10th November 2017 | News
The Vetting Act [“i.e. The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 as amended by the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016] was commenced on 29th April 2016.
This Act places statutory vetting obligations on school authorities.
The Department of Education and Skills has issued two circulars outlining these statutory requirements:
Circular 0031/2016 “Commencement of Statutory Requirements for Garda Vetting” and
Circular 0016/2017 “Statutory Requirements for the Retrospective Vetting of Teaching Staff, Non-Teaching Staff and Others”.
“Retrospective Vetting” refers to the retrospective vetting of teaching staff, non-teaching staff and others who have not previously been Garda vetted and who undertake relevant work or activities with children or vulnerable adults.
The retrospective vetting of teachers who have not been vetted to date will be conducted by the Teaching Council in the context of the teacher’s annual renewal of registration.
Boards of Management must ensure that an application for retrospective vetting is made, before 31 December 2017, in respect of;
non teaching staff who undertake relevant work or activities,
all persons who are contracted by the school to undertake relevant work or activities and
all persons who are permitted by the school to undertake relevant work or activities on the school’s behalf
in respect of whom the Board of Management has not yet received Garda vetting.
Section 20 of the Vetting Act concerns periodic re-vetting of employees, volunteers and others who have previously been vetted and, prior to 29 April 2016, were employed, contracted, permitted or placed by a school authority to undertake relevant work or activities with children or vulnerable persons. To date, Section 20 of the Vetting Act has not been commenced by the Minister for Justice and Equality.
The Department of Education and Skills has also issued Frequently Asked Questions (FAQs) documents for each of these circulars.
N.B. It is important to note that these FAQs are updated periodically by the Department of Education and Skills. School Authorities should ensure that they access the most recent update of these documents.
Thorough recruitment procedures, including the checking of references and any gaps in career history, are an essential element of child protection practice. Statutory vetting should not take the place of good recruitment procedures but must be used as part of those procedures. As an additional safeguard a Statutory Declaration and Form of Undertaking must be completed and provided to the school authority prior to making a teaching or non-teaching appointment of any duration.
(Template included in the Appendix to Circular 0031/2016)
The statutory declaration is a document which is signed by a prospective appointee in the presence of either a notary public/commissioner for oaths/peace commissioner/practising solicitor which declares that there is nothing from a child protection perspective that would affect the position of trust in which the person would be placed.
The Statutory Declaration in the Appendix to Circular 0031/2016 must be provided to the school authority by all persons being appointed to teaching and non-teaching positions of any duration unless the person has previously provided the school authority with a statutory declaration which was made during the same or previous calendar year. The school authority must obtain and view the original statutory declaration and retain a copy of it for its own records. A Statutory Declaration is regarded as valid if made in the same or previous calendar year and therefore may be retained by the applicant for use in other employments as required.
In addition, an associated undertaking (which is specific to the employing school authority) must be signed by all persons prior to appointment to any teaching or non-teaching position of any duration. For administrative ease, the Department’s payroll appointment forms will incorporate this undertaking. However, for any appointment (teaching or non-teaching) that does not require completion of a payroll appointment form, the Form of Undertaking in the Appendix to Circular 0031/2016 must be completed by the prospective appointee prior to commencing employment. A Form of Undertaking is regarded as valid for other appointments to the same school if signed within the same or previous calendar year. The Form of Undertaking must be retained by the school authority.
In its updated FAQ’s (17 to 21) to Circular 0031/2016 in June 2017, the Department of Education and Skills provided for Joint Agreements between schools and other organisations in circumstances envisaged by Section 12(3A) of the Vetting Act. This provides that where there is a joint agreement in writing between two relevant organisations (as defined in the Vetting Act), agreeing to the employment, contracting, permitting or placement of a person, it is a defence in any prosecution under the Vetting Act to show that the other organisation had received a vetting disclosure from the National Vetting Bureau, in respect of that persons employment, contracting or placement. It is entirely a matter for Boards to determine how they wish to deal with their vetting obligations and they do not have to enter into joint agreements.
CPSMA has prepared a template Joint Agreement for use by schools. These can be used in the context of transition year students, coaches and student teachers, where either the secondary school, coaching body or college has obtained a vetting disclosure in respect of the person from the National Vetting Bureau. The Joint Agreement provides that the person will show their vetting disclosure to the school prior to commencing the placement/coaching. A template statutory declaration is also available which should be signed by the person being placed and furnished to the school.
CPSMA has also prepared a draft letter to be furnished by colleges to schools in the context of third and fourth year students who would have been vetted by the GDVU prior to the Vetting Act. These students should also be required to furnish a signed statutory declaration to the school.
It is essential to ensure that both the Agreement (and letter) and Statutory Declaration are completed by the other Organisation and that the student or coach shows the school its original vetting disclosure prior to commencing in the school. The school should take note of the vetting disclosure reference number and the date and to whom it was shown and keep this information on the relevant placement file. It is important to note that the vetting disclosure itself should not be copied for data protection reasons.
Even if a school decides to enter into a joint arrangement, it should always be cognisant of its responsibility to discharge a duty of care towards the pupils in its school. It should take adequate precautions to ensure the safety of children and this would include providing that children are always supervised by teaching staff and that any person on placement is aware of school policies in relation to child protection, code of conduct etc. Each school must determine for itself the particular considerations that apply in each case. Schools are advised in particular to read FAQ’s 17 to 21 to Circular 0031/2016 in this regard.
Separately to the Vetting Act, from a prudent practice or civil liability perspective, a school may determine that it is necessary to undertake additional checks, including checking references or the past work experience of any person coming into a school . The final decision on suitability rests with each school.