Rights and conditions
02 November 2016
Every Child Matters, supported by the Children Act 2004, establishes the principle that all children deserve an opportunity to achieve their full potential.

Five outcomes are identified as essential to children's and young persons' wellbeing:

  • stay safe
  • be healthy
  • enjoy and achieve
  • make a positive contribution
  • achieve economic wellbeing.

Specific duties are placed on local education authorities and governing bodies by Section 175 of the Education Act 2002, which states:

  1. A local education authority shall make arrangements for ensuring that the functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children.
  2. The governing body of a maintained school shall make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school.
  3. The governing body of an institution within the further education sector shall make arrangements for ensuring that their functions relating to the conduct of the institution are exercised with a view to safeguarding and promoting the welfare of children receiving education or training at the institution.
  4. An authority or body mentioned in any of subsections 1 to 3 shall, in considering what arrangements are required to be made by them under that subsection, have regard to any guidance given from time to time (in relation to England) by the Secretary of State or (in relation to Wales) by the National Assembly for Wales.

Independent schools, academies and free schools have the same responsibilities via statutory regulations.

The Department of Education has produced a range of statutory guidance dealing with various safeguarding issues. The main guidance is Working Together to Safeguard Children published in March 2013.

Legislation not only places obligations on society to safeguard children, it also makes certain actions criminal offences.

Child pornography

Under the Protection of Children Act 1978 (as amended by the Criminal Justice and Public Order act 1994 and the Sexual Offences Act 2003) there are a number of offences which are associated with child pornography including taking, distributing, publishing or possessing indecent images of children. There are also offences of causing or inciting child prostitution or pornography, controlling a child prostitute or a child involved in pornography and arranging or facilitating any such offences.

Given the wording of the legislation, strictly speaking, sexting will amount to a criminal offence if the photos are of a child under 18. As set out below it is unlikely that children, who send such texts, would be prosecuted for such offences but ATL believes that a good school policy should explain to children that they are breaking the law if they send and /or receive texts of this nature.

Female Genital Mutilation (FGM)

The Female Genital Mutilation Act 2003 makes it unlawful for any FGM procedure to be carried out on a woman or girl in the UK. It is also an offence under the Act for UK nationals or permanent UK residents to carry out FGM abroad, or to aid, abet, counsel or procure the carrying out of FGM abroad – even in countries where the practice is legal.

FGM (cutting) is usually practised in the country of origin of the child's family. Suspicions may arise in a number of ways that a child is being prepared for FGM to take place abroad. These include knowing that the family belongs to a community in which FGM is practised; preparing to take the child on holiday and the child may talk about a "special party" taking place or mention that they are going to be "made a woman".

Indicators that FGM may have already occurred include prolonged absence from school with a noticeable behaviour change on return e.g. frequent toilet trips or difficulty sitting down. If you are concerned that a child is at risk or is a victim of FGM you can call the NSPCC's free 24-hour FGM helpline on 0800 028 3550 or email fgmhelp@nspcc.org.uk.

Grooming

Under Section 15 of the Sexual Offences Act 2003 there is a specific criminal offence of meeting or travelling to meet a child following sexual grooming with the intention of committing a relevant sexual offence.

Forced marriage

The Forced Marriage (Civil Protection) Act 2007 allows the High Court or county courts to protect a person who has been forced into marriage by making a forced marriage protection order. Orders are usually applied for by local authorities. The Anti-Social Behaviour, Crime & Policing Act 2014 creates a criminal offence relating to causing a forced marriage to take place. This came into force on 16 June 2014.

Sexual activity

It is, of course, a criminal offence for an over 18 to engage in sexual activity with someone who is under 16. However, even if both parties are under 16 neither can give consent and therefore an offence under the Sexual Offences Act 2003 is committed. Similarly, if one child is 16 or over but under 18 and the other is under 16 a criminal offence may still have been committed.

As with sexting it is not definite that a prosecution would take place. Understandably, the police can be reluctant to criminalise children in this way. However, ATL believes that consideration should be given by a school which is aware of, or has suspicions that, sexual activity between children is taking place to speak to the parents of the children involved in order to comply with the school's safeguarding duties.

If you are concerned that two under 18 students (at least one of whom is under 16) may be engaged in sexual activity you should report any concerns to your designated child protection officer.

Abuse of trust

It is an offence under the Sexual Offences Act (section 16) for a person over 18 years to have a sexual relationship with a child under 18 where that person is in a position of trust in respect of that child, even if the relationship could otherwise be consensual.

Need further advice?

Your first point of contact is your ATL/AMiE rep in your school or college. Your local ATL/AMiE branch is also available to help with queries, or you can contact AMiE's member advisors on tel: 0345 8118111 or email us. Please have your membership number to hand when telephoning and include it with any correspondence - this will help us to answer your query more quickly.