Anti bullying. The Law must change

Sinclairslaw CEO Michael Charles has called for the law to change to better protect children from bullying.

Often campaigns raised in regard to anti bullying at schools get responded to by Government saying that more should be done to help. The current law which entitles young people to bring proceedings for negligence involves first having to show that a child has suffered loss and damage. Yet the Children Act emphasises the importance of child protection. The duty to safeguard and protect. Negligence actions are one thing but we don’t want a child to suffer any harm in the first place.

A law that provides mere target obligations is not an effective law. It does little to protect children as the target obligation is not something that is judiciable (in other words capable of being judged or tried). If Government is serious about protecting children it must create more specific duties. Specific duties create legally enforceable rights. Legally enforceable rights allow for greater protection to children. It is demonstrating by action a commitment to properly safeguard our children.

Before I set out some keys things that need to change, let me provide a brief overview of the law relating to child protection in England Wales Scotland and Northern Ireland.

In England the Children Acts including that of 1989 (applicable also in Wales) and 2004 are the key Acts of Parliament. This includes again a target duty to safeguard children. Since the Children and Social Work Act 2017 we also see the creation of the Child Safeguarding Practice review panel to report serious and complex child protection cases that are of public importance. It can make recommendations but little else. The Education and Inspections Act obliges schools to prevent bullying by ensuring it has anti bullying policies that include such measures as may be determined by the Head teacher. Whether the precise measure is actually effective is another matter. The measures used are likely to be a matter which is unlikely to be judiciable. Independent Schools must take such steps as are reasonably practicable. Again target obligations in the sense that the effectiveness is a matter determined by the head teacher.
Section 90 and 91 of the Education and Inspections Act 2006 allow for a school to exercise disciplinary powers in respect of conduct when children are not on school premises, but only if it is reasonable for the school to regulate behaviour in those circumstances.

In Wales as in England the Children Act duties apply. Again schools must have a policy to prevent all forms of bullying. But the law does not provide the basic ingredients required.

In Scotland there exists child protection committees which are responsible for a multi agency protection policy. It works with local Government. The Children Scotland Act 1995 outlines the framework. Even the School (Health Promotion and Nutrition) Scotland Act 2007 provides a target obligation upon a local education authority to ensure its schools are “health promoting”. This law is hardly something that creates legally enforceable rights.

The Equality Act is enforceable in all jurisdictions. This does create specific duties but only Insofar as they relate to ensuring Equality and avoiding discrimination.

In Ireland the primary legislation is the Education and libraries (Northern Ireland) Order 2003 that requires all grant aided schools to include within their policy an anti bullying policy the effectiveness of which is monitored by regular school inspections. Further the Children’s Services Cooperation Act (Northern Ireland) 2015 places similar target duties to safeguard children. The law also makes it an offence not to report a relevant offence to the police.

What has to change?

In essence more specific duties. Duties that are enforceable within our courts.

Local Government already have wide powers to intervene in school when there is a break down in discipline. That is why the law needs strengthening to place reporting duties.

Too many children are being harmed either by others or by even themselves. One child who takes their own life is one child too many. It is a real tragedy that no Government tasked with protecting children can ignore. In my view this calls for greater protection for our children. Nelson Mandela said “there can be no keener revelation of a society’s soul than the way in which it treats its children”. It must be easier to do something now than to try and repair broken men and women. That is why together we must act.

We should call for the following :-

1. A specific as opposed to general duty upon a school to adhere to a common framework of minimum standards to combat bullying. It should not be solely left to the Governing body or head teacher. Minimum standards should be set in law. These minimum standards should include

A. The duty to record all incidents of detected bullying.

B. The duty to place on school records all complaints about bullying as well as

C. The investigation conducted within a prescribed time period and its findings. If findings demonstrate bullying has occurred the action taken or required to address it.

D. If action is required, that such action is reported to the parents concerned.

E. That there should be a duty on the school to make contact with parents of purported culprit and victim to endeavour to resolve the issue recording the findings reached and the action resolved.

F. There should be a duty to report any serious incidents of bullying to the schools inspectorate and local authority as well as to parents of children concerned.

G. A duty to preserve an accurate copy of school records for up to 3 years following the death of a child Further that all copies of records and any other material including school work of hue deceased pupil be maintained until such time as the child’s parents determine that they do not wish to receive copies and

H. It should be an offence to alter a school pupil record other than in set prescribed circumstances. However even if altered the original record should be kept alongside the amended version for transparency.

2. It should be an offence to fail to report to the parents and to the local authority a serious act of bullying at school.

3. The NHS Trust should be given a specific duty to protect a child who might have mental health difficulties by ensuring that the child has available access to mental health services that are necessary to meet his or her needs. That the NHS camhs team should have a duty to prepare for a child who might have mental health difficulties a care plan specifying the provision required to meet the needs identified. That an appeal should be permitted to an independent tribunal in respect of any dispute over the contents of the care plan. The plan should thereafter be legally enforceable.

4. That in all cases where bullying has been determined to have taken place, the social services should treat the child as being a child in need and should assess not only the child victim but also the purported pupil culprits and produce a care plan to be reported to the school and to the parents of the relevant child.

5. In incidences of repeated frequent bullying a child protection strategy should be adopted to include all the obligations of reporting referred to above but also an obligation to call upon the relevant parents, to a strategy meeting whereupon the advice of any relevant medical advisor be sought, so that a specific strategy plan can be recorded and placed into the pupil file.

6. That CCTV footage of any bullying incident should be preserved and distributed to the police if relevant and a copy provided to the parents of the children concerned.

Bullying is a problem at schools around the world. Britain could lead the way in the fight against it.

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