In cases of sexual offence, it is often a school's duty to educate the perpetrator as well as protect the victim. Yvonne Spencer provides advice on how to balance these competing needs.
There is much concern over sex offenders working in schools. But there are in fact more sex-offender pupils in schools than there are sex-offender adults. So head teachers must focus not only on safe recruitment, but also on the need to create a safe environment where they have pupils who are sex offenders in their school.
The problem is particularly acute where the offender and victim are in the same school — or class. All schools have a duty to safeguard and promote the welfare of pupils, and this duty extends to the victims of sexual offences, to ensure that they don’t come face-to-face with their abuser.
This article explains the law on the duty to educate all pupils, including pupils with a history of sexual offending.
The criminal law
The Sexual Offences Act 2003, which came into force on 1 May 2004, says that its aim is to prevent, and protect children from harm from, sexual acts. In reality it criminalizes sexual offending among the under-18s.
The Act makes it an offence for a person under 18 to commit any of the offences that it lists, with penalty being:
- up to five years imprisonment if the person is tried in the Crown Court
- up to six months imprisonment, or a fine not exceeding the statutory maximum, if the person is tried in the Magistrates Court
‘Intentional sexual touching’
Offences under the Act include intentionally touching another pupil, where: the touching is sexual, and
- the victim is under 16 and the perpetrator does not reasonably believe that s/he is 16, or
- the victim is under 13
The person commits an offence if the touching involves penetration of the body’s orifices.
The Act defines the most serious offences, but pupils may be subject to police investigation also for inappropriately touching another pupil without his or her consent. This offence is known as indecent assault, and could even include horseplay or ‘adolescent experimentation’.
Who is a sex offender?
It is worth bearing in mind that a sex offender can be someone other than a person who has been found guilty of, or pleaded guilty to, a sexual offence.
The definition includes pupils who have been arrested and who admit an offence in interview, but who escape with a warning or final reprimand. Police may do this to divert young people from the criminal justice system.
Abusers are children in need
The guidance Working Together to Safeguard Children (published in 2006) at paragraph 11.33–11.38, says that those who work with young people who abuse others (including those who sexually abuse) must recognize that such young people are likely to have considerable unmet needs themselves.
Those working with young abusers should also recognize that these young people may pose a significant risk of harm to other children.
Evidence suggests that children who abuse others may have: suffered considerable disruption in their lives; been exposed to violence within their family; witnessed or been subject to physical or sexual abuse; had problems in their educational development; or committed other offences.
Risk and responsibility
Such children and young people are likely to be children in need and will, in addition, be suffering, or at risk of, significant harm, and may themselves be in need of protection.
Even so, children and young people who abuse others should be held responsible for their abusive behavior, whilst being identified and responded to in a way that meets their needs, as well as protecting others.
Three key principles
Three key principles should guide work with children and young people who abuse others:
- There should be a coordinated approach on the part of youth justice, children and social care, education (including educational psychology) and health (including child and adolescent mental health) agencies.
- The needs of children and young people who abuse others should be considered separately from the needs of their victims.
- An assessment should be carried out in each case, appreciating that these children may have considerable unmet developmental needs, as well as specific needs arising from their behavior.
Action when a sex offender is discovered in school
Local safeguarding children’s boards and youth offending teams should ensure that there is a clear operational framework in place within which assessment, decision-making and case management takes place.
Neither child welfare nor criminal justice agencies should embark upon a course of action that has implications for the other without appropriate consultation.
What this means in practice is that when a young person has come to the attention of the police for a sexual offence, social services and also education should become involved.
If the offence takes place on school premises, or the school is the first agency to be notified, the school will be required to follow the Working Together to Safeguard Children Protocol, which should be enshrined in the school’s existing child protection procedures.
A referral should be made urgently, not just to the police but also to the local authority designated officer (LADO), who will consider the plan of action, including whether the young abuser should be the subject of a child protection conference.
Sexual offenders and exclusion
Exclusion guidance ‘Improving Behavior and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units’ (September 2007), makes it clear at part 2 paragraph 15, that exceptional circumstances justifying a head teacher’s decision to permanently exclude a pupil for a first or one-off offence might include sexual abuse or assault.
It is noteworthy that the sexual abuse or assault does not have to be ‘serious’. The fact that the offence has taken place will justify a permanent exclusion decision.
Off-site education — an alternative to exclusion
Alternatively, if a pupil is accused of a serous criminal offence but the offence took place outside the school’s jurisdiction, the head teacher may decide that it is in the interest of the individual concerned and of the school community as a whole for that pupil to be educated off-site for a certain period, subject to review at regular intervals.
This is not an exclusion, but is a strategy available to head teachers as an alternative to permanent exclusion.
A head teacher can also authorize leave of absence for a fixed period — with the parent’s agreement, or by exercising powers delegated by the governing body under section 29(3) of the Education Act 2002. The head teacher can arrange for the pupil to be educated elsewhere without parental approval, although the parents should be notified.
- Such education elsewhere must be arranged for the purposes of receiving any instructional training included in the secular curriculum for the school, and should not be continued for longer than it absolutely necessary.
- Whether the pupil has been granted leave of absence or is being educated elsewhere, the school must ensure that the pupil’s full-time education continues while off-site. Any such arrangements do not amount to an exclusion from school on disciplinary grounds, and should be kept under periodic review involving the parents.
Arrangements for appeals where there are parallel criminal cases
In most cases, where a child is permanently excluded for a sexual assault, the police will be involved. The remit of the admissions appeal changes in these circumstances and the evidence available to head teachers, governing bodies and independent appeal panels may be very limited.
- they may not be able to hear relevant witnesses or to consider relevant materials
- it may not be known whether a criminal charge is to be brought
- if a charge has been brought, the eventual outcome of any court proceedings may be uncertain
When making appeal decisions, governors should remember that the courts and the police will be applying the criminal standard of proof (‘beyond reasonable doubt’), whereas the head teacher, governing body and the independent appeal panel must apply the civil standard of proof (the balance of probability).
Evidence is critical
A head teacher need not postpone the decision to exclude a pupil simply because of the possibility that criminal proceedings may be brought in respect of the same incident.
The critical factor in any such case will be the evidence that is available to the head teacher.
In such circumstances a judgement must be made on the basis of the evidence available. If, having considered the evidence, the head teacher considers, on the balance of probability, that it is distinctly more likely that the pupil committed the offence, then s/he may proceed to take a decision on exclusion.
The head teacher should apply the normal principles, having regard to the school’s behavior policy, and should consider whether exclusion is a proportionate response.
What to take into account
In arriving at the decision, the relevant considerations include that:
a) a serious allegation has been made against a pupil by another pupil or member of staff at the school subject to a police investigation, which may result in criminal proceedings; and
b) pending the conclusion of any such criminal proceedings, the pupil’s continued presence in the school may have an adverse effect on the complainant and on other potential witnesses, and on the promotion of good order and discipline at the school generally
Governing body’s role
Where a head teacher excludes a pupil in circumstances such as those outlined in (a) and (b) above, the school’s governing body has no power to postpone its meeting to consider the pupil’s exclusion beyond the statutory time limit. The time limit is: no later than 15th school day after the day on which the parent lodged an appeal.
Independent appeal panel
Where the governing body decides not to direct the head teacher to reinstate a permanently excluded pupil, this may be further appealed to the independent appeal panel.
The appeal panel must consider whether it can go on to determine the appeal or whether, instead, to adjourn the hearing pending the outcome of any police investigation or any criminal proceedings that may be brought.
Should the panel adjourn?
The fact that parallel criminal proceedings are in progress will not itself determine whether the hearing should be adjourned. Relevant factors for the panel to consider will include:
a) whether any charge has been brought against the pupil and, if so, what the charge is
b) whether any relevant witnesses and documents are available
c) the likelihood and delay of a hearing if it were adjourned and the effect it may have on any victim, the excluded pupil or the school
d) whether an adjournment, or declining to adjourn, might lead to any injustice
If the panel does decide to adjourn, the local authority will already have taken steps to ensure that the pupil is provided with suitable full-time education, and must continue to do so pending the hearing.
The clerk is responsible for monitoring the progress of any police investigation or criminal proceedings, and for reconvening the panel at the earliest opportunity when the hearing can go to final determination.
It is abundantly clear, from all the statutory guidance, that sex offender pupils have the same right to receive full-time education as any other group. Balancing this right against the victim’s rights can be difficult in schools. The risk assessment plan should include:
- consideration of how the victim, if also a pupil at the school, should be protected
- a shared assessment of the possible threat that the pupil presents to other pupils, including information from social services and the police
- regular multi-agency meetings to review the pupil’s progress and management. Such meetings should include family members
- regular meetings with the pupil
- to ensure s/he is coping with the conditions attached to any placement in the school
- an assessment of any danger areas with the school and its grounds
- an assessment of whether staff and pupils understand child protection policies
- an assessment of child protection activity within the school curriculum
- establishing who needs to know about the pupil, bearing confidentiality and protection in mind. Child protection information must be given only on a need-to-know basis
- the establishment of clear reporting procedures, should people become aware that the pupil is beginning to slip back into sexually abusive behavior
- the development of a plan of action to respond to concerns raised by others in the school community, such as parents, pupils and staff
Separate victim and abuser
At a practical level, having an abuser and victim present on the school premises will mean that timetabling and planning should aim wherever possible to ensure that they are not in the same school areas. If they are, the school must give proper support to the victim.
The plan should be periodically reviewed to ensure that the steps outlined are still necessary and to consider whether there might have been an improvement.
A different school?
Some suggest in these circumstances that the offender pupil might be better placed in another school. Some agencies advise against this approach, on the basis that the pupil offender will gain more by remaining in place.
The reasoning seems to be that a pupil offender who tackles his or her offending behavior with support from the school, and appropriate external agencies, will gain from improving the behavior, particularly if s/he is a child in need.
There isn’t a general rule in this situation and each pupil will respond differently. It also depends on the type of support that the abuser is receiving from statutory services to tackle his or her offending.
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Yvonne Spencer is a solicitor advocate at Fisher Jones Greenwood
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