Visiting Professor, Institute for Health Research, University of Bedfordshire
Visiting Fellow, School of Law, University of Bedfordshire
Consultant in Child, Adolescent and Family Psychiatry
Barrister of the Honourable Society of the Inner Temple, London
Family Mediator, UK College of Family Mediators
Laura G
An inquest in Bristol heard how Laura (14) had committed
suicide by taking an overdose of painkillers after being bullied
at school. The 14-year-old girl had planned her own funeral,
including leaving a letter to be read aloud - "Don't worry
about me, I have gone up above where I really want to be, no
bullies, no school, just happiness". The Headmaster said that
the school had a very strict policy on bullying, and that Laura
had never complained of bullying.
Laura K
Laura (13) was found hanging from the rafters in her
bedroom at her home after complaining about being bullied
at school. Following her death, various school friends said
that there was bullying and that Laura had been targeted.
Police said that they had found no evidence that Laura had
been the victim of a bullying campaign, and that
“confrontations with certain children at school” was no
more than was usual at school".
Marianne
Marianne (15), killed herself after reportedly being bullied.
She had also complained to friends that she was regularly
subjected to verbal abuse. Marianne was found hanged at
her home. The school said it operated a very clear and
strict anti-bullying policy, and police said that there was no
suggestion she took her own life because of bullying.
Nathan
Nathan (12) hanged himself after being tormented by
bullies, and police were probing reports that his life was
being made a misery by older boys at school. On a website
in Nathan’s name, a classmate had written: “I hope the
bullies who pushed him to this are happy”. In response, a
school governor said that “bullying does not occur any
more or less here than in any other school".
Shaun
Shaun (14) hanged himself with his school tie after a long
period of bullying. Bullies made his life a misery, including
being headbutted, thrown into a ditch, having an earring
pulled out and being stamped on. In one alleged "happy
slapping" incident, a bully launched a flying drop kick into
Shaun's back while others filmed the assault on a mobile
phone. The school subsequently won a prestigious award for
its anti-bullying work.
Anna Marie
Anna Marie (15), hanged herself in her bedroom at home a
month before her 16th birthday after being bullied at school.
Anna Marie had been subjected to systematic verbal and
physical abuse by three girls over a period of eight months.
The bullies had called her terrible names, and pushed her
head through the bars of the school gate. The situation
became so bad that the police were involved but the
headteacher said that she was unaware of any allegations of
bullying.
According to Young Minds, many children get into fights and
disagreements from time to time, but the resulting teasing and
name-calling is invariably done in a spirit of fun and playfulness.
However, when this kind of behaviour becomes persistent and
threatening, singling out children who cannot stand up for
themselves, then bullying can become a major problem for all
concerned
Unfortunately, bullying is not easy to define and there are many
definitions of bullying behaviour
The Department for Education and Skills (DfES) considers
bullying to be conduct which is deliberately hurtful, repeated
often over a period of time and difficult for victims to defend
themselves against
According to the DfES, there are three types of bullying:
• physical bullying such as kicking, hitting and theft;
• verbal bullying such as name-calling, offensive comments
or racist remarks; and
• indirect bulling such as spreading malicious rumours,
telling nasty stories about someone or excluding peers
from social groups.
Broadly speaking, bullying may include the following types of behaviour:
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name calling and teasing
swearing
taunting and mocking
offensive comments
malicious gossip
Stealing
physical violence
sexual innuendo
sexual assault
making threats
coercion
extortion
Stalking
defacing of property
ignoring peers
isolating peers from group activities
In 1997, 10-20% of young people were described as having
experienced general bullying, rising to 30-50% among secondary
school pupils who were attracted to the same sex
A MORI survey published in 2000 revealed that one in three
secondary school pupils in England and Wales experienced bullying.
One in four had been threatened with violence, whilst one in eight
had been physically assaulted. One in ten pupils said that they had
missed school for fear of violence.
Research in 2003 by the Department for Education and Skills
showed that 51% of Year 5 pupils had been bullied, and that over
half of both primary and secondary school pupils thought that
bullying was a problem in their school
A four-year study of more than 11,000 children published in
2006 found that nearly 15% of those surveyed had received
nasty or aggressive messages, more than 10% of UK teenagers
said they had been bullied online, 24% knew of a victim of
online bullying, 44% of respondents knew or had been
threatened via email or instant messaging services, around 33%
knew of instances where bullies hacked into email accounts and
sent embarrassing material from them and 62% had heard
rumours or malicious gossip spread online.
The 2006 National Bullying Survey found that 69% of the
4,772 children studied had been bullied, with 33% of parents
surveyed expressing fear that their child may be suicidal
because of bullying.
This survey was conducted by the charity Bullying UK, which
chillingly concluded that its evidence indicated that this
problem is getting worse.
Courts have uniformly refused to outline exactly what
constitutes school bullying, stressing instead that ‘there is no
magic in the term’ itself”.
This proves problematic as identifying what behaviour
constitutes bullying is essential, since liability will only be
imposed where a wrong of a legally recognised and definable
nature has been committed.
In Mulvey v McDonagh, the Irish High Court adopted guidelines to
Irish primary schools which described bullying as “repeated
aggression, verbal, psychological or physical conducted by an
individual or a group against others”
In England, Bradford-Smart v West Sussex County Council held that
“uncouth behaviour … of a targeted and persistent nature” was
required
In Scotland, bullying has been described as “a pernicious
phenomenon, often involving … criminal assaults by the bullies on
their victims”
Although the definitions are not consistent, the words
“deliberate”, “persistent” and “severe” recur. Where
courts have been persuaded that behaviour can be
described in this way, they have normally been satisfied
that bullying has taken place
It is essential to recognise that schools and their occupants, just like all
other people and institutions, are subject to the law of the land
Equally, before bullies can be punished, there must be a clear case against
them
At present, In the United Kingdom, there are no focused statutes or
specific laws which relate directly and exclusively to bullying in schools.
Instead, any legal anti-bullying action has to be undertaken within the
umbrella of other, often only marginally relevant, statutes.
Telecommunications Act 1984
Making repeat offensive postings on an internet message
board, or inviting others to do so, would constitute breaking
of the law under the Telecommunications Act 1984.
Public Order Act 1986
It is against the law to make someone feel distressed,
alarmed or harassed, and some forms of bullying may
therefore amount to criminal behaviour. Where a child has
been threatened, and caused to fear immediate violence, the
bully may have committed an offence under s4 of the Public
Order Act 1986.
Children Act 1989
All state schools have a duty to ensure the safety, and to protect
the emotional well-being, of every person in its care. If a young
person is being harassed or abused, the school must take action to
protect them. This duty of care is the same for all.
Disability Discrimination Act 1995
Any discrimination is against the law, and this law serves to protect
the rights of people with a disability. The Disability Discrimination
Act was updated in 2005 to tackle hate crime against people with
learning disabilities, and to promote disability equality on all public
bodies.
Education Act 1996
s19 of the Education Act 1996 clarifies that suitable education
in relation to a child or young person means efficient
education suitable to their age, ability, aptitude and any
special educational needs they may have.
Protection from Harassment Act 1997
This Act contains two criminal offences which may apply in
cases of bullying: the offence of harassment; and the offence
of putting people in fear of violence. Making offensive
postings on an internet message board, or inviting others to
do so, could also constitute breaking the law. However,
criminal prosecution cannot proceed unless the harassment
has taken place on at least two separate occasions.
Crime and Disorder Act 1998
The victim, if being frightened or upset by someone, can
ask the police or the council for help. They, in turn, can ask
the court to stop the person’s adverse behaviour using an
Anti-Social Behaviour Order (ASBO).
Youth Justice and Criminal Evidence Act 1999
This Act makes it easier for victims of bullying to be a
witness in court, including the use of videos to record
evidence if going to court in person proves too difficult.
Race Relations (Amendment) Act (2000)
Schools are under a statutory duty to work towards the elimination
of racial discrimination, and to promote good race relations. Any
failure on the part of a school to deal with bullying which involves a
racial element could be a potential breach of the Act.
Education Act 2002
Schools have a statutory duty to provide opportunities for all pupils
to learn and achieve, whilst promoting their spiritual, moral,
cultural, mental and physical development. Under s175, schools
and LEAs are under a legal duty to safeguard and promote the
welfare of children who are pupils at the school. They must take all
reasonable measures to ensure that risks of harm to children’s
welfare are minimised, and take all appropriate action to address
concerns about the welfare of children.
Education and Inspections Act 2006
The Act puts a legal duty on schools to make provisions
to tackle all forms of bullying. It also gives teachers clear
guidelines on how to combat disruptive behaviour and
bullying, and the legal right to confiscate personal
property if it is being used in a malicious or disruptive
way. The act is geared towards supporting teachers, and
tackling the rising problem of cyber-bullying.
European law
The Human Rights Act 1998 came into force on 2 October
2000, and incorporated into United Kingdom law the European
Convention for the Protection of Human Rights and
Fundamental Freedoms.
No one shall be subjected to torture or to inhuman or
degrading treatment or punishment (Article 3) and everyone
has the right of respect for his private and family life, his home
and his correspondence (Article 8).
Negligence
The prevention of bullying among pupils is within a
teacher’s ordinary duty of care, under both statute and
common law. However, the standard of care generally
expected of a teacher is that of a reasonably prudent
parent of a rather large family. Schools are not therefore
legally required to guarantee the absolute safety of
children.
Breach of contract
In regard to children who attend fee-paying schools, parents can be
considered to have entered into a contract with the school on
behalf of their child. A school which failed to provide such an
environment could be sued for breach of contract in the civil
courts.
Defamation
If the bullying is done by spreading rumours, starting gossip, telling
lies or in some cases, name calling, the bully and all those who
spread the stories could be sued for defamation. This is part of the
civil law and has been developed over the years to protect the
reputations of innocent people .
Criminal assault and trespass to the person
As bullying only infrequently manifests itself in serious physical
abuse, it is not usually covered by the criminal law of assault.
However, anytime a bully hits, attempts to hit or threatens to
hit anyone, that bully may be committing the crime of assault.
To date, there is only a diminutive collection of negligence
decisions within the United Kingdom concerning school
bullying, and it remains an area where legal precedent is
already disappointing.
Although UK courts have indicated that they are by no
means adverse to the possibility of a successful future claim,
no UK claimant has yet succeeded and the ongoing dearth of
case law will continue to thwart clarification of outstanding
legal issues.
It is evident that courts in the United Kingdom have been
reluctant to find schools negligent when they fail to protect
pupils from bullying.
Problems arise as there is no legal definition of bullying.
Equally, there is no clarity in law as to how far a school must
go to protect a pupil against bullying, especially outside of
school premises.
At present, determination of legal liability in school bullying
cases raises issues of almost insoluble complexity.
There is no prospect of success unless there is ample evidence
of physical or mental harm, backed up with letters to and from
the school and comprehensive medical reports.
All legal action relating to bullying is also extremely
expensive, even if children qualify for Legal Services
Commission funding. Without it, such actions can be
extremely costly, especially if cases are appealed or
referred on for European rulings. Even if damages are
awarded, they will not be high and the bully,
particularly if a younger child, may not be in a position
to pay anything anyway.
In theory, bullying in schools can be legally tackled using an
array of statutes, European laws and common law
precedents. However, in reality, the laws and procedures
for dealing with bullying in schools are actually very weak,
and parents really have few effective legal remedies
available if schools fail to implement bullying policies or
protect their pupils.
Effective anti-bullying laws should cover the following points:
• The word "bullying" must be used in the text of the statute
• The law must clearly be an anti-bullying law, not a school safety law
• There must be definitions of bullying and harassment as defining the
problem is the key to solving the problem
• There should not be any major emphasis on defining victims
• There should be recommendations about how to make policy, and
what needs to be in the model policy.
• A good law will involve education specialists at all levels
• A good law will mandate anti-bullying programs, not suggests programs
• There must be protection against reprisal, retaliation or false
accusations
• There must be accountability to lawmakers