Keeping children safe in education – contractual considerations

In September 2021, the Government issued an update to Keeping Children Safe in Education (KCSIE). As many readers will know, KCSIE sets out the legal duties a school or college must follow in order to “safeguard and promote the welfare of children and young people under the age of 18 years in schools and colleges”.

KCSIE not only details what schools and colleges should be doing from a governance and leadership perspective, but also contains specific obligations which will need to be reflected in the commercial contracts they are entering into.

Whilst some of the obligations which impact contracting arrangements are not new, the issuing of the update to KSCIE represents an opportune time to consider some of these obligations, as well as what schools and colleges should be doing to ensure they are compliant. In this article, we will consider two types of contracts schools and colleges may regularly find themselves entering into:

1. contracts for the supply of services by third party contractors; and
2. contracts relating to the hiring out of the school’s or college’s premises.

Third party contractors

KSCIE makes it clear that where a school or college is engaging a contractor to deliver services, the school’s or college’s safeguarding requirements should be set out in the contract for supply. This includes placing a contractual obligation on the contractor to ensure that its personnel are appropriately DBS checked. KSCIE provides that both personnel engaged in regulated activities (essentially any activity that involves close interaction with a child) and those who will be in close contact with children (albeit not engaged in a regulated activity) will require an enhanced DBS check.

In addition to contractually obliging the contractor to ensure its personnel are appropriately DBS checked, the school or college should also ensure that the contract contains terms which:

1. allow the school or college to inspect relevant records relating to the contractor’s personnel
2. oblige the contractor to immediately inform the school or college if it discovers that any of its personnel aren’t suitable to work with children
3. allow the school or college to exclude any personnel it believes pose a risk to children; and
4. allow the school or college to terminate the contract if the supplier is in breach of any of its obligations relating to safeguarding.

Premises hire contracts

Where a school or college hiring out its premises to a third party (for example a local youth club, sports team or perhaps even a summer school), KCSIE places the school or college under two broad obligations. These obligations are to ensure:

1. appropriate arrangements are in place to keep children safe; and
2. that the hirer has appropriate safeguarding and child protection policies and procedures in place, and that the school or college it is able to inspect them as needed (and this includes ensuring that the contract between the school or college and the third party contains appropriate clauses).

In respect of the first of these obligations, it would seem sufficient for the contract to contain terms which do substantially the same things as those discussed above in respect of contractors and their personnel. However, in respect of the second of these obligations, KSCIE specifically mandates the inclusion of appropriate clauses. These clauses will (depending on the nature of the hirer) either need to require the hirer to:

1. have in place, and at all times comply with, their own child protection policies and procedures (which the school or college can inspect on request); or
2. comply with the school’s or college’s own child protection policies.

Finally, the school or college should ensure that if the hirer in anyway breaches its obligations in respect of safeguarding that the school or college has an immediate right to terminate the contract and the ability to recover any costs or losses it may suffer or incur as a result of the hirer’s breach.

What should schools and colleges be doing?

In light of the update to KSCIE, schools and colleges should be reviewing all their commercial contracts to check they contain all the necessary provisions to ensure the school or college is acting in compliance with KSCIE. Where the school or college has a stock of template contracts, these should be updated as required. Where deficiencies in existing contracts are identified, the school or college should be looking to vary their terms by entering into appropriate forms of variation with the other party. If the other party are unwilling to agree to the required variations, the school or college should be terminating those contracts as soon as possible.

The content of this article is for general information only. For further information, please contact Edward Bouckley. Law covered as at November 2021.