Vetting and barring

Back in 2006, legislation was passed to codify and amend child and vulnerable adult protection. The new rules were seen to be necessary following the Soham murders, to provide a more comprehensive, modern approach to protection. The barring rules came into effect, but despite at least one major review of the pending rules, Teresa May, the Home Secretary, announced another review of the proposed scheme, bringing the new scheme to an unscheduled halt. This means that some of the work to bring together the multiple lists of those who should not work with vulnerable people has been completed, but that the provisions requiring pre-registration have not been brought into force.

COMPLEX FRAMEWORK
Instead, practitioners will need to work for the foreseeable future within a complex framework of separate regulations, including the current Criminal Records Bureau (CRB) scheme, which have been criticised by commentators constantly over the past five years. This extended period of uncertainty seems hard to justify – if the regulatory framework is so bad, and the risks so great, how is it that it is taking so long to change them? Practitioners and organisations should prepare to take part in the next review to make sure their needs are reflected in any future regulation. In many ways, the scope of the framework, whether new or old, is a sideshow. If a practitioner does not take proper care, then he or she may still be faced with a claim under the well-established rules of negligence, which could lead to bankruptcy.
Nor should other legislation be ignored. The UK has well-developed criminal and civil sanctions including generic employment and health and safety legislation, and the specific regulations for child performers. Although the range and number of different rules provide a complicated framework, it is a system that is flexible and, on the whole, up to date. Those working with children will need to take this into consideration when preparing risk assessments.
CHECKS AND BALANCES
Some funders and the Charity Commissioners have also taken it upon themselves to check child protection policies in addition to the legislative framework. This allows the sector to self regulate to a high level, and those who do not fulfil the funding terms or charity requirements can find themselves in breach of contract or breach of trust. It would seem that the best practice within the industry has been, on the whole, well disseminated, and many organisations have well-developed practices to provide the required framework to care for the young performers in their care. They, like other practitioners in the field, need to take steps to ensure that those who wish harm to the participants do not have that opportunity.
Until the new vetting rules are implemented, however, the CRB will continue to provide checks of its databases of past conduct of applicants. Those databases will never be comprehensive (those people that have caused harm but have not been caught, by definition, will not be included in the database). The CRB check is also only a snapshot, and an organisation will not be informed if an individual’s details are added to the database after a check has been performed. Since some of the new regulations are now in force, the amount of detail available to those wishing to access the databases in this field has increased to the ‘enhanced level’, but a CRB check, on its own, should not be seen as the one and only step that an organisation should take to protect its participants.
Practitioners will continue to have the difficulty that the CRB check is not portable. This means that if a practitioner works with ten different organisations in the sector, each organisation makes its own CRB disclosure request, causing unnecessary duplication and administration. It is already an offence for a barred person to engage in a regulated activity (and for an organisation to knowingly allow a barred person to engage in those activities). What may not be clear is the extended definition of “regulated activities” that is now in force. The original scope of these activities has been changed following recommendations made in the Singleton Review. The definitions are complex, and do not even all appear in the same legislation. In essence, anyone in contact with children or vulnerable adults in a position of trust on a frequent or intensive basis, will be subject to the rules. The definition of “frequent” now stands at once a week or more, and “intensive” means overnight (with face to face contact) or four or more days in a thirty-day period.
On a practical level, it may well become best practice to treat all contact with children and vulnerable as being (or potentially being) a regulated activity, and steps taken to identify and address risks for harm. A standard health and safety audit could be tailored to help document the process of risk assessment for these special groups, and project delivery can continue to be designed in ways that manage those identified risks.
Unfortunately, government ministers do not seem to have had the opportunity to take any action following Sarah Thane’s excellent preliminary review of Child Performance Licences. There is some anecdotal evidence to suggest that some local authorities are now looking to licence all under 18 year olds. This outmoded legislation could easily be included in the planned review of vetting and barring, in the hope that the sector could (at long last) have access to a comprehensive, consistent modern framework.