The Residential Schools Investigation: IICSA publishes its report

Since its inception in 2015, the Independent Inquiry into Child Sexual Abuse (IICSA) has investigated where institutions in England and Wales have failed to adequately protect children in their care and considered what must be done differently for the future. IICSA has carried out 15 investigations (on different sectors or themes) and produced 19 reports. Earlier this month, it published its last investigation report looking at safeguarding in residential schools (the Report). It covers both phases of IICSA’s Residential Schools Investigation:

• phase 1 covered music and residential special schools; and
  
  
• phase 2 took a thematic approach, looking at safeguarding in day and boarding schools.

The Report considers the evidence collated as part of the investigation including from survivors, school staff, local authorities, inspection bodies and specific case studies.

Findings

The Report is detailed, running to over 220 pages, and includes a number of distressing accounts from survivors of abuse. The Report notes: “the instances of the sexual abuse of children presented in this report will shock and horrify. They represent the antithesis of everything that a school should be.” It is important to acknowledge the courage of all those who came forward to share their experiences and the vital contribution they have made to the Report’s findings and recommendations for the future.

The Report made a number of findings – set out below. Many of which identified particular vulnerabilities and risk areas which, though exemplified in particular school settings are not unique to them. It is easy to imagine those same risks / vulnerabilities emerging in other educational or even non-educational settings.

Boarding schools

• Boarding school pupils are particularly vulnerable to both sexual abuse by adults and peer-on-peer abuse. These pupils are more reliant on adults for educational and pastoral needs, and accompanied with a strong sense of hierarchy in some schools, this can lead to a unique power imbalance that can facilitate abuse.
  
  
• Children whose parents are overseas are especially vulnerable. There is little regulation of their educational guardians, meaning children can be placed in unsafe environments.
  
  
• Schools with strong traditions and a particular ethos can create an environment of “exceptionalism”, where potentially problematic behaviour can be tolerated, masking abusive practices by staff.

Residential special schools

• IICSA heard evidence that evidence of harmful sexual behaviour by SEND pupils was on the rise. Children with disabilities are three times more likely to experience sexual abuse than other children, yet there are very few convictions for abuse in residential schools.
  
  
• In these settings, children are vulnerable due to their complex needs and distance from home. Some struggle to communicate which enhances their vulnerability. The pupils’ situations are more analogous to those in a children’s home than a standard educational institution.

Music schools

• Music lessons may involve a high proportion of one-to-one contact with the same individual, with physical contact being necessary from time to time.
  
  
• Children who aspire to be successful may revere their teachers (who could be distinguished musicians) meaning children may be more vulnerable to abuse by those teachers. Pupils may fear being perceived as “difficult” if they complain and worry about the impact this could have on their future careers.
  
  
• The Report noted that in some cases “the reputations of both the musicians and the schools were often seen as more important than their victims and potential victims when allegations were made or concerns were raised.”

Systems of protection

• IICSA identified “shortcomings and failing in current systems of protection”, and made recommendations to seek to address them. This includes weaknesses in the inspection systems, in the Teaching Regulation Agency’s workforce regulation scheme and in the use and application of DBS checks.
  
  
• The systems of statutory and non-statutory guidance change frequently, and are often not fully understood or complied with. There is confusion as to when referrals should be made to statutory authorities, by and to whom. IICSA found there was also a high level of variation between the support provided by the local authority designated officers (LADOs) in different areas, in terms of the advice given, the quality and the time dedicated to the issues.
  
  
• IICSA found that there is uncertainty as to how to deal with “low level concerns” which fall below the threshold for a formal referral. Our Safeguarding Unit has published a guide for organisations working with children on developing and implementing a low-level concerns policy and a series of webinars is being run over the next few weeks, looking in depth at this important topic.

School leadership and training

• Strong leadership is key to the safeguarding of children. IICSA emphasised the importance of headteachers to enshrine a “positive culture of safeguarding in their schools”, but also emphasised the role of governors in holding the headteacher to account. The safeguarding of children should be paramount and be placed above the reputation of the school.
  
  
• Training requirements are insufficient. There is insufficient focus on initial teacher training, a lack of consistent minimum content in safeguarding training, and lack of specialist training for those working with pupils with SEND.
  
  
• RSE teaching is crucial to raise awareness of appropriate behaviour to prevent abuse, and that the quality of RSE teaching to SEND pupils in particular was not good enough.

Recommendations

IICSA made a number of recommendations to the Department for Education and the Welsh Government in seven different areas (residential schools; responding to allegations and concerns; governance; training and awareness raising; inspection and monitoring; vetting, barring and teacher misconduct; and recommendations specific to Wales).

These can be found on pages 185-187 of the Report and include (among others): a duty on boarding schools to report incidents of child sexual abuse to their relevant inspectorate body, registration and licensing of educational guardians, statutory guidance to clarify that schools can contact LADOs for informal advice, a rule that the proprietor of an independent school cannot also be the DSL, national standards for training and an urgent review of relationship, sex and health educational provision for SEND children. These are recommendations only, so time will tell whether and how they will be implemented and when.

What next for IICSA?

The Report set out a number of “matters to be explored further by the Inquiry” and they will no doubt be covered in the overarching Final Report, which will be the next and final publication from the Inquiry before it concludes its work.

These issues include:

• mandatory reporting;
  
  
• support for victims and survivors; and
  
  
• vetting and barring, including the definition of “regulated activity”.

The issue of mandatory reporting is particularly controversial. It is strongly advocated by those representing victims and survivors. However, some representatives of regulatory bodies and teachers’ unions are more reticent, with concerns about potential “unintended consequences”, a lack of evidence to suggest that it would make institutions safe, and the risk of local authorities being overwhelmed. The Independent Schools Inspectorate considers schools to be under a mandatory duty to report allegations of child sexual abuse in any case, although these are not currently underpinned by professional or criminal sanctions where a failure to report occurs.

The eligibility criteria for DBS checks can be particularly confusing and challenging to apply and, in our view, further clarity on the regulations would be welcome.

What next for schools?

We will be discussing IICSA’s findings, recommendations and the implications for schools at our webinar on IICSA’s Residential Schools Investigation Report taking place at 9.30 – 11.00am on Tuesday 29 March.

The session will be facilitated by Mary Breen, our Schools Advisor. She will be joined by other Farrer & Co speakers, as well as barristers, Reka Hollos and Genevieve Woods who both advised schools participating in IICSA’s investigation. For further information, and to sign up, please click here.

Special thanks to Alex Evans, a paralegal in the Safeguarding Unit, for his assistance with this briefing.

If you require further information about anything covered in this briefing, please contact Sophia Coles and Emily Part 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, March 2022