Does the law help or hinder those charged with protecting such pupils?

Ingrid Sutherland cuts a path through existing, new and ‘improved’ guidance.

Social inclusion of vulnerable children — in particular looked-after children — is high on the political agenda. It is high on the education agenda too, as evidenced by the 2003 Green Paper, Every Child Matters, and a plethora of government guidance, including changes to school admissions and exclusions guidance.

This article summarises policy, law and guidance that schools should be aware of in dealing with the education of vulnerable children, as well as important new duties, now in force, that schools must act on.

EVERY CHILD MATTERS
In 2003, the Government issued Every Child Matters with the aim of protecting and promoting the well-being of all children, and of supporting their families:

  • Policies were translated into practice in the Children Act 2004, building on existing local authority duties (under the Children Act 1989) to safeguard and promote the welfare of looked-after children, and to safeguard and provide for the welfare of children in need.
  • The Children Act 1989 also placed duties on a number of agencies (including, in some circumstances, LEA-maintained schools) to provide assistance to social services departments acting on behalf of children in need, or investigating abuse allegations.

The Children’s Commissioner The Children Act 2004 established a Children’s Commissioner to seek and represent the views of children and young people on how far the five outcomes (being healthy, staying safe, enjoying and achieving, making a positive contribution and economic well-being) are being met.

The commissioner is to promote awareness of the views and interests of children in England (not the rights and interests of children, as in Wales and Northern Ireland). S/he does not have the power to investigate individual cases.

NEW DUTIES
Those responsible for children must:

  • promote co-operation to improve their well-being (Children Act ‘04 s.10)
  • make arrangements to safeguard and promote their welfare (s.11)
  • (for looked-after children) promote their educational achievement (s.52)

There is an associated power to transmit data relating to all children, (not just those in care). This should help monitor how effective authorities are in complying with their duties.

DUTY TO SAFEGUARD AND PROMOTE CHILDREN’S WELFARE
The duty to safeguard children and promote children’s welfare (Education Act 2002, section 175) came into force in June 2004. It applies to LEAs and governing bodies of maintained schools and FE institutions.

There is a similar duty on independent schools (including Academies and CTCs) (s.157, and the Education (Independent Schools Standards) (England) Regulations 2003 as amended).

Educators must carry out their functions with a view to safeguarding and promoting the welfare of children

In doing so, they must have regard to any guidance issued by the secretary of state.

They must meet specified standards in the quality of the education provided, and in the spiritual, moral, social and cultural development of pupils and their welfare, health and safety.

Failure to have in place legally required arrangements, or failure to have regard to issued guidance may result in the secretary of state taking action against a local authority, governing body or school proprietor. Ofsted is responsible for inspecting both the existence of procedures and their effectiveness in safeguarding children from harm.

The common law duty
There is also a common law duty on educational professionals to protect those in their care from risk of harm, which is different to these new duties to actively promote their welfare.

Safeguarding: the guidance
DfES guidance, Safeguarding Children in Education (2004), covers local authorities, governing bodies and head teachers of maintained and non-maintained special schools, proprietors and heads of independent schools and corporations, and principals of FE institutions.

Part 1 explains the local authority and educators’ duty to safeguard and promote the welfare of children.

Part 2 sets out educators’ responsibilities for child protection.

It describes the infrastructure and arrangements that must exist to give educators the skills, means and training necessary to protect children and young people from harm.

The guidance is set out in broad terms, not giving detailed procedures.

  • See also: Every Child Matters: Change for Children in School.
  • For guidance on protecting a child about whom there are concerns, see What To Do If You’re Worried A Child Is Being Abused.

What ‘safeguarding’ requires:

  • all reasonable measures to be taken to minimise risks of harm to children
  • all appropriate action to be taken to tackle concerns about the welfare of children, working to agreed local policies in full partnership with other local agencies

‘Safeguarding’ covers child protection issues as well as pupil health and safety, bullying, meeting the medical needs of children, first aid provision, school security, drugs and substance misuse.

The purpose of the guidance is to:

assist LEAs, schools and FE institutions in ensuring that they have systems in place to provide a safe environment in which children can learn

  • identify children who are suffering, or likely to suffer, significant harm
  • take appropriate action to ensure that they are kept safe both at home and at school

S.175 does not place a specific duty on head teachers or other members of staff, but the guidance states that they are responsible for carrying out their duties in compliance with arrangements made by the LEA, governing body or proprietor. Enforcing individual compliance is up to the employer under existing disciplinary procedures.

Governors and heads
Governing bodies’ duties include ensuring that their school: has a child protection policy and procedures in place; operates safe recruitment procedures; has procedures for dealing with abuse allegations against staff; and has a senior member of the school’s leadership team who is designated to take the lead responsibility for dealing with child protection issues.

Heads need to ensure that: the policies and procedures adopted by their governing body are fully implemented; that there are sufficient resources and time for staff to carry out their responsibilities, including strategy and inter-agency meetings and contributing to assessments; and that there is an environment where people feel able to raise concerns. The need for training is stressed.

It also has a useful appendix with all relevant guidance listed.

The duty to safeguard and promote the welfare of children (Children Act 2004 s.11, above) covers specified groups of professionals (e.g. children’s services authorities, health authorities and police). Schools are not a specified group as they are already covered by the similar S.175/157 Education Act 2002 duty.

DUTY TO PROMOTE ACHIEVEMENT OF LOOKED-AFTER CHILDREN
The DfES consulted on draft statutory guidance on the duty to promote the achievement of looked-after children (Children Act 2004).

This duty is designed to ensure that local authorities take account of the educational implications of decisions they take about the welfare of children they are responsible for — i.e. those in public care subject to a care order, and those being accommodated.

The draft guidance sets out the core actions local authorities must take to comply with this duty. It will replace the statutory guidance in the DoH Local Authority Circular 2000(13) (May 00) but is not designed to update the non-statutory guidance on the Education of Children in Public Care, which is to be updated during 2005.

The Government says that it expects this new duty to be ‘cost neutral’, as improvements in achievement for these children can be made through better use of existing resources.

See www.dfes.gov.uk/consultations (Archive and Result section) for the draft guidance. The closing date for responses to the consultation was 9 June 2005, and the guidance is to be issued shortly.

Co-operation with local authorities
The draft guidance says that it expects schools to take a proactive approach to co-operating with, and supporting, local authorities in discharging this duty. It covers all looked-after children — including those placed outside the authority.

The draft guidance refers to raising the expectations and aspirations of these children so that they achieve their full potential.

It gives useful suggestions on personal education plans: these are to be drawn up by the designated social worker with case management responsibility (in consultation with others) for every looked-after child within 20 school days of becoming looked-after, or of joining a new school, wherever the child is placed.

EDUCATION OF CHILDREN AND YOUNG PEOPLE IN PUBLIC CARE
The DoH guidance referred to above (Local Authority Circular 2000(13)) makes recommendations about the roles of LEAs and social services, including that they should:

  • have an officer with responsibility for the needs of children and young people in care
  • have a time limit of 20 school days within which children in care who change school must be found an education place
  • use ‘dowries’ to assist with the costs of reintegrating excluded pupils into school

INFORMATION-SHARING AND ASSESSMENT
The DfES has a useful web site: www.dfes.gov.uk/isa, which gives details on how, through improved information-sharing and a common approach to assessing children’s needs, all young people should get access at the earliest opportunity to the education and health services to which they are entitled.

Common Assessment Framework
Part of this process is the new Common Assessment Framework, which allows information to follow the child between services (reducing duplication).

Each local authority should develop a local information hub consisting of a list of all children living in the area and basic details, including: school attended; whether excluded or refused access; and whether known to agencies such as education welfare, social services and police.

The aim is to track children who may have slipped through the net. Cross-Government guidance on sharing information on children and young people is (until 15 November) out for consultation.

The Common Assessment Framework (now being piloted), for implementation from April 2006, is intended to help practitioners decide what services may assist a child who requires specialist help to meet the five outcomes for children (referred to above).

CHILDREN MISSING EDUCATION
The DfES issued guidance in July 2004: Identifying and Maintaining Contact with Children Missing, or at Risk of Going Missing, from Education. This guidance relates mainly to local authorities, but schools need to be aware of it because they may have pupils at risk of going missing, or who fall within its ambit and are then placed at schools when found.

This guidance highlights good practice for identifying children missing (or at risk of going missing) from education.

LOOKED-AFTER CHILDREN: WHO DOES WHAT (LACWDW)
The DfES has issued guidance on how social workers and carers can support the education of children in care: LACWDW (main document) and LACWDWSD (summary document): www.dfes.gov.uk/educationprotects/

‘HARD-TO-PLACE’ PUPILS
The DfES issued guidance on ‘hard-to-place’ pupils in 2004. This encouraged groups of schools to work together in foundation partnerships, and with their LEA, to manage excluded pupils, and those at risk of exclusion, and to support and make provision for them.

Admission forums were to seek schools’ agreement to protocols for sharing ‘hard-to-place’ pupils more equitably across all schools. Every area was expected to have agreed, and have in place, such a protocol for the school year September 2005. See www.dfes.gov.uk/exclusions/guidance for the letter and guidance.

A change of tack
But on 1 February 2005, the secretary of state announced that before any school would be asked to take in previously excluded pupils, the school should have arrangements in place to enable it to deal effectively with such pupils should they become disruptive again.

As a result, the secretary of state has announced that admissions protocols for hard-to-place pupils need not apply to previously excluded pupils if the schools in the area do not consider themselves ready to take them.

Protocols covering looked-after children and other hard-to-place pupils, effective from September 2005, should remain in place.

Once schools have agreed between themselves, and with their local authority, arrangements for strengthening support available to them to deal with disruptive pupils, (which should be completed by September 2007 at the latest) the protocol should be extended to include previously excluded pupils.

Where groups of schools consider that they are already in a position (from this September) to take previously excluded pupils, as part of an agreed protocol, then the arrangement can be put in place on that basis.

The letter also deals with school collaboration on, and devolved funding for, behaviour management and alternative provision.

IMPROVED CHILDREN’S RIGHTS?
Admissions
As part of the recent DfES consultation on revised school admissions and appeals codes of practice, the department has issued draft regulations, including a set that proposes to place a legal duty on all admission authorities to give priority to looked-after children in their oversubscription criteria.

If this comes into force it will be from the school year 2007-8 at the earliest. It will give the current recommendation in statutory guidance far more weight. See www.dfes.gov.uk/consultations.

Exclusions
During the Lords debate on the Education Act 2005, the Government agreed to strengthen the exclusions guidance to emphasise the importance of the child having a voice in the exclusion process.

Under the proposals, head teachers will encourage pupils to give their version of events and to attend reviews and appeals. Revised guidance is likely to be issued (probably for consultation) after April 2006 to give effect to this promise.

The exclusions guidance is likely to be amended to make specific note of the particular circumstances of looked-after pupils.

It will advise that whenever a looked-after child is excluded, anyone defined as a parent will have the right to make representations and appeal, and that these children will be allowed and encouraged to participate more fully at all stages of the exclusion process.

A STEP IN THE RIGHT DIRECTION
The Government appears to be moving in the right direction in supporting vulnerable children and young people. But there is a lack of adequate funding, which may put at risk some of the proposed improvements to protecting the most vulnerable in our society.

And the Government continues to deluge busy schools with more papers to read, digest and act upon.

Ingrid Sutherland is a solicitor, giving advice and training for the Advisory Centre for Education

Children’s services Children’s services are to be improved with integrated planning, commissioning and delivery of services and clear accountability, in particular:

  • Children’s Services Authorities (covering social services and education) are to be set up
  • statutory Local Safeguarding Children’s Boards are to replace existing Area Child Protection Committees
  • cross-agency databases are to be set up for better information sharing
  • a director of children’s services is to be created and a lead council member for children is to be designated for clear local political accountability
  • there will be an integrated inspection framework — including joint reviews of all children’s services (i.e. social services, education) and improved intervention powers
    (to bring children’s social services into line with education services)

‘EDUCATION PROTECTS’
This programme (see www.dfes.gov.uk/educationprotects) aims to help local authorities raise the educational achievements of children in care. It was launched in June 2000. See, in particular: Education Protects — Guidance on the Education of Children and Young People in Public Care (statutory guidance issued in October 2000).

OTHER USEFUL DOCUMENTS

  • Aiming High: Raising the Achievement of Minority Ethnic Pupils (DfES/0183/2003)
  • Aiming High: Understanding the Educational Needs of Minority Ethnic Pupils in Mainly White Schools: A Guide to Good Practice (DfES/0443/2003)
  • Aiming High: Raising the Achievement of Gypsy Traveller Pupils (DfES/0443/2003)
  • Aiming High: Guidance on Supporting the Education of Asylum Seeking and Refugee Children (DfES/0287/2004)
  • Guidance on the Education of School-Age Parents (DfES/0629/2001)
    http://publications.teachernet.gov.uk

BEHAVIOUR management is high on the political agenda. Media coverage continues to highlight the challenges and dangers posed to teaching staff by violent and disruptive pupils.

With the current climate for greater inclusion, mainstream schools must increasingly deal with pupils with a wide variety of behavioural needs. Charles Clarke’s recent announcement that schools will be required to take a share of disruptive pupils indicates that this is likely to continue.

At the same time, schools are facing pressure to achieve ever higher academic standards. Whole-school policies are advocated for managing the behaviour of all pupils. But there are specific approaches designed for children with emotional and behavioural difficulties (EBD).

WHAT ARE ‘EBD’?
In general terms, a child with EBD will present with negative behaviour that may hinder his or her emotional, educational and social development.

WHAT’S THE BEST WAY TO DEAL WITH EBD?
There has been much research conducted about the most effective way to deal with children with EBD. What can be said with certainty is that a flexible and objective approach will be required because of the diverse range of range of behaviours encompassed by the term:

On-the-spot decisions
Even though there may be a programme of support, involving a number of specialists, for a particular child, staff will often be faced with difficult situations — and with the need to make quick decisions when a child presents with challenging and violent behaviour.

We will now look at the powers available to staff for dealing with challenging behaviour, and then we will consider the crucial role played by risk assessment.

PHYSICAL INTERVENTION
Teachers, and other staff authorised by the head of a school, may need to use physical force to control or restrain violent pupils.

Legal powers
Section 550A of the Education Act 1996 sets out a statutory power for teaching staff to use reasonable force in certain circumstances. DfES Circular 10/98, The Use of Force to Control or Restrain Pupils, also provides useful guidance in this area.

Section 550A says that teaching staff may use such force as is reasonable in all the circumstances to prevent a pupil from:

  • committing an offence
  • causing personal injury, or damage to the property of any person (including the pupil’s own)
  • engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school, or among any of its pupils

Self-defence and emergencies It is important to note that section 550A does not cover all the situations in which it might be reasonable for a member of staff to use reasonable force. For example, everyone has the right to defend him or herself against a physical attack — provided s/he does not use a disproportionate degree of force to do so.

Similarly, in an emergency — for example if a pupil were to be at immediate risk of injury, or on the point of inflicting injury on someone else — any member of staff would be entitled to intervene.

Section 550A therefore makes it clear that teachers, and other authorised staff, are also entitled to intervene in other, less extreme, situations.

Who can use ‘reasonable force’?
The Act allows all teachers at a school to use reasonable force to control or restrain pupils. It also allows other people to do so, in the same way as teachers, provided they have been authorised by the head teacher to have control or charge of pupils.

Head teachers should identify people, other than teachers, whom they wish to authorise to have control or charge of pupils — and therefore be able to use force if necessary.

Authorisation may be on a permanent or long-term basis because of the nature of the person’s job, or on a short-term basis for a specific event, such as a school trip.

The head should explicitly inform those concerned, and ensure that they are aware of, and understand, what the authorisation entails.

What form should intervention take?
Physical intervention might include:

  • holding
  • pushing
  • pulling
  • leading a pupil by the arm or hand
  • blocking a pupil’s path
  • physically interposing between pupils
  • in extreme cases, using more restrictive holds

RISK ASSESSMENT
The Health and Safety Executive has made it clear that violence in the workplace must be assessed and controlled in the same way as any other risk to health and safety.

Of violence in schools, the Health and Safety Executive says: ‘Violence should never be accepted as “one of those things”. It must be assessed and controlled in the same way as any other risk to health and safety.’

Why risk assessment protects you
Whilst they are not the only strategy to be employed, risk assessments to assess the likelihood and the severity of potential harm posed by any pupil with a propensity to violence are essential to the Health and Safety of all those that have contact with those pupils.

Undertaking a risk assessment should minimise the chances of the identified risk occurring. But risk assessments are important, too, if the risk becomes reality. This is because they document that the school considered such events might occur, and did all it reasonably could in the circumstances to prevent that from happening.

What if the school was unaware of the risk?
This advice is all well and good if schools have information about a pupil that determines that s/he presents a risk to others, including staff. But what if such information is not readily available at schools?

The rape of a teacher by a pupil, 16, at a mainstream central London school shows how serious the problem can be. The boy had a history of abusive behaviour and sexual aggression. But the school had not been made aware of this and so had failed to carry out a risk assessment or make arrangements to protect staff or other pupils.

It is unclear whether the school was not informed of the pupil’s history by omission, or deliberately
— for reasons of confidentiality. It is hoped that the case will lead to clearer guidance on:

  • who should be informed of a child or young person’s offending behaviour
  • how, and by whom, a risk assessment should be carried out in order that schools can comply with their legal obligations to staff

Connection with ‘safeguarding’ The Every Child Matters reform programme continues to develop policies and strategies designed to safeguard and promote the welfare of pupils.

A key part of this reform programme is the recognition that to achieve better outcomes for pupils, relevant information must be shared with all professionals who come into contact with a pupil — including relevant teachers.

It is hoped that by sharing such information, a better outcome for staff will also be achieved.

Amelia Wallington is a solicitor at Browne Jacobson, you can contact her at awallington@brownejacobson.com She was assisted in the writing of this article by Judith Head

FIND OUT MORE
Read Circular 10/98, The Use of Force to Control or Restrain Pupils at www.dfes.gov.uk/publications/guidanceonthelaw/ or order from DfEE Publications: 0845 6022260

For useful information on www.teachernet.gov.uk/management/atoz/r/riskmanagement

For a list of publications on risk, see www.hse.gov.uk/risk/raindex.htm

FIND OUT MORE
The Every Child Matters website: www.dfes.gov.uk/everychildmatters Every Child Matters: Change for Children in School (DfES1089/2004) is at the ECM website (above)

Safeguarding Children in Education (DfES/0027/2004): www.teachernet.gov.uk/wholeschool/familyandcommunity

What To Do If You’re Worried A Child Is Being Abused (May 2003) can be viewed or downloaded at: www.everychildmatters.gov.uk/
Identifying and Maintaining Contact with Children Missing, or at Risk of Going Missing, from Education (LEA/0225/2004): Download from: www.dfes.gov.uk/educationprotects/index.cfm?pageId=2499&

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