The recent glut of stories of historical abuse in youth football have highlighted the vulnerability of sports clubs and other not-for-profit organisations to their own pasts. Events long ago (or the mishandling of events long ago) under different managers or trustees can easily re-emerge years later, casting doubt over an organisation’s practices or reputation. Organisations of all sizes – from church groups to football clubs to large charities – must know how to react if this happens.
Most organisations now have well-defined policies and procedures for protecting children and other people who are vulnerable by reason of their age, health, or physical or mental abilities. These will include procedures for responding to concerns raised. But a learning point from current media stories is the difficulty of doing this in practice – for both historical and present day allegations.
The principal challenge with these cases is that the legal requirements, reputational ramifications, and people’s instinctive desire to be transparent, deal with an issue quickly, or make up for possible wrongs may not always align. With historical cases, previous circumstances such as confidentiality agreements can intensify the challenges. There is also a current tendency, particularly via social media, to adopt binary attitudes, when in fact many incidents are nuanced. In addition, it is asking a huge amount of individual trustees or volunteers to deal effectively with events or allegations that, in many cases, would be challenging for experienced professionals.
The first priority in handling an allegation of historical or recent abuse or any other complaint is to follow due process. Ideally, this will be encapsulated in the organisation’s own guidelines and processes, though this should not be assumed. Critically, due process must be followed as soon as a complaint or allegation is made. There’s a tendency to think due process and the right to a fair trial under Article 6 of the European Convention on Human Rights relate to “bigger-league” contexts only, and not their own circumstances. Far from it; any case, no matter how “small” it seems initially, can escalate without proper processes around it.
Following due process is critical, but might not provide all the answers. A common problem involving child protection issues is hearing a response or action “seemed right at the time”. A complaint is raised, and trustees or managers take steps to sort it out quickly so people and organisations can move on. Due process is followed, consensus is reached, and the situation seems to be resolved.
Except that it isn’t. Perhaps someone did not realise the long-term consequences and later regrets the course taken; perhaps an organisation failed to anticipate possible reputational consequences; perhaps the incident is reopened ten years later and a a settlement or compromise agreement begins to look like a cover-up; or perhaps parents or carers underestimated the effects on the child involved.
Actions taken quickly or ill-advisedly can be extremely difficult or even impossible to unpick. This certainly applies in legal terms, but also perhaps in reputational or psychological terms.
Given this complexity – and the fact that every allegation may involve life-changing events or consequences – every case must be handled with legal skill, certainly, but also with emotional intelligence from lawyers and other professionals. All groups or clubs, and their advisers, need the ability to see the bigger picture, including possible longer-term legal consequences, the scope for misconceptions or rumours, or the effects on individuals and organisations. This requires high levels of experience and judgement, beyond what may be available in the organisation itself.
When we read the stories of football abuse in the media, we’re rightly shocked at what seems to have occurred in the past. We should be pleased so many organisations now have better practices in place to protect the vulnerable, but should also recognise they don’t provide all the answers. Inevitably, there will be many more allegations to come, not just in sport but in other spheres of life. More than ever, grassroots organisations and their advisers need to avoid over-hasty reactions and legal naivety when we deal with them. It's not just people’s well-being and lives at stake, but the functioning of our civic society and local communities.
Brent Haywood is a Dispute Resolution and Litigation Partner,Lindsays