Physical Intervention Working Group minutes: May 2021

Attendees and apologies

The following organisations were represented

• Association of Directors of Education in Scotland (Chair)
• Convention of Scottish Local Authorities
• The National Parent Forum of Scotland
• Association of Scottish Principal Educational Psychologists (ASPEP)
• Children and Young People’s Commissioner Scotland
• Education Scotland
• Scottish Government
• North Ayrshire Council
• Highland Council
• Positive and Active Behaviour Support Scotland
• CALM Training
• Enable Scotland
• Fife Council
• East Lothian Council
• NASUWT
• Angus Council
• Centre for Excellence for Children's Care and Protection (CELCIS)
• Educational Institute of Scotland
• South Lanarkshire Council
• British Institute of Learning Disabilities (BILD)
• Society of Local Authority Lawyers & Administrators in Scotland

Items and actions

Welcome and apologies

The Chair welcomed members to the meeting, the first since 20 January 2020.

Apologies were noted from the following organisations:

• Stirling Council
• Edinburgh University
• Fife Council
• Unison
• NASWUT
• Scottish Youth Parliament
• First Tier Tribunal Service
• Dumfries and Galloway Council
• Mental Welfare Commission Scotland
• The Association of Headteachers and Deputes in Scotland
• Westwater Advocates

The Chair thanked Dr Brodie Paterson, representing CALM Training on behalf of the group for his valued contributions to the group’s work over the last year. The National Parent Forum of Scotland confirmed that a new representative has been identified for this group. The Chair thanked Tony Rafferty for his contributions to the group’s work. A change in one of the members of the Scottish Government’s health and wellbeing policy team was also noted.

Progress update from sub groups

The Scottish Government updated the group on progress with the working group’s agreed workplan. At the last meeting of the working group, members agreed to establish three sub groups in order to take forward the five asks agreed between the Scottish Government, the Children and Young People Commissioner Scotland and the Equality and Human Rights Commission in 2019.

The planned second meeting of the working group in April 2020 was postponed due to group members focus on the response to the COVID-19 pandemic. While COVID-19 continued to impact upon the group’s work, after an initial pause, work recommenced through the sub groups in June 2020.

Definitions sub group

The sub group met in February and June 2020 and working definitions for physical intervention, restraint and seclusion were agreed and shared with working group members by email in July 2020. This sub group has concluded its initial work.

Guidance sub group

The sub group has met four times between August 2020 and January 2021 to consider the structure and initial drafts of the guidance. The sub group has now considered the majority of the principal chapters and has provided comments on each. Since January, the Scottish Government has been editing the draft in advance of the sub group’s next meeting, which is currently planned for late May or early June.

As part of the working group’s commitment to engage with children and young people and families who have lived experience of restraint and seclusion in schools, the Scottish Government and Enable Scotland conducted engagement sessions on the selected elements of the draft guidance with three of Enable Scotland’s networks (young people, young adults and family connect groups) in January 2021. The guidance sub group will consider feedback from these sessions at their next meeting. The feedback report will also be shared with working group members for their awareness.

Following an approach in autumn 2020, Children in Scotland, the Scottish Youth Parliament and the Children’s Parliament indicated a preference to engage with the public consultation.

Recording and monitoring sub group

While the Scottish Government was unable to convene the sub group as planned in autumn 2020, the first meeting is planned for mid-May. The Scottish Government has issued a request to all local authorities for information on the restraint and seclusion data they currently collect and the systems currently used to do so. To-date responses have been received from the majority of authorities. This information is intended inform the first stages of the sub group’s work in agreeing a standard dataset.

The Scottish Government will continue to keep working group members informed of key developments with the work of the sub groups.

Taking stock: A rights-based approach

In March 2021, the Scottish Parliament passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. Following a request by the Children and Young People’s Commissioner Scotland (CYPCS) Office’s to build in additional time for the working group to consider the implications of the Bill’s provisions, which remain subject to Royal Assent, the CYPCS was invited to present on to the group on this subject. A note of the CYPCS’s presentation is included under item 3.1.

Opportunities arising from UNCRC incorporation

The CYPCS highlighted that the Bill’s provisions, when enacted, will have significant implications for current duties and duty bearers of those providing children’s services in Scotland. The CYPCS asked that group members consider the following points:

• the passing of the Bill has brought international attention to children’s rights in Scotland at a time when restraint is still happening in schools
• UNCRC incorporation gives all staff working with children an opportunity to revisit preconceptions about acceptable and justifiable practice
• group members should reflect on children’s rights and their experiences, from their perspective, before and during COVID-19 in order to shape what their experiences should be post-COVID-19
• the Bill provides a legal basis for children’s rights beyond UNCRC article 12 rights to participation. The Scottish Government has stated their aim of taking a ‘maximalist’ approach to children’s rights, which was called for in the CYPCS’s 2018 ‘No Safe Place’ report and reflect commitments to the European convention of human rights and the UN convention on the rights of persons with disabilities in its work
• the working group should continue to take a PANEL (Participation, Accountability, Non-discrimination and equality, Empowerment and Legality) approach to human rights in relation to the guidance

In considering these points, the group agreed to take forward the following actions:

• take account of the UNCRC (Incorporation) (Scotland) Bill and reflect its ‘gold standard’ approach to children’s rights in the remit of the working group and the development of the guidance

Action: Scottish Government to consider updates to the working group’s terms of reference to reflect UNCRC incorporation.

Ensure the voices of children and young people are listened to, heard and ring through the guidance in order that their rights in relation to restraint are clear.

Action: Building on the guidance sub group’s January 2021 engagement sessions, the guidance sub group will consider bespoke engagement during the public consultation as a further opportunity to engage children and young people in this process. 

Take account of recent developments and reports that are relevant to the working group’s aims.

Action: Guidance and Recording and Monitoring sub group’s to consider and take account of the policy developments and reports noted below in their work.

Consider impact assessments in light of the UNCRC incorporation bill. In particular:

• article one (definition of the child)
• article three (best interests of the child)
• article twelve (respect for the views of the child)
• article nineteen (protection from violence, abuse and neglect)
• article thirty-seven (inhumane treatment and detention)

The CYPCS highlighted that the incorporation of these articles will provide new legal safeguards to protect all children up to the age of 18 from harm and will give a new statutory basis to the guidance. The CYPCS outlined that new statutory guidance was therefore not required in this area and that the guidance will act as a preventative tool to ensure recognition of children’s rights in terms of practice, accountability and responsibility. Children’s rights and wellbeing indicators provide a strong foundation for good practice and appropriate safeguards in relation to the use of restraint. It was further noted that under section six of the bill, it would be unlawful for public authorities to act incompatibly with its provisions, once enacted.

Action: Guidance sub group to consider the guidance’s impact assessments in relation to the incorporation of the above articles and their provisions and reflect these prominently in the draft guidance.

CALM Training highlighted that a planning or audit tool could be developed for schools to assist with the implementation of the guidance and changes to practice. 

Action: CALM Training to share examples of planning audit tools for the guidance sub group’s consideration.

Reports and policy developments

The CYPCS referenced a number of reports that have, or are due to be, published that are relevant to the group’s work. These are:

• the UN Global Study on Children Deprived of Liberty (2019)
• the Equalities and Human Rights Commission’s (EHRC) Human Rights Framework for Restraint (2019), which has been considered by the definitions and guidance sub groups and their inquiry into the recording and monitoring of restraint in schools (England and Wales). Due to be published in late Spring 2021. These should be considered within a Scottish context
• the impact of the COVID-19 pandemic on children and young people’s rights and their additional support needs. The CYPCS commissioned an Independent Children’s Rights Impact Assessment on the Response to COVID-19 in Scotland

It was noted that work is underway in the Scottish Government to deliver the Additional Support for Learning Review Action Plan (October 2020), the Independent Care Review (The Promise) Plan 21-24 and prepare updated Child Protection and GIRFEC guidance. The Scottish Government is working to align the physical intervention guidance with these wider pieces of work.

Impact assessments

The Scottish Government updated the group on the development of Children’s Rights and Wellbeing and Equality Impact Assessments in relation to the guidance. Drafts have been prepared for the guidance and will be revisited in collaboration with guidance sub group members, as noted in item 3.1, and shared with the working group for comments. The Scottish Government’s Children’s Rights policy team, which leads on UNCRC incorporation, will also be consulted in this process.

Aims, outcomes and timescales

The group agreed to take forward the actions outlined under item 3.1.

The Scottish Government updated group members on anticipated timescales for the development of the guidance. The Scottish Government updated the Scottish Parliament’s Education and Skills Committee in February 2021 on progress and confirmed the public consultation is now expected to issue later this year. Next steps involve the stocktake, consideration of impact assessments, guidance revisions, agreement by the working group and clearance of the draft guidance through the Scottish Government and the COSLA and ADES membership and governance structures. The aim is to complete this process during the summer. This would allow for the public consultation to launch in the autumn and the final guidance to be published towards the end of the year or the beginning of 2022. The group indicated they were content with this new timeframe. COSLA confirmed that there would be an opportunity for their Children and Young People Board to consider the draft guidance at their August meeting.

Any other business

No items were raised.

Date of next meeting

The next meeting of the working group will take place to consider the draft guidance and impact assessments once they have been completed by the guidance sub group. The Scottish Government will be in touch with members to arrange a date for this.