The legal safety net designed to protect teachers and other school staff when using force against pupils has been brought out for yet another tweak, supposedly with the intention of affording greater protection. In this article I look at exactly what the current law and guidance allow you to do and the new proposed changes.
It seems to be a subject upon which plenty is promised but little is offered. The power for teachers and other school staff to use force in schools has made its way on to the coalition government's agenda and back into the press. A popular topic for politicians, academics and lawyers alike, the last six months have seen even more debate, discussion and confusion than usual on the thorny issue of using force.
With repealed laws, the promise of new guidance to replace that issued only five months ago and directives to the courts, the legal foundations upon which this power is based have never been so confusing. So let us go back to basics.
The power to use force is set out in the Education and Inspection Act 2006. An act that sought to tie up many education loose-ends and is perhaps best known for creating trust schools, it also sets out how and when force can be used at section 93. This part of the act came into force in April 2007, followed soon after by non-statutory guidance. In summary, the section 93 powers allows you to use reasonable force in three specific circumstances.
- When the pupil is committing an offence.
- When the pupil is causing injury to a person or damage to property.
- To maintain good order and discipline.
The act also confirms that this is not a return to the days of corporal punishment. For the avoidance of doubt, using force as a form of punishment remains unlawful. So when should the power be used?
Statutory guidance was issued soon after the power came into force, but it was particularly inadequate. April 2010 saw the release of the current guidance: The Use of Force to Control and Restrain Pupils, is a 34-page document intended to provide advice on when it is reasonable to use force and attempts to reassure staff that all will be well as long as the guidance is followed.
The first hurdle the guidance aims to overcome is deciding what level of force is reasonable. Of course, each circumstance will be different and different levels of force or methods of intervention will be required to suit particular situations. The key point to remember is the force used must be proportionate to the consequence it is intended to prevent for it to be deemed reasonable. If a child is attacking another with a weapon, more force would be justified than if one was simply separating two pupils that had only squared up to each other. The force used should be the minimum required to achieve the desired outcome.
Weighted in favour of the pupil
At first blush then, the guidance is useful. However, cracks appear when you look to put it into practice.
Two difficulties present themselves. Firstly, there is no legal definition of ‘reasonable force' and trying to measure what is reasonable in the heat of the moment can be an almost impossible task. Secondly, pupils and parents can and do complain and such a complaint can often turn in to a formal investigation. In other words, an allegation of abuse can follow quickly on the heels of a use of force. The guidance offers little in support, stating simply that "if the force used is reasonable all staff will have a robust defence against any accusations".
Unfortunately, that is not the point. Being the subject of an investigation into an allegation of abuse against a pupil can be an extremely stressful experience and, even if the allegation is ultimately determined to be without merit, it could have led to the suspension of the member of staff and caused that staff member stress and anxiety. Furthermore, the fact that there is no definition of reasonableness makes an investigation into the actions of a teacher that bit more difficult.
Let us take a basic example. Two pupils are fighting in a corridor. As you come across the melee, the first pupil is struck and falls to the floor and the second pupil motions as if to aim a kick at his head. To ensure you pull the second pupil away in time to avoid him making contact, you grab him firmly by the arm from behind and pull him sharply backwards away from the first pupil. The second pupil alleges he received bruising and an injury to his shoulder as a result of your intervention. In these circumstances, was the force you used reasonable?
Based on the circumstances set out above, the court (and any investigation into your actions) is likely to find in your favour. However, one must wait some considerable time for that exoneration. What if it doesn't come? What if it is found that, while there was little doubt that your intervention was required, the use of force was not, or that the force you used was deemed to be excessive?
Instead of supporting your actions it is possible that, after a long investigation and time spent contemplating, discussing and evaluating the options open to you in that split second, the decision is that you overstepped the mark. As a result, a referral could be made to the Independent Safeguarding Authority regarding your actions and the parents of the second pupil could consider bringing civil proceedings against you for injuries allegedly suffered by their child.
This may be an extreme example, but the law and the guidance afford a teacher in these circumstances very little protection. What this means in practice is few teachers feel comfortable using the power and so, in reality, they choose not to. What we are left with is a legal power of no practical use.
Maintaining good order and discipline
For the three years that this power has been in force, the law has allowed teachers to use force to maintain good order and discipline in class. An intriguing idea, but one fraught with more potential for legal challenge than the scenario explored above. If there is a risk that using force to separate fighting pupils could lead to an allegation of abuse/use of unreasonable force, then attempting to remove a pupil from a classroom by force must increase that risk tenfold.
The guidance offers little to reassure. At paragraphs 29 to 31 it sets out examples of when force could be used, which include a pupil persistently refusing to follow an instruction to leave a classroom. Paragraph 32 then undermines this by adding:
‘...use of force is likely to be construed as reasonable (and therefore lawful) if it is clear that the behaviour was sufficiently dangerous or disruptive to warrant physical intervention of the degree applied and could not realistically be dealt with by any other means.'
This is effectively a three-stage test by which one's actions will be judged after the event. Was the behaviour sufficiently dangerous or disruptive to warrant physical intervention? If so, did it warrant intervention of the degree applied? If so, could the actions not realistically be dealt with by any other means?
There is little evidence of this power being used before the new guidance came out in April and there seems little encouragement within it to persuade teachers that not only do they have the legal power to use force, but also that the law is on their side if indeed they choose to do so. At the moment, this is not the case.
Whether it is the answer or not, in July this year the coalition government promised new, more concise guidance which will state explicitly that teachers can physically remove disruptive children from class and prevent them leaving a room in situations where this is necessary to maintain good order. Alongside that, the government will tell the courts to heed clearer guidance that physical force can be used to remove youngsters from classrooms.
An explicit statement set out in guidance does not change the law. If the government want to make sure that teachers are equipped with the power to use force and protected in law when doing so, clarifying guidance telling the courts to ‘heed clearer guidance' will not do it: only a change in the law will.
With the law as it currently stands, schools must ensure they have strong policies in place on the use of force by their staff. However, the advice must remain that using force should be seen as a last resort and when considering using force only to maintain good order and discipline, one should think extremely carefully about the risks and ramifications involved.
Legal requirement to record and notify parents of force
On a more positive note, the coalition government has lightened the bureaucratic load in this area by repealing a law due to come into force this month. The Apprenticeships, Skills, Children and Learning Act 2009 would have added two new legal requirements for schools. Firstly, all schools would have had to have had a policy in place for recording each significant incident in which a member of staff uses force and secondly, each time force was used, it must be reported to the parent of the pupil concerned.
While schools certainly have nothing to hide when it comes to the use of force, had this proposed new law come into force it would have discouraged staff from using force still further and led to uncertainty as to when an incident warranted recording and reporting. Thankfully, schools do not have to consider this issue.
The current legal position
The current legal position on the use of force is, in theory at least, straightforward. The law is set out at section 93 of the Education and Inspection Act 2006. Using reasonable force is justified when a pupil is committing an offence, causing injury to a person or damage to property or in order to maintain good order and discipline. The law remains that force cannot be used as a form of punishment.
To assist schools in deciding whether to use force, guidance was issued by the Department for Children, Schools and Families (as it then was) in April 2010. Alongside the guidance, it is imperative that schools have a behaviour policy in place and a policy for the use of force so teachers, pupils and parents alike understand what is expected of them.
We await the promised new guidance from the government. It remains to be seen whether the redrafted guidance is simply a reworking of the existing version, or whether the government will attempt to provide more clarity and support for schools so that teachers and other staff can be feel more comfortable when using force.
Dai Durbridge is a safeguarding lawyer at education law specialists, Browne Jacobson