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

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)

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)

FA Inquiry – an update

The independent Inquiry commissioned by the Football Association to investigate child sex abuse in football between 1970 and 2005 has this week advised that it will delay its findings.  The inquiry was due to publish its final report towards the end of this year.  Continue reading

Inquiry into the issues raised by the Paterson case

Surgeon Ian Paterson was convicted in May of 17 counts of wounding with intent and sentenced to 15 years in prison for carrying out unnecessary breast operations on nine women and one man. Significant numbers of other former patients of Paterson’s were similarly harmed. Yesterday the Government announced an inquiry into the “‘issues raised by the Paterson case.”

Continue reading

Scottish Child Abuse Inquiry: Update

The Scottish Child Abuse Inquiry has announced that its preliminary hearing will be held on 31 January 2017, taking place at Parliament House, Edinburgh, from 11am.

No witnesses will appear nor will evidence be heard at the preliminary hearing. Rather, the Inquiry Chair, Lady Smith will explain the Inquiry’s approach to its work and will provide an update on the Inquiry’s current investigations. She will also:

  • Set out the Inquiry’s key procedures, including how people and interested parties may participate in the Inquiry and the different ways in which the Inquiry is gathering evidence; and
  • Share information about the proactive communications campaign to drive public awareness of and engagement with the Inquiry.

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Siobhan Kelly, partner

IICSA Mixed Messages

Once again the IICSA has hit the headlines. That has not been because of the work of the Truth Project which is now operating in London and Wales; the further research being commissioned in connection with child sexual abuse; or preparation for the first seminars at the end of November. They are examples of the Inquiry “getting on with the job” but those stories have been hidden by more controversy and criticism. The Inquiry needs to address the negative publicity otherwise it will lose all trust and face more accusations of cover-up and secrecy, the irony of which will not be lost on those who have suffered abuse.

Continue reading

IICSA – finances

The IICSA has published details of the salary of Prof Jay and the cost of the Inquiry to date (£14.73m). As expected the salary is lower than that of Dame Goddard. More surprisingly the first year budget of £17.2m was not all spent and the surplus was returned to the Home Office. This surplus may be due to good financial housekeeping or possibly because progress was not made in certain previously anticipated areas. One such area may be the lack of a permanent location for the hearings to proceed or because it has taken longer to reach the current stage and so hearings have not yet been possible.

Prof Jay’s salary will be £185,000pa, just over half of the sum to Dame Goddard and without all the additional costs. The two largest cost elements of the Inquiry to date have been staffing and legal costs. These were followed by Estates and Information Technology. No details have been given of the budget for the next year but it is fair to assume that at least a similar sum will be spent as the case studies and hearings proceed.


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Paula Jefferson, Partner