‘An invidious position’: the safeguarding disconnect affecting children and teachers

In the summer of 2023, a judge in the East London Family Court was tasked with finding evidence to determine whether a young girl had been touched sexually by her older brother.

The girl, known as “MM”, had alleged the abuse to her class teacher, who then brought the matter to the school’s designated safeguarding lead (DSL). Both teachers recorded MM’s allegations, as per the Keeping Children Safe in Education (KCSIE) guidelines, before informing a social worker.

In court, the judge went through the teachers’ records in detail, describing them as “vague” and “confusing and shifting”. She pointed out that they were not verbatim accounts of what the girl said and that they contradicted statements the teachers had made later.

The judge concluded that MM’s account was “muddied and tainted” by the teachers’ evidence, adding that it was “an unfirm foundation on which all subsequent investigations have been built”.

She said: “I regret to say that MM’s evidence has been compromised by this lack of forensic care taken by the school.”

All in all, taking the teachers’ records alongside other accounts, the judge did not find evidence of sexual abuse. If MM’s allegations were true, she did not receive justice. And her teachers, though well-meaning and following the government-mandated KCSIE, had unintentionally contributed to this outcome.

How could this happen?

The gap between KCSIE and ABE

The problem lies in what Maria Strauss, partner and head of the schools practice at law firm Farrer & Co, tells Tes is “the gap between KCSIE and ABE [Achieving Best Evidence]”.

School staff will be familiar with KCSIE, the statutory Department for Education guidance that covers safeguarding, including how to deal with allegations of sexual abuse.

But, Strauss explains, “KCSIE does not set out in any detail a process for how to run an investigation or how to interview children. So really, schools have nowhere to go for that guidance”.

The document that does include that guidance, outlining best practice for interviewing victims and witnesses during a criminal investigation, is ABE.

It is this, published by the Ministry of Justice and used by police, prosecutors and the judiciary, that is considered the gold standard to which all evidence is held in court.

For example, a case summary by a judge in 2019 noted: “Significant departures from the good practice advocated in [ABE] will likely result in reduced (or in extreme cases no) weight being attached to the interview by the courts.”

This is what happened in MM’s case, detailed above. Another such example can be seen in a 2021 case in which an interview between a police officer, a social worker and a child was deemed not to have followed the guidance.

The court notes read: “The extent to which it departed from the guidance is on such a scale that it seems wrong to describe it as an ABE interview at all.”

Clearly, police and social workers can also fail to meet ABE guidelines, even if they are the ones who should be aware of the need to follow its requirements.

So, what chance do teachers have to get this right when, among KCSIE’s 185 pages, there is no reference to ABE at all?

Failing to ‘stand up to scrutiny’

Worse, some of the guidance in KCSIE actually directly contradicts ABE, explains Jake Walker, a barrister at Coram Chambers, who says it means teachers can end up recording allegations in a manner that, “when investigated in a courtroom…can’t stand up to scrutiny”.

For example, Walker highlights the discrepancy in the guidance around when and how teachers should record an allegation.

ABE advises that an interview is recorded with video so there is a verbatim account of what was said. Meanwhile, KCSIE states: “Best practice is to wait until the end of the report and immediately write up a thorough summary.”

As such, Walker says evidence can be deemed insubstantial if a teacher, diligently following KCSIE, fails to use the exact language of the child - including the tense, how the child describes body parts and what names they use for people.

For example, he says: “When the child says, ‘daddy did it’ and this child has two dads, one they call ‘dad’ and one they call ‘daddy’, and the teacher records ‘their father’, well, which one are they talking about?”

‘Held to a standard they weren’t aware existed’

He says another crucial issue of recording terminology accurately comes with prepositions, such as the difference between a child saying someone touched them “in” or “on” a body part - something it could be easy to misremember when writing notes after a conversation.

Walker says language must be recorded consistently throughout the interview process in case a child goes on to be questioned by a social worker and then a police officer.

Otherwise, he says, “the language that child used might look as though it’s changed, so therefore the allegation is changed, might seem less consistent, and therefore less likely to be true”.

This can mean that in the “gruelling” environment of a courtroom, the result is a teacher who has “followed what the government is telling them to do” by adhering to KCSIE but is “made to look negligent…because they’re suddenly being held to a standard they weren’t aware existed”.

School-based investigations

Not only can this cause issues in the courtroom, but it can sometimes mean cases never even make it to court.

For example, Strauss says sometimes “the police can’t or won’t investigate” a case because the evidence gathered is not sufficient as the school has not followed ABE - something one DSL, who wishes to remain anonymous, says they have seen firsthand.

“Lots of cases haven’t got to court because the evidence [collected according to KCSIE] hasn’t been deemed reliable,” they say.

Another way this can cause problems is if a school carries out a civil investigation to find out if there have been breaches of its policy - and so uses KCSIE rather than ABE.

Strauss says she has seen cases where “a child has not been interviewed properly by a school” because staff are following KCSIE. This can lead to “incorrect conclusions being drawn” and complaints from parents about “unfair processes”.

Whereas when Strauss is hired by a school to oversee a civil investigation, she recommends they follow ABE, ensuring “a robust process”.

A call for change

Given all these issues, it is no surprise that many in the sector and those who work with young people in serious safeguarding situations say things need to change.

Richard Tanton, director of member support at the Association of School and College Leaders, tells Tes that “KCSIE and ABE will not align unless the DfE takes action and the statutory guidance is changed”.

Meanwhile, Anne Longfield, executive chair of the Centre for Young Lives, tells Tes it is clear the “contradictions between KCSIE and ABE [mean] the guidance in its current form is not working”.

She adds: “I share the concerns expressed by some experts that the guidance needs to be re-examined.”

Echoing this sentiment are Val Webb and Jude Walker, co-founders of KidSafe UK. They say: “This mismatch of guidelines needs to be tightened and realigned to ensure every one of us has the best chance to work together to safeguard our children.”

The practicability problem

How, then, can this be done? The seemingly obvious solution is to take the necessary ABE guidance and draft it into KCSIE, so teachers are better equipped to collect robust evidence.

However, Strauss says such a resolution is “difficult” because simply incorporating ABE into KCSIE would mean the document gets “longer and longer” and overburdens staff.

“I think it is wrong to expect very busy senior leaders and designated safeguarding leads to be reading extra guidance when they’ve already got so much on,” she adds.

Fiona Scolding KC, a barrister at Landmark Chambers, agrees that while ABE is well understood as best practice, to put that requirement on school staff is unrealistic.

She says: “Is that practicable within the context of school training, focus and understanding? No. And so you therefore put schools in an invidious position.”

‘We’re not the police’

School safeguarding staff concur. Thomas Michael, a safeguarding lead at a school in the West Midlands, acknowledges it would be “really disappointing” for a teacher if their evidence didn’t stand.

“We’re in the business of supporting kids, so you’d feel like you’d let them down,” he says.

But he adds that it is not realistic for a school to follow ABE: “We’re not the police…a school can never be expected to function like the police do.”

What’s more, he says even if schools did follow ABE, it could be a “barrier” to the child saying more. If a teacher took notes the entire time a child is speaking: “They’ll be wondering: ‘What are they writing?’”

If a teacher, instead, writes up the incident afterwards - as KCSIE advises - then “you’re just listening, and they feel a lot more comfortable talking”.

The anonymous DSL agrees there is an impracticality to schools following ABE. For example, they recall a time when a child made “a disclosure of sexual abuse in front of the class during carpet time”, a situation in which the teacher had to consider the fact there were 29 other children present.

The DSL argues the appropriate response in that scenario would not be, “Let me get out my notes and I can write down exactly what you’re saying”.

Yet this practice is more closely aligned with what a court of law would consider gathering the best evidence.

“It puts schools in difficult positions…we don’t walk around recording everything verbatim, and it’s not realistic to expect us to do that either,” they add.

External investigators

So, is there another way?

Scolding KC suggests one idea is for “a cadre of people who are employed by the local authority, whether they’re lawyers or social workers or ex-police officers” who have the skills and knowledge to “conduct investigations on behalf of schools”.

She adds that multi-academy trusts could also have a central role for someone who has received specialist training and whose job it is to go into schools and undertake an investigative process. “That means you’ve got somebody who’s coming in with a fresh pair of eyes,” she says.

But of course, not all trusts have the scale to employ someone in such a dedicated role.

What’s more, this still would not help with the issue of how to record a child’s spontaneous allegation.

Embedding key ABE principles

Another suggestion comes from Dai Durbridge, partner at Browne Jacobson, who says the DfE could work alongside social care or the police to identify five key principles of ABE to introduce into KCSIE on its next revision, starting with the failures that have led previous cases to fall.

“[Then] we can make some tangible gains in improving the quality of record-keeping without putting staff in fear of misreporting,” he says.

Strauss agrees she would see value in the introduction of “a set of guidelines or best practice principles for school investigations”, linked in the KCSIE document. Having “all the information you need in one place is going to be most helpful”, she adds.

A statutory DSL qualification

Durbridge says another starting point would be for “DSLs and other staff to undergo some basic training on good quality record-keeping and evidence” - chiefly for “clarity and context”.

He adds that this could be part of a wider move to introduce a statutory DSL qualification because, at the moment, “there’s no requirement for them to have had any particular training”.

The anonymous DSL agrees, explaining that, currently, the training DSLs have is very variable: “Some local authorities will offer you half a day’s training. Others will offer you a two-day course”.

“Either way, that really isn’t enough to do such a significant role,” they say, adding that they believe a “national qualification that is mandatory for anybody in the role of a DSL” should be created - and within this, DSLs could be taught “the basics of ABE”.

Whatever the outcomes, it’s something that needs addressing, with Ian Dean, director of the CSA Centre, saying that “clear, practical guidance and robust support to help staff build the confidence to notice, understand, and respond to signs of abuse” has to be the top priority.

“Education professionals have a crucial role in recognising sexual abuse concerns and responding to secure children’s safety and wellbeing when there is potential harm,” he adds.

Tes put these concerns to the DfE and asked if there are any plans to bring KCSIE more in line with ABE, but the DfE declined to comment.

An unresolved tension

Ultimately, like the complexity of a legal case that might ensue from a safeguarding concern, there is no easy answer to the issue of the disconnect between KCSIE and ABE.

Currently, the system is such that a well-meaning teacher, following the guidance handed to them, could easily see their evidence undermined and important cases dismissed.

How that tension is resolved remains unclear. Legal experts are torn between arguing for the importance of alignment and the knowledge that teachers are already overstretched - something with which the sector would unquestionably agree.

So, until statutory guidance changes, it seems the best-case scenario is simply for there to be an increased awareness of the issue among teachers who, in Walker’s words, “no one doubts want to do their best to help”.

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