The advice is non-statutory at this stage, but the DfE is currently consulting on whether it should be incorporated into the updated version of Keeping Children Safe in Education (KCSIE) 2018, which would give it the force of statutory guidance.
The advice covers child on child 'sexual violence' and 'sexual harassment' within schools and colleges. For the purposes of the advice, a child is defined by anyone under the age of 18. This can occur between two or more children of any sex.
Sexual violence refers to the criminal offences of rape, assault by penetration and sexual assault, as defined by the Sexual Offences Act 2003.
Sexual harassment is defined as 'unwanted conduct of a sexual nature' that can occur on or offline. This is likely to violate a child's dignity, and/or make them feel intimidated, degraded or humiliated and/or create a hostile, offensive or sexualised environment. The examples given in the guidance include sexual comments, jokes or taunting, physical behaviour and online sexual harassment.
The advice also uses the phrase 'harmful sexual behaviours' as an umbrella term for both sexual abuse and sexual harassment which schools should become familiar with. It is essential for schools to assess ages and stages of development of children exhibiting these behaviours, particularly where one child is much older. The advice also contains links to the NSPCC: Harmful sexual behaviour: signs-indicators-effects and Brook sexual behaviours' traffic light tool.
The guidance should be read in conjunction with the latest version of KCSIE (2018) which is out for consultation, that sets out that abuse is abuse and should never be tolerated as 'banter', 'just having a laugh' or 'a part of growing up'.
Schools should note that the guidance cross refers to KCSIE, Working Together, preventing and tackling bullying, behaviour and discipline in schools, cyberbullying, mental health and behaviour in schools, sex and relationship education and child sexual exploitation. It is therefore recommended that in addition to reviewing safeguarding policies and procedures to ensure that the guidance is reflected, behaviour, discipline and anti-bullying policies and risk assessment for pupil welfare procedures are updated.
The key concept introduced within the guidance relates to whether or not behaviour is wanted, although this is not determinative as to the need for investigation and possible action.
Schools should review their policies and ensure they include statements to this effect. They should have clear procedures to minimise peer on peer abuse (to include preventative education), details as to how allegations will be investigated and dealt with and how victims and others affected will be supported.
Although there is no mandatory procedure setting out how schools should undertake their own internal investigations of peer on peer allegations, the school's process should be fair and comply with the law and its own internal policies and procedures. Consideration should be given to ensuring that pupils are informed of the nature and status of the arrangements for internal investigation and the policy(ies) which apply and that they should be properly supported. Designated staff dealing with the matter should have the appropriate time and expertise and should be unconflicted. Demands and/or threats of behavioural sanctions for failure to co-operate should be considered carefully. Offers for pupils to be accompanied by an adult (whether a staff member or parent/guardian) should be considered where it is suspected that their actions relate to the possible commission of a serious offence or where they have been identified as vulnerable.
Process, evidence and findings of such investigations should be carefully documented and consideration given to who needs to know and what action should be taken as a consequence (if any).
Internal investigations can be complicated by external investigations by the police and/or local authority and the school should be careful to ensure that it does not prejudice those procedures, but takes appropriate steps to ensure that pending its own investigation those involved or affected are appropriately protected and supported.
Although this advice is limited to harmful sexual conduct and does not expressly extend to peer on peer bullying or harassment of a non-sexual nature, the principles we set out above represent best practice and should apply more widely. Similar approaches can also be applied when dealing with incidents involving pupils aged 18 and over, but schools should be aware that different considerations and referral routes apply to criminal acts of sexual violence.
We are seeing more parental complaints and claims relating to the alleged failure of schools to manage peer on peer misconduct effectively and the potential ramifications on wellbeing and parent/pupil relations as a consequence. In this context, it is ever more important that schools ensure that allegations of peer on peer abuse are recorded and investigated appropriately, that appropriate measures are put in place to manage them and that they are kept under review.