Exposure to danger

Understandably, much of the commentary around Everyone’s Invited focusses on what is perceived to be cultural issues affecting young people, and what schools can do to foster a positive culture and address a negative one. Linking specific harm to alleged failures in that task will always be difficult, as in the related area of school bullying. This should not obscure the fact that there are mistakes schools could make which, whilst not establishing a direct legal liability for the wrongs of pupils, could readily produce sufficient causal link to create liability.

Foremost amongst these is facilitating the opportunity for misconduct to take place, without sufficient regard to the risks. The plainest case would arise from a school disregarding what it knows, or ought to reasonably know, about the character or history of a pupil when placing them in a position which they could exploit to do harm to others.

Given the extent of unsupervised pupil leadership (particularly in the independent sector, especially involving boarding) this could be an area of particular concern. However, such pupil leadership, to foster the responsibility of young people, is generally regarded as a social virtue. Indeed, many parents seek out schools which lay a great deal of emphasis upon it. Encouraging appropriately self-reliant young people is perhaps more likely to be a protection against the kind of behaviour addressed by Everyone’s Invited than it is to encourage it.

This is important. It means that courts and others are unlikely to look unfavourably on such cultures. Schools should therefore be reluctant to adopt a purely safety first response to the current concerns. However, this must be balanced by taking active steps to listen and watch for signs, particularly of certain pupils having a potentially disproportionate influence on others.

This is a question of pastoral and educational experience, not law. Yet some things seem pretty obvious – even to a lawyer. For example; staff sharing what they see and hear with others frequently; checking records before placing a pupil in a position of particular responsibility (for example dormitory supervision), not simply relying on institutional memory (though that is important too); moving pupils around and taking other steps to ameliorate the natural tendency of youngsters to form cliques, which can be hard to penetrate, by both other pupils, and, most importantly, by adults. They need to do so to be informed about the culture which is prevailing in their school. After all, it is the daily interactions between pupils that drive the real culture of any school, far more than the pronouncements of staff and governors.

Richard Wilkins, Partner (Barrister), BLM
richard.wilkins@blmlaw.com

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