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HCR Law Events

7 December 2022

The report of the Independent Inquiry into Child Sexual Abuse: a brief guide to some of the key recommendations and next steps

Introduction

The Independent Inquiry into Child Sexual Abuse (IICSA) began listening to evidence and investigating allegations into child sexual abuse (CSA) in 2015. The final report of IICSA was published in October 2022 and includes a number of recommendations for implementation.

The purpose of this note is to look at some of the key recommendations and consider next steps for schools and colleges.

In summary, the findings of IICSA and the recommendations demonstrate a need for a wholesale change in how CSA is reported, responded to effectively and how it is tackled. This includes changing cultures both within and outside of organisations that interact with children and include far-reaching recommendations to prevent such widespread abuse happening again. The overarching theme focuses on specialist support for victims and survivors of CSA combined with measures such as the Online Safety Bill, to ensure technology platforms have child protection designs in as a legal requirement.

How to prepare

IICSA made a number of recommendations in the final report which do not have immediate effect but may be implemented in time. A few key recommendations for the education sector are considered below.

Recommendation 1: A single core data set

The inquiry recommends the UK Government and the Welsh Government improve data collected by children’s social care and criminal justice agencies concerning CSA and child sexual exploitation (CSE) by the introduction of one single core data set covering both England and Wales. Currently, there is no consistent approach to the recording of data of CSA or children who are at risk of sexual abuse, by whom and in what settings. As such, different organisations have developed their own approaches to categorising and recording CSA and there are high levels of non-reporting. The inquiry was in no doubt that the scale of CSA and CSE is considerably greater than currently reported. A single core data set would have the aim of producing consistent and compatible data which includes the characteristics of victims and alleged perpetrators of CSA, including age, sex and ethnicity as well as factors that make victims more vulnerable and settings and context in which CSA and CSE occurs. The intention is that this information should be collated nationally as well as regionally.

Action: Schools and colleges already manage a large amount of data in order to ensure that any allegation of abuse (including CSA and CSE) is captured. Schools and colleges should categorise and record that data in a consistent fashion and manage that data in accordance with the schools’ obligations under the Data Protection Act and in line with the schools’ responsibilities under the UK GDPR. The collection of this data and how it is stored and retained, should be subject to regular review.

Recommendation 2: Child protection authorities for England and Wales

The inquiry recognised that the cornerstone of the safeguarding and child protection system is multi-agency working. When child protection concerns arise, the relevant local authority has a statutory duty to make enquiries and decide whether to take any action to safeguard or promote the child’s welfare. The police are responsible for investigating allegations of criminal offences of CSA and if there is sufficient evidence to proceed and it is in the public interest to do so, the Crown Prosecution Service will authorise a prosecution. The inquiry recognises that across different settings, there were differing regimes for inspection of child protection across both statutory services and elsewhere. Some private or voluntary institutions receive little, if any, independent assessment of their child protection practices. The inquiry recognised that the challenge of prioritising the protection of children was considerable and was growing in light of the pandemic and that these challenges are likely to last well into the future. As such, the inquiry recommended that the UK Government establishes a Child Protection Authority England (with a corresponding one for Wales) to improve practice in child protection, provide advice and make recommendations to the Government in relation to child protection policy as well as ensure that the recommendations of the inquiry are implemented. It is recommended that such an Authority will also have the power to inspect institutions and settings as it considers necessary and proportionate. It is unclear whether they will have the power to sanction.

Action: Schools and colleges do not have to take any steps in this regard and the implementation of such an authority is likely to be some way off. Schools and colleges are already required to have regard to Keeping Children Safe in Education as statutory guidance (and other guidance) around child protection and safeguarding and it is hoped that the establishment of a child protection authority will also be reflected in existing guidance.

Recommendation 4: Public awareness

This recommendation seeks to address attitudes to CSA and remove myths and stereotypes which may be held. The investigation heard evidence from 94 victims of CSA and some children and young people had been given the impression that they were not believed to be worthy of protection, creating and perpetuating notions of ‘deserving’ and ‘undeserving’ victims of CSA. The aim of this recommendation is to increase public awareness about CSA and the actions to take if CSA is happening or suspected including challenging the myths and stereotypes about CSA and utilising different approaches such as the use of positive role models and creative media to raise such awareness.

Action: There is no immediate action for schools other than follow existing guidance. Categorisation of abuse (of all types) and data collection will be key and is likely to already form part of school process and procedure. We may see recommendations to schools’ curriculums as part of this recommendation.

Recommendation 9: Greater use of the barred list

Schools and colleges are presently able to obtain a barred list check on any individual who engages in regulated activity as defined by the Safeguarding Vulnerable Groups Act 2006. The inquiry recognised that there are a number of circumstances under which a barred list check would be desirable in order to protect children better, but it is not permitted under the current disclosure regime. There is the capacity still within schools and colleges for an individual who is not engaged in regulated activity to not have such a check. It is always the employer’s responsibility to determine whether the activity falls within the definition of regulated activity and to apply the appropriate level of check. The inquiry heard that the majority of queries received by the DBS and employers concern uncertainty about whether a role amounts to regulated activity.

The inquiry recommends that all employers of adults who work with children (whether in paid or voluntary roles) should be able to check whether applicants have been included on the children’s barred list in order to help ensure that children are kept safe from those who pose a risk of harm.

Action: To prepare for this, schools will have to continue under the current guidance as set out by Keeping Children Safe in Education 2022; however, it is likely that those few individuals who work in a school or college who are not engaged in regulated activity may be caught if and when this recommendation is implemented.

Recommendation 10: Improving compliance with the statutory duty to notify the disclosure and barring service (DBS)

Schools and colleges already have legal duties to notify the DBS when they have dismissed or removed an individual from undertaking regulated activity or when an individual has resigned from such a role, where there is concern that the individual may pose a risk of harm to children. Despite this, the DBS has indicated that it does not receive the number of referrals that it would expect from employers. The inquiry recommends that the UK Government takes steps to require all relevant regulators and inspectorates to make sure there is compliance with the statutory duty to refer to the DBS and assess safeguarding procedures during inspections. It is recommended that the National Police Chiefs’ Council will work with the relevant regulators and inspectors to enforce this including where there is a breach of the duty to refer to the police for a criminal investigation.

Action: There is no action for schools and colleges to take at the present time but being aware of the duty to refer as set out in the statutory guidance and making that referral remain key in keeping children safe.

Recommendation 11: Extending the disclosure regime to those working with children overseas

Currently, DBS checks on citizens or residents of England and Wales cannot be accessed by employers based overseas. The inquiry recommends that the UK Government introduces legislation permitting the DBS to provide enhanced certificates with barred list checks to citizens and residents of England and Wales applying for work or volunteering with UK based organisations including where the recruitment decision is taken outside the UK or, where work or volunteering involves organisations based outside the UK. In each case the key factor being whether work or volunteering would be a regulated activity in England and Wales. How this will operate in practice is yet to be determined.

Action: There is no current action for school or colleges with regard to this recommendation.

Recommendation 13: Mandatory Reporting

The inquiry has concluded that mandatory reporting is recommended and required. This would invoke a statutory duty to report child abuse where an individual:

  • Receives a disclosure of CSA from a child or perpetrator; or
  • Witnesses a child being sexually abused; or
  • Observes recognised indicators of CSA.

These individuals who report would be known as designated ‘Mandated Reporters’ and would include any person working in regulated activity in relation to children (under the Safeguarding Vulnerable Groups Act 2006) and any person working within a position of trust (as defined by the Sexual Offences Act 2003) and also police officers. This would clearly cover school and college staff who are generally engaged in regulated activity. The inquiry have, however, proposed exceptions where a mandatory report need not be made where the Mandated Reporter reasonably believes that:

  • The relationship between the parties is consensual and not intimidatory, exploitative or coercive; and
  • The child has not been harmed and is not a risk of being harmed; and
  • There is no material difference in capacity or maturity between the parties engaged in the sexual activity concerned and there is a difference in age of no more than 3 years.

Where the alleged perpetrator is in a position of trust, these exceptions would not apply.

It has been suggested that these exceptions to reporting considerably remove some of the teeth of mandating such a report. When considering the balance of age for example, this would not pick up an age difference where that may be considered a clear indicator that there may be an imbalance of power between the two individuals.

Currently, in the UK there is no legal duty on those working with children in England to report known or suspected CSA. Australia legislated to impose mandatory reporting, demonstrating however that this is not a complete solution. There appear to be clear advantages such as a substantial increase in identified cases (two to three times) and there have been reported far superior outcomes compared to a system without a law mandating reporting. There are also some disadvantages including an increase in the number of unsubstantiated cases and implementation challenges relating to systemic capacity, cross agency collaboration and data systems. Mandatory reporting would necessarily involve greater standardisation and collaboration across relevant agencies including data collection and record keeping.

Action: There is no action required yet.

Recommendation 15: Limitation

The inquiry recommends that the UK Government make legislative change to ensure that the current three-year limitation period for personal injury claims by victims and survivors of CSA is removed. Very few victims and survivors of abuse bring claims before the expiration of the limitation period and if the defence of limitation is raised, they must very often ask the court to exercise its discretion to allow the claim to proceed.

Action: There is no action for schools and colleges to take.

Recommendation 17: Access to records

The inquiry recommends that the UK Government directs the Information Commissioner’s Office to introduce a code of practice on retention of and access to records known to relate to CSA with the aim of improving access for victims and survivors. It is important to note that these records will not only be held in schools’ safeguarding files but also, for instance, in attendance records and personnel files.

In the absence of statutory retention periods, the inquiry also recommends that the retention period for records in relation to allegations or cases of CSA should be 75 years with appropriate review periods. The inquiry recognised that retention periods vary currently across institutions, as is permitted under data protection legislation. As years may lapse before victims and survivors are able to disclose sexual abuse, the inquiry encountered cases where records had been destroyed in accordance with retention policies. A longer retention period would allow for delayed disclosure.

Action: Schools should already have effective policies in relation to data protection including retention periods and access to personal data. It is expected that any code of practice is likely to include reference to policies, procedures and training for staff responding to requests to ensure that they recognise the long-term impact of CSA and engage with the applicant with empathy.

Conclusion

In summary, although the final report of IICSA is difficult to read in light of the subject matter, it is hoped and anticipated that the inquiry will bring about change. A key thread to many of the recommendations is data; how schools and colleges collect, store and share data will become even more relevant alongside raising awareness of CSA and CSE together with policies and procedures supported by training. It remains to be seen whether the recommendations (all or some) will be implemented. It is likely that in spite of any implementation challenges, the outcome of the inquiry will be to bring about change to a system with greater awareness, recognition and education around CSA and CSE as well as greater accountability. This is a step in the right direction.

For further information please get in touch with your usual contact.

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

Kristine Scott is a Cheltenham solicitor, specialising in education.

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Paul Watkins, Senior Associate

Paul Watkins is a Cheltenham solicitor, specialising in education.

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