There is much in the media at the moment concerning allegations of abuse at school. In particular on a website called ‘Everyone’s Invited’ which allows people to make anonymous allegations of sexual abuse that has gained notoriety this week. Founded in June 2020, at the time of writing, there are over 10,000 testimonies on this website.
Although any allegation of sexual abuse can be shared on the website, it is clear that the majority of stories shared relate to abuse within both state and private schools. Historically investigations into sexual abuse at schools have tended to focus on the private sector but Keoghs have always dealt with claims from both state and private schools. The allegations on the website have confirmed that this is not a problem only in private schools.
Sexual abuse in schools has been a concern for a number of years. In 2016, the Women and Equalities Committee’s report into Sexual harassment and sexual violence in schools highlighted a ‘disturbing culture’ in schools. Jess Phillips, Shadow Minister for Domestic Violence and Safeguarding has now stated that ministers have ‘dropped the ball’ and failed to act on the contents of this report.
The majority of abuse allegations made against schools seem to be either:
We will consider these claims separately. It is important to note at the outset that a school will be liable only for harm caused by its failures, or the failures of its staff.
Claims against members of staff will be brought in vicarious liability. To summarise this complex area of law, this is a non-fault liability where there will be no need to prove that the school did anything wrong.
The claimant will need to prove that:
In the case of teachers and other staff members whose duties include dealing directly with the children, as long as the abuse is proven, it will usually be easy to prove that this abuse was closely connected to their employment. The situation is more complicated for members of staff who are further removed from the child, for example cleaners. Such cases will need to be forensically reviewed on a case by case basis.
Claims made in vicarious liability can extend beyond assaults that occurred on school premises during school hours and can include abuse that continued for many years after the claimant has left the school.
Claims of this nature are more complicated and will need to be brought in negligence.
In a peer-on-peer claim a claimant will have to show on the balance of probabilities that as well as being sexually assaulted by the other pupil, the school was negligent in causing or permitting the assault.
To prove negligence, it must be proven that the school owed the claimant a duty of care, that this duty was breached, and that the breach caused injuries or losses to the claimant.
As confirmed in Gower v London Borough Bromley, a school owes a general duty of care towards the pupils, which was summed up as:
(1)‘ A headteacher and teachers have a duty to take such care of pupils in their charge as a careful parent would in like circumstances, including a duty to take positive steps to protect their wellbeing.
(2) ' A headteacher and teachers have a duty to exercise the reasonable skills of their calling in teaching and otherwise responding to the educational needs of their pupils…
(4) ‘The duty is to exercise the skill and care of a reasonable headteacher and/or teachers, applying the Bolam test, namely, whether the teaching and other provision for a pupil’s educational needs accords with that which might have been acceptable at the time by reasonable members of the teaching profession.’
It follows that a school owes a claimant a duty to take reasonable care to see that he or she was reasonably safe during the school day and for a reasonable period after the end of the school day while he or she was still on the school's premises.
The situation is more complicated when the abuse occurs outside school hours and away from school property, as the school has little control during these periods. These cases will have to be considered on their individual facts. An exception to this rule would be school trips, where liability is likely to extend throughout the trip.
Once a duty of care has been established, it must be determined whether this has been breached. To do so, it will be necessary to consider:
Peer-on-peer cases are much more complicated and will require a forensic examination of each case on its own facts to determine the prospects of success.
A number of the claims made on ‘Everyone’s Invited’ are historic. It is important to note that claimants must bring their claim (whether in vicarious liability or negligence) before the age of 21, otherwise they are prima facie statute barred, although it should be noted that the courts do have the discretion to allow claims outside this period under s33 Limitation Act 1980.
When determining whether to allow a claim to proceed, the court will take into account all the circumstances of the case. If you would like to discuss limitation in more detail, please do not hesitate to contact a member of Keoghs abuse team.
It is clear that there is much work to be done to ensure that children are protected from such abuse whilst at school. It is important therefore that schools refer to government and local authority guidance in relation to safeguarding and the protection of children to ensure that their safeguarding policies and procedures to protect children from abuse are up to date and strictly enforced. They must also ensure that all staff are given detailed training on abuse and how to protect children within the school environment.
For more information regarding state schools contact Anna Churchill. For independent schools and universities contact Daniel Tyler.
Anna Churchill and Daniel Tyler
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