Criticism after Argentinian women’s football coach cleared by FIFA of sexual harassment

Diego Alberto Guacci, the technical director of the Argentinian Under-15 and Under-17 women’s national teams has been cleared of allegations of verbal abuse and sexual harassment by a panel of three male FIFA ethics judges. Five female players had given evidence to FIFA accusing Guacci, of violating his duty of care over a number of years.

The FIFA Ethics Committee concluded in their final report that Guacci had violated a number of FIFA code of ethics articles, including “failing to protect, respect and safeguard the integrity and personal dignity of others”, “making use of offensive gestures and language in order to insult, isolate, ostracise players generally and individually”, “having engaged in acts leading to mental abuse, as well as for making use of hostile acts intended to isolate, ostracise players generally and individually” and having “sexually harassed [a player] by presenting her with unwanted and unsolicited images with pornographic content and by requesting her pictures of intimate parts”. However the judges concluded that “the evidence on file is insufficient to corroborate, to its comfortable satisfaction, the players’ account of the events,” but also that their verdict did not mean the ‘reported facts’ did not occur. Guacci has consistently denied wrongdoing.

The international players’ union Fifpro said: “The players were extremely brave to challenge the coach’s conduct and contribute towards making football a safer and more inclusive environment for their peers. The decision by the FIFA ethics committee raises questions about how much evidence is needed for disciplinary action and will deter other players from standing up against the perpetrators of harassment and abuse.” Fifpro also raised concerns about how professional football keeps players safe, the lack of gender diversity in the adjudicatory chamber, the length of time in carrying out the investigation which began in 2020, and the manner in which the report was published which “made it impossible for Fifpro to properly prepare the players for this deeply distressing decision that may significantly impact their wellbeing and careers”.

Written by Michael Lee, Solicitor at BLM (Michael.Lee@blmlaw.com)

Tackling online abuse: The Online Safety Bill

Since the COVID-19 pandemic there has been a four-fold increase in the online abuse of vulnerable children and charities including the NSPCC and the IWF (Internet Watch Foundation) are publishing for the development of technology to block the streaming of illegal content.

Whilst the technology is not easy to create due to the need for it to be extremely accurate whilst also needing to adhere to privacy laws, social media platforms such as Facebook and Twitter have expressed their commitment to incorporating such technologies into their software. Meta, Facebook’s parent company already uses Artificial Intelligence (AI) to detect live-streams and video calls which are likely to contain child sexual exploitation. In 2018 during just one quarter, Facebook removed 8.7 million pieces of content that violated their child nudity or sexual exploitation of children policies. Meta have set out their mission to tackle child exploitation online and state that they have collaborated with other safety experts and companies to develop photo-matching technology which aims to detect child nudity and previously unknown child exploitative content when it’s uploaded.

Whilst this is a positive step for social media platforms, there are ongoing concerns regarding the use of live-streaming technology such as Zoom and Microsoft Teams. The NSPCC has produced research which showed that 1 in 20 children in the UK who live-streamed with someone had been asked to remove an item of clothing. Unfortunately tech companies have not been as proactive in their use of safeguarding technology and so the NSPCC has called for the government to impose requirements under the Online Safety Bill for such companies to implement and invest in the relevant technology to stop live-stream abuse. Andy Burrows from the NSPCC said “Live-streaming services expanded rapidly during the pandemic, but in a race to roll out products tech firms put growth before children’s safety”.

The government has faced criticism for the delays in enforcing such legislation with the rates of online abuse continuing to increase. Concerns have been raised by the IWF regarding the increasing number of children having access to devices with built-in cameras and them having the opportunity to explore new technologies and spend more time online. “Parents need to talk as a family because we know that’s the best way to keep children safe,” was the advice of Emma Hardy, a spokesperson from the IWF. Concerns have also been expressed by both the IWF and other charities that the bill will not go far enough to stop online abuse.

The Online Safety Bill, which is being brought in to tackle online scamming and hacking in addition to sexual abuse, seeks to deliver the government’s manifesto commitment to make the UK the safest place to be online. Whilst it has been recently reported that the bill is unlikely to be fully operational until 2024, it will seek to force companies to have a duty of care to its users such as having a duty to protect them from harmful content. There is also a proposal to appoint Ofcom to have regulatory powers over social media sites, and those sites which breach Ofcom rules could be fined up to £18 million. Confirmation as to these proposals are to be debated.

Written by Nicole Clough, Paralegal at BLM (Nicole.Clough@blmlaw.com)

IICSA press release: LGBTQ+ child sexual abuse victims and survivors blamed for their abuse

IICSA has published its Engagement with lesbian, gay, bisexual, transgender and queer/ questioning + victims and survivors report. A link to the report can be found here

Some LGBTQ+ victims and survivors of child sexual abuse were told their identity or orientation was a result of the abuse they experienced, a new report by the Independent Inquiry into Child Sexual Abuse found. This severely damaged their self-identity and mental health, with some survivors being told they had brought the sexual abuse upon themselves.

Engagement with lesbian, gay, bisexual, transgender and queer/questioning + victims and survivors’ found LGBTQ+ children face specific challenges that make them vulnerable to child sexual abuse, with additional barriers making it difficult to disclose, access support or form adult relationships.

Most victims and survivors the Inquiry spoke to said they experienced confusion, frustration or difficulty with understanding their own sexual orientation or gender identity as a result of the sexual abuse. For many this was made much more difficult because of the myths, stereotypes and attitudes in society.

“Stigma and myths have been very prominent…There is far too much emphasis on the survivor and victim blaming and little understanding of LGBTQ+ lived experiences. This leaves the survivor feeling unheard and disheartened which makes seeking help much harder.” LGBTQ+ victim and survivor

The report also found some victims and survivors have had the ‘LGBTQ+’ label applied to them as a result of the gender of their abuser, rather than being allowed to define themselves. Many men also said that when they were younger they had been accused of ‘inviting’ sexual abuse because they showed an interest in other men by being stereotypically ‘effeminate’. 

“I’m in my late 50s … My generation grew up being told to keep quiet. As a younger person I was told the abuse was a result of being homosexual along with all the negative language being used at the time.” LGBTQ+ victim and survivor

Among the conclusions of the report were that we live in a heteronormative and cisnormative culture, with a deeply homophobic history. This continues to affect LGBTQ+ victims and survivors, particularly those who are older, and those who are from religious or cultural background which do not accept the legitimacy of LGBTQ+ sexual orientations and gender identities.

The Inquiry’s Final Report is due to be completed later this year.


Consent in abuse claims:  ABC v Durham County Council [2022]

There is a clear distinction between rape and sexual activity in breach of trust and the dividing line between them is consent: HH Judge Mark Gargan (para 126)

Background
The claimant alleged that she was raped by a residential care worker (XY) on 12 January 2008 when she was 16. There was no grooming or emotional manipulation and her evidence was that only in retrospect did she consider a rape had occurred. The residential worker who was 29 at the time of the alleged sexual assault denied that any form of sexual interaction took place and the defendant relied on a limitation defence, which succeeded.

The claim failed on the grounds of limitation but HH Judge Mark Gargan, applying Bowen, made a finding on the consent issue, taking the claimant’s case at its highest.

The claimant’s case

The claimant’s case was that the combination of: (i) her psychological make-up; (ii) XY’s position as a residential worker; and (iii) the claimant’s relationship with XY, was sufficient to establish that although she submitted to sexual intercourse (and appeared to do so willingly) there was no true consent. 

Judge’s findings

The judge reiterated that whether the claimant consented is a question of fact and set out Cutts J’s summary of the law on consent from the case of LB of Harringey v FZO:

A person consents to sexual activity with another if they have the freedom and capacity to consent.  Submission is not the same as consent.

The judge found that it was clear the claimant had the capacity to consent.  Therefore the question was whether or not she did so.  On the basis of the evidence he concluded he was firmly of the view that the claimant did consent to any intercourse that took place for the following reasons:

  • The claimant was sexually aware at the relevant time;
  • There was no evidence XY had subjected her to special treatment before the date of the alleged rape;
  • There was no evidence that XY offered any inducement to the claimant to consent to intercourse;
  • There is no evidence that XY made any threats to the claimant or coerced her into having intercourse;
  • The claimant’s contemporaneous understanding appears to have been that the intercourse was consensual in that, for example, she described “bragging about it” to another resident and that it had made her “feel special”;
  • The claimant was right to assert that any intercourse between her and XY was “wrong”.  It would have been a criminal offence.  However, it was not a tort if the claimant was “willing” in the sense that she freely consented to it;
  • The claimant’s Counsel’s submissions came close to asserting that no one under 18 could consent to intercourse with someone in a position of trust.  The judge stated he did not regard that to be the law.  There is a clear distinction between rape and sexual activity in breach of trust and the dividing line between them is consent;
  • The claimant submitted that the claimant’s psychological history may have made her more likely to agree to intercourse, in particular because she was vulnerable and in need of love and affection and because she was impulsive.  However, the judge found those factors would explain why the claimant consented rather than explaining that her consent was not freely given;
  • The claimant was right to assert she was not an adult.  She may well not have realised XY was committing a crime if he had intercourse with her.  However, she understood what intercourse was and that having such intercourse with XY was inappropriate (or “naughty” as she termed it).  Despite this the claimant agreed to intercourse;
  • The judge accepted that the claimant may have lacked some of the maturity to place the act in its full social context.  However, he said that is something that may be said of many teenagers who have sexual intercourse.  There is a myriad of situations in which greater maturity or hindsight can lead people to conclude that they had been unwise to engage in sexual intercourse.  However, the judge commented that does not mean that they did not give a valid consent at the material time.

The judge concluded that on all the evidence, assuming intercourse took place, it was more likely than not that the claimant freely consented to engage in it.  He rejected the claimant’s argument that a criminal offence for breach of trust under section 16 of the Sexual Offences Act 2003 was equivalent to a lack of consent and instead he applied the common law test and found that this was not a case where the claimant had submitted and so not consented.

It is rare consent is contested in abuse claims due to the sensitive nature of the issue.  The key factors in this case were a lack of any evidence of grooming on the part of the residential care worker and that the claimant’s contemporaneous understanding was that the intercourse was consensual even though she later developed the view that it was not.  This case is also a reminder of the different approaches to the issue of consent in criminal and civil law – any sexual activity between the claimant and XY would have been a criminal offence but it would not have been a tort if the claimant freely consented to it.


Written by Catherine Davey at BLM (catherine.davey@blmlaw.com)

Sexual abuse in Westminster

Sexual abuse casts a long shadow over Westminster.

Last week we found out that former MP Mike Hill has been ordered to pay almost half a million pounds in damages to a former employee he sexually harassed and victimised.  Details can be found here. His insurance cover is said to be limited to £250,000 and to have been exhausted in legal costs.  The claimant is considering pursuing the House of Commons for any shortfall.

Last week we also heard that a male Conservative MP was arrested over allegations of sexual assault – including rape – dating back to 2002 – 2009.  This MP is not allowed to attend the House of Commons during the investigation. In accordance with their usual practice the Met Police have not named him, and the press have not reported his identity either.  This follows the February 2022 judgment of the Supreme Court case in the case of Bloomberg LP v ZXC [2022] UKSC 5.  The Supreme Court ruled that in general a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.  The expectation is that if he is charged, he will be named.

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Everyone’s Invited: an apology from Westminster School

The headmaster, Dr Savage, of a top private school has issued a “sincere and unreserved” apology following the publication of two independent reviews, for any hurt caused to pupils following allegations of racism and harmful sexual behaviour.

The reviews were commissioned following the Everyone’s Invited and Black Lives Matter national campaigns. 

The Everyone’s Invited website was set up for survivors to share their experiences and post their testimonies completely anonymously; the mission to expose and eradicate rape culture.  

The school was one of many that appeared on the Everyone’s Invited website whereby pupils (past and present) posted 44 testimonies of sexual abuse and harassment they had experienced whilst at the school – mostly committed by other pupils.  Examples of harassment include verbal or online comments, sharing sexual images without consent, abusive relationships, sexual and sexist bullying, rape and the ignorance of the meaning of consent.  Social media was used to rapidly spread gossip, bullying and unsolicited sexual images.

The school is predominantly attended by boys with girls attending post-16.  Of the girls surveyed as part of the review into harmful sexual behaviours at the school, 65% had experienced at least one instance of the behaviours described above.   

Amongst the 70 recommendations following the review, the school was advised to overhaul its relationships and sex education curriculum and put more emphasis on how to create healthy relationships, educate on gender stereotypes and equality.  Staff should also receive training on how to deal with matters beyond the normal curriculum such as mental health support.

The Race Review found “Significant events, such as the spotlight on Black Lives Matter, led to an increased awareness of racism but the continued denial of racism and invisibility of the issue as part of the school environment led to a dichotomy between those for whom this was very important and those who felt that they had ‘done awareness’ – so there is no need to ‘keep talking about it’.

There are relatively low numbers of black pupils in the school making it ‘emotionally draining’ for those pupils to challenge racist behaviour thereby drawing additional attention to themselves.  It added that staff felt unsure how to effectively deal with racial harassment incidents.

The Race Review made 25 recommendations, including increasing the offer of counselling to victims, publicising its racial harassment policy and recruiting a more diverse teaching staff.

In response to the reviews, Dr Savage said “We certainly acknowledge that opportunities to learn have been missed in the past and welcome the advice in these reviews as to how we might reflect upon those and continue to improve”.   

The recommendations are not all specific to Westminster School and all schools should consider those recommendations and what more they need to do.


Written by Lyndsey Jackson at BLM (lyndsey.jackson@blmlaw.com)

Poles Apart – a regressive step?

In a previous blog on 1/2/22 ‘”But she wasn’t resisting”….reversing the presumption of Innocence’, I highlighted the approach taken to consent in New South Wales in rape cases. It is interesting to see a difference of approach, with a stark contrast being adopted in Canada – it being determined in recent Appeals that ‘non-mental disorder automatism’ (otherwise extreme intoxication by drink or drugs) is a legitimate defence against charges relating to violent crimes. However intoxication which is short of automation is not a defence.

On 13 May the Supreme Court of Canada ruled self-induced extreme intoxication can be a defence, which overturns a law passed by Parliament in 1995 (supported by women’s advocacy groups). The court said to prohibit such a defence was unconstitutional and violates the country’s Charter of Rights and Freedoms – resulting in 2 acquittals last week with a retrial ordered in a third case.

Supreme Court, Justice Nicholas Kasirer said: ‘Its impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It should therefore be declared unconstitutional and of no force or effect.’

Until now, the Canadian courts have been split on the issue, while women’s advocacy groups have argued the law is needed to protect women and children. Indeed the issue was considered by the Standing Committee on Justice and Human Rights in 2002 when it was resolved the Criminal Code should not be amended outside of a comprehensive review, and it should be left to the courts to determine to ensure a principled and consistent approach to any such defence. Indeed a consultation paper was previously released in 1993 but the amendment to the White Paper at the time was not pursued. It was said sane automatism has been established in very few cases, and was a rare and unusual event, and given a decision of the Supreme Court in 1999 (R v Stone – the issue to be determined on the balance of probability) there was no pressing need for codification.

Written by Jagdeep Hayre, BLM (Jagdeep.Hayre@blmlaw.com)

Scores of safeguarding complaints about after-school clubs

BBC News has uncovered that in the past five years more than 80 safeguarding referrals have been made about after-school clubs. Details about the referrals was obtained via subject access requests from local authorities and they include allegations of assaults, neglect, and sexual abuse.

After school clubs, sometimes referred to as wrap around care, help parents with childcare outside normal school hours.

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Further failures identified in education sector with publication of Holland Park School Investigation Report

An independent investigation commissioned by the Board of Governors at Holland Park School in Kensington recently completed its investigations and issued its 554 paged report.

While the full report is not being published to protect the identities of the staff and students who gave evidence to the investigation the Board of Governors published a summary of the report’s finding and core evidence on the 5 May 2022.

The summary will not make easy reading for those who have children attending the school.

Investigations into Holland Park School, which is a top London state school, considered allegations of bullying, discrimination, favouritism, breaches of safeguarding, dubious spending and vulnerable children and key worker children not being accommodated at the school during Covid-19 lockdowns against government guidance dating back to 2004 up until December, 2021. The investigation was also tasked with examining allegations that senior school leaders may have misled Ofsted.

The investigation, which was carried out by independent investigator, Jessica Joels of B3sixty, who specialises in workplace investigations found that “… based upon extensive and corroborative evidence provided during interviews, is that on the balance of probabilities every complaint is found to have happened.”

The school was under the control of Kensington and Chelsea local authority until September, 2013 when it became a single academy trust.

Kensington and Chelsea council said: “Up to 2013, the school was maintained by the local authority and was rated as outstanding in 2011 and 2014. If any concerns were raised directly with the authority, they were acted on straight away, especially if safeguarding issues were involved.

Over 100 former students and staff at the school were interviewed in the course of the investigation however, a number of members of the senior leadership team at the school declined to be interviewed, as did the former Chair of Governors.

The investigation was a two-stage process:-

  • Stage 1 – where staff and students were invited to send details of complaints to the investigation for review. A schedule of all complaints was compiled, together with supporting evidence. This was contained in an interim report to be delivered to the Board of Governors on 11th January 2022. More than 100 individuals submitted evidence.
  • Stage 2 – where participants identified from Stage 1 were invited to be interviewed.

The investigation found that:-

  1. There were breaches of safeguarding in respect of both students and staff and which included failure to support students who had been victims of peer-on-peer sexual abuse.
  2. There was bullying, discrimination and inequality towards both students and staff which in turn gave rise to a culture of fear, favouritism and inequality.
  3. There was discrimination against protected characteristics including overt sexism, Islamaphobia, and racism, while there was also a lack of knowledge around mental health and medical and physical issues for both staff and students.
  4. There was ineffective leadership and management including promoting newly qualified teachers to positions of senior leadership without appropriate training or experience.
  5. Ofsted inspectors were misled by senior leaders at the school who destroyed staff questionnaires relating to an Ofsted inspection in January, 2020 and who also took certain students off site and told other students not to attend school during the Ofsted inspection.

It appears that there are still significant lessons to be learned in the education sector about how to balance the rights and needs of the children/students against the competing pressure on schools to deliver excellent results, outstanding Ofsted ratings and be highly ranked on school league tables.

Written by Sharon Moohan, BLM (Sharon.Moohan@blmlaw.com)

Adult Social Care in 2022: immigration review and tackling recruitment shortages

The adult social care sector in England is facing significant challenges in recruiting and retaining staff, matters which could be affected by post-EU exit policies that seek to reduce net migration. The Migration Advisory Committee (MAC) recently reviewed these important issues and last month published a comprehensive report to government which runs to over 150 pages.

The key findings from the MAC – an independent, non-departmental public body that advises the government on migration issues – can be summarised as follows. The full report can be viewed here.

Conclusions

  • The adult social care sector in England faces a gap of 200,000 care workers by the end of this Parliament because of restrictions on immigration and a failure to attract UK workers to roles in the sector. Longer term, it is estimated there could be a shortfall of 1 million workers in the next 20 years.
  • Immigration policy cannot solve the crisis in the social care workforce, although it could mitigate some of the problems created by the shortage of care workers. The ending of freedom of movement of people (as a consequence of the UK’s exit from the EU) closed off a source of workers at a critical time for recruitment and retention.

Recommendations

  • Adopt a common framework for collecting data about the care workforce as a whole, because there is a “serious evidence gap about the labour market for directly-employed care workers, despite the role of public funds in employment many of them.”
  • Invest in training and career development to make social care more attractive for UK born workers.
  • Introduce a fully funded-minimum rate of pay for care workers that is greater than the National Living Wage. A minimum starting point should be £10.50 per hour “to be implemented immediately”. [The chair of the MAC, Professor Brian Bell, said that although this has already been implemented in Scotland it “however, will not be enough to address the issues and we urge the Government to go significantly further as quickly as possible.”]
  • Pay social care workers for hours at work even if their time is spent travelling or sleeping. The MAC considers that as long as these hours are not being adequately compensated, workers are being underpaid for their time spent at work and it recommends that where care is being provided through public funds, those funds should increase to reflect the additional costs involved.
  • Introduce more highly skilled roles to the Shortage Occupation List making it easier for employers to recruit from overseas.
  • Allow low skilled migrant workers enter the social workforce by revisiting the currently-suspended Tier 3 visa route (Tier 3 was designed for low-skilled workers filling specific temporary labour shortages via a temporary work visa).
  • Consider setting up umbrella body – possibly on a ‘pilot’ basis – to sponsor care workers from overseas. People who can demonstrate that their level of need requires live-in care would be able to recruit directly recruit from the umbrella body (this approach is modelled on SAWS, the Seasonal Agricultural Workers Scheme).

Commenting on the publication of the report, Dr Rhidian Hughes, Chief Executive of the Voluntary Organisations Disability Group (VODG), said:

“The Migration Advisory Committee’s report offers a further wake-up call for Government. The Voluntary Organisations Disability Group backs the Committee’s recommendation to fully fund a rate of social care pay above the National Living Wage. A fully funded £10.50 per hour social care rate would be a good start, but we know the true value of care work is much more. We need to be ambitious in rewarding talent for much-needed social care.”

What might it mean for civil claims?

The unprecedented recruitment challenges faced by the adult social care sector and highlighted in the MAC’s report might have some influence on civil courts assessing personal injuries claims which feature care needs. The recommendations in the report could play into arguments that privately funded care regimes are more appropriate than public sector provision.

The stand-out recommendation that carers be paid for travelling to work and for ‘sleeping in time’ could, if implemented, have a significant effect. It could risk re-opening the issues determined by the Supreme Court in Mencap v Tomlinson-Blake [UKSC 2018/0160] which held (a) that working time for the purposes of the National Minimum Wage did not include ‘sleep in time’ and (b) that carers should be paid only for time that they are awake and working.

A further concern is that if the costs of statutory funded care regimes increase as a result of some or all of the MAC’s recommendations being taken forward, that could have a ‘knock on’ effect on the cost of private care regimes. Should insurers detect significant increases in these heads of claim it will become ever more important to scrutinise the detail of proposed care regimes and, where necessary, to take a robust line on unreasonable costings.

The key question: will these recommendations be implemented?

The report was published towards the end of April, meaning there has been neither sufficient time for a formal response from government nor for any of the proposals to find their way into the new legislative programme outlined in the Queen’s Speech earlier this week.

The MAC’s recommendations, if implemented, face in to two sensitive topics for the current government: increasing public spending and opening up immigration. Those issues could very easily combine as a strong political headwind against implementation.

That said, the recommendations may well be seized on by other stakeholders in the sector as an additional element in ongoing campaigns about greater funding of public sector care. In the short term at least, the proposals from the Committee are probably not going anywhere. The first clues to the government’s reaction to them will have to await publication of the immigration Minister’s reply to the report and to Professor Bell’s covering letter of 27 April.

Written by Steve Lynch, Partner and Alistair Kinley, Director of Policy & Government Affairs issued on behalf of the Care, Statutory Funding and Rehabilitation SMG