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Sexual violence and harassment in schools and colleges remains widespread. In 2014, 59% of girls and young women aged 13-21 said they had faced some form of sexual harassment at school or college in the past year (Girlguiding UK Girls’ Attitudes Survey). In September 2016, the Women and Equalities Committee demanded urgent action because of the scale of what its inquiry had uncovered (Sexual harassment and sexual violence in schools, House of Commons, Women and Equalities Committee). Almost a third of 16-18-year-old girls said they experienced unwanted sexual touching at school; nearly three-quarters of all 16-18-year-old girls and boys witnessed sexually offensive terms used towards girls at school on a regular basis (End Violence Against Women Poll Results October 2010).
In April 2021, the Everyone’s Invited website was launched and by September it registered some 54,000 allegations by school pupils of sexual violence and abuse. It evidenced a normalisation of sexist jokes, sexual harassment and online abuse. A list of almost 3,000 English schools named in testimonies was released: 1 in 10 schools, state and private, were affected. This was described as a #MeToo-style reckoning on British education.
Below, we consider best practice and what schools should do when faced with a report of peer-on-peer sexual assault or harassment as well as human rights obligations on schools and local authorities in dealing with these cases.
Government guidance, Sexual violence and sexual harassment between children in schools and colleges, which was first published in 2017 and last updated in September 2021, provides advice to senior leadership in schools. Schools are reminded of their statutory duties to safeguard and promote the welfare of children, to cooperate with safeguarding partnerships and to have a behaviour policy. They are subject to the Human Rights Act 1998 and have statutory obligations under the Equality Act 2010 prohibiting discrimination and harassment.
Schools must have safeguarding procedures on sexual violence and harassment that are transparent, clear and easy to understand. The guidance commends the importance of preventative education, as part of relationships and health education. It invites schools to consider carefully if input from external organisations is necessary.
It sets out some important principles on responding to complaints. It makes clear that the victim may not make a direct report and that if staff have any concerns about a child’s welfare, they should act on them immediately rather than wait to be told: ‘Assume there is a problem.’
The duties remain the same even if the conduct takes place away from the school premises, and even if the children concerned attend two or more different schools.
The Guidance includes key safeguarding principles when dealing with an initial report as well as on confidentiality and anonymity, and on how staff should respond when a victim asks for the report not to be disclosed.
Following an initial report, the Guidance provides that an immediate risk and needs assessment, should take place and that in sexual violence cases, a professional risk assessment by social workers and/or specialists is likely to be required.
The guidance highlights the need for a zero-tolerance approach. Sexual violence and sexual harassment is never acceptable. It should not be passed off as ‘banter’, ‘just having a laugh’, part of growing up or ‘boys being boys’. The guidance presents four main options for schools:
(a) manage internally;
(b) using the ‘early help’ process from Chapter 1 of Working Together to Safeguard Children;
(c) referral to children’s social care;
(d) reporting to the police.
Schools also have the option of taking disciplinary action, including exclusion of the child. In this regard, the recent case of R (CHF) v Newick CE Primary School [2021] EWHC 2513 (Admin), held that it was lawful, without excluding a child, to impose mandatory off-site schooling as a safeguarding separation. This is an option for schools in appropriate cases.
The guidance also highlights that ‘as a child, any alleged perpetrator(s) is entitled to, deserving of, and should be provided with, a high level of support to help them understand and overcome the reasons for their behaviour and help protect other children by limiting the likelihood of them abusing again.’
The key in these cases is, of course, prevention and management within schools. However, in cases where this fails, children and young people may have an option to bring a claim for negligence against the school and/or a claim for damages under the Human Rights Act 1998 (HRA) including Article 3 and 8.
Under Article 3 of the European Convention on Human Rights (ECHR) the state has a positive obligation in relation to sexual assault in schools. This duty has a (1) systemic, (2) operational and (3) investigative component. The systemic duty is to have an adequate framework of laws which provides effective protection for schoolchildren against the risk of sexual assault. That was the duty in issue in O’Keeffe v Ireland (2014) 59 EHRR 15 which concerned a sexual assault by a teacher. There is an operational duty to take reasonable measures to protect a child where the school authorities know or ought to know that a child is at ‘real and immediate risk’ of sexual assault. That test comes from Osman v United Kingdom (2000) 29 EHRR 245, an Article 2 case, and now well-established as applicable to Article 3 as well.
Finally, there is the investigative duty. The school or college will need to carry out an adequate investigation where a sexual assault is reported to it. Practitioners will be familiar with the landmark case of DSD v Commissioner of Police for the Metropolis [2018] UKSC 11 which held that failure to carry out an adequate investigation into a complaint of inhuman or degrading treatment may give rise to a claim in HRA damages. While the investigative failings do not need to be systemic, they need to be serious and significant. Mere errors or isolated omissions will not suffice.
There have already been a number of human rights cases against schools and local authorities. The case of ‘Joel’, which concerned a six-year-old boy who secured damages for breaches of his rights under Articles 3 and 8 following alleged failures to prevent a sexual assault taking place in school, is a recent example and there are other cases in the early stages of litigation.
For practitioners dealing with these complex and highly sensitive cases, it is important to consider the parameters of a possible damages claim: either under common law or under the HRA. These are particularly difficult cases considering what the school knew or should have known, and the steps it could and should have taken. The government guidance will be key in identifying this and whether the school’s actual response was appropriate.
Meanwhile, it is imperative for us all to do what we can to reshape the path for our young people. We share a responsibility to do what we can in our schools, our homes and wider society to change this culture and prevent further abuse.
The NSPCC has a dedicated helpline for people who have experienced sexual harassment or abuse in education. If you’ve experienced abuse at school recently or in the past – or you are worried about someone who is currently experiencing abuse or has in the past – contact the NSPCC Report Abuse in Education helpline on 0800 136 663 or email: help@nspcc.org.uk
Nicola Braganza KC is a member of Garden Court Chambers Education Law and Civil Liberties and Human Rights teams.
Gráinne Mellon is a member of Garden Court Chambers Education Law and Civil Liberties and Human Rights teams.
Sexual violence and harassment in schools and colleges remains widespread. In 2014, 59% of girls and young women aged 13-21 said they had faced some form of sexual harassment at school or college in the past year (Girlguiding UK Girls’ Attitudes Survey). In September 2016, the Women and Equalities Committee demanded urgent action because of the scale of what its inquiry had uncovered (Sexual harassment and sexual violence in schools, House of Commons, Women and Equalities Committee). Almost a third of 16-18-year-old girls said they experienced unwanted sexual touching at school; nearly three-quarters of all 16-18-year-old girls and boys witnessed sexually offensive terms used towards girls at school on a regular basis (End Violence Against Women Poll Results October 2010).
In April 2021, the Everyone’s Invited website was launched and by September it registered some 54,000 allegations by school pupils of sexual violence and abuse. It evidenced a normalisation of sexist jokes, sexual harassment and online abuse. A list of almost 3,000 English schools named in testimonies was released: 1 in 10 schools, state and private, were affected. This was described as a #MeToo-style reckoning on British education.
Below, we consider best practice and what schools should do when faced with a report of peer-on-peer sexual assault or harassment as well as human rights obligations on schools and local authorities in dealing with these cases.
Government guidance, Sexual violence and sexual harassment between children in schools and colleges, which was first published in 2017 and last updated in September 2021, provides advice to senior leadership in schools. Schools are reminded of their statutory duties to safeguard and promote the welfare of children, to cooperate with safeguarding partnerships and to have a behaviour policy. They are subject to the Human Rights Act 1998 and have statutory obligations under the Equality Act 2010 prohibiting discrimination and harassment.
Schools must have safeguarding procedures on sexual violence and harassment that are transparent, clear and easy to understand. The guidance commends the importance of preventative education, as part of relationships and health education. It invites schools to consider carefully if input from external organisations is necessary.
It sets out some important principles on responding to complaints. It makes clear that the victim may not make a direct report and that if staff have any concerns about a child’s welfare, they should act on them immediately rather than wait to be told: ‘Assume there is a problem.’
The duties remain the same even if the conduct takes place away from the school premises, and even if the children concerned attend two or more different schools.
The Guidance includes key safeguarding principles when dealing with an initial report as well as on confidentiality and anonymity, and on how staff should respond when a victim asks for the report not to be disclosed.
Following an initial report, the Guidance provides that an immediate risk and needs assessment, should take place and that in sexual violence cases, a professional risk assessment by social workers and/or specialists is likely to be required.
The guidance highlights the need for a zero-tolerance approach. Sexual violence and sexual harassment is never acceptable. It should not be passed off as ‘banter’, ‘just having a laugh’, part of growing up or ‘boys being boys’. The guidance presents four main options for schools:
(a) manage internally;
(b) using the ‘early help’ process from Chapter 1 of Working Together to Safeguard Children;
(c) referral to children’s social care;
(d) reporting to the police.
Schools also have the option of taking disciplinary action, including exclusion of the child. In this regard, the recent case of R (CHF) v Newick CE Primary School [2021] EWHC 2513 (Admin), held that it was lawful, without excluding a child, to impose mandatory off-site schooling as a safeguarding separation. This is an option for schools in appropriate cases.
The guidance also highlights that ‘as a child, any alleged perpetrator(s) is entitled to, deserving of, and should be provided with, a high level of support to help them understand and overcome the reasons for their behaviour and help protect other children by limiting the likelihood of them abusing again.’
The key in these cases is, of course, prevention and management within schools. However, in cases where this fails, children and young people may have an option to bring a claim for negligence against the school and/or a claim for damages under the Human Rights Act 1998 (HRA) including Article 3 and 8.
Under Article 3 of the European Convention on Human Rights (ECHR) the state has a positive obligation in relation to sexual assault in schools. This duty has a (1) systemic, (2) operational and (3) investigative component. The systemic duty is to have an adequate framework of laws which provides effective protection for schoolchildren against the risk of sexual assault. That was the duty in issue in O’Keeffe v Ireland (2014) 59 EHRR 15 which concerned a sexual assault by a teacher. There is an operational duty to take reasonable measures to protect a child where the school authorities know or ought to know that a child is at ‘real and immediate risk’ of sexual assault. That test comes from Osman v United Kingdom (2000) 29 EHRR 245, an Article 2 case, and now well-established as applicable to Article 3 as well.
Finally, there is the investigative duty. The school or college will need to carry out an adequate investigation where a sexual assault is reported to it. Practitioners will be familiar with the landmark case of DSD v Commissioner of Police for the Metropolis [2018] UKSC 11 which held that failure to carry out an adequate investigation into a complaint of inhuman or degrading treatment may give rise to a claim in HRA damages. While the investigative failings do not need to be systemic, they need to be serious and significant. Mere errors or isolated omissions will not suffice.
There have already been a number of human rights cases against schools and local authorities. The case of ‘Joel’, which concerned a six-year-old boy who secured damages for breaches of his rights under Articles 3 and 8 following alleged failures to prevent a sexual assault taking place in school, is a recent example and there are other cases in the early stages of litigation.
For practitioners dealing with these complex and highly sensitive cases, it is important to consider the parameters of a possible damages claim: either under common law or under the HRA. These are particularly difficult cases considering what the school knew or should have known, and the steps it could and should have taken. The government guidance will be key in identifying this and whether the school’s actual response was appropriate.
Meanwhile, it is imperative for us all to do what we can to reshape the path for our young people. We share a responsibility to do what we can in our schools, our homes and wider society to change this culture and prevent further abuse.
The NSPCC has a dedicated helpline for people who have experienced sexual harassment or abuse in education. If you’ve experienced abuse at school recently or in the past – or you are worried about someone who is currently experiencing abuse or has in the past – contact the NSPCC Report Abuse in Education helpline on 0800 136 663 or email: help@nspcc.org.uk
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