Inappropriate pastoral conduct involving a child – a new ‘offence’ courtesy 2014 Synod?

Part 3

By Louise Greentree

Don’t let this happen if you do not want to be targeted by malicious and/or neurotic and/or incompetent parishioners and church workers

In Part 1 of this series I wrote the following:

If ever we, the supporters and advisers of Drew and Pippa, ever needed confirmation that Lachlan Bryant, director of Sydney Anglican church Professional Standards Unit and his merry band of the PSU and Professional Standards Committee members were on the wrong track completely when they accepted and promoted a complaint by a man who had been successfully trained by Drew for Christian ministry – and they know it – it is upon reading the papers for the meeting of Synod 2014 to be held in mid-October 2014.

There, dear readers, you will find the way in which the diocesan staff, officers and senior clergy are going to try to hoodwink Synod members while moving the goalposts in Drew’s case that is presently before the Disciplinary Tribunal. It is an attempt to create another offence under the Discipline Ordinance 2006 by way of clause 6 of an amendment.’

That new ‘offence’ is called ‘inappropriate pastoral conduct involving a child’. It has some disturbing features: firstly, the explanatory notes say that this offence has been conceived of to provide grounds for a charge in a case of grooming where there is insufficient evidence of sexual intent[1]; and, secondly, that the inappropriateness of the conduct will be assessed against the ‘standards and guidelines’ of Faithfulness in Service, the code of conduct for clergy and church workers that came into existence in October 2004.

Then I examined the stated Purpose of Faithfulness in Service (FIS), Part 1 containing the Preamble and Part 3 ’Putting this Code into Practice’, which contains a general description of standards and guidelines. I concluded that FIS was not designed to have any ‘offence’ imposed on its’ terms. In order to charge someone for an offence it is necessary that the terms of the offence shall be clear and unambiguous, which the terms of the ‘standards and guidelines’ of the FIS are not. I referred also to the inappropriateness of somehow incorporating these terms into the Discipline Ordinance 2006 which contained a retrospectivity clause and did not contain a sunset clause: that is, a person could be charged for an offence in relation to conduct which occurred years ago (before FIS existed let alone the offence imposed on it) and that person would stand under the shadow of the threat of a charge being brought at any time until that person’s death (the time of which would probably be brought forward due to the weight of sheer anxiety). This is particularly unjust as the new ‘offence’ is clearly not in relation to anything remotely like sex abuse or even abuse of a child.

This is not fitting for a Christian organisation.

In Part 2 I looked at the provisions of FIS in Part 4 dealing with pastoral relationships. I concluded that to make any of these standards and guidelines the basis of an ‘offence’ is ludicrous because of the lack of clarity of expression and the qualification of the advice given in these by phrases such as ‘if possible’.

Now read on:

In this Part I will be looking at the ‘standards and guidelines’ that are applicable to those who are working with children and which are contained in Part 5 of FIS. I have given you a copy of Part 5 of FIS at the end of this Article. I will concentrate on those parts of the guidelines that are of greater relevance to forming a substitute ‘offence’ for grooming, that is, in the absence of any evidence of sexual intent.

The Preamble

As with Parts 3 and 4, Part 5 contains a Preamble setting out statements acknowledging the right of children to be treated with respect, and other generalised statements. Two of these make clear that the incumbent of a parish church, and others working with children in the parish have overall responsibility in the case of the former (clause 5.3), and responsibility in the case of the latter (clause 5.4), for the safety and welfare of children. However, to put at rest ideas that all physical contact with children constitutes abuse (a common misconception) clause 5.7 says: ‘Appropriate physical contact is important for children’s healthy development.’

Following the Preamble is a set of standards. As with the other sets of standards that precede the guidelines in other Parts of FIS, the terms of the standards are prefaced by this statement: ‘These standards state the Church’s expectations for personal behaviour and the practice of pastoral ministry’.

The Standards

The standards divide into the several categories

Levels of responsibility: Clauses 5.8 and 5.9 deal with the levels of responsibility for the safety and welfare of children attending the parish church or other church organisation. Interestingly, for the incumbent (or senior minister, rector or vicar) with overall responsibility for the parish or organisation, the language of the responsibility is quite prescriptive:

‘5.8   If you have overall authority in a church body, you are to ensure that:’

and then follows a list of things that must be ensured – implementation and maintenance of proper systems for child safety and welfare; compliance with applicable requirements of civil and church authorities; compliance with all civil and church requirements for the employment of all clergy and church workers who work with children, including awareness of the provisions of FIS.

However, anyone involved in a pastoral ministry to children in a ‘church body’ is only to take reasonable steps for the safety and welfare of those children (clause 5.9).

This is an interesting distinction because if a church worker who is NOT someone with overall authority in the church body is to be ‘convicted’ under the new ‘offence’ it immediately and as a matter of justice exposes the senior minister to a similar charge and conviction, and at a higher level of dereliction of responsibility (failure to implement and maintain systems of child safety and welfare or failure to ensure that everyone working with children is informed of the provisions of  FIS, for example) because of the prescriptive nature of the terms of that responsibility in clause 5.8.

I am not sure whether this could be entirely a desirable outcome, especially if one is considering applying the new ‘offence’ retrospectively to a time preceding the commencement of the operation of FIS, that is, before October 2004. This could be a very harsh result to arise at a time well beyond the retirement of a well-regarded (loved, even) clergyman at the end of a long and highly effective life in Christian ministry.

As I have noted elsewhere, when allegations are made against a member of the clergy or church worker, it not only sullies their reputation lastingly, even before their defence is heard and beyond even a dismissal of the charges, but it also challenges the faith in Jesus Christ that their parishioners have embraced, which is the fruit of their life’s ministry.

And this would happen if a new ‘offence’ of breaching these standards and guidelines is passed by Synod even though the fallout from the breach is nothing: by definition not involving any sexual impropriety and not even any form of abuse as it is defined in FIS. And not causing any discernible harm.

This should never be allowed to be legislated for simply because by doing this the church plays into Satan’s hands through causing a person’s faith to falter or even be completely destroyed.

Things not to do in pastoral ministry with children: here the standards use blunter and prescriptive, unequivocal language, not unlike the Ten Commandments although there are only three: you shall not: abuse children; administer corporal punishment to a child in your ministry; or give a child any prohibited material (there is a list in the definitions containing the usual suspects) except wine in a service of Holy Communion.

The last three standards deal with, firstly, a process to be undertaken before allowing participation in church activities involving children by a person charged with or convicted of an offence; and a requirement to report concerns that a child is at risk and concerns that a member of the clergy or a church worker is abusing a child, to the director of the PSU.

There is no need to make non-compliance with any of the stipulations referred to in these two sections of the standards an ‘offence’: compliance with almost all is a matter of compliance with state criminal law.

Now I look at the guidelines.

These are divided into categories.

First: Recognising the characteristics and effects of child abuse. This category is not relevant to this examination of the proposed new ‘offence’ because by definition it cannot include any ‘grooming for initiating or cloaking child sex abuse’ (the definition of grooming in FIS).

Second: recognising the characteristics of sexual offenders: for the same reason this is not relevant to this examination of the proposed new ‘offence’.

Third: ensuring the safety of children. Under this heading there are two types of clauses.

The first are those that contain advice regarding external forces that impact on the safety and welfare of children which could arise in the context of activities on church premises or in conjunction with church activities. These include such things as ensuring you know who to ring in an emergency, who has first aid qualifications, how to escape a fire (or, presumably other catastrophe such as a bomb attack or earthquake) that affects the fabric of the building and details of medical conditions such as allergies and depression that affect a particular child, I will not be examining these.

The second type of clauses are those which impact on the relationship between ‘you’ the person addressed by FIS – clergy or church worker – and the child. These are the ones most likely to be used as the basis for making a determination that the conduct was inappropriate and therefore the charge under the new ‘offence’ was proven, and I will examine them in the light of this proposal.

I will continue to show that this is an improper use of the standards and guidelines for three reasons: they are not couched in proscriptive language but are in the nature of advice and recommendations; they are qualified by the use of words and phrases like ‘avoid’ and ‘if possible’ which are very broad ‘defence points’[2] ; and third, what conduct that it is that the clause is making recommendations about can be different from anything like inappropriate conduct. An example of the third point is clause 5.18.

Clause 5.18 ensuring the safety of children

Clause 5.18 commences with this:

‘5.18 Taking all reasonable steps to ensure the safety and welfare of children for whom you have overall responsibility or are in your care requires you to prepare a risk management plan which considers the following issues: (my emphasis)

Then follows a list which I discuss below. It ends up –

These issues are considered in paragraphs 5.19 to 5.47.’

Can this form the basis of a new ‘offence’? To be suitable for this it needs to clearly express what it is that the person has to do or not do.  Second, it should not involve sexual contact or grooming; and third, it should not involve compliance with government (state or Federal) or church law requirements being those that have their own penalties for non-compliance.

This clause does all these things and yet, is it the case that a person should be charged with inappropriate conduct because they did not prepare a risk management plan which considers (to what end is not stated) these various things? I think not.

The ONLY prescriptive aspect is the requirement to prepare the risk management plan which considers all these various factors.  Of course this is such poor drafting – I doubt a document can consider anything, but you as the person who has overall authority in the parish or church organisation (senior minister or school principal, for example) or person with responsibility (youth minister or other church worker) do have to indicate in the document that you have considered these issues.

This is such bureaucratic language: it is risk management to protect the person (‘you’) not to protect the children. It results in a tick-a-box response to planning: ‘Have you considered venue?’ ‘Yes’ ‘Good, write it down and tick the box’.

It also means that each of the issues that the plan has to consider does not contain details of what it is that is ‘appropriate or inappropriate’. Let us look at this more closely.

Take the issue: ‘your role and your capacity to perform it’ which is covered in causes 5.21 – 5.23. None of these clauses contain proscriptive language. They use words such as ‘consider’, ‘avoid’, ‘encourage’.  So, when preparing the risk management plan you will have to ask (yourself and other church workers for whom you have overall responsibility) some questions – you can imagine the conversation going like this:

’Am I trained and qualified to do a particular ministry?’ (5.21)

Answer: ‘Yes, I trained with John Mark ministries for youth ministry and not only did I receive glowing reports for my training I have carried out all their recommendations including for mentoring and counselling post-puberty males in Christian sexuality and addictions such as to internet pornography.’   TICK.

‘Am I qualified in outdoor or adventure activities?’ (5.21)

Answer: ‘Yes. I carry out a rigorous fitness and training regime for myself and anyone who wishes to join me each morning. I have been involved in camping, hiking, spear-fishing, swimming and similar outdoor and adventure activities for many years.’  TICK

Will I refer any child that requires specialised help to a specialist person?’ (Still 5.21)

Answer: Yes.’   TICK

Another good drafting rule when it comes to describing an ‘offence’ is to have one ‘offence’ per paragraph. As you can see this one paragraph contains 3 possible ‘offences’. Are they cumulative (‘and’ + ‘and’) or in the alternative (‘or’, ‘or’)?

‘Have you avoided fostering inappropriate dependence on the part of a child?’ (5.22)

Answer: ‘Yes, to the best of my ability.’  TICK

This interesting clause acknowledges that not only will there be a relationship between church worker and children as part of pastoral ministry, but that a trustworthy one is desirable; but it cautions against the danger that this relationship can develop into something involving an unhealthy dependence. This can be seen in relationships between children and other people in the helping professions as well, and not only with children but certain adults also. It is unhealthy because when, inevitably, the relationship has to come to an end (the clergy or church worker moves to another organisation or the child has to leave, for example) the child is left feeling without support and goes through a form of grief. This sort of unhealthy dependence can arise despite the clergy or church workers’ best intentions: all that they can do is to watch out for disturbing symptoms, and even here, in the busy life of these people, they might miss the signs. But such a relationship should always be dealt with a soon as it is noticed and it certainly should never be fostered by deliberate design.

However, there is another unhealthy relationship of dependence that relates directly to grooming: that is the cynical manipulation of a child’s natural affections in order to initiate a sexual relationship.[3]

Continuing with our check list:

‘Have you encouraged children to develop leadership skills?’ (5.23)

Answer: ‘Yes’.  TICK

I think you get the picture.

Paragraph 5.25 Supervision

This clause commences:

5.25 The degree of supervision required will vary according to the nature and environment of the activity, the age and maturity of the children and the size of the group.

This statement affects all that follows in this clause and renders it, even when it becomes in part proscriptive, still a matter of overall discretion taking these factors into account as to how the advice and proscription is applied in a particular case. This raises significant problems with making such a clause the basis of an ‘offence’ – if the discretion is exercised appropriately then the fact that, for example –

 Having multiple leaders to ensure that supervision and accountability standards are maintained is vitally important.

–          is virtually meaningless.

This constitutes advice, not proscription. The particular ministry may not have access to multiple leaders, no matter how vitally important that is seen to be. And taking this in conjunction with the preceding statement, if the children are aged between 16 and 18, there are 10 of them and the activity involves a discussion of issues that affect teenagers, it may be decided legitimately that no further leaders beyond you is required. So this statement is unfortunately drafted, especially as the basis for an ‘offence’.

The only mildly proscriptive sub-clauses relate to distinguishing between different levels of responsibility between you and other supervisors; to consider the elements of the proposed activities that affect the need for additional supervision; having a register of contact details for a child in the case of an emergency; and to monitor and periodically review child protection procedures. Surely the expense and the anguish caused by a charge for non-compliance with such recommended activities as ‘distinguishing’, ‘considering’, ‘maintaining’ (a register of emergency contact details) and ‘reviewing’ is hardly to be contemplated.

Clauses 5.26 – 5.32 Activities

Clauses 5.26 to 5.28

These cover a wide range of advice that relates to prevention of threats to a child’s physical safety and prevention of exposure to material unsuitable for their age. In clauses  5.29 and 5.30 there is advice to guard against abuse by a child of another child by monitoring children’s activities where away from supervision, or involving secret initiation rites, nudity or sexual activity, or using or making available prohibited substances – alcohol, drugs, cigarettes and the like. Of course the age of the children is going to be very significant here. The advice in these clauses is qualified by words and phrases ‘to minimise the possibility … give careful consideration to’ and ‘ensure’.

Clause 5.31

This clause contains two separate issues (another piece of undesirable drafting if you want to make this guideline the basis of an ‘offence’): one is to obtain the written consent of a child’s parent or guardian if taking the child away from church premises, and keep them informed of place and timing of the event; second, ‘if you can’, include parents or guardians in a team of mixed gender. The first is a matter of risk management for ‘you’. The second is qualified by the words ‘if you can’ and so is not proscriptive, and not suitable for being the basis of an ‘offence’.

Clause 5.32 Meeting child privately

Two of the various recommendations contained in this clause are clearly qualified recommendations, using language such as ‘where practicable’ and ‘where appropriate’. These apply to parental consent for such a meeting and having a parent or guardian present. The age of the child and the purpose of the meeting would be two contra-indications here: meeting to counsel a mid-teenager on issues in his relationships would clearly not go ahead if a parent had to be present!  Another recommending advising another member of clergy or a church worker or adult of the time, location and duration of the meeting is risk management for ‘you’ and failure to advise should not be made the subject of a charge.

One of the remaining two would seem at first to be proscriptive: not to invite a child to your home or visit children in their homes without  another adult being present (risk management for ‘you’) but it, and the rest of the recommendations in ‘these guidelines’, is immediately undermined for the purposes of making them an ‘offence’  by the final one: advice to  ‘make a record of the time, location, duration and circumstances of any meeting where it is impracticable to follow these guidelines.’[4]

Clause 5.33 – 5.35 Venue

Clause 5.33 commences with a word of qualification ‘avoid’ rather than a proscriptive phrase. It is followed by recommendations that will assist ‘you’ to avoid – in this case, working alone or in isolation with children, or, if necessary, to provide you with risk management strategies involving things like high visibility and/or presence of other adults or parents.  This alone of most of the clauses does not seem to distinguish the advice on the basis of the age of the child. Clearly a recommended embargo on allowing a child (of age 8 for example) from leaving the church premises unsupervised could not possibly be enforced against a 17-year-old in possession of a car and a licence to drive it. In relation to the other recommendations they have less and less applicability the closer the child is to adulthood. The same can be said with clause 5.34: the general advice is qualified, in this case by the phrase ‘where possible’. And yet, it should not be just a matter of ‘if possible’ when talking about the segregation of sleeping accommodation by gender especially with older, possibly even sexually active teenagers (despite your best teaching about chastity).

But there it is: ‘where possible’, the clause says, ensure that supervisors do not sleep in close personal proximity to a child. The use of the word ‘personal’ to qualify the nature of the close proximity indicates that the authors may not have in mind simply everyone zipped up in their sleeping bags and sharing a mattress or a place around the campfire but something with less fabric between the two bodies. Even extra supervision apart from ‘you’ is qualified by ‘if possible’.

You can see the difficulties of making this advice and these recommendations the basis of an ‘offence’.

Clause 5.35 merely says that there should be private facilities for washing and toileting in a venue where youth activities are held, with the additional advice that where ‘you’ have to assist by toileting or washing a child (clearly a very young one) you let someone else know what you are doing – a sensible risk management strategy to avoid any appearance of leading the child away to be with you secretly. Clearly campsites and other places of accommodation for youth group weekends away will be very likely to comply in any event. On the other hand, sleeping under the stars with nothing more than a pit toilet behind a bush and a stream for washing is less likely to be the location for a group activity.

What is omitted from these recommendations is mention of public facilities such as public toilets, change rooms and showers whether in the open, at the beach or a playing field for example, or part of a building containing a gymnasium or similar indoor sporting activities like indoor cricket, basketball and the like. These definitely come under the heading ‘if possible’ although that phrase is not used. If the group goes spear-fishing – and this indicates that they are in their mid-to-late teens – then using the facilities provided at the beach is a given, regardless of whether the showers offer privacy.

 Clause 5.40 Transport

Clause 5.39 under this heading only deals with complying with the law about the vehicles and drivers that are used in child activities. But clause 5.40 is one that might be used to determine what conduct is inappropriate in the proposed new ‘offence’ – avoiding being alone with a child in a motor vehicle or driving a child home unaccompanied. However, yet again, there are problems and defence points raised by the wording: the clause commences with the phrase ‘to the extent practicable‘; and there is the use of the word ‘avoid’ rather than the phrase ‘do not’. And the second sentence completely wipes out any element of proscription and makes it clear that this is a matter of risk management for ‘you’: ‘If such a situation is unavoidable, inform another adult of the trip and the reason for it’. It would be scandalous if a child had to be left to await the arrival of parents because the available church worker could not give him or her a lift home for fear of a charge.

Clauses 5.41 and 5.42 Discipline

These clauses deal with discipline of staff and discipline of children attending church activities. They ONLY apply to the person with overall responsibility for the parish or church organisation. Corporal punishment has been prohibited by the standards.

Clauses 5.43 – 5.44 Physical Contact

These two clauses are expressed in general terms to the effect that physical contact with children should be: initiated by the child and with the child’s permission – excluding circumstances such as immediate physical danger or medical emergency; respectful of the child’s feelings and privacy (both 5.43); and non-sexual, not sexually stimulating nor capable of being construed as sexually stimulating.(5.44) These clauses are followed by a ‘box’ containing advice to be very careful when making physical contact with children.

Then follows two short lists, one of some appropriate and one of some inappropriate physical contact.

The list of some examples of inappropriate physical contact has these:

• Kissing or coaxing a child to kiss you
• Extended hugging or tickling
• Touching any area not covered by a swimming costume: these are itemised as the buttocks, thighs, breasts or groin areas
• Carrying older children, sitting them on your lap or having them rub up against you.

Including the thighs as an area not covered by a swimming costume is odd: it is surely a long time since males and females wore swimming costumes covering their thighs – the old ‘neck-to-knee’ costumes. Another problem is touching the groin area and so forth when having to toilet and wash a young child: in another clause this is OK if you tell another adult what you are doing.

What is clear is that the other examples have been drafted more with very young children in mind, where they are unable or less able to give or deny permission. Carrying an older child (from about aged 7 onwards up to 17 years, 11 months and 29 or 30 days is certainly not a realistic possibility) or sitting them on your lap (although this seems to imply a male lap rather than a female lap).

It is also clear that where you have a female ‘child’ who is aged between 16 and 18 and a part-time paid church worker (say, for example, a male who is completing tertiary youth ministry training and is aged over 18 but under 22) kissing or coaxing to kiss could be a much desired event for them both!  Likewise an extended hug. And perhaps a bit of a tickle. This behaviour would be covered by another clause dealing with the development of a romantic relationship, and it would be absurd if the PSU entertained a complaint by the female child’s parents to lay a charge against the male, ruining his ministry career as well as what might well be the prospect of married happiness.[5]

The overall problem with this list is that it does not claim to be exhaustive. This means that someone (not ‘you’) will have the discretion to decide whether the conduct complained of in this category is inappropriate without there being very much – well any – guidance for ‘you’ to enable you to avoid it in the first place, and to avoid being charged (and ruining your life, your livelihood and your life’s ministry).

That person would be the director PSU Sydney diocese in the first instance. In view of the treatment meted out to Drew and Pippa where ordinary lawful behaviour with a young person aged between 16 and 18 was misrepresented as child sex abuse even though the complainant had not alleged any sexual behaviour or intent[6] this seems to be risky and unjust to the many people who are just wanting to do the right thing and are behaving naturally and normally.

Clauses 5.45 – 5.50 Communication

These, the last of the clauses in part 5 Children deal with the most modern problems with the use of technology to communicate with a child and an information box warns of the many risks involved which are, it says, not always appreciated by clergy and church workers. The person with overall responsibility is asked to ensure that there is a policy for clergy and church workers dealing with the use of technology in communications with children. (5.45) In both 5.46 and the information box are suggestions for ‘you’ to  consider, including being sensitive to the impact of your communication on the child and not sending any text or images that could suggest an inappropriate relationship with the child. Obviously sexting a child is on the pathway to evidence of grooming apart from the legal implications.

There is excellent, sound advice especially for older clergy and church workers who were adult when computer technology and then the internet exploded on the world of communication and distribution of information as well as providing new pathways for sexual predators. It is suggested that clergy and church workers educate children about the danger of disclosing too much information about themselves and unwise texting and similar communications. Clergy and church workers are advised to encourage them to talk to someone – parent or clergy or church worker – instead of blogging and entering online chat rooms.

It is the ‘sexual’ aspect of these communications and exposing a child to inappropriate material that is the main thrust of warnings and advice in this clause and the information box. This conduct would be evidence in relation to a charge of child abuse or child sex abuse, which are already offences contained in the Discipline Ordinance 2006.

Conclusion

                         After reviewing in some detail the provisions of FIS part 5 in relation to children I have found the same objections to the use of these standards and guidelines as the basis for determining whether (non-sexual) conduct with children is ‘inappropriate’ to satisfy evidence for a new ‘offence’ that I had when reviewing the introductory clauses of the Preamble, Standards and guidelines in part 1 of this series and reviewing part 3 in relation to pastoral ministry in Part 2 of this series.

 

In Part 4 I summarise my conclusions from my examination of Faithfulness in Service and the proposed new ‘offence’ in Parts 1, 2 and 3.

 

Post filed under Anglican Church, Drew & Pippa.