"Boys being boys" cancelled: Keeping Children Safe in Education ('KCSIE') 2021

6 September 2021 | Applicable law: England and Wales

KCSIE is the key piece of statutory guidance that schools and colleges (collectively, ‘schools’) must have regard to when carrying out their duties to safeguard and promote the welfare of children. The Department for Education (‘DfE’) updates KCSIE every one to two years, and has published the most recent 2021 guidance which came into force on 1 September 2021 here.

Part 1 of KCSIE contains safeguarding information for all teachers and staff (‘staff’), including on their legal duties. While this prominent Part 1 is aimed at (head)teachers and staff, KCSIE also applies to school governing bodies, proprietors and management committees (collectively, ‘governing bodies’). Previously, governing bodies had to ensure staff read Part 1. This requirement in KCSIE 2021 has seen a shift in intensity by requiring governing bodies to ensure mechanisms are in place to assist staff to understand and discharge their responsibilities under Part 1.

What’s new in KCSIE 2021?

Part of the background to the 2021 KCSIE updates is the ‘Everyone’s Invited’-scandal. In spring 2021, the online campaign Everyone’s Invited shed light on thousands of children’s experiences of sexual assault, harassment and in some instances rape. KCSIE 2021 picks this up in various places, very much also in the spirit of the findings of Ofsted’s Review of sexual abuse in schools and colleges published in June 2021.

Peer on Peer Abuse clearly is the main thematic feature of KCSIE 2021. Part 1 clarifies that child protection policies should also include procedures to deal with peer on peer abuse. Paragraph 46-50 emphasises this by introducing an entire series of paragraphs on peer on peer abuse, replacing what was previously one specific acknowledgment of staff being aware that “children can abuse other children”. The new peer on peer provisions highlight the importance of “all staff recognis[ing] the indicators and signs of peer on peer abuse and know[ing] how to identify it and respond[ing] to reports.” It further sets out a list of inappropriate behaviours between peers which are abusive in nature, and acknowledges:

“[d]ownplaying certain behaviours, for example dismissing sexual harassment as “just banter”, “just having a laugh”, “part of growing up” or “boys being boys” can lead to a culture of unacceptable behaviours, an unsafe environment for children and in worst case scenarios a culture that normalises abuse leading to children accepting it as normal and not coming forward to report it.” (paragraph 48)

The list of inappropriate behaviours has been much expanded from the previous physical abuse (hitting, kicking, shaking, amongst others) and sexual comments, jokes or remarks. It now also includes (cyber)bullying, sexual violence including rape or sexual harassment, upskirting and initiation/hazing type violence and rituals, to name a few. The list also spans the consensual and non-consensual sharing of nude and semi-nude images in order to reflect new UKCIS (The UK Council for Internet Safety) guidance on the same, replacing UKCIS’ previous sexting advice (for further information on the topic please see our article no phone zone: mobile phone bans to improve safeguarding and behaviour.

A new paragraph 18 highlights the victim-centric approach which ought to be taken. It requires staff to "be able to reassure victims that they are being taken seriously and that they will be supported and kept safe."

Victims also should never be given the impression that they are creating a problem by or be made to feel ashamed for reporting an incident of abuse, sexual violence or harassment.

Part 2 on Safeguarding policies and procedures refers to peer on peer abuse on a governance level. It makes clear that a school’s child protection policy ought to reflect the “whole school/college approach on peer on peer abuse” as introduced in paragraph 145; amongst others requiring governing bodies to ensure procedures to minimise peer on peer abuse are in place, and that the systems in place enable children to confidently report instances of abuse. There should further be a zero-tolerance approach to abuse.

Part 5 on Child on child sexual violence and sexual harassment has also been substantially reworked. Much in the same grain as the above, it now includes new paragraphs on the importance of acknowledging and understanding the scale of sexual harassment and abuse; the need to be aware that children may not tell staff directly but rather staff may overhear or deduce concerns from behavioural changes; and repeats again the zero tolerance approach and list. Part 5 also recognises that a school’s response to an incident will impact future victims of sexual violence or harassment. Finally, it includes a new section on unsubstantiated, unfounded, false or malicious reports providing a reminder about reporting concerns as well as guidance on what to do when reports are found to be unsubstantiated.

Other changes made to KCSIE 2021 Part 1 include:

  • KCSIE now also covers 16-19 academies (and apprenticeships).
  • Special remarks on the Covid-19 pandemic have been removed. Instead, any guidance that was previously in a Covid Appendix should now be included in the main body of the school’s document. Covid guidance should enable the school to deal with (part and whole) closures and contain clear directions for staff. To this end, there is a new paragraph (127) on remote learning referring to further guidance and advice.
  • Additions have also been made to the paragraphs on Child Criminal Exploitation, including information on how children may be exploited and highlighting that experiences of girls being criminally exploited can be very different to those of boys. Further information is added on Child Sexual Exploitation as a form of child sexual abuse. This includes a list of examples when children may become victims of Child Sexual Exploitation as well as a reference to children who are victims of human trafficking (paragraph 32-39).
  • A series of risk factors increasing the likelihood of involvement in serious violence have been added to paragraph 51 and 52; including “being male, having been frequently absent or permanently excluded from school, having experienced child maltreatment and having been involved in offending, such as theft or robbery.” Staff are expected to be aware of these risk factors.
  • Paragraph 63 introduces a new paragraph highlighting the importance of social care assessments considering children being harmed outside the home. It is therefore important that schools provide as much information as possible in order to allow any assessment to take a contextual approach to safeguarding and addressing harm.
  • Paragraphs 71-72 expand the section on record keeping by including a list of what information ought to be recorded. This spans a clear comprehensive summary of the concern, details of how the concern was followed up and resolved, and a note of actions taken, decisions reached and the outcome.

KCSIE 2021 Part 2 on the management of safeguarding has been updated to highlight the importance of safeguarding, including through strengthened systems and child-centricity. Post-pandemic life appears to have been integrated into this part by adding extensively to online safeguarding. Paragraphs 117-119 highlight the importance of online safety training for staff, and the requirement to ensure children themselves are taught about safeguarding and online safety. Paragraphs 123-135 on online safety now include, amongst others, references to the risk posed by a school’s IT system, the appropriateness of the use of filters, as well as monitoring and an annual review of a school’s online safety approach.

Still perhaps in the post-pandemic spirit, paragraph 155-156 span new paragraphs on the use of school premises for non-school activities, and the additional risk this may pose to children. Finally, paragraph 164 covers children missing from education and the warning signs and risks associated thereto; while paragraphs 165-168 provide guidance on elective home education.

Part 3 on safer recruitment has not changed in terms of the duties covered but has been restructured in its entirety.

Part 4 on allegations made against staff has been separated out into two sections in order to distinguish between two “levels of allegation/concern”. This new split covers, first, allegations that may meet the “harms threshold” and sets out how to deal with those. Section two relates to ‘low level concerns’. The guidance specifies that “low level” does not mean that the concern is insignificant and that indeed any concern should be dealt with promptly and appropriately. Examples of possible low level concerns include instances of staff being overly friendly with children, having favourites, taking photographs on staff members’ mobile phones or engaging with a child one-to-one in a secluded area or behind closed doors. Low level concerns should also be recorded and should be responded to in accordance with the school’s policy and procedures.

What does this mean in practice?

There is no one-size-fits-all answer to this and schools and governing bodies should approach their advisors to assist them with the implementation of KCSIE 2021. However, a few points to take away are:

  • 16-19 academies need to be aware that KCSIE now applies to them.
  • Staff can no longer just read Part 1 of KCSIE: staff members need to satisfy themselves that they understand what their duties are.
  • Governing bodies in turn will need to make sure they enable their staff to understand. This may mean that sending one email to ask staff to read Part 1, for instance, may no longer do the trick. There may need to be follow-ups and checks as appropriate.
  • New guidelines on online safeguarding may be a welcome reason to systematically review systems, policies and procedures put in place during the pandemic, often on an ad-hoc basis.
  • And, returning to the headline topic of peer-on-peer abuse, schools and governing bodies will want to ensure they engage with the subject matter and their staff so as to satisfy themselves that they are up to speed with the very wide-ranging changes. This means including procedures to deal with instances of peer on peer abuse in child protection policies; but implementation in practice may well require a review of the school’s current approach and whether it still is fit for purpose in light of ‘Everyone’s Invited’ and KSCIE 2021.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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