Safeguarding concerns

Matthew Burgess looks at the ongoing repercussions for schools of the closure of Stanbridge Earls

Posted by Stephanie Broad | January 26, 2016 | Law, finance, HR

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Events leading to the closure of Stanbridge Earls School in 2013 continue to generate regulatory scrutiny and review. There are already lessons in the governance and management of safeguarding which other schools can learn from and, with the announcement of a statutory inquiry by the Charity Commission, there will undoubtedly be more.

In fact, this will be the second Charity Commission inquiry into Stanbridge Earls. The first inquiry reported in December 2014 and broadly exonerated the school's trustees. But that report was challenged and removed from the commission's website. The new inquiry will focus on two issues:

• Whether the trustees had sufficient oversight of the school's management of safeguarding matters in order to discharge their legal duties as charity trustees
• Whether the charity had adequate record-keeping policies and practices in relation to the recording and reporting of safeguarding concerns. 

The commission's renewed regulatory interest has been sharpened by the findings of a Serious Case Review published by the Hampshire Safeguarding Children Board (HSCB) in October 2015. The review examines actions taken by a range of local and national statutory agencies in connection with Stanbridge Earls. It is particularly keen to identify lessons for HSCB in responding to safeguarding concerns at independent schools. But central to the review is a consideration of how Stanbridge Earls itself identified and responded to child protection concerns, particularly in relation to 'Child F', the pupil found by the Special Educational Needs and Disability Tribunal (SENDIST) to have been the victim of bullying, peer sexual abuse and discrimination. In that context, there are a number of lessons which all independent schools can learn from. 

Getting admission decisions right

The review highlights how the school's original error was in thinking that it could deal with Child F's needs.

The 2014 Charity Commission report included an acknowledgement from the trustees that they accepted “in hindsight it may have assisted them to have reacted to developing risks more efficiently than they had, as it was noted that the pupil body at the school had diversified, and the school was catering for pupils with a wider spectrum of special education needs than was the case in in previous years, and the charity had not always reacted to these changes sufficiently”.

The review is less forgiving, echoing the findings of the damning SENDIST judgment in January 2013, that the school had neither the necessary professional expertise, leadership, management, training nor systems to meet pupil needs.

One of the most important messages for schools is to ensure that they understand what each pupil's background and diagnosis means, both for the pupil and for the school. Inspection increasingly focuses on how a school caters to the 'special requirements' of each pupil, where special requirements has a particularly broad definition: "any needs arising from physical, medical, sensory, learning, emotional or behavioural difficulties which require provision which is additional to or different from that generally required by children of the same age in schools other than special schools".

Reliable approach to and systems for record keeping

There are numerous criticisms of the quality of record keeping by staff at the school. The review particularly notes that the evidence points to staff being unaware of what they might be required to record, a culture of people talking informally rather than making a record and generally too much room for important information to get lost – concerns which the review suggests are evidenced in similar educational settings.

Investigating concerns – and when to stop asking questions

In its evidence to the review, the Crown Prosecution Service notes the serious impact on potential future criminal proceedings of the school's failure to recognise when they should stop asking questions. In one incident, for example, the CPS note that "at this point there was a clear disclosure of non-consensual sexual activity and [the member of staff] should not have continued questioning her. By ... continued questioning of her we now have an account that is inconsistent with subsequent accounts that she makes. Even if we did not use this account as part of the prosecution case it would be disclosable and she would be cross-examined upon it.”

The flipside of this finding is that the school failed to make appropriate and timely reports to the local agencies and the police. 

Medical provision

The review flags numerous potential concerns around health provision in schools, including confidentiality/consent, administration of medicines, supporting pupils with medical needs and the service arrangements between GPs and independent schools, particularly regarding clinical supervision of nursing staff.

Sensitivity

It goes without saying that a school must act sensitively where distressing incidents are alleged. The review notes, however, that in one case the school publicly referred to allegations in front of the pupil body in an assembly – and whilst this was no doubt done with the best motivations, it lays the school open to criticisms of thoughtlessness and a basic lack of care about pupil welfare.

Trustee responsibility

A number of parents dismayed by the closure of Stanbridge Earls expressed concern to the review about the part played by trustees, feeling that they did not respond to the developing situation with adequate commitment and vigour. The trustees reported that the school was fully aware of the importance of all aspects of safeguarding and that they themselves were fully conversant with any issues at the school: a contention which is described as “difficult to understand in the face of the events leading to this review”.

More to come

The Charity Commission's decision to open a statutory inquiry focusing particularly on whether trustees had sufficient oversight of the school's management of safeguarding matters is consistent with what appears to be its more activist approach to dealing with the governance of safeguarding in school charities.

In addition to the points raised above, we can expect further comment from the commission on areas where it has recently expressed concerns about current practice across the sector, such as: 

• Serious incident reporting
• The relationships between the school and the local authority
• Clarity of roles and responsibilities of the school's nominated child protection governor
• The robustness of the trustees' annual review of safeguarding
• Internal reporting and analysis of complaints, incidents and trends 

The commission has previously indicated that where there have been a number of allegations and/or complaints which raise potential safeguarding concerns or risks, the commission would expect trustees to consider what additional steps are necessary beyond basic compliance with statutory regulation or guidance (such as ‘Keeping Children Safe In Education’) to satisfy themselves and the commission that they are properly discharging their duty of care under charity law. The commission may take this opportunity to elaborate further. In the meantime, our advice to our many independent school clients is that mere regulatory compliance may no longer be sufficient to discharge the proprietor's responsibility to actively promote the wellbeing of pupils.

Matthew Burgess

Veale Wasbrough Vizards has produced a 'Governance of Safeguarding' best practice resources pack for independent schools, which aims to ensure that governors feel equipped to discharge their essential safeguarding duties under both charity law and the independent school compliance framework. Please do get in touch with Matthew Burgess or Barney Northover if you would like to know more about our safeguarding governance materials. 

Matthew Burgess is a partner at leading education law firm Veale Wasbrough Vizards.

www.vwv.co.uk