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This paper is the first in a series to be published on the Sports Law Bulletin following presentations made at Blackstone Chambers’ Integrity in Sport – the Battleground seminar on 30th March 2017.
1. When the Hon. Michael Beloff QC first published Sports Law in 1999 the only reference to “children” in the index was to the coaching of children, in the context of the duty of coaches in common law negligence.
2. By 2000 there were two references to “child abuse” in the index to the third edition of Sport and the Law by Edward Grayson, one of them to the introduction in which he wrote (after identifying then recent “explosive drugs cocktails” and “potentially bubbling sporting legal volcanoes”):
“the greatest potential danger stems not so much from drugs as the insidious risks from child and sexual abuse available to sports coaches working in the closest possible physical relationship with vulnerable younger participants.”[i]
3. The other reference was to the source of this “sombre warning” namely, an article published in the Journal of the British Association of Sports Medicine in 1999 alerting sports medical practitioners to consider concealed signs of potential child abuse from physical education and coaching sources in loco parentis to their charges.[ii] This article had been written in the context of the conviction of Paul Hickson, the former Olympic swimming coach, in 1995 for raping two teenage swimmers and indecently assaulting others over a fifteen year period.
4. Around a decade later the landscape was rather different. The issue of child protection in sport took up nearly half of the chapter on Player’s Rights in the second edition of Sports Law in 2012,[iii] and an entire chapter on child protection had been introduced into the second edition of Sport: Law and Practice (Lewis and Taylor).[iv]
5. A number of key events had occurred in the meantime.
5.1. In October 1999 a National Child Protection in Sport Task Force was launched by Sport England
5.2. In 2001 Celia Brackenridge published Spoilsports: Understanding and Preventing Sexual Exploitation in Sport;
5.3. In 2001 the Child Protection in Sport Unit (CPSU) was established by the NSPCC and Sport England;
5.4. In 2003 the CPSU published the first version of “Standards for Safeguarding and Protecting Children in Sport”;
5.5. In 2006 Sport England (and the other Home Countries Sports Councils) revised the Guidelines for the Recognition of a Governing Body of Sport to provide that a successful application would be expected to fulfill, amongst other criteria, an appropriate constitution and statement on child protection;[v]
5.6. Sport England had made it a condition of receiving funding that where an applicant’s activities involve children the applicant must used its best endeavours to implement the CPSU Standards.
6. It therefore took roughly a decade after Hickson for any obligation to be imposed on sports national governing bodies (NGBs) (albeit indirectly via Sport England’s funding mechanism) in respect of child protection policies.
7. So as criminal records checks (first introduced in 1997) are concerned, whilst it has been mandatory for certain types of public sector employers (such as those in the sphere of healthcare) to carry out a criminal records check via the Disclosure and Barring Service, sport has never been specified in that way. Accordingly, whilst it was open to an NGB to apply for a criminal records check of a person working or volunteering in that sport (provided that the relevant statutory criteria were met, in this context, being the assessment of the suitability of that person to work with children) there was no obligation on it to do so.
8. That position was changed by the introduction of the concept of “regulated activity” under the Safeguarding of Vulnerable Groups Act 2006, as amended by the Protection of Freedoms Act 2012.[vi] As a result, where an individual is engaged in regulated activity for or with any organisation, that organisation is required to refer the individual to the Disclosure and Barring Service (DBS) if it removes them from a regulated activity because they may have caused, or may cause, harm to a child or an adult at risk, and it is an offence to allow an individual to engage in regulated activity where that person knows or believes the individual to be barred from that activity (such that there is an onus on the organisation to apply for a criminal records check including as to whether the individual is barred).
9. Whilst these provisions apply equally to the sporting sector as any other, the position of NGBs and sporting organisations remains markedly different to other organisations in the social welfare or educational field.[vii] In particular,
9.1. NGBs are not under any duty to investigate if they are informed that a child may be at risk (cf. the duty on local authorities under s.47 of the Children Act 1989);
9.2. There is no express statutory requirement for a criminal records check in respect of specified categories of persons in sport (cf. the position of governors of a maintained school, despite them not being involved in regulated activity as defined); and
9.3. There is no prohibition on consensual sexual relationships between a coach and an athlete aged 16 or 17 (cf. the position between an adult in a position of trust and a child which is criminalised by the Sexual Offences Act 2003 in the context of educational establishments, hospitals, residential accommodation etc.).
10. As ever, the question remains, do DBS checks lull organisations into a false sense of security if the check reveals no convictions, cautions or ‘soft intelligence’ information, or are they actually effective in preventing those who are potentially harmful working with children in sport, either by disclosing relevant information or putting a person with relevant information on his record off from applying in the first place?
11. The difficulty in answering this question is highlighted by the recent allegations of child sexual abuse in football.
12. In January 2017 Operation Hydrant disclosed that it had received 1,016 referrals of non-recent child sexual abuse, 614 of which had come from the NSPCC helpline set up shortly after Andy Woodward spoke publicly of abuse by Barry Bennell. The ‘vast majority’ related to football, although 22 had been made from sports including rugby, gymnastics, martial arts, tennis, wrestling, golf, sailing, athletics, cricket and swimming. The indicative number of victims was put at 526 (97% male) and 184 potential suspects had been identified.
13. What these figures don’t, of course, reveal is how many allegations have been made, whether to the NSPCC helpline or individual police forces, of ‘current’ child sexual abuse. The fact that there has not been any reporting of such allegations might suggest that there have been few or any.
14. Certainly, the response of the Department for Culture, Media and Sport has been to focus on the past. In November 2016 it wrote to Chief Executives of NGBs funded through Sport England asking them to look into their practices with regard to the safeguarding of children and young people. Whilst this was described as relating to the past and present, it asked specifically for NGBs to look into:
14.1. Whether there are any historic allegations of abuse that would merit investigation or reinvestigation;
14.2. Whether it has in place processes for managing allegations of historic sexual abuse in its sport;
14.3. Whether its current processes for safeguarding children and young people are as robust as possible.
15. However, if it is right that few if any allegations have been made of ‘current’ child sexual abuse, notwithstanding the extensive recent publicity and exposure of the subject of child sexual abuse in sport, this would be inconsistent with the trend at a national, non-sectorial, level.
16. In 2015 an analysis of Freedom of Information requests to police forces in England and Wales showed that the number of offences of child sexual abuse had increased from 5,557 in 2011 to 8,892 in 2014, an increase of 60%. Over the same period arrests for child sexual abuse offences fell from 3,511 to 3,208, a drop of 9%. Although the Office of National Statistics noted that the general increase in reported sexual offences had been partly due to the effect of Operation Yewtree (launched in 2012),[viii] it also stated that historic offences were making a substantially smaller contribution to the overall rise, and that offences in the preceding 12 months had accounted for 78% of the increase in that year.
17. Against that background, it would be highly significant if there have indeed been few if any allegations of ‘current’ child sexual abuse in sport made in recent months. Could it be claimed that this is because sport has made so many improvements in recent years that it is effectively ahead of the curve generally?[ix]
18. It’s possible, but seems relatively unlikely. Back in 2001 in Spoilsports Celia Brackridge suggested six reasons why the institution of sport might be more susceptible to incidents of sexual exploitation than other areas of the voluntary sector:
18.1. Sport exhibits hierarchical authority systems;
18.2. Sport demands total obedience and commitment to the commands of the coach;
18.3. Sport has a propensity for isolating athletes from their families, peers and social support systems;
18.4. The ‘body project’ is one of the central features of sport;
18.5. Sport has vast potential for the eroticisation of power relations; an
18.6. Sport is structurally bound to zero-sum outcomes.
19. Those factors clearly have not changed in the intervening years.
20. Moreover, the structure of sporting organisations might be thought to lend itself to perpetrators being able to offend repeatedly. An organisation which has excluded a coach has no way of knowing whether he has moved on to a different sport, and even if it did become aware of that fact might be limited as to what it could properly communicate to the new sport by its data protection obligations. In 2012 the BBC reported the difficulty that sports organisations faced in circumstances where the ISA held information that would not lead to criminal prosecutions – such as details of coaches having sex with 16 year old athletes – and therefore could not be shared with them.
21. Given the number of convictions for child sexual abuse of coaches and others involved in sport in recent years, the particular susceptibility of sport to sexual exploitation as explained by Professor Brackridge, and of course the particular place of sport in the nation’s psyche, all this begs the question: why wasn’t sport included as one of the investigations to be undertaken by the Independent Inquiry on Child Sexual Abuse (IICSA)?
22. Sport would certainly appear to fall within IICSA’s own Criteria for Selection of Investigations, which provides that:
“In selecting situations suitable for investigation, the Panel will apply the following criteria: (a) the situation appears to the panel to involve credible allegations of child sexual abuse in an institutional setting, or by a person who has exploited an official position in order to perpetrate child sexual abuse; (b) institution(s) appears to the panel, on credible evidence, to have facilitated or failed to prevent child sexual abuse, whether through an act, policy or omission; or (c) institution(s) or a person acting in an official capacity, appears to have failed to respond appropriately to allegations of child sexual abuse.”
23. The omission of sport by IICSA is perhaps all the more surprising given that the Australian Royal Commission into Institutional Responses to Child Sexual Abuse identified the institutional responses of football (soccer), tennis and cricket organisations to allegations of child sexual abuse as one of its case studies.
24. Following the flurry of media reports about historic allegations of sexual abuse in football in its report of the internal review published in December 2016 IICSA responded:
“As recent allegations relating to professional football clubs show, no institution or aspect of institutional life should be beyond our reach. I will call upon the Football Association to provide us with all the findings of the review of allegations of non recent child sexual abuse in football which it has announced. We will scrutinise that report when it is available and check whether further action should be taken by the Inquiry. In the meantime, we will monitor the situation closely.”
25. The likelihood of IICSA looking into football, or other sport, in the near future therefore appears very low.
26. In the meantime, the two main areas of development appear likely to be:
26.1. First, an increasing awareness of the difficulty (and undesirability) of separating child sexual abuse in sport from child abuse (including emotional and physical abuse) more generally. This has long been recognised by, for example, the Amateur Swimming Association,[x] but is not currently the focus of either The FA’s inquiry or IICSA (the Terms of Reference of both being limited to child sexual abuse).[xi]
26.2. Secondly, and inevitably, an increasing number of civil claims for compensation for child sexual abuse committed by persons involved in sport. In particular, in line with the approach in other jurisdictions, such claims will increasingly be brought not only against the alleged perpetrator and/or institutions at which he coached, worked or volunteered, but against the national governing body.[xii]
[ii] August 1999: vol 33 No 4, by Rod Jaques and Celia Brackenridge.
[v] The NSPCC estimated that even in mid-1999 (four years after Hickson’s convictions) half of all major governing bodies of sport in receipt of grant aid from Sport England had neither a policy for child protection nor a welfare officer. Such policies as did exist focused very much on the protection of the coach, e.g.:
“Be aware of situations which can be misconstrued or manipulated by others. For example, if the coach or official is alone with a child in the clubhouse, changing rooms or similar place, they are open to the possibility of allegations about their behaviour”
“Be vigilant and aware of how actions can be misinterpreted. For example, adolescents can have emotional feelings towards coaches. Whilst these should not be dismissed and the youngster hurt as a result, neither should they be encourage in any way”
“the presence of others is an insurance against false allegations”
[vi] “regulated activity” is defined, so far as relevant to children, as involving teaching, training, instructing, caring or supervising children or providing advice / guidance on well being, or driving a vehicle only for children, which activity happens frequently (once a week or more) or intensively (four or more days in a 30-day period or overnight) and the individual carrying out the activity is unsupervised.
[vii] This distinction was maintained in the recent Government Consultation on Reporting and acting on child abuse and neglect (July 2016), in which sporting organisations were not included in the category of practitioners or organisations “who undertake activities which bring them into close and frequent contact with children” and to whom a duty to report might be imposed.
[viii] The significance of media exposure was perhaps best demonstrated by the fact that between 2011 and 2014 there was a 577% increase in reporting of child sexual abuse cases in South Yorkshire, reflecting the exposure of abuse in Rotherham.
[ix] Accepting, of course, that the national reporting of child sexual abuse offences would include ‘domestic’ offences, not just those perpetrated within institutions.
[x] See Andy Gray’s description of the ASA’s learning process from child protection to child welfare in Sport: Law and Practice (3rd edn), §§ C4.126 - 4.136.
[xi] It would in principle have been covered by the Historical Institutional Abuse Inquiry in Northern Ireland, which adopted a definition of abuse as “sexual abuse, physical abuse, emotional abuse, neglect or unacceptable practices which were against the interest of the children”, but that inquiry did not consider any sporting institutions.
[xii] See eg. www.dailystar.co.uk/news/latesy -news/567270/FA-sued-sexual-assault-coach-victims-players (FA to be sued for failing to a junior player from abuse perpetrated by a director of a youth football club in Essex), www.thesun.co.uk/news/2222957/woman-suing-uk-athletics-for-failing-to-protect-her-from-a-convicted-paedophile-coach (UKA to be sued (together with the club) for failing to protect her from a club level coach subsequently convicted of indecent assault and child abduction).
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