Mark Sedwill evidence to HASC - 1

There's a lot of educating of the Home Office still needed if they are going to start to understand what really needs to be done about a transparent process for the child sex abuse inquiry.

Mark Sedwill, Permanent Secretary at the Home Office gave evidence to the Home Affairs Select Committee last week, and a substantial proportion of the questions were about the inquiry. It's worth going through the questions and answers one by one.

Q1   Chair: May I welcome the Permanent Secretary at the Home Office, Mark Sedwill? This is part of the Committee’s normal scrutiny of the work of the Permanent Secretary. Mr Sedwill, could I start with the child abuse inquiry, which seems to be rather leaderless at this moment? You have had two chairs who have subsequently resigned. We know that the panel is meeting at various different locations as we speak, but why is it that so many people are so reluctant to take the chair of this inquiry?

Mark Sedwill: Mr Chairman, thank you. As you say, we have lost two chairs, and I should put on the record again—as I think you have—that Elizabeth Butler-Sloss and Fiona Woolf are both people of the highest integrity who would have done a creditable job but, for reasons I am sure you will want to discuss, it was not possible to pursue them. I do not think there is a lack of people willing to do it. Indeed, as the Home Secretary is discussing the forward plan for the panel with the various survivors’ groups that she is meeting—I believe she still has several of those meetings to go—we have suggestions of 100 names. We will have to work our way through all those, but there is quite a number of suggestions at least of people who might be appropriate to do this.

With this answer, Sedwill appears to be suggesting that if it weren't for all these awkward survivors, both Butler-Sloss and Woolf would have done a fine job. Section 9 of the Inquiries Act 2005 makes specific requirements concerning impartiality, and both clearly failed. Even though the inquiry is still currently non-statutory and so the Act doesn't strictly apply, Theresa May has said in parliament that the inquiry will be converted to a statutory inquiry under the 2005 Act if the chair requests. Even if that wasn't so, there is a common law duty to ensure a reasonable degree of impartiality even for non-statutory inquiries, and the 2005 Act gives a handy standard to apply.

It was the Home Office which failed to do its research properly for both Butler-Sloss and Woolf. both were clearly unsuitable by the standards of the 2005 Act and this should have been discovered by the Home Office before they appointed, not by survivors afterwards.

Q2   Chair: Sure, but you were brought in when you were appointed—you have been there now for a year and a half—as the safe pair of hands, the new broom in the Home Office, but here we have a situation where the Home Secretary has been left dangerously exposed, both in Parliament and outside, with a lot of criticism over the way in which the due diligence was carried out. This is not something Ministers should do. This is something for your officials, and therefore you are responsible as head of the Home Office. Why wasn’t that proper due diligence carried out in both these cases before these names were put to Theresa May?

Mark Sedwill: Mr Chairman, I think proper due diligence was carried out. What we had not understood—and I certainly accept I had not appreciated—was that the threshold that we were setting was probably different for this inquiry from that for any other. If I can just talk briefly about the due diligence, this is done rather like security vetting. Checks are done on people’s professional associations—are they on the board of anything that has an association with anyone who might be the subject of the work of the panel? There is a widespread search across the internet and so on. But in the end we rely on individual panel members themselves to identify whether in particular they have any social or personal connections that might either be a real or perceived conflict of interest, because there is no way of—

Q3   Chair: You are saying it was not your fault and the fault of your—

Mark Sedwill: No, I am not saying that, Mr Chairman.

              Chair: But do you accept any responsibility?

              Mark Sedwill: Yes, I do.

It is absolute rubbish that "the threshold that we were setting was probably different for this inquiry from that for any other". The threshold is the impartiality requirement of the Inquiries Act, which the Home Office legal advisers must surely have been able to tell him.

Q4   Chair: Would you like now basically to apologise for the fact that this was not carried out in the way that it should have been?

Mark Sedwill: If I can just finish the point, Mr Chairman, I think we worked to carry out the due diligence in a thoroughly professional way. What we had not appreciated—and I entirely accept this, I must bear responsibility for this as well—was that the threshold we were setting was the threshold set in the Inquiries Act as to whether there is a real or perceived conflict of interest that might in some way undermine the credibility of the panel. This particular inquiry is on such a sensitive issue and the scale, scope and complexity of the work is extraordinary. We had not appreciated that the threshold, as Fiona Woolf herself said, as the Home Secretary said, was in a different place. It needed to be that the chair of the panel could command and can command the confidence of survivors and their representatives.

No, the threshold is in the same place as for other inquiries. The "confidence of survivors and their representatives" Sedwill refers to was lost specifically because both chairs clearly failed to meet the criteria of Section 9 of the Inquiries Act. The sensitivity of the inquiry simply meant that the Home Office needed to be extra sure that it had done its due diligence properly, because the appointment would inevitably come under significant outside scrutiny after it had been announced. They didn't, and two resignations were the inevitable result.

Q5   Chair: But that is a basic failing over the way in which this matter was handled and it has left the whole inquiry in a bit of a mess. This is something that should have been done right at the start, surely. Knowing the problems, you should have sat down with your senior officials and worked out a process of due diligence that would allow the person selected to be the subject of the greatest possible scrutiny. You now accept that that was not carried out. Leaving the threshold aside, this is a judgment that you have failed to make.

Mark Sedwill: Mr Chairman, I am afraid you are trying to make this an issue that it is not. We were applying the tests set out in the Inquiries Act, which we felt was a reasonable way to proceed. We were relying on information that our officials can gather separately and information that the individuals, all the panel members themselves, declare, including their social and personal connections, and we made a judgment on the basis of that. It became apparent that that threshold, as I say, was not appropriate to this particular inquiry. Maybe we could have anticipated that at the beginning.

Sedwill, although he's being a bit unspecific about this, appears to be saying that the fact that Butler-Sloss's brother was attorney-general at the time when it appears that cover ups were happening is not an impediment under Section 9 of the Act. Here is Section 9, let's look at exactly what it says.

9 Requirement of impartiality

(1) The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a) a direct interest in the matters to which the inquiry relates, or

(b) a close association with an interested party,

unless, despite the person's interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.

(2) Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

(3) If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.

(4) A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.

It seems to me a straightforward matter of fact that even though Michael Havers is dead, he qualifies as an "interested party" and that Butler-Sloss being his sister definitely counts as a "close association". With an inquiry as sensitive as this, you are very careful not to rely on the belief that the "appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel". So the appointment should have been ruled out because of section 9(1)(b).

As for Fiona Woolf, while her connection with Brittan is not as close as that of Butler-Sloss with Havers, Brittan is still alive and it is reasonable to think that he will be called to give evidence, possibly (if the inquiry is converted to a statutory inquiry) having to give evidence under oath. Were she a judge in a case where Brittan was going to be a witness, she would definitely have had to recuse herself. There's no reason to expect a lower standard of the inquiry.

Q6   Chair: You adopted the wrong threshold?

Mark Sedwill: We adopted the threshold of the Inquiries Act, Mr Chairman. In retrospect, I entirely accept we had not realised that the threshold for this particular inquiry is different, but I do not think it is unreasonable to have adopted the threshold set out in the Act of Parliament for inquiries of this kind. I am sorry. I repeat what the Home Secretary said in the House, I am sorry that we are in the situation we are in. When I was last before you, we were talking about the first chair of this inquiry being able to get the inquiry moving promptly, and of course inevitably this has caused a delay and that has caused a great deal of stress to survivors and their representatives. We are now trying to put that right.

If Sedwill thinks that either Butler-Sloss or Woolf were OK by the standards of the 2005 Act, then he's either incompetent or has been appallingly badly advised.

I'll go through the rest of the HASC questions in subsequent blogs.

Some survivors withdraw from co-operation with child abuse inquiry

There's an open letter from some survivors and others withdrawing from co-operation with the Child Abuse Inquiry unless certain changes are made to it. Its been on Sky News this evening.

There are a few things that can be said about this development. The first is that I'm not in the least surprised that it's happened. I warned about the likelihood of this in my article in the Guardian a month ago. I pointed out the following

The home secretary Theresa May’s conduct in setting up the inquiry falls far short of building the trust necessary to gain the confidence of these extremely and justifiably mistrustful people. It is clear from her statement in parliament on Monday that she isn’t close to understanding how much transparency is really needed.

And in the subsequent paragraphs I described in detail the likely effect on many survivors of the shambles that has unfolded so far. I ended with this.

What would happen if they held an inquiry and no one came? We’re dangerously close to finding out.

We aren't there yet. The signatories of the open letter represent relatively few survivors, and don't include the main organisations which provide support to survivors such as the Survivors' Trust. But this is a sign that we are getting closer. Each passing day where the inquiry, its powers and its terms or reference remain manifestly unfit for purpose brings the time closer where even if the present problems were to be fixed, too much trust will have been lost for most survivors to be willing to engage.

That would be a great pity. While there may be people who doubt the Home Secretary's sincerity when she said today that "we have a once-in-a-lifetime opportunity to get to the bottom of this issue", the fact is that she is objectively correct in that statement. The problem is that if the delays in getting it right persist, then that opportunity may be lost.

The open letter's demands are that the Home Secretary:

• announce the scrapping of the current panel and its replacement on a transparent basis
• declare a statutory inquiry
• announce that the TOR will focus on:

1. Organised & Institutional Abuse – hearing evidence from survivors of such abuse 
2. Extending the cut-off date to 1945 and linking with Inquiries in other parts of the UK 
3. Setting up a dedicated police team at the National Crime Agency to take evidence alongside the inquiry to investigate and prosecute offenders 
4. Holding those that have failed in their professional duty or covered up allegations or been obstructive to account.

I have a good deal of sympathy with those demands. I have previously pointed out that the non-transparent approach to selecting the panel and its chairs has been a shambles which resulted in the resignation of Butler-Sloss and Woolf. If a new and better procedure for selecting their replacement as chair is justified (as has been conceded by Theresa May) then the entire panel should be selected by the same method. That doesn't mean that none of the panel members would be re-appointed. But we need to get the proper transparency into the process so that the survivors especially will have trust in those who they will eventually be giving evidence to.

The inquiry of course must be statutory. There's hardly any point in talking about anything else unless and until that is done. Just imagine a phone call made by a member of the panel to the headteacher some independent school where we know abuse has happened.

Panel Member: Ah, headteacher. I wonder if you would be willing to come and give evidence to the child abuse inquiry, since we know that abuse has happened at your school in the past.
Head Teacher: What do you have in mind?
PM: Well, we would like you to describe how and why you covered up abuse at the time. We would like to know if you are aware of any more abusers at your school past or present who the police haven't yet learned of, and how you have been able to keep it from them. And we would like you to bring along all the documents you have that are relevant to this.
HT: Why would I want to do that?
PM: In order to help prevent such cover ups in future.
HT: I think I have better things to do with my time.
PM: Is that a no?
HT: Precisely. Goodbye.

For as long as this remains a panel inquiry, there is absolutely nothing that anybody on the panel can do about the headteacher's refusal to co-operate. The Salesian order (which ran the school at which the panel member Graham Wilmer was abused) issued a statement. “The Salesians will of course cooperate fully with the forthcoming government inquiry if they are required to do so” (my emphasis). They have in as many words stated that this is pretty much how such a conversation would go if they were to be called to give evidence to a non-statutory inquiry.

As for the Terms of Reference, there are some good points in what is being asked for, and some perhaps more debatable ones. The good points are that it should certainly extend back to the limits of living memory - 1945 is as convenient a date as any for the purpose. The inquiry should also be able to cover the whole country, though whether this is better done by linking to other inquiries or by direct extension of the inquiry's geographical scope is something which can be discussed.

I'm a little less sure about the phrase "Organised & Institutional Abuse". The good part of it is that this does not limit the inquiry only to sexual abuse (which is how things stand at present), because where sexual abuse is present, other forms of abuse are often associated. The less good part of this is that in my opinion we need to be looking at institutional responses to evidence of child abuse, wherever that evidence has come from and whatever forms the abuse has taken.

Does "organised" abuse mean a gang of 5 or more? 4? 3? If the authorities have habitually failed abuse victims when evidence of the abuse came to light, does it really matter whether the abuse was organised or not? Is there anything different that the authorities need to do to protect victims depending on whether the abuse was "organised"? In detail, probably yes, but in general principles no. A young girl who has been raped needs much the same support irrespective of whether she was raped by one or more people.

The dedicated police team in parallel with the inquiry isn't strictly part of the ToR of the inquiry itself, but this or something like it may well be needed. The inquiry isn't going to be making criminal investigations. It has always been clear that evidence that might lead to abusers being prosecuted would be passed on to the police. Some single point of contact between the inquiry and police for this purpose is probably a good idea.

And of course we want to see those responsible for having participated in cover ups to be held to account. However, we might have to accept that this in many cases will consist of nothing more than "naming and shaming", because it isn't a crime to fail to report a crime, and so those involved in the cover up of abuse may well have committed no crime. Just today, the CPS has announced that there will be no prosecutions of anybody at Duncroft School over the abuses perpetrated by Jimmy Savile there. I'm not in the least bit surprised. Unless there was evidence either that others were abusing children as well, or that children were being handed over to Savile specifically for the purpose of him abusing them, then in all probability no crime had been committed. If they suspected (even strongly suspected) that Savile was abusing children, they had no legal obligation to report it, and they committed no crime by remaining silent.

So I have little or no problem with the requested changes. Nonetheless, I have two serious objections to the letter. The first is that the wording is in some places rather confused and unclear, which has led Sky News to report that part of the problem is that the scope of the inquiry is too wide.

My second objection is that it is not really a good idea metaphorically to place a gun  at the Home Secretary's head and issue threats. Because this is what has been done.

As I have said before, Theresa May needs to make a far greater effort than has been evident up to now in understanding where the survivors are coming from. But the survivors need to try and make it easier for her to do that. Issuing threats hardens attitudes all round and makes it less likely that the requested changes will happen. Better would have been to say something along the lines of "we really do want this inquiry to succeed, but if you wait too long before making the changes that are needed, it is likely that few survivors will by then still be willing to trust and engage with the inquiry". You're saying the same thing, but phrasing it as an observation rather than a threat. These things make a difference.

I was not approached with a view to my name being added to the open letter. I did not know of its existence prior to publication. Had I been asked, I would have refused to sign it in its present form, even though I agree with almost all of its objectives.

Addenbrookes Hospital

We heard yesterday of the 22-year sentence handed down to Myles Bradbury for a string of sexual offences against patients in his care at Addenbrookes Hospital.

He was obviously able to continue abusing for a several years while at Addenbrookes Hospital, and as a result one has to look into the safeguarding arrangements which are in place there and whether they are adequate. No doubt there will be a Serious Case Review which will conclude that lessons need to be learned. I've read a sufficient number of similar documents to have a decent idea of what it will say.

So here is something which the Serious Case Review needs to look at and which any member of the public can examine: the Child Protection Policy for Addenbrookes Hospital. The safeguarding statement for Cambridge University Hospitals NHS Trust (of which Addenbrookes is part) is here and the page includes a link to a PDF of the trust's safeguarding children policy. It is this PDF that I am reviewing.

Based on the experience of Little Heath Primary School, Bishop Bell Academy and various other places which have had abuse scandals, it has been a common element that the safeguarding policy for the setting was of poor quality. I would go so far as to say that if the written policy and procedures are of low quality, then it is highly unlikely that the practical arrangements are any better. While it's possible to have a good written policy which people aren't bothering to follow, it is extremely rare to find good arrangements that haven't been well documented.

The first thing I always look at on a policy is the date. These policies should be updated yearly in order to take account of any changes in law or statutory guidance,  any changes in the local arrangements for liaison with children's services, changes in key staff within the organisation, and most importantly any lessons learned from any recent incidents, whether or not they were successfully dealt with. The CUH policy is dated March 2012. In other words it has not been updated since Myles Bradbury was arrested. This is really not good enough. There have been changes in statutory guidance in the meantime, for instance a new version of Working Together to Safeguard Children.

Sections 1-3
Introductory text. Doesn't get to any procedures yet. The list of abbreviations includes "ACPC - area child protection committee". This is seriously outdated, they were replaced by Local Safeguarding Children Boards many years ago. Not a good start.

Section 4
The "Working Together" reference is outdated, it should be to the March 2013 version.
The section mentions the Laming and Bichard recommendations but doesn't say how it is implementing them or how it complies with Cambridgeshire LSCB procedures or has considered the CQC review, all of which are mentioned in this section. It's just said that it has to do all these things without saying whether it has done them, and if so how.

Section 5
Contains references to external documents that provide guidance, but includes no specific procedures.

Section 6
Contains references to external documents describing what people should be doing. This is very bad, it requires that people essentially built their own child protection policy out of component parts that are scattered across many documents. You can guarantee that in a busy place like a hospital nobody will bother doing this.

The references to external documents are mostly to outdated versions, unsurprisingly since the document itself is so old.

The DfES mentioned in  this section hasn't existed for many years, having been superseded by the DCFS and subsequently the DfE.

The external documents are actually guidance as to how a safeguarding procedure document should be written and implemented. To refer to them does not of itself actually give you a safeguarding procedure document.

Section 6.1.1.
Contains a long description of what Cambridgeshire Local Safeguarding Children Board (LSCB) (i.e somebody else outside the hospital) is supposed to be doing.

Section 6.2
A long description of what Cambridgeshire Local Safeguarding Children Board (LSCB): Business Committee is supposed to be doing.

Section 6.3
A long description of what Cambridgeshire Health Safeguarding Group (HSG) is supposed to be doing. All these three organisations are not unbder the control of CUH NHS trust and the descriptions in these three sections contain no guidance on what Trust employees should be doing.

Section 6.4 - 6.14
A short description of what each of various people within the Trust are supposed to be doing, but contains no procedures for how they are supposed to do it.

Section 7
A statement of general principles. No procedures

Section 8
A statement of general principles. No procedures. Contains an outdated reference to "Working Together to Safeguard Children".

Section 9
A statement of general principles. No procedures.

Section 10.
A statement of general principles. No procedures, unless these exist in Chapter 8 of the Cambridgeshire LSCB inter-agency procedures, which are mentioned buit not included in the document.

Section 11
It might possibly be that "the Trust‟s safeguarding children procedures and guidance notes provides specific, detailed actions that must be taken when there are concerns that a child is suffering or at risk of suffering significant harm" but this is not a published document, so we can't tell.

No procedures in this section of the document.

Section 12.
Claims that effective procedures are in place. No description of what the procedures are.

Section 13
Contains a promise, but no procedure to describe how the promise is fulfilled.

Section 14.
Promises and commitments. No procedures describing how they are implemented. The trusts's safeguarding children supervision policy might have something useful, but it has not been published.

Section 15
Promises and commitments on training and miscellaneous external references, but no  information on how the trust ensures that adequate training is actually delivered.

Section 16
By definition you cannot monitor compliance with a policy that has no procedures. In fact, this table describing what is supposed to be checked, is the nearest the document comes to describing what people are supposed to be doing! It's a page long.

Section 17
Information, no procedures

Equality and diversity statement
Just what is says it is - a statement.

Appendix 1
The flowchart is not all that bad, but this is the first procedure mentioned in the document (on page 15 of 17), and you can't fit sufficient detail of what people are supposed to do into flowchart boxes. This should be a summary of a more detailed procedure described in the body of the document. But that more detailed description is not included.

The reference to the DfES reference is way out of date.

Appendix 2
This is an orgchart. No procedure.

Appendix 3
This is an orgchart. No procedure.

My overall conclusion is that this policy is utterly useless. It provides no guidance at all for how staff should respond to evidence or suspicions of abuse, whether by staff or by others.

It may be that there is another unpublished document which contains these procedures. However no such document is referred to in the policy. If there were a more detailed set of procedures somewhere, I would expect to see references to it at various points in this document saying something like "For detailed procedures on how to do task X, look at sections P and Q of document R." But there is nothing like that, which makes me think that this document is basically all there is.

I wish to make it clear that I am aware of no evidence that Myles Bradbury's behaviour raised any suspicions within the hospital before he was arrested. This is something that the Serious Case Review will have to investigate. If there were no suspicions, then the shortcomings in the hospital's safeguarding procedures would have made no difference. But I have to say that I am very troubled by the extremely poor quality of the document, especially that it has not been updated in over two and a half years during which time the Trust has had a major safeguarding incident involving one of its employees. It also appears that the trust has also made no changes to its policy in order to implement lessons learned from the Lampard Review into abuses perpetrated by Jimmy Savile at a large number of NHS hospitals.

If it turns out that suspicions about Bradbury existed that were not acted upon, then the Cambridge University Hospitals NHS Trust will have some serious explaining to do.

The child abuse inquiry needs to start again with transparency and trust

Look here for my piece on the Guardian website about Theresa May's statement in Parliament last Monday.

Child abuse inquiry - Meeting with survivors groups

I was at the meeting on Friday between representatives of various survivors' groups and some members of the inquiry panel. Fiona Woolf's resignation was called for at that meeting.

The resignation wasn't the top priority issue discussed. Far more important was the need immediately to convert the inquiry into a full statutory inquiry, with the powers to compel the production of documents, compel the attendance of witnesses and take testimony under oath.

Ben Emmerson (counsel to the inquiry) pointed out that Theresa May had already said that the inquiry would be converted to a statutory inquiry if the chair saw the need for it. The response was that we know from many past inquiries how unwilling organisations often are to admit to failings and wrongdoing, and that we will need to drag the information out of them. There is no purpose in wasting several months while this lesson is learned anew by the inquiry chair, the inquiry needs to be statutory from the start if it is to be effective. Within the meeting, there was complete unanimity on this point.

If the need for a statutory inquiry were to be accepted, the next question addressed was whether Fiona Woolf commanded confidence as chairman to conduct it. The answer was overwhelmingly "no". Of the organisations represented, only NSPCC did not support the consensus, they stayed neutral.

The reasons for this position were far more nuanced and powerful than have so far been reported. There was the obvious issue of Woolf's connection to the Brittans. If Woolf were a potential juror in a trial where Brittan was a witness, she would immediately be excused as soon as the connection was known. It's unreasonable to expect a lower standard of impartiality – both actual and perceived – to be accepted for the inquiry. In my view it was crass of the Home Office to redraft Woolf's letter to try and sidle round this point.

But this wasn't the only argument against Woolf as chair. Woolf is a commercial lawyer. She knows nothing of child abuse. Those who have experience in this field have come to understand how normal logic and reasoning does not work when dealing with this topic. With experience, you gradually come to realise that on the subject of abuse and institutional responses to it, almost everything you ever thought you knew about human behaviour is wrong. It usually takes about a year of immersion in this subject to get your head around the implications of this. We can't wait a year while the inquiry chair educates herself. Sharon Evans, one of the two panel members present, clearly grasped this point.

There was one other very important though rather technical reason Woolf would not be suitable to head a statutory inquiry. In order to exercise the full powers of a statutory inquiry, you need a judge. Only a judge for instance can hold an uncooperative witness in contempt of court. This point was forcefully made by more than one of the lawyers present. Woolf is a solicitor, not a judge. So the general consensus was that a (preferably senior) judge is needed who has some background in family law and who therefore has experience of abuse issues.

Another issue discussed was the limitation of the inquiry to cover just England and Wales. This excludes some very important scandals such as Kincora (Northern Ireland), Fort Augustus (Scotland) and Haut de la Garenne (Jersey). Apparently the reason for this is that child protection is a devolved issue, and the devolved administrations in Scotland and Northern Ireland are not prepared to have a Westminster-run inquiry looking into matters on their patch. I want to find out who is responsible for this. It is nuts to have an abuse inquiry that is excluded from looking into some very major scandals, especially when we know that the trafficking of children inconveniently crosses local authority and even international borders.

If the inquiry is to do its job, the single most vital attribute needed is the confidence of the survivors of abuse. Some people present at the meeting had themselves suffered abuse. They are among the most robust of all the survivors in the country, they have transcended their experiences to fight on behalf of others. But if the inquiry is to gain a full understanding of abuse, its mechanisms and effects, the panel members will need to speak to many others, some of whom are extremely damaged psychologically, are very vulnerable, and will need much support in order to testify. What is required for that support was discussed in some detail. The survivors groups expressed their readiness to work with the inquiry and bring their knowledge and experience to help the panel in their investigations and evidence gathering. Expert advisors from survivor organisations to the Panel of Inquiry were suggested.

It is a common characteristic of abuse victims that they are extremely distrustful of authority, because that authority over them was so devastatingly misused when they were children. We pointed out that inquiry has to recognise this as a fact and accept the consequences. One consequence is that in the eyes of the victims the fiascos concerning the appointments of Butler-Sloss and then Woolf are far more damaging than even the papers have reported. Some victims are already expressing complete lack of confidence in the inquiry and an unwillingness to co-operate with it. Unless things change,  Theresa May will be throwing an inquiry and nobody will turn up.

If we are to retrieve the situation, urgent action is needed. The first part of that happened on Friday afternoon with Woolf's resignation. The next urgent step needed is an announcement of the immediate conversion to a judge-led statutory inquiry, and then consultation with survivors groups as to the new chair, the composition of the panel and the terms of reference. With the establishment itself under scrutiny, the inquiry process must be extremely transparent. The need for this is only gradually becoming understood by the inquiry team.

Child abuse inquiry - The powers of the inquiry

The child abuse inquiry seems to be a bit of a mess. It's worth dividing the mess into three separate issues.

1. The powers of the inquiry
2. The scope and terms of reference of the inquiry
3. The chairmanship of the inquiry

Lets look at each of these in turn, in separate articles.

The powers of the inquiry

At the moment, the inquiry is set up as a "panel inquiry". The idea apparently was to use the Hillsborough inquiry as a model. But the Hillsborough situation was very different for a number of reasons. First, it was looking into the actions of a relatively small number of public bodies in the context of a single specific event. Second, their co-operation had been assured from the start. Third, the main purpose appears to have been to collate and bring into the public domain a large number of documents already available. Fourth, it wasn't an end in itself, but merely was intended to provide an indication as to whether the inquest verdict on the Hillsborough victims was sound and whether a new inquest should be ordered that would look into everything judicially. That inquest is still ongoing.

The child sex abuse inquiry is a very different matter. There are a much larger range of bodied both public and private whose actions are to be looked into. There is no single event being examined but rather decades of failings to act to prosecute a large number of criminals and protect a large number of children. Co-operation from the bodies concerned has not been promised in advance and cannot be counted on. The inquiry if it does its job properly is going to have to make many different recommendations: into changes in the law, changes in practice, funding arrangements and a whole range of other issues. Child sex abuse is a diffuse problem, there are many points at which child protection arrangements can fail, and each of those failure points is likely to need a different solution. The scale of the undertaking is completely different.

The issue of what powers it is appropriate to give the inquiry turns on the issue of co-operation, whether it can be guaranteed from all the bodies which the inquiry might want to look into. One of the groups of bodies which the inquiry is tasked with looking into is churches and other religious organisations. The difficulties that may occur can be illustrated by means of a simple example concerning the Salesians, an order of Roman Catholic monks whom Graham Wilmer (one of the inquiry panel members) has complained about. In an article for Exaro News, The Salesians made the following statement.

The Salesians will of course co-operate fully with the forthcoming government inquiry if they are required to do so.

Note carefully the qualification: "if required to do so". As it is currently constituted, the inquiry cannot compel the production of documents. It cannot compel the attendance of witnesses, nor can it take oral testimony under oath. So the Salesians are not "required to" co-operate with the inquiry because the inquiry lacks the powers to do the requiring. I think it likely that many other organisations will be similarly tight-lipped unless they are "required to" co-operate.

When announcing the inquiry, the Home Secretary Theresa May made the following promise.

I want to make clear that – if the inquiry panel chairman deems it necessary – the government is prepared to convert it into a full statutory inquiry under the Inquiries Act.

Even before the inquiry starts, it is clear that it will be unable to do its job unless that conversion is carried out immediately. It should be done now rather than waste several months blundering around and discovering that most of the organisations being investigated won't co-operate. A statutory inquiry will have all the powers to compel co-operation that the present panel inquiry lacks.

Unless and until the inquiry is made a full statutory inquiry under the Inquiries Act 2005, it is essentially useless.

The Child Abuse Inquiry

The Child Abuse inquiry announced by Theresa May is getting a lot of airtime at the moment, primarily because of the issue of the suitability of the panel chairman. Baroness Butler-Sloss was originally appointed and had to withdraw when she decided that her family connections made her position untenable. Concerns have been raised about the suitability of her replacement, Fiona Woolf. That will play itself out in due course.

I'm more concerned with what the inquiry will have to look at if and when it goes ahead. The Terms of Reference haven't yet been published, but Theresa May has stated that her purpose is for the inquiry "To consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse."

Matthew Scott in his blog Barrister Blogger has offered some ideas about the inquiry, including suggestions for who might be suitable to chair it. Broadly speaking his suggestions revolve around judges or lawyers with experience of prosecuting, defending or judging sex crimes.
My concern with this approach is that somebody only with experience of the cases that come to trial is not going to be experienced in the various ways that cases fall by the wayside long before they get near a courtroom. In addition, he/she will probably know little about the efforts necessary to protect and support victims of child sex abuse in recovering from the abuse, whether or not the matter comes to trial. Nor will he or she have any knowledge of the measures that would help detect abuse early, nor of preventive measures that would deter abusers from abusing in the first place. It is notable that the currently nominated chair, Fiona Woolf, is a commercial lawyer, and doesn't even have the experience of addressing child sex cases in criminal court. I addressed this point in a comment on a recent article in the Guardian.

One of the problems with child sex abuse is that, on this subject, nobody acts according to normal adult standards of logic and reason.

Somebody new to this subject is going to be applying normal adult logic and will get into a terrible mess because they expect people to behave rationally according to normal standards, and they don't.

First let's look at the abusers themselves. They don't act rationally or they would not abuse. Many of them engage in a huge degree of self-deception in order to convince themselves that the children they abuse are freely consenting to the relationship.

The child victims don't act rationally by adult standards. They can't, they are children, their adult rational minds haven't been fully formed yet. Moreover they are placed into a situation where lies and secrecy abound, and their trust in adults is fatally undermined.

Those in authority don't act rationally, because they don't understand the psychological dynamics of the relationships between abusers and their victims. An abuser can be a pillar of society, intelligent, committed, a person everybody wants to know - and secretly a child abuser as well. The two are not mutually contradictory.

The idea that an abuser can be a high-functioning individual in all other aspects life is beyond the experience of most people, and so when evidence of abuse comes to light, it gets discounted on the basis of the abuser's otherwise good character.

Those who set policy in many cases act rationally in assuming that people with good intentions who see abuse will always report it, and that compulsion to do so is not needed for people to do what they know is the right thing.

But that doesn't take into account the simple disbelief that can afflict someone seeing something that "does not compute". People are suddenly wracked by doubt and wonder "What if I'm wrong?" They don't want to wreck and esteemed colleague's reputation or career, still less do they want to be labelled a troublemaker. And so they give into their doubts and do not report.

Even if they overcome their doubts, they then have to get past an institution's management. Here we have a whole new barrier to reporting, the reputation of the institution. A child abuse case can be very bad for business. The temptation can be overwhelming to find a way of handling it "in house", quietly, without the adverse publicity that will probably follow from a report to the authorities. People genuinely believe that by such actions they can protect both the children in their care and the reputation of the institution. In fact, the only person protected is the abuser.

And so at every turn, you have people acting in ways which on the face of it don't make any sense. It takes about a year of involvement in child protection in some capacity or other to start unravelling this in your head. Some people never manage it.

This inquiry can't afford to waste a year while the leader of it starts to understand that on this subject everything she ever knew about human behaviour is wrong.

That by itself is enough of a reason why Fiona Woolf's appointment is misguided.

If there is reason to think that there has been political interference in the investigation of child sex abuse cases, I agree with Matthew Scott in his assessment that there is little or no chance of decisive evidence of this being uncovered without the inquiry being converted into a full public inquiry under the Inquiries Act 2005. If there is an establishment cover up, then those members of the establishment who are involved are hardly going to voluntarily give evidence as to their culpability. Similarly, documents that reveal the extent of any cover up are hardy going to be provided to the inquiry voluntarily. Compulsion will have to be used, and for that the inquiry will have to be converted to a full public inquiry. It might as well be done sooner rather than later. To delay will only give the impression that there is a cover up and the inquiry is being designed in such a way that it cannot reveal it.

Much of the recent publicity has surrounded alleged abuse by politicians living or dead, and alleged political interference in police investigations. But Theresa May's statement suggests that the remit of the inquiry is to be far wider than that.

I suspect the issue of cases being halted because of political pressure will form only a small part of the inquiry. It is likely that the vast majority of the failings in the system occur long before cases ever come to court and have nothing at all to do with protecting senior politicians.

If so, then the inquiry is going to have to look at all the ways in which cases of abuse might fail to be acted on or even reported.

These include (but are not limited to):

• The child does not disclose the abuse at the time.
• Other signs of abuse (e.g. physical, behavioural) are not noticed.
• The signs are noticed (e.g by a member of staff at the child's school) but not reported within the setting.
• The signs are reported but the report is not passed to the local authority children's services.
• The report reaches children's services but is not acted on, for instance through lack of resources, because the report is disbelieved, or because it is thought not to reach the "harm threshold" that justifies intervention.
• The report reaches children's services and is passed to the police for criminal investigation but the police decide no crime has been committed.
• A child makes a disclosure to the police but is not believed.
• The police investigate but decide no crime has been committed.
• The police investigate and pass the file to the CPS who decide there is insufficient evidence for a prosecution.
• The child, unable to face the prospect of giving evidence in court, withdraws the allegation.
• The case results in an acquittal either on a legal technicality or in part because the complainant collapses under the pressure of cross-examination that he or she is insufficiently prepared for.
• The investigation is halted because of political pressure.

If the inquiry is to do its job thoroughly, it needs to investigate each of the ways in which an abuse case might not receive the timely attention is requires. It will need to look at whether each item is a significant contributor to the overall failings, and if it is, what would need to be changed in order to fix this. Each element may require a different fix.

Proposals already exist for many of these elements, and it will be the task of the inquiry to decide whether they ought to be widely adopted. For instance, taking the very first item on the list above, the inquiry might decide that more needs to be done to improve age-appropriate sex education in schools in a way that would encourage children to disclose if they have been abused. The NSPCC has been looking at this area with its #TalkPANTS initiative and the Underwear Rule. The inquiry could look into whether this initiative should be included in the curriculum on sex education.

Each possible failure point will need to be looked into in the same level of detail if we are to thoroughly overhaul our child protection arrangements. There is probably no proposal or combination of proposals that can catch all abuse. But I'm sure we can do much better than we are at the moment.

In addition, we need to look into victim support, both for children and for adults who come forward to disclose abuse that they suffered in childhood. We don't want another case such as the shameful lack of support for Frances Andrade.

This is going to be a big job if done properly.