Allegations Against School Staff - Children, Schools and Families Committee Contents

Examination of Witnesses (Questions 20-35)


17 JUNE 2009

  Q20 Chairman: That doesn't exist any longer?

  Amanda Brown: It does exist, but there are so many different documents and so many layers of different documents: you have national guidance, you have local authority guidance, you may have clusters of local authorities with different guidance, and then you will have maybe a school-level child protection scheme and policy. It would be very useful if there was one place—a guide that a head teacher can pull off the shelf immediately if there is a problem.

  Q21 Annette Brooke: Obviously there are a lot of players in this. You have explained to us how complicated it is if the parent goes to the police, but is there a case for clarifying who has the lead role when it is clearly—let us say—a serious child protection issue? Should it not now be the local safeguarding board that takes it on? I say that because, while we are referring to local authorities, that is probably fairly straightforward with maintained schools, but a foundation school or an independent school might not necessarily accept the same leadership from the local authority. I just wonder who should really be getting a grip on a case locally, having the lead role and making sure that everything follows through properly on a complaint that is clearly serious has to be fully investigated.

  Amanda Brown: First, local authorities do have the responsibility for child protection within their whole area, even if the school is an independent school. Although that does not always happen—again this is an issue of the disparity between what should happen and what does happen—they do have the technical responsibility for it. Local safeguarding boards have a very important role to play to ensure that everybody is doing their own part of that process. There are different agencies with different roles in the process, so the local safeguarding board can check that everybody is doing what they are supposed to be doing, rather than doing the work itself. Because there are those different procedures, it is right for the police and the social services to take their responsibility. We would like to see the school, perhaps with the local authority, given a little more scope at head teacher level to undertake its role, without the matter necessarily leaving the school. Obviously, there are contractual disciplinary issues that need to be taken into account. Every teacher in a maintained school will have a contract of employment with a local authority, so the disciplinary process will be within that context. They clearly have to keep that role, but you are right to say that the local safeguarding board should have an oversight of everything as it happens.

  Michael Barnes: It is not an issue of leadership, but one of competence. The real problem is that, when it comes down to a formal investigation by an employer, the investigative officers are not well placed or well trained to carry out an independent investigation. There are lots of reasons for that, one of which is that in a sense, the process has already been hijacked—I think you will understand what I mean by that. First, in many cases, there is likely to be a police investigation, and obviously that has to take priority. Secondly, there is likely to be a child protection investigation, and that will invariably start with a strategy meeting. At that meeting, guilt is very often attributed, even though not all the evidence is available and the person may not even know what they are accused of. The die is cast from that point. Employers need the confidence to obtain complete, independent scrutiny of all the facts and to act independently, regardless of previous inputs.

  Q22 Mr Chaytor: Let us pursue the question of independent investigators. Where do they come from? What sorts of people are appointed as independent investigators? Is it the case that they have only 10 days to carry out the investigation before reporting to the employer?

  Michael Barnes: The answer to that is no. Arrangements vary across the country, and that is part of the difficulty. An independent investigator might be appointed simply because the case involves the line manager, head teacher or whatever. As has been suggested, a case might be farmed out to an independent agency, child protection group or body of that sort. What is clear is that there is a great deal of confusion about the specific role of the independent investigator. I will give one illustration. In order for someone to demonstrate that they are an independent investigator, they are required to look at all the evidence that supports the allegation, alongside all the evidence that runs contrary to it. In my experience, it is rare for that second phase to actually take place. The train of thought is to look at evidence in order to find fault, which is grossly unjust.

  Q23 Mr Chaytor: What could be done to strengthen the nature of the investigation or the capacity of the investigators?

  Michael Barnes: We need to reassert the independence of that role. That is the first thing. There needs to be a specific code of practice that relates to investigative practice. Many people only deal with this a few times in their career. They learn as they go along and often, although not always, fundamental mistakes are made. Such mistakes are very difficult to recover from, so there needs to be an independent code of practice. There also needs to be wider recognition that on occasion, false, unsubstantiated or misleading allegations—whatever you want to call them—will occur. If we can accept both of those things, and admit in the same sentence that both false and true allegations are made—and if professionals can do the same—we will get a shift towards a more balanced view of the whole issue.

  Q24 Mr Chaytor: To pursue that point, perhaps I could ask Paul the question about anonymity, which can be quite controversial. Is it realistic to argue the case for anonymity up to the point of conviction, rather than the point of charging? Is it realistic, feasible or practical to do so?

  Paul Kaufman: Some participants in the court process are entitled to anonymity as matters stand. Teachers are not entitled to it, but it is something that can be practically achieved; it has been achieved in other areas.

  Q25 Mr Chaytor: What is the difference with teachers?

  Paul Kaufman: I support teachers being granted anonymity. As I said, complainants in, for example, rape cases are entitled to anonymity. There is no practical obstacle to ensuring anonymity throughout a judicial process.

  Q26 Mr Chaytor: Picking up the point that was made earlier about the rumour mill going into overdrive shortly after an incident—was it Julian's point? Isn't that in conflict what with Paul said about the practical possibilities of achieving anonymity?

  Julian Stanley: Anonymity is something people would desire. Whether it is possible to achieve, given the nature of schools, is potentially more difficult, but does that not again come back to how the matter is handled at the beginning of the process, and how it is being established? In a sense, from a lot of things that we heard today from unions, Teacher Support Network, and the experience of councillors, teachers and the people who have been through the process, to whom I have spoken, we know that things escalate quickly. What we are arguing for is almost a kind of calming-down process to be instilled in the police, with the powers that they have, and in training for head teachers and local authorities, to be able to investigate more thoroughly and appropriately at the beginning to avoid it getting out of hand. I agree, however, that once an investigation started, it would be difficult to maintain anonymity in a school environment, where things spread quite quickly.

  Chris Keates: There are two aspects, David, to the question you raised. A suspension, with someone being out of school, won't stop that rumour mill, and neither will anonymity. Anonymity was a big issue for us when investigations were taking months, and in some cases even years, before anything was done. The work that the DCSF did on the cases that we provided to them showed that the longer the investigation took, the more likely the case was to get into the media arena. Since investigations have been tightened up in the beginning, fewer cases have been exposed in the media, but that danger remains. Anonymity, from our point of view, is always about media exposure, which is a problem if there is a rumour mill in schools. Once you have been in the local press, you don't stand a chance, whatever the outcome is. That is the first aspect—anonymity. However, most teachers say to us, and our evidence shows, that the biggest issue now for teachers is the soft information—how it is recorded and passed on in CRB checks. That is now blighting careers, whatever happens.

  Chairman: Chris, there is a section on that next, so don't go there because we are dealing with it.

  Q27 Mr Chaytor: You brought up the issue of suspension. The guidance says that suspension should be considered where there is concern that a child is at risk of significant harm. Is that threshold always applied, or is suspension used too easily in cases where there are no grounds for leaving the principle behind?

  Chris Keates: Our view is that it is used too easily, particularly if you go back to the point that was made earlier. In those cases, we are talking about perhaps one incident of physical abuse, not about serious cases of potential sexual abuse. From working with our members, our evidence is that the outcome is still the same even though there might now be a greater period of reflection rather than a knee-jerk reaction. It is only recently—we have had two cases involving two local authorities—that not only has there been a suspension from the school, but there has been an attempt to ban those people from using public services, such as swimming pools, libraries and so on, because they were suspended from school. That is clearly an outrageous reaction, which undermines the idea of people being innocent until proven guilty. Fortunately, we have only had those two cases. I hope that practice does not spread. In law, suspension is a neutral act, but it is not viewed as that by either anybody who knows somebody who has been suspended, or the person who is subject to the suspension. The longer the suspension, the greater the effect it has on health, well-being, family life and potential to return to their career, whatever the outcome of the investigation.

  Amanda Brown: I agree with all of that completely. On top of that, the current guidance is that while someone is suspended, they should be told who they can contact at the school, who their contact person at the local authority is, how they are expected to deal with the fact that they may well bump into either pupils or colleagues from school and how that should be worked. They are supposed to be supported through that and given advice on any other counselling they may require by their employer. That does not happen. Often, they are told they can have absolutely no contact with anyone at the school and must not speak to their friends. We have teachers who are married to other staff members who are told they cannot have any contact with people from the school. Obviously, that is completely ludicrous. There will also be teachers with children at the school. Those are clear examples of how ridiculous that is, but it is also ridiculous that somebody who has been suspended for a particular issue should be told "You must have no contact." The impact on their mental health and feelings is that they have been isolated from everybody, they are considered a complete danger and must not be allowed out. When we are talking about allegations of which 95% are false, that is a significant impact on their mental health state and it is very unfair. That is partly to do with what is in the policies and procedures, but it is also to do with people not understanding how the process should be implemented.

  Julian Stanley: I spoke to a teacher and a head teacher who had been through these processes recently. They mirrored the comments from those who have called the Teacher Support Network during these processes. What they all talked about was the fact that during suspension they were not allowed to consider alternative types of work. Some of them had worked in schools where theoretically, they could have gone into local authorities and advised on policy, done other kinds of work, or been given things to do at home. That would have enabled them to have a sense that they were not guilty at the start, they were still going through a process and they were still professionals who might return to work. What should happen if you are suspended is critical, because, as stated, it is meant to be a neutral act. It is not viewed that way. To get back into work afterwards is particularly difficult. We would like to see the guidance improved by referring people on—not only to their unions, but for emotional support. You do have to work through a complex set of feelings and deal with your local communities, as well as the ramifications of being taken out of the school environment.

  Q28 Mr Timpson: May I return to the issue we touched on briefly at the start, about the recording of allegations? We have received written evidence that falls on both sides of the argument as to whether all allegations—unsubstantiated or not—should be recorded. You heard earlier from the Chair that the NSPCC takes the view that all allegations should be recorded, regardless of whether they have been proved or not, whereas the NGA takes the view that if an allegation has not been proved or is false, that should be the end of the matter. There is a wider debate about databases and what should be recorded, but in terms of information that is recorded about allegations—is there a justification for unsubstantiated allegations to be recorded and if so, why? Secondly, while you are thinking about that, if recordings of allegations are to be deleted, who should make that decision and at what stage of the process should that happen?

  Chris Keates: Particularly in the current climate in which we all work, and thinking about how issues work generally and how things are investigated under normal disciplinary procedures, you might have a disciplinary procedure, go through the process and find there was no case to answer. You would still have a record of that disciplinary procedure. It is difficult to argue that you would have no record at all. More important from NASUWT's point of view, is how these issues are recorded and, subsequently, how that information is used—when it is passed on, when it is not appropriate to pass it on and who is making that decision. A lot of work needs to be done on consistency of reporting in the various authorities—particularly in police authorities. In our evidence, we find the police are reluctant to say, "There is no case to answer." They will say, "There is not enough evidence to proceed," but that is actually much more pejorative in terms of being passed on than recording there is no case to answer. The Home Office has done a lot of work on this, but at the moment it is down to the discretion of police authorities, although there is guidance across all police authorities. We think the key is how something is recorded, how the investigation is put out, and what the outcome is.[2] There must be consistency about these recordings at school level, local authority level, in police authorities and in social services and—very important—about what then gets passed on for CRB checks. The climate in schools at the moment is such that if your enhanced disclosure does not come back completely clear, people won't take the risk of appointing you. If you are a teacher who has had an allegation made against you and you have been exonerated, that information is passed on, and your career will still be blighted. The focus should not be on whether information should be recorded, but how it is recorded and how and what is passed on.

  Amanda Brown: May I add to that? The Committee has a real opportunity now to deal with that problem. We have not talked so much about the reference material—the DCSF guidance on what should be passed on in references. There are two issues. One is about what should be passed on in references to new employers, and that comes direct from school, which again is about what information is kept. A real opportunity has been provided by the introduction of the Independent Safeguarding Authority, which has been set up as an independent body to consider whether or not people are safe to work with children. It will look at everything on the police record—conviction and soft information, whether that is the "brown envelope" information that people don't even know about, or otherwise disclosed soft information. The authority will consider whether or not there is sufficient information to say someone is unsafe. If so, it won't register them as able to join the work force. We think the missed opportunity is that the time to take away the unfairness is when employers—just at the point where they are deciding whether they are going to appoint someone to a post—see that disclosure and that soft information. They see the information the police have disclosed, because they feel they need to just in case it might be relevant, and it says, "An allegation was made. Insufficient evidence: no further action taken." That is factually correct. However, it leads everybody to read between the lines that this person is guilty of an offence. If only the Independent Safeguarding Authority sees that, it can say, "Actually, there is nothing here. We will investigate this, find out what the person has to say about it and decide whether or not we think they are safe." If they are safe, we say that information should no longer be disclosed to an employer, because it has no relevance, no weight. The only weight it would have, if disclosed, is entirely disproportionate because it allows the head teacher to think, "If I'm choosing between these two people, do I choose the person who has nothing on their disclosure, or the person whose disclosure says, `Well, just perhaps', because an allegation was made?" The Government and Home Office have said that they still want employers to see the full disclosure, despite the Independent Safeguarding Authority's deciding on barring. Their justification for that is that it is only right that a head teacher should see whether someone has a conviction, such as dangerous driving, if they are going to drive the school minibus, for example. We have absolutely no objection to employers seeing convictions. Our real objection is to the soft, unproven, potentially malicious allegations that have been made. Since that information will, from October, already have been through a process where an independent government body has looked at it and decided someone is safe, we see absolutely no justification for that being passed on to the employer. That is a real change that could happen now, and could really change the position not only for teachers but for everybody who has to be registered with the Independent Safeguarding Authority, which is something like 11 million workers in the UK in the health sector, local government and across the board. That is something that could be done now to completely change the picture.

  Q29 Mr Timpson: Does everyone agree with Amanda's view—correct me, Amanda, if I have got your interpretation wrong—that the ISA should in effect be the final decision makers of what should be on this CRB enhanced check supplementary information, where it is relevant to child protection? If not, how would we ensure that the police's use of terminology currently on those CRB checks is phrased in a manner that is not loaded in the way that Chris has suggested it is, and as it would appear at face value to be to me too?

  Chris Keates: I think that Amanda has identified a potential way of stopping information doing the rounds when there is no substance to it. However, that still does not remove the need for consistency of reporting, because you could still get a problem with the ISA and the information that is going to it. I certainly think the idea is worth exploring, but I still think that the fundamental issue is how things are recorded, what is recorded, who has access to it and where it is passed on. The key area—where we get most problems—is what is kept on police files where there have been investigations.

  Q30 Mr Timpson: Is this another area that would need more robust guidance?

  Chris Keates: We have been campaigning for this for a long time. [Interruption.] Sorry, we are so passionate about this particular issue. How this information is recorded and what gets passed on by the police is absolutely critical.

  Julian Stanley: I think that it is worthy of much further investigation. As Chris and Amanda correctly said, there is the whole business of who records what and what is finally decided. Consistency is all. A lot of teachers who talk to the support lines that we operate talk about the fact that they want to know what is going to be on their records and they want to be able to have some input into that process if they have been found to be innocent, because that is critical for their future career.

  Amanda Brown: That is a really important point, because quite often we have had members who have not actually appreciated what is on their record. We now have to advise people—in fact, we have to think about whether we advise them—that if they are thinking of changing from one post to another, they should think about seeking information from the police, using a data subject access request, to ask what is on their record first. That is because sometimes people won't know that it has been reported that an investigation has been carried out. They have not even appreciated that, because it has been dealt with at such a low level in school, but it has still been reported.

  Julian Stanley: I heard of a particular case where the police recorded stuff but people did not find out until much, much later when they applied for a new job. That was over something that was not significant in relation to their ability to carry out the work, which raises a big concern. We are all in agreement that we need some kind of criminal record checking, but there is this business of the lack of transparency about what is recorded by the police.

  Amanda Brown: We had a case where someone—

  Chairman: Amanda, you must be brief, as Paul has been waiting.

  Amanda Brown: I'm sorry. The person was unable to get another job as a teacher. However, he was accepted in the Metropolitan police. That is the effect of having that information disclosed; you cannot work as a teacher, but you can get a job in the police.

  Q31 Chairman: The report goes back to the chief constable in each area, doesn't it?

  Paul Kaufman: Yes. I wanted to identify the practical problem that has been touched on, which is that the teacher won't know what is on the CRB report, perhaps until they apply for another post, which might not be until, say, 10 years after the investigation. By that time, the solicitor's file is likely to have been destroyed—you only have to retain such a file for seven years—and the court transcript may also have been destroyed. So, in those circumstances, it is extremely difficult for a teacher who has faced a serious allegation to exonerate themselves.

  Chairman: We are biting into the next session, so please answer very quickly.

  Michael Barnes: In fairness to the police, they receive police intelligence, they make an assessment of that intelligence and they have a very good system for graduating that intelligence. The problem has occurred because issues that previously would not have appeared on an enhanced CRB now routinely do appear because of the Huntley situation—Soham. It may not be an issue for this Committee, but there needs to be an appeal process against information that is put on to the CRB, because at the present time it is entirely a matter for the chief constable. He has to make a judgment as to whether it is relevant and proportionate. If he believes that it is, he has a legal duty to disclose that information. In fairness to chief constables, as was said recently in the Court of Appeal, this is an issue for Parliament. It requires a change of law for the position to be changed.

  Chairman: That is a really good point. Paul, we missed something didn't we?

  Q32 Paul Holmes: On powers of arrest, Paul, you submitted some evidence suggesting that the police are too quick to arrest people—for example, if a teacher goes to give a statement voluntarily and is arrested. Do you want to elaborate on that?

  Paul Kaufman: The police don't necessarily appreciate the awful situation that a teacher will find themselves in having been the subject of a false allegation. Sometimes, the police simply don't appreciate the impact of arresting someone. It is something they do routinely in relation to other suspects, and they don't differentiate teachers from members of the public generally. Teachers are particularly vulnerable because they are asked on a regular basis to deal, in effect, with policing in schools, where they have to restrain pupils who are increasingly ready to use violence. In addition, some pupils don't believe that they can be touched by a teacher, and therefore assume that a teacher who has physically intervened has committed an offence, so teachers are frequently falsely accused of assault when they have in fact intervened.

  Q33 Paul Holmes: Constituents come to me when they have been arrested, perhaps after a neighbour dispute, and feel very aggrieved. They say, "It wasn't me, it was them, so why did they arrest me?" Can you really treat teachers differently to anyone else?

  Paul Kaufman: Yes. If the police were arrested every time a member of the public complained that they had been assaulted by a police officer, the police would be up in arms. It is now an occupational hazard for teachers, who are expected to intervene in difficult situations for health and safety reasons and so on, to be accused of using force by pupils and parents who are under the misapprehension that teachers are not allowed to—

  Q34 Paul Holmes: The NASUWT took a case to judicial review, and the police, just before it went to review, backed down and said, "Yes, this was an unlawful arrest." What will happen from there? Has that set a precedent?

  Chris Keates: No, it is influential rather than precedential because it didn't get into the High Court. We have taken two successful cases, and yesterday we had another one that we are going to take to review as well, because this is happening so frequently. It is a simple matter of the police being trained to apply the provisions of the Police and Criminal Evidence Act 1984 in relation to teachers and, I would say, generally, in relation to members of the public, although we only know about this in terms of teachers. The provisions are there and are absolutely clear, but they are not being applied. People are going in voluntarily and co-operating, and are then finding themselves being arrested and having their DNA taken. There is a real issue about the training of the police in these circumstances. I don't think it needs new legislation; it needs proper application of existing legislation in relation to teachers and other public servants.

  Q35 Paul Holmes: So, you are talking about code G of the 1984 Act, which says that the police must have reasonable grounds to believe that the person's arrest is necessary? Are you saying that they are clearly overstepping that?

  Chris Keates: We have won two cases—well, they have settled, as you said—which indicates to me that they recognised that they have breached that and were going to lose if they got to the High Court. As I said, we had another case yesterday with the West Midlands police, so that is two with them. The other case was with the Lanarkshire police.

  Chairman: Well, an Assistant Chief Constable will be sitting in your seat in a minute, Chris, so we will ask him. This has been a rapid session and you have been absolutely fantastic. I think we have the information we wanted. We will write this short report up. If you could maintain your contact with the Committee, we hope to make it a good, short, sharp report that will help you to make a difference on the basis of the facts that we have been discovering. Thank you very much.

2   Note by witness: The key is how something is recorded, what is recorded and what is passed on. Back

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