"Safeguarding", as critically important as ever and rapidly rising in the regulatory agenda and media prominence, has been hastily evolving in the past six months particularly within the charity sector. 

The requirements in relation to safeguarding have developed, but so too has the scope of “safeguarding” within the sector. Generally speaking and outside of the charity sector, legislation refers to safeguarding specifically in the context of working with children and vulnerable adults. Recently Government has, in effect but not in legislation, broadened the scope of what it considers to comprise “safeguarding” in the charity and humanitarian sector to include not only children and vulnerable adults, as we know it, but so as to also encompass the duty of care that charities may be found to owe to other groups in the context of their operations (including when their representatives are off duty): to their staff and volunteers; beneficiaries generally; and those who live and work in the areas in which they operate.

In order to secure compliance with this developing regime, it is essential that charities review the suitability, robustness and effectiveness of their processes and policies in relation to safeguarding, but also in relation to staff safety and staff conduct more broadly.

We have summarised the recent developments, and set out key action points for organisations.

BWB’s multi-disciplinary Safeguarding team can provide advice on all aspects of safeguarding work including policies and procedures, dealing with safeguarding incidents and disciplinary procedures and required reporting.  Members of the team have recently spoken at the annual Bond conference on what safeguarding means for governance and assisted NCVO in producing safeguarding guidance, which is available on its website.

1.     The Charity Commission

Since September 2017, the Charity Commission has released a series of variously new/revised safeguarding documents.  BWB has already reported on the updated version of its guidance on reporting serious incidents and on updates to the Commission’s Safeguarding Strategy in December 2017. 

The Charity Commission issued a regulatory alert in December 2017 following a number of reported incidents, reminding charities of their safeguarding obligations and the Charity Commission's expectations of them.  It is apparent from this and other updates that the Commission is adopting a broad approach to safeguarding, extending the obligations to staff and volunteers as well as beneficiaries. Moreover, trustees are reminded that their obligations relate to historical events as well as current ones. Any concerns about how issues may have been dealt with in past should prompt trustees to carry out a formal review, including on the adequacy and robustness of the charity’s safeguarding measures, procedures and policies. Trustees must report to the Commission any safeguarding issues or serious incidents, complaints or allegations which have not previously been disclosed; failure to do so may be considered misconduct and/or mismanagement and may be a breach of trustees’ duties. As it has been said: this is a moment in time for charities to raise issues which, reflecting on recent developments and the current climate, they may now feel need to be raised. The Commission also comments on appropriate governance in this regard.

Recent increases in safeguarding incident reports have also led the Charity Commission to establish a new taskforce to ensure all reports are dealt with efficiently. The new taskforce was announced as part of their “suite of steps on safeguarding”. The team will also undertake work to encourage full and prompt reporting by charities and will offer advice on safeguarding incidents and appropriate actions. Furthermore, the team will be conducting a thorough review of existing serious incident reports to assure their fulsomeness and that all necessary follow up actions have been completed.

Two safeguarding summits have also been convened by the Charity Commission. The first, held jointly with the Department of International Development on Monday 5 March, focused on charities and umbrella bodies working internationally. The second held for charities and umbrella bodies working in the UK on Tuesday 6 March, was co-chaired by the Minister for Civil Society, Tracey Crouch MP. At the summit on Tuesday, UK charities discussed strengthening their approach to safeguarding in four key areas: leadership, culture and values; law, regulation and the statutory framework; capacity and capability in charities around safeguarding; and responsibilities and reporting, accountability and transparency. Attendees agreed to reconvene in two months to discuss their action plans and implementation.

2.      Charities working overseas

The Department for International Development (DfID) has launched itself into the centre of safeguarding developments, establishing a new safeguarding team which has contacted all international NGOs to which it contributes financially regarding their safeguarding obligations.

At the joint safeguarding summit on 5th March, DfID announced a series of steps the department will take to tackle safeguarding issues. Crucially, DfID will introduce enhanced safeguarding standards for organisations it works with, and funding will depend on their ability to meet the standards. The possibility of setting up an international safeguarding centre to support organisations to implement best practice on safeguarding and maximise transparency in the charity sector was also proposed.  DfID has also encouraged organisations to appoint a Director of Safeguarding, and has noted the importance of charities owning up to incidents when they occur.

The parliamentary International Development Committee has also launched an inquiry into sexual exploitation and abuse in the aid sector. A draft Bill entitled International Development (Safeguarding Vulnerable Groups) Bill has been published, along with explanatory notes, which will make safeguarding a key DfID consideration and will enable the most stringent DBS checks to be carried out in respect of those who provide aid, even when not working specifically with children and/or vulnerable adults. The Committee held an initial evidence session on 20 February 2018 and persons and organisations are now invited to submit written evidence by 6 April 2018.

3.     Government strategy on preventing child abuse within the UK

The Government has outlined its updated plans to tackle child abuse following consultation in 2017, which include proposed improvements to information sharing between police, social workers and healthcare professionals.

BWB previously reported on a Government consultation on mandatory reporting of, or acting on, suspicions or allegations of child abuse and neglect and noted our concern that such a duty might lead to over-reporting and impede authorities’ ability to respond to such reports. The Government has now published its response to the consultation which shows that the majority of respondents felt that a system of mandatory reporting of any concern relating to child abuse, and a duty to act where child abuse was known or suspected enforced by professional or criminal sanctions for a breach, could have an adverse effect on child protection and would not in itself lead to appropriate action being taken to protect children. The feedback suggested that additional measures such as these could act as an unnecessary burden, the unintended consequences of which could be to divert attention from the most serious cases, hamper professional judgement, and jeopardise relationships between social workers and vulnerable families.  

4.     Updated Statutory Guidance

The Government’s recent response to a consultation on amendments to the ‘Working Together to Safeguard Children’ guidance reveals the Government’s intention to widen some obligations on safeguarding partners. The guidance will, we understand, also be revised to include specific sections on sports organisations and religious organisations. The amendments reflect changes in the Children and Social Work Act 2017, which will be brought into force later this year.

5.     Independent Inquiry into Child Sexual Abuse (IICSA)

On 1 March 2018, IICSA published their investigation report into its Child Migration Programmes case study. A report on Cambridge House, Knowl View and Rochdale is due to be published in Spring 2018.

IICSA’s other investigations are continuing as detailed on its website.

 

Key action points

In light of recent serious incidents that have affected the public and charity sectors, it is of critical importance that organisations have appropriate governance structures and clear policies and processes that are fit for (new) purpose and followed in practice. The rise of safeguarding and the need for appropriate sexual conduct in the public and political consciousness means that organisations must be particularly diligent in keeping up-to-date with the rapid movement in regulatory requirements and expectations to ensure ongoing compliance.

Organisations are told, perhaps somewhat aspirationally in view of the context in which many operate, that they must ensure that they maintain a safe and trusted environment for everyone who comes in to contact with them, including their staff and volunteers, and the Charity Commission in particular is encouraging organisations to report all serious incidents (recent and past) as soon as possible.

Furthermore, the Commission is keen to remind charities that all of those which may come into contact with children and vulnerable adults are expected to have a safeguarding procedure and a trustee who leads on safeguarding.  In addition, charities should have appropriate codes of conduct and HR policies to deal with “safeguarding” in the broader sense of their duty of care for staff and appropriate governance in place to deal with any incidents which arise.

Ultimately, charities are required to develop a culture which places beneficiaries and safeguarding at the heart of charity, public sector, and aid work, coupled with effective policies and procedures that manage incidents fairly and lawfully, if and when they arise.   


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Emma Dowden-Teale

Partner

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+44(0)20 7551 7890

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e.dowden-teale@bwbllp.com
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Claire Whittle

Senior Associate

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c.whittle@bwbllp.com
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Posted on 08/03/2018 in Legal Updates

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