healthcare update - issue five
Child protection - the current overwhelming priority
The court’s recent decision in W v Chief Constable of
Northumbria highlights the lengths to which child protection
agencies are willing to go in order to protect children from any
perceived risk of abuse. This decision may well have ramifications
for the health sector and all other child protection agencies.
The facts
In 1986, when W was 15 years old, he sexually assaulted a three
year old boy whom he had been babysitting. W pleaded guilty to the
assaults and was convicted in 1987 and sentenced to a 12 month
supervision order.
By 2007, W had a son, a daughter and a stepson. In June 2007, W
was arrested for a series of alleged sexual assaults on his
daughter. Social Services became involved. In October 2007, the
lead social worker discovered from W that he was a delivery driver
who delivered household goods to stores and private residences.
Social Services were concerned that W could have access to children
as part of his job and referred the issue to the police. In October
2007 the police decided that W’s employer should be informed of the
1987 conviction and the June 2007 allegations of sexual abuse. W
was dismissed from his employment as a result.
At the time of the disclosure, the Crown Prosecution Service
(CPS) was still considering whether W should be prosecuted for
sexually assaulting his daughter. In December 2007, six weeks after
the disclosure to his employer and four weeks after W had been
dismissed, W was told he would not be charged.
W challenged the decision to inform his employer of the
conviction and the allegations. The court decided that the police
were right to tell the employer of the 2007 allegations of sexual
abuse (for which no charges were brought) but wrong to tell the
employer of the 1987 conviction.
At first glance, this is a seemingly perverse decision. How can
it be that the police were right to tell an employer about
allegations of sexual abuse which were not prosecuted, yet wrong to
tell them about his actual conviction for sexual assault?
There are two reasons:
- The Rehabilitation of Offenders Act 1974
- The overwhelming desire of all agencies to act upon (and to be
seen to act upon) perceived child protection risks
The Rehabilitation of Offenders Act 1974
The Rehabilitation of Offenders Act 1974 says that certain
offences become ‘spent’ and can effectively be ignored after a
specified amount of time. The time period differs depending on the
person’s age at the time of the conviction and the length of
sentence imposed. If the sentence is for more than two and a half
years the convictions will never become spent.
The Act is an important one and aims to rehabilitate offenders
by ensuring their past mistakes do not affect the rest of their
lives if they have been law-abiding for some time. A person who has
a spent conviction does not have to disclose it to his employers,
and employers cannot refuse to employ someone on the basis of a
spent conviction. There are, however, exceptions to the Act, for
example, you have to tell employers about all your convictions if
you want to work with children or vulnerable adults.
In this case, W did not work with children or vulnerable adults
and it was agreed that the exceptions did not apply to him.
Therefore, the court held that the police were wrong to disclose
the fact of the 1987 conviction to his employers.
Child protection
Having found that the police were wrong to disclose the
conviction, the court then had to decide whether they were also
wrong to disclose an allegation which, at the time it was
disclosed, the CPS had not even decided whether they would
prosecute as a result. The Rehabilitation of Offenders Act 1974
affords no protection to those who have simply had allegations made
against them.
The court decided that disclosure of the 2007 allegations was
correct. Whilst the court accepted that W was always accompanied in
his work, so had no sole access to children and that most of his
deliveries took place during school hours, it decided that the
employer needed to know of the allegation in case W’s job
description changed and that change allowed W more access to
children.
So in essence, the court decided that the police were wrong to
disclose details of an offence to which W pleaded guilty and was
convicted, but right to disclose mere allegations that were not the
subject of a prosecution and to which W did not have the chance to
rebut.
The current pressures on all child protection agencies,
including the police and the health sector, are significant.
Following on from Lord Laming’s report in March this year, which
includes a number of recommendations that directly impact upon the
health sector; we now have a decision of the court that highlights
the lengths to which the court and child protection agencies will
go to act upon child protection concerns.
If the various agencies working in child protection, including
the health sector, were in any doubt as to the force of the current
focus on child protection, then this decision shows just how far we
are all expected to go.
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The content of this update is provided for the purposes of general
interest and information. It contains only brief summaries of
aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.