The scheme was introduced in response to the Soham murders in 2002 and, the recommendation of the resulting Bichard Inquiry that ‘New arrangements should be introduced requiring those who wish to work with children, or vulnerable adults, to be registered’.  The resulting register is maintained by the Independent Safeguarding Authority (ISA)3.  People who wish to work with children or vulnerable adults in 'regulated activities' must apply for ISA registration.  Once the individual concerned has been vetted they will be added to the ISA register and will be subject to ongoing monitoring to confirm that they continue to be suitable to work with children or vulnerable adults. 
 

Individuals will be ‘barred’ if the ISA decides that they are unsuitable to work with these vulnerable groups or they are automatically barred from such work after a conviction or caution for a relevant offence.
 

It is necessary to check the ISA registers before employing someone or allowing them to volunteer in a regulated activity.

 

Anyone providing a 'regulated activity' must be registered with the ISA. Regulated activities include:
 any activity of a specified nature which involves contact with children or vulnerable adults frequently, intensively or overnight;
 any activity which takes place in a specified place (such as schools and care homes) frequently or intensively;
 fostering and childcare; and
 any activity involving people in certain defined  positions of responsibility (such as trustees of children's charities and those of vulnerable adults, or school governors).
 

Some organisations hoped to avoid the administrative burdens of the scheme by preventing their staff and volunteers from being left unsupervised with children or vulnerable adults.  However, if the person is involved in a regulated activity with children/vulnerable adults, the fact they are being supervised is not relevant.

 

Following the Singleton review4, the new rules define frequent or intensive as:
 Frequently: at least once a week.
 Intensively: four days a month or overnight.

 

 

The UK's 11m volunteers will be exempt from the £64 fee which will be charged to register with the ISA.  Applications for an enhanced Criminal Records Bureau (CRB) check including the ISA check may be made on a single CRB application form5.  Forms to make applications to the scheme will be available via the CRB from April 2010 but you will not be able to submit them until 28 June 2010.  Until then, an enhanced CRB check should be made.

 

 

There has been confusion as to the interrelation between the CRB check and ISA registration.
The ISA registration process is not intended to be a replacement for CRB checks; these will continue to be necessary.  CRB checks include a full range of criminal record information which will provide a broader basis on which to assess an individual's suitability.
 

Checking an individual's criminal record will ensure that they are not carrying out a job for which their previous convictions would deem them unsuitable.  For example, a CRB check might reveal that the potential new project manager has a conviction involving dishonesty, where an ISA check alone would only show that she is registered to work with children.

 

 

Once the scheme is up and running, charities and voluntary organisations will have access to a comprehensive online database which will reveal whether or not a specified person is registered.
 

Where a volunteer has to go through the registration process, it is essential that the organisation waits until this is completed before allowing the person to begin any work.

 

 

The ISA promises to be especially stringent with penalties for failing to carry out the appropriate vetting procedures.  As well as the risk of fines, in serious cases charity trustees and relevant staff also risk being imprisoned for non-compliance.  Knowingly permitting a barred individual to work in a regulated activity carries a penalty of up to six months in prison.
Trustees of children's charities and those for vulnerable adults will have to be ISA registered. 
 

There have been instances when trustees are not willing to submit themselves to the scheme. They may view the scheme as an unnecessary invasion of their privacy and fail to see the necessity for them to register with it in their specific role as a trustee.  Where this is the case, a charity should have appropriate provisions in its articles of association for the removal of a trustee to avoid the potential for fines or even imprisonment.

 

 

Your organisation is under a duty to refer any individual to the ISA who has harmed, caused harm, attempted to harm or incited another to harm a child or vulnerable adult. 
Once a referral is made, a comprehensive procedure is instigated which involves the ISA collating information from a variety of organisations including the police and local authorities as well as employers.
 

There is also a duty to make a referral where:
a)  you have dismissed an individual because they  have engaged in any conduct which endangers  a child or vulnerable adult or have involved   the child or vulnerable adult in matters   involving sexual material, sexual or violent   images or sexual conduct; and
b)  you believe that an individual may harm a   child or vulnerable adult or create the risk of   such harm.
It is likely that a significant amount of time will lapse before a decision to bar an individual can be made.  During this time, the individual concerned must be removed from regulated activity.

 

 

It is key to remember that provided the referral is not malicious, there are no consequences for making a referral where your suspicions are incorrectly founded.  However, it is an offence not to make a referral when you had reason to do so.  A prudent approach would, therefore, be to make a referral.  This will then instigate an investigation by the ISA and the individual concerned will not be placed on the barred list until the ISA are satisfied that there is a risk of harm to children or vulnerable adults.  Clearly, it is better for organisations to make a referral where they have any concerns whatsoever, however, this decision will have to be balanced against the impact on the individual where referrals are made incorrectly6.  

 

 

 It would be prudent to identify an individual to take responsibility to ensure that your organisation is familiar with the new duties. The choice of individual should reflect the   serious nature of the duties concerned and the existence of criminal offences.
 Policies and procedures for safeguarding children and vulnerable adults will need to be reviewed to reflect the requirements of the scheme. 
 It may be appropriate to review terms and   conditions of employment.  For example, if a   staff member is barred he or she will need to   be removed from regulated activity.  If there is other suitable work within the organisation and the terms of employment allow the person to transfer, barring in itself may not be   grounds for dismissal. There may be categories of work which are not regulated activity but which the organisation regards as unsuitable for a barred person – and relevant contracts of employment and job descriptions may need to be reviewed.
 Many organisations will need to consider the status of international activity.  For example, if a German children's sports club come to England, the leaders of the sports club will   have a three month exemption from the requirement to register for the work they do with children they have brought to the UK.  Should the club leaders start to work with   children based in this country, they will be required to register with the ISA in the normal way.
 A foreign artist visiting the UK will be required to register if he is in frequent or intensive contact with children or vulnerable adults. The three month exemption will only apply if he is travelling with a group of children from outside the UK.
 

Author: Shivaji Shiva

Shivaji Shiva is head of charities and social enterprise at Michelmores LLP.

Click here for other articles written by Shivaji Shiva

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