New Clause 58 - Child protection concerns and protected disclosures under the Employment Rights Act 1996

Children and Families Bill – in a Public Bill Committee at 2:15 pm on 25th April 2013.

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‘In section 43B of the Employment Rights Act 1996 (disclosures qualifying for protection), insert the following—

“(1A) In this part where a disclosure of information raises child protection concerns a “qualifying disclosure” means any disclosure of information which, in the reasonable suspicion or concern of the worker making the disclosure tends to show that a child has been abused or harmed, is being abused or harmed or is likely to be abused or harmed.”.’.—(Lisa Nandy.)

Brought up, and read the First time.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education)

I beg to move, That the clause be read a Second time.

The new clause, which stands in my name and that of my hon. Friend the Member for Washington and Sunderland West, relates to greater protection for whistleblowers who disclose concerns about child abuse. The recent Savile case shocked the nation and showed the importance of adults being able to report the concerns they have about children to the authorities and organisations such as the National Society for the Prevention of Cruelty to Children. We know, however, that even if individuals have a concern about a child, often they do not take action. We share the belief of organisations such as the NSPCC that current legislation does not do enough to produce a climate in which workers are encouraged to speak up. The Children and Families Bill provides a critical opportunity to protect more children from abuse, in the wake of the biggest child protection scandal in a generation.

The new clause would ensure that individual workers who have concerns about a child are not discouraged from coming forward. The current thresholds are too high, which deters the reporting of suspicions, particularly in the workplace.

When individuals, workers or professionals have suspicions about child abuse, they do not often take action because they fear that they will not be believed or taken seriously, or that they will get themselves or the perpetrator into trouble. They also fear being victimised in the workplace, which includes being sacked. Since the Jimmy Savile case hit the headlines—he is now thought to have abused hundreds of children over a 54-year period at different locations, including several hospitals, a school and at the BBC—it has become clear that many people held suspicions about his behaviour, but, for a number of reasons, did not report them.

That reflects a wider problem, which is backed up by evidence: a recent NSPCC and YouGov poll showed that many people would wait to act on child abuse; fewer than one in five said that they would report concerns as soon as they arose. Those findings are supported by the NSPCC’s own data that show that  almost half the people who contacted its adult helpline waited more than a month to get in touch, while some waited much longer.

Following the Jimmy Savile case and the ensuing Operation Yewtree, the NSPCC saw an increase of 200% in calls about sexual abuse from September to October last year and from October to November it referred an additional 788 children to the police or social services in relation to all types of abuse. It says, and I agree, that that shows a huge public will to come forward and protect children, but, sadly, still too often, people do not come forward. The reasons for that are clearly complex and many, but one in particular is the shortcomings of the current legislation to protect whistleblowers. The NSPCC helpfully provided some cases from its helpline to demonstrate this. The first is a health care professional who called with concerns that a child was being neglected by their parents while in hospital and the ward staff did not report that, nor meet the child’s needs in the interim. They did not want to identify themselves, because they feared there would be an impact on their employment if they did.

The second example is a caller who was a school midday supervisor concerned about the way that some staff treated children in a special school, including name-calling and rough handling. They had raised this with the school on several occasions, but said that nothing had improved, and the caller said they did not want to come forward because they were anxious about their job.

The final example is a caller who worked for a charitable organisation. He was concerned about a man who ran the young persons group within the charity. He said that the children referred to this man as “paedo” and that he would get very close to the children and touch them. The man apparently also arranged residential trips, of which the chairman of the charity was unaware. The referrer said that he had been concerned about this man’s behaviour for approximately four years. He also stated that there was no whistleblowing policy in his place of work.

As I said, the problems here are complex. There is clearly a pressing need for more education and also for more organisations, including in the charitable sector which may be particularly attractive to people who want to abuse children, to have strong and robust policies in place. This clause also addresses a real problem, because the fear of coming forward is compounded by publicity surrounding cases where whistleblowers have been victimised for coming forward. In the first case that the NSPCC highlights, a paediatrician was suspended from Great Ormond Street hospital, after raising concerns about the clinic where Baby Peter Connelly was seen before his death.

In a second case, a social worker in Haringey, from 2004 to 2009, had raised concerns with the authority about the social services department and its failure to implement findings from the tragic death of Victoria Climbié and the ensuing inquiry by Lord Laming. The social worker had also written to the Department of Health, but nothing was done to address her concerns. As many members of this Committee will know, having followed that case closely, she was sacked and took Haringey to an industrial tribunal. She said that the council had victimised her, falsely accusing her of child abuse and beginning an investigation into her nine-year-old  daughter’s welfare. In the end, the parties reached an out-of-court settlement in which she was paid an undisclosed sum and a silencing payment.

The reality is that someone coming forward to report suspected abuse happening within an organisation may not be protected from disciplinary action or dismissal by current whistleblowing legislation unless they can satisfy certain tests. In all cases there must be a disclosure of information, some factual information rather than a mere allegation and individuals must have what is known as a “reasonable belief” that the information they are disclosing tends to show that a child’s safety or health is in danger or that a criminal offence has occurred.

Current legislation makes allowance for the fact that workers may not have the full picture, but this test is still liable to have a substantial deterrent effect on the whistleblower. This is particularly the case with child abuse, because in practice individuals rarely witness it first-hand and they are likely to base their concerns on limited information and circumstantial evidence. Even if their evidence is sufficient, they are highly likely to question whether it is strong enough to come forward. Concerns about the “reasonable belief” test have been raised before; for example at the Shipman inquiry led by Dame Janet Smith.

It is vital that individuals are not discouraged from coming forward to report concerns about child abuse. We believe that whistleblowing legislation needs to be updated to remove the current barriers, so that all workers feel able to raise concerns about the welfare of the child in the workplace, confident that they will be heard and not victimised. My proposed amendment would add a qualifying disclosure to send an unequivocal message that individuals should come forward if they have concerns about child abuse. However it is also important to recognise that, on its own, this is not sufficient because of the “reasonable belief” requirement and therefore that threshold needs to be lowered.

In the Shipman inquiry, Dame Janet Smith proposed that it should be sufficient to show a reasonable suspicion. The NSPCC strongly supports a reasonable suspicion or concern in cases where a child is suspected of being abused or harmed. As it rightly points out, a whistleblower might be sceptical of the information received, yet sufficiently concerned to believe that the matter needs to be properly investigated. I have been the shadow Minister responsible for safeguarding for just a year.

Before I was elected, I worked with children and young people in the children’s sector for a long time. I do not claim to have anything like the expertise in child protection of the NSPCC, but I have a great deal of respect for them. I know from first-hand experience that the concerns raised by the NSPCC and many, many others, including the hon. Member for Stockport and many others in the House, are real. New clause 58 would do a lot to advance the situation, protect children from abuse and ensure that we intervene at an earlier opportunity. I therefore urge the Minister to accept it.

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

I thank the hon. Member for Wigan for tabling the new clause. As she set out in her well judged contribution, recent media coverage of cases where employees have been penalised for disclosing information about malpractice in organisations and incidents of unreported child abuse have, quite rightly, reignited this debate.

So, let me be absolutely clear: it is a criminal offence to harm a child, and not reporting incidents of harm to a child is wholly unacceptable. Our legislative framework has been strengthened in the last 20 years to facilitate reporting. Part 4A of the Employment Rights Act 1996 protects workers who make disclosures of such nature. Any disclosure showing that a child has been, is being, or is likely to be abused or harmed would be captured as a qualifying disclosure by section 43B(1)(a)—

“a criminal offence has been committed, is being committed or is likely to be committed”— and section 43B(1)(d)—

“the health or safety of any individual has been, is being or is likely to be endangered”.

Similarly, most public sector organisations working with children and young people are under a duty, under sections 10 and 11 of the Children Act 2004, to co-operate to improve the wellbeing of children and to safeguard and promote their welfare. Professionals in such organisations should discharge such responsibilities with due diligence to ensure that the needs of children are firmly placed at the heart of what they do.

Photo of Steve Reed Steve Reed Labour, Croydon North

On that issue, sometimes, when an organisation becomes aware that there are concerns about an employee related to children, they will be asked to go quietly with some kind of non-disclosure agreement in place. Would the Minister consider that when references are provided for individuals who have been in jobs subject to Criminal Records Bureau checks, there should be a requirement for a positive affirmation that no concerns related to child protection have been raised?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

I would be happy to look at what the hon. Gentleman has said. As I will come on to shortly, a review is under way that is looking at many such areas. It may well be that the issue he has raised should be considered as part of that review.

In England, all public bodies and organisations working with children should have a clear child protection policy that spells out how to raise concerns with local authorities’ children’s social care services, the NSPCC and/or the police. The statutory guidance published this year, “Working Together to Safeguard Children,” clearly states:

“If at any time it is considered that the child may be a child in need as defined in the Children Act 1989, or that the child has suffered significant harm or is likely to do so, a referral should be made immediately to local authority children’s social care. This referral can be made by any professional.”

We know, of course, that Governments in Scotland and Wales have also issued their own guidance on child abuse reporting.

The Department for Business, Innovation and Skills is implementing a number of measures to strengthen the UK’s whistleblowing protection framework through the Enterprise and Regulatory Reform Bill, which is due to achieve Royal Assent shortly. As I said to the hon. Member for Croydon North, the Government have also made a commitment to review the current provisions that apply to whistleblowers, and may consider amending the list of qualifying disclosures as part of that work. In many respects, the hon. Lady spoke for the NSPCC, and I also lend my support to the work that it does. Officials from the Department for Education met recently with the NSPCC to discuss precisely these  issues. The Department will be working closely with officials from the Department for Business, Innovation and Skills during the review period to ensure that the issues that come into both Departments are considered as part of the overall reconsideration of current legislation and practice.

I hope that I have given the hon. Lady some reassurance, so I urge her to withdraw the motion.

Photo of Lisa Nandy Lisa Nandy Shadow Minister (Education) 2:30 pm, 25th April 2013

I am grateful to the Minister for what he said; he was absolutely right to make it clear that harming a child is a criminal offence. We should never forget to keep reiterating that. I am also grateful for the commitment he made to consider the point made by my hon. Friend the Member for Croydon North. I appreciate that there is an ongoing review and that it is important to get this matter right. However, I am sure the Minister shares my frustration that for far too long we have not done enough for these children. I do not make that as a party political point; it is a wider point about society collectively, not just Government. There is a unique urgency to this matter because it relates to children’s lives and the most serious harm that can be done to them.

Given the Minister’s commitment to children, I know he will ensure that we do what we can as quickly as possible. I am still concerned about the matter and will return to it later. With the Minister’s assurances and his constructive approach, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.