TEACHERS AND THE LAW

HELEN MOLYNEUXmolyneuh@edgehill.ac.uk

TEACHERS’ DUTY OF CARE AND OTHER LEGALRESPONSIBILITIES INCLUDING

SAFEGUARDING STDS PT 1: 6 (Statutory Assessment requirements)

Pt 2: All aspects

OBJECTIVES

• To explore what teachers can and cannot do in the classroom and beyond

• To be aware of best practice in in dealing with pupils in any circumstance at school

• To be aware of the legal restraints governing teachers together with the legal rights and responsibilities of teachers with regard to pupils

2 ASPECTS

• COMMON LAW – ‘in loco parentis’ and relates to everyone working with children

• CONTRACTUAL OBLIGATIONS – welfare, discipline, H & S, educational guidance and social guidance

Tort

The body of law which allows an injured person to obtain compensation from the person who caused the injury. The person causing the injury is guilty of wrongful or unacceptable conduct.

Common law is a body of precedent and binds future decisions. It relies on similar facts being treated in a similar manner, so judges rely on precedent and common law is developed by judges through decisions of court, ie case law. Judgements are based on the balance of probabilities.

Tort of Negligence – civil law is only concerned with damages and compensation. There is no element of punishment

An overview of Teachers’ Statutory Responsibilities and Duty of Care

Education Act 2002; 2011

• Pupil welfare• Pupil health• Pupil safety • Supervision and control

Code of Practice for Registered Teachers (Oct 2009)

8 principles:

• Put well-being and protection of children first• Responsibility for maintaining quality teaching practice• Help children to be confident and successful learners• Demonstrate respect for diversity and promote equality• Strive to establish productive partnerships with parents and carers• Work as part of a whole-school team• Co-operate with professional colleagues• Demonstrate honesty and integrity and uphold public trust and

confidence in the teaching profession.

The Children Act (1989,2004; Edn Act 2002; Ed (ISS) regs 2010; Safeg

Vulnerable Gps Act 2006; Ed and Inspec Act 2006; CYP Act 2008) require teachers to understand what is meant by child abuse and to recognise its outward signs:

• Neglect• Physical injury• Sexual abuse• Emotional abuseA teacher’s statutory responsibility is to

report any concern

Child ProtectionTeachers have an important role to play in recognising signs of abuse and reporting

concerns. We are uniquely placed to observe the effects of home conditions. Know the school’s child protection policies and procedures.

Guidance can be found at:

DFES: ‘What to do if You’re Worried a Child is Being Abused’ 2006 ‘Safeguarding Children and Safer Recruitment in Education’ 2007‘Working Together to Safeguard Children’2010‘Tackling child sexual exploitation action plan’ 2012

Schools should have a designated senior member of staff for Child Protection issues and to be responsible for policy and procedures. Now that guidance is to be written into the law, teachers need to be particularly aware of their need to abide by the policy. The DCSF Guidance (2006) ‘Working together to safeguard Children’ gives guidance on Local Safeguarding Children Boards. (LSCB)

If a child makes an allegation about abuse or bullying, do not ask leading questions. Make notes and just listen. Pass the notes to the designated member of staff. You cannot promise to keep anything confidential, and should reassure the child that any reporting is in his/her best interests and disclosure will only be to those who ‘need to know.

A further issue:

Forced marriage (as opposed to ‘arranged marriage’)(July 2009 Forced marriages Unit) guidelines for warning signals:• depression; anxiety; low self-esteem; self-harm• Persistent absence or withdrawal by parents• Failure to return from a visit to country of origin• Fear of forthcoming holidays• Being watched by relatives – brothers, cousins• Decline in behaviour; interest; performance or punctuality• Non-allowance of participation in extra-curricular activities• Conflict with parents re exams

From June 2010 – website for advice and support: www.fmelearning.co.uk

More to be aware ofFemale Genital Mutilation (FGM)

25 February 2011

Female genital mutilation (FGM) comprises all procedures involving the partial or total removal of the female external genitalia or other injury to the female genital organs for non-medical reasons. FGM is also sometimes known as 'female genital cutting' or 'female circumcision'. However, circumcision is not an appropriate term. Communities tend to use local names for referring to this practice including 'sunna'.FGM is considered child abuse in the UK and a grave violation of the human rights of girls and women. In all circumstances where FGM is practised on a child it is a violation of the child's right to life, their right to their bodily integrity, as well as their right to health.The UK Government has signed a number of international human rights laws against FGM, including the Convention on the Rights of the Child.

The summer holidays is a peak period for cases of forced marriage and female genital mutilation. Schools, at this time in particular, and LAs are encouraged to be alert to the signs of potential abuse.

Safeguarding Boards and Sexual ExploitationBy Lauren Higgs Wednesday, 23 November 2011• All local safeguarding children boards (LSCBs) will be

required to undertake regular checks to assess whether children in their area are at risk of sexual exploitation, under government plans to tackle the problem.

• The government’s new sexual exploitation action plan (2012) calls for urgent action on the issue, arguing that agencies too often fail to recognise and deal with this type of abuse.

• To help child protection professionals improve their response to cases of sexual exploitation, the Department for Education (DfE) has published a step-by-step guide on what to do if they suspect a child is being sexually exploited.

• Published in spring 2012 it emphasises the strong links between child sexual exploitation and children running away from home or care.

• The DfE has working with Ofsted on how new guidance for inspectors can consider child sexual exploitation and the contact a child has with different services.

IMPORTANT NEW INTERIM REPORT

Professor Eileen Munro 2011The Child’s Journey

A detailed Report concerning the ‘helping’ of children in need of support or protection. It deals predominantly with the role of the Social Worker but also refers to the wider range of children’s services involved in Safeguarding and Child Protection.

Final Report: May 2011

The Government document in December 2011:‘The Importance of Teaching’ makes Safeguarding one

of the key features of Ofsted Inspection, as part of only 4 focus areas – behaviour and safety.

The ‘Working Together to Safeguard Children’ document focuses on a clear set of rules that all organisations follow and which states clear responsibilities. One clear statement in the Report says ‘it will remain vital that child protection and safeguarding responsibilities of institutions like schools [...] are properly reflected in their respective inspection frameworks.

‘A balance must be struck between the meticulous supervision of children … and the desirable objective of encouraging sturdy independence’

Justice McNair (1955)

This balance implies that teachers must do what is reasonably practical whilst caring for pupils as a reasonable parent would.

Brief history1944 Education Act:

It was the duty of parents of school-aged children to cause them to receive a full-time education

1959:

Moves towards the rights of the child but still through parental responsibility and obligation

1990s:

UN Convention on the Rights of the Child and Human Rights Act 1998 led to a Landmark decision of House of Lords in the 1990s: ‘a school which accepts a pupil assumes responsibility for . . physical well-being and also educational needs’. A full range of human rights were established for children – inalienable – cannot be taken away

IN LOCO PARENTIS Means ‘standing in the place of parents’, and is a

common law duty regulating the conduct of everyone who works with children. Teachers have a ‘duty of care’ towards the pupils in their charge.

Registers are legal documents and should be carefully completed, printed (if e-versions) once per month, bound and kept for 3 years at least. A new ‘Y’ code exists for absences in circumstances relating to adverse conditions, eg fuel strikes, weather, foot and mouth or other outbreaks. Heads to decide on appropriateness of code in circumstances.

Sir Alan Steer in his Report of 2009 called for a new definition of ‘In Loco Parentis’

The needs of the child may outweigh the wishes of the child – the Children’s Act of 1989 made the child’s wishes central, but it is recognised that the welfare of the child must be paramount, and teachers may disregard a pupil’s request if it is not deemed to be in the child’s best interests, eg emergency medical treatment.

This is based upon the ability of the child to make an informed decision. (Gillick competence based on the V. Gillick case 1985) A child’s decision may be due to imposition of parental view.

The Steer Report

Sir Alan Steer’s Report on pupil behaviour concluded that teachers’ legal authority over pupils is essential to school discipline, but is based on outdated legal doctrine and open to challenge in the courts. He called for teachers’ rights to be laid out in an Act of Parliament for the first time.

He called for:

• New powers to discipline and restrain• New rights to apply for parenting orders• LAs to provide full-time education for excluded pupils

from the sixth day, fixed or permanent• Mandatory re-integration interviews for excluded pupils• Right to search for weapons, drugs and stolen property.

STATUTORY FRAMEWORK

The Children Act 1989 and reinforced in the 2004 Act states that a person who has care of a child must do all that is reasonable under the circumstances to safeguard or promote the child’s welfare. This applies to teachers and gives them the power to promote a child’s welfare in a more positive way – it makes the duty owed much more child-centred.

WHAT DO YOU THINK WE NEED TO TAKE INTO ACCOUNT WHEN

CONSIDERING OUR DUTY OF CARE FOR ANY GROUP OF PUPILS?

DISCUSS WITH YOUR NEIGHBOURS

EXERCISE OF DUTY OF CARE

• The age and maturity of the pupils;• the skill level of the pupils; • Pupils’ needs, including any special

educational needs; • The number of pupils;• The nature or type of activity, and an

assessment of risk involved;• The physical environment; • Any relevant statutory or institutional

policy guidelines.

NEGLIGENCE

In a case involving the Law of Negligence, the following must be proved, on the balance of probabilities, by the plaintiff:

 • that there was a duty of care owed;• that there was a breach, by act or omission, of

this duty of care;• that injury, damage or loss resulted from the

breach of the duty of care.

Under this Law, the standard of conduct of teachers is established by determining what a reasonable person would consider appropriate. The standard is that expected of a person in a particular post. Know your area of work, H & S and LA guidelines.

1962 Lyes v Middlesex Co. Co. – assessed this to be: “that of a reasonably prudent parent judged not in the context of his own home but in that of a school . . . in the circumstances of school life”

Therefore it is recognised that large classes are a factor in Duty of Care, and teachers are not expected to protect children as if they were working on a one-to-one basis.

Where specific dangers exist:Give specific warnings, eg ‘don’t touch’ is

insufficient for dangerous substances.Education Reform Act (1988) states that enough

tuition and supervision must be given for pupils to participate safely in any activity.

Action for negligence may occur where a teacher becomes involved in physical interaction with pupils and causes injury.

Stating rules is not enough if children are known to be untrustworthy.

The Contributory Negligence Act of 1945

States that a child may be wholly or partially responsible in a given situation. The extent of responsibility depends on the expectation for that age.

1966 – it was established in a court case – Gough v Thorne – that “a very young child cannot be guilty of contributory negligence”.

But – October 1970 – Pettican v Enfield LBC:

Staff cannot be expected to act as ‘policemen and security guards’. . . ‘It is impossible to expect all parts of the school could be kept under continuous supervision.’

This actually related to lunch time, specifically, but could be applied to any time when pupils are out and about within school premises or grounds.

INCIDENT STUDY 1

An accident has occurred in the playground at break. A girl has run into a wall during a game of tag and has been knocked out.

You were scheduled to be on playground duty but arrived late because you were dealing with two pupils who had misbehaved in your lesson just before break.

INCIDENT STUDY 2

You are teaching your Year 10 Maths group. The work involves the pupils using rulers and plastic triangles. There is the noise of a disturbance outside your room and you go to investigate. Two pupils are struggling with a stage block on the stairs. When you return to your classroom, one of your pupils has thrown his ruler across the room and hit another pupil, causing a cut.

SUPERVISION

• The school must publish to parents the start and finish times of the school day.

• Arrangements must be made for the orderly arrival and departure of pupils, and teachers can be required to participate in the supervision of this arrival and departure, but this must be within the 1265 hours, not an extension of the working day.

• Adopt clear guidelines for the time prior to the start of school and after school finishes. There must be adequate supervision if pupils are allowed to be on school premises. Adequate Health and Safety Assessments must be made and risks minimised.

SUPERVISION• Pupils must also be supervised during breaks. Teachers can

be required to participate in the supervision of mid-session breaks.

• Supervision of pupils during the midday break is not the responsibility of teachers, although the Head remains responsible for the pupils during this time and indeed, at all other times in school and should arrange supervision as appropriate. In most schools, people are employed as midday supervisors.

• Teachers should respond to all reasonable orders of the Head.

• Schools can be reasonably expected to undertake duties to escort pupils off the premises

School Closure

In adverse weather conditions:•Policy needed•Inform parents and have a communication planNow in place: Develop Community Resilience through Schools Project – a national resource for emergency planning guidance and training for staff

BEYOND THE GATESEducation and Inspections Act 2006; and 2010Teachers have the power to regulate pupil behaviour when not on

school premises, particularly if that behaviour relates to the school. But, punishment can only take place on school premises under staff supervision. A Travel Behaviour Code now exists for schools and Heads have powers to sanction pupils, including exclusion. Schools should have a member of staff designated to deal with Travel Behaviour. Statutory guidance will be issued to Heads concerning powers to punish with regard to misbehaviour outside school.

This may apply to: drug dealing at gates; trips; school buses; immediately before or after school hours and includes incidents of bullying which has its origins in school.

INCIDENT STUDY 3

It is lunchtime and you have gone out of school to one of the local shops.

As you are walking back across the playground, a member of your form comes running up to you and tells you that a fight is about to take place near the Sports Hall.

Some measures:• Make standards of behaviour clear for pupils when in uniform• Focus on off-site behaviour which affects the reputation of the school or pupil well-being

However, you are not obliged to intervene outside school unless under direct supervision or a journey to and from school. Public complaints require proper investigation.

HEALTH AND SAFETY

Teachers should act with reasonable care at all times including not taking unnecessary risks or doing anything potentially dangerous. Certain departments will have health and safety rules and routines which have to be constantly reinforced to the pupils, because of the nature of the activities or materials/equipment being used, e.g. Technology, Science, Physical Education. However, all teachers have a responsibility for Risk Assessment and Management.

INCIDENT STUDY 4

At morning registration, a pupil points out that there is water running down the wall near the light switch. You make a mental note to report this. Later in the morning, a pupil presses the light switch. There is a flash and a bang from the switch.

SAFEGUARDING and the Independent Safeguarding Authority

(ISA) 2009The ISA was created on the recommendations of the Bichard Report following

the deaths of Holly Wells and Jessica Chapman in 2002.Its role is:• to prevent unstable people from working with children and vulnerable

adults through a system of registration for clearance.• Barring people who are ineligible to work with children.

(The vetting and barring scheme – administered by the ISA)

2 new ISA lists available on enhanced CRB checks. All teachers must have an up-to-date enhanced CRB check, but Heads have discretion pending receipt of the CRB check for school staff as long as appropriate supervision is given. It will be a duty of employers to refer to the ISA individuals who pose a risk to children or vulnerable adults. 2 new lists: Children’s Barred list and Vulnerable Adults Barred list

Where a parent is reliant on an institution to choose individuals to work with children, the requirement to register will apply, subject to the frequent and intensive contact provisions

Frequent contact implies once a week or more. Intensive contact implies 4 days in one month or

more or overnight.However, Gov. Depts. do retain a right to consider

the requirements of the Vetting and Barring Scheme (VBS) to be insufficient in any case and may insist on registration.

Where mutually agreed arrangements are made between parents and friends the VBS will not apply.

2011 review of CRBFollowing a review of the Vetting and Barring Scheme, criminal record checks will only be carried out on those who have intensive contact with the young, and emphasis will be on employers to ensure the right staff are screened. Theresa May (Home Sec) called for a more common sense approach, and checks are to be sent to the applicant; that person to produce it when required.

Protection of Freedoms Bill 2011Provides for the merging of the CRB and ISA to form a new body,

the NDPB (non-departmental public body) via the Protection of Freedoms Bill, providing a national barring system and a criminal records disclosure service. The requirement for those working with children to register with the ISA and then be continuously monitored will be abolished. (The Bill became law in Nov 2011)

A CRB check is the access point for an individual to join the ISA scheme. When an individual applies for a CRB disclosure, the ISA assesses information from the disclosures to decide whether to give them ISA registration.

Further guidance available:

Safeguarding Children and Safer Recruitment in Education (DCSF)

At present, any allegation may appear on an enhanced CRB check, regardless of its merits. (Police Act 1997)

VBS guidance on the increased safeguards and the duties introduced from 12 October 2009 is available from the ISA website.

For more information, read the vetting and barring scheme safeguards (November 2010).

Importantly:

• the minimum age of registration for young people who engage in regulated activity as part of continuing education is to be reviewed, as some 16 and 17 year olds may be working frequently with children, possibly unsupervised with regular contact with the same children

• Overseas visitors bringing and accompanying their children to and whilst in the UK will have a 3-months exemption from registration

• Exchange visits (less than 28 days) with ‘foster’ families abroad and reciprocal arrangements in the UK will be regarded as private arrangements

• Self-employed health practitioner status is under review as they are licensed to work with individuals.

DCF Guidance December 2009

REGULATED ACTIVITIESEmployers will have a duty to refer individuals who pose a

risk to children or vulnerable adults, and it is an offence to employ a barred individual. Provision of information for employers from the ISA is not automatic, only when a ‘legitimate interest’ is registered. Checks about convictions or other PNC (Police National Computer) information can only be made as part of enhanced CRB checks.

It is also a criminal offence to seek employment if you are barred.

Teaching is a regulated activity.The term has been re-defined and now means

those activities which provide the highest level of risk from the nature of the post and access to vulnerable people. This is informed by the knowledge that those who might cause harm often do so by developing relationships of trust with their victims. It involves regular and close contact.

IMPORTANT NOTE re: new Act 2011

• All sections are commenced by order of the Secretary of State.• The DfE intends that most sections of the Act will have commenced by the

start of the 2012/13 school year.• Commencement of the Education Act 2011, DfE

http://www.education.gov.uk/home/aboutdfe/departmentalinformation/educationbill/a00200371/commencement-of-the-education-act-2011

• Schools can also check which provisions in the Act have been commenced by searching for 'Education Act 2011' on the legislation website, This will bring up the Act and any related commencement orders.

SUMMARY

The key point is that, for negligence to be proved, injury or loss must have resulted from the failure of a teacher to exercise the duty of care. The law recognises that accidents can and do happen. Where it can be demonstrated that teachers acted in accordance with their duty of care, and according to Policy, they cannot be held liable through negligence.

KEY PRINCIPLES

REASONABLENESS i.e. Did the teacher take all reasonable

measures in accordance with the duty of care?

 FORESEEABILITYi.e. Were all foreseeable risks anticipated, assessed and appropriately planned for by the teacher?