Physical intervention in schools: draft guidance

Introduction

'Governments must do all they can to ensure that children are protected from all forms of violence, abuse, neglect and bad treatment by their parents or anyone else who looks after them.'

(Article 19, United Nations Convention of the Rights of the Child)

1. This guidance forms the third part of the Included, Engaged and Involved guidance series and replaces the existing guidance on physical intervention and seclusion within Part 2: preventing and managing school exclusions. Its purpose is to improve child or young person's learning experiences by outlining best practice in:

• promoting positive relationships, behaviour and wellbeing;
• minimising the use of restraint and seclusion and eliminating their misuse;
• ensuring children and young people's rights are understood, respected and taken account of in all decisions around the use of physical intervention.

2. This non-statutory guidance applies to education authority, grant-aided and independent schools in Scotland. There is an expectation that education authorities, the managers of grant-aided schools and the proprietors of independent schools will use this guidance to review and revise existing local policies and procedures on physical intervention. These "education providers" should ensure all staff are aware of this guidance and the local policy on physical intervention, which should include details of how the use of restraint will be minimised.

3. The guidance introduces new definitions for physical intervention, restraint and seclusion. These are set out in Annex B.

4. The guidance promotes good practice in ensuring all children and young people are safe and protected within a nurturing environment where additional support needs are well understood and provided for. The guidance outlines the preventative approaches that should be in place to minimise the use of restraint. Where restraint is used, the guidance offers best practice advice on rights-based decision making and the necessary safeguards that must be in place to ensure lawful practice and protect the wellbeing of children and young people and staff. The guidance reflects education providers' duty of care to children and young people in relation to their health, safety and wellbeing. Finally, the guidance offers advice on post-incident support for children and young people and others involved and outlines expectations for recording, monitoring and reporting the use of physical intervention.

5. The guidance contributes to the delivery of the Scottish Government's national outcomes for children and young people, education, health and human rights^[1]. In all circumstances, it is important that the principles of preventative practice outlined, in this guidance, as part of a restraint reduction approach, are applied.

The need to minimise the use of restraint

6. Education providers should ensure that restraint is only used as a last resort, to prevent harm, with the minimum necessary force, and for the minimum necessary time.

7. Minimising the use of restraint in schools is possible. An example of a school's journey away from the use of restraint is included on the national improvement hub^[2]

8. The need for the UK to "adopt appropriate measures to eradicate the use of restraint for reasons related to disability within all settings" was noted by the UN Committee on the Rights of Persons with Disabilities in 2017^[3].

9. The Children and Young People's Commissioner Scotland's "No Safe Place" report^[4], published in 2018, highlighted inconsistencies in the definitions of restraint and seclusion in local policy and practice, and a lack of a standard approach for recording incidents. The importance of addressing the children's rights implications of restraint in Scotland's schools was again highlighted within ENABLE Scotland's "In Safe Hands?" Campaign^[5]. In both reports, children and young people highlighted the trauma they suffered as a result of restraint in school. It was also highlighted that children and young people with additional support needs are more vulnerable to the inappropriate use of restraint.

10. In 2019, the Equality and Human Rights Commission published their Human Rights Framework for Restraint^[6], which sets out advice for policy makers on the human rights implications of restraint for service delivery.

11. In February 2020, the Independent Care Review published seven reports forming the Promise^[7], which includes the following commitment:

"Schools in Scotland must also not exacerbate the trauma of children by imposing consequences for challenging behaviour that are restrictive, humiliating and stigmatising. This includes seclusion or restraint…"

12. Similarly, the Additional Support for Learning Review, published in June 2020, emphasises that "early intervention and preventative approaches reduce the need to consider exclusion, physical intervention and seclusion…"^[8]

13. This guidance seeks to address these issues and provide clarity on best practice for Scotland's schools.

Children and young people's human rights

14. The United Nations Convention on the Rights of the Child (UNCRC)^[9] sets out the fundamental rights of all children and young people. The Scottish Government is committed to protecting the rights of children and young people and remains committed to the incorporation of the UNCRC into Scots law to the maximum extent possible as soon as practicable. While the Supreme Court judgment relating to the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill^[10] means that the Bill cannot receive Royal Assent in its current form, the Scottish Government is urgently and carefully considering the most effective way forward for this important legislation. The majority of work in relation to implementation of the UNCRC is continuing.

15. The UNCRC forms the basis of our national approach for supporting children, Getting it right for every child (GIRFEC). The use of restraint on children and young people has significant implications for their human rights, in particular with respect to:

• Article 2 (non-discrimination)
• Article 3 (the best interests of a child)
• Article 12 (respect for the views of the child)
• Article 19 (protection from violence, abuse and neglect)
• Article 23 (children with a disability)
• Article 24 (health and health services)
• Article 28 (right to education)
• Article 29 (aims of education)
• Article 37 (inhumane treatment and detention)
• Article 39 (recovery from trauma and reintegration)

16. Legal safeguards are also be found in the European Convention on Human Rights ("ECHR", which is incorporated into Scots law by the Human Rights Act 1998). In particular:

• Article 3: Freedom from torture and inhuman or degrading treatment^[11]
• Article 5: Right to liberty and security^[12]
• Article 8: Respect for private and family life, home and correspondence^[13]
• Article 14: Protection from discrimination^[14]

17. Furthermore, the provisions of the Equality Act 2010 ("the 2010 Act") and the United Nations Convention of the Rights of Persons with Disabilities are directly relevant to practice in this area (see Annex C).

18. These rights provide the framework upon which the best practice advice included within this guidance is based.