25 September 2019 | Comment | Article by Samuel Barker

HJ Talks About Abuse: Sexual abuse in schools

In recent weeks we have seen three devastating news stories documenting the sexual abuse of children in an environment where they ought to flourish – school. 

In this week's episode of the HJ Talks About Abuse podcast, we will discuss these three cases and the legal implications of sexual abuse in schools.

In Essex, former freelance teacher Kenneth Francis was found guilty of 15 counts of indecent assault and two counts of gross indecency committed while he was a teacher at Widford Lodge Boarding School in Chelmsford, Essex, in the 1970s.

In Portsmouth, Sean Aldridge, 37, a former teacher at Warblington School in Havant, Hampshire, was found guilty of 24 counts of sexual activity with a child.  Rather unbelievably, Mr Aldridge was the school’s safeguarding lead.  During the three-week trial, Portsmouth Crown Court heard that Aldridge, from Southsea, targeted four girls aged 13 to 16 between 2006 and 2012 on school premises and in his car.

In Burnley, Father Michael Higginbottom, the school priest at St Joseph's College, in Lancashire was jailed for 18 years for sexually abusing two boarders in the 1970s and 1980s.

There is a common theme amongst the words stated by the sentencing judge in all the cases – the abuse of trust was of the highest degree.  This is, of course, unsurprising.  The very idea of a teacher or a school priest using their position of trust, power and authority to sexually abuse students in their care pierces the very foundation of schooling – an expectation the student will be educated in a safe and beneficial environment.

When parents drop off their children at the school gate they are placing in the school a special degree of trust, they expect the teachers will step into their shoes and care for their children.  In doing so, the parents are at a distinct vulnerability and disadvantage as they are not on the school grounds during the day. 

Similarly, the students are in a position of vulnerability.  They are taught to defer to authority within the school, which manifests itself in the teaching staff. Their teachers are the ultimate authority in the classroom. 

It is, of course, unsurprising that many survivors report being threatened by the teacher with punishment, disbelief or violence after the abuse and those threats were taken seriously thereby securing the student’s silence.  

This conduct is obviously criminal and the abusers in the above cases have thankfully received lengthy sentences.  But many survivors are left wondering after the criminal case – who is liable to pay for the damage I have suffered?

In this circumstance, the law is fairly clear – it is the school or the local education authority.

The law in relation to education has developed over the years to the point where it can be said rather definitively that a school owes a student a “non-delegable” duty of care which, if breached, gives rise to a claim in negligence and a school, as the employer, can be vicariously liable for sexual abuse committed by a teacher against a student.  Of course, each case depends on its own set of facts.

The first of those principles – a non-delegable duty of care, was confirmed in the Supreme Court case of Woodland v Swimming Teachers Association [2013] UKSC 66.  In that case a student tragically suffered a brain injury during a swimming lesson which was part of the school curriculum.  The lesson did not occur on the school premises and the swimming teacher and lifeguard were both employed by an independent contractor.  Despite this, the school was found to be liable.

In short, a non-delegable duty of care cannot be discharged by entrusting its performance to an independent contractor.  The school must satisfy itself that reasonable care will be taken by the independent contractor in the performance of those duties and cannot escape liability by simply contracting out.  Again, much of this is justified in a policy sense because of the particular vulnerability of children when in the care of the school.

In the context of sexual abuse, the school would need to satisfy itself that proper checks are carried out to ensure the suitability of independent contractors engaged to provide services to students in their care.   An example that jumps to mind is music lessons arranged by the school as part of the curriculum but using independent contractors.

The second, and more direct form of liability, is that of vicarious liability.  If established, this will render the employer liable for the criminal acts of the employee which, in these circumstances, would be the school (or local education authority) being liable for sexual abuse perpetrated by a teacher.

The doctrine of vicarious liability requires two limbs to be established:

  1. A relationship of employment (or a relationship “akin to employment”) between the wrongdoer and the person and/or entity purported to be liable; and
  2. A close connection between the acts the wrongdoer was engaged to perform and the wrongdoing.

The first limb will almost always be made out in a school context as the teacher will be engaged on a formal contract with the school.  The second limb requires more nuance.  The court will assess the field of activities allocated to the teacher widely, so in circumstances where the abuse occurs in, for example, the context of teaching the class, or a boarding master managing the boarding house or a music teacher instructing music lessons then the close connection will be established.

Both circumstances account for the fact that such high degrees of vulnerability, trust and power exist in the teacher-student relationship and a correspondingly high degree of care and control is placed in the school when the parent drops the child to the school gate and as such, it is fair, just and reasonable to impose liability for harm sustained by the student.

Applying the law to the facts of the three cases discussed at the outset, it is clear that the school and/or the local education authority would be liable in each case. 

In the Essex case, whilst Francis was a freelance teacher, the school nonetheless owed a non-delegable duty to those students who were abused and a failure to take reasonable steps to ensure those students were protected from harm would resound in liability, but so too would the school be vicariously liable for those acts, particularly where Francis abused some students below the school stage and were rewarded for doing so with stars.

In the Hampshire case, it is clear cut vicarious liability for which the school and/or the local education authority would be liable.  Aldridge used and abused the trust and authority placed in him by the school to commit the sexual abuse.

In the Lancashire case, much would depend on the nature of the engagement of Higginbottom as the school chaplain as to whether the school or the religious institution would be vicariously liable.

Of course, the examples above are not to be taken as legal advice as the surrounding facts are not known in depth and our discussion is merely speculative.

In any circumstance where a child has been abused in an educational context, or even just on school grounds, then expert legal advice should be sought. 

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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