When statutory guidance apparently isn't statutory

[BonfireLady]

This is a sex and gender related post specific to statutory school safeguarding and the 2024 update to national guidance.

Background

In September 2024, the DfE's new statutory schools' safeguarding guidance came into effect. Importantly, it explains the difference between LGB and gender questioning (this term was used instead of "T") children. Its updated paragraphs (205-209) signpost towards both the Cass Report and the draft Gender Questioning Children guidance. It was published in May 2024, with the draft GQC guidance expected to be finalised in July... and then came the election. The GQC guidance didn't get finalised. Obviously the other document that it references (the Cass Report) is already finalised.

The detail

Paragraphs 205-209 are prefaced by the following words:

N.B. This section remains under review, pending the outcome of the gender questioning children guidance consultation, and final gender questioning guidance documents being published.

As far as I can tell from the government website, the fact that these paragraphs "remain under review" doesn't stop them being statutory. This page about statutory guidance states:

Statutory guidance sets out what schools and local authorities must do to comply with the law. You should follow the guidance unless you have a very good reason not to.

There is some guidance that you must follow without exception. In these cases we make this clear in the guidance document itself.

These publications reflect the current legal position (unless otherwise indicated), but may not reflect the current government’s policies.

It also makes it clear that "must" refers to legal requirements and "should" refers to best practice.

Reason for my post

I'm keen to hear views from teachers, people with experience working with children, people with legal knowledge and other brilliant minds on this board WRT:

1. a school saying that it has consulted its lawyers and has received advice to say that it doesn't need to follow these paragraphs because they are "draft". IANAL but that doesn't sound right to me from a legal perspective. Surely these paragraphs are current but potentially subject to future change i.e. they should be followed the same way as all other current guidance in the document.
2. When asked their position on the actual content within the paragraphs beyond a nebulous "we follow a watchful waiting approach"**, responding with "for a complaint that paragraphs 205-209 of KCSIE are still in draft form, you are advised to complain directly to the Department for Education." Obviously that's not the answer to the question that was asked! However, it does make me wonder if the DoE should be asked to remind schools that all published guidance is current. You'd think that'd be obvious but maybe it's not??

To my understanding, paras 205-209 in the KCSIE guidance represent current best practice and schools would need to have a good reason not to follow them. To me, "our lawyers told us we don't need to" (paraphrased) sounds as ridiculous and concerning as the act of going to the lawyers on this in and of itself. But are there any good reasons why schools might not follow this guidance?

** There are various interpretations of watchful waiting. For example, some people believe that following a one-step-at-a-time "let's change your pronouns and see how you feel" is watchful waiting.

Good questions, OP.

I remember Stonewall advising organisations to “go beyond the law” some years ago. And though we don’t officially have gender self-ID in Britain, there’s no penalty for all the many organisations that act as if we have, until heroic individuals take them to court or tribunals to uphold the law. Justice is an uphill struggle.

1. a school saying that it has consulted its lawyers and has received advice to say that it doesn't need to follow these paragraphs because they are "draft". IANAL but that doesn't sound right to me from a legal perspective. Surely these paragraphs are current but potentially subject to future change i.e. they should be followed the same way as all other current guidance in the document.

Trans rights activists, including those directly in schools, were putting this message out at the time.

Interesting. And sadly not surprising.

Do you know if any lawyers publicly commented back by any chance @Ereshkigalangcleg ?

As an ex civil servant, my advice would be to write to and/or speak to your MP on this, in order to get an answer from DfE. If your MP is unhelpful then I suggest writing directly to the minister.

My interpretation on (1) would be the same as yours although IANAL.

With luck a lawyer will be around somewhere here to help you, but I'd recommend writing to DfE (ideally via your MP) for a definitive answer.

I'm sorry you are going through this.

Iirc schools week ran a piece saying lawyers said it wasn't going to be lawful

Do you know if any lawyers publicly commented back by any chance

Not offhand, but they may well have done. I think it was seen as more of a policy issue than a legal one at the time.

Sorry I'm posting in a rush.

The draft guidelines. But at the time there was a lot of discussion online batting back this idea

The draft guidelines essentially spell out the current law in actuality

Your post highlights the mess it still is very clearly. And how it is continuing to affect children

This doesn't answer from a legal perspective but demonstrates how the Cass review is being put into place by NHS - this info is to support anyone who wants to know more, including professionals such as educators

www.minded.org.uk/Catalogue/Index?HierarchyId=0_59819&programmeId=59819

@2fallsfromSSA sorry for the tag, do you know any more about this particular wording from a legal pov?

I actually think that the issue in particular is the term should which is in several of the key paragraphs.

So it's statutory but it's not must. It's considered best practice.

You could argue that under review also means consideration around what should be a must in this situation. And therefore are schools prepared to be legally challenged.

It appears that anyone in education is assuming that none of it will remain.

I'd be asking whether all the other bits of statutory guidance which might ever be changed (i.e. all of it, it's updated once a year) could also not be followed?

Their lawyers are shit and what they're doing is illegal. They're basically saying we will not follow statutory safeguarding guidance when it suits which is admitting to a major safeguarding failure.

Not surprising, many schools don't have single sex toilets as required in law.

But rather stupid to put in in writing. Where can I garden?

I would be inclined to take a case against the school as well as report to Ofsted.

This is not in the best interests of the children in that school (all of them) and is misuse of public funds if they're a state school. Most state school budgets are incredibly tight, what are they taking money away from so they can pay lawyers to prop up their ideological bias?

Even if it's a 'should' not a must, they also should expect to be challenged if they don't follow guidance. And they need good evidence for not doing so, which they won't have.

Yes I agree.

Children cannot legally transition in England. That is the law and is not under review. The recommendations are because of the issues outlined in Cass and so should not be ignored.

A school is putting themselves at risk of being accused of a serious failure of safeguarding if their actions lead to identifiable harm in the future.

Thanks all. Really useful food for thought.

I contacted Ofsted a little while ago when considering options (without naming the school) and their advice was to raise a complaint with them. There are a couple of important reasons why I haven't done that just yet but I've pretty much already decided it's a when, not an if.

Unfortunately my brilliantly helpful (ex) MP no longer has a seat. I don't have much faith in my current one but I guess you never know. Plus it's a step in a process.

The really daft part is that I had been working with the school to help them address their own potential legal exposure and (more importantly from my POV) how they support gender questioning children in the context of the wider school. I was aware it should have been moving more quickly so it wasn't a huge surprise when it took.. a different direction.

But rather stupid to put in in writing.

Yes. I thought so too...

I'd be asking whether all the other bits of statutory guidance which might ever be changed (i.e. all of it, it's updated once a year) could also not be followed?

Also what I thought. Although I haven't explicitly stated that... yet. So thank you. Just because it seems so bloody obvious doesn't mean it shouldn't be said.

Their lawyers are shit and what they're doing is illegal. They're basically saying we will not follow statutory safeguarding guidance when it suits which is admitting to a major safeguarding failure.

Also what I thought. I have another example of their strange pick and mix approach to "best practice" on the wider theme of sex, gender identity and safeguarding so it's helpful to think of it this way.

You could argue that under review also means consideration around what should be a must in this situation. And therefore are schools prepared to be legally challenged.

This is a great point. Yes, it's ambiguous. But that's all the more reason why schools should consider the paragraphs themselves to be current best practice. Not just discard them as irrelevant.

Even if it's a 'should' not a must, they also should expect to be challenged if they don't follow guidance. And they need good evidence for not doing so, which they won't have.

Indeed.

Where can I garden?

I might end up with a plot on an allotment at some point. Nothing imminent though but thank you for asking. I'm currently navigating some difficult stuff in the wider system that's linked to all of this. But as part of that journey, there are positive conversations. The bit I need to give serious consideration to is when/if it's time for more than just talking. The more I think about this kind of risk to children and also to the parents who are being misrepresented as a risk to their children, the angrier I feel. It was a thread about a child at risk of imminent, irrerversible harm and a parent who isn't being heard that led me to start this thread. I keep coming back to how heartbroken and disempowered that parent must feel. Public institutions have turned safeguarding on its head and are framing those that are trying to protect their children as abusers.

This is not in the best interests of the children in that school (all of them) and is misuse of public funds if they're a state school. Most state school budgets are incredibly tight, what are they taking money away from so they can pay lawyers to prop up their ideological bias?

Indeed.

Courts decide the law. Not lawyers.

Children cannot legally transition in England. That is the law and is not under review. The recommendations are because of the issues outlined in Cass and so should not be ignored.

I think that a significant problem here is that schools aren't actively taking on board what the phrase "social transition isn't a neutral act" means. If they really stopped and thought about it, it unlocks everything they already know about vulnerable children and safeguarding when you read the rest of the Cass Report. Yes, they need better statutory guidance but it's all laid out for them if they simply focus on what they already know.
(I guess it also sometimes depends on how neutral, ignorant or activist the DSL and Head are in a school)

Indeed. But lawyers have expensive arguments!

If any have been held in the public arena it would be useful to see what's being said. I had a Google to see if I could find the Schools Week article but no luck.

@SerendipityJane yes but from what I saw online some educators don't get that. And assume it won't pass / can be challenged and be deemed unlawful.

This is it @BonfireLady

schoolsweek.co.uk/trans-guidance-dfe-lawyers-said-schools-face-high-risk-of-being-sued/

I think that a significant problem here is that schools aren't actively taking on board what the phrase "social transition isn't a neutral act"

Absolutely this. That's the part that needs to be stated in kcsie.

The draft guidelines do do this but that's draft. Though it does set out the law that already exists. Eg single sex provision and age, parental rights etc

If they really stopped and thought about it, it unlocks everything they already know about vulnerable children and safeguarding when you read the rest of the Cass Report.

You have to have read the Cass review.

In my own school's sept safeguarding update they didn't even mention that section (outside company delivering.)

Hence threads like this:

phse/life skills teacher doesn't know what the Cass review is www.mumsnet.com/Talk/womens_rights/5253153-phselife-skills-teacher-doesnt-know-what-the-cass-review-is

Not withstanding that I agree - it's in the Guidance, you follow it until such point as it changes - I wouldn't focus upon the cost of legal advice to schools.

They will already have a legal firm on a retainer (somebody like Stone King) either at school or MAT level. Maintained schools and academies alike, plus the governance professional (who despite the recent efforts of the NGA, will generally come down upon the side of 'this is what the Law says') advising the BOG/BOT/BOMS clearly.

If the school then decide to ignore the guidance and found themselves in a fancy wood room with a gardener, never mind a smallholder (never hurts to think big), that would represent an additional cost above the retainer level of service, but they will still receive advice from them that this is the Law. And schools don't have money knocking around for that sort of thing.

BOG/BOT/BOMS

Board of Governors
Board of Trustees
Board of.... ?