Physical intervention in schools: children's rights and wellbeing impact assessment

Child Rights and Wellbeing Impact Assessment

1. Brief Summary

Type of proposal:

• Decision of a strategic nature relating to the rights and wellbeing of children

Name the proposal, and describe its overall aims and intended purpose.

Included, Engaged and Involved Part 3: A relationships and rights-based approach to physical intervention in schools.

This new guidance aims to strengthen the national policy framework around the use of physical intervention in schools, reduce the use of restraint and seclusion on children and young people and promote preventative, relationships-based practice as alternatives to restraint and seclusion. The guidance outlines children and young people’s rights in relation to practice in this area.

The guidance contributes to the Scottish Government’s national outcomes for children and young people, education, health and human rights.

This new guidance will be presented as part of the Included, Engaged and Involved suite of guidance (Included, Engaged and Involved Part 1: A Positive Approach to the Promotion and Management of Attendance in Scottish Schools and, Included, Engaged and Involved Part 2: A Positive Approach to Preventing and Managing School Exclusions).

Start date of proposal’s development: January 2020

Start date of CRWIA process: 2020

2. With reference given to the requirements of the UNCRC (Incorporation) (Scotland) Act 2024, which aspects of the proposal are relevant to/impact upon children’s rights?

The guidance aims to help schools to uphold children’s rights in relation to the use of physical intervention, restraint and seclusion. The guidance also aims to increase the consistency of practice in supporting distressed behaviour for all children and young people across all local authorities and school educational settings. The guidance therefore aims to have a positive impact on all children and young people’s rights. It recognises the right to education for all, the right for all to be safe and it acknowledges that where it is proportionate, restraint may be necessary as a measure of last resort to prevent injury.

3. Please provide a summary of the evidence gathered which will be used to inform your decision-making and the content of the proposal

Evidence from:

• existing research/reports/policy expertise

The evidence base has included statistical and research evidence and surveys provided by a range of organisations and the Scottish Government’s public consultation. These have been considered as part of the Equality Impact Assessment Process and have informed the advice offered in the final guidance. This has provided clear evidence of negative experience and trauma associated with the use of restraint and seclusion on children and young people in schools as well as feedback on the draft guidance.

Since the end of the consultation period relevant contextual data has been published. This includes the latest statistics from the 2023 pupil census, the 2023 Behaviour in Scottish Schools Research report and member surveys from the Educational Institute for Scotland and NASUWT. These have been included in the accompanying Equality Impact Assessment.

• consultation/feedback from stakeholders

The Scottish Government ran a public consultation between June and October 2022. The consultation analysis report highlighted key findings and themes arising from the 104 respondents and the 581 comments received. The key themes (points raised 18 times or more) in the consultation were:

• The guidance was considered to be too long, which impacted its accessibility.
• Further clarity on the advice on the prevention of restraint would help the implementation of the guidance.
• Clarity of the definitions. The definitions of the types of physical intervention and restraint were clear; however additional clarity was asked for in relation to the definitions of, and connection between, staff-led withdrawal and seclusion.
• The importance of supporting resources, accessible handouts and training to the implementation of the guidance.
• consultation/feedback directly from children and young people

Engagement sessions were held in January 2021 with Enable Scotland’s young people, young adults and family networks, which allowed the views of those with direct lived experiences of restraint to help inform the content of the guidance. In particular feedback informed the advice within the alternatives to restraint and seclusion section of the guidance.

4. Further to the evidence described at ‘3’ have you identified any 'gaps' in evidence which may prevent determination of impact? If yes, please provide an explanation of how they will be addressed

There is no comprehensive baseline data for the number of restraints currently used in schools across Scotland. The guidance aims to increase the consistency of recording and monitoring to enable a focus on minimising the use of restraint and seclusion.

5. Analysis of Evidence

Article 1 (definition of the child)

The guidance will apply to all schools and therefore school age children and young people, including those up to the age of 18.

Article 2 (non-discrimination)

The guidance seeks to support schools in their understanding and upholding of children’s rights and embed this approach in local policies and decisions around the appropriate and lawful use of physical intervention, restraint and seclusion. In doing so, the guidance seeks to prevent discrimination against any child or young person in line with the Equality Act provisions, in particular discrimination in relation to children and young people with disabilities.

Article 3 (the best interests of a child)

The guidance outlines the decision making process around the use of physical intervention, restraint and seclusion in which the best interests of a child or young person, and their rights, are given primary consideration. In recognising the safety and wellbeing of all children and adults in the learning environment, the guidance does not prohibit the use of restraint and seclusion as a last resort where there is an immediate risk of injury.

Article 12 (respect for the views of the child)

The guidance seeks to support schools to take account of the views of children and young people in decisions around the use of physical intervention, restraint and seclusion. The guidance also adds clarity on the circumstances, consideration of legal rights and the proportionality of action balanced against the risk posed that should be taken into account when making such decisions.

Article 19 (protection from violence, abuse and neglect)

The guidance outlines the lawful and proportionate safeguards around the use of physical intervention, restraint and seclusion in order to prevent children and young people coming to harm.

Article 23 (children with a disability)

Under the Equality Act 2010, schools and education authorities have a duty to make reasonable adjustments for disabled pupils and must not discriminate by subjecting a pupil to ‘any other detriment’^[1], or disadvantage. Discrimination can arise when a child is treated unfavourably because of something that arises from their disability. The consequences of a disability include anything that is the result, effect or outcome of a pupil’s disability.^[2] This can include a child or young person’s distressed behaviour if it arises from their disability.

The technical guidance (5.38) states that, in a case involving disability, if a school has not complied with its duty to make relevant reasonable adjustments, it will be difficult for it to show that the treatment was proportionate. Reasonable adjustments for a child or young person’s distressed behaviour arising from their disability would include the consideration and use of less restrictive, preventative approaches and de-escalation strategies in response to their distressed behaviour, before restraint is used.

Schools and local authorities must therefore ensure that they comply with the provisions of the Equality Act 2010 in relation to any use of physical restraint in schools.

The guidance highlights that in any decision around the use of physical intervention, restraint and seclusion, the rights of all children and young people must be considered. This includes children and young people with a disability.

The evidence gathered in accompanying EQIA suggests children and young people with a disability and those with additional support needs are more vulnerable to the use of restraint and seclusion in schools. As the guidance provides a rights-based framework for decision making around the use of restraint, it aims to have a positive impact on practice in relation to pupils with a disability.

Article 24 (health and health services)

The health and wellbeing of children and young people (as the service users) is the primary concern of the guidance. In outlining the decision making process around the use of physical intervention, restraint and seclusion the guidance clarifies the duty of care of school staff in relation to their pupils’ safety.

Article 28 (right to education)

The guidance aims to uphold children’s right to education through the promotion of inclusive and participatory practice. It upholds the rights of all to education by acknowledging the need to ensure all children and young people should be safe from harm in schools.

Article 29 (goals of education)

The guidance will help to ensure children and young people’s rights are respected and contribute to their safety, wellbeing, inclusion and ability to learn and thrive in a nurturing learning environment to reach their full potential.

Article 37 (inhumane treatment and detention)

The guidance outlines the lawful and proportionate parameters around the use of restraint and seclusion in order to prevent children and young people being subject to inhuman or degrading treatment. The guidance aims to help ensure that children and young people are not deprived of their liberty unlawfully or arbitrarily in education settings.

Article 39 (recovery from trauma and reintegration)

The guidance acknowledges that restraint, even when lawfully and proportionately applied, is a traumatic experience, and may cause harm in relation to past experiences of trauma or neglect in a child or young person. The guidance therefore offers advice on how the traumatic impacts of restraint and seclusion, where unavoidable, could be minimised in practice and how repeated use can be avoided.

6. What changes (if any) have been made to the proposal as a result of this assessment?

Changes have been made to the guidance’s advice on prevention, alternatives to restraint, the safeguards for using physical intervention, restraint and seclusion and post-incident support.