4.1.1 Managing Allegations Against Adults who work with Children and Young People

RELATED CHAPTERS

AMA Guidance for Safe Working Practices for Adults Working with Children and Young People

Guidance for Safer Working Practices for Adults who work with Children and Young People in Education Settings

AMENDMENT

This Chapter was updated in November 2009 to include a reference to the roles of the Independent Safeguarding Authority.

Introduction
Scope of Procedure
Threshold for Implementation of this Procedure
Key Professional Roles
Underlying Principles
Appendix 1 - Protocol for Sharing Information with Employers about Child Protection Concerns Relating to Parents or Carers Who Work With Children
Appendix 2 - The Protection of Children Act List and DCSF List 99

1. Introduction

Working Together to Safeguard Children 2006 places an explicit duty upon Local Safeguarding Children Boards to ensure that there are effective inter-agency procedures in place for dealing with allegations against people who work with children. Chapter 6 and Appendix 5 of Working Together offer guidance on the nature of these procedures and the key components which must be in place. This procedure reflects the expectations of Working Together to Safeguard Children 2006 as well as government guidance on the investigation of allegations against Foster Carers and School Staff.

2. Scope of Procedure

This procedure is binding upon all agencies that are members of the Local Safeguarding Children Boards. The principles also apply to all employers of people working with children and young people.

This procedure sets out the process to be followed by agencies when responding to allegations against adults who work with children and young people, including the thresholds for implementation of the procedure and guidance regarding appropriate timescales for investigation.

LSCB member agencies will be expected to have in place their own internal procedures for the investigation of such allegations to ensure that they are compliant with the process outlined in this document.

This procedure will also address how these allegations are recorded and the reporting mechanism to ensure that the LSCB can monitor and review the effectiveness of this process.

3. Threshold for Implementation of this Procedure

This procedure should be used in all cases where it is alleged that a person who works with children or young people has:

Behaved in a way that has harmed a child or may have harmed a child.
Possibly committed a criminal offence against or related to a child; or
Behaved towards a child or children in a way that indicates s\he is unsuitable to work with children.

The principles of this procedure could also be applied in circumstances where there are concerns about a person’s behaviour towards vulnerable adults or animals.

There may be up to three strands in the consideration of an allegation:

The police investigation of a possible criminal offence
Enquiries and assessment by the Children and Young People’s Social Care Services as to whether the child is need of protection or in need of services
Consideration by an employer of disciplinary action in respect of the individual

This procedure applies to both paid and voluntary work.

In the context of this procedure, the term “employer” means the organisation that has a working relationship with the person against whom the allegation has been made and includes voluntary organisations, employment agencies, fostering services, child minder services, youth clubs and others.

If concerns arise about a person’s behaviour with regard to their own children, Police and/or Children and Young People’s Services will need to consider informing the person’s employer in order to assess whether there may be implications for children with whom the person has contact at work.

4. Key Professional Roles

4.1	Local Authority Designated Officer (LADO). The local authority will appoint a Local Authority Designated Officer (LADO) whose responsibilities include: Management and oversight of individual cases from all partner agencies of the LSCB if the allegation meets the thresholds laid out below. Providing advice and guidance to Senior Managers (see 4.3). Monitoring the progress of cases to ensure they are dealt with within agreed timescales. Ensuring a consistent and thorough process for all adults working with children and young people against whom allegations are made. Maintaining information databases in relation to all allegations. Producing qualitative and quantitative reports for the LSCB and the DCFS. Coordinating and collating reports to provide information to the LSCB and the DCFS. Liaising as necessary with chairs of Strategy Meetings or attending/chairing Strategy Discussions/Meetings Contributing to LSCB training programmes and awareness-raising across the children’s workforce. Liaising with Police and the Crown Prosecution Service. Discussing with Senior Managers the possibility of referral to the Independent Safeguarding Authority for inclusion of the person on the PoCA List (Protection of Children Act 1999) or to the appropriate Regulatory Authority. The LADO requires a working mandate from the LSCB, access to database programmes and sufficient administrative support. The LADO should be informed of all allegations that come to the attention of Senior Managers. In cases where the nature of the allegation has not required immediate referral to Children and Young People’s Services or the Police, the Senior Manager and the LADO will make a decision jointly as to whether such a referral is necessary and who will make it. See Contact Details Appendix for details of local LADOs.
4.2	Named Senior Officer LSCB member organisations will each appoint a Named Senior Officer whose responsibilities will include: Ensuring that their organisation complies with the standards and procedure outlined in this document. Ensuring that this procedure is reflected and implemented within their own agency procedure. Ensuring that their workforce is aware of and implements the procedures regarding allegations against adults who work with children and young people. Ensuring that their organisation has systems in place to review cases and identify and then implement any changes which would improve both procedures and practice. Resolving any inter-agency issues which impede the implementation of the LSCB procedure. Ensuring that their organisation has effective reporting and recording arrangements are in place.
4.3	Senior Manager Each LSCB member organisation, and other employers who provide services to children or young people, will appoint one Senior Manager within the organisation whose responsibilities will include: Ensuring that this procedure is properly applied and implemented within their organisation. Providing advice, information and guidance for staff within the organisation. Being the senior manager within the organisation to whom allegations or concerns are reported. Referring allegations in accordance with this procedure and their internal procedure. Gathering any additional information which may have a bearing on the allegation, for instance: previous concerns, care and control incidents and so on. Providing the subject of the allegation with information and advising them to inform their union or professional body. Attending Strategy Meetings where required. Liaising with the LADO. Liaising with Human Resources where disciplinary action is required. Ensuring that risk assessments are undertaken where and when required. Ensuring that effective reporting and recording systems are in place which allow for the tracking of allegations through to the final outcome. Undertaking appropriate checks with data held by their organisation. Providing reports and information as required by their Named Senior Officer. Ensuring appropriate training programmes are in place and accessed by all staff. Ensuring relevant support programmes are in place for staff, parents and young people. Raising the awareness of the need to empower children and young people by ensuring their agency produces good whistle-blowing and complaints procedures. Should the allegation be unfounded, giving consideration to a referral either to Children and Young People’s Services or the police if the allegation is deemed to be deliberately malicious or invented. In order to meet these responsibilities the Senior Manager will need to access advice and guidance from the LADO; have access to a recording and monitoring system and be familiar with this document. The Senior Manager may be, or may represent, the employer. Organisational procedures should identify an alternative person who can act as Senior Manager should the principal post-holder be absent when an allegation is made or be the subject of such an allegation. This alternative Senior Manager should be made aware of the contact details for the LADO.
4.4	Police West Mercia Police will appoint officers to fill roles similar to the Named Senior Officer and Senior Manager. The senior officer will have a strategic oversight of these arrangements, liaising with all Local Safeguarding Boards in the West Mercia Police force area while others, possibly unit managers, will be responsible for liaising with specific LADO’s, taking part in Strategy Discussions, reviewing cases where there is a police investigation and sharing information on the completion of an investigation or prosecution.

5. Underlying Principles

Supporting those involved

Parents or carers of a child or children involved should be told about the allegation as soon as possible if they do not already know about it. The LADO will discuss with the Senior Manager how and by whom they should be informed; if Police or Children and Young People’s Services need to be informed of the allegation then they will also be consulted about how best to proceed. It is accepted that some circumstances will arise in which the employer must inform the parents of an incident straight away, for instance if the child has been injured and requires medical treatment. Parents or carers should be kept informed of the progress of the investigation and be told of the outcome where there is no criminal prosecution; should a disciplinary hearing take place then the outcome can be shared although the information considered in reaching a decision cannot normally be shared.
Children thought to have suffered Significant Harm or to be victims of a criminal offence should have their need for support considered by Children and Young People’s Services or the Police.
The person who is the subject of the allegation should be kept informed of the progress of the investigation by their employer who should also provide appropriate support to that person during the investigative process. If the person is suspended, the employer should make arrangements to keep the individual informed of developments in the workplace. If the person is a member of a trades union or a professional association they should be advised to contact that body at the outset of the investigation.

Confidentiality

Every effort should be made to maintain confidentiality and guard against publicity while an allegation is being investigated.
The police will not normally provide any information to the Press or media that might identify an individual subject to investigation unless and until that person is charged with a criminal offence.
In exceptional cases the police might depart from this rule but partner agencies should be consulted beforehand with the reasons then documented.

Resignations and ‘Compromise Agreements’

The fact that a person tenders their resignation or ceases to provide a service must not prevent an allegation being followed through in accordance with these procedures.
Whether or not an individual cooperates with an investigation, or remains in employment at its conclusion, it is important that the investigation continues, considering all available evidence in an attempt to reach a judgement about the allegation.
It therefore follows that so called ‘compromise agreements’ (by which a person agrees to resign, the employer agrees not to pursue disciplinary action and both parties agree a formula of words to be used in future references) should not be used in these cases. Such an agreement would not, in any case, prevent police action nor can it override an employer’s duty to make a referral to the Protection of Children Act List or the DCFS List 99 should circumstances require this.

Record keeping

It is important that employers keep a clear and comprehensive summary of any allegations made, details of how the allegation was followed up and resolved. This record should be placed on the person’s confidential personnel file with a copy given to the individual.
The record should be kept at least until the person reaches retirement or for ten years if that would be longer.
The purpose of the record is to enable accurate information to be given in response to any future request for a reference.

Timescales

Every effort should be made to resolve cases as quickly as possible consistent with a fair and thorough investigation.
Indicative timescales for each stage are suggested within the guidance on the process of investigation: these are included to provide useful targets which should be achievable in many cases however it is acknowledged that the time taken to resolve individual cases depends on a variety of factors such as the nature of the allegation, its seriousness and complexity. These timescales are not performance indicators.
Data about allegations against education staff show that it is reasonable to expect that 80% of cases be resolved within 1 month, 90% within 3 months and all but the most exceptional should be completed within 12 months.
It is unlikely that cases which require a complex police investigation or a criminal prosecution will be resolved in less than 3 months.

Oversight and monitoring

This is ensured through the appointment of the specific officers detailed above: the Local Authority Designated Officer, the Named Senior Officer and the Senior Manager.

Historical abuse

Should an adult report abuse that they suffered as a child while living away from home in settings provided by local authorities, the voluntary sector or independent providers, they should be responded to in the same way as contemporary concerns.
In these cases it is important to ascertain whether the person accused is still working with children and, if so, to inform their current employer or voluntary organisation.

Patterns

It is important that those undertaking investigations be alert to any sign or pattern that suggests the abuse is more widespread or organised than it at first appears.
These signs will not necessarily be directly related to abuse but might include blurred professional boundaries, inappropriate behaviour, fraud, deception or the use of pornography.

Where the safety of other children is in question as a result of the allegation, consideration should be given to invoking the Complex (Organised or Multiple) Abuse Procedure.

PROCESS OF THE INVESTIGATION

Initial Considerations

The LADO should be informed of all allegations that come to the employer’s attention and appear to meet the threshold criteria for this procedure. This will enable the LADO to consult police and social care colleagues as appropriate.
This should be done within 1 working day of the employer becoming aware of the allegation.
The LADO should also be informed of any allegations that are made directly to the police or to Children and Young People’s Services.
The LADO will first establish with the employer that the allegation falls within the scope of these procedures and may have some foundation; this discussion will also consider how best to inform the parents or carers of the child concerned, consulting with police and children’s social care if this is appropriate.
The employer should inform the accused person about the allegation as soon as possible after consulting the LADO however, where a Strategy Discussion is needed or it is clear that the police or Children and Young People’s Services may need to be involved, this should not be done until agencies have been consulted and agreed what information can be disclosed to the person. If the person is a member of a trade union or a professional association they should be advised to seek support from that organisation.

If there is cause to believe the child has suffered or is likely to suffer Significant Harm then a Strategy Meeting should be convened in accordance with LSCB Child Protection guidance. The employer, or a representative of the employer, should be invited to the Strategy Meeting unless there is good reason not to do so.
The Strategy Meeting will need to:

Share all relevant information about the person who is the subject of the allegation and about the alleged child victim
Plan the investigation/enquiries and set timescales for tasks to be undertaken
Consider whether any other children are affected by the allegations e.g. the person’s own children or other children in the agency setting or elsewhere for example children placed with foster carers, childminders, attending a youth club, grandchildren
Consider the support needs of the children affected
Determine any action that needs to be taken in respect of any other children identified including the need for a Section 47 Enquiry
Decide how regular information and support will be provided to the child and family and by whom
Ensure that the person who is the subject of the allegation is kept informed and supported
Plan all interviews and agree who should undertake them so that there is no confusion between a criminal investigation, Section 47 Enquiry/Core Assessment and disciplinary processes
Consider whether the circumstances require the person who is subject to the allegation to be suspended from contact with children, so as to inform the employer’s decision about this issue (including whether a foster carer’s approval should be suspended and the implications for other children in the placement); this may change as the investigation progresses and should be reviewed regularly
Where the person will not be suspended, consider the steps necessary to safeguard any children during the investigation

If a Strategy Meeting is not required but a police investigation might still be needed, the LADO should have a discussion with the police, the employer and any other agencies involved with the child to evaluate the allegation and decide how it should be dealt with. The police must be consulted about any case in which a criminal offence may have been committed. This discussion need not be a face to face meeting but should share available information about the allegation, the child and the person accused, consider whether a police investigation is needed and, if so, agree the timing and conduct of that. The discussion should also consider whether any disciplinary process should await the outcome of the police investigation or proceed in parallel with it.
In cases where it is clear that it is not necessary for the police or Children and Young People’s Services to undertake investigations, or this is decided following initial consultations, the LADO should discuss the next steps with the employer: the options range from taking no further action to summary dismissal or a decision not to use the person’s services in the future.
If the nature of the allegation does not require formal disciplinary action, appropriate action by the employer should be instituted within 3 working days. If a disciplinary hearing is required and can be held without further investigation, the hearing should take place within 15 working days of the discussion with the LADO.
In some cases further investigation will be required to enable a decision to be made about how to proceed. If so, the employer should discuss with the LADO how and by whom the investigation will be undertaken. This should normally be by the employer; however in some circumstances the nature and complexity of the allegation might point to the employer commissioning an independent investigation to ensure objectivity. This may be by an officer without line management responsibility or a person external to the organisation, depending on the circumstances.
The further investigation should report within 10 working days of the discussion with the LADO. The employer should then make a decision about the need for a disciplinary hearing within 2 working days of receipt of the report. If a disciplinary hearing is to be held, it should be convened within 15 working days.
The LADO should continue to liaise with the employer to monitor progress of the investigation and provide advice and support when required or requested.

In relation to the above, where the term “employer” is used, this will generally refer to the Senior Manager – see Section 4.3, Senior Manager.

Suspension

The employer will have to consider the suspension of the accused person in any case where there is cause to suspect that a child is at risk of Significant Harm or the allegation warrants investigation by the police or it is sufficiently serious that it might be grounds for dismissal.
People should not be suspended automatically or without careful thought.
Employers must consider carefully whether the circumstances of the case warrant suspension until the allegation is resolved.
The power to suspend is vested in the employer alone; however in circumstances where the Police and/or Children and Young People’s Services are to undertake further enquiries/investigation, the LADO will canvass their views in order to inform the employer’s decision-making. This canvassing of views can take place within a Strategy Discussion/Meeting where appropriate.

Monitoring progress

The LADO should regularly monitor the progress of cases via Strategy Discussion/Meetings or through liaison with professional colleagues as appropriate. This should take place at fortnightly or monthly intervals depending on the complexity of the case.
If a police investigation is required, the police should set a target date for reviewing the progress of their investigation and consulting the Crown Prosecution Service to consider whether to charge the individual, continue the investigation or close it down. Wherever possible this review discussion should take place no later than 4 weeks after the initial meeting to consider the allegation. Dates for subsequent reviews, at fortnightly or monthly intervals, should be set at the first review if the investigation is to continue.

Information sharing

At the beginning of the process all agencies involved in the investigation of the allegation, including the employer, should share all information they have about the person who is subject of the allegation and their victim.
Wherever possible the police should obtain consent from the individuals concerned to share the statements and evidence they obtain with the employer, and/or Regulatory Authority, for disciplinary purposes. This should be done as the investigation proceeds rather than after it is concluded. This will enable the police and the Crown Prosecution Service to share relevant information without delay at the conclusion of their investigation or any court case.
Children and Young People’s Services should follow a similar procedure when making enquiries to determine whether the child or children named in the allegation require protection or services, so that any information obtained in the course of those enquiries that is relevant to a disciplinary case can be passed to the employer or Regulatory Body without delay.

Action following a criminal investigation or a prosecution

The police or the Crown Prosecution Service should inform the employer and the LADO when a criminal investigation or trial is complete, or if it is decided to close an investigation without charge or not to prosecute after the person has been charged.
In these circumstances the LADO will discuss with the employer whether any further action is required and, if so, how to proceed. The information provided by the police and/or Children and Young People’s Services should inform that decision.
Action by the employer, including dismissal, is not ruled out in any of these circumstances: the range of options will depend upon the circumstances of the case and different standards of proof required in disciplinary and criminal proceedings.

Action on conclusion of a case

If the allegation is substantiated and the person is dismissed, or the employer ceases to use the person’s services, or the person resigns or otherwise ceases to provide their services, the LADO should discuss with the employer the need for the employer to make a referral to the Independent Safeguarding Authority for inclusion of the person on the PoCA List (Protection of Children Act 1999)or DCFS List 99 and if so, the form and content of any such referral (see Appendix 2). Also, if the person is subject to registration or regulation by a professional body the LADO should advise on whether a referral to that body would be appropriate. Consideration should also be given in appropriate cases to making a referral under the local Protection of Vulnerable Adults Procedure.
If it is decided that a person who has been suspended can return to work the employer should consider how best to facilitate that. A phased return and/or the provision of a mentor may be appropriate. The person should also consider how the person’s contact with the child or children who made the allegation can be best managed if they are still in the workplace.
If an allegation is determined to be unfounded, the employer should refer the matter to Children and Young People’s Services to determine whether the child concerned is in need of services or may have been abused by someone else.
In the rare event that an allegation is shown to have been deliberately invented or malicious, the police should be asked to consider whether any further action against the person responsible might be appropriate.

Learning lessons

At the conclusion of a case in which the allegation is substantiated the employer should review the circumstances of the case to determine whether there are any improvements to be made to the organisation’s procedures or practice to help prevent similar events in the future.
In some cases, a Serious Case Review may be appropriate.

Appendix 1 - Protocol for Sharing Information with Employers about Child Protection Concerns Relating to Parents or Carers Who Work With Children

Introduction

Child protection enquiries should identify wherever possible whether the adult who has caused concern also works with children. Consideration needs to be given to whether any of the actual or potential child protection concerns have implications for the safety of children in the adult’s place of work.

This guidance has been produced to guide decision-making on how and when it is appropriate to share concerns about an adult with their employer or organisation.

‘Work’ applies to all activity involving children, whether paid or voluntary.

Due consideration must be given to the employee’s rights under Data Protection, Human Rights and Employment Law, as explained below. Any decision to share child protection concerns with an employer must be justified in terms of the principles set out below and consequently, all related decisions and their reasoning must be recorded and open to scrutiny.

Procedure

Wherever possible a Section 47 Enquiry should establish whether the adult about whom there are concerns also works with children.
Where it is established that the adult causing concern works with children, they should be informed that any implications of a child protection nature will also be considered in relation to their place of work. They should also be told that their consent will be sought if it is felt necessary to communicate with other authorities/employers in relation to their work unless to do so might prejudice a criminal investigation or lead to a child(ren) being at risk of Significant Harm. (For further advice on the test to be applied, please see the “Legal Checklist” below).

The nature and degree of concern should be considered in relation to whether the risk might extend to children/young people in the adult’s place of work. There are three possible positions:

There may be sufficient information at the outset to conclude that there is an actual or potential risk to children in the place of work;
There may be doubt about the implications of the concerns for the place of work.
It may be clear that the specific nature of the concern poses no risk at all to other children.

The Initial Assessment will identify which of the above positions apply to the case in question. The reasons for the decision must be recorded.
The basic legal test to establish whether information should be shared with employers is the identification of a “pressing social need”. This is explained in more detail in the Legal Checklist below. The Courts have indicated that it should only be in exceptional cases that the risk posed by an individual in the community cannot be managed without the disclosure of some information to a third party outside the statutory agencies. For example, where an employer, voluntary group or church leader has a position of responsibility/control over the individual.
Where a decision is made to share information with another authority, the first communication made by the investigating agencies must be with the Social Care Service that covers the geographical area in which the adult is employed.
Once a decision to share information with another Local Authority has been made, an Information-Sharing Strategy discussion/or meeting should take place between the two Social Care Services and the relevant police authorities. A record of the information shared and the agreed actions must be made.
Any subsequent communication with an employer, must also be justified using the “pressing social need criteria. In most cases, this communication should be made by the Social Care Service covering the place of employment or the appropriate Police Authority.
Direct communication between the Social Care Service responsible for the original s47 enquiries and the adult’s employer should not precede the communication with the Social Care Service covering the employer’s area, unless in exceptional or emergency situations.
There will be cases where the adult works within the same authority as the Social Care Service undertaking the initial investigation. The fact that the case under consideration is within the same authority, should not encourage sensitive information to be shared more readily or informally and the pressing social need test should still be applied.

Practitioner's Guide

The following guide offers a prompt for an analysis of risk in the work place. Indicators of risk should be considered in the light of their combined/inter-relational effect, rather than used as a checklist. Additionally, the overall assessment should also incorporate the influence of any offsetting protective factors. It should be read in conjunction with the Legal Checklist (see below) and practitioners should seek specific legal advice where they are uncertain as to whether the information should be shared or not.

1.	Category of child protection concern: Physical Sexual Emotional Neglect
2.	Is the member of staff the alleged perpetrator?
3.	If the member of staff is a partner or relative of the alleged perpetrator: Has s/he colluded with the perpetrator? Has s/he failed to protect? Does s/he acknowledge the risk? Has s/he shown protective characteristics towards the child/ren?
4.	Are the concerns: Specific to one child in the household? Involve more than one child in household? Involve external children, friends, neighbours etc?
5.	Are the concerns: evidenced beyond doubt? reasonable suspicion? uncertain?
6.	Is the incident: single incident? persistent?
7.	Perpetrator’s response to concern: Full co-operation Some commitment to change Denial No commitment to change
8.	What progress is being made? Deterioration No progress Some progress Significant progress Risk no longer exists
9.	Does the concern: Imply a risk to children through direct contact? Imply risks in undertaking work of a child protection nature? Imply indirect risk e.g. access to information?

Legal Checklist

Is there a statutory basis (express or implied) for sharing the information (e.g. Section 47 of the Children Act 1989) (see (i), Appendix )

It is likely to be personal or sensitive personal information to which the Data Protection Act applies. You will need to have complied with a condition of Schedule 2 (personal information) and Schedule 3 (sensitive personal information) so as to permit the obtaining/sharing. (see (ii), Appendix )

Why does the information need to be shared? Can I/they show a sufficiently “pressing need to know?” (see further below)

Generally consent should be sought before the information is shared. If consent can be obtained it will overcome many of the obstacles to disclosure.

If you decide to seek consent is it clear, unconditional and, where necessary, explicit?
If consent cannot realistically be obtained is there another justification for disclosure without consent?

If a duty of confidence arises and you do not have any consent to share the information you need to weigh the harm that would result from the breach of confidence against the harm from a failure to disclose, i.e. is there an “overriding public interest” to disclose? (see (iii), Appendix )

You need to be able to demonstrate that you have considered relevant Articles of the European Convention of Human Rights, e.g. Article 8, the right to respect to a private and family life (see (iv), Appendix ). The risk to the individual must be considered and whether s/he would be at any risk themselves from the information being disclosed. You recorded reasons for sharing the information should make reference to this. Is the disclosure

in accordance with a statutory or other power authorising disclosure?

necessary

for the prevention of crime/disorder or
for the protection of health or morals, or
the protection of the rights and freedom of others

proportionate i.e. only to the extent necessary to achieve the particular pressing purpose. Is there no other practical and less intrusive means of protecting the child(ren)? If there is not, ensure that only that information which is absolutely necessary to prevent the harm is disclosed.

In the light of the above do you “honestly and reasonably” believe there is “pressing need” to share information so as to protect children? Consider the following:

How strong is your belief in the truth of the particular allegation? The greater the conviction that the allegation is true the more compelling the need for disclosure
What is the interest of the third party in receiving the information? The greater the legitimacy of the interest of the third party is having the information the more important the need to disclose
What is the degree of risk posed by the individual if disclosure is not made

Decisions about who needs to know and what needs to be known should be taken on a case by case basis. It is vital that a proper balancing exercise is undertaken weighing the serious consequences of disclosure against the risks to the child(ren)

Consider consulting (rather than seeking consent from) the individual about any proposed disclosure. This should generally be done unless it would increase the risks of harm. Often it will be appropriate to inform the individual of a proposed disclosure in sufficient time to enable that person to seek an injunction or take appropriate steps, such as leaving their present employment to work in the non-child-care field.

Are you satisfied that the practical systems are sufficiently secure and controlled to ensure that the information will only be seen by those who have a legitimate interest in knowing it. Disclosure must be to the correct person i.e. the person who can avoid/ prevent the risks. They must know what to do with it and understand its confidential and sensitive nature.

Ensure that only that information which is necessary to prevent harm is disclosed. It will rarely be all the information available. Consider asking the potential recipient whether they already have any relevant information. If they do, disclosure may not be necessary.

Appendix - Legal Summary

i. Lawful Authority Requirement (vires)

The first step for a public body seeking to collect, use or share data will be to identify a statutory duty or power enabling it to act. This may be from express or implied statutory powers. As far as children are concerned the express statutory provisions of direct relevance are as follows:

Children Act 1989

Section 47: Where a Local Authority has reasonable cause to suspect that a child [in its area] is suffering, or is likely to suffer Significant Harm, it shall make such enquiries as it considers necessary to enable it to decide whether it should take any action to safeguard or promote the child’s welfare.

Housing, Health, PCTs and NHS Trusts have a duty to assist the Local Authority with its enquiries under s.47 unless to do so would be “unreasonable in all the circumstances.”

Children Act 2004

Section 10 of the Act places a duty on each children’s services authority to make

arrangements to promote co-operation between itself and relevant partner agencies to improve the well-being of children in their area in relation to:

Physical and mental health, and emotional well-being;
Protection from harm and neglect;
Education, training and recreation;
Making a positive contribution to society;
Social and economic well-being.

The relevant partners must cooperate with the local authority to make arrangement to improve children’s wellbeing. The relevant partners are:

district councils;
the police;
the Probation Service;
youth offending teams (YOTs);
strategic health authorities and primary care trusts;
Connexions;
the Learning and Skills Council.

Section 11 of the Act places a duty on key people and bodies to make arrangements to ensure that their functions are discharged with regard to the need to safeguard and promote the welfare of children. The key people and bodies are:

local authorities (including district councils);
the police;
the Probation Service;
bodies within the National Health Service (NHS);
Connexions;
YOTs;
governors/directors of prisons and young offender institutions;
directors of secure training centres;
the British Transport Police.

The section 11 duty does not give agencies any new functions, nor does it override their existing functions, it simply requires them to:

carry out their existing functions in a way that takes into account the need to safeguard and promote the welfare of children;
ensure that the services they contract out to others are provided having regard to that need.

In order to safeguard and promote the welfare of children, arrangements should ensure that:

all staff in contact with children understand what to do and the most effective ways of sharing information if they believe a child and family may require targeted or specialist services in order to achieve their optimal outcomes;
all staff in contact with children understand what to do and when to share information if they believe that a child may be in need, including those children suffering or at risk of Significant Harm.

Local Government Act 2000

Section 2(1) - empowers Local Authorities, amongst other things, to do anything which they consider is likely to promote or improve the social well-being of their area, or the inhabitants of it, provided it is not prohibited by other legislation.

ODPM guidance encourages Councils to regard s.2 as a power of “first resort” and to use it in appropriate situations rather than searching for a specific power elsewhere.

The Department of Constitutional Affairs advises: “Section 2 is of particular relevance as it is designed to ensure that service delivery is coordinated in ways which minimise duplication and maximise effectiveness. Section 2 would permit many types of data sharing partnership between Local Authorities and other where the proposed data sharing will achieve one of the objects set out in section 2(1) and where there is no statutory prohibition (express or, in very rare cases, implied) restricting the data sharing proposed. Section 2(5) makes it clear that a Local Authority may do anything for the benefit of a person outside their area if it achieves one of the objects of section 2(1).

Crime and Disorder Act 1998

Section 115: authorises (but does not require) relevant Authorities (such as Local Authorities, Health and Police) to disclose information where it is “necessary or expedient” for the purposes of any provision of the Act i.e. the prevention and reduction of crime and the identification and apprehension of offenders or suspected offenders.

S.115 overrides the common law duty of confidence and whilst there is no need to obtain consent from the person to whom the information relates prior to its disclosure, certain general principles still apply i.e. information should only be disclosed on a need to know basis and the minimum amount of information necessary to fulfill the statutory duty should be provided.

Implied Statutory Powers

The Department of Constitutional Affairs gives the following guidance:

Where there is no express statutory power to share data it may still be possible to imply such a power and there are a number of authorities that support this in the context of disclosing confidential information to prevent wrongdoing. For example, in R v Chief Constable of the North Wales Police, ex parte AB [1998] 3 ALL ER 310 the extent of data sharing power was considered in relation to the disclosure of information about paedophiles to individuals living in an area that put them at risk. Here it was accepted that the police have the power (either implied statutory or common law) to disclose information for the purposes of performing their public duties.

The Court of Appeal (in R (A) v Hertfordshire County Council [2001] ALL ER (D) 259) has held that the general duty to protect the welfare of children in s.17 of the Children Act along with s.27, 47 and Schedule 2 (see above) gives rise to the implied power to communicate a belief that a particular individual presents a risk of significant harm to children in its area.

In Maddox v Devon Council the Council had disclosed information extracted from its files to a university at which Mrs Maddox had obtained a place to study to become a social worker. The council accepted that there was an obligation of confidentiality in respect of the files, but argued that the disclosure of the information was necessary in the public interest. In particular, the council was concerned that her fitness to be a social worker given that social services had been involved in the upbringing of her son (S) almost since his birth.

The Court held that the council’s disclosure was not a disproportionate reaction to the perceived problem. It was proper for the council to draw the university’s attention to its concerns so that the university could make its own decision. It was a matter of pubic interest that unsuitable persons should not become social workers. The primary obligation lay on the council to decide whether or not to make the disclosure and there was no requirement for it to obtain a ruling from the court before doing so. In general, as a matter of good practice, before making a disclosure in a case such as the present, a party in the council’s position should inform the subject of the disclosure of that intention in enough time to enable that person to seek an injunction from the courts.

ii. Data Protection Act 1998

The Data Protection Act applies to personal data which is widely defined as data whether stored electronically or in a relevant (manual) filing system, which relates to a living individual who can be identified from those data. It includes manual records held in a “relevant filing system i.e. a filing system structured so that the information relating to a specific individual can be readily accessed. It includes any expression of opinion about the individual and any indication of the intentions of any person in respect of the individual.

It applies to anything at all done to personal data (“processing”), including collection, use, disclosure, destruction and merely holding data. Even disclosing personal data from one part of an organisation to another will amount to processing.

Organisations processing personal data (“controllers”) must comply with the data protection principles. The key principles for the purposes of this summary are that data must be:

fairly and lawfully processed (1st):- this requires, amongst other things, that there must be a statutory power enabling the processing and that the person from whom the data is obtained must not be deceived or misled as to the purposes for which the data is to be processed. You cannot use information obtained for one purpose for another “incompatible” purpose. It is a particular requirement that the conditions of Schedules 2 and 3 (see below) are met.
processed only for specified, lawful and compatible purposes
adequate, relevant and not excessive
accurate and where necessary, kept up to date
kept for no longer than necessary
kept secure
processed in accordance with individuals’ rights

“Personal Data”

Sharing of personal data is legitimate (Schedule 2, Data Protection Act 1998) if at least one of the following applies:

the individual has given his or her consent (which may be implied)
to protect the person’s vital interests
to comply with a Court Order or fulfil a legal duty
to perform a statutory function
to perform a public function in the public interest
where it is necessary for the legitimate interests of the data controller, or of a third party to whom the date is disclosed, unless the rights or interests of the data subject preclude sharing

Sensitive Personal Data

“Sensitive personal data” includes information regarding a person’s physical or mental health, sexual life, racial or ethnic origin, political/religious/other opinions and beliefs, trade union membership and commission or alleged commission of offences. The sharing of sensitive personal data is legitimate (Schedule 3, Data Protection Act 1998) if at least one of the following also applies:

(1.)

with the explicit consent of the data subject.

(2.)

necessary ,

in order to protect the vital interests of the data subject or another person, in a case where -

consent cannot be given by or on behalf of the data subject, or
it cannot reasonably be expected to obtain the consent of the data subject,

in order to protect the vital interests of another person, in a case where consent by or on behalf of the data subject has been unreasonably withheld.

(3.)

necessary for administration of justice or in the exercise of functions conferred by an enactment.

(N.B. The Information Commissioner has advised that “vital interests” should be equated with life or death situations).

iii. Common Law Duty of Confidence

The processing of both personal and sensitive personal data may be shared (without consent), under the Data Protection Act if necessary for a particular statutory function. Certain functions have been identified above.

However, even if you can satisfy the Data Protection Act “necessity” test, it is imperative to consider whether a common law duty of confidence attaches to the data.

Information will be regarded as confidential where it is reasonable to assume in circumstances that the provider of the information expected it to be kept confidential. A duty of confidence is characteristic of several types of relationship such as medical (doctor/patient), legal (solicitor/client) and caring (counsellor/client). However, a duty of confidence does not necessarily arise just because a document is marked “confidential”, although such a marking may be indicative of an expectation of confidentiality.

Information provided by a family to a social worker in the course of that social worker’s functions in giving assistance to that family will be confidential to the family

Where a clear duty of confidence arises, the information cannot be disclosed to “third parties” without either consent or the requirement of an overriding public interest. It will also be overridden by an express statutory duty such as is found in s.47 of the Children Act or s.115 of the Crime and Disorder Act. There will be a clear public interest in disclosing the data where there is a risk to the life of the child or that they will be seriously injured. It will be less clear when considering other established “public interest” criteria such as the protection of health and morals or the rights and freedoms of others. The CYPU guidance advises that in deciding whether or not disclosure of information given in confidence is justified you need to weigh the harm that would result from the breach of confidence against the harm that might result from a failure to disclose. Any disclosure must be proportionate and the minimum necessary to achieve the public interest objective.

iv. European Convention of Human Rights

The European Convention on Human Rights has been interpreted to confer positive obligations on public authorities to take reasonable action within their powers (which would include information sharing) to safeguard the Convention rights of children. These rights include the right to life (Article 2), the right not to be subjected to torture or inhuman or degrading treatment (Article 3) and the right to liberty and security (Article 5).

Article 8 of the European Convention on Human Rights was incorporated into UK law by the Human Rights Act 1998 and recognises a right to respect for private and family life:

Article 8.1: Everyone has the right to respect for his private and family life, his home and his correspondence
Article 8.2: There shall be no interference by a public authority with exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, protection of health and morals or for the protection of rights and freedoms of others.

Sharing confidential information may be a breach of an individual’s Article 8 right: the question is whether sharing information would be justified under Article 8.2 and proportionate.

The right to a private life can be legitimately interfered with where it is in accordance with the law and, for example, is necessary for the prevention of crime or disorder, for public safety or for the protection of health or morals, or for the protection of the rights and freedoms of others. You need to consider the pressing social need and whether sharing the information is a proportionate response to this need and whether these considerations can override the individual’s right to privacy. If a child or young person is at risk of significant harm, or sharing is necessary to prevent crime or disorder, breach of the child or young person’s right would probably be justified under Article 8.

Appendix 2 - The Protection of Children Act List and DCFS List 99

Click here to view the POCA List Referral Form

The Protection of Children Act List

This act gives the Secretary of State power to keep a list of people who are unsuitable to work with children in childcare positions. This power is now undertaken by the Independent Safeguarding Authority.

Childcare organisations in the regulated sector are required to make a report to the Independent Safeguarding Authority in certain circumstances, principally if they dismiss a person for misconduct which has harmed a child or put a child at risk of harm, or if a person resigns in circumstances where they might have been dismissed for that reason. Other organisations in the childcare sector can make reports but are not obliged to do so.

If there appear to be the grounds for including a person on the List his or her name will be added provisionally while further enquiries are made. The person will be given the opportunity to make written observations about the case.

If at the end of the process the Independent Safeguarding Authority is of the opinion that the referring organisation reasonably believed that the person was guilty of misconduct or put the child at risk of harm and the person is unsuitable to work with children then their name will be added to the List on a permanent basis.

Anyone who is included on the List on a permanent basis can appeal to the Care Standards Tribunal within three months of the decision.

Childcare organisations must check the List and List 99 before employing someone in a childcare position through an enhanced Criminal Records Bureau check.

DCFS List 99

List 99 is a confidential list of people who the Secretary of State has directed may not be employed by Local Authorities, schools (including the independent sector) or Further Education institutions as a teacher or in work involving regular contact with children under 18 years of age.

The List also includes details of people who the Secretary of State has directed can only be employed subject to certain conditions. Employers are under a duty not to use a person who is subject to a direction in contravention of that direction.

LA’s, schools FE institutions and other employers have a statutory duty to make reports to DCFS if they cease to use a person’s services on grounds of misconduct or unsuitability to work with children, or someone leaves in circumstances where the employer might have ceased to use their services on one of those grounds.
The police also make reports to DCFS if teacher or other member of staff at a school is convicted of a criminal offence.
People who are convicted of one of a number of sexual or violent offences against a child under 16 years of age, or in some cases against an adult, are automatically deemed unsuitable to work with children and are included on the List.
Those subject to a Disqualification Order (made by a Crown Court when a person is convicted for an offence against a child under 18 listed in Schedule 4 of the Criminal Justice and Court Services Act 2000) and those permanently included on the Protection of Children Act List are included on List 99 automatically.
In other cases the Secretary of State is advised by a panel of experts who must consider the circumstances of each individual case and give the person concerned the opportunity to make representations before reaching a decision. The Secretary of State has the power to direct that a person be prohibited from employment and added to the List.

People included on the List, other than those included automatically, can appeal to the Care Standards Tribunal against the decision within three months of the decision.

End