‘Is it going to take a death?’: Child seclusion and restraint guidance must be embedded in law, MSPs are told

Children’s commissioner urges MSPs to recommend creating statutory guidance on “restraint and seclusion” in schools

  • The Public Petitions Committee heard evidence from the Children’s Commissioner and parent campaigner Beth Morrison on the need for national guidance on seclusion and restrain in schools, which they say must be statutory
  •  Children’s Commissioner Bruce Adamson said Scotland is breaching its international human rights obligations, while Morrison questioned if it will “take a death” in a Scottish school for action to be taken
  • Morrison said she was advised statutory guidance was “off the table”, but the committee will ask to hear again from the education secretary to confirm this

PHYSICAL injuries and breaches of children’s human rights will continue in Scottish schools unless the Scottish Parliament introduces statutory guidance on the use of seclusion and restraint, MSPs on the Public Petitions Committee have been advised.

Representatives from the office of the Children and Young People’s Commissioner Scotland and parent campaigner Beth Morrison gave evidence on the issue in parliament today (7 November).

The petition, which was initially put forward by Morrison in 2015, calls for the introduction of national guidance on the use of restraint and seclusion in all schools, and Morrison is now clear that a “robust legal framework” will be needed to make this effective.

Seclusion and restraint are practices which disproportionately affect children with additional support needs (ASN) and which human rights and disability organisations say are used far too frequently.

Children and Young People’s Commissioner Bruce Adamson told the committee that the need to address the overuse of seclusion and restraint “cuts right to the heart of children’s human rights”, including “the right to be free from cruel and degrading treatment”.

Adamson said: “Without robust national guidance the Scottish Government is in breach of its international human rights obligations.”

The Children’s Commissioner last year used its legal powers to conduct a formal investigation for the first time in order to identify the adequacy of local authority policies and procedures and on recording of incidents of restraint and seclusion.

It found that only 18 local authorities record all incidents of restraint and seclusion within their area, but among those that did record and report data, there were 2,674 incidents relating to 386 children in 2017-18. Existing guidance for schools says that these practices must only be used as a “last resort”.

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Today, MSPs were told that efforts by the Scottish Government to address the problem have been insufficient, because the current guidance exists only in the form of two pages within a much larger policy and it has no legal footing to enforce it.

The Scottish Government recently committed to refreshing its guidance on physical intervention and seclusion within its ‘Included, Engaged and Involved Part 2’ guidance on reducing school exclusions, but Adamson said that this was  “inadequate” and that the guidance was currently “being lost”.

Deputy First Minister and education secretary John Swinney has said that the creation of standalone guidance could “increase increase the risk of inappropriate or unsafe use of physical intervention or restraint” because it would not be part of an overarching policy.

In contrast, Adamson said: “I struggle to understand why creating a new comprehensive framework that’s rights based [...] would make things more confusing. To my mind it would make things more simple.”

Furthermore, the Commissioner agreed with Morrison that the standalone guidance “does need to be statutory and have that force of law”.

MSPs were informed that it was the government’s apparent unwillingness to consider this proposal, as well as a lack of relevant expertise on ASN included in the membership, that led both the Children’s Commissioner’s office and the petitioner Beth Morrison to refuse an invitation to sit on a short-life working group looking at a refresh of the current guidance.

Head of advice and investigations for the Children’s Commissioner Nick Hobbs told the committee: “We declined on the basis that we were clear that the group wasn’t going to deliver the level of human rights protections that children [need].”

Hobbs argued that there was a need to have a consistent, national picture on the issue, saying: “We would take the view that the level of seclusion and restraint in our schools is a pretty good barometer of the health of our education system, along with a number of other things like exclusions.

“It tells you something about how well our education system is working for those who are most vulnerable.”

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Morrison added that she had met with a government official and someone from Education Scotland and that they were “very clear that statutory guidance was off the table”, even advising her that if she wanted statutory guidance she may be “better not being part of the short-life working group”.

Morrison began her campaign nine years ago after her son, who has learning and physical disabilities, came home from school with bruises as a result of being physically restrained.

Since setting up a charity, Positive and Active Behaviour Support Scotland (PABSS), in 2017 to promote good practice around alternative techniques, Morrison has gathered evidence on hundreds of children with ASN who have been injured due to being restrained.

Speaking to the committee, Morrison said: “How many children do we need to see injured, being dragged along corridors, held forcefully causing bruises, scratches, abraisions, broken limbs, broken noses, broken teeth, hospitalised on oxygen because of restraint?

“Is it going to take a death in one of our Scottish schools to ensure that these things no longer happen to our children?

“We’ve all just welcomed John Finnie’s bill, commonly known as the anti-smacking bill. How can it be that a parent can be criminalised for smacking their child on the back of the hand when we’ve got children being restrained with such force causing them injury in schools and there’s no accountability?

“We’ve now got a two-tiered system in Scotland and I believe we have to have a level-paying field and that all children need to be protected in law.”

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A campaign launched earlier this week by Enable Scotland has also called for the introduction of national statutory guidance on seclusion and restraint.

The disability charity has said that the high numbers of incidents result from the fact that “education staff are not routinely trained” and that “there is no agency responsible for ensuring protocols are in place, and that children are safe from poor practice whilst at school”.

Adamson advised the committee that making the guidance statutory would strengthen the duty on the government to “make sure resources are made available” for local authorities to provide staff with the necessary training in how to avoid the use of these “last resort” practices.

He added: “The responsibility for that seems to be getting passed down and passed down and passed down and so what you get is a breach of children’s rights.”

The Commissioner’s office reported that teachers’ and classroom assistants’ unions EIS and UNISON were supportive of the introduction of national guidance which would ensure better support and resources would be given to staff.

The committee, convened by Labour MSP Johann Lamont, agreed to speak again to the education secretary and to clarify whether statutory guidance does, in fact, remain “off the table” in light of the investigation findings of the Children’s Commissioner. The Scottish Government will also be asked whether it has assessed the “viability and doability” of such a proposal.

Responding to a question on this issue by Labour MSP Daniel Johnson at First Minister’s Questions later the same day, First Minister Nicola Sturgeon said with regards to introducing statutory guidance: “This is certainly something we will be happy to consider as we undertake [our] review.” 

She added that all of the recommendations included in Enable Scotland’s campaign report this week would feed into the work the government is doing to review the guidance. 

Picture courtesy of Myriam Zilles

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