Hidden danger

A new report from MPs highlights the rights of staff when allegations are made. Richard Bird explains.

Figures for child abuse in schools are extremely uncertain but the likelihood is that about 2,000 allegations are made a year. Of these it would seem that something like 100 allegations, spread over 25,000 schools, lead to a conviction. Sexual abuse represents a tiny minority of allegations.

No one needs telling that striking a practical balance in child abuse is extremely difficult. However, the recent report on allegations against teachers by the Commons Select Committee on Children Schools and Families reminds everyone that staff accused of abuse should be genuinely treated as innocent until they are proved guilty: something ASCL always has urged on behalf of its members. This reminder may induce a proper wariness which the committee suggests has been lacking.

Allegations are infrequent so it is likely that headteachers and governors may have to deal with abuse only rarely. Their training, if any, may be faded, and their judgement may be inadequate. Nevertheless, the committee is concerned that heads have too little discretion in considering allegations.

The present guidance effectively sets the threshold for referral so low that heads feel they have to refer a case whenever an allegation is made. It also may be that in certain local authorities (LAs), those in charge of child protection react over-protectively.

This is emphatically not saying that heads should avoid consulting someone with experience outside the school - they should. It is just that while some LA designated officers are wise, fair and careful, some are not.

Suspension not 'risk-free'

Suspension is especially problematic. The impression from the report was it is often a Pavlovian reflex invoked more to protect schools than children.

Yet suspension is not a risk-free option. The Court of Appeal has rejected the idea that suspension is legally 'a neutral act.' It can be challenged in court and could lead to an award against the school.

Many schools' discipline policies say that someone suspected of gross misconduct may be suspended. Clearly abuse is gross misconduct. Yet in many cases there is no risk to the child and no likelihood of the investigation being prejudiced. It might be better to have it framed that suspension may be used for 'good and urgent reason'.

The Commons committee also firmly recommended that the practice of preventing suspended staff from seeing colleagues outside school should stop. A school might well be at risk if it suspends without consideration and then fails to fulfil its employer's duty of care.

They also questioned the need for multiple investigations. If the police have done a thorough enquiry, collecting evidence on the basis that it will be shared, that should be sufficient for subsequent proceedings. This is something that ASCL branches may feel they should take up locally through the head of children's services.

When further investigation is conducted, they recommend that it not be undertaken by an LA officer, a former LA officer, nor a member of a group with a campaigning interest in child protection. Investigations should not be a search for evidence of guilt. This again is something that branches may wish to pursue.

Anyone facing a charge of abuse in school should have the right to be legally represented at a hearing if they wish. The report drew attention to a recent case which has effectively established this as law. Schools should amend their policies accordingly.

CRB records

Finally: CRB records and school records. The sacred independence of the police allows each force to decide what to include on a CRB record. The Commons committee recommends the DCSF phraseology when recording allegations. This is 'unsubstantiated' (impossible to gather evidence conclusive of either guilt or innocence); 'unfounded' (the allegation unsupported by any evidence; or the allegation is proved to be untrue but may arise from a mistake or a misinterpretation); and 'malicious' (allegation made with deliberate intent to harm). It urges great care in using 'unsubstantiated' because of the 'whiff of guilt' it carries.

Schools hold records too. The committee recommends that the Independent Safeguarding Authority should decide what should be preserved on a school record. Employers do not have to refer to allegations that are 'completely untrue' in reference but since the CRB record will continue career-long, it may be sensible to do so as a counter-balance. A school should retain a full account of any exoneration.

The report may or may not move the DCSF to change its guidance and the police their practices but schools should not wait. The report reminds us that there is a duty to use careful judgement.