Jenni Whitehead examines the new procedures for allegations against staff, which have been in force since January 2007
Safeguarding Children and Safer Recruitment in Education came into force in January 2007. This guidance brought together two previous pieces of guidance, Safeguarding Children in Education and Safer Recruitment in Education. A major part of it is about new procedures to follow where an allegation is made against a member of staff. You may have missed this as so much emphasis seems to have been placed on getting recruitment right. This article seeks to offer an understanding of the new procedures.
The 1989 Children Act is the main legislation covering the protection of children; it is from Section 47 of this act that we get the definition of ‘significant harm’: Where a local authority has reasonable cause to suspect that a child… is suffering or is likely to suffer significant harm the authority shall make such enquiries… to decide whether any action should be taken to safeguard a child’s welfare. Significant harm is the threshold for compulsory intervention. The definition rests upon the degree and extent of physical harm, the duration and frequency of abuse/neglect, the extent of premeditation, the degree of threat and coercion, sadism and bizarre elements. Significant harm is more usually associated with abuse perpetrated within the family but is also important in determining whether an allegation against a member of staff constitutes a child protection issue or a management issue.
When should the allegation procedures be used?
These procedures should be used in all cases in which it is alleged that a teacher or member of staff (including a volunteer) in a school, FE college or other education establishment that provides education for children under 18 years of age has:
- behaved in a way that has harmed a child, or may have harmed a child
- possibly committed a criminal offence against a child
- behaved towards a child in a way that indicates he or she is unsuitable to work with children.
Allegations against members of staff come through a variety of routes:
- Parents contact school or the education department to make a complaint.
- Police discover that a person that they are investigating is a member of education staff.
- Children’s social care may carry out a Section 47 investigation and discover that one of the parents is a member of education staff.
- Children and young people may tell a member of staff that they are subjected to abuse by a member of staff.
Reporting to the LADO
All local authorities are now expected to identify a local authority designated office (LADO). This role is usually taken on by a senior manager within children’s social care. The LADO is directly linked to and works on behalf of the safeguarding board and has responsibility for ensuring that all allegations against staff from statutory agencies are properly dealt with. In respect of education, most departments already had a member of staff with this responsibility, usually the LEA designated officer for child protection. The new procedures expect the LADO to be informed of allegations of this nature; however, it is recognised in many LAs that there still needs to be a person within education who takes responsibility for ensuring that procedures are followed and that the LADO is informed. It is important then for schools to find out what the local arrangements are, whether they report to the education designated officer or directly to the LADO.
What information will schools need to give?
Basic details about the allegation:
- If school or service have already acted on it and what they have done.
- Whether the parent of the child has been informed.
- Name, date of birth and address of member of staff and of child/children involved.
- Whether there were any witnesses.
Parents should be informed as soon as possible. Schools should assure parents that they are taking the issue seriously and inform of their rights:
- If there is indication that the child may have been assaulted the parent has the right to go to the police.
- Parents may decide they do not want to report to the police. However, the LADO will in most cases need to consult the police and the police may contact the parents to check their decision.
The guidance expects that the LADO will be informed within one working day of the allegation coming to light. Depending on the nature of the allegation and on the urgency of the referral the LADO may decide that a strategy discussion is appropriate and this is done on the phone. If the allegation is more serious and or complex in nature the LADO may set up a multi-agency strategy meeting to agree next steps. Strategy meetings will usually include the employer, human resource services, a children’s social care worker, the education department’s designated officer and the LADO. The aim of strategy meetings are to gain fuller information and discuss immediate steps, ie whether the member of staff should be suspended or whether there is a less drastic way of ensuring proper enquiries can be undertaken but that doesn’t demand suspension.
Informing the member of staff
The person who is subject of the allegation needs to be informed as soon as possible after consultation with the LADO. Where it is likely that police and or children’s social care will be involved an agreement needs to be made with those agencies as to what information can be disclosed to the member of staff. If the staff member is a member of a trade union or a professional association, he or she should be advised to seek support from that organisation. If the police decide to investigate, schools should be advised that they should not start their own investigation before the police have decided whether or not they intend to take the case through the criminal courts.
Suspension should always be considered where there is cause to suspect a child is at risk of significant harm, or the allegation warrants investigation by the police, or is so serious that it might be grounds for dismissal. Staff should not be automatically suspended and strategy meetings/discussions may discuss alternatives. The power to suspend is vested in the employer alone but the employer may canvass the views of the LADO, police and their own human resources service.
The LADO’s discussion with the police may result in the beginning of a criminal investigation. The police will aim to complete their enquiries as quickly as possible, consistent with a fair and thorough investigation. The police are expected to set a review of progress date at the outset of their investigation. The first progress review should take place no later than four weeks after the initial evaluation. This timescale does not mean that police are expected to finish their investigation within four weeks and the review may conclude that the investigation is still in progress. The aim of the review is to ensure the case is progressing. Police will keep the employer informed of progress and outcomes. This is usually done through either the LADO or the education designated officer. The police gather their evidence and will seek advice from the Crown Prosecution Service (CPS) as to the level of evidence needed in order to proceed through the courts.
The role of the CPS
The CPS works to certain guidelines. The burden of proof in criminal proceedings is ‘beyond reasonable doubt’ and the police are expected to demonstrate to the CPS that there is sufficient evidence for realistic prospect of conviction. The CPS also considers whether taking the case to court is in the child’s interests or the public interest and whether proceeding with a case would be an abuse of process. It may be decided that the case should not proceed through the criminal courts and police may pass the case back to the employer to consider carrying out their own investigation and the possibility of disciplinary action.
If the CPS decides against criminal proceedings disciplinary proceedings must always be considered. Disciplinary proceedings carry a lower ‘burden of proof’, based on ‘in all probabilities this did happen’ as opposed to ‘beyond reasonable doubt’. The police may be able to share some details of their investigation with the employer. This may spare the school the need to interview witnesses who have spoken to the police. Your school’s human resources service should be able to advise on how to proceed with both the investigation and any subsequent disciplinary action.
Resignations and compromise agreements
The guidance says that if a person tenders their resignation during an investigation or before one is started, the investigation should be continued. It is important to try to reach a conclusion. In practice continuing to investigate without the compliance of the member of staff can prove very difficult indeed, but employers are expected to retain evidence that they have done as much as they can to reach a conclusion that can be properly recorded. Compromise agreements must not be used in these cases. Such an agreement may include restrictions on the employer in respect of sharing details of the case. The employer has a statutory duty to make a referral to the Protection of Children Act List or DfES List 99 where circumstances require it. The Protection of Children Act 1999 gives the secretary of state power to keep a list of people who are unsuitable to work with children in childcare positions. Childcare organisations in the regulated sector are required to make a report to the secretary of state if they dismiss for misconduct a person who has harmed a child, or put a child at risk of harm, or if a person resigns in circumstances where he or she might have been dismissed for that reason. List 99 is a confidential list of people whom the secretary of state has directed may not be employed by local education authorities as a teacher, or in work involving regular contact with children under 18 years of age. The list also includes details of people the secretary of state has directed can only be employed subject to specific conditions.
Action on conclusion of a case
If the allegation is substantiated and the person is dismissed or the employer ceases to use the person’s services, the school or service, HR officer, CP officer and the LADO, need to agree whether a referral to the Protection of Children Act List or DfES List 99 is required or advisable. If the member of staff is subject to registration to a professional body or regulator – eg the General Social Care Council, General Medical Council, Ofsted – a decision needs to be taken as to whether that body should be informed.
Action in respect of false or unfounded allegations
If an allegation is determined to be unfounded, the school or service should refer the matter to children’s social care to decide whether the child concerned is in need of services. In the rare occasions where it can be proved that the allegation has been deliberately invented or malicious, the school or service may ask the police to consider if any action should be taken against the person responsible. There is of course a risk in taking action against a pupil in these circumstances. Children who need to disclose abuse may be deterred. In addition, a child who has made a false or malicious allegation may need some sort of support; it is after all unusual behaviour. Make sure that the member of staff who has been the subject of a false allegation is properly supported. Such incidents can cause staff extreme stress and in some cases the employer may need to offer the services of a counsellor.
It is clearly stated in the guidance that the time-scales given are to be aimed at and should not be used as performance indicators. Where initial evaluation decides that an allegation does not involve a possible criminal offence, it is dealt with by the employer. If the case does not require formal disciplinary action, appropriate action should be carried out within three working days. If a disciplinary hearing is required and can be held without further investigation, it should be held within 15 working days. The investigating officer should aim to provide the employer with a report within 10 working days. On receipt of the report the employer should decide whether a hearing is needed within two working days and if a hearing is needed it should be held within 15 working days. Unfortunately, most authorities are finding these time scales very difficult to achieve.
No one really wants to consider the possibility that a member of their staff would harm a child or put a child at risk of abuse. Unfortunately, allegations do happen and it is essential that schools understand what to do if it should happen. Make sure that you know and understand the locally agreed procedures. Talk to your education designated officer, the LADO or your safeguarding board representative and make sure all staff are clear on how they would report inappropriate behaviour. Do not shy away from an allegation in the hope it will die down. It probably won’t and parents are more likely to feel the need to take the issue to the police where they feel they are not being listened to or that issues are being swept under the carpet.