Physical intervention in schools: guidance

Annex C: Legal framework for restraint in schools

1. The key legislation and human rights conventions in relation to restraint and seclusion are listed in Annex A. It is important to note that there are absolute legal prohibitions that apply to the use of restraint and seclusion. These are summarised in the Equality and Human Rights Commission’s Framework for Restraint, which points to the clear position in international human rights law in respect of:

• restraint and seclusion with intent to torture, humiliate, distress or degrade someone;
• a method of restraining someone that is inherently inhuman or degrading, or which amounts to torture;
• physical force (such as physical restraint) as a means of punishment; or
• restraint or seclusion that humiliates or otherwise subjects a person to serious ill–treatment or conditions that are inhuman or degrading.

2. Education authorities, the managers of grant-aided schools and the proprietors of independent schools should ensure that restraint and seclusion is only used as a last resort, to prevent an immediate risk of injury, with the minimum necessary force, and for the minimum necessary time. In practice, the principle of last resort means that restraint should only be considered where no less restrictive options are viable.

UNCRC Act 2024

3. Under the 2024 Act, it is unlawful for public authorities to act incompatibly with the incorporated UNCRC requirements when acting under powers conferred by or under Acts of the Scottish Parliament, certain statutory instruments or under the common law. The 2024 Act gives children, young people and their representatives the power to go to court to enforce their rights. The use of restraint on children and young people has significant implications for their human rights, in particular with respect to the following incorporated articles:

• 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)

4. “Public authority” includes the Scottish Ministers, a court or tribunal, and “any person certain of whose functions are functions of a public nature”^[3]. This expressly includes functions carried out under an arrangement with a public authority^[4], which would include functions carried out under a contract or grant. Education authorities are public authorities for the purposes of the 2024 Act. While this is ultimately for the courts to determine, it is anticipated that publicly-funded provision at grant-aided or independent schools would be a public function.

Equality Act 2010

5. The use of restraint and seclusion, if they are not used for the reasons outlined in this guidance, could amount to discriminatory or prohibited conduct under the 2010 Act.

6. Under the 2010 Act, education providers have a duty to make reasonable adjustments for disabled children and young people and must not discriminate against a child or young person in the provision of education, or by subjecting a child or young person to “any other detriment”. Reasonable adjustments for a child or young person’s distressed behaviour arising from their disability would include the consideration and use of less restrictive or preventative approaches and de-escalation or co-regulation strategies, before restraint is used. Education providers must therefore ensure that they comply with the provisions of the 2010 Act in relation to any use of restraint in schools.

Duty of care

7. Education providers owe a duty of care to their pupils^[5] and staff in relation to their safety. They have a duty to take reasonable care to prevent any harm that can be foreseen. Similar duties are placed on education providers under Health and Safety legislation. This guidance highlights the preventative approaches that can be taken to meet the needs of children and young people and lower the risk of harm to themselves or others arising from distressed behaviour. It also highlights the de-escalation and co-regulation strategies that should be considered ahead of restraint or seclusion if an unexpected risk of injury arises. Nevertheless, it is accepted that there are situations when the use of restraint or seclusion may be the only viable option available to staff to prevent an immediate risk of injury.

Health and Safety at Work etc Act 1974

8. An employer's general duty under Section 2 of the 1974 Act includes ensuring, so far as is reasonably practicable, that their employees are not exposed to risks associated with work-related violence and aggression. The Health and Safety Executive’s definition of work-related violence is ‘Any incident in which a person is abused, threatened or assaulted in circumstances relating to their work’. This can include verbal abuse or threats as well as physical attacks.

9. An employer's responsibilities under Section 3 of the 1974 Act includes conducting their undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in their employment are not exposed to risks associated with work-related violence and aggression. An employer's responsibilities can therefore extend to both employees of other employers (e.g. contract staff), to self-employed persons and also to members of the public, including pupils.

10. Under the Management of Health and Safety at Work Regulations 1999, employers have a legal duty to assess the risks to employees and this includes, where appropriate, the risks from exposure to reasonably foreseeable violence and aggression relating to their work. The aim of the risk assessment is to determine what measures need to be taken to prevent or minimise the potential for work-related violence and aggression.

Protection from assault

11. The criminal law of assault is relevant to the use of physical restraint in schools. The common law crime of assault, in short, is a deliberate attack upon another person, whether or not actual injury is inflicted. No particular degree of force is required. What matters in the context of restraint is the question of intent. Restraint, if used inappropriately, excessively or harmfully, could result in a charge of assault being brought.

Human Rights Act 1998

12. Under the Human Rights Act, public authorities can only interfere with a child or young person’s Article 8 rights (the right to respect for private life, which includes respect for physical integrity), where it can demonstrate that its action is lawful, necessary and proportionate in order to:

• protect national security
• protect public safety
• protect the economy
• protect health or morals
• prevent disorder or crime, or
• protect the rights and freedoms of other people.

13. Any physical restraint would have to meet this test.

Standards in Scotland’s Schools etc. Act 2000

14. Section 16 of the Standards in Scotland’s Schools etc. Act 2000 prohibits corporal punishment in schools and subsection (4) is relevant to the use of a physical restraint:

16 No justification for corporal punishment

(…)

(4) Corporal punishment shall not be taken to be given to a pupil by virtue of anything done for reasons which include averting–

(a) an immediate danger of personal injury to; or

(b) an immediate danger to the property of,

any person (including the pupil concerned).

Legal framework for seclusion in schools

15. In addition to key aspects of the legal framework outlined for restraint, there are a number of human rights protections relevant to the use of seclusion. Of particular relevance is the legal framework surrounding deprivation of liberty^[6].

16. Under Article 5 of the ECHR (incorporated by the Human Rights Act 1998), everyone has the right to liberty and security of person. No one shall be deprived of their liberty save in certain circumstances, set out in Article 5, and in accordance with a procedure prescribed by law.

17. In contrast, restrictions of movement may be permissible. It must be acknowledged that in the school context, as in other areas of children’s lives, some restrictions of movement are normal and desirable, for example in the interests of children’s safety.

18. A deprivation of liberty can occur where a person is confined to a place that they cannot leave.

19. There is no legal process for authorising a deprivation of liberty in the school context. This means that the use of an act which goes beyond a restriction of movement and deprives a child or young person of their liberty would, in that context, not be prescribed by law, and the education provider may be acting unlawfully.

20. Article 37(b) of the schedule of UNCRC Act 2024 requirements also sets out the principle that no child shall be deprived of their liberty unlawfully or arbitrarily. The detention of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. Paragraphs (c) and (d) are also relevant in outlining rights following any deprivation of liberty.

21. UNCRC Article 3(1) is relevant to all decision making in this area in stressing that in all actions concerning children, the best interests of the child shall be a primary consideration.

UNCRPD

22. Similarly to Article 37(b) of the UNCRC, the UNCRPD Article 14(1) (liberty and security of person) sets out that state parties should ensure that persons with disabilities are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.