Safeguarding – legislation and regulation

In my last article, I set out the case for organisations working with children to ensure that their safeguarding policies, systems and practices are robust. These policies involve both minimising the risk of harm to children, which may be caused through contact with the organisation, and regulatory, financial and reputational risk. This article is intended to set out the legislative background and regulatory regime around safeguarding. It also looks at some of the steps which organisations can take to bring about a safer environment for children in their care. 

Legislative history

In 1889, the Prevention of Cruelty to, and Protection of, Children Act gave the state for the first time the power to intervene in relations between parents and children. The Children’s Act 1908 introduced the registration of foster parents, while the Punishment of Incest Act in the same year made sexual abuse within families a matter for the state rather than clergy. The Children Act 1948 introduced the concept of a childcare service, establishing a children’s committee and a children’s officer in each local authority and imposing a duty on local authorities to receive into care any child whose parents could not care for him/her adequately. 

In 1974, following the murder of Maria Colwell by her stepfather, the Maria Colwell Report led to: the creation of Area Child Protection Committees to better coordinate how different local agencies and professionals work together; inter-agency child protection conferences to consider specific cases; and child protection registers to identify children at risk. 

In 1989 the Children Act created a duty (section 17) on the local authority to provide services to children in need in their area, and (section 47) to undertake enquiries if they believe a child has suffered or is likely to suffer significant harm. It was at this time that the first iteration of the Working Together to Safeguard Children guidance was issued – guidance which has been reissued and revised since that point right through to the 2018 version recently published.  

In 1991, Area Child Protection Committees were required to conduct an investigation to establish when child abuse was suspected or confirmed to be the cause of a child’s death. This was the forerunner of today’s Serious Case Review. In 1999, the Protection of Children Act was passed, requiring childcare organisations to inform the Department of Health about anyone known to them who was suspected of harming children or putting them at risk. 

Following the Laming Report into the death of Victoria Climbié in 2003, the Children Act 2004 was passed, mandating that each local authority appoint a children’s director and that Statutory Local Safeguarding Children’s Boards (LSCBs) replace Area Child Protection Committees. Following another tragedy, the murder of Holly Wells and Jessica Chapman by their school caretaker Ian Huntley, the Bichard report in 2004 led to a number of changes in the area of safer recruitment, including references, statutory checks and information-sharing about concerns relating to adults working with children.  

But the legislative infrastructure of safeguarding is constantly evolving. The most recent legislation is the Children and Social Work Act 2017 under which LSCBs are being abolished. They are being replaced by ‘local safeguarding partners’, as well as a national Child Safeguarding Practice Review Panel. These partners will include local authorities, chief officers of police and clinical commissioning groups. They will make their own arrangements regarding leadership, independent scrutiny and funding, and, at least annually, will publish reports which will be ‘a key element of local accountability and self-assessment’.

Meanwhile, the Child Safeguarding Practice Review Panel will be appointed by the secretary of state for education. From the time these provisions begin, the safeguarding partners have 12 months to make arrangements. During this time, LSCBs must continue to carry out their statutory functions until the safeguarding partner arrangements have been established. If there is an ongoing Serious Case Review, LSCBs have an additional 12 months from the time that the safeguarding partners begin to operate to complete and publish it. 

Regulatory regime

If the above sets out the legislative framework, it is essential to understand that many of the detailed duties which fall on organisations derive from the regulatory regime covering their particular sector. So, schools for example are required to comply with the statutory guidance in the form of Keeping Children Safe in Education, and they are inspected on compliance by Ofsted. Heath and social care services are subject to their own guidance and are inspected by the Care Quality Commission. Local authority children’s services are subject to statutory guidance and inspected by Ofsted. Charities are regulated by the Charity Commission, which sets out safeguarding requirements for all charities. Some organisations will therefore be subject to multiple statutory regimes – for example a charitable school or hospital.

Other organisations, for example sports clubs, have not until now been subject to specific statutory guidance, but are often subject to their national governing body minimum safeguarding standards, on which they are inspected. Certain organisations may be subject to safeguarding service level agreements put in place by (for example) donors or funders. Then there are those who have no regulatory or inspection burdens at all and are left to their own devices in doing what they think makes sense to meet their common-law duty of care. 

In summary, the regulatory burden on organisations varies hugely. The inevitable result is a higher degree of consistency in those organisations which are regulated and inspected, and a greater variety of approaches in those organisations which are not. It does not follow that regulation plus inspection equals safe – nor the converse. But there can be no doubt that regulation and inspection have created a sea change in safeguarding across many sectors in the last 20 years. 

Safer environment for children

For anyone wanting to understand better the types of environment in which abuse within an institutional setting has been found to occur, read the work of Marcus Erooga in two NSPCC publications from 2009 and 2012, aptly named Towards Safer Organisations and Towards Safer Organisations II.

Erooga (and in the 2012 study his co-authors Debra Allnock and Paula Telford) make important points. Most abusers do not have criminal records – so while criminal checks are important, never regard them as a panacea. Similarly, organisations should not make the mistake of pigeonholing offenders. While ‘preferential’ offenders such as Jimmy Savile exist who have a predisposition to abuse and seek out roles which provide access to children or vulnerable adults, they are thankfully relatively rare. Erooga’s research, which has involved interviews of institutional child sex offenders, highlights the more common risk of the ‘situational offender’ – someone with no conscious or subconscious sexual attraction to children but who has reacted to their environment and gone on to offend against a child. As Erooga puts it, ‘the motivation for crime is supplied by the situation and the offence may represent an aberration in an otherwise law-abiding life. Situational offenders generally have no other criminal involvement and their offending will be a relatively isolated event, often committed as a reaction to cues’. 

Erooga illustrates this by a quote from an offender whose sense of isolation contributed to the environment in which she offended: ‘To me I think the main factor in my offending was the sense of isolation I had in that school… Partly because of how the department was and how people didn’t seem to interact… and also… physically it was sort of on the corner of the site… But any issues that arose… I didn’t know who to speak to about them, I didn’t feel I could talk to my head of department.’ 

Any steps to creating a safer environment therefore must involve creating systems which not only limit the chances of preferential offenders securing or remaining in work, but also reduce the likelihood of situational offending. 

Erooga illustrates with a quote from another offender just how much impact an organisation’s culture and systems can have on reducing the risk of abuse. This quote comes from an offender who was known to have offended in two separate organisations but not in a residential children’s home where he had worked. As Erooga notes, ‘having been through a treatment process during a lengthy custodial sentence, he was able to reflect on his own behaviour – and attributed the change to his pattern of offending in the home to a positive child-centred organisational culture and adherence to expectations of staff behaviour’: ‘I think they just had good staff and good rotas, there was always lots of people about… I just can’t imagine looking back at it that you would ever have asked if you could (take kids out) – it wouldn’t have been part of the norm… you know it’s all the same things – there was boundaries, professionalism…’

Creating or simply maintaining this safe environment is not easy and it involves a great deal more than introducing policies and procedures. The types of solutions which have been applied across sectors include:

• A code of conduct which establishes clear boundaries and with which all individuals working in an organisation, from most senior to most junior, are expected to comply.
• An open culture where victims, their colleagues, witnesses – or anyone who just senses something is wrong – feel able to share concerns of inappropriate conduct, from the most serious allegations to lower level concerns. 
• Policies and procedures which entrench all of the above. 
• A system and culture of governance which ensures management fully implements safeguarding systems and no one is ever left unaccountable. 
• Employment practices which ensure that individuals found to have committed serious misconduct of this nature are dismissed and their references for future employment reflect that. 
• A protocol whereby statutory authorities are informed promptly when they need to be. 

Conclusion

Any lawyer advising clients on safeguarding therefore needs to understand the overarching legislative structure, the relevant regulatory regime, and some of the safeguarding fundamentals outlined above in order to advise clients not only on how to achieve compliance but also to go beyond simple compliance in creating a safe environment for children. There can be little doubt that the Independent Inquiry into Child Sexual Abuse and the light which it will shine on past institutional failings will lead to further significant legislative, regulatory and cultural change – but in light of the seriousness of past failings that can only be a good thing.