Clause 23 - Positions of trust

Sexual Offences Bill [Lords] – in a Public Bill Committee am 3:15 pm ar 16 Medi 2003.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking 3:15, 16 Medi 2003

I beg to move amendment No. 145, in

clause 23, page 11, line 30, at end insert—

'( ) A shall have a defence if at the start of his work at the educational institution—

(a) A is under 21, and

(b) B is 16 or over, and

(c) the educational institution did not expressly draw his attention to section 23 of this Act prior to the start of any sexual relationship between A and B'.

In this clause we are dealing with positions of trust. Early on in Committee there was concern about schoolchildren—particularly head boys or girls, for example—who are just over 18 and in a position of trust as far as those just under 18 are concerned. That has been rectified, but there is still an issue that I would like to consider concerning line 30 in subsection (5). The amendment would provide an exemption in relation to two people, one of whom is being educated at a school, and one of whom is not.

The amendment would cover the case of a gap-year student. It relates to a most unlikely scenario, but we are considering unlikely scenarios to see what might happen if they arise. It is not unusual for a young man to leave school and return shortly afterwards as a gap-year student. I have in mind the school in Leatherhead in Surrey that my son has just left. He left in the summer term, and this term, one of his best friends, who left at the same time as he, has returned to assist with sports coaching for some months. He is not a pupil; in effect, it could be argued that, under the Bill, he is in a position of trust in relation to other pupils at the school.

Of course, the sixth form, lower and upper, of the school contains a number of girls whom the boy has known—indeed, he has been part of the education system with them. They were chums while he was in the sixth form. Let us take the example of a girl who was in the lower sixth when he was in the upper sixth. The boy leaves and comes back as a coach for a term or two of sport, and she moves into the upper sixth. The Minister will have got the point already. I want to know, first, whether that gap-year student is in a position of trust and, secondly, whether he will have committed an offence under any of the provisions that refer to breach of trust in relation to one of the girls in the sixth form, subject to their both being the relevant age.

My amendment would protect the boy because he is under 21 and she is over 16, notwithstanding that he is undoubtedly in a position of trust, because he would have a regular caring responsibility and so on for the young girls in the upper sixth. It is a probing amendment and I do not propose to press it to a Division, not least because our voting strength has gone down by 33.3 per cent. in the past few minutes, and if our numbers go down any further there will be just me. I think that our honourable Whip is coming to our rescue. There are various reasons why I will not press the amendment to a Division, but I would like to hear from the Under-Secretary about it.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I understand the hon. Gentleman's point about the gap-year student, but when I first read the amendment I read it as applying to someone undertaking teacher training. A person who was doing teacher training at the normal age would fit into that category. It would be bad practice for anyone who was training to be a professional to be exempt on the grounds that they did not know. The onus must be on the professional institutions to ensure that that happens. Although I can understand the scenario as

described, anyone who volunteers, which is more or less what we are talking about, must come under the same provision. Although I appreciate that this is only a probing amendment, it attacks what we are trying to do in this clause.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I appreciate the spirit in which the hon. Member for Woking (Mr. Malins) moved the amendment. I say to him in the gentlest possible way, because I know that that is the style he prefers, that, even if the amendment were right, it is probably in the wrong place, because it is in the bit of the Bill that deals with a position of trust. It should probably refer to the part that deals with the offences. Even if it were in the appropriate place, however, there are some flaws in his proposing that the person is under 21 when he starts work at the establishment and that the young person is 16 or over. I suspect that the purpose behind the hon. Gentleman's drafting was that those should be the ages at which the sexual relationship began. It is possible, however, for someone to have started work at the establishment when they were 19 and at the age of 40 mount a defence using the hon. Gentleman's amendment.

I strongly believe that age is no defence—the position of trust is the important thing. Age cannot be a defence. I am sure that the Committee will be united on that, and that the hon. Member for Mid-Dorset and North Poole would echo it, too.

The hon. Lady raised the issue of what an organisation and the professional bodies associated with it should do to ensure that people are aware of this piece of legislation. That is important. Under existing arrangements it is not solely for employers to inform teachers about their professional and statutory responsibilities. The standards for qualified teacher status, which were set by my right hon. Friend the Secretary of State for Education and Skills, require candidates to demonstrate that they are aware of and should work within the statutory frameworks relating to teachers' responsibilities. The Teacher Training Agency issues new teachers with guidelines on the legal framework within which they will be practising. People who are already teachers should be in no doubt about their responsibilities.

The creation of this offence in the Sexual Offences (Amendment) Act 2002 was widely reported and debated in the media and extensively publicised throughout the teachers' unions. Such behaviour has always been regarded as unprofessional and teachers have been liable to disciplinary action. It is right that even if a defendant were able to prove that he was not, for some reason, aware of his obligations under the law, that should not allow him a defence against this offence. The amendment would, in effect, provide an unlimited ''get out of jail free'' card for young teachers, regardless of whether they knew that their behaviour was wrong or constituted an offence.

We all know that in England and Wales ignorance of the law is no excuse. We cannot make an exception to that widely accepted principle.

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking

Under my amendment, if the educational establishment had drawn the young gap-year student's attention to the section of the Act—or

not, as the case may be—he would not have a defence. Is there not a little bit of merit in my general thrust? I appreciate the point about the 40-year-old starting a relationship, but it is a bit different when the boy concerned might be 19 and a bit and the girl is 17 and three quarters.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I respond in the spirit in which the hon. Gentleman asked the question. The establishments—the training organisations, the professional bodies that represent people in that profession—have a responsibility to ensure that every teacher, whether new or current, is well aware of their responsibilities. I am trying to reassure the Committee that that already happens. Ignorance cannot be an excuse in the law, and, in any event, there should not be any ignorance because all the bodies involved instruct members of the profession to know fully their liabilities and responsibilities. I hope that I have satisfied the hon. Gentleman that his concerns are taken on board in the Bill, and I hope that he will consider withdrawing his amendment.

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking

The hon. Gentleman has responded helpfully as always, and in just the sort of tone that is guaranteed to result in a withdrawal of the amendment. I do not blame myself for having raised the issue, but I am grateful to him. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I beg to move amendment No. 207, in

clause 23, page 11, line 30, at end insert—

'() This subsection applies if A is appointed to be the guardian of B under Article 159 or 160 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)).'.

Photo of Roger Gale Roger Gale Ceidwadwyr, North Thanet

With this it will be convenient to discuss Government amendments Nos. 208 to 212.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I do not want to detain the Committee unduly. We have explored some of the wider issues related to abuse of trust. The purpose of the Government amendments is to widen the scope of the abuse of trust offences to include additional categories of persons who regularly look after children in the community on an individual basis or who, during the course of performing their functions, regularly have unsupervised contact with children.

By means of amendments Nos. 207 to 209, those persons will now include: children's guardians in family court proceedings; children and family reporters involved in family court proceedings affecting children's welfare; persons who supervise children pursuant to a care order, supervision order or educational supervision order; children's guardians in relation to adoption proceedings; and children's guardian ad litem in private law Children Act 1989 proceedings and in cases determining wardships. Some of those additional categories, in particular children's guardians and those who supervise children pursuant to a care order, supervision order or educational supervision order, are being added in order to honour an undertaking given when the offences were debated in another place. In conjunction with other

Departments, we have identified some additional categories for inclusion.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

My hon. Friend seems to have missed out children who are accommodated under section 20 of the Children Act 1989. Is that a deliberate omission?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

With his great experience, my hon. Friend makes an interesting observation that we may return to on Report. We want to ensure that all eventualities are covered in the Bill. I hope that he is satisfied with that assurance.

The categories of persons that we have identified can all play important roles in a child's life, and they have sufficient power and influence to justify inclusion within the scope of the offences. I trust that hon. Members agree, and I can advise them that the consideration of including additional categories is ongoing. With hon. Members' forbearance, we will return to the matter on Report. Amendments Nos. 207, 208 and 209 define the terms care order, supervision order and educational supervision order for the purposes of the offences.

Amendment agreed to.

Amendments made: No. 208, in

clause 23, page 11, line 33, at end insert—

'() This subsection applies if A, as a person who is to report to the court under section 7 of the Children Act 1989 (c.41) or Article 4 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) on matters relating to the welfare of B, regularly has unsupervised contact with B alone (whether face to face or by any other means).'.

No. 209, in

clause 23, page 11, line 39, at end insert—

'() This subsection applies if—

(a) B is subject to a care order, a supervision order or an education supervision order, and

(b) in the exercise of functions conferred by virtue of the order on an authorised person or the authority designated by the order, A looks after B on an individual basis.

() This subsection applies if A—

(a) is an officer of the Service appointed for B under section 41(1) of the Children Act 1989 (c.41),

(b) is appointed a children's guardian of B under rule 6 or rule 18 of the Adoption Rules 1984 (S.I. 1984/265), or

(c) is appointed to be the guardian ad litem of B under rule 9.5 of the Family Proceedings Rules 1991 (S.I.1991/1247) or under Article 60(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)),

and, in that capacity, regularly has unsupervised contact with B alone (whether face to face or by any other means).'.—[Paul Goggins.]

Clause 23, as amended, ordered to stand part of the Bill.