On Sunday 11th July, General Synod was given first sight of a new complaints system to replace the Clergy Discipline Measure (2003). A reform of this CDM legislation has been a long time in the in-box of the Church of England. The old measure has caused (and continues to cause) a great deal of unhappiness, even trauma, to those who have been caught up in its tentacles.
The Church Times of July 2 helpfully summarised four main features of this new Clergy Conduct Measure. First of all, it is going to ensure that professional support is available for the accused, as well as survivors and victims. Secondly, it will ensure that cases are dealt with within a reasonable period of time. Thirdly, there will be independent oversight of the disciplinary functions and professional training for those administering any aspect of the measure. Finally, there will be proper resourcing of diocesan and national bodies to ensure that complaints and allegations of misconduct are dealt with properly. This legislation cannot come too soon for some who face accusations of unprofessional or improper conduct of some kind.
The case that I have had brought to my attention does not involve a clergy person but a layman. From what I can gather, the protocols required in setting up this particular case are close to identical to those that are used for the clergy. I have had to gloss over many of the details to preserve the anonymity of the case. I do, however, believe that what I can reveal illustrates clearly how failings in each one of these four areas at present contributes to what seems to be a desperate miscarriage of justice.
What I can reveal of the case allows me to say that it concerns an allegation of inappropriate sexual touch of a child chorister at a large church in England. The accused, a layperson we shall call Kenneth, is in his mid-70s and has faithfully served the church in various ways for most of his adult life. Why am I inclined to believe his protestations of innocence? The main reason is that the story as told by the chorister and the mother is full of holes and contradictions.
These reveal themselves in their testimony and it is hard to see how the story could be true. There is also evidence of some members of the Core Group having strong pre-existing bias against Kenneth.
Kenneth, first heard about the allegation from police in March 2020. The police did not show any inclination to pursue the matter themselves, so the case reverted back to the Church’s processes. The allegation was difficult to respond to as there were a number of inconsistencies in the allegations. For example, the child could not remember whether the offence had taken place in a crowded vestry or in a one-to-one situation.
The church concerned has a very strict chaperoning system and the child’s mother is one of a number of volunteer chaperones. When asked to explain how her child was not being watched during the alleged assault, the mother explained that she was temporarily out of the room dealing with another matter. The allegation is of sexual touching on three occasions. The mother has not explained whether she was outside dealing with another matter on all three occasions. The other glaring inconsistency is the fact that no precise date has been given for any of the offences. It has not been possible to establish clearly a time when the chorister and Kenneth were together in such a way that an offence could have taken place. There are other forms of evidence available-church registers and potential witnesses, but no one has felt able to pursue these with energy.
As soon as the allegation was made, a Core Group was set up by the local diocese to manage the situation. Kenneth was automatically suspended from all duties and banned from attendance at his church and unable to attend any other Christian church without that church being notified of the allegation. The Core Group consisted of a fairly random group of people, including one who is a Facebook friend of the chorister’s mother. It is noticeable that no one in the Group appears to have any legal training.
From looking at the papers that Kenneth has provided me, it seems that little has been done to ask the common-sense questions about the situation, including establishing exactly when and where any offence might actually have happened. Kenneth was abroad for some of the period when the claimed offence might have taken place. The existing protocol for a situation of this kind seems to allow for delays, so nothing is done with any sense of urgency.
One particular massive misunderstanding seems to have taken root in the Group and this makes it difficult for them even to consider the possibility of Kenneth’s innocence. The Core Group apparently insists that its role is not to seek the truth but to believe the child. Apparently one of the Core Group has claimed (without checking) that this principle is set out in the parish safeguarding manual. The Facebook friend of the chorister’s mother is also a fan of the child for his/her skill in singing. This would appear to conflict with Lord Carlisle’s principle, that scrupulous impartiality should be observed by all members of a core group investigating an alleged offence. This one member of a core croup, with a strong partiality towards the victim, at the same time representing the strongly negative attitude of the mother against Kenneth, is easily able to disrupt any sense of neutrality in the Group. One potential witness, a chorister chaperone, who might have spoken on behalf of Kenneth, has been silenced on the grounds that she has ‘history’ with the mother. This potential witness was one of the chaperones who were on duty on the Sundays when the alleged offence could have taken place.
When Kenneth rang me up a few months ago, we discussed the allegation and he told me that an independent investigator was to be brought in. When I heard about this intervention, I expressed the hope that a true outsider would see the anomalies of the case and bring a more forensic approach to establishing the facts. He would be able to discern the likely plausibility of the child’s story, particularly the discrepancies over dates and details. I also expressed the hope that the truth would be established far quicker if mother and child were interviewed separately. This has apparently not happened so far. The child is now 15 years old so should be able to speak for him/herself. I told Kenneth that, from where I stood, the influence of the mother over the child also needed to be understood. This would help provide a better perspective on the overall dynamics of the situation.
The independent investigator came and went, but afterwards it was discovered that according to his terms of reference, he was only required to investigate ‘the methods of the way the allegation was dealt with and not the allegation itself’. In other words, he was not being asked to give any opinion about the plausibility of the accusation. Meanwhile his report is embargoed so that neither Kenneth nor his solicitor can see what was discovered. The 16 page report in a redacted form was available for just two hours to be viewed, but not received in hard copy. We are now still in a limbo situation 20 months after the original accusation was made in March 2020. In all that time no one has stepped forward seeking to establish what might or might not have happened and whether the evidence to support the child’s claim is convincing. The overwhelming assumption of the Core Group seems to follow the principle, ‘the child must be believed’. Failure to do this is thought to be re-abusive. What a sad misunderstanding of the principles of safeguarding and how little it serves justice. Assuming the CDM revision is going to apply to cases involving laity, the reforms cannot come soon enough.
In my personal experience I have found that ordinary common sense which would help get at the truth is frequently not applied. I can’t see why this should happen, but it can and does mean that It is harder for justice to be done. It is depressing to hear that groups tasked with dealing with safeguarding are still not convened in a fair manner. Nobody with a conflict of interest should take part nor be permitted to make decisions. My sympathy goes out to everyone who is unjustly accused as it does to all who have been abused and not received justice. I am glad that my own husband was able to prove his innocence in a court of law after our Diocese started a campaign of reprisal for his whistle blowing. For anyone who is innocent and the system does not allow them to prove it, it is a terrible miscarriage of justice. You cannot just accuse someone and not allow questions to be asked which would show the truth about their innocence or guilt. Genuine complainants would surely welcome questions being asked which would help show the truth of their allegations. When I filed cdm against a clergyman, I was only too glad to clarify matters and was fortunate that the solicitor was intent on getting to the truth. When my husband faced trial It was the questions asked by solicitors on both sides which brought out the truth of his innocence. It is important both for innocent people who are wrongly accused and genuine complainants that this should be the norm. Otherwise not only will outcomes be unjust, but even the allegations of genuine survivors like myself who have their complaints upheld will be held to be suspect. Clearly if the core group believed they need not try to get at the truth but need not only to believe the complainant there was no need to convene. It only needed someone to declare it was so. Or would that have drawn attention to the injustice? Of course the fact that the report is embargoed in this way is suspicious in itself. We hear time and again of suspect processess by the church. I have long since concluded that the church is not concerned with truth or justice. It does not even appear to be embarrassed by bumbling and incompetence. We really need a truly independent arbitrator who can step in when it is obvious proper processes are not being followed. Whilst the church marks its own homework justice will continue to be denied to everyone.
“We really need a truly independent arbitrator”.
Indeed, and not just for sexual or emotional abuse cases. I wonder whether we should now be thinking in terms of a church ombudsman. If the state can have such officials, since 1967, why not the Church also? I have mentioned previously that safeguarding should be vested in an independent agency, but there are many issues which are not necessarily, or only, ‘safeguarding’ matters per se, but are about the wider relationship between the Church and those caught up in its processes.
The likely blocker of any scheme for an ecclesiastical ombudsman is the vanity and self-regard of the episcopate. They sometimes view their legal processes in a proprietary fashion. Note Tim Dakin’s reported remarks about complaints being made in ‘his’ court: in other words, he presumed – wrongly, surely? – that because the diocesan chancellor is a judge who holds a commission from him, that judge must therefore do his bidding. However, it is the case that the ecclesiastical courts *are* an emanation of episcopal power; the archdeacons had their own courts (now moribund), and the chancellors were part of the episcopal chanceries: i.e., they were chief clerks who came to perform legal functions as judicial proxies for their masters, the bishops; bishops had their own chancellors as if they were kings or magnates. We now have the new James report on Monmouth in which one of the many flaws identified with respect to the Church in Wales is the persistence of a ‘monarchical episcopate’. This way of thinking is now so ‘over’ that attempts by mediocrities (who have risen to the top by dint of a negligible talent pool: another observation of Graham James) to argue that they have ‘proprietorship’ over any process now come across as not merely utterly absurd (and insolent) but also malignant.
So, I think that the creation of an office of ombudsman with a dedicated budget, investigatory powers and a remit to look after those who have been at the rough end of the Church, is now necessary, not least in order to continue to subvert the obsolete/redundant notion of the bishop as a baron with a retinue.
I am very sorry indeed to read that you and your family have been subjected to this treatment. There seems to be a terrible tendency (as with ‘Kenneth’) to confuse process with purpose (i.e., justice), and to give preference to particular sections of the community rather than to the discernment of the truth and the achievement of justice. It seems that John 18:38 prevails in the thinking of many core groups and amongst some of those in authority: for too many of them truth is malleable, and should conform with prevailing political or financial objectives, regardless of the ‘collateral damage’.
I hope that Stephen will be able to write about the Monmouth report in a future blog post. It struck me as being a rich seam for future discussion about safeguarding and cultural issues with respect to the Church.
Slightly off topic, but apparently Martyn Percy is facing a hearing as to his mental fitness on Friday.
In his enforced isolation (I’m not personally clear how far the C of E, as distinct from the Ch Ch Governing Body, has responsibility for this continuing) Martyn Percy is still regularly writing and publishing articles on theological and moral issues in lucid language. There is even one today on ‘Thinking Anglicans’.
My experiences of CDMs and core groups have not been positive ones, so I sympathise with anyone who has not had fair treatment and good support, as we all should. As complainant I have had no support or legal advice either. I agree with you both, an independent arbitrator is essential, I hope the new Independent Safeguarding Board can deliver that.
In terms of Kenneth’s case, I can’t imagine we have enough information to judge, without having access to all the evidence that the core group has. But it’s certainly a brutal process for everyone.
I would just comment that I see absolutely no reason for a 15year old boy to lie about sexual abuse or to go through the trauma of disclosing.
Also understanding of the neuroscience of trauma tells us that inconsistency in details of accounts are expected because of the way the body stores traumatic memories. So for me this is a strengthening indicator in considering someone’s account.
It sounds like the independent person was brought in to undertake a ‘lessons learnt’ review, which is looking at process not the substantive issues. This would normally be published, once all relevant parties have agreed, or redactions made.
If they have commissioned a review, that would indicate that the core group have made a decision, presumably of substantiated if they are pursuing a CDM? The decision is not a finding of fact, it’s whether the alleged perpetrator poses a safeguarding risk. My experience is that generally the threshold for that is set high.
Certainly CDM reform cannot come soon enough. Starting with removing the 12month out of time rule for all safeguarding related issues.
I have the opposite problem to the beleaguered Martyn Percy. My out of time application was dismissed because I am apparently not mentally unwell enough!
The whole system needs trauma informed practice training.
Unfortunately any reform of the CDM will not cover laypeople. The church has very limited disciplinary authority over the laity except in relation to office holders.
However the issues you identify are those that arise because of the quite extraordinary way Core Groups (now to be known as Safeguarding Case Management Groups or SCMGs) are convened and operate. They do not differentiate between clergy and laity so what applied to Kenneth will equally apply to a suspected cleric.
I set out in recent lecture to the Ecclesiastical Law Society my analysis of what is wrong with the system and what needs to change That is at pp 8-13 of the text which is available here – https://ecclawsoc.org.uk/wp-content/uploads/2021/12/ELS-Lecture-50950-v4.pdf
It is quite extraordinary that the safeguarding process in the Church of England proceed on the basis of not determining the truth or otherwise of the allegation that has been made.
If the CDM were to be reformed by having a simple and straightforward investigation at an early stage to determine what is more likely than not to be the case about the allegation, there is no reason why such a system for looking at allegations about a cleric could not also be used in relation to the laity as I suggested towards the end of the lecture.
Thank you very much indeed for that paper, and for your excellent summary of the history of the jurisdiction. I have depended upon R. H. Helmholz (especially vol. 1 of the ‘Oxford History of the Laws of England’ (2003), a series which sadly seems to have stalled), but he only takes the story up to 1649, and recent coverage thereafter is relatively scanty, the likes of Stephen Waddhams notwithstanding (for example, Patrick Polden does not deal explicitly with the decline of the ecclesiastical courts in v. 11 of the Oxford History, which covers the major losses of 1825-68).
I agree that there comes a point where something as seriously flawed as the CDM cannot be patched further, and that it is necessary to construct something completely new.
Peter, thank you for the link to your lecture and all you say there.
I’ve been banging on about how “it is quite extraordinary that the safeguarding process in the Church of England proceed on the basis of not determining the truth or otherwise of the allegation that has been made” since I started my case. I can’t understand how you can make a risk assessment without deciding on the probability of whether something did or did not happen.
It’s especially important as around 80% of cases will not have a charge or conviction or other finding of fact.
In my Survivors Voices role, I’ve not heard anything more about the CDM reform since February. Do you know when survivor organisations will be invited to contribute to the process?
We’re also still waiting to be involved in the review of the policy on managing allegations/core groups. I hope you will be able to contribute to that too.
The Implementation Group is slowly working through what should be the shape of a new Discipline Measure, though preferring to call it a Clergy Conduct Measure. They told theNovember session of General Synod that they hope to have a sufficiently clear ‘shape’ to put before a ‘fringe meeting’ at the February Synod. As I understand it, that will be the beginning of their consulting on the shape of the proposals including with survivor groups. I would expect Survivors Voices to be one of those groups.
As a complaintant I would welcome a simpler process at the outset to make preliminary findings. In fact rather than go down the cdm route this year I laid a formal complaint against my Rector with my Bishop hoping matters would be sorted out with less strain and stress. However as I heard nothing back I wrote that I now wished to file cdm and because my disability precludes me from filing cdm I asked for the necessary assistance which by law must be provided . Once again I received no reply. I was (but probably should have known better by now) astonished that a formal safeguarding complaint would be ignored after the recent long suspension of a Bishop who failed to take action (I believe) over a safeguarding complaint. In desperation I filed cdm in a safeguarding charge against my Bishop asking for the required help. I also offered to summarise the complaint so that the person concerned knew what they were dealing with. This too was ignored. After 30 days of the last time of asking I emailed saying you are failing in your safeguarding duties. Finally I received a response that the required assistance would be given by X. X then told me it was not a safeguarding complaint. I had to argue further fbefore X demurred and started to give assistance. I asked X who had made the decision that it was not a safeguarding complaint but X would not tell me. What X said next was that As I had used the words “due regard” in my email (in the context of someone not paying due regard” it would go forward as a safeguarding complaint. I can only conclude that As the chuurch does not seem to wish to determine the truth of an allegation because it enables cover ups and bodged decisions to be made. However it is the fact that formal safeguarding complaints against clergy are being ignored in the hope they will go away which particularly upsets me. As far as I am concerned it is only lip service which is paid to safeguarding guidelines. Even now complainants have to battle to get a fair hearing. However I don’t believe that you can get a fair hearing within a system which ignores its own guidelines and processes.