Clamours for a review of how our country’s institutions have handled their duty of care to protect children from sexual abuse increased significantly following the publicity surrounding Operation Yewtree and the investigation of abuse by Jimmy Savile, along with other prominent media and political figures. Home secretary Theresa May first announced a formal inquiry into this on 7 July 2014. However, what we are now faced with is a very different beast from what was originally envisaged.
After a couple of false starts (with two chairs resigning due to perceived conflicts of interest), the current chair, New Zealand judge Dame Lowell Goddard QC, was formally appointed on 4 February 2015.
The initial plan was for the inquiry to take place as a panel inquiry (along the lines of that concerning the Hillsborough tragedy). However, concerns about the nature of such an inquiry and its limited powers to compel the production of evidence were voiced by victim and survivor support groups.
The inquiry was later re-established as a statutory inquiry on 12 March 2015 and is now constituted under the provisions of the Inquiries Act 2005. There have been but three so far under the act, the most well-known being the Leveson Inquiry into phone hacking.
Such an inquiry can compel the production of evidence, whether by ordering the production of documents or other items or requiring the attendance of witnesses at a public hearing. It is a criminal offence to fail to comply without reasonable excuse. It is also an offence to intentionally have the effect of destroying or tampering with evidence which may be relevant.
Organisations or individuals with sufficient interest can apply to the inquiry for designation as a core participant (akin to an interested party in inquest proceedings) in order to make representations and question witnesses.
Although it is not the purpose of the inquiry to attribute blame or to make findings of criminal or civil liability, it can and will make findings of fact which could lead to liability being established.
The Goddard Inquiry
In her opening statement about the Independent Inquiry into Child Sexual Abuse, Justice Goddard explained that she considers that it “provides a unique opportunity to expose past failures of institutions to protect children, to confront those responsible, to uncover systemic failures, to provide support to victims and survivors, in sharing their experiences, and to make recommendations that will help prevent the sexual abuse of children in the future”.
Details about the inquiry can be found on the IICSA website: www.iicsa.org. This includes details of:
- the scope of the inquiry itself
- the five work streams (the relevant one for schools being the second: education and religion)
- the methodology, comprising three complementary and simultaneous ways of working: the research project (a comprehensive literature and research review), the truth project (private meetings with victims and survivors) and the public hearings project (public hearings of paradigm cases which are illustrative of the pattern of institutional failings alleged)
- the first 13 investigations which the inquiry is considering, the seventh of which is the investigation of sexual abuse in residential schools
- regular updates and guidance notes
- the “hope and expectation” of a final report by the end of 2020.
Although it is limited to England and Wales and to abuse of children under 18, the inquiry is without time limit and its scale is unprecedented. Nearly £18m has been budgeted for the first year of the inquiry alone.
There is but a single investigation directly relating to schools at present, but schools may find themselves involved in other investigations (such as those of the Catholic or Anglican Church) and/or further education-specific investigations may follow. Indeed, we consider this likely given the wording of the statement referring to investigation seven as a ‘first focus’ and the wider definition of schools to be investigated: ‘schools including private and state-funded boarding and day schools and specialist education (such as music tuition)’.
There is but a single investigation directly relating to schools at present, but schools may find themselves involved in other investigations
What should you do now?
- Establish a team to manage the issues presented The inquiry has already fixed deadlines for some of the steps required for the investigations and they generally have a very short turnaround. We therefore recommend that you establish a team to assess the risk and manage the school’s response to Goddard, which should include keeping a watching brief on the investigations and the case studies identified to consider whether the school is likely to be involved and sourcing appropriate advice. Many of the associations are offering guidance and, for example, ISC’s introduction and guidance document on the inquiry can be accessed here: https://tinyurl.com/gv48yur
- Preserve/collate documents All schools should review their documents and document retention policy to ensure that documents which could fall within the scope of the inquiry are preserved for its duration, regardless of whether you received a formal notice from the inquiry about this. Given the short timescales for the delivery of documents, we recommend that you take the opportunity to collate documents of potential relevance in an agreed format, extracting any privileged material and facilitating a review of the school’s response to historic issues.
- Review issues Most schools will have faced an allegation of the sexual abuse of one of its pupils or by a member of staff at some stage in their history and it is therefore unlikely that any school will avoid the potential for scrutiny. We recommend that schools consider their response to historic issues in order to determine an appropriate strategy for dealing with the inquiry and any resultant PR.
- Review insurance position The inquiry and the encouragement of victims and survivors to participate may lead to future claims for compensation relating to historic issues. We would therefore recommend that you trace the school’s insurance history and that you liaise with insurers about the school’s proposed response. The insurance industry has long been criticised for hampering child abuse enquiries and, perhaps as a consequence, the ABI has just released a guidance note on aspects of inquiries and investigations which can be accessed here: https://tinyurl.com/zg8njs5
- Consider PR – current safeguarding governance/communications It is our view that it is likely that the education sector as a whole will face criticism for institutional sexual abuse and for the historic cover-up of issues. This will pose a PR risk for all schools and for independent schools in particular. Parents are likely to seek reassurance that historic issues could no longer happen. In the light of the inquiry and recent regulator and media interest in schools which have faced safeguarding issues, we would recommend that all schools prioritise a careful review of their safeguarding arrangements at both governance and operational level. We would also suggest that, once you have assessed the risk of the inquiry to you, you prepare appropriate communications to staff and parents. You may wish to seek specialist PR advice with this and the school’s insurers may cover the costs of you doing so.
- Consider whether or not to self-report to the inquiry ‘I urge you to take a proactive stance towards the inquiry – to review your files, records and procedures voluntarily, and to take the initiative to self-report instances of institutional failure – rather than waiting for us to come and see you.’ While many welcome the inquiry and recognise that our historic systems did not do enough to protect children from abuse, I have not met anyone (other than the lawyers!) looking forward to their involvement in the inquiry or any school seeking appointment as a case study. Indeed, the question we are most commonly asked is: how best can we ensure that the inquiry light shines away from us? We cannot guarantee this. We do not yet know how much ‘credit’ a school will get from the inquiry (will it head off your involvement in a case study?) or in the media if it chooses to self-report. We would therefore recommend that this issue is considered on a case-by-case basis.
Conclusion
We would like to give credit for the title of this article to Robin Fletcher at the Boarding Schools Association who himself coined the phrase. It raises a valid question. Is it sufficient to keep a watching brief and to wait for Goddard? For the reasons set out and given that interim hearings of the investigations are about to get underway and applications for the first round of core participant status close on 5 February, we recommend that schools take proactive steps to assess and manage the risks posed to them by the Goddard Inquiry.
Tabitha Cave is a partner at leading education law firm Veale Wasbrough Vizards T: 0117 314 5381 E: tcave@vwv.co.uk W: www.vwv.co.uk Please contact Tabitha if you have any queries about the issues raised in this article
