How not to break the law

Toolbox is going off in a slightly different direction this month. Up to now, we have had a focus on thinking about the broader aims and objectives for our youth and children’s work, and what sort of people (or teams) might do it.

I want to broaden our thinking this month to consider the much wider legal context in which we work. This may not be the most exciting topic so let’s start with a blunt question: do you want to avoid finding yourself in court being sued? If so, read on!

I must declare at this point that I am not a lawyer, I am a youth worker who has bothered to research this area. So, the usual disclaimers apply. This is not legal advice. Over the years I have consulted several lawyers and solicitors, so I am drawing on their advice but only in a generalised way. If in doubt, get professional help.

Most of us have at least some familiarity with the legal requirements of working with young people and I’d hazard a guess that for most of us, the bit we know most about is safeguarding. This is not an exhaustive list but how often have you thought about:

• Duty of care
• Safeguarding
• Health and safety
• First aid
• Transport
• Adventure activities and camps
• Food preparation and catering

That was before you also had to think about:

• Finance
• Charity law
• Copyright
• Data protection and GDPR
• Equal opportunities and diversity
• Communication and social media.

Incidentally, the two lists are deliberate. All that we are required to do can seem overwhelming and I want to start by getting some perspective. Here is the first insight: some issues matter more than others.

You are going to be filled with remorse and regret if a young person is injured on your watch. You are really not likely to end up in court if you accidentally break copyright law. I am not inviting you to be causal or cavalier about issues but I am inviting you to have some sense of proportionality. Get the really big things in place first.

Two ways to break the law

So, how can we navigate through this apparently terrifying list of requirements? First, we need to understand that there are basically two ways to get into trouble with the law.

The first is if there is a specific piece of legislation relating to the activities we are doing. An example might be the 1989 Children Act (and all the subsequent amendments and additions to this legislation).

This was never really aimed at us, it was aimed at the childcare industry and sets out the requirements for those running childcare on a regular basis including size of premises, ratios of staff to children etc. Another example might be special adventure activities.

Since the Lyme Bay disaster in 1993 when four young people drowned, the Adventure Activities Licensing Authority was set up and regulations and requirements around adventure activities were hugely tightened up. The days of borrowing a couple of boats from your local scout troop and improvising a kayaking trip are long gone. So, if there is specific legislation…you need to obey it.

However, there is also the slightly more nuanced issue of duty of care. Put simply, what the law effectively says is “we cannot legislate for every possible permutation of activity that youth and children’s worker’s might do, so we require them to do whatever is reasonable to ensure the safety of the young people they are in charge of”.

Now, ‘reasonable’ sounds a bit vague but it does not have to be. First, put yourself in the place of a parent and then ask: is what I am proposing to do reasonable? Let me give you an example. Health and safety at work requires employers to provide first-aid cover for their staff.

Depending on the size of the organisation, there may be quite specific requirements for first-aid cover, the number of first-aiders and their level of training.

Our youth group, by contrast, may not have any specific requirements but, is it ‘reasonable’ to regularly meet with no specific first-aid provision? Probably not. In this case there is not a specific legal requirement (the first way to break the law), but there is almost certainly a duty-of-care requirement. Interestingly, we also in this situation need only to provide a ‘reasonable’ level of cover, we don’t need a fully equipped ambulance on standby!

With experience, there are often ways to fulfil this type of requirement. Whenever I organised big youth events, we would invite in St John Ambulance to provide cover in return for a donation.

There are a number of predictable variables with regard to duty of care. First, the younger our young people are, the greater level of care is needed. As an adult I have signed up to several adventure activities over the years including learning to hang glide.

I am deemed competent as an adult to make a judgement about the level of risk I am prepared to take. Young people (and especially children) are not considered competent to assess risk – we must do that for them. Other vulnerabilities may also mean that we have a higher level of responsibility.

A key thing here is not to be afraid. Effectively, the law is acknowledging that mistakes are made and accidents happen. What you need to show is that you have considered what might go wrong and have provided a plan for what might happen.

Regular activities need this process, but it is especially important when you do something new like a trip out or games evening. Discover more about risk assessment here.

Incidentally, there is a really important theological point here. We are not offered some sort of spiritual immunity by God or the Bible. I know (just a few) leaders who have run camps on which there have been significant accidents including one fatality. Do pray but don’t assume that gives you indemnity.

So, what happens if you haven’t done what is required? You may find yourself being sued for negligence. Most of us are familiar with that concept and it is almost always negligence in our duty of care that is being contested.

This is a case of civil law (not criminal) so you will almost certainly not end up in prison. However, that is to miss the point. Being sued is first incredibly stressful. Secondly it can take a very long time.

Third, if you are found negligent, it will be both your personal reputation and probably the hard-won reputation of your church or organisation that is lost. Finally, the penalty is often a very significant fine. This may well be partially or wholly paid by your insurance company but that misses points one to three.

Insurance

For this reason, and many others, you must be insured as a youth or children’s worker. If you work for a church (either paid or volunteer) in a major denomination, you will almost certainly be covered by the church insurance.

Indeed, many policies are quite wide and cover off-site activities like your residential. If you work for a charity or small fellowship, you may be covered but find out! How? Ask the treasurer – whoever who pays the bills will know who the insurance policy is with.

Then, if you are not sure, ring the insurance company and ask. Your policy may well cover you to abseil off the church tower but it may not if you are not a qualified climber. Incidentally, don’t be fobbed off with “Oh…I think we are covered for that”. It will be you that is sued, not them. I have rung insurance companies plenty of times and there are always helpful – it is very much in their interest to manage risk!

So, you can have an activity that is legal and covered by insurance if it goes wrong. Note also that the insurance has been taken out by the church so it is vital that your governing body (PCC, Elders, or Diaconate) know what you are doing.

I submitted my programmes on a termly basis so they would know both the regular and one-off events planned. Your insurance may not cover you if you operate like a maverick!

Consent

All of this raises the issue of consent, and it is vital that you have documented evidence that parents knew what you were planning to do. Parents cannot sign away their rights and telling them you might do something daft with their children does not get you off the hook, it makes it worse because it is evidence that you knew you might do something risky.

Conclusion

So, where does that leave us? I want, again, to invite you to have a sense of proportionality and perspective. You are unlikely to get into serious trouble if your youth activities don’t quite match the aims of your charity.

Equally, if you accidentally keep some information for too long in contravention of GDPR law, you might get a reprimand but will probably not end up in court.

Start with the big issues. Read up on duty of care and make sure you have got your head around that. Then get safeguarding sorted. Your denomination will help you with this and if you are independent, there are specialist organisations that you can contact, such as Thirtyone:eight.

Then get the health and safety and first-aid issues sorted. Remember, they may be specific legal requirements, but if not, use the ‘reasonable’ test. Document what you do so you can show your thinking. When these are covered, take a look at the other issues.

For anything specialised, take outside advice or, better still, use experts who can provide a great location with trained instructors. The lists above are not exclusive. Your children’s work may not require a drugs policy, but if you do inner-city youth work where the young people are known to be using and / or carry and dealing, this would be vital.

The more you do this, the more you will start to develop your own set of ‘experts’ that can answer your questions. That might include denominational officers, a friendly lawyer, specialised youth charities (including Paraklesis) and insurance companies.

If in doubt, ask. Don’t be worried, sort the big issues and then you will be free to enjoy your youth and children’s work in a worry-free context!