Not child’s play

Arts organisations are under increasing scrutiny and regulation when working with children. The licensing and chaperone arrangements for performances are well established. The spotlight currently is on the new requirements on individuals and organisations under the Vetting and Barring Scheme which was established by the Safeguarding Vulnerable Groups Act 2006 and launched in part on October 2009. Under the scheme, broadly, individuals who wish to work with children or vulnerable adults frequently or intensively (referred to as ‘Regulated Activity’) will be vetted and required to register with the Independent Safeguarding Authority (ISA). Those that are deemed unsuitable to work with these vulnerable groups will be placed on the Children’s Barred List and/or Adults’ Barred List. Examples of regulated activity relating to children include teaching, training, instruction, supervision, advice and guidance. It can include other child-orientated activities such as moderating a children’s chat forum. Supervision or management of an individual carrying out a regulated activity will also be a regulated activity, and trustees of children’s charities will also be engaging in regulated activity even if they have no contact with children.
 

UNDERSTANDING THE LAW
The Scheme applies to both paid and voluntary activities, but does not apply to activities within the family or to unpaid activities in the course of a personal relationship. The Act’s focus is on a number of new duties and criminal offences on individuals and those who engage them. Of these the following came into force in October 2009:
• Employers must refer cases to ISA where they have dismissed or ceased to engage an individual because they think the individual has harmed or poses a risk of harm to children or vulnerable adults.
• It is an offence for an individual on one of the Barred Lists to engage in a Regulated Activity (or attempt to) with children or vulnerable adults.
• It is an offence for a person to allow an individual to engage in a Regulated Activity if he/she knows or has reason to believe that the individual is barred.
The requirement to register comes in from 1 November 2010 and will be phased in over a five year period. The first phase, namely new entrants to the workforce, can apply for registration after July 2010. Clearly, the scheme will have an effect on organisations working with children, particularly in schools, but also across a whole range of activities. Those organisations should consider as standard checking the Barred Lists when engaging workers who work with children or vulnerable adults.
When the Scheme was announced there was an outcry that it went too far and the Government agreed to review it. Sir Roger Singleton issued his report ‘Drawing the Line’ in December 2009. His recommendations were accepted by the Government. The recommendations included: The definitions of “frequently” and “intensively” should be amended, and individuals who go into different schools or similar settings to work with different groups of children will not be required to register unless they visit the same school frequently or intensively. This is of particular significance to educational arts organisations. There remain a number of unanswered questions about the Scheme, and further guidance is expected in March.

CRB CHECKS
The new scheme does not replace the existing CRB scheme; it may still be good practice to carry out CRB checks on eligible workers and/or trustees. ISA registration does not mean the individual has no criminal record. Carrying out a CRB check will tell you about that individual’s criminal history and therefore allow you to judge their suitability for the role in question. Other risk assessments and safeguards (such as checking references and ID) should be in place – being on the ISA register may not be enough of a safeguard on its own.
Since October 2009, all regulated activities are eligible for an Enhanced CRB check. Trustees of children’s charities will be engaging in a regulated activity. Broadly, a charity is a ‘children’s charity’ if the normal workforce includes individuals engaging in regulated activity. Arts charities need to identify whether any of their workers fall within this definition not only to determine whether those individuals need to be CRB checked and ISA-registered but also to determine whether the trustees should be checked. Some trustees find being asked to undergo a CRB check alarmingly invasive. It is also worth noting that the Charity Commission form for applying for registration as a charity requires a declaration by the trustees as to whether the organisation is “required” or “entitled to” obtain CRB checks for trustees (and if so whether yet obtained). Most arts charities working with children are unlikely to be legally required to obtain CRB checks for trustees, but they are likely to be entitled to obtain such checks. The Charity Commission requires charities seeking registration to explain why they have not carried out CRB checks on trustees if they are entitled to obtain them, and what safeguards for children they have in place. In practice, therefore, charities need to have a good reason for not carrying out CRB checks if they are entitled to do so.