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Page 200, paragraph 74
The Children Act 2004 places named statutory bodies in England and in Wales under a duty to ensure that their functions are discharged “having regard to the need to safeguard and promote the welfare of children”. These statutory bodies include local authorities, NHS organisations, the police, prisons and young offender institutions, the probation service and youth offending teams. They must follow statutory guidance, published by the Department for Education (Working Together to Safeguard Children in England and Working Together to Safeguard People in Wales).
This statutory duty is considered part of “public law”. There is no criminal sanction if the individuals running the bodies fail to comply with the duty. Nor is the duty actionable in a civil claim for damages, though a breach of this duty might be used in support of a civil claim such as a claim for negligence. It is a broad statement of principle to which regard must be had, rather than a hard-edged obligation.
Essentially, what this duty means is that the relevant bodies must carry out their functions having regard to the need to safeguard and promote the welfare of children, and a failure to do so when formulating a policy or making a decision may mean that the policy or decision can be challenged in an application for judicial review. However, the weight to be given to this need, so long as it is taken into account, is one for the decision-maker and “the courts have emphasised the importance of not imposing too high a burden” (see R (on the application of Pharmaceutical Services Negotiating Committee) v Secretary of State for Health  EWCA Civ 1925 at ).
The remedy for failure to obey public law is described here https://publiclawproject.org.uk/what-is-public-law/
In brief, where a public body acts unlawfully, there are several ways that those affected can challenge that behaviour or decision. These include:
- Complaining using public bodies’ complaints procedures or Ombudsmen.
- Exercising rights of appeal to a tribunal (if such rights exist in relation to the particular decision to be challenged, such as in welfare benefits cases).
- Asking a public body to review its decision.
- Through judicial review.
It is notable that there are significant hurdles to bringing a public law case to judicial review, and that none of these mechanisms provide for a penalty to be levied on the body breaking the law, save for the possibility of some award of damages – the remedy is usually merely an order to start behaving lawfully.
Public law principles and remedies generally only apply to public bodies, which of course the “named statutory bodies” are.
It is therefore incorrect to state that these bodies “must follow statutory guidance”. S.11(4) of the Children Act 2004 (and s.28(5) for Wales) obliges the relevant bodies to “have regard” to the guidance. As a matter of public law, they should not depart from it without cogent reasons but the combination of this being a public law matter and “have regard” in practice gives wide discretion to the relevant public bodies. The guidance is not actionable or directly enforceable – though, again, a failure to follow the guidance may be used in support of a civil claim. Otherwise, so long as a relevant body has taken the guidance into account, its actions and decisions will be lawful. Again, there is no liability directly imposed for failing to follow the guidance.
Page 200, paragraph 75
Under the Education Act 2002, schools and educational establishments have a similar duty to “safeguard and promote the welfare of children”. They must comply with the relevant statutory guidance, including Working Together guidance as well as Keeping Children Safe in Education (KCSIE) in England and Keeping Learners Safe in Wales.
This is incorrect in a number of ways. Firstly, whilst it is correct to say that this duty is “similar” to the duty discussed in paragraph 74, strictly speaking the duty in s.175 of the Education Act 2002 is not to “safeguard and promote the welfare of children”, but to exercise functions “with a view to safeguarding and promoting the welfare of children” (emphasis added).
Moreover, this obligation is again a “public law” obligation. The obligations of section 175 of the Act apply to a local authority, the governing body of a maintained school, the governing body of an institution within the further education sector, the proprietor of a 16 to 19 Academy, and to the Secretary of State. As above, there is no criminal or civil liability, albeit a breach of the obligation might be used in support of a civil claim.
Again, the law does not (as the report incorrectly states) require these bodies to “comply with the relevant statutory guidance”. 175(4) merely requires the bodies listed to, “in considering what arrangements are required to be made by them under that subsection, have regard to any guidance given from time to time (in relation to England) by the Secretary of State or (in relation to Wales) by the National Assembly for Wales”.
The legal meaning of the phrase “have regard” is not straightforward. Where statutory guidance is relevant to a decision, it should be followed unless there are cogent reasons not to. This is some way short of “must comply with”.
Independent schools and educational establishments are outside the scope of section 175 and its obligations. Independent schools instead are covered by part 10 of the Act, comprising sections 156AA to 174. It includes section 157, which states that “regulations shall prescribe standards about the following matters” with a list following which includes an item “the welfare, health and safety of pupils at independent schools”. These regulations can be established and varied by statutory instrument, see section 210(1). The relevant statutory instrument is The Education (Independent School Standards) Regulations 2014 (https://www.legislation.gov.uk/uksi/2014/3283) as currently amended. The key section is paragraph 7, which reads as follows:
“7. The standard in this paragraph is met if the proprietor ensures that—
(a) arrangements are made to safeguard and promote the welfare of pupils at the school; and
(b) such arrangements have regard to any guidance issued by the Secretary of State.”
There’s that phrase “have regard” again. So independent schools only have to “have regard” to guidance, and not necessarily comply with it in order to meet the relevant standard for safeguarding. Moreover, independent schools are not generally amenable to judicial review (Proprietor of Ashdown House School v JKL  UKUT 259 (AAC) at ) and so there is a question over what action if any could be taken over an independent school’s failure to have regard to the statutory guidance.
Similar provisions apply to further education institutions (study after secondary education that is not part of higher education). Section 175(3B)(a) of the Education Act states that the Secretary of State may not “enter into an agreement with the proprietor of an institution in England for the provision of further education, unless the agreement requires the proprietor to comply with the safeguarding duties”. The “safeguarding duties” are in the same form: to “have regard to any guidance given from time to time by the Secretary of State”.
Page 200, paragraph 76
Working Together to Safeguard Children and Working Together to Safeguard People place a legal obligation on statutory agencies and organisations in England and in Wales to have appropriate child safeguarding policies in place. This includes procedures for responding to allegations against people who work with children. The legal requirement also applies to private or voluntary organisations if they are providing services on behalf of statutory agencies.
Given the analysis of paragraphs 74-75 above, this is an incorrect description of the legal situation. The guidance does not and cannot itself impose a legal obligation. The legal obligation, imposed by statute, is to have regard to the guidance. The guidance cannot extend any legal requirement to “private or voluntary organisations if they are providing services on behalf of statutory agencies”, because it is not the direct source of any legal requirement.
This paragraph may be referring to a local authority’s duty to promote cooperation between persons and bodies who work with children with a view to improving their wellbeing and protecting them from harm (s.10(1) of the Children Act 2004). Alternatively, it might refer to the “general duty” of local authorities to safeguard and promote the welfare of children who are in need through their services and through “the provision by others (including in particular voluntary organisations) of services”.
Otherwise, it is unclear where this supposed obligation on private or voluntary organisations providing services on behalf of statutory agencies comes from. It may simply be the case that, in delegating services to a private or voluntary organisation, the statutory agency is carrying out its functions and so should continue to have regard to the guidance.
It is notable that, in any case, the legal requirement does not apply to private or voluntary organisations not providing services on behalf of statutory agencies, and that the report does not claim otherwise. There are a great many such organisations which work with children.
Page 201, paragraph 79
Many voluntary sector and faith-based organisations in England and in Wales are also charities. Under the Charities Act 2011, trustees must take reasonable steps to protect people who come into contact with the charity from harm. The Charity Commission has published guidance called Safeguarding and Protecting People for Charities and Trustees. This guidance is seen as a “starting point”, rather than a legal obligation, although the expectation of the Charity Commission is that charities will follow it. Charities are not required to report safeguarding incidents to the Charity Commission unless they amount to a serious incident which results in significant harm to people who come into contact with the charity through its work, or to the charity’s reputation. Allegations of child sexual abuse are considered to fall within the definition of a serious incident, which requires the matter to be reported to the Charity Commission. Those that are registered with Ofsted would also be required to make a report to Ofsted.
The Charities Act 2011 does not have any provision about taking “reasonable steps” to “protect” people from “harm” who come into contact with the charity. This obligation is, in fact, simply the common law duty of care.
The provision described concerning “serious incidents” also does not seem to exist within the Act, although the requirement to report and procedure for reporting a serious incident is referenced in “Safeguarding and Protecting People for Charities and Trustees”.
It could be that there are additional regulations covering all this implemented by means of Statutory Instrument. But it appears not to be in the primary legislation of the Charities Act 2011.
We are similarly unaware of any legal provision that requires charitable organisations “registered with Ofsted” to make a report to Ofsted of a ‘serious incident’.
Legal requirements are stated with great confidence but without any obvious legal justification by means of reference to a statute or regulation.