Giving pupils better access to the legal system will create a blame culture from which only lawyers will gain, says Kevin McAleese
The Royal College of Nursing recently issued a code of practice to nurses about precautions to be taken before touching young children in their care. An out-of-court settlement gave Pounds 30,000 to a man who sued his former school over alleged bullying (TES, November 22). A Sunday newspaper described some impending claims for compensation, all of which were also being legally aided, including a heroin addict and convicted drug-dealer who claimed all his crimes were the result of a car accident, and an adult formerly addicted to butane sniffing who was suing the shopkeeper who sold her lighter refills.
Each case, of course, is different and all the relevant circumstances are not going to be fully set out in a broadsheet Sunday newspaper. The vice-president of the Association of Personal Injury Lawyers, however, says that an increase in litigation is not necessarily a bad thing. It means that there is greater access to justice and lawyers, and people have simply become more aware of their rights. It means that employers, including schools, will take greater care of the people in their control (Sunday Times, November 17).
I would suggest it means more than that. Up and down the country heads are having to contend with a growth in recourse to the law about matters that hitherto were regarded as unfortunate but no one's fault in particular. Have you heard about the parents seeking compensation after their child was injured at a bus-stop 10 miles from the school?
Some heads may take the view that, if they keep their heads down, it won't affect them. I thought that, too, until I met a loss adjuster in connection with an allegedly negligent act by a teacher. I discovered that, even though there was no evidence to support a claim for compensation, the insurer was inclined to offer an out-of-court settlement to the complainant. Why? Because the child had obtained legal aid, and therefore had access to a level of resources that made it potentially very expensive to defend the case through to court. Of course, the loss adjuster said, the head could always use the school budget to support the member of staff, if they wanted to see the case through. For the LEA, however, settlement without prejudice was the cost-effective solution.
Where does that leave any of us running organisations that involve overseeing the safety and welfare of others? Exposed, is the honest answer. And how do we respond? By increasingly bowing to pressure to adopt defensive management strategies. That is, by protecting ourselves with written codes and policies designed to leave no loophole for the potential litigant to find in the subsequent inquiry. And why not, you might respond, because we have to act reasonably in all circumstances.
But when will someone admit that always acting reasonably is difficult, if not impossible, for those left holding the ring? When will it be recognised that exhaustive investigation of every incident is time-consuming and often throws no light on how to solve an immediate problem. Growing numbers of children live in families and neighbourhoods in a tangled network of feuds and disputes that lie just below the surface of many incidents in school.
Discovering that child X hit child Y's elder brother who is going out with the sister of child Z who told child X's friend that X's father was a thief draws a commendably detailed picture of the background to a problem, but does little to solve it in school. How many teachers now investigate an incident, from alleged smoking to deliberate breaking of a window, and discover that something that took a minute for a teenager to do results in hours of phone calls, letters and meetings with irate parents who do not accept the school's version of events?
Many adults, it seems, believe that parents should believe their children in all circumstances and demand that exhaustive proof be provided before any fault is recognised. And when at last it is accepted, the blame will still lie elsewhere, in some failure on the part of the school or other agency to redress a wrong, so that the child had no choice but to act in a particular way. That blame instinct is all too readily fed by the defensive management approach of social services and LEAs to dealing with problems through client liaison officers, case conferences, complaints procedures and the like.
I am fully prepared to admit that heads and staff in a school are busy and overstretched and that, occasionally, their service may be less than perfect. I am equally prepared to recognise that, most of the time, children get away with things because even the most vigilant teacher cannot see everything, or chooses not to make an issue of it.
Equally, when a child is caught, I'm willing to concede that an element of rough justice may be created in reaching time-effective solutions to incidents that need a response by someone, somewhere. I'm also prepared to admit that sometimes those in a position of responsibility abuse their power and act out of malice, stupidity or worse. That is a fallibility to which all human beings, including professionals, are prone.
In their dealings with children, however, I am certain that most teachers draw on an expertise and experience that, most of the time, errs on the side of the generous. Indeed, that generosity of response is the reason why many schools offer growing numbers of teenagers the only stable and supportive environment they have in their lives.
So no, Mr vice-president, the complex lives from which children present themselves to school will not be served by the greater involvement of personal litigation lawyers. Evidence from the United States is all too clear about the growth of a blame culture serviced by lawyers. What will happen is that staff will learn to take fewer risks, spend more valuable time devising codes and procedures, withdraw their generous instincts, cover themselves at all times and, in the end, serve less well the very children whose rights you claim to be protecting.
Kevin McAleese is headteacher of Harrogate Grammar School, North Yorkshire.