38. Another central aspect of keeping children safe is the use of safer recruitment procedures for those who come into contact with children, whether through paid or voluntary work. This should involve application processes which focus on safeguarding, interviews that probe an applicant’s values, attitudes and approaches to safeguarding, as well as rigorous examination of references and employment history, together with criminal record checks.[1]
39. Throughout its investigations, the Inquiry encountered examples of poor recruitment practice, including failures to obtain the appropriate record checks, in schools, local authorities and religious organisations.[2] At times, people classed as volunteers were allowed open access to children without any vetting, as a result of which children were exposed to unnecessary risk.[3]
40. In February 2022, the Home Office announced that it had commissioned an independent review of the disclosure and barring regime to provide assurance on its effectiveness, to identify key issues of concern about the current regime, and to assess and advise on risks and opportunities. The review, which is expected to include recommendations for improvement, is due to be completed by summer 2022.[4] While this review may lead to significant and wide-ranging changes to the existing regime of disclosure and barring, the Inquiry has identified important deficiencies relating to the current system.
41. The Disclosure and Barring Service (DBS) enables organisations in the public, private and voluntary sectors to make safer employment decisions by identifying candidates who may be unsuitable for certain work, especially that which involves children or vulnerable adults. It does so by:
42. When engaging a person to work with children, the institution or setting is responsible for complying with safer recruitment measures.
43. Some settings may be required by specific statutory guidance to obtain DBS checks. For example, Keeping Children Safe in Education 2021 places an obligation on schools to obtain the appropriate level of DBS check before making an offer of employment for any role.[5] There is, however, no legal obligation to do so for many employers.
44. Applying for the appropriate level of DBS check – a disclosure certificate – is an essential part of safer recruitment because it contains details of an individual’s criminal record. It will include convictions and cautions which may be spent or unspent under the Rehabilitation of Offenders Act 1974 and subject to the DBS filtering rules which remove certain older convictions and cautions, albeit not those concerning specified offences (which include violent and sexual offences, and offences against children).[6] It can therefore provide an employer with important information about an individual’s criminal background and their suitability to work with children.
45. The disclosure regime is framed in terms of eligibility for a particular level of check. It is not generally compulsory for employers to obtain a DBS check on a prospective employee. The DBS issues four types of certificate, the extent of the check for each depending upon the role to be undertaken.[7]
| Type of check | Certificate contains | Roles eligible | Who can obtain a certificate | Number issued in 2020/21 |
|---|---|---|---|---|
| Basic certificate | Details of convictions and cautions that are unspent under the Rehabilitation of Offenders Act 1974 | Any role (basic checks can be obtained at any time, not only for a job application) | The individual named on the certificate | 2.2 million |
| Standard certificate | Details of unspent and spent convictions, cautions, formal police reprimands and warnings | Certain roles specified in legislation (such as solicitors, barristers, accountants and actuaries) which involve a degree of public trust | Employer (including agencies) registered with the DBS, with the individual’s consent | 343,000 |
| Enhanced certificate | The same information as standard certificates but also information that the senior officer of the local police force reasonably believes is relevant and ought to be disclosed | Roles working with children and vulnerable adults, and other positions involving a high degree of trust | Employer (including agencies) registered with the DBS, with the individual’s consent | 168,000 |
| Enhanced certificate with barred list check | Barred list checks are only available with an enhanced certificate, and are not available as a standalone check | Regulated activity only | Regulated activity provider (employer, including agencies), registered with the DBS, with the individual’s consent | 3 million |
Source: DBS000024_006
46. The DBS also offers an update service to enable employers to check for any changes to an individual’s DBS certificate as frequently as they wish, but many employers do not avail themselves of this opportunity.[8] If this service were widely advertised to employers, it might improve uptake.
47. The DBS has the power to bar any person it considers to pose a risk of harm to children from undertaking ‘regulated activity’ with children in England, Wales and Northern Ireland. This is the term used by the DBS to describe work which a barred person is prohibited from undertaking. In 2020/21, 73,675 individuals were on the children’s barred list.[9]
48. It is an offence for a barred person to seek work in regulated activity, or for an employer to knowingly employ a barred person in regulated activity.[10] Regulated activity does not mean, however, that the activity itself is regulated by any supervisory body, or that the worker engaged in such activity is regulated by a professional regulatory body. Many of those engaged in regulated activity with children are working in occupations that are not subject to workforce regulation, and in settings that are not regulated by any statutory regulatory authority.
49. Regulated activity has a complex definition, set out in the Safeguarding Vulnerable Groups Act 2006.[11] It includes the following activities, provided they are done frequently or for more than three days in a 30-day period or between 2:00am and 6:00am:
It also encompasses those who work (other than under a contract for temporary or occasional work) for the same specific frequency in roles where they have the opportunity to come into contact with children in specified establishments, such as educational establishments (including nurseries), detention facilities for children and secure accommodation, children’s homes, children’s centres, and childcare premises.
50. Some activities (such as the provision of personal care or healthcare, and registering to be a foster carer or childcare provider) are also deemed to be regulated activity, regardless of where they take place or how frequently they are performed. For example, certain statutory functions such as the inspection of childminding provision, schools, education and training, religious education and the review of local authority children’s services are also regulated activities where they give the person the opportunity to have contact with children.
51. There are three ways in which an individual may come to be barred by the DBS from engaging in regulated activity with children or vulnerable adults:
52. Irrespective of the way in which an individual comes to its attention, the DBS must determine whether to bar the person from engaging in regulated activity with children. The person is either barred or not – there are no grades or levels of barring. There is also no interim barring order while the decision-making process is taking place. When the DBS includes an individual on the barred list, it will notify the individual of its decision.[14]
53. Roles which are within the statutory definition of regulated activity with children are eligible for an enhanced certificate with a barred list check. A barred list check can only be obtained by an employer in conjunction with an enhanced certificate – it is not available as a standalone check. If an individual applies for a role working with children which does not fall within the definition of regulated activity, only an enhanced certificate (without a barred list check) is available.
54. The Inquiry heard that, increasingly, very little police intelligence is included on enhanced certificates.[15] As it is the addition of this information which distinguishes the enhanced from a standard certificate, this diminishes considerably the value of enhanced certificates.
55. There are circumstances in which a barred list check would clearly be desirable in order to protect children but such a check is not undertaken.
55.1. It is the responsibility of the employer to determine whether a role falls within the definition of regulated activity and to apply for the appropriate level of check.[16] The statutory definition of regulated activity is complex and often difficult for employers to understand.[17] The Inquiry understands that the majority of queries received by the DBS from employers concern uncertainty about whether a role amounts to regulated activity.[18] Although there is guidance around the definition of regulated activity, many of the examples draw on schools and other statutory settings with a full-time working environment, making it difficult to apply to other organisations (such as religious settings and charities) where there is a greater dependence on part-time and volunteer workers as well as different roles than are envisaged in the guidelines.[19]
55.2. In 2012, the definition of regulated activity was narrowed to exclude roles which are subject to “day to day supervision” by another person who is engaging in regulated activity.[20] As a result, a role may involve a degree of close contact with children but may not fall within the statutory definition of regulated activity (such as volunteers supervised to a greater or lesser degree by a member of staff). The legislation states that a person does not engage in regulated activity if they are subject to “such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned”.[21] Guidance states that the appropriate level of supervision is a matter for the employing organisation to decide.[22] This compounds the difficulty organisations face when trying to understand which roles are regulated activity.[23]
55.3. There is also a limitation on who has access to the children’s barred list. Enhanced certificates together with barred list checks can only be requested by an organisation which is registered by the DBS as a regulated activity provider.[24] Self-employed people – such as a private tutor providing academic or music tuition – can only obtain a basic certificate for themselves and cannot obtain a barred list check, regardless of the work they undertake. Neither can the individual engaging the services of the self-employed person obtain an enhanced certificate with a barred list check. As a result, those who engage self-employed people to work with children are denied access to important information regarding an individual’s risk of harm to children. In its 2021 Tackling Child Sexual Abuse Strategy, the UK government noted the need for:
“a cross-Government feasibility study looking at ways to create eligibility for criminal record checks for those who are self-employed, so that all those working with children and vulnerable people are subject to the same standard of Disclosure and Barring Service checks”.[25]
56. Where the DBS has determined that an individual poses a risk of harm to children such that they should be barred from regulated activity, this information ought to be available to any organisation or individual considering whether to engage the person in any paid or unpaid role working with children, whether supervised or not. The current disclosure regime permits those who have been assessed as so dangerous that they have been barred from regulated activity to nevertheless come into contact with children in roles that do not meet the definition of regulated activity. This places children at risk.
57. The Inquiry considers that all employers of adults who work with children (whether paid or voluntary) should be able to check whether applicants have been included on the children’s barred list, in order to ensure that children are kept safe from those who pose a risk of harm.
The Inquiry recommends that the UK government enables any person engaging an individual to work or volunteer with children on a frequent basis to check whether or not they have been barred by the Disclosure and Barring Service from working with children. These arrangements should also apply where the role is undertaken on a supervised basis.
58. There is a legal duty on employers to notify the DBS (known as making a referral) when they have dismissed or removed an individual from undertaking regulated activity or when an individual has resigned from such a role, where there is concern that the individual may pose a risk of harm to children.[26]
59. The DBS indicated to the Inquiry in October 2019 that it did not receive the number of referrals it would expect from employers, but it has no means to discover when an institution fails to make a referral in circumstances where notification is legally required.[27] Some inspectorates require organisations to demonstrate they comply with their statutory duties of making DBS referrals as part of their inspection framework. For example, Ofsted includes this in the inspection framework for schools and for early years settings, but not in the inspection framework for children’s homes.[28] The Care Inspectorate Wales, which inspects regulated non-school settings for children up to the age of 12 in Wales, does not mention DBS referrals in its inspection framework.[29]
60. While supervisory authorities (workforce and workplace regulators and inspectorates) have the power to refer individuals to the DBS to consider for inclusion on the barred list, they do not have a legal duty to refer or to share information with the DBS unless in response to a specific request.[30] The DBS has developed information-sharing protocols with some workforce regulators such as the TRA and the General Medical Council, which means that these bodies cross-refer any cases with a safeguarding element. However, the DBS told the Inquiry that not all inspectorates or regulators routinely share information with the DBS about resignations and dismissals in circumstances where child protection or safeguarding concerns have been raised.[31]
61. In its Interim Report, the Inquiry recommended that the Safeguarding Vulnerable Groups Act 2006 be amended to place keepers of relevant registers under a duty to refer information about practitioners who had been removed from the register to the DBS. It also recommended that upon receiving the referral, the DBS should be under a duty to automatically bar the practitioner from working with children (subject to the opportunity to make representations).[32] In July 2019, the UK government responded that the Home Office had asked the DBS to continue its “close engagement” with professional bodies and regulators to ensure effective information-sharing takes place. It also stated that the DBS had not identified any emerging issues, despite the evidence received by the Inquiry in October 2019.
62. The Inquiry remains concerned that individuals who have ceased working in a setting with children and who have acted in a manner which indicates they may pose a risk of harm to children are not always referred to the DBS. This could permit such individuals to move on to a different setting where they continue to work with children, without the DBS considering the potential risk of harm which they pose. As there have been no prosecutions to date for failures to refer, lax employers have little incentive to comply with their legal duties.[33]
63. Action is needed to improve regulated activity providers’ compliance with their statutory duty to refer concerns about the suitability of individuals to work with children to the DBS. Regulators and inspectorates with responsibility for children’s settings should share information with the DBS to ensure that the DBS is suitably informed regarding adults who may pose a risk of harm to children.
64. The Inquiry therefore recommends a number of steps to increase compliance with the statutory duty to refer concerns to the DBS.
The Inquiry recommends that the UK government takes steps to improve compliance by regulated activity providers with their statutory duty to refer concerns about the suitability of individuals to work with children to the Disclosure and Barring Service, including:
65. A DBS check may not provide a complete picture of an individual’s criminal record if the individual has a criminal record outside the UK.[34] DBS checks on citizens or residents of England and Wales also cannot be accessed by employers based overseas, such as British International Schools, unless the employment decision is being taken in England or Wales.[35] The non-statutory International Child Protection Certificate (ICPC), introduced by the National Crime Agency which some overseas organisations choose to utilise, does not include access to the DBS children’s barred list.[36]
66. These territorial limitations on the DBS disclosure regime facilitate predatory offenders from England and Wales to exploit the system by obtaining employment working with children overseas.[37]
67. In its Children Outside the United Kingdom Investigation Report, the Inquiry recommended that the geographical reach of the DBS be extended to enable overseas employers to obtain DBS checks on UK nationals and residents of England and Wales whose role would be within the definition of regulated activity.[38] In response, the Home Office stated that the information provided on an ICPC was broadly similar to that on an enhanced certificate and that the ICPC was simpler and easier for foreign employers to obtain.[39]
68. The absence of barred list information on the ICPC creates a significant risk to the safety of children in the UK and abroad. The Inquiry therefore reiterates its recommendation that the disclosure and barring regime should be extended to those working with children overseas.
The Inquiry recommends (as originally stated in its Children Outside the United Kingdom Phase 2 Investigation Report, dated January 2020) that the UK government introduces legislation permitting the Disclosure and Barring Service to provide enhanced certificates with barred list checks to citizens and residents of England and Wales applying for: