Children and Young People’s Commissioner Scotland

UNCRC Article 28 (right to education)  

Every child has the right to an education. Discipline in schools must respect children’s dignity and their rights.

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“As I sat in the corner on the blue spiky carpet of the bright, colourful classroom, there was no room for embarrassment as there once was before, only anger. I must have been about 10 or 11 and was desperately holding onto my younger brother’s hand. He looked so innocent, so tiny, curled up into a position of safety – covering his head and protecting his vital organs. I looked up into the face of the ‘leader’ who caused him this trauma, time and time again. Her words were harsh, asking why he was this way, asking if I had made him like this simply because the only word he would dare to write down was my name.

Maybe I should have reminded her of a door ajar with two enormous figures looming over a cowering child. He was sobbing uncontrollably while they tried to control his tears. Statement necklace, white top, crossed arms, long flared skirt, something missing: “Wipe your tears away and get on with the work.”

Or maybe the time he was dragged from his safe position, curled up on the floor, through an open-plan school while everyone looked the other way.”

(Statement from ‘M’, a young person whose younger brother experienced physical restraint.)

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Pupils being physically restrained or secluded in schools was the focus of the Children and Young People’s Commissioner Scotland’s first investigation. The investigation revealed a lack of consistency in understanding, training and monitoring of the use of physical restraint and seclusion in schools with no formal systems of incident reporting required by Scottish Government. As such there is conflicting, missing and incomplete data from local authorities and it is impossible to see the full picture of the use of physical restraint and seclusion on children and young people in schools.

Children and young people in the report described how being restrained made them feel: ‘frightened’, ‘confused’ and ‘unloved’.

The UN Committee recommends that “restraint should only be used to prevent harm to the child or others and only as a last resort” in addition to recommending that the UK “systematically and regularly collect and publish disaggregated data on the use of restraint and other restrictive interventions on children…including in education…”

The UN Committee’s General Comment No. 10 on children’s rights in juvenile justice states that “measures in violation of Article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or wellbeing of the child concerned.”

The Commissioner’s report showed there may be disproportionate use of physical restraint and seclusion on children and young people with disabilities and/or additional support needs:

 “Children, families and professionals are all affected by the consequences of confused or conflicting policies (or no policies at all); complicated and often inadequate reporting; and an absence of monitoring, either locally, regionally or nationally–all of which means that professionals responsible for children do not have consistent, unambiguous guidance or feedback mechanisms to ensure they are equipped to appropriately support vulnerable children at moments of crisis.”

This is reinforced in the UN Committee’s 2016 Concluding Observations to the UK, where concern was expressed about “the use of restraint and seclusion on children with psycho-social disabilities, including children with autism, in schools.”

Scottish Government’s revised guidance on school exclusions ‘Included, Engaged and Involved Part Two’ was published in 2017 in response to questions from children’s rights organisations about the use of physical intervention in schools. The two page guidance focusses primarily on management of behaviour rather than dealing with root causes of behaviours. The Commissioner’s report highlights that ‘behaviour is communication’ and this is particularly pertinent for children with additional support needs. This approach has been highlighted as a concern for some, in particular autism and special needs advocates.

The guidance sets out a clear expectation from Scottish Government that:

• Every education authority should have a policy on physical intervention;
• Policies should include a mechanism/ process for decisions on physical intervention to be made and recorded;
• All decisions to physically intervene should be recorded in line with the relevant policy;
• In every case, the record should demonstrate how children’s rights have been considered in reaching the decision to physically intervene.

Only 18 out of 32 Scottish local authorities have made clear in internal policy that restraint should only be considered a last resort measure in preventing harm to a child or other children around them. The guidance does not place any duties upon local authorities to keep records on the use of physical intervention. This gap in knowledge makes it difficult to assess the effectiveness of existing guidance and legislation.

While Scottish Government are currently undertaking a review of this guidance with local authorities and COSLA, the Commissioner’s office has stated: “simply reviewing the Scottish Government’s existing guidance would be insufficient in of itself to ensure children and young people are adequately protected from risk of harm and breach of their human rights through the use of restraint or seclusion in school.”

Scottish Government’s ‘Getting It Right For Every Child’ (GIRFEC) policy outlines that every child or young person should receive the appropriate support for their needs and in order to achieve this staff must be trained to have the ability to deliver such support. In the context of cuts to the number of Additional Support for Learning staff in schools, appropriate resources must be provided if staff are to be able to Get It Right For Every Child. In order to understand what alternatives to restraint should be used, rights-based budgeting which accounts for the additional costs of training and funds places for additional support staff in schools (in line with UNCRC Article 4) will allow for a more constructive and positive approach to welfare and punishment processes in educational settings. Incorporation of the UNCRC into Scots Law would encourage rights-based budgeting, the implementation of more robust monitoring systems and allow for redress in the case of rights violations in schools.