Memorandum submitted by Andrew Walker
EXECUTIVE SUMMARY
— Staff of EBD Special Schools (Emotional
Behavioural Difficulties) experience a higher incidence of allegations
due to the nature of the difficulties the children are experiencing.
Children in these schools are not naughty, they have serious medical
and social problems. — Guidance concerning allegations
against Staff at EBD Special Schools must include arrangements
that take into account the specific difficulties faced by school
staff, in particular the increased risk of false allegations.
— The formal meetings within the child protection processes
must include the opportunity for the Headteacher of the accused
staff member to be supported by a School Governor. Where the Headteacher
is accused, there should be the provision of independent support
for the Chair of Governors.
— The timescales for the investigation
process for providing the evidence for any remedial or disciplinary
action need to reduced. The first Strategy Conference should be
held within 36 hours of the acusation, irrespective of working
days or working times.
— The current guidelines identify "Suspension"
of the accused as a neutral event. It is not; it has multiple
side effects on the school and can be what the child making the
accusation sees as a "win", which then becomes a threat
to other staff. In this case, suspension is not in the best interests
of the child nor of the other children in the school.
— Alternatives to suspension must be
available to the authorities involved and explicitly identified
as possible alternatives for consideration in every case.
— The current definition of outcomes
needs revision to include a category between "malicious"
and "unfounded". This new category is needed because
there are occasions where the child may believe the accusation,
but it can be shown that the incident could not have taken place.
— Where an allegation is subsequently
proven to be false, malicious or unfounded, consideration must
be given to introducing a facility to remove an allegation from
the record of the accused.
— Much more consideration needs to
be given to the possible actions to be taken with the child in
cases of false accusations.
The nature of allegations of improper conduct
made against school staff
1. The pupils attending EBD (Emotional and
Behavioural Difficulty) Special Schools are severely damaged by
their life experience and often have inappropriate knowledge that
is beyond their physical years. In addition, they lack an understanding
of social norms.
2. Extensive staff experience suggests that to
some EBD pupils, making an allegation against an adult is a way
of gaining power over their environment. Therefore, the reaction
to the accusation may be more important to them than the accusation
itself.
3. It should be noted that staff in EBD
Special Schools are frequently subjected to physical attack by
the children and the approved "Team Teach" form of de-escalation
techniques do include the appropriate techniques of physical restraint.
Some allegations have been made by people observing the use of
these restraint techniques.
4. The revised guidance must recognise the
extra risk of potentially false allegations that are inherent
in educating these children with Emotional and Behavioural Difficulties
that attend these EBD Special Schools.
The scale of allegations of improper conduct made
against school staff
5. It is difficult to obtain information
about the number of allegations against school staff as the outcome
of such allegations is confidential. Furthermore, whatever the
outcome for the staff involved, they prefer to move on beyond
what is a traumatic experience.
6. The situation in EBD Special Schools is equally
difficult to identify, but confidential research within the EBD
schools in this county shows that one accusation against a member
of staff or a head is received on average every 18 months.
7. We have attached a confidential[1]
appendix on the 15 allegations made in our own Primary BESD Special
over the past 14 years.[2]
Of these, nine have subsequently been proved to be false by confession
of accuser or their parent (three of these may have been malicious),
four were defined after in depth investigation as "unfounded",
one was withdrawn by the parent and a recent case has just been
concluded as unfounded.
8. There needs to be a record of the number
of allegations against staff with particular reference to education
phase and type of school. This needs to be supported by a record
of outcomes against agreed definitions.
Should staff subject to allegations remain anonymous
while the case is investigated
9. Under current arrangements, staff may
not even know that they are under investigation. This is intended
to limit the opportunities for tampering with potential evidence
in the event of a police enquiry. In effect, this only serves
to prolong the internal investigation.
10. In practice, as soon as a member of staff
is suspended, questions are asked about the reason. Officially,
the anonymity might be retained for a short period, but in a small
community like a school, other staff and parents find out who
is being interviewed and draw their own conclusions. Furthermore,
anonymity cannot be maintained when witnesses are sought.
11. In a school community, it is frequently
the children who discuss the accusation, especially if a suspension
is involved. In one case, a seven year old was heard saying "I
will get you suspended" to the Headteacher.
12. The preservation of evidence is essential
if a police investigation is required, but the requirement for
this investigation should be identified or discounted by the First
Strategy Conference.
13. The name of anyone under investigation
should be disclosed if any action is taken within the school,
and the progress of any investigation should be reported to the
staff. The details of the accusation should remain confidential
in order to protect the evidence.
Guidance on the procedures to be followed by disciplinary
panels
14. The current guidance calls for a formal
Strategy Meeting at the earliest opportunity in order to consider
a course of action. Our experience is that the outcome of this
meeting is predisposed to suspension of the accused.
15. However, the effect is that the accused is
tried in their absence, and then "imprisoned" in a "suspension"
without even being told the nature of the allegation. This seems
contrary to natural justice.
16. The current guidance includes a facility
for the employer to provide counselling and support to anyone
under suspension, but these "counsellors" are required
to report to the investigating team anything that might be of
relevance to the investigation.
17. The investigation then proceeds with
the Local Authority as Investigator, Prosecutor, Judge, Clerk
and Jury. Occasionally, an external "independent" investigator
may be appointed. From our own experience and other research,
external investigators used by Local Authorities, tend to be drawn
from organisations that are built on a presupposition of adult
guilt, or are ex-employees of the commissioning authority.
18. We have found within our own county
that "confidentiality" and "data protection"
is used to prevent the distribution of evidence to the accused
or their representative. Therefore the accused is unable to challenge
any evidence or its interpretation. The same terminiology is also
used to obscure any assessment of the probity of the Local Authority
actions after the event.
19. Unfortunately, the only people with
sufficient experience to raise a concern about the probity of
the process are those least able as they have either been dismissed,
or returned to work and dependent on the Authority to retain work.
Even where an industrial tribunal finds unfair dismissal, there
are no arrangements for holding the Authority to account for its
actions.
20. The revised guidance should include
an extended list of those allowed to attend the Strategy Meetings
as follows:
(a) where an accusation is made against a member
of staff, the Headteacher attending Strategy Meetings panels should
be supported by a Governor of the school; and
(b) where an accusation is made against the Headteacher,
the Chair of Governors should be supported by an experienced Chair
of Governors or a representative from a Governors' Association.
21. The revised guidance should provide
for a wholly independent counsellor to any accused. This should
be in addition to the support given by their Trade Union Representative
as part of any disciplinary process.
22. Any external investigation should be
commissioned by the governing body of the school and report should
be delivered to the governing body.
23. The revised guidance should include
the facility to review the processes followed by the Local Authority
and the quality of advice it provided.
24. To support effective investigation,
the guidance needs to include reference to the retention of CCTV
and any other IT evidence, and the protection from accidental
erasure or potentially unhelpful editing.
The guidance on when suspension of the staff members
25. Contrary to the statement in the current
guidelines, "suspension" is not a "neutral act".
26. Suspension of the staff member is currently
seen as the only possible response to an allegation. Where the
allegation is false, the effect of the suspension is to achieve
the goal of the accuser.
27. In EBD Special Schools there is a higher
risk of allegations because of the circumstances of the children's
lives. Following careful consideration of the 15 allegations in
our school, we believe five were misplacement, three were possibly
malicious, six were unfounded, and one was withdrawn by the parent
when they found the child was not telling the whole truth.
28. In all these cases, the use of suspension
had not helped the child:
(a) with the malicious accusations, suspension
has provided these children with a power over the staff;
(b) with misplacement; the suspension has focused
attention of the school environment and masked the home environment
from any investigation; and
(c) where the allegations were unfounded, suspension
has still undermined the confidence of the staff dealing with
these very difficult children.
29. Overall, any suspension undermines the
best interests of all the pupils. Even one or two day suspensions,
cause a deterioration of all the relationships within the school.
30. The revised guidance as applied within
Special Schools must:
(a) include reference to the assessment of the
risk of false allegations;
(b) provide for flexibility in the initial response
depending on the nature of the allegation; and
(c) recognise suspension as a last resort rather
than the first and only action possible.
The retention of records of allegations found
to be false
31. Currently, all allegations remain on
the personal records of the staff involved whatever the outcome.
Even where other parties have been identified as causing the injuries
alleged to have been caused by the staff member, the record of
the accusation remains on their personal record.
32. Any revisions to the guidance must include
the facility for any staff member to require all accusations proven
to be false, unfounded or malicious be removed from their personal
records.
33. There are children who have been risk-assessed
by various professionals as having a potential to make false or
malicious allegations. Such risk-assessments should be recorded
alongside any allegations retained on personal records
34. The records of all actions related to
an accusation should be available to the accused upon request.
Currently, these records are "confidential", thus preventing
the accused from knowing all the evidence being considered against
them.
May 2009
1 This is confidential as it might be possible to identify
the children, the staff or the school from the data. Back
2
Not printed. Back
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