A best practice approach to managing incidents involving pupils from our experts Veale Wasborough Vizards (VWV)
As though the teenage years weren’t enough of a minefield, teenage indiscretions like ‘sexting’ could now land youngsters on police intelligence databases, along with the names of convicted paedophiles, for up to 10 years.
A case in September 2015 highlighted this danger. The incident involved a 14-year-old boy who sent a naked photograph of himself to a girl at school via social messaging app Snapchat. While such messages are intended to be automatically deleted, the girl saved the picture and shared it with classmates.
‘Sexting’ (as this type of image sending is described), is lawful for those over 18-years-old and is considered a private matter within a consenting adult relationship. Because the pupils were underage however, the boy, girl and another teenager have had their names recorded on the Police National Computer for committing the serious crime of making and distributing indecent images of children.
Home Office Counting Rules made it clear that, because the offence had been reported, the police were obliged to record it as a crime. The implications for children involved are that the offence may now be disclosable to employers should they be required to undergo enhanced disclosure and barring service checks in the future.
Sexting, it appears, is becoming a normalised aspect of teenage culture, which can have serious consequences for those involved, as well as safeguarding implications for the schools which have to deal with such incidents. There is no specific statutory guidance on how schools should deal with these cases, but various bodies have tried to provide help in this area. Some key points, practical guidance and best practice advice from VWV on how to deal with such incidents, are discussed below:
Clear policy – Schools should have a clear policy detailing the action to be taken. It states that staff, parents and pupils should all be familiar with the policy. Although a standalone policy may be helpful to schools, we suggest that reference to the protocols and procedures in relation to sexting in relevant school policies is sufficient. Mentioning this in acceptable use policies, behaviour policies, child protection and safeguarding policies, and anti-bullying policies is sufficient.
Reference should also be made to sexting as a forbidden practice in school rules. Inclusion of the school’s stance openly in policies provides schools with a mechanism for dealing with incidents under the school’s disciplinary procedures and sanctions should it be necessary.
Dealing with the incident – When a member of staff first becomes aware of the incident, they must act in accordance with the school’s Safeguarding Policy and/or Child Protection Policy, ensuring the school’s designated safeguarding lead (or deputy in their absence) is notified immediately. Although a criminal offence may have been committed, there is no obligation on the school to inform the police. If agreed by all those involved, schools have the power to deal with situations themselves.
Informing the police – The National Strategy for the Policing of Children and Young People, focusses on proportionality and getting the police’s response right to incidents involving children to avoid unnecessary criminalisation; if a matter is reported to the police then it is at the discretion of the officer whether the incident is investigated and how it is resolved. However, even if no action is taken by the police, Home Office Counting Rules state that if an offence is committed it must be recorded as a crime and therefore has future implications for the ‘offender’. This places considerable pressure on schools to get their judgement right. Making the ‘right’ decision will be very dependent on the nature of the incident and those members of staff involved in the initial investigations obtaining a good understanding of the circumstances. The guidance offers some assistance on making the decision and uses the results of a study carried out by David Finkelhor (a US sociologist) and Janis Wolak.
Locating the image and taking action – Under section 2 of the Education Act 2011, members of staff have the power to search pupils for an article that they suspect has been, or is likely to be, used to commit an offence, or any item which school rules identify as an item for which a search may be made. Subsections 6D to 6G provide that data or files held on electronic devices that are seized during a search may be examined if the member of staff has ‘good reason’ to do so. The electronic device may be returned to the pupil, data or files can be erased or the device can be retained or disposed of if there is a ‘good reason’ to do so. In determining whether there is ‘good reason’, regard must be had to guidance from the Secretary of State, which is currently contained in the document titled ‘Searching, screening and confiscation: Advice for head teachers, school staff and governing bodies’ (February 2014).
If inappropriate material is discovered on the device, the teacher has the discretion to determine whether to delete the material, retain it as evidence (of a criminal offence or breach of the school discipline), or decide whether the material is of such a serious nature that it requires police involvement.
A best practice approach is to securely retain the device with the material on it, until a decision has been made as to how the incident will be dealt with under the school’s Safeguarding Policy. Images should not be printed out or circulated as further offences may be committed, regardless of intention.
Although there is no obligation on schools to keep a record of searches carried out, we suggest keeping a log book of such searches, noting the reason for the search, the time and date of the search, details of the members of staff present when carrying out the search, the place the search was carried out and the outcome at the very least.
The National Society for the Prevention of Cruelty to Children found in its report ‘A qualitative Study of Children, Young People and ‘Sexting” that children rarely expressed concern about inappropriate sexual approaches from strangers, rather the problems came from their peers and ‘friends’. This provides that schools need to shift their focus towards reducing the risk from known peers.
Often schools now need to deal with multiple victims, offenders, abusers, and bystanders, some of whom may have a multiple role in such incidents. Distress is a key emotion in such incidents and vulnerability to mental harm is likely to be high because of the nature of the incidents and the age of those involved.
Schools must provide sensitive pastoral support during the disclosure and after the event, for whatever period is necessary. School counselling services may be a helpful resource when such incidents occur.
Parents must be informed at the earliest appropriate opportunity, and with the consent of the pupil where possible, but involvement must always put the pupil first.
Referrals to social services should be made where necessary and in accordance with the school’s Safeguarding Policy. Safeguards should also be put in place to protect those pupils involved.
Jim Gamble, the former Chief Executive of Child Exploitation and Online Protection Centre has called for urgent reforms to protect children who share images of themselves from criminalisation when such activity is deemed to be experimental and non-malicious but for now schools must do what they can within the parameters of the law as it stands, and guard pupils in the best way that they can.
Access a Digital Safeguarding Policy on TheSchoolBus here.