Limited – protection

Child care organisations may be aware of the need to check
prospective staff for any criminal past, but not all voluntary
groups know about it – and neither does the law require them
to.

This apparent discrepancy opens up large areas of activity with
children that is unregulated and vulnerable to exploitation by
those who have the will to do so.

The mechanisms for identifying persons who present a risk to
children through employment, List 99 and the Department of Health’s
Consultancy Service Index, were placed on a statutory footing by
the Protection of Children Act 1999. They are now more usually
referred to as the Poca list.

The act lays out the obligations for “child care organisations”,
defined as those concerned with the provision of accommodation,
social or health care services to children or the supervision of
children, to refer candidates for inclusion on the list. Voluntary
bodies that work with children, such as scouts, guides, religious
clubs and sports groups, have the option to refer. The legislation
also allows prospective employers to make checks against the list
through the Criminal Records Bureau.¹

Child care agencies are generally clear about the need to check the
list and and the process involved. However, anecdotal evidence
suggests that child care organisations in the voluntary sector are
less clear about their responsibility and the process of referral
of people for inclusion in the list. But the protection that the
act is intended to afford to children can only be as effective as
the use that is made of it.

In practice many child care organisations are aware of their duty
to make checks regarding employees, but are not always aware that
checks are being made against the Poca list. Meanwhile, voluntary
groups may have little awareness of the list at all. Therefore it
is not obvious that the expectation, or “hope”, as it is expressed
in Department of Health guidance,² that these
organisations will take advantage of the scheme is actually borne
out in practice.

Also, the criteria for referral to the list lack clarity, and it
may be difficult for professionals to determine the appropriateness
of referrals. In fact many believe the point of referral to be if
an employee is prosecuted for an offence against a child. In
reality, the criterion in the Protection of Children Act 1999
section 2 (2) is as follows: “Éthe organisation has dismissed,
suspended an individual or moved position of an individual on the
grounds of misconduct (whether or not in the course of his
employment) which harmed a child or placed a child at risk of
harm”.

If this criterion is met, organisations should still refer
employees who have resigned or retired. An employer should also
refer at any point in the future if new information came to light
that in hindsight would have justified registration.

Another potential problem with the 1999 act lies with its
definition of “harm”, which is taken to mean ill-treatment or
impairment of health or development of a child. This definition
does not include behaviour covered by new internet offences. The
viewing of child pornography on the internet is an offence that
should lead to referral of the person involved to the Poca list to
prevent risk to children. But it is not obviously caught within
section 2(2) of the act. It may be seen as an action that is once
removed from direct harm or risk of harm to a child. Although the
Department of Health reports that a recent decision of the Appeal
Tribunal was to uphold registration in such circumstances, arguably
the legal basis for this view is not as clear as it might be given
the wording of section 2(2) of the act. This lack of clarity may
mean that employers fail to refer some employees.

Similarly, the announcement by the government, in the Queen’s
Speech, that grooming offences are to be included in the Sexual
Offences Bill, also puts a question mark over this definition of
harm and over the circumstances under which referrals to the list
may be made. Grooming offences in themselves involve actions taken
by an adult to gain the trust and confidence of the child before a
sexually abusive act; the acts of grooming are anticipatory, not
actual harm. It is therefore difficult to see how the offences, in
themselves, might directly comply with the definition of ill
treatment or impairment of health or development to a child. Nor
does it sit comfortably with the criterion of “placing” a child at
risk of harm.

More effective criteria might be developed if two categories for
referral were adopted. This would involve the inclusion of internet
and grooming offences in schedule one of the Children and Young
Persons Act 1933. The criteria for referral could then be extended
not only to refer to this section 31 definition of harm, but also
to convictions for a schedule one offence. Such a move would lead
to a more consistent process for referral of those, including
professionals, who pose a risk to children.

However, perhaps a more fundamental difficulty with regard to
referral of people for inclusion on the Poca list is that it is
entirely the responsibility of the employer to decide whether
referral is appropriate. Those who work exclusively in child
protection will be aware that situations of harm to a child do not
always present as black and white but operate around shades of
grey.

So it may be difficult for an employer who does not have expertise
in this area to recognise that thought should be given to the
referral of an employee for inclusion on the list. Also, there are
some professionals who work with children who are self employed,
such as GPs, where there is perhaps no obvious employer whose duty
it is to make a referral. This seems to be a significant omission,
particularly as national police investigations into internet
pornography seem to include a relatively high percentage of
professionals visiting child pornography sites.

This unsatisfactory situation is made worse by an obvious conflict
of interest for the employer who has a loyalty to the reputation of
an organisation. As one contributor to an NSPCC conference said:
“All of the more recent inquiries, following reports of
institutional abuse, have identified instances where abuse was not
reported, as managers attempted to protect the reputation of the
institution or cover the lack of procedures within the
organisation.”³

Given these problems, there is a need for a localised independent
review mechanism. Such a mechanism could review all the information
and provide guidance on whether there is a case for the employer to
refer a person to the home secretary for inclusion on the Poca
list. These review bodies could be established either through local
offices of voluntary organisations or the existing child protection
social services agencies.

This would ensure that the decision whether to refer a person is
considered at a professional, qualified and experienced level and
could safeguard against inappropriate referrals that might prove
damaging to employees.

Barbara Starns is the child care and protection
co-ordinator for East Riding of Yorkshire social
services.

References

¹ Protection of Children Act
1999, London HMSO

²
The Protection of
Children Act 1999 – A Practical Guide to the Act for all
Organisations Working with Children, Department of Health,
1999

³ M A Nunno, Factors
Contributing to Abuse and Neglect in Out-of-home Settings;
paper presented at the NSPCC Conference on The International Abuse
of Children, London MAy 1992