The new guidance on dealing with allegations of abuse against teachers and other staff is described as statutory and applicable to LAs, headteachers, staff, governing bodies and proprietors of independent schools. Interestingly, while this guidance refers to legislation it makes no mention of previous guidance contained in Working Together to Safeguard Children 2010 or Safeguarding Children in Education and Safer Recruitment. This is surprising, as anyone wanting to refer to detailed guidance would need to go to the guidance as opposed to the legislation. This may be an omission but may also indicate further revisions of these two pieces of guidance.
The guidance starts with ‘key points'. These give a flavour of the rethinking of how allegations should be managed and where the thinking comes from (see box).
|Dealing with allegations of abuse: key points in the guidance
It is all about making sure allegations are dealt with quickly, ensuring that suspension is only used if absolutely necessary, ensuring that teachers' records only include information about proven cases and that children making false or ‘malicious' allegation are punished and in some cases taken down a criminal route. What happened to protecting children from abuse perpetrated by professionals? One would have thought the protection of children would be at least mentioned in the key points! In this article I examine these ‘key points' one by one:
The quick resolution
I doubt anyone would disagree with the need to act without delay but it needs to be recognised that the more complex a case, the more time it will take to consider. In cases that require the involvement of other agencies, police and/or children's social care, headteachers are often asked to wait till police investigations or Section 47 (child protection) investigations are completed before they can make decisions about the member of staff's employment. In my experience, while all agencies try to ensure that inquiries are made promptly, there are times when a number of strands of inquiry are being undertaken at the same time, meaning cases can be held up.
I would like to be able to say that this is always because of the thoroughness taken by those investigating, but I have to be honest and say that sometimes it's about resources. For example, in cases where the police need to examine a computer to see if a person has been downloading child pornography, it can take a number of months just to get the computer looked at and if during the inquiry the police find leads to other individuals, suggesting an organised group, the case that initiated the inquiry will inevitably be held up. Another problem causing delay can arise when the parents of the child or children change their mind about how they want to proceed. Parents have the right to make a formal complaint to the police but may initially say that they do not intend to and then change their minds.
Children's social care will be involved if the member of staff has children of their own and this may cause further delays in decisions being made about a person's future employment.
I entirely agree with this ‘key note'. Suspension should not be seen as the only option and I have to say that most of the education lead officers and HR officers I have met feel the same way. I am beginning to wonder who it is that is making all these unnecessary suspensions? Could it be that anecdotal accounts of unnecessary suspensions are being used to suggest that this is common practice?
The guidance states:
- If the school or FE college is concerned about the welfare of other children in the community or the teacher's family, those concerns should be reported to the LADO or police, but suspension is highly unlikely to be justified on the basis of such concerns alone.
- Suspension should only be considered in a case where there is cause to suspect a child or other children at the school or FE college is or are at risk of significant harm, or the allegation warrants investigation by the police, or is so serious that it might be grounds for dismissal.
- These two paragraphs seem to contradict each other. The first says that concerns for ‘other children in the community or the teacher's family' are not likely to be enough to justify suspension. The second paragraph says suspension should only be considered if there is cause for concern about the child or other children at the school. As ‘other children' at the school are also likely to be the ‘other children' in the community I do not understand the distinction that is being made.
Malicious allegations should be removed from a teacher's personnel record. I agree, but I believe that a record of the investigation that proved an allegation was malicious should be kept. Such records can act in support of the member of staff that has been wrongly accused. Some cases re-surface later and having a record that the incident was properly investigated and a record of evidence that proved a case malicious serves to exonerate the member of staff. Also, as a person involved in managing allegations, I am required to keep a record of my actions. Such records should not be kept on a member of staff's personnel file. However, I have to ask: who are all these children who are making malicious allegations?
In my own experience of supporting schools with the management of allegations over many years, I can only remember three cases where it was possible to present evidence that was able to prove that an allegation was malicious. I am in regular contact with other people in my role across the north of England and none of us are of the view that malicious allegations occur on a regular basis despite the tone of this guidance, which seems to suggest that they are commonplace.
The government has yet to produce research on the numbers of allegations that are proved false or malicious but continues to demonise children to such an extent that it's hard to see why anyone would want to be a teacher.
The second part of the key point referring to false or malicious allegations also states that allegations that are not substantiated, are unfounded or malicious should not be referred to in employer references. While I agree that proven malicious or unfounded allegations should not be referred to in references I would argue that the government has misunderstood the use of the word ‘unsubstantiated' or how it is used in the context of allegations management.
At the end of an investigation LADOs are expected to categorise the findings as either proven, unsubstantiated, unfounded, false or false and malicious. The word ‘unsubstantiated' is used to describe a case that the investigation has ended without a clear finding. It does not mean that the allegation is false or malicious but that the evidence was insufficient to prove one way or another. The most common situation where a case is classed as unsubstantiated is where it is basically one person's word against another, where there are no other witnesses or where a child is deemed too young to be able to act as a reliable witness. The unsubstantiated category is used where there is some evidence supporting the probability that some part of the allegation is true but that the evidence is not strong enough or the child is not able to give clear enough details to prove the case. ‘Unfounded', on the other hand, means ‘having no basis in fact'. The motivation to avoid the unnecessary stigmatisation of staff who are the subject of an allegation is understandable. However, it is equally important to avoid the potential stigmatisation of victims whose allegations are unsubstantiated.
Whether or not an unsubstantiated allegation should be referred to in a reference is open to debate but I know there are cases where it has been felt very important to share such information. References must, of course, only make a statement of fact in respect of this kind of information: ‘This person was interviewed as part of a management investigation into an allegation. The end result of the investigation was that the allegation was unsubstantiated.'
Pupils who make malicious allegations
The last ‘key point' refers to dealing with pupils who make false allegations. Exclusion, punishment or even criminal proceedings are suggested as appropriate for young people making malicious allegations. There is no mention of trying to get to the bottom of why a child or young person would do such a thing.
If a child makes a false allegation there is likely to be a reason behind it. This is not to say that the member of staff has caused a child to make up a story but a child may misinterpret a person's actions because of past experiences or may try to hurt a member of staff as an outward sign of underlying problems. Having a false allegation made against you is a terrible experience and I am not trying to suggest that staff should be able to just brush it off. Pupils who make false allegations need to be corrected and if necessary offered counselling, as should members of staff on the receiving end. I am just disappointed that the guidance has chosen to put so much emphasis on false and or malicious allegations when these seem to be in the minority.
If children are to be punished for making false allegations I can only presume that they are going to be offered the same level of confidentiality that the guidance suggests in respect of members of staff facing an allegation. The reason being that misinformed rumour about the reasons for the punishment may lead children who have a real allegation to make the decision not to tell. The guidance suggests that a false allegation may be a breach of the school's behaviour policy. I am not sure how many schools have such a breach written in to their behaviour policy but again it concerns me that to have a threat of punishment within any document referring to allegations may well serve to put children with genuine reasons for raising a concern off making a disclosure.
The consultation on this guidance is part of the Ensuring Good Behaviour in Schools: Guidance for Governing Bodies, Head teachers, School Staff and Employers
consultation open until 30 May
Dealing with Allegations of Abuse against Teachers and Other Staff