Presentation on theme: "Visiting Professor, Institute for Health Research, University of Bedfordshire Visiting Fellow, School of Law, University of Bedfordshire Consultant in."— Presentation transcript:
Visiting Professor, Institute for Health Research, University of Bedfordshire Visiting Fellow, School of Law, University of Bedfordshire Consultant in Child, Adolescent and Family Psychiatry Barrister of the Honourable Society of the Inner Temple, London Family Mediator, UK College of Family Mediators
Laura G An inquest in Bristol heard how Laura (14) had committed suicide by taking an overdose of painkillers after being bullied at school. The 14-year-old girl had planned her own funeral, including leaving a letter to be read aloud - "Don't worry about me, I have gone up above where I really want to be, no bullies, no school, just happiness". The Headmaster said that the school had a very strict policy on bullying, and that Laura had never complained of bullying.
Laura K Laura (13) was found hanging from the rafters in her bedroom at her home after complaining about being bullied at school. Following her death, various school friends said that there was bullying and that Laura had been targeted. Police said that they had found no evidence that Laura had been the victim of a bullying campaign, and that “confrontations with certain children at school” was no more than was usual at school".
Marianne Marianne (15), killed herself after reportedly being bullied. She had also complained to friends that she was regularly subjected to verbal abuse. Marianne was found hanged at her home. The school said it operated a very clear and strict anti-bullying policy, and police said that there was no suggestion she took her own life because of bullying.
Nathan Nathan (12) hanged himself after being tormented by bullies, and police were probing reports that his life was being made a misery by older boys at school. On a website in Nathan’s name, a classmate had written: “I hope the bullies who pushed him to this are happy”. In response, a school governor said that “bullying does not occur any more or less here than in any other school".
Shaun Shaun (14) hanged himself with his school tie after a long period of bullying. Bullies made his life a misery, including being headbutted, thrown into a ditch, having an earring pulled out and being stamped on. In one alleged "happy slapping" incident, a bully launched a flying drop kick into Shaun's back while others filmed the assault on a mobile phone. The school subsequently won a prestigious award for its anti-bullying work.
Anna Marie Anna Marie (15), hanged herself in her bedroom at home a month before her 16th birthday after being bullied at school. Anna Marie had been subjected to systematic verbal and physical abuse by three girls over a period of eight months. The bullies had called her terrible names, and pushed her head through the bars of the school gate. The situation became so bad that the police were involved but the headteacher said that she was unaware of any allegations of bullying.
According to Young Minds, many children get into fights and disagreements from time to time, but the resulting teasing and name-calling is invariably done in a spirit of fun and playfulness. However, when this kind of behaviour becomes persistent and threatening, singling out children who cannot stand up for themselves, then bullying can become a major problem for all concerned
Unfortunately, bullying is not easy to define and there are many definitions of bullying behaviour The Department for Education and Skills (DfES) considers bullying to be conduct which is deliberately hurtful, repeated often over a period of time and difficult for victims to defend themselves against
According to the DfES, there are three types of bullying: physical bullying such as kicking, hitting and theft; verbal bullying such as name-calling, offensive comments or racist remarks; and indirect bulling such as spreading malicious rumours, telling nasty stories about someone or excluding peers from social groups.
Broadly speaking, bullying may include the following types of behaviour: name calling and teasing swearing taunting and mocking offensive comments malicious gossip Stealing physical violence sexual innuendo sexual assault making threats coercion extortion Stalking defacing of property ignoring peers isolating peers from group activities
In 1997, 10-20% of young people were described as having experienced general bullying, rising to 30-50% among secondary school pupils who were attracted to the same sex A MORI survey published in 2000 revealed that one in three secondary school pupils in England and Wales experienced bullying. One in four had been threatened with violence, whilst one in eight had been physically assaulted. One in ten pupils said that they had missed school for fear of violence. Research in 2003 by the Department for Education and Skills showed that 51% of Year 5 pupils had been bullied, and that over half of both primary and secondary school pupils thought that bullying was a problem in their school
A four-year study of more than 11,000 children published in 2006 found that nearly 15% of those surveyed had received nasty or aggressive messages, more than 10% of UK teenagers said they had been bullied online, 24% knew of a victim of online bullying, 44% of respondents knew or had been threatened via or instant messaging services, around 33% knew of instances where bullies hacked into accounts and sent embarrassing material from them and 62% had heard rumours or malicious gossip spread online.
The 2006 National Bullying Survey found that 69% of the 4,772 children studied had been bullied, with 33% of parents surveyed expressing fear that their child may be suicidal because of bullying. This survey was conducted by the charity Bullying UK, which chillingly concluded that its evidence indicated that this problem is getting worse.
Courts have uniformly refused to outline exactly what constitutes school bullying, stressing instead that ‘there is no magic in the term’ itself”. This proves problematic as identifying what behaviour constitutes bullying is essential, since liability will only be imposed where a wrong of a legally recognised and definable nature has been committed.
In Mulvey v McDonagh, the Irish High Court adopted guidelines to Irish primary schools which described bullying as “repeated aggression, verbal, psychological or physical conducted by an individual or a group against others” In England, Bradford-Smart v West Sussex County Council held that “uncouth behaviour … of a targeted and persistent nature” was required In Scotland, bullying has been described as “a pernicious phenomenon, often involving … criminal assaults by the bullies on their victims”
Although the definitions are not consistent, the words “deliberate”, “persistent” and “severe” recur. Where courts have been persuaded that behaviour can be described in this way, they have normally been satisfied that bullying has taken place
It is essential to recognise that schools and their occupants, just like all other people and institutions, are subject to the law of the land Equally, before bullies can be punished, there must be a clear case against them At present, In the United Kingdom, there are no focused statutes or specific laws which relate directly and exclusively to bullying in schools. Instead, any legal anti-bullying action has to be undertaken within the umbrella of other, often only marginally relevant, statutes.
Telecommunications Act 1984 Making repeat offensive postings on an internet message board, or inviting others to do so, would constitute breaking of the law under the Telecommunications Act Public Order Act 1986 It is against the law to make someone feel distressed, alarmed or harassed, and some forms of bullying may therefore amount to criminal behaviour. Where a child has been threatened, and caused to fear immediate violence, the bully may have committed an offence under s4 of the Public Order Act 1986.
Children Act 1989 All state schools have a duty to ensure the safety, and to protect the emotional well-being, of every person in its care. If a young person is being harassed or abused, the school must take action to protect them. This duty of care is the same for all. Disability Discrimination Act 1995 Any discrimination is against the law, and this law serves to protect the rights of people with a disability. The Disability Discrimination Act was updated in 2005 to tackle hate crime against people with learning disabilities, and to promote disability equality on all public bodies.
Education Act 1996 s19 of the Education Act 1996 clarifies that suitable education in relation to a child or young person means efficient education suitable to their age, ability, aptitude and any special educational needs they may have. Protection from Harassment Act 1997 This Act contains two criminal offences which may apply in cases of bullying: the offence of harassment; and the offence of putting people in fear of violence. Making offensive postings on an internet message board, or inviting others to do so, could also constitute breaking the law. However, criminal prosecution cannot proceed unless the harassment has taken place on at least two separate occasions.
Crime and Disorder Act 1998 The victim, if being frightened or upset by someone, can ask the police or the council for help. They, in turn, can ask the court to stop the person’s adverse behaviour using an Anti-Social Behaviour Order (ASBO). Youth Justice and Criminal Evidence Act 1999 This Act makes it easier for victims of bullying to be a witness in court, including the use of videos to record evidence if going to court in person proves too difficult.
Race Relations (Amendment) Act (2000) Schools are under a statutory duty to work towards the elimination of racial discrimination, and to promote good race relations. Any failure on the part of a school to deal with bullying which involves a racial element could be a potential breach of the Act. Education Act 2002 Schools have a statutory duty to provide opportunities for all pupils to learn and achieve, whilst promoting their spiritual, moral, cultural, mental and physical development. Under s175, schools and LEAs are under a legal duty to safeguard and promote the welfare of children who are pupils at the school. They must take all reasonable measures to ensure that risks of harm to children’s welfare are minimised, and take all appropriate action to address concerns about the welfare of children.
Education and Inspections Act 2006 The Act puts a legal duty on schools to make provisions to tackle all forms of bullying. It also gives teachers clear guidelines on how to combat disruptive behaviour and bullying, and the legal right to confiscate personal property if it is being used in a malicious or disruptive way. The act is geared towards supporting teachers, and tackling the rising problem of cyber-bullying.
European law The Human Rights Act 1998 came into force on 2 October 2000, and incorporated into United Kingdom law the European Convention for the Protection of Human Rights and Fundamental Freedoms. No one shall be subjected to torture or to inhuman or degrading treatment or punishment (Article 3) and everyone has the right of respect for his private and family life, his home and his correspondence (Article 8).
Negligence The prevention of bullying among pupils is within a teacher’s ordinary duty of care, under both statute and common law. However, the standard of care generally expected of a teacher is that of a reasonably prudent parent of a rather large family. Schools are not therefore legally required to guarantee the absolute safety of children.
Breach of contract In regard to children who attend fee-paying schools, parents can be considered to have entered into a contract with the school on behalf of their child. A school which failed to provide such an environment could be sued for breach of contract in the civil courts. Defamation If the bullying is done by spreading rumours, starting gossip, telling lies or in some cases, name calling, the bully and all those who spread the stories could be sued for defamation. This is part of the civil law and has been developed over the years to protect the reputations of innocent people.
Criminal assault and trespass to the person As bullying only infrequently manifests itself in serious physical abuse, it is not usually covered by the criminal law of assault. However, anytime a bully hits, attempts to hit or threatens to hit anyone, that bully may be committing the crime of assault.
To date, there is only a diminutive collection of negligence decisions within the United Kingdom concerning school bullying, and it remains an area where legal precedent is already disappointing. Although UK courts have indicated that they are by no means adverse to the possibility of a successful future claim, no UK claimant has yet succeeded and the ongoing dearth of case law will continue to thwart clarification of outstanding legal issues.
It is evident that courts in the United Kingdom have been reluctant to find schools negligent when they fail to protect pupils from bullying. Problems arise as there is no legal definition of bullying. Equally, there is no clarity in law as to how far a school must go to protect a pupil against bullying, especially outside of school premises.
At present, determination of legal liability in school bullying cases raises issues of almost insoluble complexity. There is no prospect of success unless there is ample evidence of physical or mental harm, backed up with letters to and from the school and comprehensive medical reports.
All legal action relating to bullying is also extremely expensive, even if children qualify for Legal Services Commission funding. Without it, such actions can be extremely costly, especially if cases are appealed or referred on for European rulings. Even if damages are awarded, they will not be high and the bully, particularly if a younger child, may not be in a position to pay anything anyway.
In theory, bullying in schools can be legally tackled using an array of statutes, European laws and common law precedents. However, in reality, the laws and procedures for dealing with bullying in schools are actually very weak, and parents really have few effective legal remedies available if schools fail to implement bullying policies or protect their pupils.
Effective anti-bullying laws should cover the following points: The word "bullying" must be used in the text of the statute The law must clearly be an anti-bullying law, not a school safety law There must be definitions of bullying and harassment as defining the problem is the key to solving the problem There should not be any major emphasis on defining victims There should be recommendations about how to make policy, and what needs to be in the model policy. A good law will involve education specialists at all levels A good law will mandate anti-bullying programs, not suggests programs There must be protection against reprisal, retaliation or false accusations There must be accountability to lawmakers