Duty of Care

The expression “Duty of Care” is much used and much misunderstood. This note is purely for guidance and not a legal definition.

Duty of Care is the duty to ensure the safety and welfare of others. It occurs in two ways:

      A Legal Duty of Care

      A Moral Duty of Care

The Legal Duty of Care is the strict definition and the most obvious example is in Health and Safety. It is obvious that the Air Cadet Organisation owes a duty of care to its members. It is also understood that accidents can and do happen. Liability for the legal Duty of Care would only arise when the risk was foreseeable but no action had been taken to remedy it. In any subsequent legal action the courts would apply the following criteria:

      Reasonable forseeability of injury

      Proximity

      Fair, just and reasonable to impose a duty

The plaintiff would have to show:

      That they were owed a duty of care

      That the defendant breached this duty

      That they suffered damage as a result of the breach

The Moral Duty of Care is more correctly a responsibility for safety and welfare. Members of staff have a responsibility for those cadets, and staff, that are under their control.

On specialist activities the qualified instructor has the Duty of Care for all those taking part irrespective of their rank.

The key point throughout is that the individual administering the activity, whatever their status, should be appropriately trained and authorised.

In addition to this those in charge of children have an additional charge and that is to act “in loco parentis”.

This is best explained as requiring the adult to act as “a reasonable parent”. You will note that this is not necessarily the actual parent. So that whilst a parent may say that their child can go into town at midnight - a reasonable parent might not.

Within the Air Cadet Organisation the Duty of Care would start by ensuring the activity is authorised and the relevant instructors are qualified for the task but then would go on to ensure that it is managed in a safe manner throughout.  

Radical Statement

Cadets are Children!

In its simplest of terms you must act as a concerned parent. Not how you perceive the actual parent may act.

Unforeseen tragedies do happen, fortunately rarely. 

If the worst happens - have you:

Risk Analysis

Duty of Care can be aligned with risk analysis, and now more formally with risk assessment. Your checklist could look like this:

If the answer is no to any of these questions don’t do it!

Guidelines

Entitled “guidelines” because they have not been incorporated into any of the official Air Cadet Publications. However you should adopt the following points as rules. They are policy and your conduct will be assessed against them should it be called into question. It should be borne in mind that they are not exclusive and you should use common sense or ask for further guidance if you are uncertain of any point.

Things you should do:

Things you must not do:

In all matters of this nature you must be guided by an element of common sense. The Department for Education and Employment have issued a document wherein they now accept that some measure of physical comfort may be given to a child in distress and that reasonable force may be used to prevent a child from hurting themselves or others. The ATC has not issued such a statement and until it does so the above statements are the policy of HERTS & BUCKS WING.

Ages of Responsibility

Under ten years of age there is no criminal responsibility.

Between ten and fourteen years of age a child may be held responsible for a crime

From fourteen years onward they are considered as fully liable.

Children under the age of sixteen cannot:

Once over eighteen they can vote, obtain credit, purchase alcohol etc.

Child Protection

Air Cadet Organisation Policy Statement on Child Protection.

The Air Cadet Organisation (ACO) recognises the importance of child protection enshrined in “The Children Act 1989” and endorses fully the personal responsibility of each member of the Corps for child welfare. All adult staff members have the moral duty to be aware of the Do’s and Don’ts, and support practices, associated with child protection, and owe a duty of care towards its cadets at all times.

 Young persons in our charge are the future - look after them.

 All uniformed members are required to sign the Wing Confidential Orders.

The safety and welfare of cadets overrides all other

considerations in everything we do.  

Sexual Harassment

HQAC Routine Orders No:22, Nov 01 provided a very clear statement of policy on this subject and it is reproduced here.

Part of the text has been emboldened for emphasis.

“Sexual harassment consists of unwanted conduct of a sexual nature, or other conduct based on sex, affecting the dignity of females or males. Both males and females can be perpetrators or subjects of sexual harassment and it can occur deliberately or unintentionally. However, it is the impact of the behaviour on the recipient, not the intention on the perpetrator, which determines whether the behaviour is unacceptable and amounts to sexual harassment.

Unacceptable conduct includes unwelcome sexual attention by physical contact as well as sexually offensive gestures, jokes or innuendoes. Any suggestions that sexual favours may further a career or that refusal will hinder it will constitute sexual harassment as will the circulation or display of sexually explicit material in mixed work or recreational areas.”

The orders then go on to say that such conduct will not be tolerated in the Corps and that all allegations will be taken seriously and investigated thoroughly, impartially and in the strictest confidence. Every proven case will be treated seriously and dealt with accordingly. Complaints should be registered initially through the chain of command. It is pointed out that any individual who feels that their complaint has not been dealt with satisfactorily can submit a claim for redress under AP1919 para 375 for adults and 416 for cadets. HERTS & BUCKS WING fully supports this policy and will react accordingly.

Sexual Offences

British law lays down a range of sexual offences ranging from rape to indecent assault. The traditional view of society was that such offences were normally committed against women by men. Recent changes in legislation have amended many offences to include offences against men and women, by men or women. Penalties for rape, gross indecency or indecent assault against either sex are now the same. The age of the victims may also add to the severity of the sentence. It is a fact that ‘females’ may also commit offences against young people (male or female) in their charge or care. Such offences are not just committed by ‘men’. 

Examples:

Note: No person under 16 years of age can give consent to any sexual activity.

It is socially unacceptable that persons working with children / young people in ‘positions of authority’ abuse that position of trust to coerce or pressurise ‘victims’ into taking part in sexual activities. Such action may amount to a serious sexual offence as indicated above. The punishments given out by the courts tend to be far harsher where this ‘position of trust’ has been abused. Such events also receive high profile media coverage!

As a result of a series of high profile cases, involving offences against children by persons in ‘positions of trust’, Section 3 of the Sexual Offences (Amendment) Act 2000 created offences for a person 18years or over to have sexual intercourse or engage in other sexual activity, with a person under 18 years of age for whom they were in a ‘position of trust’. (Max 5 year’s imprisonment at Crown Court)

‘Youth leaders’ and other relationships of trust are acknowledged but are currently outside the Act. (The Secretary of State is empowered under the Act to make an ‘order’ widening the ‘relationships’ covered). Legally, this offence does not currently apply to the ACO however the ‘principles’ are very much part of Corps policy.

Particular care will needed to be taken with relationships between cadets when one passes their 18th birthday. 

A common sense approach needs to be taken taking into consideration whether there is a breach of the ‘position of trust’ and it is recommended that this is discussed with the units Wing Staff Officer.

Relationship of Trust

This can be described as one in which one party is in a position of power or influence over the other by virtue of their work or other activity.

The individual in the position of trust may have power to confer advancement, failure or other advantage or disadvantage.

While such a relationship of trust exists, allowing a relationship to develop in a way that might lead to a sexual relationship is wrong.

This guidance should not be interpreted to mean that no genuine relationship can start between two people within a relationship of trust. But given the inequality at the heart of a relationship, the relationship of trust should be ended before any sexual relationship. For example, one person moves to another unit.

Definitions

Physical Abuse: where a child’s body is hurt or injured deliberately.

Emotional Abuse: Where children are deprived of love, or may be shamed and taunted. Or given responsibility beyond their years.

Sexual Abuse: Where adults use children to satisfy sexual desires. Other children may be abusers as well.

Neglect: A persistent failure to meet a child's physical and / or psychological needs.

Child Abuse Must Do

If you hear of an allegation of abuse you must:

You have a duty to report a complaint or allegation to a competent authority as both a member of the Air Cadet Organisation and as a citizen.

Whatever you do must be in the interest of the Cadet, not those of the ACO or other organisation or individual.

Child Abuse Must Not Do

Possible Scenarios with Duty of Care

1         It’s raining, parade night is over and you are the last staff member left and have locked up. As you walk to the car you see the last cadet sheltering under the end of the hut. The parents have not turned up to collect the cadet. What are your options?

2         A cadet has been sufficiently injured on an authorised event to require a visit to casualty but not enough to require an ambulance. How do you get them to the hospital? What do you take with you? What do you do when you get there?

3         In incident number 2, having assisted with the casualty admission paperwork and handed the cadet over for treatment to the medical professionals in the waiting area of the casualty department you return to the event. Have you discharged your duty of care?

4         A cadet comes to you in tears alleging they have been victimised.

Answers to problems like these will generally come from:

Which way would you rather learn?

Risk Assessment

We are all aware (or should be!) of the legislation regarding our activities that comes from the Health and Safety Executive (HSE) wherein there has to be a competent responsible adult in charge of an activity and that adult must have carried out the appropriate risk assessment and corrective action to eliminate any predictable or unreasonable risk. Possibly even to the extent that the activity is cancelled if the risks are assessed as being too great for the participants. What is acceptable for a group of eighteen to twenty year old cadets may not be so for a group of newly joined, untrained thirteen year olds.

In principle the concept is simple: stand back and look at all the possible things that could go wrong or cause injury. Give them two separate scores, one for how likely it is too happen, the other for the severity of the injury if it did happen. Multiply the two scores together to give the result. Then consider what preventative measures (or controls) could be utilised to stop the occurrence or limit the injury. Implement those controls and redo the assessment of risk giving new scores.

This is repeated until the score (i.e. the risk) is considered acceptable.

ACP 5 covers the aspect of Risk Assessment in much greater detail and is to be read by all staff. 

Complaints and Unit Investigation Process

The ACP1919 Chapter 3 and ACP 20B AI 205, 207, 21, 213 give the Corps and RAF policy and process for formal complaints. The following flow chart is designed to give you an insight into how these issues are resolved in practice. The flow chart does not replace or supersede the previous documents but is designed as a quick reference.