16th edition of the JSB Guidelines

The 16th edition of the JSB Guidelines will be published on 11 April.

There will be a new category specifically focused on sexual abuse. That follows additional commentary in the 15th edition and the lengthy comments of Johnson J about the approach to quantum in the judgment in TVZ & Others v Manchester City Football Club (2022). A further blog with detailed commentary on the new category will be published next week.

Written by Paula Jefferson at BLM (paula.jefferson@blmlaw.com)

Abuse survivor speaks out on concerns about Facebook’s security

Abuse survivor and campaigner Rhiannon-Faye McDonald has written an open letter to Facebook about her concerns with their proposed new safety measures due to come into effect from 2023.

Facebook is proposing end-to-end encryption on messages on the platform which means messages can only be accessed and read by the sender and recipient. This change is said to protect personal data, however is it protecting the vulnerable; specifically children who often meet their future abusers online?

Rhiannon-Faye was abused as a 13 year old following interaction with her abuser online. It started when Rhiannon-Faye began speaking to who she thought was a teenage girl online about modelling resulting in her sending a topless photo in order to get work. Within 24 hours her abuser, who was posing as the girl’s boss, arrived at her family home and that is when the abuse occurred.

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IICSA residential schools report

Conclusions and recommendations

The Inquiry’s Residential Schools Report has concluded that schools are not as safe for children as they should be and that children’s interests still do not always come first when allegations of sexual abuse are made.  The report states that in spite of increased awareness of the risk some children continue to experience sexual abuse and sexual harassment in schools and highlighted the particular safeguarding challenges prevalent in music schools, boarding schools and residential special schools.

The report states that schools need to alter their mind set and accept that ‘it could happen here’ and in the case of harmful sexual behaviour between pupils that ‘it probably is happening here’. The Inquiry heard evidence about ineffective safeguarding in schools during the past 20 years and the testimonies on the Everyone’s Invited website demonstrate that currently, for children in some schools, sexual abuse and harassment between peers remain endemic. 

The report adds that many of the schools examined by the Inquiry responded inadequately to allegations against their staff and in some cases there was a culture which discouraged reporting. Too often, the Inquiry saw examples of head teachers who found it inconceivable that staff might abuse their positions of authority to sexually abuse children, were unaware of current statutory guidance or did not understand their role in responding to allegations against staff. It was clear that some staff were more focused on protecting the reputation of the school than protecting the interests of the children.

The report also highlights that for many victims and survivors, the impact of abuse has been profound and lifelong. In addition, it mentions that many of those in positions of authority and responsibility have not been held to account for their failures of leadership and governance and that many perpetrators have not been brought to justice.

The recommendations made in the report can be summarised as follows :

  • Specific recommendations for residential schools to include inspection, reporting duties and a system of licensing and registration of educational guardians for international students
  • The introduction of national standards for LADOs to promote consistency and statutory guidance confirming that LADOs can provide informal advice
  • Amendments to Independent School Standards to include the requirement to have an effective system of governance
  • The establishment of nationally accredited standards and levels of safeguarding training in schools, with the highest level of training being mandatory for head teachers and DSLs
  • Schools to be required to inform the relevant inspectorate when a member of staff has been referred to the DBS, the Teaching Regulation Agency (TRA) or the Education Workforce Council
  • Regulations to be amended to bring all teaching assistants, learning support staff and cover supervisors within the misconduct jurisdiction of the TRA

The potential impacts of the report

We share a number of thoughts as to the potential impact as follows:

  • This report may well encourage previously reluctant victims of historical abuse in schools to come forward and/or be encouraged to do so.
  • The number of schools investigated by IICSA was only a very small sample. There will be other school in England and Wales which could have had similar historical CSA issues. Victims from those schools may well now feel empowered to raise complaints and claims.
  • Renewal audits, especially with Independent Specialist schools, should ensure that the schools safeguarding policy reflects good practice and takes account of the recent recommendations.  Particular focus should be given to the schools ability to review, monitor and respond to Specialist Tutors performance or concerns about their behaviour.
  • The Everyone’s Invited (“EI”) movement is referenced a number of times in the report. EI focusses on more contemporary, peer on peer abuse and harassment behaviours. EI has a significant and very active media profile and the types of claims that could arise from EI scenarios are much wider than conventional CSA injury claims. Potential arguments around systemic failings in an institution’s safeguarding practice, and the impact these failings had on the claimant’s mental health are likely to be referenced in claims. The combination of all these factors and the additional profile raising of EI by IICSA may well have a significant impact on the claims numbers and the way they are presented.
  • EI is referenced in complaints raised directly with schools.  Complaints of harassment are raised alongside systemic failure allegations;  accounts from fellow pupils are referenced to support complaints about a schools failures to adequately respond to inappropriate behaviour/harassment/assault. 
  • Limitation and mandatory reporting are going to be the subject of IICSA’s final report expected “later in 2022”. The nature of the recommendations made by IICSA may impact on future civil claims for damages.

Written by Sarah Murray-Smith at BLM sarah.murray-smith@blmlaw.com

Historic Abuse and Statute of Limitations

Limitation in historic abuse claims has been a controversial concern for some time as strict application of the statute on Limitation can result in unfair outcomes.

As a consequence there is a groundswell of support for review and revision of limitation periods in such cases.

There is a current lack of uniformity.

In England and Wales primary limitation periods remain subject to a three year period from when a claimant reaches majority (age 21), albeit subject to discretion to extend the period in certain circumstances.

However in other jurisdictions change is already afoot and embedded.

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IICSA publishes Residential Schools report

Today, the Independent Inquiry into Child Sexual Abuse has published its Residential Schools report.

IICSA PRESS RELEASE: Schools reluctant to report child sexual abuse by staff and pupils, report finds

A new report from the Independent Inquiry into Child Sexual Abuse highlights shocking and horrific instances of child sexual abuse in schools, with some teachers exploiting their positions of trust to groom and abuse children across all types of educational settings examined by the Inquiry. 

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The NHS trust, the psychotic patient and his daughter

Traylor v KMPT [2022] EWHC 260 (QB)

Child protection takes many forms. Agencies may be called to protect children at risk of physical abuse from their parents who are suffering from a serious psychiatric illness or disorder. We report on an interesting decision about the liability of an NHS trust towards a patient treated under the Mental Health Act 1983, and allegations it breached the human rights of the patient’s daughter. See judgment here.

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Abuse within swimming – independent investigation into Ellesmere College Titans

Ellesmere College Titans, an elite swimming club based at Ellesmere College, an independent boarding school in Shropshire, is to close following an independent investigation which found widespread failures to protect children, leading to eating disorders, bullying and significant mental health issues.

The investigation began in 2020 when parents contacted the club’s governing body, Swim England, concerned about children’s welfare.  The investigation (commissioned by Swim England) uncovered more than 70 separate complaints concerning some coaches’ behaviour and the club management’s failure to deal with multiple serious issues concerning the children.

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Northern Ireland HIA Redress Scheme review formally commenced

In our blog of 13 July, 2021 we reported that the then Northern Ireland First Minister Paul Givan and Deputy First Minister Michelle O’Neill announced the establishment of a review of the client journey for HIA redress to improve the experiences of victims and survivors.

On 15 December, 2021 the then Northern Ireland First Minister Paul Givan and deputy First Minister Michelle O’Neill announced that this review had commenced.

The Review is being undertaken with a view to putting the needs of victims and survivors of abuse at the centre of the redress process.

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Collapse of Northern Ireland Executive impacts apology to victims of historical institutional abuse in Northern Ireland

Readers of this blog will be aware that last month we commented on Northern Ireland announcing its intention to make a public apology over historical institutional abuse on 11 March, 2022.

On 3 February the Northern Ireland First Minister Paul Givan of the DUP announced his resignation and this meant that the deputy first minister, Michelle O’Neill of Sinn Féin, lost her post too.

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Another substantial award for non-recent childhood abuse in Scotland

Although the full decision has not yet been put in the public domain, it was reported last week, both on the BBC (link here) and widely in the press, that a 173 page judgment, making another substantial award of damages for non-recent childhood abuse in Scotland, has recently been handed down by Sheriff Dickson sitting at the All-Scotland Personal Injury Court (ASPIC).

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