Bullied kids face a legal gamble

3rd October 2003 at 01:00
Pupils who say they are bullied by other children or staff can leave themselves open to court actions seeking heavy damages and costs.

Current case law highlights the legal disincentives for young people to come forward, Ranald Lindsay, a Dumfries solicitor, states in the latest publication on bullying produced by the Anti-Bullying Network, the Scottish Executive-backed agency based at Edinburgh University.

Mr Lindsay represents a former Dumfries pupil who claimed in 1996 that he had been struck on the chest by a teacher in an after-hours incident.

Another pupil was a witness. An investigation concluded that the teacher should be dismissed but the local education committee reversed the finding.

The parents of Michael McKinnon then complained to the General Teaching Council for Scotland but the GTC recommended no further action.

Three years later the teacher sued the two boys for defamation and in June last year was awarded pound;5,000 in damages, plus costs. "The court did not believe that one of the boys had been struck and that the teacher had struck any blow," Mr Lindsay says.

The family is appealing to the Court of Session.

In the discussion paper on the obligations of schools and local authorities, Mr Lindsay concludes: "The basis of any policy for tackling bullying is to get it out in the open - for people who have been the subject of bullying to feel that they can report it. "At the moment, this case is a disincentive for doing that. If you report it, you are taking a gamble. You are gambling on your credibility and your credibility being accepted at the end of the day, depending on the nature of the bullying to which you have been subjected. The stakes are very high."

When pressed by the McKinnon family, Nicol Stephen, former deputy education minister, said: "Children who honestly report concerns to an appropriate authority are protected by qualified privilege even if the allegations happen to be untrue and it is only if they make them knowing them to be untrue and are motivated by malice that they might become liable."

The McKinnon case is highlighted by the network to illustrate the grey legal areas around bullying. Andrew Mellor, its manager, said that despite advice to young people to speak out and contact a trusted adult, many were reluctant because they feared adults might act insensitively.

"If a concern about being sued for making a false allegation of bullying or abusive behaviour were to be added to this concern, then we might find fewer problems being brought out into the open," Mr Mellor states.

A one-day conference last year, on which the publication Reasonable Expectations? is based, suggested children might avoid speaking out because of mistrust. Teachers could tell someone and it could get worse. Young people are equally worried about "grassing" or "clyping" and some believe it gets worse if they tell anybody. Some authorities did not have a pupil complaints policy.

Mr Mellor advises that bullying problems will not be solved in the courts and that the only effective response is the school community working together to create an ethos in which bullying and abuse are never tolerated.

"However, it is important that schools and education authorities should have access to information about what can reasonably be expected of them in terms of tackling bullying," he says.

Reasonable Expectations? What are the obligations of local authorities and schools in relation to bullying? A discussion paper is available on www.antibullying.net.

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