Updated DfE Guidance and our Peer-on-Peer Abuse Toolkit for Schools

Last week, the Department for Education published an update to (i) Keeping Children Safe in Education (September 2018) (KCSIE) and (ii) Sexual Violence and Sexual Harassment between Children in Schools and Colleges (May 2018) (SVSH). SVSH applies immediately, whilst KCSIE will apply from 3 September 2018, with KCSIE (September 2016) remaining in force until that date. In the meantime, our Safeguarding Unit is in the process of updating its peer-on-peer abuse toolkit for schools, in consultation with a number of external safeguarding experts, and will be publishing a revised version in September 2018 which will incorporate the recent changes made to KCSIE and SVSH. An interim version of the toolkit, designed in consultation with Dr. Carlene Firmin and published in December 2017, is available here. 

This article sets out the key changes to the DfE Guidance and explains what schools should be doing in response to these developments.

Keeping Children Safe in Education (September 2018)

The changes

A summary of the changes is set out in Annex H to the new guidance. We have set out below some of the key changes:

• Pupil behaviour policies - As part of staff induction, schools are now required to explain to staff the school’s behaviour policy for pupils, in addition to the child protection policy and staff code of conduct – the guidance makes it clear that all schools are required to have a behaviour policy; 
• Early Help – The new guidance provides more information about Early Help, including a list of children in relation to whom staff should be particularly alert to the potential need for early help. This includes children who are disabled and have specific additional needs, children who have special educational needs, are misusing drugs or alcohol themselves, are showing signs of being drawn into anti-social or criminal behaviour or are in family circumstances presenting challenges for the school, or those with a disability, special educational needs, those who are young carers etc. 
• Action to take when staff have concerns about a child – This section has been developed to make it clear that concerns about a child’s welfare should be acted upon immediately, information should be shared early on to protect children; and staff should not delay if the DSL and deputy DSL are unavailable, but should consider speaking to a member of the school’s senior leadership team and/or local children’s social care. 
• Multi-agency working – The new guidance clarifies the child protection duties that local authorities are under and explains what local authorities will do when they receive a referral, and the time frame within which this should happen. It also requires schools to understand and reflect in their safeguarding arrangements the LSCB’s threshold document.
• Concerns and allegations about other staff members or volunteers – The wording in the current guidance that allows these concerns to be made to the DSL has been removed and the new guidance makes it clear that staff should refer all safeguarding concerns about staff or volunteers to the headteacher or principal. Part Four now includes an additional outcome for allegation investigations, which is ‘Unfounded’, defined as ‘to reflect cases where there is no evidence or proper basis which supports the allegation being made’, which was previously only referred to as a footnote.
• The use of reasonable force – The guidance includes advice for schools on the use of reasonable force, explaining that there are circumstances where it is necessary for staff to use some force to safeguard children and young people, and that the use of a ‘no contact’ policy can leave staff unable to protect their pupils. The guidance includes examples of where force might be needed, an explanation of the term ‘reasonable’, and how this applies to incidents involving children with SEN or disabilities or with medical conditions. 
• Safer recruitment – a number of changes have been made to this section, including wording around the roles for which schools are required to carry out a Section 128 (Prohibition From Management) check, an explanation of the checks that are available via the Secure Access Portal on the Teacher Services’ web page, clarification of the information that schools should obtain for internal applicants and for applicants who are not employed at the time of application, wording encouraging schools to insist on references from a senior person with appropriate authority, and clarification of schools’ duties to refer to the DBS staff or volunteers where the ‘harm criteria’ is met.
• Child Protection Policies – The new guidance includes clarification that all schools and colleges should have their own individual child protection policy. A proprietor of multiple schools can have an overarching policy, but this should be built on locally to ensure that local procedures and protocols can be reflected. 
• Peer-on-peer abuse and contextual safeguarding – The guidance includes a more detailed explanation of the ways in which peer-on-peer abuse can manifest itself, and requires all staff, and particularly DSLs, to take a contextual safeguarding approach to peer-on-peer abuse (see below). The list of information that schools are required to include about peer-on-peer abuse in their child protection policies has also been expanded, and there is an entirely new  Part 5 entitled ‘Child on Child Sexual Violence and Sexual Harassment’ which is an abbreviated version of the new DfE Advice Sexual Violence and Sexual Harassment between Children in Schools and Colleges (May 2018) (available here and see below).  
• Specific issues – The guidance contains new information on schools’ responsibilities vis a vis children missing from education, pupils placed with an alternative provision provider, keeping children safe online, information sharing, additional information about children and the court system, child criminal exploitation, homelessness and domestic abuse. 

What you can do

Schools and colleges should ensure that they review the changes alongside their existing policies and procedures, including their child protection policy; any managing allegations policy (if separate); the staff code of conduct and safer recruitment policy. Schools should not only look at their policies on paper, but also asses how safeguarding is dealt with in practice and ensure that their approach is aligned with the guidance in KCSIE. It would be prudent to organise training in light of the new update so that staff are fully aware of the new changes in time for September 2018. 

Sexual Violence and Sexual Harassment Between Children in Schools and Colleges

The DfE Advice on Sexual Violence and Sexual Harassment Between Children in Schools and Colleges (SVSH), which was published in December 2017, has also been updated and is accessible here. Unlike KCSIE, this new version of the advice comes into force immediately. Key changes include:

• Clarification that the guidance covers children of all ages and that whilst the advice focuses on children (defined as anyone under the age of 18), schools must nonetheless protect any adult students and engage with adult social care, support services and the police as required. The new guidance also makes it clear that whilst the criminal age of responsibility is ten, schools should nonetheless report incidents of peer-on-peer abuse involving children younger than ten to the police where appropriate, who will adopt a welfare rather than a criminal response.  
• A reminder to school to choose terminology carefully (for example, the use of ‘victim’ and ‘perpetrator’), on a case by case basis, and to have in place systems and procedures to protect staff from sexual violence and sexual harassment, as well as children. 
• Additional information about handling incidents involving children with SEND, and the ways in which online sexual harassment may manifest itself.
• Acknowledgment that sexual violence and sexual harassment can be driven by wider societal factors such as everyday sexist stereotypes and everyday sexist language.
• Greater clarity around the definition of ‘consent’, which includes reference to an individual having the ‘freedom and capacity to choose’ and inclusion of consent in the list of topics that schools should cover in their curriculum.
• A requirement that all staff, and particularly the DSL, take a contextual safeguarding approach to incidents, which involves considering the context within which incidents or behaviours occur and emphasising that assessments of children should consider wider environmental factors present in a child’s life that are a threat to their safety or welfare. 
• Importance of information sharing and effective multi-agency working, especially where children involved in allegations of sexual violence or sexual harassment attended two or more different schools or colleges. 
• Emphasis that where the police will not take further action in a case, the school should continue to engage with specialist support for the victim as required. 
• Acknowledgement that a child abusing another child may have been abused themselves, and emphasising the need to support the alleged perpetrator. 
• Updated links to further information and support at Annex A. 

What you should do

Schools and colleges should review their child protection policy and any standalone peer-on-peer abuse policy in light of the updated advice and our peer-on-peer abuse toolkit and ensure that these changes are fully addressed within the school’s safeguarding practices. 

If you require further information please contact Shehnal Amin or your usual contact at the firm on 020 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, May 2018