And so, we finally get to the core of the guidance, which is the duty itself and – almost as importantly – the three exceptions to that duty. As the guidance notes: “If there is doubt about the suitability of mainstream provision, it is the role of the education authority to use the legislation to weigh up a range of matters including the child or young person’s wellbeing, in order to reach a conclusion on the application of the three exceptions..”
The Scottish Government guidance we have been looking at is called “Guidance on the presumption to provide education in a mainstream setting“, and yet it is only now – on page 13 of the document – that we reach consideration of the sometimes thorny issue of deciding on the right provision for a child or young person.
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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.
As you may have read elsewhere, the Humanist Society of Scotland are bringing a judicial review against the Scottish Government’s decision not to review the law in relation to religious observance in schools. At present, the law affords an opt-out for parents, but not for children.
- Humanist Society Press Release
- Humanist Society Briefing
- Scottish Government letter, which is the subject of the challenge
Following on from recommendations from the UN Committee on the Rights of the Child at the last UK “inspection”, the Humanist Society called upon the Scottish Government to review the law to allow older children to take their own decision. The Scottish Government have refused, stating:
“There is no equivalent statutory right to withdraw afforded to children and young people. However many schools will find it helpful and sensible to include young people in any discussions about opting out, ensuring their wishes are aired.”
My own views on this are already on record elsewhere, and have been for some time:
“The right to withdraw from religious instruction or observance is given to the parent of a pupil, rather than to the pupil themselves. In light of more recent legislation, including the Human Rights Act 1998 (cf. art.9: freedom of thought, conscience and religion) and the Equality Act 2010, schools should also have regard to the views of the child in relation to such matters.”
And what does the law actually say? It can be found in three main places, which is not always appreciated. As always the legislation is written as if all children have only one parent (or two who always agree on everything) – there is no rule for what happens if parents disagree about religious observance!
First, Section 9 of the Education (Scotland) Act 1980 sets out the basic rule, under the section heading “Conscience clause”, which is to the effect that the parent of a pupil at a public school has the right to withdraw them from “any instruction in religious subjects” and “any religious observance” in any public school or grant-aided school. Interestingly, the term “pupil” is used here, rather than child – so the right remains with parents in relation to pupils even after they have turned 16. Remember also that this is a right to withdraw, not a right to ensure participation. Arguably – and this may indeed be what the Scottish Government end up arguing – a child or young person who wishes to withdraw from religious observance could insist on other rights (the Human Rights Act 1998 or Scotland Act 1998 in terms of their Article 9 rights) to achieve that result. There is nothing in this preventing the school from granting such a request.
The children’s rights issue arising from Section 9 would be where a pupil wishes to participate in religious observance – and is prevented from doing so by reason of a parent’s withdrawal request. An interesting cause for the Humanist Society to be taking up!
Section 10 of the Education (Scotland) Act 1980 (“Safeguards for religious beliefs”) applies to pupils who board at a residential school (or at a hostel for educational purposes). This affords parents the right to insist on the child being permitted to attend worship, receive religious instruction and participate in religious observance in accordance with the tenets of their parents’ religion. There is no equivalent to this for the child, but again the duty on the school is to permit the child to do these things (outside school hours and not incurring unreasonable costs) – there is no requirement to compel the pupil to take part. Nor is there anything preventing the school from allowing the pupil to participate in worship in relation to their own religious beliefs (if they differ from those of their parents).
Finally, Regulation 12(3) of the Schools (General) Regulations 1975 applies to pupils at a special school (includes a special unit within a mainstream school). This ensures that no education authority may compel a pupil to attend religious observance or receive religious instruction against the wishes of their parents. Further, it requires the authority to give the parent an opportunity to express their wishes – a requirement not present in the other sections. Again, the children’s rights issue which may arise is that of a child who wishes to attend religious observance – although this could be permitted, so long as it is not compelled!
The law is no doubt in need of revision – even the terminology barely fits modern educational practice – particularly in non-denominational schools. However, the Scottish Government’s position is that the law does comply with pupils’ Convention Rights (when read with the guidance and Curriculum for Excellence). Given the nature of the duties set out above, this may just be correct – although there may be a question mark over how well schools understand this. If there is an area where the law may breach a pupil’s Convention rights it is for the child who wishes to attend religious observance, but is prevented from doing so because of their parent’s decision to withdraw them.
This is the first post on this new blog, which takes a look at legal issues relating to additional support. What better place to begin then, than Section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004, as amended?
Specifically, we need to know what is meant by “additional support needs”? This is an important question as various rights and duties arise in law where a child or young person has additional support needs.
However, whether a child or young person has additional support needs is a question of fact, and does not rely on whether the education authority have formally assessed the child / YP or not.(cf. Parents of Child J v. Dumfries & Galloway Council 2015 SLT (Sh Ct) 253)
A child or young person is said to have additional support needs where “for whatever reason” they require additional support in order to benefit from school education (see below for more on the term “school education”).
The Code of Practice (“Supporting Children’s Learning”) suggests the following as examples of factors which may give rise to additional support needs:
- having English as an additional language;
- being a young carer;
- being looked after by the local authority;
- having a sensory impairment;
- having a specific language impairment;
- having other learning difficulties;
- being bullied;
- children with behavioural difficulties;
- “gifted” or able pupils (e.g. RB v. The Highland Council 2007 SLT 844)
Since the 2009 Act, looked after children are presumed in law to have additional support needs, unless the authority have formally assessed them as having no such needs. Where a looked after child has additional support needs, the authority must formally determine whether they require a Co-ordinated Support Plan.
It is worth reminding ourselves how broad the phrase “additional support needs” is. Also, note that a child or young person may have additional support needs due to a variety of factors.
“Additional support” is defined as provision which is additional or different to the provision normally made for pupils of the same age in local mainstream schools.
References to school education include, in particular, education which is “directed to the development of the personality, talents and mental and physical abilities of that child or young person to their fullest potential.”
That wording is taken directly from Article 29 of the UN Convention on the Rights of the Child, and underlines that the provision to be made for children with additional support needs should be made with a view to significant educational progression – including development in areas which would not traditionally be regarded as academic.