Proprietors and governing bodies of independent schools have never accepted mere compliance with minimum standards as being sufficient. This is most often presented in levels of pupil academic attainment, where national benchmarks are exceeded. Excellence within independent schools comes in many forms, whether it is in the examination hall, on the playing fields or on the stage.
The aspiration of excellence must also apply to the levels of pastoral care of pupils. Proprietors and governing bodies have the ability and the potential to ensure that their school shines as a beacon of better than best practice in assuring the wellbeing of their pupils. However, the current rate and frequency of regulatory change means that simply understanding what the basic requirements are can be daunting for them. And new regulatory requirements are rarely basic; regulations on safeguarding are amongst some of the most complex.
Matthew Burgess: ‘Annual reviews of safeguarding have been a feature of regulatory compliance for many years.’
In the current climate, minimal regulatory compliance is no longer enough. Recent reviews of safeguarding involving independent schools have highlighted weaknesses deriving from confusion or lack of clarity about roles and responsibilities. The Charity Commission has made clear that it expects the trustees of those charitable schools in which there have been a number of allegations or complaints which raise potential safeguarding risks to consider what steps they should take beyond compliance with minimum standards to ensure that they are properly discharging their duty of care under charity law.
Ensuring that the duty of care owed to pupils is maintained, whether under charity law or other laws, is a challenge that every school should be eager to accept, because it is entirely consistent with the care each school takes to nurture the growth and development of all its pupils. This is not simply a challenge for proprietors and governors, although it is most acute for them. Heads and other senior leaders are confronted every day with the necessity of ensuring that what happens in the school is compliant.
On 5 January 2015 the Education (Independent School Standards) Regulations 2014 (ISSR) came into force. Part eight sets out a new standard for the quality of leadership and management in all independent schools. The explanatory note accompanying the new ISSR makes it clear that the proprietor or governing body can now be held accountable for ensuring those members of staff with leadership and management responsibilities are able to:
- demonstrate good skills and knowledge
- fulfil their responsibilities effectively
- actively promote pupil wellbeing.
- Part three of the ISSR at paragraph 7 contains a regulatory requirement for the proprietor (or governing body) to ensure:
- that arrangements are made to safeguard and promote the welfare of pupils at the school
- such arrangements have regard to any guidance issued by the Secretary of State.
The current key guidance issued by the Secretary of State is statutory guidance ‘Keeping Children Safe In Education 2015’ (KCSIE). The summary section at the beginning of KCSIE requires it to be read alongside further statutory guidance ‘Working Together To Safeguard Children 2015’ (WTTSC) and the DfE advice ‘What To Do If You Are Worried A Child Is Being Abused 2015’. It is important to note that statutory guidance must be properly followed except where deviation can be justified.
Part two of KCSIE sets out the collective responsibilities of proprietors and governing bodies for the management of safeguarding. In summary, these responsibilities include ensuring:
- compliance with their own duties under legislation
- the school contributes to inter-agency working in accordance with WTTSC, including contributing to inter-agency support for children with child protection plans and providing a co-ordinated offer of early help when additional needs are identified
- the school’s safeguarding arrangements also take account of the procedures and practices of the local authority and inter-agency procedures set by the relevant Local Safeguarding Children Board
- the school practises safe recruitment and that all children are safe.
- More specific responsibilities include:
- ensuring the school has in place, and provides to all staff on induction, an effective child protection policy and a staff behaviour policy (code of conduct)
- putting in place appropriate safeguarding responses to children who go missing from education, particularly on repeat occasions
- nominating a proprietor or member of the governing body to liaise with the local authority designated officer and partner agencies in the event of allegations of abuse made against the head or principal, proprietor or member of the governing body
- appointing a member of staff to the role of designated safeguarding lead, ensuring that s/he has the appropriate authority, funding, training, resources and support to fulfil that role
- consideration of how children are taught about safeguarding, including online, typically through personal, social, health and economic education and sex and relationship education as part of a broad and balanced curriculum
- preventing people who pose a risk of harm from working with children
- ensuring compliant procedures are in place for handling allegations against members of staff and against other children.
These responsibilities appear to be onerous but they also create opportunities for proprietors and governors, heads and other senior leaders of independent schools to develop a common understanding of what pupil wellbeing means, both in general terms and in the more particular context of their school.
In practice, what should proprietors and governing bodies be doing to discharge these responsibilities and ensure that minimum standards for promoting pupil wellbeing are not just met but exceeded?
The starting point is for proprietors and governors to put in place a suite of clear and compliant safeguarding policies and procedures, to include:
- child protection policy
- safer recruitment policy
- staff code of conduct
- whistleblowing policy
- missing pupil policy
- policy on acceptable use of ICT and e-safety
- anti-bullying policy
- a comprehensive single central register of staff appointments.
There should also be clear terms of reference for the designated safeguarding lead and any deputy, the nominated safeguarding proprietor or governor and chair (where these are not the same person). Also important is the establishment and maintenance of a full record of safeguarding training undertaken by staff, volunteers and proprietors or governors.
The implementation of these policies, the effectiveness of the procedures they contain and the practices adopted by the school should be subject to review by the proprietors or full governing body at least annually and following a serious safeguarding incident at the school.
Annual reviews of safeguarding have been a feature of regulatory compliance for many years. It is essential that this involves a rigorous process, independent corroboration and feedback from external agencies and proper challenge by the governors to ensure that the annual review makes a valuable contribution to promoting the welfare of pupils.
The process by which the review is conducted varies across schools. Those schools with the resource to do so may employ a compliance officer or engage professional advisors to assist or set up an independent safeguarding committee to provide an additional layer of scrutiny. Other proprietors or governing bodies may develop or acquire resource materials to aid them during their review. Whatever methods are adopted, schools should always bear in mind that it is the collective responsibility of all the proprietors or governors to ensure that they comply with their duties.
Matthew Burgess is partner at education law firm Veale Wasbrough Vizards.