Produced in consultation with Bates, Wells & Braithwaite,Solicitors
It is generally agreed that involving children (defined in law as anyone under 18) with the arts is rewarding and worthwhile. Many ITC companies bring children into theatres and take drama to them in their schools and in a host of other locations. Children participate in workshops as part of their school curriculum, as a hobby in their spare time or as therapy when they have problems. Companies may use child performers, especially in Christmas shows.
Children, however, are vulnerable and the law recognises this by offering them protection in many areas, including interaction with performing arts companies. This helpsheet offers guidance on some of the legal issues which may arise when working with children and takes a look at practical considerations which should be taken into account when considering company policies and procedures for work with children. Whilst this paper focuses on children, many of the topics it covers will also be applicable to work with vulnerable adults.
What does the law say?
Are your employees “fit and proper” people to work with children?
It is compulsory for anyone applying to work in a “child care organisation” to be checked through the Disclosure & Barring Service or Disclosure Scotland to ensure that he or she is a suitable person to work with children. Such a check will disclose anyone included on the lists maintained by the Department of Health and the Department for Education and Employment or has any criminal conviction for an offence that makes them unsuitable to work with children.
Whilst few ITC members will actually be “child care organisations” (broadly, an organisation which provides accommodation, social service or health care services to children or supervision of children) many are likely to do work in such organisations (NHS statutory bodies, for instance, are defined in this way). These organisations will generally require temporary working visitors to be checked in the same way as their own employees. In addition, “other organisations” which care for children are encouraged to ensure that they provide a comparable level of safety to children in their care by checking anyone working for them. ITC members running workshops, classes and participatory schemes are likely to fall into this category.
Potential employees should be made aware that a post is dependent on a DBS Disclosure. As an Equal Opportunities issue, they should also be made aware that the Rehabilitation of Offenders Act 1974 means that in many cases a criminal record will not be a bar to appointment although clearly, convictions for sexual and other offences involving children will disqualify them from employment that involves contact with children. The DBS publishes fair treatment guidance. The full text is available online, the main points are:
- Have a written policy on the recruitment of ex-offenders, which is available to all applicants at the start of the recruitment process.
- A DBS Disclosure should only be requested after a thorough risk assessment has indicated that one is both proportionate and relevant to the position concerned.
- Where a Disclosure is required, all application forms, job adverts etc should state that this will be requested in the event of the applicant being offered the position.
- Where a Disclosure forms part of the recruitment process, applicants called for interview should be encouraged to provide details of any criminal record at an early stage. This information should be sent under separate, confidential cover.
- Unless the nature of the position allows questions to be asked about an entire criminal record only ask about "unspent" convictions as defined in the Rehabilitation of Offenders Act 1974. All staff who are involved in the recruitment process should receive appropriate guidance and training in the relevant legislation.
- Make it clear that you will discuss any matter revealed in a Disclosure with the person seeking the position before withdrawing a conditional offer of employment.
What do you do if you suspect you are working with an abused child?
The checks above should minimise the risk of your staff abusing children in their care. There is, however, also the possibility that you may suspect abuse by someone in a position of responsibility such as a teacher or youth worker or that a child may confide in one of your company members about abuse they have suffered. There are legal issues which should be taken into account when dealing with a situation like this, alongside the need to be tactful and sensitive.
If the allegations concern one of your company members the provisions of your disciplinary code should be observed. If the allegations are proven they are quite likely to be gross misconduct justifying summary dismissal; you should be sure that a thorough investigation of the allegations has been made and that the accused company member is aware of their employment law rights.
You must comply with the Data Protection legislation when keeping and using records of alleged abuse in respect of both the alleged abuser and the child. Records (e.g: of allegations or of disciplinary action) should be kept (these will be vital if a court case is held). They should be stored securely and only shared with those with a specific interest in the issue. They should also be destroyed within a reasonable amount of time unless there is a good reason for keeping them (what is a reasonable amount of time depends on the circumstances however if a court case is pending it may well be a long time frame and the records will be essential evidence).
Drafting a Child Protection Policy
Many funding and support or regulatory bodies eg: Arts Council England, the Charity Commission, now insist that organisations they are funding/supporting have a written policy and procedures to ensure that all staff are aware of issues about protection of children and how to deal with these issues. A policy statement should be simple, relevant to all members of staff and clear about how the aims set out will be achieved, key features could include:
- Philosophy & Principles:
- Protection Policies & Procedures:
- Conduct & Good Practice
- Staff & Volunteers
- Partnerships and Public Relations
- Community and Environment
Practical issues which will be important for ITC companies drawing up their own policy documents are likely to include:
- Recruitment and DBS checks
- Training for staff who work with children
Provision for working in schools eg:
a) All workshops conducted in the presence of a teacher
b) Company teaches in teams of at least two people, unless a relationship is already established with a group, in which case an individual may work alone.
c) Children are supervised at all times during projects, including lunch breaks.
Who is responsible for ensuring health and safety requirements are met in the working environment.
Who will find out about special needs of children before the workshop commences.
Full evaluations to be carried out after all workshops, completed by teachers/staff members, to ensure that any problems are aired and are addressed in the future.
Like all policy documents this should be reviewed and updated regularly in the light of what actual practice has shown to be important and practicable and to take into account any changes to the law which may have occurred.
Using Children in shows
Children who are working for you also need protection from exploitation and from abuse. To ensure these children will generally need to be licenced and escorted.
For the purposes of employment a child is anyone who is of compulsory school age. This generally means anyone under 16, however young people can leave school on the last Friday in June of the school year if they reach the age of 16 before the first day of the following (September) term. If they reach 16 after that September date they have to stay at school until the end of the school year and will be considered as children for the purpose of employment.
Licences are issued by the relevant Local Education Authority and conditions do vary however there are certain basics which apply:
- When you employ children in shows they will generally need a licence if a charge is made in connection with the performance and/or the performance is at licensed premises or a registered club.
- A licence is not generally required if a) the child does not perform on more than four school days in any six months (provided that there is no absence from school), b) the child is appearing in a school performance of performances put on by a body approved by the Home Office or LEA where no payment is made to the child or to any other person
Applications for licences must be made by the person responsible for the production and should be made at least twenty one days before the performance. The licence holder will be responsible for ensuring that the supervision requirements of the licencing authority are met, generally registered matrons are required to look after the children. The licence is granted by the LEA where the child lives, any LEA will want to be certain that the child is fit, that his/her education will not suffer and that there will be proper supervision before they agree to a licence. They will also want to be sure that there are suitable travel arrangements for the child in place and that the venue is suitable. The licence is also essential to apply for the child to be absent from school for rehearsals or performances.
Applying this to work real life practise?
At ITC we are well aware of the terror, horror and panic that many members feel when confronted by the plethora of advice, regulations, legal requirements, and issues surrounding child protection. Rules, regulations and the perceived wisdom of those in authority and the press are one thing, working in a performance or workshop situation with kids can be quite another. As professionals, we all understand that we should never place ourselves in a situation where we are alone with a child or children. You have been told that the teacher or your co-worker will always be with you, BUT, what happens when the teacher has to leave the room to take a desperate child to the loo or to deal with a fight which has broken out? You know, of course, that you should never ever make physical contact with a child, BUT, isn’t physical contact (touch, cuddles, comfort) vital to a child’s emotional development, and an integral part of drama workshop process and practise? This is where assessment of context and “appropriate behaviour” kicks in.
The relationship that you build with a child during a one-off, one hour visit or performance, is different to the one that you or a form teacher will build over a period of days or weeks. The teacher who has been with the class for over a year has developed a special relationship with the children. He or she knows them well and they, it is hoped, trust their teacher. The children probably don’t know you as well, therefore behaviour and contact that is appropriate from their teacher or long term professional worker is unlikely to be appropriate from you. It is often appropriate and acceptable for a teacher or a nurse to comfort a crying child by sitting them on their lap. If you, a relative stranger, however, do this you could be laying yourself open to serious accusations and repercussions. First, consider, is this appropriate and safe behaviour on my part? Could my actions be interpreted wrongly by the child, his peers, parents or any adult who happened to be passing? If in doubt, DON’T. Always protect the child but also be sure to protect yourself and your co-workers.
Don’t panic. Appropriate behaviour is very much a question of correctly judging the context in which the behaviour occurs. See child protection as a positive ethos and put in place sensible company policies for recruitment and for running activities. Child protection is in the interest of us all, children and theatre practitioners alike. Don’t use it as a negative or inhibiting force, or be beaten by the volume of rhetoric and print that it can generate. Don’t let those adults who exploit child protection issues to enhance their own status, sell newspapers, or create fear and control, win. Put safety, your own and that of the children, first.
Jackie Elliman & Roger Lang: December 2003 © Independent Theatre Council 2003 Updated March 2015