By Ian Brownhill, Barrister, Essex Chambers

Experience

If you haven’t read the survivor testimonies on, “everyone’s invited”, then I would encourage you to do so. The website (everyonesinvited.uk) gives an opportunity for people to outline their experiences of sexual misconduct in education settings.

The experiences range from verbal or online harassment to what are clearly sexual offences including rape. The survivors are of both genders, the perpetrators are of both genders. Some of the perpetrators described are individuals in authority, teachers or staff members at institutions. Other perpetrators are close friends or total strangers.

The incidents have taken place in a variety of different locations, some are at house parties or in public places. Others are in boarding houses at schools or in classrooms. A number of the testimonies describe incidents which took place on school trips or the commute from home to school.

For some survivors their experience has carried with them into adulthood, a secret they have only shared anonymously on the website. In other cases survivors have shared what happened with friends. A few detail how they had reported what had happened to them to authority figures, they tended to have told teachers and on many occasions were told to ignore what had happened.

Surprise

Some people are surprised when they read the survivor testimonies. The Secretary of State for Education described the testimonies as, “shocking and abhorrent” according to The Independent. Perhaps some current school and university students will be shocked by what they read, as will those who work in educational settings.

I am not surprised at the number, variety, or contents of the testimonies. For one, the Women and Equalities Committee of the House of Commons produced a report in September 2016 titled: Sexual harassment and sexual violence in schools. In the conclusion, the Committee was quite clear:

Sexual harassment and sexual violence in schools is a significant issue which affects a large number of children and young people, particularly girls, across the country. Evidence shows that the majority of perpetrators of this abuse are boys, and the majority of victims are girls. However it is essential that the negative impact on both boys and girls is recognised and addressed.

In my own practice, I have dealt with sexual harassment and sexual violence in education settings every year since becoming a barrister. At the start of my career it was often in the context of the Youth Court, today I deal with these matters in internal processes at schools, exclusions and appeals, cases in the Court of Protection, the Administrative Court and in the County Court. What is universal in these cases is the surprise that at least somebody in the school’s leadership will express that an issue has arisen at their school.

Responses

Universities have not perfected their responses to sexual harassment and violence. However, many are better prepared compared to schools. In particular, the vast majority of universities have now adopted their own sexual violence and harassment policies. These policies provide for particular processes to be followed when there a sexual allegation or issue raised. Comparatively, schools have kept the issues of sexual violence and harassment embedded in other policies. Often these are policies to do with discipline, safeguarding or on occasion even anti-bullying.

Whereas many universities have established clear procedures as to when the police will be involved in a particular issue, a number of schools haven’t done the same. Where issues are investigated internally, it tends to be teachers who lead. Comparatively, a number of universities have now contracted with consultancy companies who employ former police officers to investigate such allegations.

The Government’s response was to set up a helpline with the NSPCC and to ask OFSTED to review safeguarding processes. OFSTED are posing eight questions which range from inspection frameworks to why children and young people don’t feel able to report sexual misconduct. Ofsted have stated that they will work with representatives from social care, police, victim support groups, school and college leaders and the Independent Schools Council. The review is due to conclude by the end of May 2021 and will seek to establish where safeguarding arrangements and processes are good and have worked well and where improvements are needed.

A lawyer’s perspective

Of the eight questions they have posed, there are three which OFSTED could helpfully pose to lawyers who are instructed in these cases.

How well are safeguarding guidance and processes understood and working between schools, colleges and local multi-agency partners?

In my experience, schools have a strong understanding of safeguarding processes, especially where there is information which relates to inappropriate contact between students and staff. The requirement for mandatory training has embedded the concept of safeguarding generally in most schools. Processes start to fail, or become more complex, where there is a conflict as to which pathway is to be followed. The most obvious example being where there are concerns as what has happened between students, this is sometimes managed as part of a school’s disciplinary process and a safeguarding focus is lost.

Does working between schools, colleges and local safeguarding partners, including local authority children’s social care, the police, health services and other support, need to be strengthened?

Undoubtedly so. Whilst awareness around grooming has increased, what is apparent from everyonesinvited.uk is that there remain extant risks in this regard. Concerning too are the accounts where sexual images have been shared, or even sold, without the consent of the young person in the photograph.

The wider issue which often arises is when the police are involved and who decides to involve them. Likewise, there needs to be an increased awareness that the criminal justice system is not the only means of keeping young or vulnerable people safe from exploitative sexual behaviour. The High Court has stepped in to offer a protective solution, see for example Birmingham City Council v SK [2016] EWHC 310 (Fam) and Re SF (Injunctions) [2020] EWCOP 19. However, for these injunctive solutions to work there has to be a sufficient body of evidence to put before the court.

How does the current system of safeguarding in schools and colleges listen to the voices of children when reporting sexual abuse whether occurring within or outside school?

The reporting system is now established and embedded in most schools. However, that system has a focus upon where a child or young person discloses abuse. What is more difficult is information being captured and shared where the child or young person is not the victim of abuse but is perhaps a witness to it.

Anecdotally, those in safeguarding roles within schools raise concerns with their lawyers that safeguarding referrals do not always garner a response. Likewise, it is apparent that students have been discouraged from reporting issues as, “boys will be boys” or because incidents have taken place outside of the school setting.

A thought-provoking response to everyone’s invited has been from some schools who have indicated that they cannot look into anonymous or historic complaints. Whilst it would be difficult to conduct a review as to whether particular incidents occurred, it is less difficult to review whether there was appropriate action taken at a material time. A number of charities and schools have undertaken similar reviews in recent years.

A system

However OFSTED answer their eight questions, it is obvious that things need to change. That change is likely to manifest itself in some form of policy or legal framework. A broadly drafted statutory duty is of questionable utility.

Whatever framework is devised, it has to accept that safeguarding students from sexual harm in schools cannot be the sole responsible body. Likewise, the framework has to equally apply to those students who go to independent schools as to those who attend state schools and academies.

The framework for schools should learn from the experience of universities and should consider whether sexual violence and harassment should be a standalone policy or process within schools, distinct to the main safeguarding or behaviour policies. There ought to be a clear, auditable, understanding of what information will be passed to the police and other safeguarding partners. Survivors, and indeed schools, need to have a clear set of expectations when other public bodies are involved.

An expectation that something will be done when an issue of sexual violence or harassment arises is the foundation of a system which properly protects students from harm. It acts as a deterrent too, it deters not only the perpetrators of such harm but would also discourage those who would simply dismiss sexual harm as a cultural issue, or a matter of immaturity.

Ian Brownhill, Barrister, 39 Essex