Information

Bullying

This page provides information on the duties of schools and Local Authorities to prevent and tackle bullying in schools and action that can be taken by a parent or child to address bullying.

What is bullying?

A definition of bullying is outlined on the gov.uk website and states that the 4 key characteristics of bullying are that it is:

  • repetitive and persistent;
  • intentionally harmful;
  • involving an imbalance of power;
  • causing feelings of distress, fear, loneliness or lack of confidence.

Departmental Advice published by the Department of Education “Preventing and Tackling Bullying” defines bullying as:

“Bullying is behaviour by an individual or group, repeated over time, that intentionally hurts another individual or group either physically or emotionally. Bullying can take many forms (for instance cyber-bullying via text or the internet), and is often motivated by prejudice against particular groups, for example on grounds of race, religion, gender, sexual orientation, or because a child is adopted or has caring responsibilities. It might be motivated by actual differences between children, or perceived differences. Stopping violence and ensuring immediate physical safety is obviously a school’s first priority but emotional bullying can be more damaging than physical; teachers and schools have to make their own judgments about each specific case.”

The Department of Education has issued Advice on “Preventing and Tackling Bullying” to help schools and Local Authorities address and prevent bullying. There is no legal requirement to follow the advice, but it explains what government policies mean in practice.

Bullying can include the following types of behaviour:

  • name calling and teasing;
  • taunting;
  • mocking;
  • making offensive comments – verbally, by text message, by email or by social networking sites;
  • malicious gossip;
  • stealing;
  • physical violence;
  • making threats;
  • coercion;
  • isolation from group activities.

What duties does a school have to safeguard children?

Anti-bullying policy 

Under the section 89 Education Inspections Act 2006, head teachers are required by law to draft a written policy on measures to prevent all forms of bullying. This is their anti-bullying policy.

Section 89 also:

  • provides that every school must have measures in place (via the school’s behaviour policy), to encourage good behaviour and prevent all forms of bullying; this policy must be communicated to all pupils, school staff and parents.
  • gives head teachers the ability to ensure that pupils behave when they are not on school premises or under the lawful control of school staff.

The Department for Education Advice on Preventing and Tackling Bullying states that schools should have policies in place to deal with bullying and poor behaviour that are clear to parents, pupils and staff, so that when incidents do occur, they are dealt with quickly. If a school chooses to define bullying for the purposes of its own behaviour policy, this should be clearly communicated and understood by pupils, parents and staff.

What duties does a school have to safeguard children?

Section 175 Education Act 2002 

This section places a legal duty on maintained schools and Local Authorities to safeguard and promote the welfare of children.

Section 175 requires two types of arrangements to be made:

  • to take all reasonable measures to ensure that risks of harm to children’s welfare are minimised;
  • to take all appropriate action to address concerns about the welfare of a child, or children, working to agreed local policies and procedures in full partnership with other local agencies.

The Government has also issued Statutory Guidance documents:

Safeguarding covers more than child protection. The Guidance states that it specifically covers issues such as health and safety and bullying.

A failure to have necessary arrangements in place under section 175 may be grounds for the Secretary of State to take action against a Local Authority or Governing Body.

What does the government guidance on preventing and tackling bullying require?

Prevention

The Advice states that a school’s response to bullying should not start at the point at which a child has been bullied. It notes that the best schools develop an approach to bullying in which school staff proactively gather information about issues between pupils which might provoke conflict and develop strategies to prevent bullying occurring in the first place. This might involve talking to pupils about issues of difference, perhaps in lessons, through dedicated events or projects, or through assemblies. Staff themselves will be able to determine what will work best for their pupils, depending on the particular issues they need to address. 

Intervention

School anti-bullying policies and behaviour and disciplinary policies should set out the actions which can be taken to address bullying. The Guidance states that schools should apply disciplinary measures to pupils who bully, in order to show clearly that their behaviour is wrong. Disciplinary measures must be applied fairly, consistently, and reasonably, taking account of any special educational needs or disabilities that the pupils may have and the needs of vulnerable pupils.

Should I take my child out of school?

When parents discover that their child is being bullied, their immediate response is often to remove their child from school until the matter has been dealt with. This is problematic, as the school will treat the absence as unauthorised.

At Coram Children’s Legal Centre, we often receive calls from parents whose child is simply too frightened to go to school or risks being badly injured if they do. If this is the situation you are faced with, we would advise you to seek a medical certificate from the GP to authorise your child’s absence. 

Section 7 Education Act 1996 imposes a duty on parents to ensure that their child of compulsory school age receives a suitable education, either by regular attendance at a school or otherwise. Section 444(1) Education Act 1996 provides that if a registered pupil of compulsory school age fails to attend school regularly, the parent is guilty of an offence. Therefore, periods of unauthorised absence can result in you being prosecuted for failing to ensure your child’s attendance at school. 

Parents can consider alternatives to withdrawing a child from school to ensure the child continues to receive a suitable full time education. This can include:

  • contacting the Local Authority and requesting they provide education as part of their section 19 duty for children out of school for other reasons such as bullying;
  • making an ‘in year’ application to another school; or
  • removing the child from the school roll and home educating. 

Please see our How-to guide on Bullying for more information. 

Parents can be issued with a Fixed Penalty Notice for their child’s non attendance

What are the duties of independent schools to address bullying?

Section 157 Education Act 2002 and the Education (Independent Schools Standards) (England) Regulations 2003 require proprietors of Independent schools (including Academies and City Technology Colleges) to have arrangements to safeguard and promote the welfare of children who are pupils at the school. 

Independent schools are required to publish and implement written policies on the prevention of bullying, having regard to any guidance issued by the Secretary of State (Part 3, Schedule 1, Education (Independent School Standards) Regulations 2010). However, as independent schools are not public bodies and are not, therefore, subject to judicial review, parents can find it very difficult in practice to challenge their policies and procedures, or their failure to publish them in the first place. 

Independent schools are required to publish a written complaints procedure, which is available to parents on request (Part 7, Schedule 1, Education (Independent School Standards) (England) Regulations 2010).

Independent schools (including Academies and City Technology Colleges) [are] to have arrangements to safeguard and promote the welfare of children who are pupils at the school. 

What legal action can you take if a bullying problem is not addressed?

If all else fails, you may wish to consider legal action. Before starting any form of legal action, it is wise to consult a criminal law solicitor. Details of solicitors can be found at www.lawsociety.org.uk

Criminal action

Some forms of bullying may amount to criminal behaviour. Children under the age of 10 cannot be prosecuted for a criminal offence. 

If your child has been injured, you should take your child to a doctor to obtain medical evidence. As soon as possible, your child should write down the details of all the bullying incidents. 

It is advisable to contact the police in cases where the assault is of a serious nature and the school and Local Authority have consistently failed to deal with the bullying. Sometimes, the mere threat of informing the police is enough to spur the school or Local Authority into action. Unfortunately, schools themselves rarely involve the police in bullying incidents, even where there has been serious violence.

The Protection from Harassment Act 1997

The Protection from Harassment Act 1997 defines the criminal offence of harassment (which can include bullying). It provides for the possibility of a civil injunction to restrict the behaviour and for damages to be claimed for the harm suffered. Applications should be made via a solicitor.

Civil action

Judicial review

It may be possible to seek a judicial review of the school’s or Local Authority’s failure to take appropriate action to deal with the bullying situation. As a result, the school or Local Authority may be forced to act.

Judicial review is a public law action. It can only be taken against public bodies or private bodies that perform a public duty. Local Authorities and boards of governors are susceptible to judicial review. You can contact Civil Legal Advice on 0345 345 4345 to see whether you are eligible for legal aid to bring this claim. Otherwise, you should visit a solicitor.

Judicial review cannot be used where the complaint is against an independent school, as independent schools are not public bodies.

An application for judicial review can be made only once all other possible remedies against the school and Local Authority have been exhausted. Furthermore, you must act promptly. Applications for judicial review must be made within 3 months of the disputed act or decision (e.g. the decision of the governors or Local Authority not to take any action against the bully). This time limit can sometimes be extended where the court considers that there is good reason for doing so. 

In judicial review, the court examines the way in which a decision has been reached but not the actual merits of the decision. For example, an application might be successful where the school or Local Authority:

  • failed to follow proper or correct procedures;
  • did not apply the law correctly; or
  • acted so unreasonably that no other school or Local Authority would have reached such a decision.

A child can apply for judicial review, provided the court believes that he or she has sufficient interest to apply. If a child has left the school and is settled at a new school, he or she is unlikely to have sufficient interest.

Unless it is proved that the Local Authority, school or teacher has also been negligent, a successful application is unlikely to result in the payment of damages. However, a successful judicial review action may have the effect of forcing the school or Local Authority to act to stop the bullying.

Injunctions

It may be possible to obtain an injunction to prevent a bully continuing with the problem behaviour. For this action, you would need to seek advice from a solicitor.

A human rights action

The Human Rights Act 1998 (HRA) came into force on 2 October 2000. The HRA incorporates into UK law the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). These rights can be found in Schedule 1 of the HRA. All Public Authorities must act in compliance with Convention rights (section 6 HRA) and all legislation must be interpreted to comply with them. If a Public Authority acts in a way which is incompatible with a Convention right, the victim may take legal action against that Authority. The term ‘Public Authority’ includes Local Authorities, and governors and head teachers of schools.

There are 2 rights which may be of particular assistance to a bullied child who fails to obtain protection against bullying:

  • Article 3 ECHR states: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Corporal punishment has been banned in British schools as a consequence of a ruling of the European Court of Human Rights outlawing physical punishment in schools. Where a school consistently fails to protect a child from bullying by another child or a teacher, this could constitute a failure to uphold a child’s right under Article 3. However, the threshold for Article 3 is extremely high. 
  • Article 8 ECHR states: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’. Where children are forced to strip in public changing rooms against their will, or to have their bags and lockers searched, their belongings removed or are exposed to video surveillance, this may not amount to inhuman or degrading treatment, but may infringe their right to respect for private life. Again, however, the standard of proof is extremely high for Article 8. In order for a claim to be brought under the HRA 1998, the bullying would have to be extremely serious and have resulted in physical or psychiatric damage which is supported by strong medical evidence. 

A claim under the HRA must be brought within one year of the breach of a Convention right, although it is not clear whether the strict one year limitation period will always apply to children.

Thus far, the HRA has been of little use in cases of bullying.

It is advisable to contact the police in cases where the assault is of a serious nature and the school and Local Authority have consistently failed to deal with the bullying.

Negligence

You may be able to sue the school, teacher or Local Education Authority for damages, as compensation for psychiatric damage or physical injuries suffered by your child.

Negligence arises where a duty of care is owed to the child, and that duty of care is breached, resulting in injury or damage to the child. The law in this area is very complex. For a case to be successful, it would be necessary to prove all of the following:

  • That your child has been bullied
    There is no legal definition for bullying. In deciding whether bullying has occurred, the court will look at all the circumstances. It will be necessary to prove that the bullying went beyond normal social interaction between children and was of a serious nature.
  • That the teacher or school owes your child a duty of care 
    It is well established in law that a school owes its pupils a general duty of care. However, it is far less clear in law how far a school must go to protect a pupil against bullying.
  • That your child has suffered harm as a result of the bullying incidents 
    This could be physical injuries, psychiatric damage or emotional and psychological damage. The harm must have been a consequence of the bullying incidents, and expert evidence will be needed to prove the damage in court.
  • That the harm was foreseeable
    It must have been reasonable to expect that the teacher or school could foresee that your child might suffer harm or damage.
  • That the harm suffered was a direct result of the teacher and school negligently failing to act to protect your child
    It would need to be shown not only that the teacher or school knew what was going on, but also that they failed to take reasonable steps to stop it. Schools are not legally required to guarantee the absolute safety of children. However, they must ensure that pupils receive the same level of care and supervision that a reasonably prudent parent would take of his or her own children.

There have been a few negligence actions relating to bullying in schools. Whether a claim is likely to succeed depends very much on the individual circumstances of the case.

You have until your child is 21 to bring a claim for educational negligence.

Breach of contract

If your child attends an independent school, you will have entered into a contract with the school on behalf of your child. This contract is the instrument that governs the relationship between you, the school and your child.

The school agrees to provide services to your child and may be sued if it fails to provide such services. Such obligations are reciprocal. You may be sued for failing to pay fees and so on. Such a contract is no different from the type of contract which might be entered into with any other supplier of services bought by a consumer. 

Coram Children’s Legal Centre often receives calls from parents who have removed their child from an independent school because of bullying. The parents want to know whether they are still required to pay the fees for the remainder of the term or year. Generally, parents will be contractually bound to pay, but it is necessary to refer to the contract for a definitive answer to establish whether the school is in breach of contract. The Citizen’s Advice Bureau may be able to assist with this. 

If your child is being bulliedFlowchart

flowchart

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  • Keep a record of all incidents including photographs and speak to the teacher
  • Has the issue been resolved?
  • Ask the school for the copies of
    • The school’s Anti-bullying Policy to see the measures the school should take
    • The school’s Discipline/Behaviour Policy to see what sanctions the bullies should receive
    • The school’s Complaints Policy to identify how you submit a complaint
    • Your child’s school records to identify how the school has dealt with the bullying
  • Speak to the Head Teacher to raise concerns
  • Has the issue been resolved?
  • Make a formal complaint to the school as per the complaints policy
  • Has the issue been resolved?
  • Is your child’s school a Maintained school or an Academy?
    • Maintained school
    • Make a complaint to the school governors
    • Has the issue been resolved?
    • Make a Complaint to the Local Authority
    • Has the issue been resolved?
    • Academy
    • Make a Complaint to the Academy Trust
    • Has the issue been resolved?
    • Make a Complaint to the Education Funding Agency
    • Has the issue been resolved?
  • Make a complaint to the Local Government Ombudsman
  • Has the issue been resolved?
  • Make a complaint to the Secretary of State for Education

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Going further

More detailed information can be found in our How-to Guide. Please note that a fee is charged for this service.