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16. DISQUALIFICATION FROM WORKING WITH CHILDREN
The legislation and its effects
16.1 The Protection of Children (Scotland) Act 2003 ("the Act") provides for Scottish Ministers to keep a list of individuals whom they consider unsuitable to work with children - the Disqualified from Working with Children List ( DWCL). This list, which came into effect on 10 January 2005, aims to protect children (under the age of 18) from harm or the risk of harm by making it a criminal offence for anyone listed on the DWCL to apply for, offer to, accept or do any work in a child care position, whether paid or unpaid. It is also an offence for an employer to offer such work to, or to procure it from, an individual who is disqualified from working with children. Guidance on the operation of the Act was issued in December 2004, in March 2005 and again in January 2008.
16.2 When the information submitted with a referral indicates that an individual's inclusion in the DWCL may be appropriate, that person is provisionally listed. This allows the individual to continue working in a child care position while further consideration is given to the case. Where known, a current employer will be informed of the provisional listing. The final decision to list is made on the balance of probabilities where Scottish Ministers are satisfied that the referring organisation reasonably considered the individual to have harmed or put a child at risk of harm and that that individual is unsuitable to work with children. Harm of any kind is relevant, including psychological and emotional harm and neglect, as well as physical and sexual harm. All referrals are considered on their individual merits. In addition to the nature and extent of harm, factors such as a history of or patterns of harm, evidence of intent or a lack of intent, and inexperience or lack of training are relevant to the decision on whether to list an individual. Evidence from the child or children is considered, as is whether the referred individual poses a continuing risk to children.
The DWCL and the Glasgow City Council investigation
16.3 The introduction of the DWCL coincided with the emerging outcomes of the disciplinary proceedings following the Council's investigation. Thus, from January 2005 the Act conferred upon Glasgow City Council, and other employers in a similar position, a duty to refer to the DWCL any individual it believed had harmed a child, or put a child at risk of harm, and whom the Council had dismissed as a consequence of that belief, or would have dismissed had that individual not resigned, retired, been made redundant or otherwise left the Council's employment. In addition, the Council could, but was not obliged to, make a referral where the harm or risk of harm occurred and disciplinary action took place prior to the Act coming into force.
Referrals
16.4 Between mid-2005 and mid-2007, records provided by the Council indicate that it referred 30 ex-Kerelaw employees to the DWCL, some of them more than once. By the end of 2008 decisions had been made to list 9 of those individuals and to not list 15. The remaining 6 individuals remain provisionally listed pending the outcome of appeals to the Employment Appeals Tribunal and/or receipt of further information from the Council.
16.5 The Council considered whether a further 6 ex-Kerelaw employees should be referred to the DWCL, but concluded that they did not meet the criteria for referral. Instead, those 6 individuals were only referred to the SSSC, along with 27 of the 30 ex-Kerelaw employees referred to the DWCL. The remaining 3 who had been referred to the DWCL were teachers, 2 of whom were also referred to the GTCS, while the third was already known to the GTCS in this context.
16.6 Concern was expressed to the Inquiry that the first some individuals they knew about a referral was when they received a letter from DWCL officials notifying them that they had been referred. DWCL officials told us that they see it as a key function of their role to contact individuals once they are provisionally listed and to seek their comments on information gathered during the DWCL process, as well as to keep individuals informed of progress. Many of the ex-Kerelaw staff we spoke to were shocked that Glasgow City Council did not always let individuals know they had been referred to the DWCL or why. DWCL officials told us they had been surprised by this lack of contact too, although they acknowledged that it can be hard for an employer to trace an ex-employee.
Timescales
16.7 The time taken between the referral by Glasgow City Council and the DWCL listing decision has varied greatly between individuals. Critical factors in determining the timescales include the availability and quality of information and, crucially in terms of delay, the intervention of other processes such as criminal proceedings, disciplinary proceedings by the SSSC and the GTCS and Tribunals. The need to wait for decisions from the Crown Office and Procurator Fiscal Service on Kerelaw cases was cited as a reason for the delay in the DWCL officials gaining access to information held by Strathclyde Police.
16.8 In the interests of fairness to the individual and so that decisions are made on all relevant information, the DWCL will usually wait until legal proceedings are determined. However, in three Kerelaw cases, with the permission of the individuals concerned, the DWCL Determination Panel did reach a decision before the completion of other proceedings in order to expedite consideration of the cases.
16.9 In some cases, the decision not to list an individual was made quickly - from 3 weeks to a few months after the referral was made. For others, the decision not to list took much longer - for 2 individuals that decision took over 2_ years - a very long time for anyone to bear the uncertainty involved. Similarly, the first decision by the DWCL to list an ex-Kerelaw employee was made within 5 months of the referral while others have taken 1_ - 2 years. All of those who remain provisionally listed have been provisionally listed for at least 2_ years and of these 2 have been provisionally listed for over 3 years.
Handling the referrals
16.10 The coincidence of the launch of the DWCL and the Glasgow City Council's investigation had an early and significant impact, on both the DWCL team and the Council. Both were new to the process and DWCL officials could not have reasonably anticipated the volume or nature of referrals that ensued as a result of the Council's investigation. There was little time for either party to absorb the detail of the process or to build on their understanding of cases before having to deal with more. We were told this was the first time DWCL had received a large batch of referrals at once and the first time they had received cases where the organisation had not undertaken some form of investigation into the allegations. Nevertheless, the DWCL continued to deal with each case on its individual merits, seeking further information from the Council as necessary.
16.11 We were told that by this time Glasgow City Council had published its report of the investigation, including the assertion that "around 40" people at Kerelaw were involved in abuse. This created some media interest in listing that had to be managed. At this time it was also necessary for the Scottish Government to issue further guidance on provisional listing and individuals working with children while provisionally listed.
Gathering relevant information
16.12 Examination of Glasgow City Council's DWCL referral files and evidence provided by the DWCL team and the Council suggests that the latter struggled to compile a comprehensive case for many of its referrals. In some cases unsubstantiated and/or un-investigated allegations - some of them reported by third parties - were used as the basis for an initial referral. Usually at the request of the DWCL, although sometimes proactively, further relevant information was submitted over time. For some referrals, the follow-up information led DWCL officials to consider that the referrals were legislatively incompetent because the referral criteria had not been met and in one case, following an appeal against dismissal an individual had been reinstated. On one further occasion, the Council requested withdrawal of a referral because, on conclusion of their investigation, they decided there was no case to answer on the referred matter. This was a unique situation and was described as potentially very awkward for all concerned. While the DWCL continually pressed for information to meet tight deadlines and maintain momentum, the Council frequently requested more time to gather information, effectively prolonging the consideration process. It was noted too that the Council's Education Department was, and continues to be, slow off the mark in relation to the teachers referred to the DWCL.
16.13 It was a concern for DWCL officials that many of the Council referrals included very little information and lacked specific dates for when incidents were alleged to have taken place. Also, in some cases the interdependencies between incidents and the referred individuals were unclear. Given that a referred individual would be entitled to comment on the allegations, he or she would in turn expect to be given specific information on which to comment. This led to a sometimes drawn out exchange of correspondence seeking and providing further information and inevitably to delays in the decision making process. This difficulty was discussed between the DWCL and the Council, which expressed concern that disclosure of third-party information to an individual who had been referred to the DWCL - for example the source of evidence against the person concerned - created risks to the safety of children and staff in a small community such as Stevenston. The end result of the discussions was a compromise relying on redacted information.
The competence of referrals
16.14 It is clear that there was also a significant gap in the Council's understanding of the requirements for a legally competent referral. The DWCL has no investigatory powers and, where an individual was referred to the DWCL after leaving the Council's employment voluntarily, the Council had to be willing to state that it would have dismissed or would have considered dismissing the individual had he or she remained in its employment. This is a requirement of the 2003 Act. In a number of cases the Council was unwilling to commit to that statement. In explanation we were told by the Council that, "precious as it might seem," if an employee has not been investigated, the employer cannot say whether or not it would have dismissed that person. Furthermore, we were told by the Council that it could not investigate allegations against a former employee retrospectively.
16.15 This created something of an impasse in relation to the referral of ex-employees that was raised with the Inquiry by the DWCL officials and the Council. Our consideration of the referral files suggests that this was a factor - although it was not necessarily the deciding factor - in at least 8 decisions by DWCL officials not to provisionally list individuals who had been referred by the Council.
The listing decision
16.16 While the legislation is clear that the final decision to list or to not list is for Scottish Ministers, a number of interviewees from the DWCL case team and Glasgow City Council made it clear to us that there was a belief in the Council that the role of the DWCL was simply to endorse the position taken by the former in making a referral: that is, that a referral would automatically result in listing on the DWCL. This may have stemmed from the direct causal relationship drawn by some in the Council between the culture of abuse at Kerelaw and the culpability of specific members of staff - even where there was a lack of hard evidence for that causal link. As a consequence, there was some debate and disgruntlement as to why DWCL officials should need more information on an individual who had been referred when, so far as the Council was concerned, that individual should be listed.
The Protection of Vulnerable Groups (Scotland) Act 2007
16.17 The picture in relation to the DWCL is far from static and significant developments are under way. The 2003 Act will be repealed in due course by the Protection of Vulnerable Groups (Scotland) Act 2007 ("the 2007 Act"). This will in effect extend the protection of children afforded by the 2003 Act to vulnerable adults and combine listing procedures with vetting and disclosure arrangements, which are currently contained in the Police Act 1997.
16.18 Section 9 of the 2007 Act will make it an offence to fail to refer an individual within 3 months of the duty to refer arising. This will be helpful in the context of tightening the timescale for the referral process, but creates the possibility that the number of rushed and possibly incomplete referrals may increase under pressure. However, the DWCL team did not feel this was a significant issue, noting that by and large the quality of current referrals is good and that the 2007 Act will only require organisations to provide the information that they hold.
16.19 There is specific provision under the 2007 Act for Ministers to require police information to enable or assist them to decide whether to list an individual. There is also provision for Ministers to require public bodies etc to provide information. This should mean better access to information than is currently the case under DWCL.
16.20 Individuals who are under consideration for listing under the Protection of Vulnerable Groups legislation - which has the same effect as provisional listing under the 2003 Act - will continue to be able to work with vulnerable groups pending the listing decision. The Scottish Government was aware of the situation in England and Wales, where those on the provisional list are prevented from working with vulnerable groups, but Scotland has not gone down that route. That decision would appear to be vindicated by a recent House of Lords ruling that the approach in England and Wales is in contravention of the European Convention on Human Rights ( ECHR).
16.21 We were told also that the Protection of Vulnerable Groups arrangements will incorporate continuous vetting of individuals so that where new conviction information or police intelligence or other vetting information arises that is relevant to working with children and/or vulnerable adults, a decision may be taken to place the individual under formal consideration for listing. This will be much better than the existing system, where a disclosure can be out of date on the day after it is issued.
Conclusion
16.22 The referral of ex-Kerelaw staff by Glasgow City Council to the DWCL raised a number of concerns. As the DWCL has no investigatory powers and must rely on information provided by others, the quality of that information is crucial. Not all information provided by the Council was adequate. Moreover, without confirmation that ex-employees who left voluntarily would have been dismissed, or been considered for dismissal, the DWCL would have had to consider the case as legislatively incompetent. Also, some individuals have remained provisionally listed on the DWCL for up to 3 years without a decision. While there are reasons for this, it is in the Inquiry's view an unsatisfactory state of affairs. Although there are apparently not many individuals provisionally listed who continue to work with children, the possibility that someone who is provisionally listed and who may go on to be listed can continue to work with children for a protracted period after referral prolongs the risks in relation to child protection. We therefore welcome the improvements in the protection of children that will derive from the new Protection of Vulnerable Groups legislation.
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