Circular 1997/12 - Responsibility of boards of trustees for student safety

Date: 13 March 1997
Circular Number: 1997/12
Category: Students

Responsibility of boards of trustees for the personal safety of students in schools

This circular is about: The responsibility of Boards of Trustees for the personal safety of students in schools, including when they are in residential facilities associated with schools and in off-site programmes.

The action required is: Note the contents.

It is intended for: Chairpersons of boards of trustees, principals of state and integrated schools, principals and proprietors of private schools.

Introduction

Boards of trustees are responsible for providing safe physical and emotional environments for the children and young persons in their care.

This circular provides boards with important information to consider when reviewing and implementing policies and procedures concerning the personal safety of children and young persons. It outlines the responsibilities and liabilities of boards for the personal safety of children and young persons including when they are in residential facilities associated with schools. These may include boarding schools, hostels, homestays, school camps or off-site courses or trips. It also reminds boards of the policies and processes that should already be in place in the event that abuse is alleged.

The circular has been developed in consultation with a wide range of interests both within and beyond the education sector. These include the members of the Schools' Consultative Committee, the New Zealand Boarding Schools' Association, the Children, Young Persons and their Families Service and Te Puni Kokiri.

The circular should be read in conjunction with Circular 1996/31 Health and Safety Responsibilities in Schools and Circular 1994/32 Health and Well-Being of Students.

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The duty of boards of trustees to take reasonable care to ensure the personal safety of children and young persons in on-site and off-site educational environments

1. The Ministry of Education, along with boards, staff, parents and guardians, is concerned that the personal safety of children and young persons is protected in all on-site and off-site educational environments. Most boards are already meeting their responsibilities and are ensuring the personal safety of children and young persons in these situations. The standard to be applied is that of reasonable care. If any board is unsure whether it is meeting its responsibilities it should immediately review its policies and procedures.
2. The duty to provide a safe physical and emotional environment is a requirement of the National Education Guidelines. This requirement is part of the National Administration Guidelines and is incorporated into the schools' charters with the Minister of Education under section 61 of the Education Act 1989.

In educational environments, and particularly in off-site and residential environments, children and young persons are vulnerable when faced with undesirable and illegal behaviours that include sexual abuse and harassment, threatening behaviour, physical and verbal assault and bullying. These behaviours can have life-long, damaging effects on the emotional well-being of children or young people. In recognition of this, boards need to be aware that courts overseas have awarded damages where schools have failed in their duty to ensure the safety of students from persistent abuse such as bullying.

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Liability of boards of trustees for children and young persons in residential facilities

Where students suffer emotional, sexual, physical or mental harm while in a residential facility managed by a board or its employees, the board may still be held liable whether or not there is cover from accident compensation.

The responsibility of the board of trustees for residential facilities depends on the particular management structure of an educational environment. The closer the link between the board and the management of the residential facility (including homestays, school camps or off-site courses or trips) the higher the likelihood of liability.

3. In a 1996 High Court case, it was decided that a board was not liable for harm suffered by the students in a boarding hostel. In this case the Court found that the board had no statutory functions to operate the hostel and that the hostel had always operated as a completely separate entity. The matter was determined by the contractual relationship between the students/parents and the hostel management. However, it must be emphasised, the courts may not follow this decision if the facts of another case differ significantly with respect to the board's management and control of the hostel. So that they know what their liability may be, boards should be very clear about the nature of their relationship with the management of the residential facilities.

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Depending upon the facts of a particular case, liability could rest in any of the following areas of law:

A claim under the general law of negligence may succeed if it is found that a duty of care existed and a reasonable standard of care has been breached. For example, a board may be liable where it fails to have proper supervision systems in place to adequately ensure the safety of students.

Under the law of contract a board may be liable for breach of contract where the contract requires or implies that the board is to be responsible for the personal safety of its students. This will depend on the agreement between the board, the management committee or persons appointed to manage the facility, the students and/or their parents.

The parents' fiduciary duty to protect the physical and emotional welfare of their children could be argued to extend to those who are acting in place of the parents. Depending on the relationship between a board and the management committee or persons who manage the residential facility, it may be argued that a board holds a duty of trust to protect the student's physical and emotional interests in that facility.

In any residential facility that is managed by a board or its employees, including any off-site facility, it could be argued that the doctrine of in loco parentis still applies. This doctrine requires that those acting in the place of parents exercise a reasonable standard of care for the safety of children or young persons in their custody.

There is a wide range of legislation that extends to the care of children and young persons in residential facilities associated with schools and during off-site courses and trips. Appendix 1 provides a summary of some of the relevant legislation.

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The management of situations where there is alleged abuse of children and young persons

Interagency Protocols

Boards have been issued with two important booklets. Breaking the Cycle: Interagency Protocols for Child Abuse Management (1996) was developed by the New Zealand Children, Young Persons and their Families Service (CYP&FS), the Ministry of Education and the New Zealand School Trustees Association (NZSTA) in accordance with the CYP&F Act. It details the joint national protocols for the management of reporting procedures for cases of child abuse. It may be used in conjunction with the guidelines for reporting child abuse outlined in Breaking the Cycle: an Interagency Guide to Child Abuse (1995).

Boards are strongly advised to follow the policies and procedures for the voluntary reporting of child abuse as recommended in the interagency protocols. All complaints of alleged abuse must be taken seriously. Schools need to act immediately to ensure the safety of the students and to prevent any problem from escalating.

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Boards are required to implement policies and processes to ensure:

• all children and young persons are treated with respect and dignity and that they have their rights and needs met in a safe environment
• staff are aware of the relevant laws and regulations enacted to protect children and young persons from abuse
• staff are familiar with ways to prevent, recognise and respond to abuse
• procedures are in place to protect students and staff from unwarranted allegations of abuse
• procedures are in place to meet the special personal and educational safety needs of Māori students.

Boards are strongly recommended to have in place:

• employment policies that ensure the personal safety of students in their care by screening staff and caregivers for relevant previous convictions
• appropriate policies and procedures covering a range of situations including abuse involving other students, staff, the principal or someone beyond the school environment.

The Special Education Service, CYP&FS and the New Zealand Police can assist in the development and implementation of effective policies and practices by providing advice and support to maintain the personal safety of students in schools. The Community Liaison Social Workers from CYP&FS are available to assist all schools with the implementation of the protocols.

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Boards' dual role when there is alleged personal abuse of children or young persons

First, in all instances where personal abuse of children and young persons is alleged:

Any student who has allegedly suffered personal abuse is entitled to adult support and should not be exposed to any unnecessary risk. The school principal should be informed and should ensure the correct procedures are followed and that the CYP&FS is notified. The police may also be notified.

Second, in all instances of alleged personal or physical abuse of children or young persons by a staff member:

To ensure the safety of students, and to prevent the problem from escalating, it may be appropriate to remove the staff member from the school during the investigation. The board must ensure the staff member is treated fairly according to the terms and conditions of the relevant employment contract and that the principles of natural justice are adhered to. Close contact should be kept with CYP&FS and the police so the school does not inadvertently undermine or frustrate investigations.

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Resources

Appendix 2 contains a list of resources to which boards of trustees or teaching staff may refer.

Education programmes are an effective means of combating abuse by making children and young persons aware of their rights and of the policies and procedures in place to ensure their personal safety. Some of the resources in Appendix 2 are appropriate for teaching staff to use in health and safety programmes.

When developing policies and procedures for managing the personal safety of children and young persons in their care, boards may also find some of these resources helpful.

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Appendix 1

Legislation that extends to the care of children and young persons in residential facilities associated with schools including during off-site courses and trips

In 1993 New Zealand ratified the United Nations Convention on the Rights of the Child. Article 19 provides that the government shall take appropriate legislative, administrative, social and educational measures to protect children. There is a wide range of relevant legislation and this includes:

Education Act 1989

Section 61

Boards of trustees are responsible for the implementation of school charters.

Section 61(2)

All charters aim to achieve, meet and follow all the National Administration Guidelines. Guideline 5 is of importance to the personal safety of students in schools.

• National Administration Guideline 5(i) states that boards of trustees are required to provide a safe physical and emotional environment for their students.
• National Administration Guideline 5(ii) states that boards of trustees are required to fully comply with other legislation in force or that may be developed to ensure the safety of their students and employees.

Comment:
To fulfil National Administration Guideline No 5, boards are required to develop policies and procedures that ensure a safe learning environment for all students. `Environment' is likely to include residential facilities where boards manage the facility or appoint a committee or person to manage the facility.

Section 77

Principals have a responsibility to take reasonable steps to tell parents of all hindrances to a student's progress, including matters that are affecting a student's relationships with teachers or with other students. They are required to ensure that students receive good guidance and counselling.

Section 139A

The use of force towards a child or young person, by way of correction or punishment, is prohibited by any person employed by a board of a school, or the management of an early childhood centre. Any use of force is an assault under the Crimes Act 1961.

Human Rights Act 1993

Section 62

This refers to complaints of sexual harassment. A board, as employer, may be liable where complaints are made against an employee in a residential facility. Where sexual harassment is alleged and a board has taken reasonably practicable steps to prevent this happening, section 68(3) does provide a board with a defence.

Bill of Rights Act 1990

Section 9

This refers to the right of children not to be subjected to cruel, degrading or disproportionately severe treatment or punishment. Section 21 refers to the right to be secure from unreasonable search or seizure.

Comment:
Where boards are found to have been in breach of the Bill of Rights Act they open themselves to claims for redress. The Court of Appeal in Simpson v Attorney General (Baigent's Case) 1994 NZLR 667 held that the courts have jurisdiction to grant effective and appropriate relief, including monetary compensation, as a remedy for a breach of this Act.

Children, Young Persons and their Families Act 1989 (CYP&F Act)

Section 6

This contains the paramount principle that applies to actions taken under the Act and that states that the welfare and interests of a child are always to be the first consideration.

Section 14

Provides a definition of a child or young person in need of care and protection.

Sections 15 and 16

Any person who believes that a child or young person has been, or is likely to be harmed, ill treated, abused, neglected or deprived may report the matter to the Department of Social Welfare or the police. If the report is made in good faith, under section 16 no civil, criminal, or disciplinary proceedings will be taken.

State Sector Act

Section 77 A(3)

A board has a duty to be a good employer and is required to ensure that employees maintain proper standards of "integrity, conduct and concern for...(b) The well-being of students attending the institution."

Domestic Violence Act 1995

Anyone, including a teacher, can take out protection orders on another person's behalf.

Comment:
Boards should consider having policies in place in the event that a staff member exercises this right to take out a protection order on behalf of a student at the school.

Crimes Act 1961

Section 151 and Section 152

A duty is placed on persons in charge of others to provide the necessaries of life. Section 152 places the duty on a parent of guardian or those in place of a parent.

Section 195

It is an offence for any person who has the custody, control or charge of any child under 16 to wilfully ill-treat or neglect the child or wilfully cause or permit the child to be ill-treated in a manner likely to cause the child unnecessary suffering, actual bodily harm, injury to health or any mental disorder or disability.

Health and Safety in Employment Act

Sections 15 and 16

Employers must take all practical steps to ensure that no action or inaction of any employee harms any other person in the place of work, and that persons in the place of work (other than employees) are not exposed to situations that may adversely affect their health or safety.

Comment:
If an employee of a board harms a child or young person in a residential facility associated with a school, or during an off-site trip or course, these sections may apply.

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Appendix 2

Publications and resources

Breaking The Cycle: An Interagency Guide to Child Abuse New Zealand Children, Young Persons and their Families Service (1995)

Breaking the Cycle: Interagency Protocols for Child Abuse Management New Zealand Children, Young Persons and their Families Service (1996)

Eliminating Violence, Managing Anger Special Education Service (1994)

Guidelines to assist in the management of traumatic incidents Special Education Service (1993)

Health and Well-being of Students Ministry of Education Circular 1994/32

Health and Safety Responsibilities in Schools Ministry of Education Circular 1996/31

Health and Safety Code of Practice for State Primary, Composite, and Secondary Schools Ministry of Education (1993)

Healthy Schools Project by New Zealand School Trustees' Association (1994)

Kia Kaha New Zealand Youth Education Service (1992)

Keeping Ourselves Safe - A child abuse prevention programme with modules appropriate for Year 1 to Year 12. New Zealand Police Youth Education Service (1998 and revised editions)

Preventing Sexual Harassment in Schools Human Rights Commission (July 1996)

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Issued by

Kathy Phillips
Senior Manager, National Operations
National Office
45 - 47 Pipitea Street, Thorndon
P O Box 1666, Wellington, New Zealand
Phone: 0-4-463 8000
Fax: 0-4-463 8001