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Church of England clarifies ‘due regard’ in safeguarding policy

13 March 2020

Clergy must have a ‘clear and convincing’ reason if they do not follow the guidance

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CLERICS should not be reticent about challenging the Church’s national policies in specific circumstances, including safeguarding, the Bishop of Manchester, Dr David Walker, has said.

But they must also accept and revise their position if, after “robust conversation”, the specialist advice remains unchanged.

Dr Walker was responding to new guidance published by Church House this week that clarifies the legal duty of churchpeople to have “due regard” to the House of Bishops’ national safeguarding policy.

The phrase has previously been criticised by the Independent Inquiry of Child Sexual Abuse (IICSA), survivors of abuse, legal representatives, and campaigners for being unclear (News, 9 May).

Last year, an interim report from IICSA recommended that the Church remove the phrase from Canon 30 requiring clerics to comply with the Bishop’s safeguarding guidance, which, it said, “lacks sufficient clarity. Very few individuals who gave evidence to the Inquiry said they understood what this meant, including the Archbishop of Canterbury himself.”

In the mean time, Church House has sought to clarify its meaning. A new document states: “The legal duty to have due regard means that the person to whom the guidance is directed is not free to follow the guidance or not as he or she chooses. As a matter of law, the guidance should be given great weight and must be followed unless there are ‘cogent reasons’ for not doing so.”

A cogent reason, it continues, is “clear, logical and convincing. It will be very rare indeed for there to be cogent reasons for not following House of Bishops guidance on safeguarding.

“Cogent reasons are likely to arise only where the guidance does not contemplate a particular, unusual situation arising so that it becomes necessary to take a different approach from that set out in the guidance in order to meet the particular circumstances of the case.”

Failure to adhere to this due-regard principle is misconduct under the Clergy Discipline Measure (CDM) or, for lay people, it states, “would be grounds for the revocation of the reader’s or lay worker’s licence by the bishop. A failure by a churchwarden or parochial church council to have due regard to House of Bishops safeguarding could result in an investigation being carried out by the Charity Commission, and the churchwarden or PCC members being disqualified as charity trustees.”

In an article for ViaMedia website, later republished on Law and Religion UK, Dr Walker writes: “It is pretty blunt, and necessarily so.

“No matter how many years’ ordained experience, or how broad their understanding of the wider pastoral context, and notwithstanding what other complexities they may feel need to be held in tension in the specific circumstances, any person or corporate body that follows a course of action not in line with the national position, unless it has first been approved in the particular instance by the Diocesan Safeguarding Advisor and Diocesan Registrar, is at risk of disciplinary or equivalent action.”

He argues that clerics and diocesan bishops are “generalists” responsible for multiple areas, including safeguarding, but are “better served” by being advised by specialists.

“On a bad day it can feel as though everything imposed upon us, from Faculty Jurisdiction to Human Resources, and from Safeguarding Policy to Churchyard Rules, diminishes our ability to fashion a holistic response to a multifaceted situation,” he writes.

“Yet, rather than despair at the encroachment of experts into our decision making, I would argue that we are better served by it. The professional staff we employ at national and diocesan level are there to make our work more effective, not less. Specialist advice and guidance provide boundaries and safe space within which we can deploy our own training and skills to craft an appropriate response to the questions we face.

“Whether we’ve been 20 years a bishop or 20 days a curate, we should not be reticent in challenging a policy or expert opinion we believe does not fit the circumstances. It’s only when that challenge fails to change the advice we are receiving that we need to revise our position and comply. I lose my fair share of such arguments. Both I myself, and the actions I take after robust conversations with my expert colleagues, are all the better for it.”

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