• Full Report
• Video
• Legal Advice, Bates Wells Braithwaite LLP

The recommendations within Professor Jay’s report are underpinned by 35 pages of legal advice authored by Bates Wells Braithwaite LLP, above. This advice sets out how new safeguarding arrangements proposed in the report can best be achieved. It also sets out how a new law might look which would create the two key new duties on everyone in the Church:

1. to refer all safeguarding matters to these independent bodies and
2. to implement all the decisions to these bodies.

Extracts from the Jay Report and Recommendations

Trust and Confidence

“3. There are conflicts of interest in several aspects of safeguarding, which are not openly acknowledged or addressed in policy, procedures or practice. This serves to further undermine the trust of many of those who need to engage with Church safeguarding.

4. Safeguarding within the Church is flawed and cannot be sufficiently improved whilst it remains within Church oversight. It needs to fundamentally change in order to restore the confidence of victims, survivors and others, including clergy. This can only be achieved by being delivered by a fully independent body.”

Faith issues

“16. We heard many firmly-held views that being a Christian should be a prerequisite for the appointment of a safeguarding professional in the Church. We do not agree. The only criteria for selection should be relevant qualifications, experience and evidence of high professional standards.

17. We also heard frequent references to the need for safeguarding in the Church to be rooted in theology or scripture. As a basis for decision-making on allegations or concerns about child and adult protection, this is inappropriate and does not reflect statutory guidance.

18. Some people believed that independent safeguarding would mean that the Church and its institutions would see no need to take any further responsibility for children and vulnerable adults with whom they come into contact. We find that surprising, given the express moral purpose and duty of the Church for the protection of these groups. The Church will not be absolved of its responsibilities to identify and report any concerns about safeguarding to an independent body. Indeed, it could use the opportunity to voluntarily introduce its own form of Mandatory Reporting, ahead of legislation.”

Recommendations

1. The General Synod of the Church of England should pass a Measure, with Parliamentary approval and Royal Assent, to create two overarching statutory duties which will apply to the Church of England as an institution, members of any council, synod or body and to all personnel, ordained or lay, remunerated or voluntary. The duties will comprise: (a). a duty to refer all safeguarding matters to the Independent bodies. (b). a duty to implement all the decisions of those independent bodies.

2. The Church of England should appoint an Independent organisation to oversee the establishment of a new fully independent charitable body (organisation A) for the delivery of the safeguarding operations of the Church of England. Scrutiny of Church safeguarding should also be made fully independent, either by the establishment of a new independent charitable body or by an existing independent charity. Structural separation is essential to provide fully independent safeguarding.

3. The Church of England should appoint an independent human resources organisation to assist in the establishment of the new organisations and to ensure that there is full consideration of the transfer, where appropriate, to those organisations of staff currently employed by the Church in safeguarding positions.

4. Any complaint, concern or enquiry regarding safeguarding shall be referred to organisation A at the first available opportunity.

5. Any safeguarding recommendation made by organisation A or B shall be implemented and carried into effect by the person or body to whom it is directed within the timescale prescribed.

6. The following shall be deemed to constitute misconduct for the purposes of section 8 of the Clergy Discipline Measure 2003: (a). failure or delay in referring any complaint, concern or enquiry to organisation A or B under (4) above; (b). failure to follow any code of practice or any safeguarding recommendation made by organisations A or B under (5) above.

7. The Church of England should agree a separate grant agreement with organisations A and B that provides for the payment of a grant to both organisations to ensure that they are able to fulfil their functions effectively.

8. The Church of. England should agree to a review of the grant agreement within six months to a year and as necessary thereafter to ensure that organisations A and B have the resources necessary to fulfil their functions. This is essential given the difficulty in accurately estimating, at the outset, the funds that will be required.

9. To ensure that the role of organisations A and B is clear and consistent, the definition of child and adult safeguarding must comply with the statutory definitions.

10. Organisations A and B should use the guidance relating to emotional and psychological abuse pertaining to vulnerable adults and children rather than spiritual abuse in all guidance and training and to determine cases referred under the measure in (1) above.

11. An independent appointments panel should be established to appoint the first board of trustees, including the Chairs of organisations A and B.

12. Independent legal advice, separate from established church legal advisors, should be appointed to provide legal support during the establishment of organisations A and B.

13, Organisations A and B should secure independent legal advice separate from Church legal advisors once established.