Category: Pupil Welfare / Wellbeing

New Scottish Government guidance for schools on Gender Based Violence

On By Iain NisbetIn Bullying, Equality Act 2010, Getting It Right For Every Child, Pupil Welfare / WellbeingLeave a comment

Friday 8 March 2024 is International Women’s Day. Presumably to co-incide with this, the Scottish Government have released “Preventing and Responding to Gender Based Violence: A Whole School Framework“. It is noteworthy that the Scottish Government describe the document as a framework, rather than as guidance. However, the document does say that one of its purposes is “providing guidance to support schools’ responses to GBV experienced, or carried out by, children and young people or other members of the school community, including staff”. How well it succeeds in this aim may be the subject of debate, as we shall see.

Children’s Rights

The framework is set in the context of children’s rights (as it should be) and in particular references the right to protection from violence (Article 19, UNCRC) and the right to an education which develops respect for others’ human rights (Article 29, UNCRC). Of particular relevance here, for those looking for some additional reading, is General Comment 18 of the Committee on the Rights of the Child on harmful practices (issued jointly with the Committee on the Elimination of Discrimination against Women).

Gender Based Violence is defined as “any form of violence used to establish, enforce or perpetuate gender inequalities and keep in place gendered orders” and thus includes violence against women and girls, but also homophobic and transphobic violence. The framework notes that Gender Based Violence can take many forms, including:

  • physical, sexual, emotional, verbal or psychological abuse and violence;
  • domestic abuse or relationship abuse (including coercive control);
  • rape, incest or unwanted touching;
  • non-consensual sharing of sexual images;
  • sexual harassment or intimidation (including online);
  • commercial sexual exploitation;
  • “honour based” violence, including female genital mutilation and forced or child marriage;
  • transphobic, homophobic or biphobic bullying.

Disability

There is a mention of intersectionality and, within that section, specific mention of pupils with disabilities. The framework notes “Violence targeted at disabled girls may include abuse targeted at their disability as well as misogyny, and they may also encounter additional barriers to accessing support.” To this I would add that pupils with disabilities may be particularly vulnerable to abuse due to their disability, particularly where assistance with personal care is required, and may experience difficulties in communicating instances of violence or abuse to appropriate bodies where there are communication difficulties.

A whole school approach

The framework describes itself as a “Whole School Framework” and espouses a whole-school approach to addressing Gender Based Violence. This is seen as encompassing:

  • universal approaches – e.g. challenging gender stereotypes and roles, changing the language and practices that support gender inequality, and curricular input
  • targeted action – e.g. responding to patterns of incidents or unacceptable attitudes / behaviours which are not directed towards an individual
  • targeted action – e.g. responding to incidents involving individuals, wellbeing assessments and meeting individual needs
  • specialist action – e.g. child protection procedures

The aim is to “positively influence school culture by fostering a shared, consistent approach tackling the underlying gender inequalities that underpin Gender Based Violence”.

From the outset the framework is clear that “If there is a risk of significant harm to the child or young person, school staff should always invoke child protection procedures, rather than seeking multi-agency voluntary support.” The dividing line between Gender Based Violence that involves a risk of significant harm, and Gender Based Violence that does not, is less clear.

Among the key features of a universal approach is this: “All school policies should actively promote gender equality. The prevention of Gender Based Violence will intersect with all areas of school life, such as uniform policy or subject choices.” Indeed, the recent consultation on school uniform included the principle that national school uniform policy should promote “equality, including recognising specific matters relating to religion and belief, disability, sex and gender.”

The one clear recommendation which comes through here (as it does elsewhere in the framework), which should be top of schools’ “to do” lists would be to ensure that you have a Gender Based Violence policy (or a Gender Based Violence section within your existing behaviour and relationships policy). The policy (or section) should “provide specific information about how [the school] will manage instances of Gender Based Violence and support all those involved”. Regrettably, there is little in terms of specific guidance on what such a policy should contain. An example policy, or a style with headings and prompts would have been extremely useful – and is sadly lacking.

Preventing Gender Based Violence

The section on preventing Gender Based Violence is at some length and is probably where the framework is at its strongest. It includes plenty of links to resources which a school could use as part of a strategy to address gender inequality. The key tools here are seen as:

  • school culture and ethos;
  • policies and systems;
  • professional learning and development; and
  • curriculum.

Schools are urged to consider, for example, “whether the rules on school uniform reinforce gender stereotypes or place undue restrictions on girls and young women, and whether girls and young women have equal access to sports activities, play and resources.” The framework goes further, noting that ensuring equal access to sports may require “protecting time slots for girls to use equipment or spaces”.

In terms of the curriculum, there are some specific suggestions on how to promote gender equality across the curriculum, including:

  • taking a non-gendered and inclusive approach to PE;
  • discussing gender stereotypes in texts;
  • asking whose voice has not been heard in novels;
  • learning about feminism and women’s rights in social subjects;
  • learning about a diverse range of women artists / scientists as well as “their often more famous white men counterparts”.

The framework also includes a list of suggestions from primary school pupils, which include “more opportunities for girls to play football and boys to play netball”, “maths questions shouldn’t say girls do skipping and boys kick a ball” and “uniforms should be .. equally enforced” – all of which is absolutely fair enough. As a side note, I did play netball at primary school (Goal Defence, if you’re interested)!

The framework encourages a trauma-informed approach to all of this, which includes making sure that “children and young people know what will happen if they make a disclosure relating to Gender Based Violence”. However, the framework itself is not really clear (in my view) about that. It does specify that child protection procedures should be followed in some cases – but not really what should happen if those procedures are not to be followed (or while they are being followed).

Responding to Gender Based Violence

The framework then turns from questions of culture, ethos and training (which I feel it does quite well) to the issue of responding to incidents of Gender Based Violence, which I think suffers from a lack of detail and direction.

The threshold set out by the framework for applying child protection procedures is where a member of staff “has concerns that a child is at risk of significant harm”. The term “significant harm” is not defined or illustrated within this document. Perhaps professionals are already sufficiently familiar with the term from other contexts?

There are broad exhortations to respond sensitively, to support the children involved, and to align the response with the National Child Protection Guidance. All of which is fine. But there is little in terms of specific notes on what to do. I suspect that what schools are looking for here is clarity, but they will have to look elsewhere – or create their own.

For example, there is an example given of a suggestion made by children and young people’s groups in Stirling and Angus that “It might be helpful to ask if the person experiencing Gender Based Violence would like a friend to accompany them while they speak with school staff, if staff members consider this appropriate and in light of the need to protect the wellbeing of all young people.”

Setting aside for one moment the fluent management speak the young people of Stirling and Angus seem to have adopted wholesale, what are we to make of this? The framework presents this suggestion in a shaded box, divorced from the rest of the text. So, is this a good idea? Is it good practice? Should schools include this in their policies? When would it be considered appropriate (or not)? Should parents be invited / allowed to attend such discussions? We are not told.

In terms of a response to incidents of Gender Based Violence at school, there is a lot about support for both those who have experienced Gender Based Violence and those who have carried out Gender Based Violence. A child’s plan is mentioned more than once as a tool which might be used for a pupil who has carried out Gender Based Violence “with a view to identifying causes and appropriate interventions including additional resources to reduce the likelihood of recurrence”.

Schools are encouraged to identify and name behaviour that constitutes Gender Based Violence, and their policy should set “clear expectations of acceptable and unacceptable behaviour, and the associated responses which school staff can utilise.”

Again, examples of either would have been of use here, I feel. In fairness, the framework does make the important point that using restorative approaches may well be inappropriate as it “has the potential to be unsafe or retraumatising” and notes that “reconciliation may not be possible or advisable in cases of Gender Based Violence”

Child Protection

The framework is pretty clear on this point – “School staff should report incidents of Gender Based Violence where they are aware of, or have reason to believe, that a crime may have occurred or that a child or young person has been seriously harmed.” Onward reporting to Police Scotland and social work should be in line with school child protection procedures.

Collecting Data, Staff and Scenarios

The framework concludes with a section on monitoring, recording and evaluation, and one of Gender Based Violence experienced by staff, neither of which we have time to cover in this (already overly lengthy) article.

There are seven scenarios listed at the end of the framework, although the responses tend to be in the “you should consider these factors” rather than “here’s what you should do” model.

An appendix of professional learning and resources at the end is comprehensive and includes some excellent material. There is enough further reading here to keep you going for months!

Conclusion

I should begin by stating that I am not an expert in this field, and have only occasionally have had cause to advise families whose children have experienced Gender Based Violence. Overall, I think the framework does a very good job of raising and discussing the issues, and I think it would be very helpful in assisting schools with the ethos and culture / preventative side of things. I am less clear of its usefulness in terms of responding to actual incidents.

There are mixed messages about bullying. The National Approach to Anti-Bullying is not listed as one of the resources, although it is referenced within a description of the resource on challenging homophobia, biphobia and transphobia. The National Approach appears to draw a clear line between bullying and Gender Based Violence: “Some behaviour can be perceived as or assumed to be bullying. However, certain incidents can often be more serious and, in fact, criminal in nature. Understanding the individual circumstances is important to ensure that there is a clear distinction between bullying and criminal offences such as hate crime, child sexual exploitation and gender-based violence such as domestic abuse and sexual assault. For instance, when someone is coerced or pressurised to do something sexual or is touched inappropriately, this is not bullying, this is sexual assault or abuse and a form of gender-based violence.” Whereas the framework lists bullying as an example of Gender Based Violence. Some clarity on this point would be welcome.

The section on the law at the end of the framework slightly overstates the reach of the Equality Act 2010 – claiming that it places specific requirements on schools “to prevent unlawful discrimination, harassment and victimisation in their schools”. The equivalent section within the National Approach is more accurate – “Although the harassment provisions of the Equality Act 2010 do not protect pupils from harassment by other pupils, the Act creates a duty on public bodies to have due regard to the need to: eliminate discrimination, harassment and victimisation; advance equality of opportunity; and, to foster good relations between people who share a relevant protected characteristic and those who do not (known as the public sector equality duty).”

In my (admittedly limited) experience, victims of Gender Based Violence at school and their families are usually principally concerned about how to protect themselves from contact of any sort with the person responsible in the future, and whether that person is going to be held accountable. In practice, my experience has been that the expectation or the easier route is often for the victim to move classes or schools – which does nothing to address the second point and discourages disclosure as it can feel like they are being punished for speaking up.

For example, there is an anonymous quote provided by Childline on page 9:

I was sexually harassed by a boy at my school. It makes me cry every time I talk about it. I’ve had meetings with the school and they told me they can’t do anything because there is no evidence of it happening. I have to see him every single day at school and it makes me so angry. I hate feeling like this. I just want to move on but I can’t.

Girl, 17, Childline

An awful situation, but I fear that there is little in the framework which would assist either the child or the school in determining what ought to happen in these circumstances. It is notable that the framework does not mention disciplinary or punitive measures once. The framework focusses on supportive measures, unless the case has reached the threshold of criminal behaviour, in which case it should be reported to the Police. I find it surprising that there are no circumstances in which a school would / could / should be imposing disciplinary measures as part of a response to Gender Based Violence. Or, if there are, that it is not discussed in this document.

Article on Physical Intervention in Schools

On By Iain NisbetIn Additional Support Needs, Pupil Welfare / WellbeingLeave a comment

It is a little late to be bringing you news of the publication of Edition 9 of the Health and Education Chamber’s Bulletin – as it has been available since November! However, the Bulletins, which are always worth a read, are slightly tucked away in a corner of the website where you wouldn’t necessarily stumble across them.

So, I am letting you know that the latest Bulletin contains some really useful and interesting material including:

  • an update on the return to “in person” hearings;
  • an article by Angela Morgan OBE, independent chair of the review of additional support for learning;
  • an article by one of the legal members on the case of Cowie & Ors v Scottish Fire and Rescue Service on what is meant by “unfavourable treatment”;
  • an article by one of the specialist members on The Promise, and what steps are being taken to implement it, particularly in the Falkirk / Forth Valley area.

It also features an article by me on the Scottish Government’s draft guidance on the use of physical intervention in schools. the article can be found on pp 16-19 of the Bulletin. It looks in detail at cases which have been decided by the Tribunal concerning the use of restraint / physical intervention in schools.

National guidance will undoubtedly be of assistance to tribunals considering claims of disability discrimination in cases of physical intervention or restraint. The rights based approach adopted by the Scottish Government aligns well with the Tribunal’s existing decisions.

Article: “Draft Guidance on the Use of Physical Intervention in Schools” Nisbet, I. (HEC Bulletin, Ed 9) Nov 2022

To read the full article, you can access the Bulletin here:

“The Bulletin” Edition 9 (Nov 2022) – Health and Education Chamber (PDF)

Listen Up!

On By Iain NisbetIn Bullying, Pupil Welfare / Wellbeing, School EducationLeave a comment

This week has been Anti-Bullying Week 2022, so it seems appropriate to take a quick look at a recent decision of the Scottish Public Services Ombudsman (SPSO). On the one hand, it is a complaint about a complaint about a complaint – and those can end up being very focussed on the procedural side of things. On the other, it does raise some issues which I do hear a lot from parents who are engaging with schools when their child is being bullied.

Read more: Listen Up!

Child A was being bullied at school. The parents in question reported to the school (the local mainstream secondary school) “a number of incidents” of bullying, but felt that the school had failed to adequately investigate the reported incidents. They complained to the local authority.

However, the parents felt that the Council failed to deal with this complaint appropriately, and made a further complaint to the SPSO. Ultimately (though it is not clear at what point this happened), the parents made a placing request for Child A to attend another school. It seems that the Council refused the placing request, and that an appeal was lodged. There is no record of the outcome of the appeal.

The SPSO did find that the school took steps to investigate the incidents in line with “the relevant guidance” (I assume this means their own anti-bullying policy and /or the national approach to anti-bullying) – and that they had been “helpful and supportive”.

However, they also found that in some instances the school had failed to speak to the pupils being accused of the bullying, had failed to keep records of the steps taken by them, and failed to provide the parents with follow-up contact, in line with the guidance.

The Ombudsman recommended that the Council issue an apology to the child and their parents, in accordance with the SPSO guidance on apology. Sidenote – this is genuinely excellent guidance and I highly recommend it. Recommendations were also made on how complaints about bullying should be dealt with in future.

It is not possible to draw general principles from a single SPSO decision, reported in summary only. However, in looking at this case, it is clear that the SPSO regarded the following as being of some importance:

  • where appropriate, pupils accused of bullying should be spoken to;
  • a record of the school’s response to allegations of bullying should be kept; and
  • parents who have made a complaint of bullying should be provided with follow-up contact from the school.

SPSO decision 201909305, East Dunbartonshire Council

Second sidenote – Govan Law Centre’s “Bullying at School” document remains a useful guide to the law in this area and practical suggestions on using the law to progress complaints re: bullying.

Potential Energy (Part 8)

On By Iain NisbetIn ASL Review, Exclusion, Inclusion, Pupil Welfare / Wellbeing, School EducationLeave a comment

The section of the ASL Review which covers Theme 7: Relationships and behaviour is on the short side for such an important topic. But that it because it is largely reiterating things which are already well known and have been covered well in recent years by other documents and initiatives, including:

In particular, the review recognises as a “key point of principle” that:

All behaviour is communication.

Included, Engaged and Involved Part 2
Continue reading “Potential Energy (Part 8)” →

Educational Continuity (Nos. 4 & 5) Directions

On By Iain NisbetIn Additional Support Needs, Pupil Welfare / WellbeingLeave a comment

Due to being away on annual leave last week, I didn’t get a chance to blog on the last Educational Continuity Direction, which was the fourth issued by the Scottish Government.  It was not hugely exciting in that it mainly continued the previous directions, with some additional bits and bobs about preparing for schools re-opening on 11 August.  It also effectively brought to an end the provision of childcare for keyworker and vulnerable children, as of 31 July 2020.

But 5? Five! Well, this is the one we have been waiting for.  Issued on Thursday 6th August, but not coming into force until Monday 10th?  You know we’ve got something special on our hands.

For one thing, this direction is due to remain in place until 30th August 2020, and – as things stand – “it is not anticipated that a further direction will be required.”

As before, the direction applies only to education authority schools.  The main focus is now on the re-opening of schools, and the requirements are set out plainly:

  • schools may reopen to pupils from 11th August 2020;
  • schools must reopen to pupils by 18th August 2020;
  • authorities must prepare contingency plans to be used “immediately in the event of a local coronavirus outbreak”.

There are no specific requirements about steps to be taken for safety, but there is a general objective:

preventing the transmission of coronavirus, the welfare of children and young people and staff, and the importance of continuity of education.

And, as always, education authorities have to have regard to “relevant guidance issued by the Scottish Ministers” (of which there is no shortage).

And, contrary to expectations, there is no continuation of the disregard of failures in certain statutory duties – including key deadlines and duties within the additional support needs legislation.  Therefore, the period during which education authorities (and parents) may be able to rely on failures to comply with certain duties being disregarded is limited to the period from 2pm on 21 May 2020 until 1 minute past midnight on 10 August 2020 – and only insofar as it is the restrictions within the direction(s) which have led to the failure.

This means, of course, that in returning schools have all the same duties in place to make adequate and efficient provision for pupils’ additional support needs, and to make reasonable adjustments (including the provision of auxiliary aids and services) to avoid substantial disadvantage to disabled pupils.  Under the circumstances, there may well be significant needs to be met, and adjustments to be made.  The latest direction has effectively removed any “but the pandemic” excuse for disregarding those duties.

You can access all of the Educational Continuity Directions (and the accompanying guidance documents) on the Scottish Government educational continuity direction page.

 

 

Educational Continuity Direction (21 May 2020)

On By Iain NisbetIn Additional Support Needs, Pupil Welfare / Wellbeing, School Education2 Comments

After nearly two months of schools in Scotland being closed, the Scottish Government have issued a formal direction, providing a legal basis for this state of affairs.

In terms of their powers to do so under Schedule 17 of the Coronavirus Act 2020,  Scottish Ministers have issued an Educational Continuity Direction, which came into force at 2pm on Thursday 21 May 2020.

As required by law, in making the direction Scottish Ministers a) had regard to advice regarding the coronavirus from Scotland’s Chief Medical Officer; and b) were satisfied that the direction was a “necessary and proportionate action” in relation to the continued provision of education.

Educational Continuity Direction

So, what does it do?

Geographical Coverage

The Direction applies across Scotland, and to all thirty-two education authorities.  There is no mention of independent or grant-aided schools, although the Act certainly allows for a direction to be issued which covers those schools (as well as further and higher education institutions).

Preparing to Re-open Schools

The direction requires education authorities to plan and prepare “for children to resume attendance at schools” – including nursery classes “at the earliest time it is safe to do so”, having regard to Scottish Government guidance.  In doing so, support for children at key transition points should be prioritised.

Staff may access schools from June 2020 for the purposes of planning and preparing (including any necessary alterations to premises) for the provision of:

  • learning and teaching on school premises and remotely “from August 2020”; and
  • early learning and childcare (i.e. nursery provision).

Continuing Provision

The direction also requires education authorities to support in-home learning “in accordance with appropriate local arrangements”.  This also applies (though perhaps to a lesser extent) to children receiving education at schools under the arrangements for vulnerable pupils and children of key workers.

Education authorities must provide education and childcare “pursuant to appropriate local arrangements” for:

  • the children of key workers (including NHS and social care staff); and
  • vulnerable children (including those eligible for free school meals, with complex additional support needs and at-risk children).

In doing so, the authority must have regard to relevant Scottish Government guidance.

Where the authority is unable to provide free school meals for children eligible for them, they are required to provide reasonable alternatives (e.g. other food and drink, vouchers, or cash).

In making provision or otherwise acting under this Direction, the authority must have regard to “the objective of preventing the transmission of coronavirus, to the welfare of children and young people and staff, and to the importance of continuity of education.”

Ancillary Provision

The direction requires education authorities to restrict access to their schools and nurseries, except as may be required for any of the above purposes, or for:

  • providing pupil estimates and grade rankings to the SQA;
  • maintaining the buildings and facilities;
  • using the buildings and facilities as part of the local authority’s pandemic response.

Legal Impact

One very significant effect of the direction is that it means that any failure to comply with a duty or time limit listed below is to be disregarded “to the extent the failure would be attributable to this Direction” –

A parental duty to comply with the duty to education your child (Section 30(1) of the 1980 Act) will be similarly disregarded.

Not that I am one for cross-border comparisons, but the position in England & Wales (as I understand it) is that the special educational needs (SEN) duties have largely been downgraded to a “reasonable endeavours” duty i.e. the LEA/school has a duty to make reasonable endeavours to make the required provision.

Here, the equivalent duty is to be disregarded entirely – although only to the extent that non-compliance was attributable to the direction itself. This is, in fact, stricter than it sounds.  As the guidance note points out “That means that any failures which cannot be attributed to a Direction would continue to be treated as a failure to comply with that duty or time limit.”

Duration and Review

The direction took effect at 2pm on Thursday, 21 May 2020 and remains in force for 21 days (or until revoked – if earlier). Effectively it will be reviewed and probably amended as we go on – every 21 days.  As the guidance note states: “It will be reviewed no later than 10 June, and it is expected that a further Direction will be made by 10 June to modify, replace or supplement it as appropriate.”

It does leave open the question – on what legal basis were the schools closed during the last two months, and what is the position re: the legal duties during that period?

Image by Gerd Altmann from Pixabay

Changing places consultation

On By Iain NisbetIn Consultation responses, Equality Act 2010, Inclusion, Pupil Welfare / WellbeingLeave a comment

Accessible toilets or “disabled toilets” do not necessarily meet the needs of all people with a disability.

People with profound and multiple learning disabilities, as well people with other physical disabilities such as spinal injuries, muscular dystrophy and multiple sclerosis may need the additional equipment and space afforded by a Changing Places toilet in order to be able to use the toilets safely and comfortably.  This post from the Quinns, Trains and Cerebral Palsy blog explains things much better than I can.  And this one…

It can, however, be difficult to find a Changing Places toilet.  A growing campaign, led by the Changing Places Consortium is calling for  for Changing Places toilets to be installed in all large public places.

The Scottish Government has just launched a consultation on building standards for changing places.  The proposal is

The proposal is to require Changing Places, through building standards, in certain types of larger new buildings.  Such regulations would go some way to increase the provision nationally, albeit over a period of time.

It is a welcome step, and the detail of the regulation will be important.  For example, the consultation at present only includes secondary schools, and only where community facilities are also provided by that school.  This is a missed opportunity, and consideration should be given to widening the requirement to include all secondary schools, special schools and primary schools (perhaps subject to a minimum size).

While this is not an educational piece of legislation, schools are already exempt from the second requirement of the reasonable adjustments duty under the Equality Act 2010, which might otherwise have required such changes in existing buildings, depending on the various factors which might be at play (including cost).  Most education authorities’ Accessibility Strategies are not so ambitious as to include major works on things like Changing Places toilets.  And, of course, many new build schools have opened in recent years, pre-dating these regulations.

The presumption of mainstreaming and inclusion for all pupils requires that all pupils can access safe and suitable toilet facilities at school.

The consultation runs until 13 May 2019.  Please read it, and respond – and encourage others to do so as well.

 

 

Too many children with autism are let down by schools and end up in prison

On By Iain NisbetIn Exclusion, Inclusion, Pupil Welfare / Wellbeing3 Comments

By Chrissie Rogers, Professor of Sociology, University of Bradford

 

For many young people, school can be a difficult place. And for some, it can be just about impossible. Negative experiences in school can have harmful long-term effects on pupils with autism spectrum conditions.

Official figures show that children, are increasingly being suspended or expelled from school because of “behavioural problems” – many of which include children on the autism spectrum. Some regions in the UK have experienced a 100% increase in these types of exclusions since 2011.

So despite policy rhetoric on “inclusive education” – where children ought to be educated in mainstream schools – recent figures show school exclusions are increasing: from 6,685 pupils to 7,720 between 2015-2016 and 2016-2017.

In my current research I interviewed mothers of adult children with autism and other social, emotional and mental health problems. They told me how their young sons had been a challenge in school. And how despite their requests for help, their sons received little support and ended up in the criminal justice system.

Estimates suggest that 30% of prisoners have a learning difficulty or disability and 60% have problems with communication – though this is arguably a conservative estimate, as many inmates choose to hide their disabling condition.

No help or support

Mothers in my research talked to me about how their sons were “different”. They were violent to other children and teachers as well as their own families.

All the mothers told me they felt something was “not quite right” with their child. And because the support was not forthcoming at school, this negative behaviour escalated and then as these boys got older, they ended up in prison.

One mum, Sorcha, told me her son “was made out to be the demon child of the school. He had his first exclusion in September 2004, so he was about 10 then”. Another mum, Elaine, spoke of her son Harry: “He was a difficult child for school, he’s disruptive [and] was getting into so much trouble.”

Many schools are failing to meet the needs of autistic children.
Shutterstock

Udele, explained how she had received a call from the headmistress, to fetch her son after he assaulted a teacher. “I went, you’d better call the police then. He was 10”.

Failed by the system

But a lack of support was not just isolated to the families. One senior teacher who works in a “special school” explained how hard it is to help. She said that the combination of puberty and autism can make things very difficult:

At the age of 14 there’s so much going on for them. One boy got bad grades and didn’t know what to do. He got involved with another pupil who had been excluded and was waving a knife – he got arrested.

The mothers also spoke to me about their experiences of the criminal justice system. Trudy explained how, when her son was on remand, she “felt squeezed from both sides”. She said:

My instincts were telling me that my son was getting worse and that we needed help and the professionals were telling me he was fine.

Another mother, Elaine, told me how she was “totally broken”:

I just feel like I’m standing on the edge of the cliff and I don’t know if I’m going to fall. It’s scary.

The mothers in my research all spoke of the overwhelming challenges of dealing with their child’s disability while moving through the bureaucracy and barriers if the school and criminal justice systems.

They spoke of a lack of support, lack of access to professional help and an overwhelming lack of understanding about their son’s disability, and the impact this had on their lives.

The problem with education

Under the current UK education system – where everything is based on grades and targets – there is little room for children who disrupt the smooth running of the school. These children are all-too often excluded and made to feel that they are worthless – as one teacher explained:

One kid wanted to go back into mainstream [school], but by the time he was 15, he realised this wasn’t going to happen – he ended up in prison.

For as long as education focuses solely on academic achievement and continues to demand results rather than learning, children and their families will continue to be failed by the system. And, as my research shows, once a criminal pathway is trodden, it is incredibly difficult to find a way out.



Read more:
Britain’s criminal justice system doesn’t know what to do about autism

This means those who need support the most often end up incarcerated. Both Elaine and Udele’s sons (still now only in their 20s), were in “special schools” and continue to be in and out of the criminal justice system. I interviewed Elaine three times and her son Harry, once. Between her interviews, Harry returned to prison.

Rethinking learning

If more support and intervention in the education system was to occur before the police got involved, then these young people would be less likely to end up incarcerated and at the bottom of a human hierarchy.

But for this to happen, there needs to be a rethink of what education is actually about. Because it is clear that the restrictive and damaging nature of the current system just doesn’t work for some pupils.

If instead, schools could help children to learn creatively and open up their minds to new possibilities outside of tests and league tables, then it is likely that more children would stand a better chance of staying out of the criminal justice system and reaching their full potential.The Conversation

Chrissie Rogers, Professor of Sociology, University of Bradford

This article is republished from The Conversation under a Creative Commons license. Read the original article.

In Safe Hands?

On By Iain NisbetIn Additional Support Needs, Equality Act 2010, Pupil Welfare / Wellbeing1 Comment

Section 7 of the Commissioner for Children and Young People (Scotland) Act 2003, as amended, allows the Commissioner to conduct investigations into:

whether, by what means and to what extent a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people (such an investigation being called a “general investigation”)

The first such investigation undertaken was on the issue of restraint and seclusion in Scotland’s schools (“No Safe Place”). The investigation focused on two main issues:

  • The existence and adequacy of policies and guidance.
  • The extent to which incidents are recorded and reported at local authority level.

The investigation was undertaken from an international law perspective – primarily the UN Convention on the Rights of the Child.  But what does Scots law have to say on these thorny issues?

Crime and Punishment

We start with a history lesson.  Following the Scottish case of Campbell and Cosans v. The United Kingdom, the European Court of Human Rights determined that the use of corporal punishment in public schools was a breach of the parents’ rights to ensure that their children’s education was in accordance with their own religious and philosophical convictions.  That’s right, the case to prevent children from being physically chastised at school was decided on a parents’ rights basis, not a children’s rights one!  Obviously.

The UK and Scottish Governments have subsequently taken various steps to eliminate the use of corporal punishment from schools.  Section 16 of the Standards in Scotland’s Schools etc. Act 2000 imposes a ban on the use of corporal punishment, by removing any such defence in relation to the crime of assault.

So far, so good.  The legislation then goes on to say that anything done for reasons which include averting:

  1. an immediate danger of personal injury to; or
  2. an immediate danger to the property of any person (including the pupil themselves).

… does not count as corporal punishment.

And, that’s it.  That is basically all the law has to say about physical intervention in schools, which is to say almost nothing.  Note that the law does not say that it is okay to do these things, just that they are not corporal punishment (in case anyone was confused).  So what?

Well, corporal punishment is no longer a legal defence to charges of assault against a child (at least insofar as teachers are concerned – the defence of “reasonable chastisement” still exists in some circumstances for parents).  But actions taken to prevent injury to people or damage to property are not corporal punishment.  Which is relevant because they can amount to a defence to a charge of assault.  The law here is essentially a reminder that there is a defence of self-defence (or defence of other people – or property) in some circumstances.  This is subject to all of the usual criminal law rules about taking an opportunity to retreat where available, and ensuring that the level of force used was proportionate.

NB. Massive caveat – I have never done so much as a single day’s criminal law in my life, so my pronouncements on this should be treated with even more caution than usual!

And of course criminal law approaches to this issue mean that a criminal standard of proof applies to any prosecution (i.e. beyond reasonable doubt) – which may be problematic if relying on the evidence of younger children or children with additional support needs.

The use of restraint or seclusion in schools, perhaps as a result, is not often considered by the courts or other legal fora.

Administrative and Policy

One example relatively recently determined by the Scottish Public Services Ombudsman was Case 201607679 (The Moray Council) which is a bit of mixed bag in terms of outcome.  The SPSO determined that the act of restraint itself “was appropriate given the Council’s policy”.  However, the policy had a clear emphasis on avoiding or de-escalating a potential incident – and that staff did not act reasonably in line with their policy to stop the incident taking place.  There is a mixed message here.  The Council could have prevented the need for restraint, but as they did not do so, it was appropriate for them to use restraint against the complainer’s daughter?!

The Ombudsman also found that there had been a failure to document whether the child had sustained any injury following the incident, even though this was required by their own policy.  The Council were asked to provide evidence of the further training for staff which had taken place, and to apologise to the child and her mother.

There have also been a few (unreported) cases on this subject by the Additional Support Needs Tribunals in cases brought in terms of the Equality Act 2010.  The use of restraint or seclusion for a disabled child may amount to discrimination arising from disability (Section 15) where the education authority are unable to show that the treatment was a “proportionate means of achieving a legitimate goal”.

Again, in this context the use (or failure to use) of the correct paperwork has been of significance.  One Tribunal concluded:

There was no proper record of the use of these seclusions kept at any time by the school. Whilst the [education authority] has since devised a new policy which requires that seclusion is a risk-assessed, personalised, reported, recorded and reviewed strategy this policy was not in place when the child was secluded.  The Tribunal were unable to conclude upon what basis the seclusion was used as there are no records of its use, purpose or outcome in respect of it being used for the Child.  In the absence of these safeguards the [education authority] were unable to demonstrate to the Tribunal that the use of seclusion could be justified as proportionate to a legitimate aim in these circumstances.

That is all quite legalese, but what it is basically saying is that without the proper planning, policy and records, it will be difficult to persuade a Tribunal that the use of seclusion on disabled children has been lawful.

Overall, there are some small encouraging signs, but this is set against the backdrop of a system (educational, legal and political) which gives every appearance of valuing teachers above children.

Employees and Employments

For example, the case of Porter v. Oakbank School in 2004 which remains, to my knowledge, the only time that the issue of physical restraint in schools has been considered by the appeal courts in Scotland in terms.  This case involved a teacher at the school who fractured a pupil’s arm while trying to escort him to the “quiet room”, as he had been out of class without permission.

While accepting that an appeal decision is not going to be the best medium for getting a full sense of the facts of the case, it does seem that there was, perhaps, an incomplete understanding of the nuances involved, even allowing for the fact that this was over 15 years ago.

The judgement summarises the context as follows: “The .. school [is] for children with special educational needs. .. The school was accustomed to dealing with disruptive and unruly pupils. The staff received tuition in ‘crisis and aggression limitation and management’ (CALM), a technique for controlling violent or disorderly persons.”  This is a description with which CALM Training may take some issue!

The Court found that there was not sufficient evidence of unnecessary force in this case, and cast doubt on “whether textbook solutions were practicable in the emergency that pupil A had himself created.”  The Court upheld the earlier decision that the teacher had been unfairly dismissed by the school.

Reporting and Responding

It will therefore be interesting to see what response there is to the Commissioner’s report.

The Commissioner found that while children’s rights are referenced in many policies, they are not given meaningful expression in terms of how they should impact on practice.

There was also criticism of the Scottish Government for failing to produce a national policy to ensure consistent and lawful practice, something which groups like Positive and Active Behaviour Support Scotland (PABSS) have been calling for for years.

Several recommendations were made, including:

  1. Local authorities should, as a matter of urgency, ensure that no restraint or seclusion takes place in the absence of clear consistent policies and procedures at local authority level to govern its use.
  2. The Scottish Government should publish a rights-based national policy and guidance on restraint and seclusion in schools. Children and young people should be involved at all stages of this process to inform its development. The policy and guidance should be accompanied by promotion and awareness raising.

All those who are subject to recommendations are required to respond to the Commissioner in writing by 31 January 2019.