As a lawyer involved in cases concerning allegations of abuse by children, it has become clear to me that the Keeping Children Safe in Education (KCSIE) guidance is not entirely fit for purpose.

This is because, although teachers may diligently follow its guidance (as is their legal duty), if a case reaches court, in following certain aspects of the guidance, the evidence they give may be rendered unreliable.

As a consequence, the court could be unable to use this evidence as a basis for making decisions that will keep children safe and ensure they receive the help they need.

The issue lies largely with the immediate response section of the guidance, which details what teachers should do if a child reports allegations of abuse.

Within this section - and indeed the whole of KCSIE - there is no reference to Achieving Best Evidence (ABE), which is the guidance given to social workers and police officers on handling allegations made by children.

A judge recently described ABE as “a yardstick of good practice against which the reliability of the information obtained may fairly be measured”.

What’s more, in a case known as ”Re P”, Justice MacDonald opined that there is “no need to reinvent the wheel” but that professionals working with children need to be “trained in, and to apply diligently the existing long-established and readily available comprehensive guidance” - ie, ABE.

In court, like it or not, teachers will be measured according to that “yardstick” and be held to the same standards as police officers and social workers when it comes to responding to allegations made by children.

However, schools must currently follow KCSIE - not ABE.

Words matter

One crucial disconnect between KCSIE and ABE is how teachers are advised to record any allegations. KCSIE does not tell teachers to take verbatim notes but to write up a “thorough summary” when a child makes an allegation.

That may sound reasonable but, in reality, if a case comes to court, a teacher in the witness box will be asked for, exactly, the words used for body parts, the prepositions used, words used to refer to people (whether by name or familial relation) and a raft of other semantic details.

ABE was written with this in mind and emphasises the importance of accurate and comprehensive record keeping. KCSIE, however, underestimates the level of detail demanded by the court and the significance of specificity.

As such, when the judge is inevitably asked to determine what exactly a child has said, if records are kept as directed by the current guidance, they could be unable to do so. This can often affect how reliable the court thinks the evidence is and it therefore becomes far less persuasive.

Upward referrals

There is another issue with KCSIE, too - not only does it not tell teachers what to say when making referrals to a designated safeguarding lead (DSL) or in multi-agency safeguarding hub referral forms, but it also does not tell them what not to say either.

This matters because courts will likely examine what was said between teachers when a referral is made.

So, for example, if a DSL was given lots of detail by another teacher about the allegation prior to speaking to the child, barristers may argue that subsequent dealings with the child were polluted by preconceived notions of what a child has alleged.

Indeed, teachers have been criticised in court for beginning conversations with questions like: “Can you tell me what you told Ms X this morning?”

This can force the court to conclude that the child’s account became less independent, and so less reliable, with each referral.

As little detail as possible should be included in the initial referral. There is, however, nothing on this in KCSIE, leaving teachers at risk of inadvertently undermining what might be essential evidence.

By comparison, ABE requires every interview to begin with a “free narrative”, whereby a child is given an open-ended invitation to provide their account.

The court endorses this approach because it ensures the child is giving an account that is purely their own, unaffected by any assumptions the interviewer might make.

‘Disclosures’ vs ‘allegations’

Finally, KCSIE should be changed to make it clear that when a child says they have suffered abuse, it is an “allegation”, not a “disclosure”.

The courts have been very critical of the term “disclosure” for over 35 years because it implies that something is true and can cause people to overlook the possibility that there might be other explanations for why a child has said something.

Conclusions

KCSIE’s immediate response guidance is not fit for purpose. Clearly, though, teachers must continue to follow KCSIE and should not alter their approach.

Instead, KCSIE needs to be brought into alignment with ABE so that all professionals who work with children are working from the same guidance and are applying best practice, should any case reach court.

That would ensure teachers can provide evidence of sufficient quality to provide the foundations for the factual determinations that pave the way for court orders necessary to protect children.

Jake Walker is a pupil barrister at Coram Chambers