Safeguarding with Confidence - Cumberlege Report

4.1 The care of children and the vulnerable are at the forefront of Christ’s teachings and therefore a primary responsibility for all those who act in the name of the Church. It is for this reason, and because of the Church’s position in society, that Lord Nolan through his recommendations set out to make the Church’s practices in the area of child protection an example of excellence for others to follow. In calling for a single set of policies, principles and practices based on the ‘Paramountcy Principle ‘ (which puts the child’s welfare centre stage), the 13 principles of the Government’s Safe from Harm and the Working Together guidelines17, Lord Nolan reinforced the obligation of the Church to work in accordance with civil law and associated guidance.

4.2 He recognised, however, the decisive nature of Canon Law in relation to the governance of the Church and in particular to the relationship between a Bishop and his priest. Whilst Lord Nolan anticipated that for the most part his recommendations would be compatible with Canon Law, where there were any incompatibilities he wrote that he ‘expects and trusts’ the Church to deal with these ‘responsively’.18

4.3 Nowhere have these incompatibilities been more vigorously debated than over the recommendations, national policies – and more significantly the practices – dealing with the Church’s response to allegations of abuse, specifically by priests.19

4.4 As a result, and as we have already commented, a growing lobby of priests believe that measures adopted over the past five years leaves them particularly vulnerable and deprived of their legitimate rights under Canon law. It is argued, too, that the procedures in place lack due process, are unacceptably draconian in their effect and out of line with procedures for responding to similar allegations in other professions so denying priests their rights in accordance with natural justice.

4.5 Much of the concern has centred around Lord Nolan’s recommendation regarding administrative leave, now termed temporary withdrawal from active ministry. In his report Lord Nolan stated that where an allegation of abuse against a cleric has been made it is important that the Church has satisfactory procedures to achieve the withdrawal of the priest or deacon from continuing contact with children. He went on to recommend that “following consultation with social services and the police any priest or deacon should be required to take administrative leave at a location to be determined by the bishop or religious superior.” (Recommendation 66)

4.6 ‘Administrative leave’ in Canon law is a measure that can only be employed in the context of a penal process20 – in other words it is not equivalent to, nor does it carry the neutrality usually associated with, the suspension from duties of a lay person pending an investigation. Moreover, it is argued that the manner in which some priests have been removed from ministry has done much to breach another canon – the right of a cleric to his good name and reputation.21 That it usually involves a cleric leaving his home for lengthy and often indeterminate periods of time only adds to the hardships they face.

4.7 We have received a considerable amount of evidence from priests on this matter and on the process of responding to allegations of abuse more generally. Among the many concerns they raise are the following:

(i) the lack of clear and transparent procedures, replicable across dioceses and religious congregations;

(ii) the lack of legal and canonical representation available as of right to clerics from the point at which an allegation is made known to them;

(iii) the lack of any opportunity for the accused to challenge the evidence placed before Diocesan/Religious Child Protection Commissions;

(iv) the lack of any procedures enabling the accused to seek a review of the recommendation of the Diocesan/ Religious Child Protection Commission (short of an appeal to Rome following the decision of his/her Bishop/Congregational Leader);

(iii) the lack of financial assistance, suitable accommodation and other support whilst temporarily removed from active ministry;

(iv) the manner in which risk assessments are undertaken as a condition of a cleric’s return to active ministry;

(v) the length of time that a cleric can be left ‘in limbo’ pending the outcome of the statutory and Church’s own investigations.

4.8 We have considered the evidence and arguments put to us very carefully. Where an allegation of abuse or risk of abuse is made we can see no grounds for treating clerics any differently to lay people. The importance of removing risk to the child or vulnerable adult and allowing a proper and just investigation to proceed unhindered are just as great. Nor do we dissent from Lord Nolan’s view that, unless an allegation is obviously false or vexatious, the temporary withdrawal of a cleric from active ministry pending the completion of any investigations (whether statutory or the Church’s own) may be necessary to safeguard children and vulnerable adults from further harm or risk of harm. However, any organisation sitting in judgement on one of its own must transact its business openly, fairly and in accordance with the precepts of natural justice. And it must do so with respect and dignity to the accused. For the Church this means proper and full compliance with Canon law. It is our view that the procedures in place for responding to allegations of abuse by priests – particularly at the stage at which Diocesan and Religious Child Protection Commissions are expected to make their recommendations – are not sufficiently clear and robust in this respect. As a consequence, processes have been applied inconsistently and justice for clerics against whom an allegation has been made has become something of a lottery. This is unacceptable.

4.9 In what follows we reassess the procedures for investigating and responding to allegations of abuse of children and vulnerable adults, taking account of the work of the Conference of Bishops’ Working Party to harmonise Lord Nolan’s report with Canon Law. And we propose a new, review process to bring the procedures into line with standard practice carried out in similar investigative situations elsewhere. Our aim is to make them quicker, more efficient, more transparent, consistent with Canon Law and in line with human rights legislation. We recognise, however, that as with Lord Nolan’s recommendations these proposals will remain just proposals and lack the force of any obligatory norms. We shall return later in chapter 7 to the question of seeking ‘recognitio’ from the Holy See for these so that they become part of the particular law of the Church in England and Wales and legally binding.

4.10 But first, by way of context, we set out to demonstrate the different approaches of the family and criminal courts to the welfare of the child, the application of the welfare principle to vulnerable adults, what this means in relation to the ‘presumption of innocence’ and the implications for the Church process in abuse investigations.

The ‘paramountcy principle’ and its implications

4.11 The principle that the welfare of the child is paramount in family court cases is derived from section 1(1) of the Children Act 1989 which states”

‘When a court determines any question with respect to:-
(a) the upbringing of a child
(b) .........
The child’s welfare shall be the court’s paramount consideration.’

The application of this principle in the courts requires that the judge or magistrates, in any family case affecting children, must balance all the relevant considerations relating to the case. In coming to its decision, however, the court is obliged to put the welfare of the child first and the appropriate evidential test in doing so is the civil test – on the balance of probabilities.

4.12 This same principle, making the welfare of the child the paramount consideration, has also been adopted in Government guidance, formerly from the Department of Health and now the Department for Education and Skills. These guidelines are relied upon by local authorities, social workers, the Children and Family Court Advisory and Support Service (CAFCASS) and all those entrusted with the protection of children. Indeed the latest ‘Working Together to Safeguard Children’ guidance22 assumes that all the relevant agencies are applying the ‘paramountcy principle’ and many in the voluntary sector, including other Churches, have done so.

4.13 No comparable statutory principle, however, exists for vulnerable adults though the family courts have a duty to treat their welfare as the first priority in making decisions about them and this is reinforced in the relevant Government guidance relating to them (see, for example, ‘No Secrets’23).

4.14 Nor does the ‘paramountcy principle’ apply in criminal proceedings in which a child may be a victim/complainant, witness or defendant. The police, the Crown Prosecution Service and the criminal courts are obliged, however, to have regard to the welfare of child victims/complainants and other child witnesses and increasingly the criminal courts are applying the same approach to vulnerable adults.

4.15 The rights of an accused person are similarly defined by statute - both in English domestic law and under the European Convention, now part of English law since the Human Rights Act 1998. In criminal proceedings - and only in criminal proceedings - he or she has the right to be deemed innocent unless and until proved guilty to the criminal (highest) standard of proof. Thus, the accused is entitled to the presumption of innocence in any criminal investigation into allegations of abuse of children or vulnerable adults by the police and the Crown Prosecution Service.

4.16 It is important to remember - and this goes to underpin the safeguarding arrangements that Lord Nolan put in place - that both before the passing of the Children Act 1989 and since, there has been a lack of widespread recognition of the extremely damaging and often lasting effect on children of serious abuse. This is true irrespective of the nature of the abuse since child abuse is not limited to sexual acts but includes non-accidental injury, emotional abuse and neglect. The abuse of vulnerable adults, whether physical, sexual, emotional or by neglect similarly remains widely unrecognised.

4.17 Equally, there has been a failure to recognise the insidious and dangerous strategies of paedophiles, the difficulties of treatment and the likelihood of re-offending. The protection of children from abuse and procedures to ensure their safety must therefore continue to remain a major priority.

The child protection process reconsidered

4.18 When allegations of abuse or the risk of abuse are made (unless obviously untrue) side by side with the criminal investigation, if there is one, the crucial requirement is to protect children who may be at risk and that requirement places the welfare of the child as the paramount consideration. It may well be that the protection of the child, and of other children, who may be at risk from the accused requires further investigation outside the criminal legal system even after a not guilty verdict. If so such an investigation will need to take into account facts which might not have been admissible in a criminal trial. But it is important to note that in these circumstances – contrary to the commonly held misconception – the presumption of innocence appropriate to a criminal investigation and trial is not the relevant consideration in the non-criminal context of child protection.

4.19 As a first step, arrangements will need to be made for the protection of the child or children who are at the centre of the allegation as well as for any other children who may also be at risk from the accused. Since most child abuse is perpetrated within the family circle, depending upon the seriousness of the allegations, either the accused or the child will usually leave home. In non-family abuse, unless the family is unable for some reason to protect the child, in most cases the child will remain at home and be protected from the accused until the allegations have been substantiated or dismissed. Consequently, in these circumstances it is the accused who has to be removed from contact with the child. In situations where the allegation of abuse or risk of abuse arises through contact with children in a professional capacity, for example, in schools the accused is likely to be suspended or relieved of his/her duties pending investigation so as to protect other children. Similar considerations would apply where an allegation of abuse is made concerning a vulnerable adult.

4.20 Although the presumption of innocence does not apply where the objective is to assess risks to children (or vulnerable adults), nonetheless the rights of the accused are still protected by the requirements that the investigation must be conducted, and any decisions must be reached, reasonably, fairly and expeditiously, and that there must be a right of review or appeal.

4.21 Having carefully considered the Church’s national policies for responding to allegations of abuse and the many concerns raised about their implementation in practice we set out our thinking about the essential elements of a fair and just process designed to reassure the victim/complainant and safeguard the rights of those against whom an allegation has been made. A summary flowchart of our proposals appears in Figure 3 at the end of this chapter. Much of what we say reinforces and builds on what is already in national policy. We are, however, proposing some fundamental changes to the Church process of investigating allegations as part of any risk assessment and to the Child Protection Commission hearings at which decisions are reached and recommendations are made. We also introduce what we consider to be an essential opportunity for review of the Diocesan / Religious Child Protection Commission’s recommendation. We are greatly encouraged that the Church has already taken cognisance of much that needs to be done through the work of the Conference of Bishops’ Canon Law working party and in preparing its terms and conditions Handbook
for Clergy, a draft of which we have seen. We fully expect that the final version of this document will reflect the relevant recommendations of our report – recommendations that we believe are consistent with the Church’s universal laws. We begin with the following:

Recommendation 40
The Conference of Bishops and Conference of Religious should reaffirm their commitment to a safeguarding agenda in which the welfare of the child is paramount.

Recommendation 41
Bishops and Congregational Leaders and those acting on their behalf should apply the civil standard of proof in the investigation and determination of any matter
relating to the abuse of children and vulnerable adults.

Recommendation 42
The Conference of Bishops and Conference of Religious should give consideration to merging the proposed investigation and review process with their internal disciplinary processes to avoid unnecessary duplication.

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