The new school year means new guidance for schools and colleges from the Department for Education (DfE). On Monday 2 September 2019, the DfE will publish its updated guidance - Keeping Children Safe in Education (KCSIE), at which point the current KCSIE 2018 will be withdrawn. You can read a draft version of the incoming KCSIE 2019 online now here, but schools and colleges should continue to have regard to KCSIE 2018 until 2 September 2019.
We set out here a summary of the key changes and some reflections on what schools and colleges should consider doing in response to them. A full list of changes can be found in Annex H to the draft guidance online.
- Multi-agency working – new local multi-agency safeguarding arrangements should soon be (if not already) in place in your area. KCSIE 2018 and “Working Together: Transitional Guidance” 2018 gave notice that Local Safeguarding Children Boards and Serious Case Reviews were due to be replaced by a new system (to differ from area to area) involving the three key safeguarding partners – the local authority, the clinical commissioning group, and the chief officer of police. Details of your new local arrangements should have already been published (the deadline was 29 June 2019) and the deadline for everything to be operational is 29 September 2019. See draft KCSIE 2019, paragraphs 68 to 75.
If you haven’t yet been contacted by your Local Authority Designated Officer to let you know how the key safeguarding partners in your area propose to work together and what the role of schools and colleges will be in these new arrangements, you should get in touch to find out what the changes are and when they will take effect. Your own policies and procedures should be updated to reflect what’s new and staff should understand what their roles and responsibilities under the new system will be. Until changes are in place, schools and colleges should continue to work with the Local Safeguarding Children Board as usual.
- Upskirting a new criminal offence – the offence of upskirting came into force in April 2019 and has been included in the list of examples of peer-on-peer abuse that staff should look out for. Upskirting involves taking a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks to obtain sexual gratification, or cause the victim humiliation, distress or alarm. Perpetrators could face up to two years in prison if convicted. See draft KCSIE 2019, paragraphs 27 – 28.
Schools and colleges should include information about upskirting in their relevant policies and ensure staff and students understand that such conduct is criminal and instances of it should be reported to the relevant authorities. Some more information about upskirting is available here.
- Serious violence – this new section lists some of warning signs that staff should be aware of which indicate that a child may be at risk of or involved in serious violent crime. The guidance expects schools and colleges to be aware of the risks associated with serious violence (including involvement in criminal networks or gangs) and the measures in place to manage them. The guidance directs staff to the Home Office’s Preventing youth violence and gang involvement and its Criminal exploitation of children and vulnerable adults: county lines guidance. See draft KCSIE 2019, paragraphs 29 – 30.
Schools and colleges should update policies and training to ensure staff are be able to spot indicators which may signal a child’s involvement with violent crime and are aware of the Home Office guidance about how to respond appropriately.
- Information sharing – this section remains unchanged from KCSIE 2018 but is worth highlighting again as many safeguarding practitioners have reported a lack of confidence around what they can and cannot do under the new data protection regime.
The DfE emphasises that, “The Data Protection Act 2018 and GDPR do not prevent, or limit, the sharing of information for the purposes of keeping children safe. Fears about sharing information must not be allowed to stand in the way of the need to promote the welfare and protect the safety of children.”
It directs schools and colleges to the July 2018 Government guidance, Information Sharing: Advice for Practitioners Providing Safeguarding Services to Children, Young People, Parents and Carers, which includes “seven golden rules for sharing information” as well as some useful “myth busters”.
We would also point you to the Farrer & Co “Unified Law of Child and Data Protection”, devised by our very own Owen O’Rorke, which runs:
“If your job involves protecting children, and you think data protection law is getting in the way of your doing that job properly, then you have not understood it; but if you do not think about data protection law when you are doing that job, then you will not be doing it properly anyway.”
In other words, data protection law is not a barrier, but it is a system of checks and balances to be borne in mind when recording, sharing, and retaining vital but sensitive data.
Schools and colleges should ensure that policies, training and practice give staff the confidence to know when, how and to whom they can share sensitive information when dealing with a safeguarding concern. The training should also cover how to record that information in a neutral and professional manner, focusing on what is necessary for the safeguarding purpose.
- Opportunities to teach safeguarding – governors and proprietors of schools and colleges should ensure that children are taught about safeguarding (including online safety), and relevant topics could be included as part of Relationships Education, Relationships and Sex Education and/or Personal, Social, Health and Economic (PSHE) education. See draft KCSIE 2019, paragraph 89.
From September 2020, the Government will be making Relationships Education (for all primary pupils), Relationships and Sex Education (for all secondary pupils), and Health Education (for all pupils in state-funded schools) mandatory.
The draft guidance also states that monitoring and filtering should be in place on schools’ and colleges’ systems, but that this should not impose “unreasonable restrictions” on what children can be taught about safeguarding and online safety. The DfE’s new guidance on “Teaching Online Safety in Schools” (June 2019) is included at Annex C to the draft KCSIE 2019 and is available here.
Schools and colleges should review their curricula ( particularly in light of the new online safety guidance) to ensure it covers key safeguarding topics. Schools and colleges should review its IT monitoring/filtering systems to ensure they do not prevent students from accessing useful and appropriate content that could assist with the delivery of a thorough and effective safeguarding curriculum.
- Ofsted inspections – from September 2019, Ofsted’s inspection of early years, schools and post-16 provision will be carried out under “Ofsted’s Inspection Framework”. In addition, the Independent Schools Inspectorate (ISI) is approved to inspect certain independent schools and has published a framework which informs how they inspect on their website here. See draft KCSIE 2019, paragraph 91.
Schools and colleges should identify their inspecting authority and be familiar with its framework and standards.
- Overseas-trained teachers – the DfE guidance on the employment of overseas-trained teachers is under revision and reference to it has been removed from the draft KCSIE 2019. Schools and colleges are directed to information on the Teaching Regulation Authority (TRA) site in the meantime here. See draft KCSIE 2019, paragraph 157.
While waiting on the new guidance on this, schools and colleges should review the current guidance on requirements for overseas qualified teachers and ensure current and incoming staff have the relevant qualifications. Schools should always insist on and follow-up on professional references for applicants, and gaps in CVs should always be investigated.
- Section 128 check for school governors – in addition to an enhanced DBS check, governors of maintained schools should also have a “Section 128” check, this can be done via the TRA’s teachers’ services web-page. Governors do not need a DBS barred list check unless they are engaged in a regulated activity (governance is not a regulated activity). Associate members of governing bodies need not have enhanced DBS checks. See draft KCSIE 2019, paragraphs 173 - 174.
Maintained schools and colleges should ensure all their governors have had a Section 128 check and an appropriate DBS check, which will be at least an enhanced check without barred lists.
If you require further information about anything covered in this briefing, please contact Sophia Coles, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, July 2019