QUESTIONS about where liability would lie should a new independent safeguarding body for the Church of England fail in its delivery of services are raised in a new legal paper published on Friday.
The delegation of safeguarding powers by diocesan boards of finance (DBF) to an external body would be a “novel” development, effectively divesting trustees of any control over an “intrinsic part of the safe and effective operation” of the board, the paper concludes. It has “no obvious precedents” in the wider charity sector.
The paper, entitled Future of church safeguarding: Advice note, is dated 31 January and is authored by VWV, a firm of solicitors that advises some dioceses. It was commissioned by the Gloucester DBF but has been shared with other DBFs. It addresses the implications for DBFs of “model 4” — one of two options for greater independence of safeguarding, set to be presented to General Synod next week (News, 24 January).
Under this model, diocesan and cathedral safeguarding staff, along with most of the people employed in the National Safeguarding Team (NST), would transfer to a new national delivery body, which would be external to the Church while remaining “embedded in dioceses”. This would entail the transfer of all safeguarding delivery, preventative work and casework. A General Synod paper setting out the model says that the Archbishops’ Council would establish a contractual agreement with a chosen safeguarding services provider. Legislation would be brought forward requiring diocesan bishops and cathedral chapters to transfer their safeguarding staff to this provider and to procure and receive safeguarding services from it.
The General Synod paper states that: “bishops/chapter will continue to hold overall responsibility for safeguarding in a diocese or cathedral.” But the VWV paper concludes that this statement “does not in our view fully reflect the relevant legislation and regulation of safeguarding (both under ecclesiastical and secular law) by DBFs and the duties owed by their trustees”. Neither does it take into account “the requirements of charity law and regulation which apply to DBFs and their trustees as regards safeguarding”.
DBFs are charities under English law and regulated by the Charity Commission. The members of the board are charity trustees. The VWV paper notes that the Charity Commission regards charity trustees as “under a duty to take reasonable steps to protect from harm all of the people who come into contact with their charity (not just children and vulnerable adults)”. A failure to manage safeguarding risks is “likely to be considered by the Commission to constitute misconduct and/or mismanagement in the administration of the charity and may also lead to a breach by the trustees of their duties”.
While agreeing with legal advice appended to the Synod paper — which sets out how DBFs can delegate safeguarding to an external body — the VWV paper states that, “in order to ensure that delegated powers are being exercised properly and in the best interests of their charity, trustees must retain oversight over the exercise of those powers by the delegates, with the capacity to take whatever action is necessary (including revoking the delegation) in the best interests of their charity.” This could include, they suggest, the need to “terminate the contract with the external delivery body in order to bring the services back in-house or, in principle at least, to out-source them to a different provider”.
It is “difficult to see” how trustees of a DBF could retain sufficient oversight, accountability and control if the external body is to be the only provider of safeguarding services for all DBFs, the paper warns. This places them at risk of acting in breach of their duties to the DBF, “with the possibility of personal liability as a consequence”. In the courts, it warns, “trustees will generally remain personally responsible for the acts of their delegates”.
To protect trustees, it says, the legislation brought forward to deliver model 4 would have to create a “binding obligation on all DBFs to engage the [external delivery body] to deliver safeguarding services on a mandatory basis — with no option for the DBF to terminate that relationship”.
It raises questions about where liability would lie, should a defect in the delivery of safeguarding services arise. There are, it says, “a range of other legal and regulatory considerations that would need to be addressed in the legislation in order to ensure that the interests of DBFs are properly protected and that neither they nor their Trustees are inadvertently exposed to legal or regulatory risk”.
The paper also considers the question of confidentiality and access to data. Without information sharing between DBFs and the external body, “it is likely to be difficult for trustees to be able to demonstrate they have sufficient information in relation to safeguarding delivery etc. to take well-informed decisions in the best interests of their DBF.”
The nature of the relationship between the Church and independent safeguarding, what happens when the relationship deteriorates, and the complexities of data sharing, were all issues explored in the Wilkinson Review set up to explore the disbanding of the Independent Safeguarding Board (News, 11 December 2023). This warned that: “The set up of any new safeguarding body must not be rushed.”
The Synod paper setting out Model 4 acknowledges that charities “cannot delegate their underlying duty to be responsible for good safeguarding” and that the Archbishops’ Council, Bishop, of Cathedral Chapter, will still be required to “monitor the performance of the operational function and to be able to change provider if the service provided is not of the required standard”.
When General Synod debates the paper next week, the lead safeguarding bishop, Dr Joanne Grenfell, will bring a motion proposing model 4. But she will also welcome a friendly amendment proposing model 3, under which most of the staff currently being employed by the NST would be transferred to an external body, but not those employed by dioceses and cathedrals.
The Synod paper notes that, “a number of members of the Response Group, including professional experts in safeguarding, do not support model 4”. Concern has been voiced that this is “an untested model which presents an unacceptably high level of risk on the basis that it is impossible to assess with confidence the likelihood of benefits outweighing the significant relational, personnel, governance and financial costs of a complicated and lengthy transition process and external line management of a core function.” One diocesan safeguarding adviser wrote: “There would be more fear and anxiety around getting something wrong in safeguarding among parishes if there were an external body they had no relationship with.”
Proponents of the model argue that an external body would bring consistency of practice and have “the stature and infrastructure to challenge passivity and implement practice to the required standards consistently in all settings”. One General Synod member observed: “Forty-two different cultures and structures is crazy.”
In a letter to all diocesan bishops, on Friday, the chief executive of the Charity Commission, David Holdsworth, asks whether there are any legal impediments which would prevent Diocesan Boards of Finance from fulfilling their safeguarding duties at charity trustees.
“The Commission remains keen to understand whether, following any changes made or agreed by Synod, there are any remaining structural, procedural or constitutional arrangements under ecclesiastical law that you consider conflict with, or prevent you and your co-trustees from fulfilling, your safeguarding duties as charity trustees,” he writes.
His letter asks for a response by the end of March.
Mr Holdsworth refers to his previous letter sent to General Synod members, last week, in which he said that “the time for review has passed, and now is the time for action” on safeguarding in the Church (News, 24 January). He reminded members of their “duty to take reasonable steps to protect from harm people who come into contact” with a charity of which they are a trustee.