The respondent, an incumbent, faced two allegations: the first concerning his conduct during a telephone call made to him in 2011; the second concerning neglectful conduct in respect of his duties as regards compliance with safeguarding guidance. Person 1 was an adult who had, as a teenager, been the victim of abuse by Person 3, a member of the respondent's congregation who was a convicted sex offender, with whom the respondent had made a safeguarding agreement in 2011.
Regarding the first allegation, the charge against the respondent was that his conduct was unbecoming or inappropriate to the office and work of a clerk in Holy Orders within section 8(1)(d) of the Clergy Discipline Measure 2003 in that, during a telephone call, he had adopted an aggressive tone, had used the phrases ‘you are going to destroy this man's life’ and ‘I have wept with him when other accusations have been made’ and had said that Person 1 should ‘learn about forgiveness’, ‘fall on his knees’, ‘repent’ and ‘beg forgiveness’. Person 1 (who was not a member of the congregation, although his parents were) had called the respondent to request a meeting with him, as he had information to share concerning Person 3 and there was potential police involvement. He had made a contemporaneous note of the conversation. Further, the tone and phrases employed echoed those used by the respondent to the diocesan safeguarding advisor in a call concerning Person 3 in 2017, which caused her such concern that she consulted the archdeacon.
The tribunal found, on the balance of probabilities, that the factual allegations were made out. Further, given the context, the respondent was on notice that the call was at least likely to relate to sexual offences concerning Person 3 and that the call required sensitivity; the lack of it was damaging in its context. The charge was therefore made out.
The second charge was that the respondent failed to have due regard to the House of Bishops’ guidance on safeguarding (Protecting All God's Children, fourth edition, 2010), contrary to section 5 of the Safeguarding and Clergy Discipline Measure 2016 and section 8(1)(aa) of the Clergy Discipline Measure 2003, in that between 2016 and 2018 he: encouraged or allowed Person 3 to take on an official role within the church, namely as home group leader and as a member of the Parochial Church Council (PCC), contrary to national safeguarding guidance; and did not follow the national and diocesan safeguarding guidance by failing to retain a copy of a safeguarding agreement entered into in respect of Person 3 and to carry out reviews of that agreement on a regular basis.
It was not in dispute that the respondent had allowed Person 3 to become a home group leader and PCC member; the respondent's denial that these were positions of ‘status or authority’ was rejected. Further, the level of supervision was inadequate, and demonstrated naivety and over-reliance on Person 3's self-regulation. The tribunal rejected the submission that the obligation to ‘have due regard’ to the guidance was met by the respondent simply trying to ensure that he did everything that needed to be done (on which he had tried to consult the diocesan safeguarding advisor). An explanatory note made in February 2020, but encapsulating earlier principles, made clear that:
The legal duty to have due regard means that the person to whom the guidance is directed is not free to follow the guidance or not as he or she chooses. As a matter of law, the guidance should be given great weight and must be followed unless there are ‘cogent reasons’ for not doing so.
…
‘Cogent reasons’ are reasons that are clear, logical and convincing. It will be very rare indeed for there to be cogent reasons for not following House of Bishops guidance on safeguarding. Cogent reasons are likely to arise only where the guidance does not contemplate a particular, unusual situation arising so that it becomes necessary to take a different approach from that set out in the guidance in order to meet the particular circumstances of the case.
When would ‘cogent reasons’ be applied?
A person who is required to have due regard to the guidance should not simply take it on him or herself to decide that there are cogent reasons for departing from the guidance. Such a decision should be taken – if at all – only after case specific advice has been obtained from both the diocesan safeguarding advisor and the diocesan registrar.
It was further not in dispute that the respondent had not kept a copy of the 2011 safeguarding agreement, having sent the original to the archdeacon. Accordingly, he could not have complied with the guidance that the agreement be reviewed at least annually – it being of the essence of the safeguarding framework that the review must be undertaken by the incumbent personally. This charge was also, therefore, made out.
As to the appropriate penalty, the tribunal accepted that the harm suffered by Person 1 was serious. The call had been a tipping point causing him to strongly doubt the care and support available from the Church, and indeed his faith. The second charge had concerned neglectful rather than deliberate breaches, but they had persisted over a prolonged period and the respondent's conduct during the hearing exhibited a notable lack of insight and remorse. The tribunal imposed by way of penalty: a rebuke for misconduct; an injunction that, if the respondent were granted an authority to exercise ministry (he having retired), he complete training on safeguarding, pastoral boundaries and conflict management; a further injunction that he co-operate with supervision of his ministry for a year following any recommencement; and a prohibition against exercising any function of his holy orders for a year. [DW]
