Are you familiar with the details surrounding this vital piece of legislation? Claire Anderson explains to educators what they need to know regarding the basic legal implications of when they are able to use force with pupils
THE DCSF introduced updated guidance in November 2007 on the use of force to control or restrain pupils. This guidance replaces DFES Circular 10/98. The guidance applies to all schools in England and Wales.
It is aimed at those in a position of responsibility, such as head teachers or boards of governors, and offers general advice to help them devise polices for the use of force or restraint in their schools.
Familiarity with the law underlying the guidance, and with the guidance itself, is essential — especially in a culture where there are increasing numbers of civil and criminal court cases after alleged assaults by teachers against pupils and vice versa. This two-part feature (part 2 next month) will explain what educators need to know about the new rules.
The guidance notes that the Ministry of Justice and DCSF are carrying out a review of physical restraint in secure settings for young people. The findings of that review are due out this summer and may result in further changes to the law.
The Law
The Education and Inspections Act 2006 introduced a statutory right for school staff to use such force as is reasonable in the circumstances to prevent a pupil from:
- committing an offence or engaging in conduct that could be an offence
- causing injury to themselves or others
- damaging property
- prejudicing good order and discipline at the school
The power applies where the pupil is on school premises or any other place where s/he is in the lawful control or charge of the school staff member. This means that the power extends to school trips.
The power is to use such force as is reasonable in the circumstances. There is no definitive definition of when it is reasonable to use force. It is important to look at the full circumstances of each individual case.
A further statutory right arises from the Violent Crime Reduction Act 2006. This legislation states that reasonable force may be used to search pupils for weapons without their consent.
The power can be used where the teacher has grounds for suspecting that a pupil has a weapon. Two members of staff should be present before undertaking a search.
Common law rights
Further rights arise as a result of the common law (law formed through court decisions rather than statute). Any citizen has the right in an emergency to use reasonable force in self defence or to prevent another person from being injured or committing a criminal offence.
The common law power is broadly similar to the provisions of the Education and Inspections Act 2006, which clarifies the circumstances in which force may legitimately be used at school.
It should be remembered that it is always unlawful to use force as a means of punishment.
The Guidance
The Department for Children, Schools and Families guidance helps teachers assess when and how they should use force or restraint. The guidance is not the same as legislation — which means that schools are not under a legal obligation to follow it.
The guidance comes from a recognised source and provides invaluable advice about how to meet the legal requirements. As such, it is recommended that schools familiarise themselves with it.
Objectives of the Guidance
The guidance and the law aim to protect staff and pupils; to prevent serious damage to property; to prevent disruption to the education of the pupils; and to reduce the likelihood of staff being successfully challenged in the courts where they have had to use force or restraint.
The guidance has no legal force but does carry authority. If a court challenge did follow use of restraint, it is likely that reference would be made to the guidance as an indication of best practice.
The guidance suggests that the starting point for schools is to draw up a policy that addresses the specific circumstances of each individual school. This may involve consultation with staff and the parents of particular pupils.
Staff authorised to use force
The policy for use of force must clearly state who is authorised to use it. Authority can be given on a permanent or temporary basis depending on the circumstances.
The authority should be granted to those who supervise school staff. It is likely that teachers will have permanent authority, and other staff members who supervise pupils only at certain times will need only temporary authority. The key to making the authorisations work is to ensure that all staff know what authority they hold. Those with permanent authority should know who has temporary authority and when they hold it.
Schools should keep a record of those authorised.
The authority granted by the Education and Inspections Act is an authority embodied in statute law. For this reason a school cannot remove that authority by putting in place a ‘no-force’ policy.
Case Study: pupil-specific risk assessment
In a mainstream secondary school at the start of the academic year it is identified that a pupil, X, is about to start second year. In his first year he was prone to angry outbursts but had not resorted to physical violence. His records disclose no known medical condition or special education need that explains his behaviour.
In this type of case the school would be justified in carrying out a pupil-specific risk assessment. The starting point would be to think about who may be at risk if X's behaviour deteriorates to the point where force is necessary. The school could look for any patterns to his behaviour to narrow the scope: for example, does he tend to be more outspoken in particular classes or at particular times of day?
The next step would be to identify how to avoid or minimise the need for force. Consultation with X's teachers would be a good starting point. Do they know what triggers the outbursts? What has worked in the first year to avoid his outbursts escalating? Is there a teacher that he responds well to? With this information, a strategy can be designed to meet X's individual needs.
If it is anticipated that force or restraint may be needed with X then it might be worthwhile to meet his parents to discuss how the school intends to deal with his behaviour and to draw up a strategy.
As the academic year progresses the specific risk assessment and strategies for X should be kept under review.
Risk assessments
The school's policy on use of force should follow a detailed risk assessment for the whole school and should allow for more specific assessments for particular pupils where appropriate.
Situations where a specific risk assessment would be needed include:
- where the child has a learning impairment or sensory disability that reduces his or her ability to communicate or reason
- where there are children with particular medical conditions that render them fragile, for example if a child is a haemophiliac. The specific risk assessment should identify safe ways of restraining that child, should that be necessary
- where a child's physical disabilities render him or her dependent on certain types of equipment (for example an asthmatic child), you must take this into account when carrying out risk assessment
- a temporary medical condition could mean you have to make a specific assessment. For example, where an older female pupil is known to be pregnant
- a specific risk assessment would also be appropriate if a child is known to have a propensity towards violent outbursts or extreme behaviour
Where to begin
The risk assessment should start with identifying: where the need to use force might arise; those teachers who may be affected and how they can avert situations where force might be used, or minimise force when it is necessary. Control measures should always be aimed at reducing the force used to the lowest level reasonably practicable.
A pupil-specific risk assessment may benefit from consultation with teachers who are familiar with the child and also the parents — see box, right, for a case study.
The decision to use force
Even with the guidance, it will always be difficult to judge when restraint or force is necessary. Often, a staff member will not have time to carry out the balancing exercise that is necessary.
Personal safety training is one way of helping staff find the confidence to act decisively when confronted with a difficult situation.
Wherever possible the teacher or staff member should try to avoid using force. This may mean talking to the pupil in a calm way, making clear to him or her that if s/he does not stop what s/he is doing force will be used. It should be made clear that force is not being used as a punishment and that the use of force will stop as soon as the situation has been resolved.
Force or a restraint is likely to be required in a wide variety of situations. Where the situation allows, the staff member should weigh up the risks arising from the behaviour against the risk that force may cause distress or injury to the pupil, staff member or other pupils.
When force may be necessary
Situations include:
- where a pupil attacks a member of staff or another pupil
- a pupil is damaging property or is about to do so
- a pupil's behaviour is likely to cause an accident with injury or damage
- where a pupil attempts to leave a classroom or the school. Situations justifying force to prevent a child from leaving are those where allowing the pupil to leave would create a risk to that pupil's or others’ safety, or where allowing the pupil to leave would disrupt other classes in the school
- where a pupil has been asked to leave the classroom for disciplinary reasons and refuses to do so
- where a pupil is seriously disrupting a lesson
- a pupil is seriously disrupting a school event or visit
How to minimise the need for force
The format of the guidance follows the logical and systematic approach taken for health and safety risk assessments and it is suggested that the starting point for drawing up policies and strategies should begin with a risk assessment.
The assessment should identify where situations may arise that would require a teacher to resort to force or restraint. Once these areas of concern have been identified the starting point should always be to consider whether the risk can be eliminated. If the risk cannot be eliminated then your policy should identify ways to minimise the need to use force.
The guidance acknowledges that preventive measures will not entirely eliminate the need to use force but you should still try. Measures to be considered are listed in the guidance.
Overall school climate
It is recommended that schools try to deal with the overall climate at the school and create a calm, orderly and supportive environment. The risk assessment process should identify where the risk of violence or disruptive behaviour could arise. This will help determine how to avoid those circumstances arising in the first place.
Staff training will be of important, so that staff can identify situations that could escalate into violence. The training should also teach them how to neutralise the situation before the need to use force arises.
Effective relationships
Staff should be encouraged to develop effective relationships with the pupils. Where particular pupils are known to have particular learning difficulties that could give rise to outbursts or extreme behaviour, or if a child has a propensity to being disruptive, then a specific teacher or staff member may be designated to build a working relationship with that child so that s/he can be called upon to assist with difficult situations.
Whole-school approach
The guidance recommends that schools adopt a whole-school approach to developing social and emotional skills. They suggest using the Social and Emotional Aspects of Learning programme as a means of helping both staff development and emotional development for pupils who can learn how to self-manage their behaviour.
Look aheadAn important part of reducing the likelihood of difficult situations arising is starting from the point of recognising that this type of behaviour is often foreseeable. It is important to have in place strategies to manage incidents before they reach the point that restraint or force is required.
For example, the guidance suggests taking the pupil away from an audience of bystanders or other pupils to a quiet room. This allows staff to listen to the child or talk to him or her to calm things down.
Claire Anderson is an associate in the litigation division of Morton Fraser
In part 2, next month, we look at how to use force, recording and reporting and complaints.
Find out more
- General information and links
- Use of force guidance