Memorandum submitted by FACT (Falsely
Accused Carers and Teachers)
1. OPENING STATEMENT
1.1 FACT is grateful for the opportunity
to report on issues relating to allegations made in respect of
school staff.
2. SHORT SUMMARY
— This paper examines various issues
relating to allegations made against school staff from the perspective
of FACT members, most of whom contact us after they have been
accused of alleged child abuse.
— Attention is drawn to the increasing
number of school related referrals received by FACT through its
help line and other support services. However, we believe it would
be wrong to conclude that standards of conduct in schools are
falling.
— FACT calls for detailed research
into the scale and nature of allegations being made against school
staff, and into investigative practice.
— FACT is generally critical of the
present system of investigating cases of alleged abuse which is
"belief" rather than "evidence driven".
— FACT calls for improved training
of investigating officers and the need for a more ethical "evidence
based" model of investigative practice.
— FACT is very sceptical of the suggestion
that no record should be placed on the staff member's file where
a false allegation has been made and believes it will have very
little impact, partly because of problems of defining "false",
and partly because police forces now routinely record the fact
that an allegation of abuse has been made against a teacher on
enhanced certificates of disclosure issued by the CRB.
— We do not believe that the morale
of teachers will improve until there has been root and branch
reform of the CRB system.
3. BACKGROUND
INFORMATION
3.1 FACT (Falsely Accused Carers and Teachers)
founded in 1999 is a UK wide, membership based, voluntary organisation
that exists primarily to:
(a) support carers, teachers and other professionals
(ie paid personnel) who maintain they have been falsely accused,
or wrongly convicted of abuse or misconduct;
(b) lobby for change in investigative practice
and in the criminal justice system; and
(c) encourage and/or promote research into contested
allegations of historical sexual abuse.
4. THE NATURE
OF ALLEGATIONS
DEALT WITH
BY FACT
4.1 Most of the people who contact FACT
do so because they have been accused of gross misconduct (and
are therefore vulnerable to being dismissed), or because they
have been accused of child abuse and are therefore vulnerable
to being prosecuted and/or banned from teaching.
4.2 In most cases these allegations manifest
themselves in perceived personal or professional failings.
Personal failings
— inappropriate comments/conversation
(eg bad language, sexually inappropriate comments, racist remarks
etc);
— inappropriate physical contact (often
relating to physical education, music and drama teaching);
— perceived over-strictness or over-friendliness;
and
— blurring of professional and personal
boundaries (particularly during extra curricula activities).
Professional failings
— poor classroom management and indiscipline;
— failure to comply with school's ethos,
policies and procedures; and
— health and safety issues—usually
following an inspection, or an accident or injury.
5. THE SCALE
OF ALLEGATIONS
GENERALLY
5.1 There have been several attempts by
the Government, the press, trade unions and others, to quantify
the scale of allegations made against school staff. Whilst such
figures are useful they rarely compare like with like and often
conflict and compete with each other. What is needed is some solid
research into:
— the scale and of nature of allegations
made, and by whom;
— attrition rates (in terms of those
allegations which result in disciplinary action);
— outcomes (in terms of proven or not
proven findings);
— the extent to which the primary allegation(s)
may be regarded as being true or false; and
— the process of inquiry.
5.2 FACT acknowledges that the vast majority
of school staff are not subject to accusations of misconduct and
carry out their duties (teaching or otherwise) without ever being
subject of a complaint. We think it is important to remember that
most schools receive far more compliments than complaints.
5.3 We are a relatively small organisation
but hardly a day goes by when we do not receive a referral from
someone associated with an educational setting (including the
private or voluntary sector), who strongly believes they have
been unjustly accused of misconduct or child abuse.
5.4 The fact that the number of complaints
made against school staff appears to be on the increase does not
necessarily mean that standards are falling. It is much more likely
that as we have become more child centred and education focused,
expectations have been raised, and a well established "culture
of concern" for children has encouraged individuals to express
dissatisfaction in circumstances when previously, they would not.
6. THE SCOPE
OF THE
PROBLEM
6.1 Generally speaking, teachers expect
to be complained about sometime in their career and regard "allegations"
as an occupational hazard.
6.2 As in other fields, the fear of being
falsely accused—especially of child abuse—is affecting
recruitment. For example, many children now pass through school
without being taught by a male teacher. The need for positive
male role models is essential, not only for a rounded education
but also for social development, especially in families where
an absent father has led to deprivation and indiscipline.
6.3 Senior staff and heads are also vulnerable
to complaints, particularly in schools where there has been a
recent change of head and some resistance to change. It is a sad
fact that we have conditioned people (including pupils) into believing
that the easiest way of getting rid of an unwanted teacher is
to complain about them. Pupils recognise this and openly talk
about this prospect.
6.4 Perhaps the most worrying trend we have
noticed in recent years is that female teachers are now being
accused of sexual abuse whereas this would have been unheard of
even three years ago. The reasons for this are not clear and may
simply reflect the fact that female teachers are now in the majority
in most schools.
6.5 Not all accusations relate to "in-school
behaviour". We have received a disturbing number of referrals
from teachers (mostly men) who, whilst socialising with family/friends
or alone, have come across a current (or former) pupil who later
accused them of improper conduct—often involving a sexual
element.
6.6 More recently we have had isolated referrals
from accused governors, administrative staff, teaching assistants,
ancillary staff, caretakers, taxi drivers and escorts, laboratory
technicians, and peripatetic sports coaches. All have maintained
their innocence. No one it seems is safe from the prospect of
complaint.
6.7 In the majority of instances the allegations
made have resulted in the person facing disciplinary action which
sometimes has taken several months to resolve. In almost every
case the person has been profoundly affected by the experience.
7. TO WHAT
EXTENT ARE
SCHOOL STAFF
SUBJECT TO
FALSE ALLEGATIONS
OF CHILD
ABUSE?
7.1 Whilst we would not wish to minimise
the extent of the problem or the impact false allegations have
on individuals and their families, we would caution against the
tendency to view all unsubstantiated allegations as false. Allegations
come in all shapes and sizes and are best viewed along a continuum
ranging from wholly true—to partially true—to partially
false—to wholly untrue.
7.2 We believe school staff, and teachers
in particular, are especially vulnerable to being falsely or wrongly
accused of misconduct. For reasons which cannot easily be explained
this simple truth is rarely acknowledged by employers, and even
less so by child protection workers. Both sides need to recognise
that some allegations are true, and some allegations are false.
8. NEED FOR
AN EVIDENTIAL
APPROACH
8.1 In our experience those accused of child
abuse are often left with the feeling that they have to prove
their innocence before they can be believed. This is not how British
justice works. A person is innocent until they are proven guilty.
The burden of proof lies entirely with the investigating officer.
8.2 It is particularly noticeable in cases
of alleged child abuse that the investigative bodies are less
inclined to take an evidential approach when deciding guilt or
innocence. In part this is due to a misguided sense of professionalism
which requires investigators to believe the complainant regardless
of the facts. "Why would the complainant lie, why would they
put themselves through this ordeal?"
8.3 It is also due to the low evidential
threshold that applies in such cases. In employment law, cases
are determined on the balance of probability. However, when challenged,
investigators are frequently unable to demonstrate how they weigh
in the balance conflicting or competing evidence, and how they
compute probability. Far too many confuse the theoretical possibility
that the person might have committed the acts alleged (because,
for example, they happened to be there at the material time) with
probability.
8.4 To compound matters the evidential threshold
in child abuse cases is based on "reasonable cause to suspect"
[Section 47 Children Act 1989]. This legitimises a process that
becomes belief driven rather than evidence driven with mere suspicion
being sufficient to warrant intervention and to find fault.
8.5 There is a need for a new ethically
based, evidence driven, approach to child protection.
9. SHOULD THE
GUIDANCE AVAILABLE
TO HEAD
TEACHERS, SCHOOL
GOVERNORS, POLICE
AND OTHERS
ON HOW
TO HANDLE
CLAIMS OF
IMPROPER CONDUCT
BY SCHOOL
STAFF BE
REVISED?
9.1 In recent years there has been a considerable
amount of guidance published by the Government on relevant websites
and through the usual Government channels. The problem is not
so much a lack of guidance but one of poor practice. In 2004 a
series of helpful documents were published including:
— Definitions and Thresholds for Managing
Allegations Against School Staff;
— Managing the Aftermath of Unfounded
and Unsubstantiated Allegations;
— Staff Subject to Allegations; and
— Guidance For Education Staff Facing
Allegations of Abuse.
9.2 These policies need updating as they
do not take into account recent changes in the role of the Criminal
Records Bureau, the General Teaching Council, the Independent
Safeguarding Authority, and other listing bodies. In our experience
the documents referred to above are not well known and their use
has been patchy.
10. THE CHILD
PROTECTION DIMENSION
10.1 There is a need to recognise that tension
exists between the need to promote the welfare of children and
the need to safeguard the right of the accused to a fair process.
In our experience this tension often skews the process right from
the outset.
10.2 When a person has been accused of child
abuse a strategy meeting is held in order that the professionals
present can exchange information and develop a strategy for ensuring
that the welfare of any child considered at risk is safeguarded,
and for managing any investigation that is considered necessary.
10.3 These meetings are an essential component
of an effective child protection policy but in recent years their
role has evolved (without Government sanction) into determining
whether or not the accused person is guilty or innocent of what
is alleged, even though that person may not have been told what
it is they are alleged to have done—let alone produce any
evidence in their own defence.
10.4 Once the die is cast it is very difficult
for employers to take a contrary point of view. Employers need
to recognise that the child protection system has over many years
persistently failed to develop procedures that correctly sift
truthful allegations from false ones. Untested information should
never be accepted uncritically.
11. THE ROLE
OF INVESTIGATING
OFFICERS
11.1 Not all the blame can be attached to
child protection workers. They are dammed if they do and dammed
if they don't. Employers also bear some of the responsibility
for their failure to identify false allegations and for miscarriages
of justice in disciplinary cases.
11.2 In our experience (of several authorities
throughout the UK) we have been struck by the lack of attention
given to the need to train people to conduct meaningful investigations
into alleged misconduct. Most investigative officers are selected
according to their status rather their experience, and not because
they have any real understanding of human rights, employment law
or the investigative process.
11.3 Investigative officers need to understand
that they should be impartial and that they have a responsibility
to examine the facts which, potentially, support the complaint
or allegation made, and a responsibility to examine the facts
which, potentially, point to the person's innocence. It is only
when they have considered both elements and evidenced that they
have done so, that they can truthfully claim to have carried out
a fair investigation.
11.4 In our view considerably more time
should be given to providing investigating officers with relevant
training.
12. WHEN IS
SUSPENSION OF
THE STAFF
MEMBER CONCERNED
APPROPRIATE?
12.1 In our view most schools/employers,
including those in the private or voluntary sector, have a good
understanding as to when suspension is appropriate. However, we
think there is a need to review suspension policies in light of
a recent Court of Appeal decision that "suspension is not
a neutral act and changes the status quo from work to no work
and inevitably casts a shadow over the employee's competence"
(Mezey v South West London and St George's Mental Health NHS
Trust [2007], EWCA Civ 106).
12.2 Teachers fully understand that when
an allegation has been made against them it must be fully and
competently investigated. What they find difficult to understand
is the lack of support they receive from their employers. Many
of those who are accused of sexual abuse also complain that their
trade union is, at best, ambivalent about providing them with
advice and representation.
12.3 Often the accused teacher is left in
the dark and is not sure who is driving the investigation—the
employer, social services or the police. They are invariably told
that whilst suspended "they must not contact their colleagues
at work"; a phrase which has a double meaning and has been
frowned upon by employment tribunals who rightly point out that
the accused has every right to contact anyone they believe has
evidence which might help establish their innocence. Employers
are of course entitled to control the contact during work time
but have no jurisdiction to prevent contact outside of work. To
do so would, arguably, be a breach of a person's human and legal
right to association, family life and a fair hearing.
12.4 All too often employers give very limited
explanations for suspensions. Typically, staff are told they are
being suspended as a result of "a child protection concern",
which, if they are innocent, they can only imagine. This can create
untold anxiety. Indeed it has on occasion led to suicide or parasuicide.
(In 2003 a North Wales classroom assistant committed suicide within
hours of being told he was being suspended, no reason being given,
believing wrongly that he was being accused of child abuse.)
12.5 It is very important that when staff
are suspended they are given support and kept informed of progress.
Equally it must be recognised that staff, especially when distressed,
need adequate time to prepare their defence, particularly in complex
cases. It is frankly not good enough when an employer takes several
months to prepare their case only to allow the accused two weeks
to prepare theirs.
12.6 Representation is also very important.
Under the present ACAS Code of Practice there is a statutory entitlement
for the accused to be represented by a colleague or trade union
official. Not all members of staff belong to a trade's union so
their only option is to ask a colleague to represent them. This
may not be appropriate, particularly if the employer has placed
restrictions on the contact that can take place between the accused
and other staff. Furthermore, being falsely accused of child abuse
is a shaming experience and most teachers would not wish their
colleagues to know the details of what they are supposed to have
done. We would very much hope that all employers will ensure that
no person is left without representation.
13. WHEN IS
THE ARREST
OF THE
STAFF MEMBER
APPROPRIATE?
13.1 In our experience the practice of whether
or not to arrest someone accused of child abuse, as opposed to
inviting them to attend a police station for questioning, varies
across police force areas. We think this matter could usefully
be referred to the Association of Chief Police Officers for further
discussion.
14. RETENTION
OF RECORDS
OF ALLEGATIONS
FOUND TO
BE FALSE
14.1 Notwithstanding the problems of defining
"false", the issue of record retention is problematic.
Some individuals may well prefer their records to be kept because
it may subsequently help them evidence their exoneration, and
also help evidence the fact that a particular individual should
be regarded as high risk in terms of making false allegations.
14.2 It has been suggested both by the Lord
Chancellor and CSF Departmental Officials that teachers should
not have any comments placed on their file if they are falsely
accused. However, given the profession's reluctance to accept
the notion that false allegations are made this is unlikely to
have any impact.
14.3 Others have suggested that the policy
should extend to all cases where a person has been found "not
guilty" of disciplinary charges. Whilst there are good "justice"
reasons why this should happen—its impact is likely to be
limited in the case of alleged abuse since the fact that an allegation
has been made is routinely recorded on an enhanced certificate
of disclosure issued by the Criminal Records Bureau which everyone
working with children is required to have. Neither will it get
over the routine question on many job application forms of "have
you ever been subject to a complaint concerning a child or young
person?"
14.4 In our view this problem can only be
resolved by a complete reappraisal of the law as it affects disclosures
made by the criminal records bureau and local police forces to
prospective employers.
May 2009
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