Safeguarding and the Clergy Discipline Measure (CDM)

Introduction

In 2019, the National Safeguarding Panel considered the Clergy Discipline Measure 2003 in relation to safeguarding. There was an in-depth discussion on whether the Measure was fit for purpose. The Church has since set up a Working Group chaired by the Bishop at Lambeth, Tim Thornton. In 2019 we made a number of recommendations and suggested areas that the Working Group should focus on. The Ecclesiastical Law Society also convened a Working Group to review the CDM and published an extensive report on 21 February 2021.

The Independent Inquiry into Child Sexual Abuse (IICSA) in its two reports on the Church of England expressed serious concern about the operation of the Measure. They stated that there needed to be a more appropriate range of interventions with which to address capability, risk and past and present failures. The second report made a specific recommendation that the measure should be reviewed and improved.

In our last meeting we heard from members of both the Church of England working group and the Ecclesiastical Law Society working group.

Working groups’ proposals

The Church of England working group is recommending an entirely new discipline measure.

There are three key recommendations:

• Triaging of complaints – some types of complaint are better handled through mediation or another form of alternative dispute resolution and the adversarial method is often not helpful in cases of pastoral breakdown. Many complaints do not concern misconduct.
• A central office to manage complaints – this would address concerns that many dioceses have a very small number of complaints so don’t have the necessary expertise and that Bishops experience a conflict between their disciplinary and pastoral roles.
• Professional Standards – currently it is difficult to determine what exactly constitutes misconduct. It is therefore proposed that the Church of England’s understanding of Clergy Discipline should be set within the broader context of professional standards.

The working group reported that ahead of proposed changes work has been undertaken to improve communication including an overhaul of the website to a more simplified version. The Codes of Practice had also been revised from a complex tome to one which is user friendly, helpful, and easier to understand.

Panel members were keen to understand the differences between the recommendations of the two working groups. The major point of divergence is the Ecclesiastical Law Society’s preference for discipline cases to be assessed, triaged and decisions made on the appropriate route at a regional panel. The debate highlights the potential for greater consistency of decision making via a centralised process and the benefits of being closer to context and situational awareness within a regional decision-making body. The Ecclesiastical Law Society also recommend retaining the bishops’ role for cases that don’t go to a tribunal.

Support for complainants, witnesses and respondents

The Church Working Group has proposed a prohibition on the respondent cross examining witnesses. This would automatically apply to vulnerable witnesses, those in sexual misconduct cases and for offences against children. It was noted that the Chair of a disciplinary tribunal has wide case management powers with all criminal justice and family court powers available to them. Clarity was sought by the Panel on the role of advocates and the ability of advocates to represent complainants at tribunals. A member of the working group agreed that if the allegation was a safeguarding matter, complainants should be given an advocate, in a supportive, not legal sense.

Support for domestic abuse victims

Questions were asked regarding any proposals to improve the care and better manage the risks to women who are abused in a clergy marriage. The reply was that the Measure is about disciplining clergy. The responsibility for dealing with support and care doesn’t relate to the discipline process but to the dioceses’ policy and procedure. Every diocese has bishop’s visitors/advisors for pastoral care and counselling. This question raised the need for a broader response towards developing care and support packages for the families of clergy who abuse.

Improved data

It was acknowledged that accessing information on the discipline process and discipline outcomes for clergy can be difficult. This is complicated by different arrangements across dioceses as well as challenges with national coordination. Members of the church working group said that the Clergy Discipline Commission could potentially have a greater role in performance monitoring although at present some key indicators were neither collected nor asked for.

Thresholds and risk assessments

The Panel asked about thresholds for suspension and links between a revised disciplinary process and risk assessment. It was acknowledged that to date there have not been thresholds for four out of the five grounds for suspension. There are different ways to approach this, such as the Church in Australia whose discipline measure starts with a glossary of terms, definitions and thresholds. The distinction in the Church of England between serious and gross misconduct needs clarity as does the practical application of suspension. It was also accepted that there is a need for greater clarity around risk assessments including:

• What is the purpose of the risk assessment?
• How should it be evaluated?
• Who should do them?

Behaviour before ordination

Panel members asked whether behaviour before ordination could be considered in relation to safeguarding under a Discipline Measure if it comes to light after ordination. Concerns were expressed about the principle of holding someone to account against a set of standards that they had not yet signed up to. It was agreed that each case needed careful assessment and would involve the balancing of risks. There would be opportunities to address this through establishing a framework of professional standards that apply when joining.

Investigation

The Panel expressed concern that the current investigation process is driven by a legal model. It was asked whether the future investigative processes would take account of the complexities of safeguarding disclosures. The response was that investigations should be started earlier. Triaging would be crucial to assessing safeguarding cases and risk. A rigorous system was needed to identify at an early stage the nature, scale and scope of the issues being dealt with. There is broad agreement in the Ecclesiastical Law Society and the Working Group that minor failures should be regarded as capability, not misconduct and that serious misconduct should be investigated earlier.

Definitions

There is agreement that clearer definitions are needed within disciplinary processes including misconduct, serious misconduct, gross misconduct and the distinctions between capability and discipline were clear for all. The Church Working Group has a work plan to address these definitions was being developed. The plan is that the new Measure won’t contain those terms but they will be referenced in the Code of Practice and supporting guidance.

Oversight

The Panel queried future oversight of decision making and who should scrutinise or audit decisions by dioceses. The Church Working Group proposes a greater role for scrutiny once with accountability defined within the Measure. There will need to be a relationship with the new independent scrutiny arrangements. The responsibility for governance could potentially sit with an enhanced Clergy Discipline Commission. The potential role of the Diocesan Safeguarding Advisory Panel (DASP) was raised. It was suggested that they could be used more to test and pilot initiatives.

Burdens of proof

The Panel wanted to know how a new process will take account of the different burdens of proof: criminal, beyond reasonable doubt; civil, on the balance of probabilities. How will these affect a disciplinary process when criminal proceedings are also involved? The Ecclesiastical Law Society are suggesting a hearing within 6 months and that this should progress alongside a criminal investigation unless the police advise it would compromise the investigation or evidence. The processes should run concurrently.

It was also stated that the provisions within the Measure recognised that if you’re convicted, imprisoned or suspended you can be removed from office without a complaint or discipline process. Secondly, the tests of beyond reasonable doubt and the balance of probabilities, in terms of a serious sexual offence, were not that different. Both required consistency, credibility, and compelling evidence.

Victim and survivor engagement

Panel members consider that meaningful consultation is essential for developing new proposals. The Church Working Group consultation received 99 written responses and 101 people attended the consultation event. 8 people took up one -one meetings. The proportion of those involved that were survivors, victims or complainants was unknown. The development of a new Measure could take up-to two years, providing further opportunities to consult and evaluate. The value of assessing the experience of those that had utilised the Measure was reaffirmed. Experiences should inform developments with the new Measure to ensure a learning culture that drives practice.

Panel’s conclusions and recommendations

General

• Clergy discipline is a key part of ensuring a safer church. The Panel therefore wishes to be kept informed of the work on replacing the measure and will consider whether it should hold a further scrutiny session in due course.
• There should not be time limits by which any safeguarding complaints should be made. This recognises the serious nature of safeguarding and the importance of investigating all safeguarding concerns.

Support measures

• Those involved in the process of clergy discipline in a safeguarding matter whether complainant, witness or clergy should be offered advocacy and/or support as should the families of clergy.
• The Panel welcomed the improved communication and engagement within the current disciplinary processes.

Transparency and data

• Current data is limited and provides little confidence to survivors. The Church should set out how it intends to improve transparency and accessibility of clergy discipline data.

Scrutiny and governance

• The Panel recommends that there should be improved scrutiny and oversight of clergy discipline. As part of the proposed changes to the Clergy Discipline Measure, the need for robust and transparent governance should be addressed. This includes oversight of the Clergy Discipline Commission, and the role of Diocesan Safeguarding Advisory Partnerships in monitoring data on discipline measures related to safeguarding within dioceses.

Safeguarding and risk

• The panel welcomes developments with the early assessment of risk through a triage process. This should be a priority area for improvement. The process should be widely consulted upon.
• The policy on the function, purpose and ownership of risk assessments should be further developed by the National Safeguarding Team and clearly identify how they relate to the discipline process.

The Panel also identified that there continues to be confusion around the use of core groups. It recognises that not all safeguarding issues should or could be resolved by discipline processes and that developing a professional culture and associated standards of behaviour for clergy are an important area of work.

Further information

The House of Bishops met in mid-May and the following is relevant:

“The House then discussed updated proposals relating to the Clergy Conduct Measure which were shared with the House in December. The proposals were discussed in an opening plenary session (introduced by the Bishop at Lambeth), followed by breakout groups and a final plenary discussion in advance of wider Synodical engagement in July. Amongst the issues discussed were the wider work needed to develop an appropriate ‘framework’ for ordained ministry in the Church of England, covering such areas as fitness to practise, ‘supervision’, ministerial development review, grievance procedures, and capability procedures. The House agreed to support in principle the outline of the proposed Clergy Conduct Measure as presented to the House.”