Official Report: Minutes of Evidence

The Chairperson (Mr Weir): Members, the next evidence session will be an oral briefing on behalf of the Children's Law Centre. There is a cover note on page 81, and the Law Centre's submission is on page 85.

I welcome to our meeting Rachel Hogan, a barrister-at-law who is here for the Children's Law Centre, and Kathryn Stevenson, a solicitor who is head of legal services there. Can I ask you both to make brief initial comments, and then we will go straight to questions?

Ms Rachel Hogan (Children's Law Centre): Thank you for inviting us to give evidence today; we are delighted to be able to speak on this very important topic. The Children's Law Centre broadly welcomes the Bill and is very keen that it goes through in this mandate. We feel that it is important legislation to protect children from bullying in the school environment. We have concerns that we have outlined in our written evidence, but I think that we can narrow those down after some further analysis and discussions on the Bill. I will deal with clauses 1 and 2 very briefly, and then my colleague Kathryn will deal with clause 3.

The definition of bullying in clause 1 states:

and then we have what seems to be a set of hurdles and barriers that must be crossed before one can establish that there has been bullying. I wonder whether it is clear enough to use the word "includes". Does it mean that it includes only those items, or may it not be limited to those items? We suggest that it be changed to "includes but is not limited to". It is our belief that the definition should be inclusive and cover a wide range of potential unwanted behaviours to protect children and schools from all behaviours so that all those that may be harmful will be recorded as bullying in line with the definition so that preventable bullying can actually be prevented.

We have raised a concern about the use of the word "repeated", as we think that there is a lack of clarity in its meaning. For example, if there was a time lapse between two incidents, how long would it be before we would say that they were two single incidents as opposed to a repetition? If one child carries out bad behaviour that is repeated by another child the next day, is that repeated? We think that the use of the word "repeated" might cause some difficulty. It may also send a poor message to a school to possibly ignore the first behaviour. Although it could be recorded as a disciplinary issue, schools might look at it from the bullying perspective as less important because there had been only one incident, whereas, in fact, we think that bullying should be nipped in the bud immediately. That is always the best course of action.

We can compare the Bill with the Protection from Harassment (Northern Ireland) Order 1997, which also requires repetition in order to prove a course of conduct that causes distress or alarm and where there is a tort in terms of harassment. In relation to a civil claim, that requires one act that causes distress or alarm plus fear of a further act. That may be a fairer way of looking at it. There has been an act of aggression or poor, unwanted behaviour, and the child goes back to school the next day worrying about whether it will be repeated. It may be worth considering whether, if repetition is felt to be necessary, fear of repetition would be sufficient. Notably in that Order, for the criminal offence of harassment there have to be at least two acts, so it is a higher standard for a criminal offence. We believe that that is too high a standard for this Bill, which is to cover bullying in our schools, which, of course, could be low-level bullying or criminal offences.

We also note that the types of behaviour covered in clause 1(1)(a) may not fully cover non-verbal activity such as gestures, so it may be useful to include non-verbal actions as well as verbal.

In relation to 1(1)(b) and (c), dealing with bullying by a pupil or group of pupils against another pupil or group of pupils, the Children's Law Centre feels that adults should be included so that an atmosphere of mutual respect is promoted by all parties in the school, whether child or adult, in which everyone should respect each other and bullying should not be tolerated either from children towards other children or from adults towards children. That is because we receive reports from children and their parents that they feel that children have been targeted, laughed at or treated unfavourably in some way by adults in a school on occasion, sometimes on the grounds of sexual orientation or disability, for example. It is also worth noting that a school may already potentially be vicariously liable for the actions of teachers towards pupils. If a teacher has harassed a pupil, under that previous Order the school may be vicariously liable for that behaviour. It may be better to protect a school by putting it into the definition that no member of a school community should engage in bullying behaviour.

We would also like to see a provision for the imbalance of power, which has previously been spoken about. We agree with earlier comments that the imbalance of power is a key ingredient in bullying. A key concern is the use of the word "intention" in subsection (1)(d). We feel that the imbalance of power is a better filter than the use of the word "intention" when using it in law. We have a serious concern about that, because it is difficult to see how we could prove intention. "Intention" nearly sounds like a criminal term or a term from negligence; it is very subjective. How do we look into the mind of the young child and establish what the intention was?

As an alternative, we suggest that, instead of saying, "with the intention of causing harm" it should say, "with the purpose or effect of causing harm". "Purpose or effect" is a broader term and includes cases where there might not be clear evidence of intention. Of course, that might cover a very broad range of incidents where the effect is that someone is harmed. The imbalance of power requirement would then limit the number of people who would be recorded as bullying in that situation, so it would read, "with the purpose or effect of causing" whatever type of harm, taking into account that there had been an imbalance of power between the parties.

The notion of intention caused difficulty in the case of Ryan Collins, whom we mentioned in our written evidence, a young person in Newry who took a case against a grammar school. It is interesting that it is noted in that case that the school in question was a school of good standing with highly professional and dedicated teachers who are highly motivated to help their pupils, but they failed to prevent preventable bullying because of an ineffective policy. In paragraph 9 of the decision, you can see that the teachers were struggling with whether the behaviour was wilful, so they treated it as mistreatment instead of bullying. It was bullying that lasted in and around four years, ending with a child leaving school just before GCSEs, and it was not treated as bullying. The policy, therefore, did not work in that case. Looking for intention places a burden on teachers that might be difficult to discharge. It may be tempered if we look at the physical or emotional harm that is proposed here.

The Chairperson (Mr Weir): I do not want to curtail you too much, but could you try to make your remarks reasonably brief? We have another witness, and we have time limits on when we need to be out of the room.

Ms Hogan: Certainly. We are very concerned about the term "causing physical or emotional harm"; we feel that that is much too high a barrier. That would indicate criminal intent such as assault, intent to cause physical harm or intent to cause psychological harm. We feel that it should be broadened to include the likes of distress, alarm, hurt, fear, exclusion or physical or emotional harm so that we have a broader range of impacts.

We note that the Bill as it stands does not appear to cover harassment, which is the causing of alarm or distress. That leaves schools open, if they are not dealing with issues that might be harassment or bullying, to finding themselves liable for negligence.

Our key concerns about clause 2 are the scope of the measures that are to be taken. That is the places where the bullying occurs: in school, on the journey to and from school and so on. We feel that that scope is too narrow, and we would like to see a further category added where, if the bullying happens outside school — at home or in the community through cyberbullying — there should be a clause to allow, where there is evidence of a linkage between bullying in school and outside school, that the school would have the power to take that into account, so either a duty or a power for the school to take external factors into account. There is case law in England — the Bradford-Smart case — that, if a teacher is acting reasonably, they should take external bullying into account. If it is spilling into a school and affecting order and discipline, it would be unreasonable to exclude consideration of it.
We would also ask that anti-bullying policies be child-accessible so that proper consultation can take place with children when reviews take place. We would seek that reviews have a timescale such as annual, biannual or if the policy is proving ineffective for some reason. I will pass over to my colleague.

Mrs Kathryn Stevenson (Children's Law Centre): Good morning, Chairperson and members. I will deal with clause 3, which is the duty to keep a record of incidents of bullying.

We welcome the introduction of the duty on boards of governors to ensure that a formal record is kept. We also take the view that, whilst the board of governors would acquire an overarching duty under the clause, all members of teaching and non-teaching staff should receive adequate training and support. That has been covered a good deal this morning already, so I will not embellish it, but support is very important so that staff can report incidents as a witness or be made aware of them, even if it is then taken forward by designated staff in the school.

The ownership and use of data has also been discussed this morning. We had discussions with the Department in advance of giving evidence today, and it is envisaged that the likely mechanism to be adopted for recording data will be the C2k computer network, which is already being used by many schools. It is also our understanding that the data collected will be retained by and will remain the property of the schools. Therefore, it will not be collated or evaluated whole-school by the Department. The Department will have a power to request macro data, we understand, for statistical purposes and to inform future policy development.

It has been suggested — we would welcome this — that there be a role for the Education and Training Inspectorate (ETI) as part of the school inspection process. It would be fairly acceptable, I would have thought, that it could request reports or comparative reports from schools as part of the inspection process. We recommend that departmental guidance accompanying the Bill should provide clarity on the ownership of data, its use and the disclosure of school records, as that might alleviate some of the concerns about league tables and the media.

As regards what records should include, we do not object to what is included in clause 3(2), but we recommend that, as a precursor to paragraphs (a) and (b), it states that records should include statements of fact about the circumstances and nature of incidents. There is very clear guidance. The Northern Ireland Anti-Bullying Forum referred to its guidance this morning: it has a bullying concern assessment form that provides a useful template for the types of information that may be stored. In light of the Ryan Collins case, which Rachel spoke about, which involved the Abbey Christian Brothers' Grammar School, we recommend that the clearer and more comprehensive the record being kept by the school and the closer their adherence not only to the facts of the incident, as they see them, but, in their response, to their school policy, the more protection the school will be afforded in mitigating future liability. That is borne out in that case.

In our written evidence, we also talk about motivation and the concerns about the use of the word "motivation". Rachel touched on that. We are concerned that motivation, again, leads to intent. There are concerns that it might, in fact, limit the number of records that can be kept. We suggest a change in wording, with the proposed substitution of "relevant factors, characteristics or themes arising". Then you do not have to establish a motive on the part of the child who is allegedly involved in bullying behaviour. It has already been discussed that the list of motivations is not exhaustive. It may include those that appear in the Bill. We seek clarification in departmental guidance of any other factors that may be considered. It may be that another catch-all category could be included in legislation or recorded in the format for the C2k programme so that those factors could be specified, tallied and data collated. We also propose the inclusion of dependents, which would include school-age mothers, school-age fathers and child carers, if that were one of the factors that were involved in the bullying, and socio-economic status. That would align with section 75.

There was a discussion about marriage. We thought that "marital status" might be better. It is interesting to note that, with parental consent, a 16-year-old can get married in Northern Ireland. We know that members of certain communities, such as the Traveller community, get married much younger. We propose that "sex" should be changed to "gender". That would cover all areas of gender discrimination.

I know that there is a time limit on what I can say. With regard to monitoring and review, I just want to raise the point — again, on the back of the Ryan Collins case — that we see effective record keeping and the recording of incidents as a protective measure for schools. We see that as something that they can do. In that case, evidence given by an expert concluded that the school's response was investigative but not solution-focused. The court was concerned with the effectiveness of the policy and whether the school's response was adequate or timely. In order to mitigate exposure to future legal liability, we recommend that schools use the data that they collate as an evidence base to inform their anti-bullying policy review and consultation processes. They can use it to protect themselves against individual allegations as well. The board of governors could also use it to review and evaluate the effectiveness of the existing policy and procedure and assist them in developing proactive measures to tackle any emerging issues and to adopt preventative strategies to mitigate liability.

The Chairperson (Mr Weir): Thank you, Kathryn and Rachel. I will pick up on three points very briefly. On the issue of redress mechanisms for individuals, particularly parents, do you think that the Northern Ireland Public Services Ombudsman Bill provides adequate mechanisms for redress? Is that an adequate route with regard to school bullying?

Ms Hogan: Sorry, which Bill is that?

The Chairperson (Mr Weir): The Public Services Ombudsman Bill, which has just gone through.

Mrs Stevenson: I am concerned about that. I have to say, however, that I have not looked at that Bill in any detail. I understand that the ombudsman's office investigates maladministration, rather than factual disputes.

The Chairperson (Mr Weir): This is in relation to the issue of redress as regards school processes.

Mrs Stevenson: I do not know that the issues around school processes alone might be sufficient, if you are going to be open to civil liability, as happened in the Abbey Grammar School case.

Ms Hogan: The length of time that that might take may allow preventative —

The Chairperson (Mr Weir): I appreciate that there can be quite a lot of delay.

Mrs Stevenson: That is another important factor, yes.

The Chairperson (Mr Weir): The second point, Rachel, is that you mentioned at the very start that there is obviously quite a lot of meat in the substance, particularly in terms of amendments. We talked about the word "includes" earlier, and how it may include other things that are not mentioned. One of the issues that you seem to raise is that there seems to be a desire for a clear definition of what constitutes bullying. Is moving to a situation of saying that it may include other things as well, and putting it very explicitly, not more likely to muddy the waters?

Ms Hogan: The way it is currently drafted is too narrow; it needs to be broadened to some extent. Otherwise, it is going to rule out those lower-level cases of bullying, which cause distress, alarm, fear and isolation. Intention to cause physical harm is very narrow; intention to cause —

The Chairperson (Mr Weir): The final point that you mentioned, which may to some extent be covered elsewhere, is moving beyond a too-narrow pupil or group of pupils on pupil or group of pupils situation — if I put it that way — to include a situation where there is, potentially, bullying by adults of children or pupils. As a definition of bullying, does it also cut the other way? Should it include a situation where a pupil or pupils are bullying adults at school?

Ms Hogan: It can potentially include that, in both directions. What we are trying to do is prevent bullying in schools but, again, you are met with that hurdle of intention or imbalance of power. I think that we can assume that, in the majority of cases, though maybe not all, adults will hold the balance of power, but there have been situations where it has been the other way round, particularly with older children.

The Chairperson (Mr Weir): I appreciate that.

Mr Craig: Kathryn, I found it very interesting to listen to what you were saying about the procedures within the school, the documentation of the events and the timeliness of them. I can speak with experience and say that you are 1,000% right on that one. That is the ultimate protection for the school when it comes to this. Despite everything, the school can do everything properly to tackle the bullying issue, but it may not satisfy all parties involved. Bitter experience tells me that that is inevitably the case with some parents. It is unavoidable. Whether it is the offending party or the party that was offended, you will never fully satisfy all of them.

I note what you say about expanding the definition of bullying, what it actually is and how it is defined. What is the balance that we are going to find in all this? I have a concern that if we expand it too far, every small incident will become almost a full-scale war, with documentation going everywhere. There is a pressure on teachers around this, and a lot of it falls at present under the pastoral care policies of schools. Good schools do it properly. There is a lot of paperwork involved in it, a lot of documentation and an awful lot of time taken by senior teaching staff to go through, as you say, the investigations, as they were described by an earlier party. They are investigations; we need to be honest about that. A lot of time is taken up. If we create a monster here, how do we control it? Ultimately, the staff's first duty is to teach children: it is not to act as police, judge and jury. How do we find a balance on this?

Mrs Stevenson: There are couple of factors there. Schools will never be asked to be police, judge and jury because the standard of proof for bullying is not a criminal standard. I very much empathise —

Mr Craig: But the system feels very much like that when you are in the middle of it.

Mrs Stevenson: I very much empathise with what you are saying, Jonathan. What I am trying to say is that a school can belt-and-braces protect itself if it has the correct records in place. The particular case that we talked about was a recent one and the decision was published, but I understand that other decisions or awards of damages have been made on a settlement basis in Northern Ireland as well. We are not creating a monster; the monster is in the room, and schools have to protect themselves and those within the school community. We want to protect not only the schools and boards of governors but also the pupils who are either alleged to be bullying or are the bullied children.

In that particular case, the problem was that the statutory duties that are already in existence — the duty under the Education and Libraries (Northern Ireland) Order 2003 to safeguard and protect the child and the duty to have a policy and to consult on and review it — were not met by the school. Because the school did not take proactive steps and had not properly recorded things either, it could not establish that it had taken adequate and timely steps to eradicate bullying. Because the bullying continued for a period of time and was not stopped, the child — he was an adult by the time the case was finalised — was awarded damages.

It is all there; the writing is on the wall. It is not that we are creating a monster. What we are trying to do is to put in place the best protections for everybody concerned. The guidance from the Department is going to be absolutely key in terms of what schools will be required to do. When it comes to written policies, although boards of governors have the overarching responsibility, designated teachers and principals in schools will have very clear responsibilities, which should be clear within the school's policy, for the steps and measures to be taken, for the way in which the interventions are to be implemented and for reviewing the measures that are taken. If it is not effective, then the policy is not working. You have to review and adapt what you do to ensure that things stop. I understand that it is very onerous for teachers, but they are protecting themselves, and that is the bottom line as far as I see it.

Mr Craig: It is, Kathryn, and I do not disagree with that. I noticed that you and our other experts also talked about including the bullying policy around the teaching staff themselves. How practical do you believe that to be? More importantly, however — this is what is in the back of my mind around this — I can think of no incidents of bullying by teaching staff that do not fall into the disciplinary procedures that exist in schools for the staff themselves. A disciplinary action is automatically triggered in the school anyway, if there is an allegation against a staff member. Why do we need to include the staff in this Bill?

Ms Hogan: It is about messaging. It is fair to say that there are two distinct schools of thought on that point. It is about messaging to the school, to the pupils and to the adults. There are statutory provisions that require children to have respect for adults in school and to promote respect for the adults in school and for each other, but there is not the same messaging going in the other direction, which is that adults should respect young people and their difference, for example. Those incidences may also be covered by discrimination protections; there is an argument that there is another avenue of redress there. I am aware of a case where a young person got a declaration of discrimination against a teacher who had treated him unfavourably on the grounds of his disability, so there is that other avenue as well. Really, what we are trying to do with this Bill is to prevent bullying and further the promotion of respect for everyone in the school community. The incidences of adults bullying pupils are probably going to be a lot lower, I assume, than in the other direction, so I do not see it as being a huge issue, but it is one that we would like to see being dealt with in the Bill.

Mr Lunn: All the things that I want to ask you about are around clause 1. Earlier in the meeting today, the Department accused us of coming up with something that was syntactically incorrect, but they have offered to replace it with something that is syntactically incomprehensible. [Laughter.]

That is for Hansard.

As best I can make out from the notes, the suggested changes that you have made indicate that there is a lack of clarity around repeated use. The previous presenters, I think, suggested adding after "'bullying' includes" in the first line in the Bill "but is not limited to". Do you think that would —

Ms Hogan: I think we might have said that just now.

Mr Lunn: Was that you? Sorry, I am suffering from overdosing.

The Chairperson (Mr Weir): I know, Trevor, it has been a long meeting but —

Mr Lunn: That is OK.

Ms Hogan: It is to allow schools discretion. We have to credit schools that they can use their discretion and use objective assessment when investigating a bullying incident. It is to make it reasonably broad, to allow schools to record if they decide that it may be an incident of bullying.

Mr Lunn: OK. You suggested that rather than "intention" in clause 1(1)(d) we should have "purpose or effect". I am sure that the Department will come back and say that there is nothing wrong with "intention", but perhaps you could add "effect". "Intention" or "effect" has the same meaning as "purpose".

Ms Hogan: The words "intention or effect" would allow for a broader range of severity, in a sense. When a pupil intentionally sets out to hurt another physically, for example, that is quite a serious intent.

Mr Lunn: I am just thinking of the comparison between "purpose" and "intention". It is the same thing.

Ms Hogan: "Purpose" and "intention" are probably very similar 1 I would agree with that — but "effect" would broaden it.

Mr Lunn: You also suggested that in clause 1(1)(d):

is not wide enough, and you gave us quite a list, including "distress", "alarm", "hurt", "fear" and a couple of other things.

Ms Hogan: One could equally say, "causing adverse" —

Mr Lunn: Sorry. Do you intend to leave in "physical or emotional harm" including —

Ms Hogan: Yes, those should definitely be left in.

Mr Lunn: I think it was you who mentioned the Protection from Harassment (Northern Ireland) Order 1997. I am not familiar with that. Is that relating to schools or to wider society?

Ms Hogan: It is general legislation that can apply anywhere. It has not been widely used here, other than in maybe employment-type cases. Notably, in the Collins case the judge allowed counsel to refer to industrial relations cases, but there has not been a development of case law in relation to schools and harassment. That law came in ostensibly to protect people from stalking, which I suppose is relevant in terms of cyberbullying as well, when a person cannot get any rest from harassment.

Mr Lunn: You were not the first today to discuss the question of retention of records and data. We had a discussion, Chair, at a previous meeting — it might have been before your time — around retention of data, because the Department was looking for permission to adjust some of the time periods. Some of them went to 60 or 100 years, which seems ridiculous.

Ms Hogan: That is fairly lengthy.

Mr Lunn: Do you not think there might be something already in the regulations that would cover the retention of that kind of record?

Ms Hogan: It might be useful to give guidance to schools on how long they need to retain records, especially for children, because when children reach the age of majority at 18 their time limitation may then start to run. That lengthens the period for which you might want to keep records.

My understanding from reading information on England and Wales, where they also have this Order on harassment, is that the limitation period for that is six years. If you were looking at that period, you would be taking from the age of 18 plus six years, so you would need a reasonably lengthy period to keep the records. I would suggest that 10 years might be satisfactory. However, it is important for schools to be able to point to those records if someone comes back later in life and decides to take an action against them, whether for bullying or negligence or under some other heading.

Mr Lunn: What I would call limitation of offences legislation allows for age 18 plus, let us say, five years. Does that limit the ability of a child to take an action against a school belatedly, if you like, once that five-year period is over?

Ms Hogan: There are statutory limitations in relation to all the different types of claims that one can make, and those are set down in law. You do not have an indefinite time period within which you can decide to take a claim. There are limits, although they vary according to the type of claim.

Mr Rogers: I agree that the pupil is the victim and the bullying issue has to be addressed, no matter where the perpetrator comes from, whether it is a member of staff or other pupils. Is there not a danger of opening the whole thing up to staff-versus-staff bullying or principal-versus-staff bullying if you include words like "within the school community"?

Ms Hogan: It will be a matter of discussing that, teasing that out and deciding on any limits that one wants to place on that. If one was to include adults, you might wish to limit that in some respect. There is already protection for adults if they are abused in the workplace by a manager, for example. There are already actions that can be taken there. For example, a constructive dismissal case can be taken to the employment tribunal, or harassment can be dealt with under harassment legislation. It opens a difficult set of questions that has maybe not been discussed or teased out. We just feel that, if you look at it as a children's rights issue, the child has the right to be free from harassment and bullying from any source, and we want to prevent bullying in schools, whatever the source is.

Mr Rogers: So that will have to be addressed in the guidance.

Ms Hogan: There will have to be further thinking around it, whether that is in the legislation or whether something is included in the guidance to that effect.

Mrs Stevenson: Our intention was not to open it out as broadly as that, Seán. It was more to open it out for the pupil to potentially be a victim of some form of unacceptable behaviour from a member of staff as well as from a child, not staff-on-staff issues. That is different.

Mr Rogers: That is all I had to ask.

The Chairperson (Mr Weir): Thank you, Rachel and Kathryn. It is part of a process, but your evidence today has been very valuable.

Mrs Stevenson: Can I take the opportunity to raise one other small matter? You will see that the Bill is only drafted to apply to registered pupils in grant-aided schools. When we were involved in discussions with the Department, we raised some concerns about pupils who might be in education other than at school projects. Even whilst some of those pupils might remain registered on a school roll, obviously that could not be managed remotely by a board of governors if a child was in another project. We have raised concerns with the Department about the issue of parity for children who are outside the formal mainstream educational settings, and the Department has indicated that it is prepared to give an assurance to the Committee that that will be addressed separately, which may include undertaking a review of the education other than at school (EOTAS) guidance. We suggest and hope that the Committee will interrogate that further and seek such an assurance from the Department.

The Chairperson (Mr Weir): That has been flagged up. Once the evidence is completed, the Department will come back to us when we are looking at the details. That is one of the issues we can press it on.

Mrs Stevenson: I just wanted to take the opportunity to raise it, because it is not covered in the Bill.

The Chairperson (Mr Weir): OK, folks. Thank you.