In this, the fourth part of this series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the second of the “Key features of inclusion” : Participating.
The Scottish Government is committed to enshrining the United Nations Convention on the Rights of the Child (UNCRC) into the domestic law of Scotland. The overall aim is to ensure that all policy, law and decision-making in Scotland takes into account children’s rights and empowers children and young people to know and understand their rights – asserting and defending them where that is needed.
This commitment is great news in principle, but how it will be incorporated into the law of Scotland is a detail that has not yet been resolved. Wholesale legislative change? Or piecemeal changes to domestic legislation ? The Scottish Government have put this question – and other implementation issues – out to Consultation.
It will come as no surprise to regular readers that my preference is for the most comprehensive incorporation possible. My response supports full incorporation of the UN Convention into law by drawing on the mechanisms used to embed the European Convention of Human Rights into UK law (and the model adopted by the Equality Act 2010 in relation to the public sector equality duty). By combining the two approaches, public authorities would be explicitly prohibited from acting in a way which is contrary to the UN Convention and breaches could be challenged in the Courts.
My response to the consultation is reproduced (with some editing for readability) below.
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:
- an immediate danger of personal injury to; or
- 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:
- 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.
- 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.