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The Department for Education (DfE) has now finalised and published its 2020 update to Keeping Children Safe in Education (KCSIE) – available here. The formal consultation process on proposed changes which usually precedes publication was withdrawn in March 2020 due to coronavirus.

KCSIE remains the key statutory guidance that sets out what schools and colleges (together, schools) should be doing when carrying out their duties to safeguard and promote the welfare of children. KCSIE 2020 will come into effect on 1 September 2020. Before then, schools should continue to refer to KCSIE 2019 whilst taking steps now in preparation for the updates when September comes around.

We have summarised the key changes – which include among others, the increased scope of the Designated Safeguarding Lead (DSL) role, an additional focus on mental health, and links to updated resources – as well as some of our thoughts on how schools should respond to them. A full list of the substantive changes can be found in Annex H to the draft guidance.

The key changes

Coronavirus

KCSIE remains in force throughout the response to coronavirus and schools are expected to continue to comply with its requirements. However, keeping children safe has taken on a new meaning during the pandemic and created new risks and challenges. The DfE has issued interim non-statutory guidance on safeguarding in schools during the outbreak – this includes where schools might consider safeguarding policies and processes differently from usual.

Schools should review their safeguarding policies and processes, and consider introducing coronavirus specific policies that take into account the DfE’s interim guidance and any new or increased risks caused by the developing response to coronavirus – for example risks around online learning, the fact of reduced face to face contact, and new classroom and staffing arrangements.

Our Safeguarding Unit has published a suite of coronavirus specific articles looking at challenges faced by schools (and other organisations working with children) at this time, looking in particular at risk assessments, remote learning, mental health and wellbeing, vulnerable children and disciplinary and grievance procedures.

The role of the DSL

The role of the DSL was a key focus in the DfE’s consultation on proposed changes to KCSIE 2020 before it was suspended. Following the Children in Need review, which identified the poor outcomes of children who need a social worker, the DfE noted the important role of DSLs in promoting children’s welfare, and proposed increasing their training and involvement around supporting this group of children.

KCSIE 2020 has expanded the remit of the DSL role. Annex B states that DSLs should:

help promote educational outcomes by sharing the information about the welfare, safeguarding and child protection issues that children, including children with a social worker, are experiencing, or have experienced, with teachers and school and college leadership staff. Their role could include ensuring that the school or college, and their staff, know who these children are, understand their academic progress and attainment and maintain a culture of high aspirations for this cohort; supporting teaching staff to identify the challenges that children in this group might face and the additional academic support and adjustments that they could make to best support these children.”

In support of this change, the guidance states that local authorities should share that a child has a social worker with the DSL (paras 109 – 112).

This expansion of the DSL’s role anticipates an increased level of engagement and coordination with teachers, members of the leadership team and local authorities (as well as any other relevant statutory agencies) to link up safeguarding and academic support for pupils, in particular those identified as having increased risk or in need of additional support.

The consultation was alive to the necessity for DSLs and the wider school to have the resources and capacity to provide the right help for this group of children, whilst acknowledging the pressures that schools are already under. It also sought to understand the extent DSLs were already involved in supporting these children. It is unfortunate that the consultation was withdrawn because it would be valuable to see the variety of ways in which schools define and support the DSL role.

In light of the enhanced focus and additional responsibility for DSLs, schools should revisit the DSL job description and review how the DSL can work to promote educational outcomes, and consider what resources, systems, training, and support should be put in place to facilitate this – for example, schools may consider providing additional training, delegating other (non-safeguarding) responsibilities a DSL post-holder may have, ensuring DSLs have sufficient time to fulfil their duties, or appointing more DSLs or deputies to share the load. Schools and DSLs will need to establish or review current systems for reporting and monitoring children’s progress, both within the school and with relevant external agencies, as appropriate. The new three safeguarding partner arrangements should have been in place from September 2019 and DSLs should ensure they are aware of what these are and liaise with relevant contacts, such as the Local Authority Designated Officer (LADO) and children’s services.

Mental health

The guidance makes a clearer link between mental health and safeguarding, and stresses the role that schools play in detecting possible problems and supporting good mental wellbeing.

The definition of safeguarding and promoting the welfare of children (para 4) has been updated to include preventing impairment of children’s mental (as well as physical) health and development, and all staff should be aware that mental health problems can be an indication of abuse, neglect or exploitation (paras 34 – 38).

The guidance recognises that, while only professionals should diagnose mental health problems, staff are well placed to identify behaviour which may indicate that a child is experiencing mental health problems or is at risk of developing one. Staff should immediately raise any mental health concerns which are also safeguarding concerns with the Designated Safeguarding Lead (DSL) or deputy, and follow their child protection policy.

Staff must be aware of how adverse experiences, like abuse and neglect, can have a lasting impact on a child’s mental health, behaviour and education.

The guidance signposts users to relevant advice and guidance, such as Mental Health and Behaviour in Schools which sets out the best practice in this area and Public Health England’s guidance on promoting children and young people’s emotional health and wellbeing (para 38).

Schools must recognise their role in supporting their pupils’ mental health, and governing bodies and proprietors should ensure they have clear systems and processes in place for identifying possible problems, including routes to escalate concerns and clear referral and accountability systems.

The DfE is providing funding to support the costs of a significant training programme for senior mental health leads (available to all state schools by 2025), as well as the national rollout of the Mental Health Services and Schools and College Link Programme (paras 113 – 116).

Relevant policies and procedures should be reviewed to ensure they include clear information on how to identify and manage mental health problems, and that mental health is a possible indicator of safeguarding concerns. Staff should receive training on how to identify behaviour which may indicate that a child is experiencing mental health problems or is at risk of developing one.

Schools should review which support and reporting systems are currently in place for pupils and see whether more could be done, reflect on how best to promote good mental health and wellbeing in the school, and consider training opportunities for relevant staff (whether through the DfE programme or otherwise).

Child Sexual Exploitation (CSE) and Child Criminal Exploitation (CCE)

Both CSE and CCE occur where a power imbalance is used to coerce, manipulate or deceive a child into sexual or criminal activity. Whilst KCSIE 2019 referred to these terms, CSE and CCE are explicitly included as forms of abuse that staff should be aware of and alert to (para 28).

Schools should review their safeguarding policies so that CSE and CCE are specifically listed as forms of abuse that staff must look out for. Staff should be made aware of these terms and be given training on how to identify CSE and CCE and their effects on a child.

Managing allegations against supply teachers

Supply teachers are explicitly included in the guidance as members of staff who may pose a risk of harm to children, even though they are not directly employed by the school and the disciplinary procedures do not fully apply to them (para 56).

Schools should deal with allegations against supply teachers properly and never decide to cease using a supply teacher due to safeguarding concerns without finding out the facts and liaising with the LADO to determine a suitable outcome. Governing bodies and proprietors – who supervise, direct and control supply teachers whilst they are working at a school – should discuss with the agency whether it is appropriate to suspend or redeploy the supply teacher to another part of the school whilst investigating the allegation. Schools should inform the supply agency of its process for managing allegations, and agencies should be fully involved and co-operate with the LADO’s enquiries. Schools are expected to handle the allegation as they are best placed to collect facts and information required for the referral process (paras 214 to 217).

Schools should ensure relevant policies and procedures include references to supply teachers and how allegations against them will be handled. Existing and new supply teachers should be made aware of the relevant policies and procedures, as well as any existing staff who manage allegations. Supply agencies should be made aware of any changes and appropriately trained on how to be involved in the process, including how to co-operate with the LADO’s enquiries.

When to call the Police?

The guidance now refers to the recently published “National Police Chief’s Council (NPPC) – When to call the police” to help clarify when to consider calling the police and what to expect when a report is made (para 70).

DSLs, their deputies and senior leaders should be made aware of the NPCC guidance and use it when considering whether to make a Police report and when liaising with the Police on safeguarding issues.

Information sharing

The guidance provides further clarity around information sharing in a safeguarding context, highlighting that safeguarding children is a processing condition that allows practitioners to share special category personal data, such as sharing information without consent where there is good reason to do so. It also links to a new “Data protection: toolkit for schools”, which supports schools with data protection activity, including compliance with GDPR (paras 84 – 86).

Sharing information remains an area where many practitioners lack confidence and we would direct you to Farrer & Co’s principle of “Unified Law of Child and Data Protection”, devised by Owen O’Rorke:

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 bear in mind when recording, sharing, and retaining vital but sensitive data.

Schools 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  - making reference to relevant guidance such as the new toolkit and the July 2018 guidance – Information Sharing: Advice for Practitioners Providing Safeguarding Services to Children, Young People, Parents and Carers. 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.

Relationships Education, Relationship & Sex Education (RSE) and Health Education

The guidance states that Relationship Education (for all primary pupils), RSE (for all secondary pupils) and Health Education (for all state school pupils) will be compulsory from September 2020. Schools should be aware, however, that – due to inevitable disruptions caused by coronavirus – the DfE wrote to them to announce that schools which assess they will be unable to meet the requirements will be allowed to delay teaching to begin at least by the start of the summer term in 2021. Regardless, these schools should aim to start preparations to deliver the new curriculum as soon as possible. Schools that are prepared to begin teaching from September 2020 are encouraged to do so, as planned. Please note that there is no public statement on the DfE’s website concerning the contents of their letter to the schools. Further details of this delay to the timeline will be published shortly in an article by Mary Breen and Xinlan Rose on the new Relationships and RSE statutory guidance and how schools should implement it.

Schools will have flexibility in how they exercise their duties in the first year of compulsory teaching and the guidance recommends a phased approach. KCSIE 2020 flags this addition to the curriculum as an opportunity to teach safeguarding and provides links to the new statutory guidance mentioned above, as well as useful resources (para 94).

Schools should consider how to deliver the relevant content to students as soon as possible with reference to the relevant statutory guidance and supporting materials. As part of this, schools should devise a written policy for Relationships Education and RSE in consultation with parents, including a procedure surrounding the right to be excused from sex education which parents can request. Again, you will be able to find more detail on the new statutory guidance (including the consultation process) in our upcoming article.

Behaviour that indicates an adult “may not be suitable to work with children”: a transferrable risk

An addition has been made to the types of behaviour which may indicate a person poses, or might pose, a risk of harm if they continue to work in regular or close contact with children. This is more commonly known as the ‘harm test’: a person has ‘behaved or may have behaved in a way that indicates they may not be suitable to work with children’ (para 211).

This addition is intended to capture a broader range of behaviour which may indicate risk where an incident occurs outside of school and did not involve children but could have an impact on their suitability to work with them. For example, being involved in a domestic violence incident at home, where violent behaviour is triggered and could pose a risk to children at school. This is known as transferrable risk.

Policies and procedures should include this new type of behaviour and staff should be informed about it so they report any allegations of such behaviour following the appropriate procedure. Part four of KCSIE states schools should manage allegations of abuse against teachers and other staff, including supply teachers (see above) and volunteers.

Please note, if a school’s practice is to add KCSIE updates as annexes or appendices to existing policies, we recommend that it considers redrafting the policies to include all key updates in the policy’s main body, using the KCSIE 2020 guidance. This will improve the accessibility of the policy and prevent key updates being missed by the reader. An update on coronavirus, however, could be incorporated as an annex or appendix to a policy because it is (hopefully) a one-off issue.

If you require further information about anything covered in this briefing, please contact Sophia Coles, Xinlan Rose, 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 2020

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