In his recent report, No Safe Place: Restraint & Seclusion in Scotland’s Schools, the Children and Young People’s Commissioner for Scotland sets out a number of clear recommendations for the Scottish Government.
The approach it advocates for, including the development of a rights-based, national policy on restrictive intervention, and increased reporting obligations on local authorities, certainly represents an important step forward.
However, whilst we should certainly commend our Scottish colleagues, the lack of movement from our own Government on this issue - who, since publishing draft guidance in November 2017, appears to have fallen rather silent - is all the more notable.
The results of an investigation undertaken by the Challenging Behaviour Foundation (CBF) and Positive and Active Behaviour Support Scotland at the end of last year, has revealed the shocking prevalence of restrictive physical intervention [RPI] being used on disabled children in schools. This includes physical, mechanical and chemical restraint and seclusion.
Their report, Reducing Restrictive Intervention of Children and Young People, found, for example, that 88% of respondents had a disabled child who had experienced physical restraint at school, and 71% had experienced seclusion. For many of these children, this was happening regularly and even on a daily basis.
From the clients I have represented in civil claims, including a young boy whose school decided to use a spit-hood on him and another who sustained serious injuries in seclusion, I am all too aware of the long-lasting consequences these practices can have.
In addition to the physical and emotional harm that may be caused to the child involved, there may also be an impact upon their families, many of whom have fought through the tribunal system to secure the educational placement, only to find that the school lacks the expertise promised, has breached its duty of care and has violated their child’s human rights.
Since commenting on this issue in 2015, I remain of the view that, whilst there may well be circumstances where restrictive physical intervention is genuinely and absolutely necessary to safeguard the child or those around them, its use - if not properly recorded, monitored and understood - can easily become routine.
In these situations, and indeed in any circumstances where it is used inappropriately, it can be abusive, harmful and violate the child’s bodily integrity and liberty. These are all rights that are protected in law, including under the European Convention on Human Rights and the UN Convention on the Rights of the Child.
When I met recently with Rrisc (Reducing restrictive intervention- safeguarding children and young people), a group of organisations and families who have come together with the common aim of reducing the use of RPI, the principal issues were clear:
- There is no standardised practice and training across the education sector in England on the use of RPI;
- Incidents of RPI are not always recorded and monitored, resulting in a lack of accountability
- Their use is often reactive; this means that the reasons for - and antecedents to - the child or young person’s behaviour are often not properly understood or addressed, and opportunities to deescalate are missed;
- RPI can be harmful and in fact lead to a deterioration in behaviour;
- That this means we are failing to protect not only children involved, but also many of the teachers and staff working with them.
These are all concerns that have also been voiced in Scotland, where the Children’s Commissioner is calling upon the Government and local authorities to take action. Whilst families and campaigners in Scotland still await the outcome of the Commissioner’s consultation, which was originally expected at the end of January, it is nonetheless clear that our own jurisdiction is lagging significantly behind.
Further, that until there is a robust and effective national policy framework in place, governing the use of RPI on children and young people with learning disabilities, autistic spectrum disorder and mental health needs, we are at serious risk of denying those individuals their most basic rights to be safe and to access education.
For many families whose relatives have been harmed through unlawful practices, challenging this through the civil courts may not only result in a compensation award - allowing them to access specialist therapy and begin to rebuild their lives - but can also send a clear message that these practices are unlawful and should not, and will not, be tolerated. This, I hope, is the case with many of the families I have represented.
However, beyond the individual cases, it is clear that there are bigger questions to be asked of the Department of Education and Department of Health and that, following the positive example that appears to be coming out of Scotland, it is time for change.