Formal investigation: Restraint and seclusion in Scotland's schools

We have published the report of our first formal investigation— into Restraint and Seclusion in Scotland’s Schools. We used the Commissioner’s legal powers to investigate this issue.

Read the investigation report.

Read the executive summary of the report.

What restraint and seclusion are

Restraint means holding a child or young person to stop them from moving.

And seclusion means shutting a child somewhere alone and not allowing them to leave.

The United Nations Committee on the Rights of the Child is clear that restraint and seclusion may violate children’s rights, including their right to be free from cruel, inhuman or degrading treatment or punishment, their right to respect for bodily integrity, and their right not to be deprived of their liberty.

What our investigation focused on

Our investigation has focused on the adequacy of local authority policies and procedures and on recording of incidents.

Local authorities were required to provide their policies on:

  • Physical intervention in schools (covering restraint and seclusion), and
  • Recording of physical interventions (if separate).

They were also required to provide evidence on the data they hold and what they do with it.

Recommendations of our investigation into restraint and seclusion

Our investigation found that use of restraint and seclusion on pupils across Scotland is largely unmonitored, with glaring inconsistencies across local authorities.

It recommended the Scottish Government produce effective and human rights compliant national guidance to direct local authorities, schools and staff in the lawful use of restraint and seclusion.

The EHRC and the Commissioner warned the Government that without new guidance it was in breach of its human rights obligations to children, as laid out in the United Nations Convention on the Rights of the Child (UNCRC) and the European Convention on Human Rights (ECHR). Although the Government agreed to refresh the existing two-page guidance, this was not sufficient to safeguard children’s rights.

Intervention by EHRC Scotland

The Equality Act 2006 affords the EHRC the right to institute legal proceedings on matters that are relevant to its functions, as long as the Scottish Human Rights Commission consent. These include supporting the development of a society in which there is – among other things – respect for and protection of each individual’s human rights, and respect for the dignity and worth of each individual. In August 2019, EHRC Scotland used this power to support a Judicial Review raised in the Scottish courts.

Following this intervention – and after a series of productive meetings between the office of the Children’s Commissioner, EHRC Scotland and the Deputy First Minister and Cabinet Secretary for Education and Skills, John Swinney MSP – the Scottish Government has agreed to:

  1. Produce human rights-based guidance on restraint and seclusion and review the effectiveness of that guidance,
  2. Involve children, young people and their families in the drafting and review of the guidance,
  3. Consider statutory action should the guidance prove to be ineffective, and
  4. Develop and introduce a standard dataset to be implemented across Scotland to ensure consistent recording and monitoring of incidents.

It is expected that the guidance will be developed and available by mid-2020.

Our report

We've written a report in plain English to explain the action we took around restraint and seclusion.

Read a report around the action we took.