Charities and internal investigations
In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.
With lockdown 3 upon us and the vast majority of children attending school remotely, those working with children may no longer have the opportunity to see children face to face. This is likely to make it far more difficult to spot signs of abuse when they occur; things like changes in behaviour, appearance or injuries may not be as easy to identify online. It can be very difficult for children to speak out about abuse they have suffered and it is likely to be even harder for children to tell someone if they are not attending school or any of their usual activities. The government and the NSPCC have provided guidance on safeguarding and remote education, including advice on how to identify child protection concerns. Staff and volunteers should keep these issues in mind and organisations should consider carefully how to tackle them, particularly in relation to vulnerable children.
It is crucial for organisations working with children to have robust recruitment procedures in place, which are likely to look somewhat different in lockdown. What has not changed is the need for organisations to conduct thorough checks, including vetting and disclosure and barring (‘DBS’) checks where necessary. There are different levels of criminal record checks that can be performed. In England, Northern Ireland and Wales anyone undertaking a “regulated activity” (i.e. work that must not be undertaken by a barred person) requires an enhanced check. The government’s DBS guidance makes it clear that an individual can be carrying out a regulated activity even if their work is undertaken online.
The DBS process has been temporarily amended to take into account the fact that so many of us are working from home, to enable ID documents to be viewed over video link and for the scanned versions of ID documents to be used before the check is submitted. These are only temporary measures and organisations should ensure that the applicant presents their original documents as soon as restrictions are lifted.
As it is not currently possible to meet people for interview in person, organisations should ensure that interviews are conducted via an online video platform rather than telephone. Once appointed to a role, organisations should ensure that the online induction process is thorough enough to provide those working with children with sufficient support and understanding of the requirements of their role, particularly in relation to safeguarding.
Online abuse refers to any kind of abuse takes place over the internet. This could include viewing inappropriate content, being bullying, or being groomed; perpetrators of abuse can exploit personal information revealed online or even create fake profiles to try and build a connection with a child. As more and more activities are being conducted online and more services are being offered remotely for the first time, this gives rise to some important safeguarding considerations.
Organisations working with children and young people should ensure they have robust online safeguarding policies to keep children safe. This is particularly important for organisations who are offering online services for the first time. Practical steps that can be taken include adopting a specific policy statement for online safety and implementing a code of conduct setting out what is expected from children and adults in terms of online behaviour. Organisations should also ensure that the procedure to be followed when reporting and investigating concerns is updated so that if a concern is raised it can be dealt with remotely, which may not have been possible previously. Any updates or amendments to safeguarding policies should be communicated to all staff, volunteers, children and parents, and additional training provided if required.
Cyber security must be carefully considered by any organisation moving coaching, teaching and support work online. The most significant fines issued by the UK’s information regulator have been issued to those who have failed to take appropriate organisational and technical measures to protect personal data resulting in data breaches. The preamble to the GDPR emphasises that “Children merit specific protection with regard to their personal data”. As a starting point, organisations should ensure that any software used for the coaching, teaching, and support online is appropriately secure, and that staff have adequate training on its use. The ICO has brought in an age appropriate design code for those who are developing software that is likely to be accessed by children but developers are not required to conform with it until September 2021. Up until this point organisations will need to be especially vigilant about what software they use when supporting children, and will always need to consider how that software can be used securely.
Moving coaching, teaching and support online is likely to have data protection considerations beyond cyber security. It will change the way that organisations process and store personal data. Organisations will need to consider policies on retention and access, taking into account the rights of those whose data is being processed and competing concerns, which might be linked to safeguarding. An organisation may have to consider, for example, whether it can or should store coaching, teaching or support sessions that have taken place online and whether such sessions might be shared and with whom. Any changes in the way that data is processed will have consequences for compliance documents and in particular for privacy notices. They will need to be updated and special care will need to be taken to ensure they are understandable to those who they affect. The preamble of the GDPR states, in respect of children that “any information and communication, where processing is addressed to a child, should be in such a clear and plain language that the child can easily understand.” When coaching, teaching or support is moved online data protection issues will need to be considered, decisions in respect of them recorded, and those decisions communicated appropriately to those affected.
Whilst the coronavirus crisis may have brought about novel situations, the basic challenges for those involved in safeguarding or with safeguarding responsibilities remain the same. Children, as far as possible, should be in a safe environment and protected from harm. The environments may be digital not physical, and the potential harms different, but the fundamental principles will remain the same. Those organisations who are already engaging with safeguarding will therefore be on the front foot. They will, however, still need to work to ensure that existing policies are modified or implemented in such a way that they function effectively in the online world.
See also our blog series for charities with a range of topics including litigation, crisis management and investigations.
Claire Parry is an Associate in the Regulatory team. She specialises in advising individuals on safeguarding, disciplinary and anti-doping investigations as well as investigating fitness to practise concerns on behalf of regulators.
Fred Allen is an Associate in the Public Law team. He has worked on a range of public law challenges and matters including public inquiries; inquests; judicial review proceedings; tribunal appeals; defences against extradition requests and European Arrest Warrants; and applications to the European Court of Human Rights in relation to extradition and criminal proceedings.
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