Teachers should not promise confidentiality. A child does not have a right to expect that incidents in the class room will not be reported to his or her parents, and may not, in the absence of an express promise, assume that information conveyed outside that context is private. No teacher could or should give such a promise.

However they are not obliged to break confidentiality.

It is a matter of professional judgement for a teacher whether he or she should indicate to a child that information could be offered confidentially and whether such confidence could then be maintained having heard the information.

The advice in the Circular does not seek to impose an absolute duty to break confidences, nor indeed is the Circular binding in law. A teacher is not bound to follow the Circular's advice, if, in the teacher's professional judgement, the child's best interests are better served by not doing so – subject to the parents power to excuse and the heads power to direct (that is unless parents have chosen to exercise their right to withdrawal, or the head teacher has instructed that he or she should be informed).

Teachers and others involved in SRE are often unclear about confidentiality. The  Department for Education (as it was then called) (DfE, 1994) and Welsh Office Circulars (Welsh Office Education Department, 1994) offer advice on confidentiality but are not binding in law. The DfES’s Child Protection Circular 10/95 Protecting Children from Abuse: The Role of the Education Service clarifies the position for schools regarding child protection issues. 

The new SRE guidance aims to help schools in drawing up their own confidentiality policy and recommends that it includes the following components:

• An explanation as to how pupils and parents will be made aware of the school’s confidentiality policy and how it works in practice.
• Reassurance for pupils that their best interests will be maintained at all times.
• Encouragement for pupils to talk to their parents or carers where possible, and sources of support for them to do so.
• Clarity for pupils so that they know that teachers will not always be able to maintain confidentiality.
• Reassurance for pupils that if confidentiality is to be broken, they will be told beforehand of the reason, and offered support as appropriate.
• Clear links between the school’s child protection policy, in the event of a disclosure of abuse.
• Teachers are required to break confidentiality where they believe a young person is at risk of physical or sexual abuse. In which case, the school protection procedures should be followed.
• A guarantee that pupils will be told where they can access sources of confidential support and information.
• Using ground rules in lessons.

All schools should ensure that students are able to get support in school as well in the wider community. Some schools have set up general health clinics, and offer explicit advice and telephone numbers for sexual health services, Child Line and other helplines and youth advisory services. Young people are also able to access the information without embarrassment or delay if information is displayed publicly. It can also be available in leaflet form for individuals to take away.

If a teacher learns from an under 16 year-old that they are engaged in sexual activity, they should wherever possible encourage the young person to talk with a parent or carer, ensure that any child protection issue is addressed and that the person is adequately informed about contraception and safer sex. It is important that the policy on confidentiality is clear, meets the best interests of young people and is workable by staff.

Must parents be informed?

There is no basis in principle or authority for suggesting that there is any legal duty on a teacher, or a head teacher, to inform parents of matters which a child has confided to them. However if the head teacher instructs staff to follow the advice in paragraph 40 of the circular, failure to do so might be grounds for disciplinary action.

Must teachers inform heads?

A teacher does not have a general duty to inform the head of disclosures by a pupil. The decision as to whether to do so must be a matter for a teacher's discretion, unless the head issues an instruction that they should be informed, in which case the teacher must comply.

Could a teacher be committing a criminal offence?

The Sexual Offences (Amendment) Act 2003 created a new offence to protect those under 18 years of age in particular areas from abuse of trust in the form of inappropriate sexual relationships. The new offence applies to teachers and others in a position of trust. It will be an offence for a teacher to have a sexual relationship with a full-time pupil in the same school, residential school, or further education establishment who is under 18.

However the offences in the Act were developed to enable the prosecution of abusive and exploitative sexual activity. Guidance to the act states that that provisions about engaging children in discussion about sex “is not intended to cover health professionals, or anyone else providing sex education, advice or contraception to children.”

The Act does not intend to limit children’s right to SRE and sexual health support and advice. A person does not commit an offence if s/he acts for the purpose of:

• Protecting the child from sexually transmitted infections.
• Protecting the physical safety of the child.
• Preventing the child from becoming pregnant.
• Promoting the child’s emotional well being by the giving of advice.

A teacher who gave a child under 16 advice relating to contraception, and who acted in what she or he honestly believed to be the child's best interests, would not be likely to incur criminal liability.

It is vital that these issues are considered by the governing body and that they make a statement in the school sex education policy that is understood by the head teachers, the staff, pupils and parents as regards how confidentiality will be dealt with in the school.

A training pack Confidentiality In Schools has been developed by Brook to help schools consider and develop practical codes of confidentiality.