The new guidance on restraining pupils is essential reading. Jenni Whitehead discusses the powers it gives and some of the dilemmas it poses
The government has published new guidance on restraining pupils. A significant number of allegations of abuse against members of staff suggest that unreasonable force has been used or that a pupil was inappropriately restrained. It is therefore essential that education staff understand these powers. The Use of Force to Control or Restrain Pupils replaces DfES Circular 10/98, and applies to all schools. The guidance is aimed at school leadership teams but is relevant to all staff, as well as governors. While there is no legal requirement to follow the guidance it is ‘strongly recommended’. The guidance aims to help schools to understand the law in practical terms and describes its purpose as being ‘to protect staff and pupils, prevent serious damage or disruption and reduce the likelihood of staff being successfully challenged in the courts.’
The initial sections of the guidance deal with the current state of the law (see box at the end of this article).
The guidance states that there is no legal definition of when it is reasonable to use force. However, to be judged lawful the force used must be in proportion to the consequences it is intended to prevent. In a number of allegation cases pupils have claimed that a member of staff stopped them leaving the classroom by the use of physical force and that this was in response to trivial behaviour. Teachers do have to be able to keep order and it is entirely appropriate to insist a pupil behave appropriately, but I do wonder if sometimes they could not just let them walk away rather than get into a restraint situation, leaving the pupil open to possible injury and the member of staff open to an allegation of abuse. The guidance does offer a few examples of when it may be reasonable to use force. However, they are of the most extreme, ie when a member of staff or a pupil is being physically attacked. The guidance advises that the degree of force should be the minimum needed to achieve the desired result. Use of force could not be justified to prevent trivial misbehaviour. Trivial behaviour is not defined and some examples would be useful. My guess is that if schools asked 30 members of staff to describe behaviour that is ‘trivial’ they would get 30 different answers.
The power to use force may be used in exercising the statutory power search pupils without their consent, (Section 45 of the Violent Crime Reduction Act 2006) However, the department ‘strongly advises’ that if physical resistance is expected from the pupil the police should be called in. For guidance on searching pupils, see Guidance on Screening and Searching Pupils for Weapons, May 2007.
‘No touch’ policies
Some schools have a ‘no touch’ policy, this guidance says that to have such a policy would deny individuals the use of the power to use physical force. As these powers are given to individuals schools are warned against ‘no touch’ policies. Schools with ‘no touch’ policies tend to have gone down this line to protect staff, but I have never understood how staff can work with children and totally avoid touching them. The guidance makes it clear that touching pupils is a normal part of school work and can be very helpful, for instance in steering a child away from a situation that is getting out of hand. The guidance gives a number of situations where it is entirely appropriate to touch children and includes where a child is distressed and needs comfort.
Children with SEN
Working with children with SEN may demand physical contact in order that the child is able to access the curriculum and some of these children may display behaviour that calls for physical interventions for the protection of the child or others. The guidance gives a very clear message in respect of these children, stressing the importance of understanding the specific difficulties of individual children and ensuring that staff who work closely with them are able to recognise the child’s triggers. See positive handling plans and managing risks for pupils who present particularly challenging behaviours, or download a model risk assessment form.
The guidance recognises the importance of training on the use of force but not in isolation from training on avoiding the build-up of disruptive behaviour and diffusion of situations that are likely to become violent and requiring the use of physical force.
The government commissioned the British Institute of Learning Difficulties (BILD) to develop an accreditation scheme for training providers so that schools could be sure of accessing quality training.
Systematic record keeping of incidents is strongly advised in order that school can:
- ensure the agreed policy guidelines are being followed
- inform parents
- prevent misunderstanding or misinterpretation
- provide a record for future inquiry, this includes where the use of force results in an allegation of abuse.
A model record form is included as an annexe to the guidance. The guidance suggests that the incident record may become part of the child’s educational records but warns that schools should remember that parents have a legal right to see their child’s educational record. (The parent applies in writing and school must produce the record within three weeks of receiving the request.)
Complaints and allegations
The parent has the right to challenge and complain about action taken by staff. If such a complaint includes an allegation of abuse schools must follow the statutory guidance given in Safeguarding Children in Education and Safer Recruitment, which can be downloaded from the Every Child Matters site.
I think schools will find the guidance very clear as far as it goes, and useful links are scattered throughout the text. However, I think that staff will need time to get to grips with how these powers can be used safely and that some will be reluctant to use them for fear of allegations of abuse. One of the things that is missing from the guidance is the management of witnesses to incidents. Witnesses are particularly important in cases where the use of force results in an allegation, the problem is that allegations do not always come immediately after an incident. An allegation may be made a couple of days after the event. The two annexes at the end of the guidance provide useful guides on developing a policy and record keeping. The recording system advised in the guidance suggests that the member of staff records the incident but does not require witnesses, including the child involved, to record the event from their point of view. I have known cases where the member of staff involved and other staff who witnessed the incident have been asked to record events but the child in question has not been given the opportunity to say what happened and have that recorded and in a number of such cases it has been the fact that the parent hasn’t felt that their child has been listened to that has caused then to make a formal complaint.
Download this guidance.
|What the law says Section 93 of the Education and Inspections Act 2006 enables school staff to use such force as is reasonable in the circumstances to prevent a pupil from doing, or continuing to do, any of the following: a) committing an offence b) causing personal injury or damage to the property of any person (including the pupil himself); or c) prejudicing the maintenance of good order and discipline at the school or among any pupils receiving education at the school, whether during a teaching session or otherwise. Section 95 advises on whom these powers apply to:
In effect, this means that any person who is employed by the school whether in a paid or unpaid capacity can be authorised to use these powers, even catering or premise-related staff. Here lies problem number one: while most parents can understand why, in some circumstances, it might be necessary for a teacher to physically restrain their child, I cannot see them accepting that dinner-time supervisors or caretaking staff should be able lay hands on their son or daughter, and even less so an unpaid volunteer such as another child’s parent. I also doubt that the above-mentioned persons would wish to have these powers bestowed upon them! The guidance states that part of its aim is to reduce the likelihood of staff being ‘successfully challenged in the courts’. I suppose this means that if staff follow this guidance they will keep themselves within the law. It seems to be about keeping staff safe and leaving children and young people with less protection from the minority of staff who are heavy handed and throw their weight around. I do not mean to say that staff are not in need of protection, but I do think that to give powers to control and restrain children and young people to all and sundry is going too far. Thank goodness that the majority of headteachers will recognise the need to restrict authorisation to key staff who are trained to a very high standard in prevention of build-up of disruption, diffusion and safe handling techniques. In two separate cases in my own area recently the police asked for the school’s written policy on restraint as part of their inquiry into allegations of inappropriate handling. One school was able to produce a policy that clearly defined the situations in which restraint may be used and the case was not taken any further. The other school could not produce a policy and the police put the case through to crown prosecution for a view. (This case was also dropped.) I am not suggesting that having a policy will stop the police taking action but it was easier for the police to see what staff had been told in respect of restraint and to decide whether the staff member had stepped over what had been agreed.
The guidance includes a template for a policy on the use of force and encourages schools to consult with governors, staff, trade unions, pupils and parents in developing a policy.