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HCR Law Events

16 July 2021

Keeping Children Safe in Education 2021: A briefing note on the new guidance

The Department for Education (DfE) has now published Keeping Children Safe in Education 2021 (KCSIE). The guidance will come into effect on 1 September 2021 and can be accessed here. In the meantime, schools and colleges should continue to have regard to KCSIE 2020.

In January, in conjunction with Harrison Clark Rickerbys, the ISBA published a guidance note setting out the proposed changes to KCSIE following the release of the draft guidance and the launch of the DfE’s consultation, the majority of which have now been incorporated. Some of the changes are those that were considered in the abandoned consultation last winter; however, some are new.

In addition to the updated KCSIE, the DfE has also published an updated version of the Sexual Violence and Sexual Harassment Between Children in Schools and Colleges (SVSH) guidance which will also come into effect from September 2021. Here is an overview of the changes to the SVSH guidance.

Schools will need to consider both pieces of updated guidance and ensure that their policies accurately reflect the new guidance in readiness for September.

We have summarised the key changes introduced in KCSIE 2021 below. The numbers in brackets refer to the relevant paragraph numbers of KCSIE 2021, for ease of reference.

 

Summary Section

There is an added bullet point to clarify that this guidance is also for senior leadership teams.

There is also an explanation that there is a new condensed Part One of the guidance at Annex A. The purpose of this is to provide governing bodies and proprietors the freedom to choose between the condensed Part One (at Annex A) where they think it will be appropriate for those staff not working directly with children.  Staff who work directly with children should read at least Part One.

 

Part One – safeguarding information for all staff 

  • Clarification that child protection policies should also include procedures for dealing with peer on peer abuse (13)
  • A new paragraph (18) emphasising that school staff must support the victim when they raise a concern. Specifically, all staff should be able to reassure victims that they are being taken seriously and that they will be supported and kept safe in relation to reports made. The updated Part One also makes clear that victims should never be made to feel ashamed for making a report of abuse, sexual violence, or sexual harassment, nor should they be given the impression that they are creating a problem by making the report.
  • The safeguarding issues section (31) updated to include reference to the new UKCIS guidance on the sharing nudes and semi-nudes images (available here).This replaces the sexting advice.
  • New additional information about Child Sexual Exploitation (CSE) and Child Criminal Exploitation (CCE) (32 – 39), to include information regarding indicators and how children can be exploited emphasising the difference in experiences of CSE/CCE between boys and girls. Further information has also been included at Annex B.
  • There is new additional information added on CSE which makes clear that it is a form of child sexual abuse and what it may involve (36-39).
  • Updated guidance regarding peer on peer abuse (46 – 50). Part one now emphasises that all staff should be clear as to the school’s policy and procedures with regards to peer on peer abuse (13). Part one also stresses the importance of staff recognising the signs of peer on peer abuse and the importance of knowing how to respond to reports. Further information has also been included at Annex B.
  • Additional information added (51-52) to further clarify the risk factors which increases the likelihood of involvement in serious violence.
  • Acknowledgement that children may be harmed outside the home and that this should be considered as part of contextual safeguarding for social care assessments. Emphasis placed on schools to provide as much information as possible in the referral process to allow for a better contextual approach (63).
  • The existing section on record keeping (71-72) has been updated to clarify that records should always include a clear and comprehensive summary of the concern, details of how the concern was followed up and resolved, and a note of any action taken, decisions reached and the outcome.

 

Part Two – the management of safeguarding

  • Where a school has charitable status, Part two (79) now recognises that due regard must also be given to the Charity Commission guidance on safeguarding (available here).
  • A new section introduced “Whole school and college approach to safeguarding” (82 – 83) to emphasise the importance of facilitating a whole school approach to safeguarding. This means ensuring safeguarding and child protection are at the forefront and underpin all relevant aspects of process and policy development.
  • Child centric approach to handling concerns strengthened to require schools to have systems in place that are well promoted, easily understood and easily accessible for children to confidently report abuse (83). Children should also know that their concerns will be treated seriously, and that they can safely express their views and give feedback.
  • Reference to peer on peer abuse and reporting systems as well as additional information schools and colleges should include in their child protection policy (85).
  • Clarification on the school’s right to share, hold and use information in relation to safeguarding by emphasising that information sharing is vital in identifying and tackling all forms of abuse and neglect, and in promoting children’s welfare, including their educational outcomes (105).
  • New paragraphs added on the importance of online safety training for staff and the requirement to ensure children are taught about safeguarding, including online safety (117 – 118).
  • Links to useful DfE guidance now included on topics such as mental health, bullying and behaviour in schools.

Online safety

  • Extension of safeguarding training for staff to include online safety training. Schools should also ensure that this safeguarding training (including online safety) is integrated, aligned, and considered as part of the whole school safeguarding approach, including in curriculum planning to ensure that both children and staff are taught about safeguarding.
  • New section (123 – 135) now included regarding online safety, which was previously located in Annex C. Part two now sets out substantial guidance including remote learning, filters and monitoring, information security, cyber-crime, reviewing online safety provision and information and support. This includes reference to the fact that schools may wish to restrict access to mobile devices in school in acknowledgement of the fact that children have “unlimited and unrestricted access to the internet” which may facilitate abuse in school. It is also now clear that the school’s policy on mobile and smart technology should be reflected in its child protection policy (126).

Peer on peer/child on child abuse

  • The title has been changed to make it clear that peer on peer abuse is child on child abuse. It is emphasised that the child protection policy should reflect the whole school approach to peer on peer abuse and should include policies and procedures for dealing with peer on peer abuse (145). Reference to this is also made in Part One of KCSIE 2021 (13). Child protection policies should also be updated to acknowledge that the school recognises that, even if there are no reported cases of peer on peer abuse, such abuse may still be taking place and is simply not being reported. The child protection policy should include a statement which makes it clear that there will be a zero-tolerance approach to abuse.
  • A new section (146 – 149) for boarding schools and residential schools and colleges acts as a reminder to proprietors and staff that there are additional factors to affect safeguarding in these settings, including opportunities and vulnerabilities for peer-on-peer abuse, and inappropriate staff/pupil relationships.

Non-school activities on school premises

  • A new section has also been included to clarify who is responsible for safeguarding in relation to non-school activities on site. Ultimately, KCSIE 2021 (155-156) confirms that if it is an activity under the supervision of the school, their safeguarding policy will apply. If it is organised by a third party however, the school must instead seek an assurance that the organiser has child protection procedures in place. KCSIE also goes further to say that the safeguarding arrangements should be included in any lease or hire agreement as a condition of use and occupation of the premises; with the stipulation that a failure to comply with this would lead to termination of the agreement.

 

Part Three – safer recruitment

  • The whole of Part Three has been substantively restructured to align it with a typical recruitment process and to emphasise an overarching culture of vigilance, rather than sole reliance on pre-employment checks. The legal duties for schools contained within it have not changed, but some aspects of the recruitment process have been suitably clarified with practical details and examples of points to note. Schools should read the entirety of the restructured Part Three to ensure they are compliant.
  • Importantly, Part Three has clarified that it would be best practice for schools to check the name on a candidate’s birth certificate, where this is available, as part of pre-employment screening. This would assist in identifying where there has been a name change and allow for more thorough vetting (213).
  • There is a new section on shortlisting (198) which makes it clear that shortlisted candidates should be asked to complete a self-declaration of their criminal record or information that would make them unsuitable to work with children to give candidates the opportunity to discuss their disclosure with the school before a DBS check is obtained (198 – 202). This has clarified the inconsistency in guidance between the DBS and ICO positions where it was previously unclear whether obtaining self-disclosure of criminal records in addition to a DBS check was considered excessive. The guidance includes details as to the number of staff who should carry out the shortlisting as well as their ongoing role in the recruitment process.
  • Further clarification as to when it would be appropriate to obtain a separate barred list check has also been included (229).
  • Guidance on how to check teacher status as well as prohibitions, directions, sanctions, and restrictions has also now been included. Clarification has also been included on who would be considered to be involved in the management of an independent school for the purpose of requiring a section 128 check (238).
  • KSCIE 2021 has been updated to reflect the change in rules regarding checks on overseas candidates that came into effect in January 2021. In short, schools must make any further checks they think appropriate so that any relevant events that occurred outside the UK can be considered, and that the same approach should be followed for any individuals who have lived or worked outside the UK, regardless of whether or not it was in an EEA country or the rest of the world. Information on what to do where overseas information is not available is also included (264).
  • In relation to contractors, KCSIE 2021 confirms that schools should set out their safeguarding requirements within the contract between the school and the organisation (272).
  • Further guidance has also been set out regarding the necessary checks on visitors and volunteers (281 – 294).
  • For providers of post-16 education – the Education and Training (Welfare of Children) Act 2021 has now extended safeguarding provisions to providers of post 16 education (including 16-19 academies, special post-16 institutions and independent training providers). Providers must familiarise themselves with the applicable legislation as some of the safer recruitment “musts” set out in KCSIE are not compulsory for these institutes; they are, however, considered “shoulds” as they represent best practice (212).

 

Part Four – allegations made against / concerns raised in relation to staff

  • The heading of Part Four has been expanded to include reference to ‘concerns’ as well as allegations.
  • Part Four has now been divided in two and now includes a distinct section on handling low-level concerns (i.e. concerns that do not meet the harms threshold) (406 – 427). This has been introduced following the overwhelming feedback given during the DfE’s recent KCSIE consultation. Section one is for allegations that may meet the threshold and section two is for low level concerns. This new section (two) includes guidance as to what a low-level concern is, making the link between low-level concerns, what to include in the staff code of conduct and safeguarding policies, and guidance on recording and sharing information with relevant parties, including whether this information should be included in references. It is important to remember that, whilst section two has given some examples of the types of behaviour that may be considered a low level concern because they don’t meet the harms test (410), they are still likely to be behaviours that would amount to disciplinary action as a breach of school policies, not least the staff code of conduct.
  • Section one includes detail on the importance of schools and colleges understanding local authority arrangements for managing allegations and the balance of conducting basic enquiries, being careful not to jeopardise any future police investigation.
  • Section one also includes a new paragraph (353) that where there is a lack of appropriate resource within the school or college, or the nature of the allegation requires it, the allegation will require an independent investigator.
  • The guidance also includes non-exhaustive examples of typical behaviour which may amount to a low-level concern (410), including being over friendly with children; having favourites; taking photographs of children on their mobile phone; engaging with a child on a one-to-one basis in a secluded area or behind a closed door; or, using inappropriate sexualised, intimidating or offensive language.
  • Schools should set out their low-level concerns policy within the child protection policy or staff code of conduct
  • A new paragraph (384) has also been included (confirming that schools must consider whether to make a referral to the Secretary of State (via the Teaching Regulation Agency) where a school ceases to use the services of a teacher because of serious misconduct, or might have dismissed them or ceased to use their services had they not left first. This duty applies equally to agencies (for example, supplying supply teachers).

 

Part Five – child on child sexual violence and sexual harassment 

  • Updated to remind staff that KCSIE 2021 should be read alongside the latest SVSH guidance (available here). Part five has also been updated to reflect this guidance.
  • Part five now refers to four likely scenarios for schools to consider when managing any reports of sexual violence and/or sexual harassment, emphasising that it will be important in all scenarios that decisions and actions are regularly reviewed and that relevant policies are updated to reflect lessons learnt (452). Schools should look out for potential patterns of concerning, problematic or inappropriate behaviour, and then decide a course of action considering whether there are wider cultural issues within the school that enabled the inappropriate behaviour to occur.
  • New paragraph (441) which highlights that staff should be aware that knowledge of abuse may not come from a direct disclosure, but that it may be that staff overhear a conversation or it may be apparent from a change in the child’s behaviour.
  • Inclusion of a new paragraph (436) that emphasises the impact of schools not recognising, acknowledging, or understanding the scale of harassment and abuse. Refers to the fact that downplaying some behaviours related to abuse can lead to a culture of unacceptable behaviour, an unsafe environment and, in worst case scenarios, a culture that normalises abuse may result in children not reporting incidents. The guidance has also emphasised that how a school responds to an initial report is crucial in either encouraging or undermining further disclosures.
  • A new section on how to handle unsubstantiated, unfounded, false, or malicious reports, including how to record them (453 – 455).
  • Signposting added to support services for the resulting health needs of a child following an incident of abuse, including pregnancy, mental health and sexual health concerns and a reminder that the school has a duty to support all children involved, including the perpetrator.

 

Annex A – safeguarding information

  • A new condensed version of Part One of KCSIE 2021 can now be found at Annex A. This version can be provided (instead of Part One) to those staff who do not directly work with children, if the governing body or proprietor think it will provide a better basis for those staff to promote the welfare and safeguard children.

 

Annex B – further information

  • Significant updates have been incorporated to the guidance regarding CCE and CSE.
  • More in depth guidance regarding issues such as modern slavery, county lines, peer on peer abuse and preventing radicalisation.
  • Significant updates to the domestic abuse section have been introduced in KCSIE 2021, to reflect the introduction of the Domestic Abuse Act 2021 on 29 April 2021. This section now reflects the first ever statutory definition of domestic abuse and acknowledges the impact of domestic abuse on children. It also makes clear that children can be the victims of domestic abuse in their own relationships.
  • Sexual violence and sexual harassment section updated to bring in line with the updated SVSH guidance (July 2021).
  • A new cyber-crime section has also been added explaining the types of cyber-crime that may occur in a school setting. This section emphasises the risk that children with a particular skill and interest in computing and technology may inadvertently or deliberately stray into cyber-crime. References to external support agencies, including the NSPCC and the National Cyber Security Centre are also included.

 

Annex C – role of the Designated Safeguarding Lead

  • More guidance and clarity over the role of the DSL has been included within KCSIE 2021.
  • Annex C now includes a new section on information storage and information sharing duties, in particular, when a concern has been raised about a child.
  • There is also an emphasis on the DSL/DDSL working collaboratively with external agencies so that children’s needs are considered holistically.
  • Shift in focus to ensuring that the school is aware of which children have, or have had, a social worker and to work towards ensuring that the school is maintaining a culture of high aspirations for this cohort and that the school is supporting the cohort to reach their potential, recognising that even when statutory social care intervention has ended, there is still a lasting impact on children’s educational outcomes.

 

Annex D – online safety

  • The bulk of online safety guidance has now been moved to Part Two to emphasise that the management of online safety sits alongside, and should be considered with, broader safeguarding requirements and approach of the school.
  • Annex D has however been updated to include additional online safety resources such as the Department for Digital, Culture, Media & Sport (DCMS) Online Safety Guidance and A Business Guide for Protecting Children On Your Online Platform.

In the usual way, we anticipate there may be some minor tweaks to KCSIE 2021 between now and September. The ISBA template Child Protection/Safeguarding Policy, the accompanying checklist and the guidance notes will shortly be updated by us to reflect these changes to ensure that they are up to date in readiness for implementation and staff training at the start of the new academic year and before 1 September. A track change version will also be available from the Reference Library if you wish to update your own school or college Child Protection Policy at this time.

The template Safer Recruitment pack will also be updated shortly to reflect the above changes, in readiness for recruitment season.

 

 

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About the Author
Kristine Scott, Head of Education and Charities Sector, and Cheltenham Office

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