Local authority responses
Our investigation into restraint and seclusion in Scotland’s schools found that restraint and seclusion was largely unmonitored by local authorities, so that it was impossible to know with any degree of certainty:
- how many incidents of restraint and seclusion take place in Scotland each year,
- which children are most affected,
- how frequently children are affected, and
- how serious the effects on them are.
The investigation report made 22 recommendations to improve matters and to ensure that children’s rights are respected, protected and fulfilled in schools. The report included a requirement that all 32 of Scotland’s local authorities gave a statement in writing to the Commissioner setting out:
- what they’ve done or propose to do in response to the recommendations, or
- the reasons why they did not intend to do anything in response to the recommendations.
Access the full responses from all 32 local authorities.
Findings of our investigation
Among the findings of our investigation into restraint and seclusion were that:
- 4 out of 32 local authorities had no policies or guidance in place to govern the safe and lawful use of restraint and seclusion.
- Even where policies did exist, children and young people were rarely, if ever, directly involved in their development.
- Children’s rights are referenced in many policies but not given meaningful expression in terms of how they should impact on practice.
- Scottish Government has not produced adequate national policy or guidance on these issues. The current guidance is only two pages long.
- Only 18 local authorities record all incidents of restraint and seclusion within their area. Four local authorities do not record any incidents at all.
- Children’s views are not routinely recorded by most local authorities following an incident where restraint and/or seclusion is used.
- Scottish Government does not record data on restraint and seclusion, despite calls from the United Nations for it to do so.
- Restraint is inconsistently defined across local authorities, with some referring to the use of force, while others define it more broadly.
- Only 18 of the 32 local authorities state clearly that restraint should be used a last resort when the child or another person is at immediate risk of harm.
- Some local authorities permit the use of restraint to prevent damage to property.
- Local authority guidance on seclusion generally does not reflect the legal tests to ensure compliance human rights standards. This creates significant risks for local authorities, teachers and children.
Summary of local authority responses
National guidance and human rights
82% of local authorities who expressed a view agreed it would be helpful for the Scottish Government to produce national policy and guidance to support teachers and ensure a consistent approach to the protection of children’s rights. The need for national policy to be grounded in the human rights framework was also strongly supported, with 13 local authorities specifically commenting on this point.
Those few who disagreed with the call for national guidance argued that the existing ‘Included, Engaged and Involved Part 2’ guidance (IEI2) was sufficient.
The Commissioner’s office does not consider IEI2 to be adequate, as it inappropriately locates restraint and seclusion within a behaviour management framework as opposed to the broader context of safeguarding and Additional Support Needs.
It also lacks sufficient detail on the extent to which human rights are engaged by restraint and seclusion. It does not meet the Scottish Government’s positive obligations under international human rights law to protect children’s human rights.
The Government will be publishing its detailed response to the Commissioner’s recommendations in June and it is imperative that in doing so Ministers recognise their legal obligations to put in place a robust and effective human rights-based legal and policy framework.
There was strong agreement about the need for all incidents to be recorded, with 83% of authorities expressing this view. However, one local authority (East Dunbartonshire) disagreed with the need to report the data on a national level and another (South Ayrshire) felt that existing local recording mechanisms were sufficient.
The Commissioner’s office continues to believe that recording and publication of national data, as called for by the United Nations, is necessary to ensure proper scrutiny and accountability of practice.
Local authorities strongly agreed with the need for clear definitions of restraint and seclusion to help ensure consistency of approach and practice.
View of the Child
There was widespread agreement about the importance of seeking, recording and reflecting children’s views in all planning, risk assessment and post-incident reviews.
What happens next?
We are pleased that local authorities have responded positively and constructively to the office's recommendations. We await the detailed response to our recommendations from the Scottish Government, and a clear indication of a timescale for national policy and guidance to be put in place to ensure children are protected, staff are supported and Ministers can be confident that they are discharging their legal obligations.