45. There is no single piece of legislation or guidance that deals with all aspects of child welfare and safeguarding in the UK, but there are many laws and regulations that relate to different bodies, which are frequently the subject of amendment and change. In this section we have set out a brief chronology and explanation of some of the key events that had, or should have had, a direct impact on the institutions and their responses to child sexual abuse. This is included to give context to our analysis of the events at Ampleforth and Downside. This summary is not intended to be comprehensive or exhaustive, nor is it a critique of the safeguarding procedures of the Catholic Church as a whole. It does however illustrate that from the mid-1990s a great deal was being done in policy and practice about child safeguarding.
46. The ‘Child Abuse – Working Together for the Protection of Children’ national guidance was issued in draft form by the Department of Health and Social Security in May 1986. However, it was not finalised until 1988. The Working Together national guidance was then issued to local authorities, health authorities, police forces and voluntary organisations. The guidance set out the agencies’ responsibilities as well as procedures for working together, monitoring and training review. Child sexual abuse was given some prominence and its own chapter in the guidance, which has frequently been updated to take account of more recent legislation on safeguarding children.[1] The current version – ‘Working Together to Safeguard Children’ – was published in March 2015[2] and was last updated on 4 July 2018.[3]
47. The Children Act 1989 (the Act) was passed in November 1989 and came into force in 1991. It gave every child the right to protection from abuse and established the key principles which now govern the way decisions concerning the welfare and safety of children are made, including the ‘Paramountcy Principle’. This sets out that when a court determines any question with respect to the upbringing of a child, or the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.[4]
48. The Act was designed to provide a framework for the safeguarding of children in England and Wales. It imposes a duty on local authorities[5] to safeguard and to promote the welfare of children in need, and to make enquiries where it is believed that a child is suffering or likely to suffer significant harm. The welfare of children accommodated in boarding schools and colleges was specifically addressed, and a duty placed upon schools to safeguard and promote the welfare of any child accommodated at the school: ‘the safeguarding duty’. Section 87(1) of the Act places a duty on the proprietor of an independent school, and in relation to any other school the governing body of the school, to safeguard and promote the welfare of any child accommodated at the school.[6]
49. When the Act came into force in 1991, the area local authority was under a duty ‘to take such steps as were reasonably practicable to enable them to determine whether the child’s welfare was adequately safeguarded and promoted whilst they were accommodated at an independent school’. This came to be known as ‘the welfare inspection duty’. Subsequent amendments[7] transferred the welfare inspection duty to the National Care Standards Commission (NCSC). (The NCSC was replaced by the Commission for Social Care Inspection (CSCI) by amendments made by the Health and Social Care (Community Standards and Health) Act 2003 (HSCA 2003).)[8]
50. Until that time there were no systematic, regular inspections of schools. The CSCI responsibility for the inspection of children’s services was later transferred to the Office for Standards in Education (Ofsted), established by the Education (Schools) Act 1992 as a non-ministerial government department with responsibility for inspecting a range of educational institutions, and their first inspections were in 1993. The intention was that Ofsted would ‘make a contribution, through these inspections, to raising standards and improving the quality of educational experience and provision’.[9] Since that time it has been given a number of additional responsibilities, and the Education and Inspection Act 2006 merged a number of other bodies with Ofsted, which from 1 April 2007 became the Office for Standards in Education, Children’s Services and Skills. The Head of Ofsted is Her Majesty’s Chief Inspector (HMCI), who reports to the Secretary of State for Education and is formally accountable to Parliament.[10]
51. In 1993, the Home Office published ‘Safe from Harm’, a code of practice for safeguarding the welfare of children in voluntary organisations in England and Wales. This contained extensive guidance on how to protect children in the context of managing an organisation, paid staff and volunteers, selection and training of staff and volunteers and dealing with abuse which has been disclosed or discovered. It set out 13 core principles that voluntary organisations should consider in the context of their structures and the nature of their activities. In 2001, the Nolan Report recommended that the Church should adopt these 13 principles as the guiding principles to create a safe environment for children.[11]
52. In 1994, the Budd Report ‘Child abuse: pastoral and procedural guidelines: a report from a working party to the Catholic Bishops’ Conference of England and Wales on cases of sexual abuse of children involving priests, religious and other church workers’ was published. It was produced by a working party chaired by Christopher Budd, Bishop of Plymouth. It is important as it ‘was effectively the first time that the Catholic Church in England and Wales had prepared a codified and unified set of guidelines to be adhered to in responding to allegations of child sex abuse’.[12]
53. The document was split into two principal parts. First, ‘Definitions and Principles’ posed the questions ‘What is Child Abuse?’ and ‘Why Speak Out?’ These considered the issues of neglect, physical injury, sexual abuse and emotional abuse, and gave guidance on the responsibility of the Church and the Paramountcy Principle. Secondly, ‘Structures and Procedures’ set out guidance on the diocesan structures, the role of the diocesan representative and communications officer and provided information on the investigation of allegations, including the responsibility of the Church to victims and survivors.[13]
54. In 1996, ‘Healing the Wound of Child Sexual Abuse’ was published. This was produced by a working party, chaired by the Rt Rev Terence Brain, Auxiliary Bishop of Birmingham. This followed a request for advice from the Catholic Bishops’ Conference (CBC) as to how the Church could best offer care and support to victims and survivors of abuse, families and other groups and individuals affected by abuse.[14] The introduction stated the importance for everyone in the Church to ‘appreciate the depth of pain in the lives of those who suffer; listen carefully to those who are victims and survivors, and acknowledge their prophetic voice in the Church; promote open dialogue about child sexual abuse in the Church; activate pastoral resources’. Among other things the report dealt with issues relating to victims and survivors of abuse and their families, and gave guidance on traumatic sexualisation, powerlessness and betrayal, as well as advice to colleagues of abusers. It also covered issues such as celibacy, confidentiality, the role of the priest and the ‘culture of disbelief’, the Church’s response and the ‘special contribution of the Church to healing’.
55. The Protection of Children Act 1999 (PoCA) came into force in October 2000. This introduced the PoCA List, in which the Secretary of State has a duty to record the names of individuals who are considered unsuitable to work with children. It also requires organisations that work with children both to check the register before employing individuals, and to add to the list anyone who fulfils certain criteria making them unsuitable to work with children.
56. The Independent Schools Inspectorate (ISI) was established in 1999[15] and is an independent Government-approved body. Its purpose is to provide objective inspections to safeguard the quality and effectiveness of education, care and welfare of children in independent schools in England which are members of the seven associations of the Independent Schools Council (ISC). Members of the associations comprise head teachers, bursars and governors of the relevant schools.
57. The ISI is one of two independent schools inspectorates currently empowered to carry out inspections through an agreement with the Department for Education (DfE). Those schools in the independent sector in England which are not a member of the associations will be inspected either by Ofsted or another independent inspectorate. A proportion of the work of the ISI is monitored and reviewed by Ofsted on behalf of the DfE and a public report is published annually to the Secretary of State.[16]
58. The ISI reports to the DfE on the extent to which independent schools meet their statutory requirements. Previously the ISI inspections focused on the quality and effectiveness of the education provision offered at independent schools, while Ofsted undertook a separate inspection focusing on the standards for boarding welfare. To avoid duplication the ISI sought an extension of its responsibilities and so, since January 2012, it undertakes the welfare inspections.
59. Independent schools must also meet the statutory requirements contained in the Education (Independent School Standards) Regulations 2014 (the Regulations).[17] These have developed over time and there are now over 400 different regulations or requirements. Part three of the Regulations concerns the welfare, health and safety of pupils including regulation eight:
Where section 87(1) of the 1989 Act applies in relation to a school the standard in this paragraph is met if the proprietor ensures that—
(a) arrangements are made to safeguard and promote the welfare of boarders while they are accommodated at the school; and
(b) such arrangements have regard to the National Minimum Standards for Boarding Schools or, where applicable, the National Minimum Standards for Residential Special Schools or the National Minimum Standards for Accommodation of Students under Eighteen by Further Education Colleges.[18]
60. The DfE requires that the responsible inspectorate reports on a school’s compliance with each regulation.
61. The Nolan Report was commissioned in summer 2000 by Cardinal Cormac Murphy-O’Connor, then Archbishop of Westminster, ‘to examine and review arrangements made for child protection and the prevention of abuse within the Catholic Church in England and Wales, and to make recommendations’. The Nolan Committee, chaired by the Rt Hon the Lord Nolan, was made up of individuals from a variety of backgrounds and experiences, four of whom were Catholics, six of whom were not. They met for first time on 25 September 2000. Their first report was presented in April 2001 and made 50 recommendations about the structures and actions the Church should put in place ‘to enable it to be an example of best practice in the prevention of child abuse, in responding to it, and to rebuild confidence’.[19] The final report ‘A Programme for Action – Final Report of the Independent Review on Child Protection in the Catholic Church in England and Wales’ was published on 17 September 2001. This made no significant changes to the proposals outlined in the earlier version but refined and developed their conclusions, adding a further 33 recommendations.
62. The Nolan Report recommended that there should be a unified approach across the Roman Catholic Church in England and Wales, including the religious orders, to be adopted both by bishops and their dioceses and by the religious superiors, who should work together to develop and implement a single set of arrangements nationally.[20] The position of the religious orders was specifically considered in the final report, with Lord Nolan commenting that ‘the written and oral responses from the religious communities have confirmed their desire to play the fullest possible part in implementing our recommendations to secure the protection of children and to respond to abuse’.[21] The Conference of Religious (COR) were also represented on the Catholic Bishops’ Conference team set up to implement the recommendations of the report.
63. The report was clear that what was required, throughout the dioceses and religious orders in England and Wales, were arrangements that were thorough, integrated and as far as possible the same. It noted that the many religious orders were formally independent of the bishops but emphasised that it was essential that those religious orders which have contact with children should appoint ‘Child Protection Co-ordinators’ (CPCs). The report also made it clear that all religious orders, whether or not their work normally brings them directly into contact with children, should have child protection arrangements, including CPCs. This is because any member of any religious order might have contact with children, and their particular status will make that a privileged relationship. It also recommended that it would be appropriate for the religious orders to join with each other, or with a chosen diocese, to appoint a CPC jointly or a diocesan CPC to act for them.[22]
64. It also recognised that commitment to a single set of policies and practices was ‘not as straightforward as it may sound’ because of the complicated structure of the Church, the dioceses and the various religious orders. Religious orders are governed by their own law and constitutions, and in general the diocesan bishops have no capacity to intervene in their internal affairs. Nonetheless, based on indications given during the review process, Nolan expressed confidence that by acting together in the best interests of the Church, bishops and religious superiors could and would put in place arrangements which were effective and would restore confidence in the approach of the Church.[23]
65. The Nolan Committee was clear:
The structure of the Church means that formal responsibility for action lies primarily with individual bishops and superiors of religious orders. We are confident that this need create no difficulty provided that the whole Church in England and Wales and the individual bishops and superiors commit themselves wholeheartedly to the programme we have set out … [d]iversity of policy and practice, insufficiency of resources and a lack of national support and coordination will, in our view, lead to a weakened, inconsistent and inadequate response … . The fact is that should every parish throughout England and Wales follow our recommendations the problem of child abuse would not thereby be eradicated. But our hope is that this report will help to bring about a culture of vigilance where every single adult member of the Church consciously and actively takes responsibility for creating a safe environment for children. Our recommendations are not a substitute for this but we hope they will be an impetus towards such an achievement.
66. We set out the Nolan recommendations in full in Annex 4 to this report. In summary, amongst the recommendations of particular relevance for this report and the evidence that we heard, were the following:
67. The Nolan Report led to the establishment of the Catholic Office for the Protection of Children and Vulnerable Adults (COPCA), as an independent body reporting to and funded partly by the Catholic Bishops’ Conference and partly by the Conference of Religious. Eileen Shearer was appointed as director, and Adrian Child later became acting director. The independent management board was chaired by Vincent Nichols, Archbishop of Birmingham. In October 2003, Archbishop Nichols wrote that Lord Nolan’s recommendations were:
accepted and the work of implementation began immediately. That work represents a sea-change in many of the habits and procedures that underlie the life of the Church in every parish, youth group, voluntary association and care institution. The scope of the change, then, is very widespread indeed.
68. A working group was set up by Richard Yeo, then the abbot president of the EBC, to consider the implementation of the Nolan Report and to provide guidance to, EBC monasteries. A guidance document was published in January 2002. Among other things, it recommended that each EBC monastery should:
69. A ‘Draft Emergency Plan of Action for Responding to Allegations of Sexual Abuse’ was included in the EBC Guidance. It contained the following recommendations:
(i) If a disclosure [is] made whether allegation or suspicion [is] aired, this to be communicated immediately to monastic CPR. He/she informs the abbot, although CPR is responsible for handling the disclosure. Abbot principal role to supervise the actions taken and to give support to the monk against whom the allegation is made. Complainant not to be promised confidentiality, that social services will not be informed or that identity can be kept secret – [the] criteria for action is protection of children now from serious harm. Record of disclosure to be made.
(ii) Using the criteria of immediate or serious harm to a child – paramountcy principle, Diocesan CPC informed and Statutory Authorities informed by them. Communities (and) criminal law advisor/firm to be informed. Full records to be kept of actions taken. Monk concerned to be placed on administrative leave from his office and placed in a situation where no access to children. In all cases where an allegation or suspicion is aired, even if manifestly frivolous, the Diocesan CPC must be immediately informed …
(vii) Whatever the outcome of any disclosure, whether suspicion or allegation and whatever the result of any investigation and or legal action, a risk assessment is to be conducted on the monk concerned by the CPR, Abbot and if appropriate statutory authorities, legal and medical advice. Need for regular annual risk assessments of monk concerned. Results of this risk assessment and advice on placement of monk in question with regard to medical treatment and where it is appropriate for him to live and what work to do, must be adhered to.[31]
70. It also recommended that each institution should engage their respective diocesan CPC to ‘achieve greater transparency, and … establish common practice between the monasteries’.
71. The individual monasteries and their abbots were left to decide whether and to what extent to implement these recommendations. The approach was not consistent. Ampleforth was one of two abbeys (the other was Buckfast) that chose instead to set up its own internal safeguarding commission rather than align itself with the diocesan safeguarding commission.[32]
72. In March 2002, ‘Boarding Schools: National Minimum Standards, Inspection Regulations’ was published by the Secretary of State for the Department of Health, pursuant to section 87 of the Children Act 1989. Its purpose was to safeguard and promote the welfare of children for whom accommodation is provided by a boarding school, including all mainstream boarding schools, for age groups of pupils up to 18. The welfare standards were said to be minimum standards, ‘in the sense that they provide minimum standards, below which no school is expected to fall in safeguarding and promoting the welfare of boarders. Many schools already meet these standards or exceed them’.[33]
73. In 2003, Lord Laming produced his report following the Victoria Climbié inquiry. Lord Laming made 108 recommendations towards the overhaul of child protection, which included the establishment of a National Agency for Children and Families, to be led by a children’s commissioner. Although not specific to educational establishments, this high-profile report emphasised the need for communication across agencies, and the establishment of a ‘common language’ and coherent approach to safeguarding children.
74. In response to this, in September 2003, the Government published a green paper ‘Every Child Matters’, which proposed changes in policy and legislation to maximise opportunities and minimise risks for all children and young people, by focusing services more effectively around their needs and those of their families.[34] The proposals set out in the green paper focused on the need to create clear accountability for children’s services, to enable better joint working and to secure a better focus on safeguarding children.
75. The Children Act 2004 mandated that each local authority appointed a children’s director and that statutory Local Safeguarding Children Boards replaced Area Child Protection Committees. It also introduced a new system for serious case reviews.
76. The Charity Commission, formed in February 2007, is a non-ministerial government department that regulates registered charities in England and Wales and maintains the Central Register of Charities.[35] The duties of the charities, and their charity trustees, include both common law and statutory obligations. Under the Charities Act 2011, charity trustees are responsible for their charities, and are defined as those who have ‘the general control and management of the administration of the charity’.[36] The trustees of any charity which works with vulnerable groups and children have a duty of care to their charity which includes taking the necessary steps to safeguard and take responsibility for those children and vulnerable adults. They must always act in their best interests and ensure they take all reasonable steps to prevent any harm to them. Trustees also have duties to manage risk and to protect the reputation and assets of the charity. Failure by trustees to safeguard those in their care or to manage risks adequately may be regarded by the commission as misconduct or mismanagement in the administration of the charity, which is a ground for exercising their protective and remedial powers under the Act.[37]
77. In 2007, the Cumberlege Commission, under the chairmanship of Baroness Cumberlege, was established at the invitation of Cardinal Cormac Murphy-O’Connor in response to Lord Nolan’s final recommendation that there should be a further review five years after the publication of ‘A Programme for Action’. One of the members of the Cumberlege Commission was Dom Richard Yeo, abbot president of the EBC.
78. The commission met on 15 occasions between July 2006 and June 2007, coming together for a two-day session at Downside Abbey to consider recommendations and draft the report, which reflected the unanimous views of the commission. Its report ‘Safeguarding with Confidence’ was presented to the Catholic Bishops’ Conference in mid-2007.[38] It:
79. In summary, it found that of the 83 recommendations made by Lord Nolan, 79 had been addressed either completely or partially.[39] Those that had not been addressed were:
80. While applauding the Nolan Report, and saying that it ‘set out a blueprint for child protection in the Catholic Church’ together with the progress that had been made since its report, the Cumberlege Commission was also critical of the Nolan Report, which it considered ‘a product of its time’, saying it was:
a response to the continuing adverse, predominantly media, pressures facing the Church to address the historic child abuse in its midst … with the benefit of hindsight, a more measured period of reflection, debate, and genuine consensus around the report’s recommendations and priorities for implementation, may have produced a rather different medium-term outcome and, arguably, one that was more in keeping with the spirit of A Programme for Action.
81. The report concluded that the implementation process had been flawed. In the context of this Inquiry, the following observations are relevant:
2.10 ‘Programme for Action’ assumed that the Catholic Church operated as a functioning, hierarchical organisation capable of responding to, and implementing a secular (in essence social work) model of child protection and prevention.
2.11 The reality however is very different, and many within the Church have been critical of this approach. The Church is collegiate, not a homogenous organisation working to a clearly established hierarchy with lines of accountability as generally understood by the secular world. Authority rests with each Bishop in his diocese and each Congregational Leader in his or her congregation. Though they come together through the Conference of Bishops and the Conference of Religious respectively, they have differing priorities and, just as importantly, different levels of resources upon which to draw.
2.12 So the Nolan prescription has compelled the Church to work in ways that are unfamiliar to it and where ‘internal’ partnership working – dioceses working with each other and congregations working with dioceses – let alone ‘external’ partnership working with secular child protection worlds – has limited precedent.
2.13 The system … is heavily dependent on a volunteer rather than paid workforce.
[Point 2.14 discussed the problems in organisational and resourcing gap between national and parish levels as most of the changes that had been put in place were at the national and diocesan levels]
2.15 A culture of vigilance … depends fundamentally on engaging ‘hearts and minds’ from the leadership down through the grass roots, clergy and laity alike. Producing much needed policy documents and introducing structural changes can only go so far …
[Point 2.15 also cited evidence that some felt the policies can appear so foreign, bureaucratic, and even irrelevant.]
2.16 For some therefore ‘A Programme for Action’ remains a report addressed to, and for, the laity. This may go some way to explaining why the cornerstone of child protection policies … ‘the paramountcy principle’ … is still not universally accepted within the Church. Indeed there exists a misguided interpretation that sees its unequivocal adoption as a means of protecting the Church and its leaders at the expense of the accused, especially where the accused is also a priest.
2.17 This latter is indicative of a far more damaging tension that has driven a wedge between bishops and priests. A strong and vocal lobby of priests now believe that the system for dealing with allegations against them leaves them exposed and vulnerable and is a breach of Canon Law and natural justice … [and continued to say that this had led to … ] the erosion of trust between priests and bishops … religious and congregational leaders, and has engendered a fear amongst them … of the false or malicious allegation …
2.20 Religious congregations were a late addition to the diocesan-led thinking and recommendations underpinning the Nolan review. Five years later they continue to be so. The very nature and diversity of these religious congregations … bring with it a particular challenge to the One Church approach … The … uptake among the religious of the national policies is hugely variable … Substantial inputs of support and training are required to enable all religious congregations, given their diversity and later inclusion, to embrace the One Church approach.
2.21 Ultimately Lord Nolan’s prescription for a culture of constant vigilance depends on the Church at every level taking ownership of the safeguarding agenda. Responsibility for driving that agenda, however, belongs firmly with the Bishops … and Congregational Leaders … . Yet it is clear from the evidence before us that the will needed to do so is patchy … In part this is due to a growing confidence – some would say complacency – that with the establishment of COPCA child protection has been adequately addressed … We are concerned that five years after Lord Nolan reported Bishops and Congregational Leaders may be minimising the distressing consequences, the harmful impact and the anguish that follows in the wake of child abuse. This coupled with some resistance to change and a fear and suspicion that the authority of the leadership is being undermined, has impeded the delivery of consistently good – let alone excellent – safeguarding arrangements.
82. The Cumberlege Commission made 72 recommendations, the first of which was to call for a public renewal of the affirmations that had been made to Lord Nolan’s call for a ‘One Church’ approach to safeguarding children, young people and vulnerable adults.[40] It also recommended that there should be a clear national strategy for safeguarding children and vulnerable adults, which was the responsibility of the bishops and congregational leaders, with structures in place to ensure dialogue between Church leaders, and those in dioceses and religious congregations tasked with delivering the safeguarding agenda.[41]
83. In considering the role of COPCA, the commission again praised their work and progress that had been made. However, it found that many in the Church used the terms ‘child protection’ and ‘COPCA’ interchangeably, that there was confusion around its role and a perception among some that it held a rigid and directive approach and had exceeded its mandate, which made it ‘not universally popular’. This, they said, ‘may … mean that COPCA has become a focus for the sadness, anger and frustration that many understandably feel in the Church about having to confront those issues at all. As a result, COPCA has at times been unfairly scapegoated when things go wrong.’[42]
84. The commission observed that COPCA was attempting to both ‘challenge’ and ‘support’, to be ‘both enforcer and a source of friendly but authoritative advice’. It concluded that COPCA’s attempt to take on both these roles was probably unrealistic.[43]
85. They therefore proposed removing the responsibility for compliance from COPCA to a new organisation to be named the Catholic Safeguarding Advisory Service (CSAS). That organisation should sit within a department of Christian Responsibility and Citizenship of the Catholic Bishops’ Conference, and an appointed member of the COR should be invited to join the department.[44] In order to allow for ‘independence that is credible’, they recommended that the existing COPCA board be disbanded and a new national safeguarding commission established, with both lay and clerical representation (including one bishop with oversight of CSAS) and COR representatives.[45]
86. Following the publication of the Cumberlege Report, Eileen Shearer stepped down as director of COPCA, to be succeeded by her assistant Adrian Child who became acting director in July 2007. In July 2008, he became director of COPCA’s replacement, the Catholic Safeguarding Advisory Service (CSAS), which was established to drive forward improvement in practice. CSAS operates under the guidance of the National Catholic Safeguarding Commission (NCSC), which was established at the same time. Its primary role is to set the strategic direction of the Church’s safeguarding policy for children, providing coordination, advice and support in respect of the wider job of safeguarding children, young people and adults at risk. The NCSC sets and directs the work of CSAS.[46]
87. Following the Cumberlege Report, there have been further relevant developments and independent reviews of specific institutions. One of these reviews was in 2011, when Lord Carlile of Berriew, CBE, QC produced an independent report specific to Ealing Abbey and St Benedict’s School. This will be considered in our public hearing into Ealing Abbey and St Benedict’s School.
88. The Protection of Freedoms Act 2012 established the Disclosure and Barring Service (DBS). The DBS is a non-departmental public body set up by the Home Office, which sets out to help employers make safer recruitment decisions and to prevent unsuitable people from working with children and other vulnerable individuals, including voluntary work. It replaced the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA).
89. The DBS processes requests for criminal records checks and decides who is unsuitable to work with children and vulnerable groups. It manages the Barred Children’s and Barred Adults’ Lists (which used to be referred to as List 99). It is illegal for a barred person to apply for such work (paid or voluntary), or for a charity to employ a barred person in such work. Employers have a legal duty to refer someone to the DBS if they:
90. It can be seen from this short summary that since the 1990s there has been a considerable focus on child protection and safeguarding and developments in policy and practice, both within and outside of the Catholic Church. It is against this context we consider the events at Ampleforth and Downside.