense has been this controversy that, in some instances, it has resulted in a significant and serious ‘backlash’ against child protection (see, e.g. Myers 1994).

While there is little disagreement among stakeholders in the child abuse debate that it is morally wrong for children to be harmed unnecessarily and that children should