On 3 April 2014, the Department for Education published new statutory guidance for schools - including those in the independent sector - on safeguarding, entitled Keeping Children Safe in Education. It replaces Safeguarding Children and Safer Recruitment in Education (December 2006). Schools will have to check that their practices and policies comply with the new guidance.
The case of Stanbridge Earls School, an independent co-educational day and boarding school for students aged 10-19 years with special education needs based in Hampshire, acts as a cautionary tale of how things can go catastrophically wrong when a school fails in its safeguarding responsibilities. A female pupil was excluded for breaking school rules by having sex with a fellow pupil on school grounds. The pupil maintained that she had not consented.
Her parents appealed against the exclusion to the First-tier Tribunal claiming that the school had discriminated against their daughter. In a forthright judgment, the Tribunal was heavily critical - among other things - of the school’s failure to explain matters to the student in a way appropriate to a child with social and communications difficulties, the lack of formal risk assessments (except for external trips), the school’s staff and policies for failings with regard to the safeguarding of pupils, its failure to communicate adequately internally or effectively to protect the child, its "shameful failure to communicate" with the student’s parents, and the school’s "deplorable tendency to seek to place blame elsewhere".
The Tribunal ordered the school to send copies of its judgment, among others, to the Secretary of State and Ofsted. There followed three emergency social care inspections of the school by Ofsted in January, April/May (following the Department of Education’s rejection of an action plan produced by the School) and June 2013.
In its report in the April/May 2013 inspection, Ofsted stated: "… Ofsted recommends that the Department for Education take urgent action and intervene directly to ensure that leadership of the school is immediately improved. If this cannot be secured, the school should close."
In August 2013, it was reported that plans for a takeover of the school had been scrapped and subsequently that it would close having been unable to attract sufficient numbers of new pupils. Administrators have now been appointed over the affairs of the school.
Whilst this is an exceptional case, safeguarding incidents and allegations are relatively common. We have advised on several matters within the last year or so alone, including allegations and incidents - current and historical - involving pupils only, or both pupils and staff, and confidential and public. The key factor when such a safeguarding allegation or incident arises is for a school to be on the front foot in responding to it. The organisation’s personnel need to be aware of what is required and appropriate preparations must be made to respond in very short timescales. This may involve, as we found in one recent safeguarding case, unreasonable pressure on the school to settle a case or face unwelcome publicity and/or a legal claim.
Whist this short article cannot fully address every requirement of the new statutory guidance (eg. recruitment) and other relevant factors, there are key matters to which schools should have regard.
Keeping Children Safe in Education requires governing bodies and proprietors to ensure that there is an effective child protection policy in place, together with a staff behaviour policy (code of conduct). Both should be provided to all staff on induction. The child protection policy should describe procedures which are in accordance with Government guidance and refer to locally agreed inter-agency procedures put in place by the Local Safeguarding Children Board. It should be publically available (eg on the school website) and updated annually.
The policy is, of course, the school’s statement of how it will deal with the safeguarding of its students. It is the procedure which all members of staff are required to follow and so must be fit for purpose and kept up–to-date.
Procedures also need to be in place to handle allegations made against members of the school’s staff or volunteers.
Resources and training
A member of the school’s leadership team should be appointed to the role of designated safeguarding lead. This person is to have the appropriate authority and be given time, funding, training and resources to, among other things, provide advice and support to staff on welfare and child protection matters. The designated safeguarding lead should undergo updated child protection training every two years. The head teacher and all staff members should undergo child protection training which is updated regularly, in line with advice from the Local Safeguarding Children Board.
Safeguarding authorities and police.
Allegations that a member of staff (including volunteers) has:
• behaved in a way that has harmed a child, or may have harmed a child;
• possibly committed a criminal offence against or related to a child; or
• behaved towards a child or children in a way that indicates he or she would pose a risk of harm if they work regularly or closely with children should be reported to the local authority’s designated officer (LADO) by the head teacher or principal, chair of governors, chair of the management committee or proprietor of an independent school (case manager).
The case manager and the LADO should then discuss the allegation and agree a course of action. Depending on the circumstances of the case, this may include a strategy discussion with relevant agencies (eg. children’s social care, police) under separate statutory guidance.
The parents or carer of the child should be informed of the allegation as soon as possible but not until any other agencies which need to be involved have been informed. The school should keep parents informed of the progress of the case but will need to take care (including from the perspectives of employment law and data protection legislation) over what is said to them with regard to the outcome.
A school will need to be mindful that the circumstances giving rise to the allegation of abuse may lead to a civil claim for damages from the victim. This may be on the grounds, for example, that the school failed in its duties (based in contract and/or negligence) to protect the child or, if applicable, for vicarious liability for the actions of an employee. The school must ensure that the notification and other requirements of the school’s insurance policy are complied with in order not to prejudice any cover.
If the school operates as a charity there is a reporting requirement for a “serious incident”, which includes “incidents of abuse of vulnerable beneficiaries”. Such reports must be made as soon as possible after the incident and will also form part of the charity’s annual report made to the Commission. The Commission has powers of intervention but is unlikely to invoke these if the charity is dealing well with the incident.
Where an allegation is made against a member of staff, a school must be mindful of its obligations owed to the individual concerned as his/her employer. The statutory guidance states that the school should act to manage and minimise the stress inherent in the allegations process. The individual will need to be supported appropriately, including the appointment of a named representative to keep the person against who the allegation is made informed of the progress of the case.
The case manager should inform the member of staff concerned about the allegation as soon as possible after they have consulted the LADO unless, for example, other agencies (eg police or social services) need to be consulted first. Suspension of the staff member should be considered only in a case where there is cause to suspect a child or other children at the school is/are at risk of harm or the case is so serious that it might be grounds for dismissal.
Keeping Children Safe in Education sets out that it is essential that any allegation of abuse made against a member of staff or volunteer is dealt with very quickly, in a fair and consistent way that provides effective protection for the child and at the same time supports the person who is the subject of the allegation.
The school may require legal advice on steps to be taken against any member of staff against whom an allegation has been made, on instigating and handling disciplinary proceedings, particularly if there is an ongoing police investigation.
The school will also need to consider whether it is under an obligation to report the matter to the Disclosure and Barring Service.
A school should keep careful records for regulatory, insurance and governance purposes. A full note of the allegations or incident, the actions taken by the school and the outcome of the investigation will need to be made. This will be important for any subsequent requests for information and also as evidence in the event of any claim against the school.
Advice and communications
Press and parental interest will be at its height when public awareness of an allegation first arises, when any action taken by a school in response becomes known, and at any subsequent court proceedings. The school may be called on to make public statements or be contacted by individual parents. It is important that the school has a prepared and coordinated response in order that nothing is said that may prejudice the investigation or any subsequent trial and the interests of the parties involved are protected. Care needs to be taken by the school not to breach any of the restrictions imposed by the Education Act 2002 on reporting or publishing material that may lead to the identification of a teacher accused by a pupil at the same school.
Ideally, there should be established contacts with trusted legal and public relations professionals so that immediate advice is received, and action taken, without wasting time trying to identify appropriate advisers. In a world of newspaper websites and social media, time is likely to be of the essence for responding publicly to allegations of abuse at a school. We have found that the possibility of adverse publicity has been used to try to hold the school to ransom. This situation can engage governance, public relations, insurance and other challenges and the school must be prepared to deal with these in a way which is understanding, yet in the school’s interests, and with as little disruption as possible.
Advice on strategic matters and on the preparation of statements to parents and to the media is important in managing the risk to the school’s reputation. Members of staff who may have contact with the press and parents (eg receptionists, office staff) need to be briefed on how to deal with enquiries made by the press and parents by telephone or in person.
Any impression given to parents of pupils, or of potential students, that their child is not safe with the school can have adverse implications on the number of applications for places and potentially on the retention of existing students.
The key is to be as prepared as possible so that the school is not learning how to deal with an allegation of abuse while the matter is unfolding. The stakes for those connected to the allegation and the reputation of the school are too important for such a lack of preparation.
For further information, please contact Stephen Cole on 01604 233233 or click here to email Stephen. A version of this article appeared in the Summer 2014 edition of the Bursars' Review.