Update on the Australian National Redress Scheme – will its effectiveness be impacted by recent significant awards of damages CSA claims in Australia?

As of April 2022, the Australian National Redress Scheme (NRS):-

  • Had received 15,280 applications.
  • Made 9,417 decisions – including 8,087 payments, totalling over AUS$700.1 million, with an average award of redress of AUS$86,566.
  • Had made 9,167 offers for redress. (Readers of this Blog will be aware that Applicants to the NRS have six months to consider their offer of redress).
  • 5,638 applications are currently being progressed.
  • 710 are on hold or paused, including 113 applications due to institution not participating (representing 1.8% of applications on hand).

The total number of applications finalised and redress payments from establishment to date are 8,476 applications with redress of AUS$700.1 million having been paid out to date.

There still remains a number of institutions that were either named in the Royal Commission and/or in an application made to the NRS that have failed to join the NRS and they are:-

CYMS Basketball Association, VIC

Devonport Community Church, TAS

Forrest Tennis Club, ACT

Kenja Communication, NSW

Woodlands Golf Club, VIC

As previously advised these institutions will have financial sanctions applied and may lose their charitable status until such times as they join the NRS.

However, the ongoing effectiveness of the NRS (where the average award of redress is AUS$86,566) in finally determining claims relating to CSA must surely be impacted by very significant damages that claimant’s are recovering in the Courts in Australia.

In our Blog on New South Wales Supreme Court, we commented on a recent judgement handed down by the Supreme Court in New South Wales where damages totalling AUS$1,353,850 including AUS$400,000 for general damages and AUS$40,00 for aggravated damages were awarded to a defendant who was sexually assaulted when he was aged between 14 and 16 years old.

This has been recently followed with an award of AUS$1.9 million to a former altar boy who brought a civil claim against Melbourne’s archbishop, Peter Comensoli, claiming the Catholic Archdiocese of Melbourne was vicariously liable for him being sexually abused by Victorian priest Desmond Gannon.

It is likely that this is one of the contributing factors to the sluggish rate at which applications for redress are being received by the NRS.

Written by Sharon Moohan, Large Loss Casualty Partner (Sharon.Moohan@blmlaw.com)

An update on the Scottish Abuse Inquiry

The Scottish Child Abuse Inquiry (SCAI) is now hearing evidence, at public sessions and both in person and by video link, on the abuse of children in foster care, including on children who were boarded out. This phase of evidence started on 3 May 2022 and is expected to run until autumn 2022.

Before the current phase on foster care, SCAI broke new ground by hearing from various experts over two days in March 2022 at “round table” evidence sessions. These focused on the psychology of individual adult abusers in the context of preventing the abuse of children in care. Between 1 and 8 June 2022, written submissions were lodged by the experts who attended these sessions and also by certain other experts.  

SCAI heard closing submissions on evidence relating to boarding schools on 17 February 2022. This phase of evidence involved over 220 witnesses and nearly 20,000 documents. In due course, SCAI will publish case study findings on the boarding school evidence. Case study findings on evidence heard previously on child migration also remain to be published. To date, SCAI has published seven sets of case study findings.

It remains to be seen whether any more case studies will follow after the foster care one. SCAI previously confirmed investigations into 4 young offender institutions, 3 local authority establishments and 3 further schools but has not yet confirmed whether evidence will be heard in public on any of those.

SCAI was established as a statutory inquiry under the Inquiries Act 2005 on 1 October 2015 with an overall aim of raising public awareness of the abuse of children in care (under 18) for the period “within living memory” of any person who suffered such abuse to no later than 17 December 2014. SCAI’s work will conclude with a report to Scottish Ministers. This report was originally to be delivered by October 2019 but the deadline for it was extended before the COVID-19 pandemic to “as soon as reasonably practicable” after then.

To 31 March 2022, SCAI had cost £55,309,420, with £3,654,009 expenditure incurred from 1 January 2022 to 31 March 2022 alone.

Frank Hughes, partner and Fiona McEwan, associate

Vicarious Liability in Australia – A brief look at the current position and how it accords with Vicarious Liability in England and Wales

The ongoing developments regarding vicarious liability in England and Wales have been covered previously by my colleagues in the BLM Abuse and Neglect News Blog; especially in light of the recent cases of Blackpool FC v DSN [2021] EWCA Civ 1352 and TVZ v Manchester City Football Club [2022] EWHC 7 (QB) in which the basis for a vicarious liability finding was considered in detail.

Some recent blogs on vicarious liability include:

In Australia, similar to England and Wales, there have been some recent cases dealing with the issue of vicarious liability which provide further guidance as to how these types of cases are being dealt with.

PCB v The Geelong College

The case of PCB v The Geelong College [2021] VSC 633 was hailed as a landmark case not only for the level of damages awarded as a result of a finding of liability on the grounds of negligence but also for reframing the way a Defendant ought to approach vicarious liability in proceedings concerning historic sexual abuse.

The Claimant brought proceedings against the College which established, owned and operated a building known as the House of Guilds which was a space for students to pursue hobbies and crafts. The Claimant alleged that a community member, who had no formal relationship with the College but was sometimes left to supervise the House of Guilds and occasionally had access to keys, groomed and sexually assaulted him on more than 50 occasions, including at the House of Guilds, in the community member’s car as well as the Claimant’s home.

The College submitted that it should not be held liable for various reasons including:
• It provided a full-time warden and had a system of rostering and supervision within the House of Guilds;
• Prior to the enactment of the Working with Children Act 2005, when the alleged conduct took place, was a “different time”;
• It was not in a position to exercise control over what happened on premises other than its own; and
• the abuse occurred as a result of contact between the Claimant and the community member that was arranged with the knowledge and permission of the Claimant’s parents.

As to the allegation that the College was vicariously liable for the abuse perpetrated by the community member on the basis that he was in an employment-like relationship with the College, the Judge dismissed it and affirmed that vicarious liability requires:

• the presence of a relationship of employer and employee; and
• a special role that the employer has assigned to the employee.

There had been no formal directions or assignments to the community member by the College thus there was no relationship between the College and the perpetrator.

As such the claim for vicarious liability was dismissed.

DP v Bird

The case of DP v Bird [2021] VSC 850 required the Court to consider whether the Diocese of Ballarat was vicariously liable for sexual abuse allegedly perpetrated by one of its priests, Father Coffey, on two occasions in 1971. The abuse occurred at Father Coffey’s home. He was the assistant parish priest as well as a teacher at the associated primary school.

The issues considered in that case were:

  1. Was the relationship between the priest and the Diocese or Bishop such that it gave rise to vicarious liability on the part of the Diocese for the priest’s conduct? (i.e. the nature of the relationship)
  2. If there is a relationship that gives to vicarious liability, is the Diocese or the Bishop liable for the priest’s unlawful conduct, it being accepted that the assaults were unlawful and far outside the priest’s clerical role? (i.e. should the Diocese be held liable?)

The Judge considering the matter ultimately found that the answer was yes to both of these questions and found that the Diocese were vicariously liable for Father Coffey’s conduct.

The Claimant relied upon authorities in the UK and Canada that the Diocese ought to be vicariously liable irrespective of whether the priest was an actual employee. The Diocese argued that unless it can be proven Father Coffey was its employee, then it cannot be held liable for the Father Coffey’s conduct arguing that the law in Australia at this time meant that considering vicarious liability outside of an employment scenario was prevented.

The Judge raised that “whether or not a priest can be said to be an employee of his or her diocese or bishop turns on the facts of the case, in particular, the manner of the priest’s appointment and the nature or structure of the relevant religious organisation”.

His analysis of the case law was that there was not a confined theory of vicarious liability restricted solely to an employer/employee relationship as contended by the Diocese.

For present purposes, it was accepted that the priest was not an employee of the Diocese as such but otherwise found in the claimant’s favour in respect of the nature of the relationship determining that vicarious liability ought not be limited to “preconceived notions of agency or employment” and, in line with other case law, “the inquiry ought to be directed to the totality of the relationship so as to enable a determination as to whether the Diocese should be held vicariously liable for Coffey’s actions as an assistant parish priest”.

The Judge considered the appropriate inquiry was whether Father Coffey’s role as a priest placed him in a position of power and intimacy such that his apparent performance of his role as a priest gave the occasion for the wrongful acts and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course of his employment.

It was ultimately found that Father Coffey was engaged in a pastoral visit when committing the alleged abuse thus in a position of power and therefore the Diocese was vicariously liable for Father Coffey’s conduct due to:

  1. The close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy (where St Patrick’s school was located),
  2. The Diocese’s general control over Father Coffey’s role and duties within St Patrick’s parish,
  3. Father Coffey’s pastoral role in the Port Fairy Catholic community; and
  4. The relationship between the Claimant, his family, Father Coffey and the Diocese, which was “one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey”.

Brief comparison with recent English case law

As above, I refer to my colleagues’ blog posts as to the specificities relating to the law of vicarious liability in England and Wales.

The general rule is that vicarious liability is considered via an established two stage test which is:

  1. Is the relevant relationship between the perpetrator and organisation one of employment or “akin to employment”? Where it is not clear then regard should be had to the following (amongst other issues as identified in the Christian Brothers case):
    • The employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability
    • The act will have been committed as a result of activity being taken by the employee on behalf of the employer
    • The employee’s activity is likely to be part of the business activity of the employer
    • The employer by employing the employee to carry out on the activity will have created the risk of the act being committed by the employee.
    • The employee will to a greater or a lesser degree have been under the control of the employer
  2. If so, was the act sufficient to closely connect with that employment or quasi-employment?

In respect of the recent cases of Blackpool and DSN (2021) and TVZ v Manchester City Football Club (2021), the Courts found:

  1. Blackpool v DSN – in the first instance, it found Blackpool Football Club to be vicariously liable as it was accepted that the relationship between the Club and abuser was one akin to employment and that the tort committed was in circumstances closely connected with the functions or duties arising from that relationship.  The Court of Appeal reversed this decision and held that the Club was not liable. The basis for this was that it was determined there was not a relationship akin to employment as there must be at the very least some measure of control that the Defendant is able to exert over the activities of the perpetrator to make it fair, just and reasonable to impose liability for his torts and in this case, “Blackpool FC was under no relevant statutory duty to boys who wanted to play football and did not ‘place’ the boys with Mr Roper in any meaningful sense of the word. The opposite was the case: Mr Roper scouted for boys who had no previous connection with Blackpool FC at all unless and until he introduced them to Blackpool.”
  • TVZ v Manchester City Football Club – regarding the issue of vicarious liability, the judge acknowledged that this was highly fact sensitive and that its resolution was not entirely straightforward: it depended on a detailed assessment of the nature of the relationship between the perpetrator (Mr Bennell) and the defendant.  The judge determined that the claimants had failed to establish ‘the essential ingredient of their case’, namely that Mr Bennell was in a relationship with the defendant “akin to employment” as Mr Bennell’s footballing activities were voluntary and undertaken in his spare time, his activities as a football coach had a distinct existence independent of the defendant, and there was very little evidence of the Defendant exercising control over Mr Bennell’s activities amongst other things.  As such the claimants’ claims were dismissed (as well as for other reasons including limitation).

Conclusion

The issue of vicarious liability still very much remains an area that needs to be considered in minute detail and on a case-by-case basis with each claim depending on its specific facts and circumstances. The specific role/s of the accused perpetrator, the supervising entity and the complainant always needs to be closely examined, including the context in which the alleged abuse occurred.  This is notwithstanding the specific test/criteria established and utilised in order to determine whether a finding of vicarious liability should be made.

What is clear is that the same issues relating to vicarious liability arise over various jurisdictions and a general unwillingness to make a finding of vicarious liability in cases where the specifics of an abuser’s involvement/employment with an association being sued is not crystal clear.  It is also important to be aware that whilst there are some recent (comprehensive) decisions in this area those in DSN (noted above) and in BXB v Barry Congregation of Jehovah’s Witnesses (2021) are being appealed and the latter will proceed to a hearing at the Supreme Court in late 2022.

Written by Suzanne Houghton, Solicitor at BLM (Suzanne.Houghton@blmlaw.com).

Australian news – stricter record keeping requirements for schools in the State of Victoria

New Child Safe Standards are being introduced in the State of Victoria, Australia, on 1 July 2022. We will focus on the record keeping requirements that schools in Victoria will have to follow to comply with the Child Safe Standards – noting that schools in England and Wales may be subject to similar requirements in the not too distant future.

From 1 July 2022 schools in Victoria will have to:

“develop a policy or statement that details the processes the school has in place to meet Public Records Office Victoria Recordkeeping Standards [PROV].”

Victorian law will impose these recordkeeping standards on independent and religious schools – as well as on state schools.

In response to the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, PROV introduced new record keeping standards. These standards require schools (and other organisations), to:

  • indefinitely retain records about the development of policy, strategy and procedure;
  • retain reporting and investigation records for 99 years; and
  • retain training and development records for 45 years.

The new law will also require:

  • school staff and volunteers to understand their obligations on information sharing and recordkeeping; and
  • that training for staff and volunteers includes guidance on the information sharing and recordkeeping obligations.

In its Interim Report, the Independent Inquiry into Child Sexual Abuse in England & Wales (IICSA) highlighted that documentation had been critical to the Inquiry’s work. For example, records relating to Knowl View School in Rochdale showed that the local authority had been aware of sexual abuse allegations but had ignored them, though this had been denied at the IICSA hearing. In other cases, poor record keeping or lack of records altogether, had hindered IICSA’s investigations. One organisation had retained hardly any records relating to its programme for migrating children to Australia, for example. The Interim Report noted that this indicated a ‘failure to have the welfare and needs of the children as priorities.’

Of general importance to schools and other organisations charged with a duty of care towards children the IICSA Interim Report specifically indicated that – “The inquiry will consider whether it can recommend changes that would particularly benefit victims and survivors of child sexual abuse.”

IICSA’s final report is expected to be published by the end of the year – perhaps as early as this Autumn. It is likely, if not certain, that recommendations will be made in the final report, that mirror some if not all of those new requirements that are shortly to be introduced in the State of Victoria. Indeed, it is possible that IICSA might event recommend wider record keeping requirements than those about to be implemented in Victoria, such as long or indefinite retention periods for holding reports of abuse made by pupils or others, and for retaining records of the investigations that took place following such allegations.

Written by James Chambers, Large Loss Casualty Associate at BLM (James.Chambers@blmlaw.com)

New Jersey Settlements

A New Jersey Catholic diocese has agreed to pay $87.5m to settle claims involving clergy sexual abuse with some 300 alleged victims. This is one of the largest cash settlements involving the Catholic Church in the US – although short of the $660m the Archdiocese of Los Angeles paid more to more than 500 victims in 2007.

The agreement between the diocese of Camden and plaintiffs was fled with the US bankruptcy court in Camden. The diocese had filed for bankruptcy following receipt of a number of lawsuits which stemmed from relaxation on the statute of limitations.

The relaxation on the law allowed victims of sexual abuse by priests to bring a claim up until the age of 55 or within seven years of when they realised that the abuse had caused them harm. The previous statute of limitations was age 30 or two years after first realising the abuse caused harm.

Although there are around 300 victims, details of the abuse have not been provided at this stage.

The diocese of Camden has issued an apology through Bishop Dennis Sullivan who stated – “I want to express my sincere apology to all those who have been affected by sexual abuse in our diocese. My prayers go out to all survivors of abuse and I pledge my continuing commitment to ensure that this terrible chapter in the history of the diocese of Camden, New Jersey, never happens again.”

Subject to approval from a judge a trust will be set up and funded over the next four years by the diocese to compensate the abuse victims who could receive up to $290,000 each. The deal also includes a provision that the diocese implements enhanced child protection measures.

The diocese said the deal calls for setting up a trust, which will be funded over four years by the diocese and “related Catholic entities” to compensate survivors of sexual abuse. Part of the deal also required maintaining or “enhancing” protocols to protect children.

The deal also paves the way for lawsuits against insurances firms that cover dioceses against charges of negligence. In previous abuse settlements with US Catholic institutions, insurers have been part of the agreement. The New Jersey deal is the first time a church abuse settlement has not included insurers, meaning the firms can be sued separately and victims can seek increased compensation.

Jeff Anderson who represents a number of the victims commented that this was “a pivot in the child protection movement” because of the potential to hold the church and their insurers to greater account.

Since the 1980s, US Catholic dioceses have reportedly amassed complaints from over 17,000 alleged victims and paid over $4bn in settlements. Clearly this figure has the potential to grow significantly with the New Jersey settlement leading a trend in that respect.

Written by Nicholas Leigh, Loss Casualty Associate at BLM (Nicholas.Leigh@blmlaw.com)

New South Wales Supreme Court provides updated guidance for assessment of damages in sexual assault claims

In a recent judgment handed down by the Supreme Court in New South Wales the court took the opportunity to provide clarification regarding the assessment of damages where the claimant/plaintiff has been the victim of a sexual assault.

The Court was clear that the restrictions and limitations contained in the Civil Liability Act 2002 (NSW) relating to the assessment of damages do not apply to claims involving sexual assaults and that damages in these claims will be assessed in common law.

The claimant in these proceedings was working at a cinema owned by the defendant when he was aged 14 to 16 years old. During this time he was groomed by the defendant before being sexually assaulted by the defendant on numerous occasions.

The claimant gave evidence of several sexual assaults that he was subjected to between August 1986 and December, 1987. The defendant did not dispute the occurrence of the assaults (which was not unexpected as the defendant had been convicted of multiple indecent assaults of a person under authority and soliciting a male under 18 to commit homosexual intercourse for the alleged acts against the plaintiff).

The Court was asked to determine whether the alleged assaults had taken place and if so what impact they had on the claimant’s psychiatric diagnosis and presentation. The Court was also asked to assess the level of compensation and aggravated damages that should be awarded to the claimant for the tort of trespass to the person.

The Court was advised that after the claimant ceased to work at the cinema and have contact with the defendant that he suffered from addictive behaviour in terms of his relationship with alcohol and pornography.

The claimant also became obsessive about controlling the privacy surrounding his own personal life, he was aimless in terms of progressing his life and overall ambitions which the claimant says was due to the impact of sexual assaults.

The claimant went on to tell the Court that the sexual assaults severely adversely impacted his ability to have and maintain normal personal and social relationships, to progress his career and in fact his overall ability to enjoy all aspects of his life.

The claimant’s family gave evidence to the Court as to how they believed the claimant was impacted by the abuse, they watched him change form a sociable, well-motivated young man in terms of educational attainment and general ambition to someone who became moody, withdrawn and dis-interested and who struggled in terms of managing his own emotions and his ability to relate to others.

The claimant had been examined by two consultant psychiatrists, both of whom gave evidence at the trial and prepared a joint report. They agreed that the claimant suffered form a persistent depressive disorder and episodic alcohol abuse disorder.

However, the psychiatrist on behalf of the claimant was of the view that the sexual assaults contributed to the claimant’s diagnosis as set out above whereas the defendant’s psychiatrist differed and stated that it was only one of a number of contributing factors that had contributed to the claimant’s presentation at the time of examination. The additional factors included alcoholism and bipolar disorder, his challenging relationship with his parents, a traumatic brain injury that his son suffered in 2009, difficulties in various relationships and his partner’s own psychiatric disorder.

The NSW Supreme Court concluded that:-

  • The defendant was liable and accepted the claimant was sexually assaulted by the defendant in four of the seven alleged assaults that were before the Court.
  • Determined that these four sexual assaults were causative of the claimant’s psychiatric disorders and in doing so they preferred the evidence of the claimant’s psychiatrist and placed significant weight on the evidence before the Court showing that the claimant did not exhibit any psychiatric symptomology up until the time of the assaults, and most importantly that there was no evidence that he displayed any mental health issues prior to the sexual assaults by the defendant.
  • Held that section 3B(1)(a) of the Civil Liability Act 2002 (NSW) (which stipulates that the Act does not apply to civil liability from an intentional act that is a sexual assault) applies, which meant that the restrictions and limitations contained in that Act relating to the assessment of damages did not apply. As stated above this meant that damages were assessed at common law.
  • Awarded damages totalling AUS$400,000 for general damages and AUS$40,00 for aggravated damages.

This judgment of the NSW Supreme Court cements the view that when assessing common law damages for claims relating to sexual assault/abuse, in the absence of other causation factors or intervening events, the Courts in NSW will be willing to accept that the claimant’s mental health problems are linked to sexual abuse and/or assaults that took place in childhood and/or earlier in life.

The judgment highlights the importance of fully investigation the claimant’s life both before and after the alleged sexual assault/abuse in terms of other causation factors and/or intervening events and in particular the need to forensically examine a claimant’s medical, counselling, social work and possibly even educational records so as to ensure that all possible other causation factors have been investigated.

This judgment read in conjunction with recent judgments in Scotland, England and the introductions of the 16th edition of the JSB Guidelines in England and Wales, all of which have been covered in detail in this Blog in recent months, point towards a more nuanced and generous approach by the Courts and Judiciary in the Common Law jurisdictions to the assessment of compensatory and aggravated damages in claims which result from sexual and physical abuse.

Written by Sharon Moohan, Large Loss and Casualty Partner at BLM (Sharon.Moohan@blmlaw.com)

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)

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)

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)