Restraint and Seclusion: Scottish Government response to our Investigation and our reply

11 March 2019

Today, we are publishing the Scottish Government’s initial response to our “No Safe Place” investigation report , along with our letter back to the Government.

Please note that we will also be publishing the local authority responses and our analysis of them, though these are taking more time to work through due to the number involved and the need to consider each individually and in detail.

The Scottish Government advised it will do further work with local authorities before responding in detail to each recommendation.

We have set out the basis of our human rights approach and the context in which we will assess its response.

The primary responsibility to respect, protect and fulfil human rights rests with the State as the contracting party to international treaties. In the case of the human rights issues raised in the investigation report this responsibility is owned by the Scottish Government. The issues cover:

Read the Deputy First Minister's initial response to our report.

Our letter to Government

No Safe Place: Restraint and Seclusion in Scotland’s Schools

I am writing to you in relation to the investigation report “No Safe Place: Restraint and Seclusion in Scotland’s Schools”, which my office published in December 2018. The report makes 22 separate recommendations, of which a number were directed specifically to the Scottish Government.

Thank you for your response letter of 1st February 2019, and the informative meeting my office conducted with your officials on 8 th February 2019, which has provided me with a fuller understanding of the Scottish Government’s position and approach.

I understand that the Government intends to conclude the work it is currently undertaking with local authorities and with COSLA before responding more fully to the individual recommendations made by my office. My understanding of the work is that, among other things, it seeks to establish whether local authorities have policies and guidance in place, and what barriers exist to implementing the ‘Included, Engaged and Involved Part 2’ (IEI2) guidance. It therefore replicates a number of the questions which were addressed in the investigation. We were surprised to learn from your officials that they have not been referring to our findings and recommendations when engaging with the individual local authorities on their use of physical intervention, restraint and seclusion in schools. This seems a significant missed opportunity.

In advance of that work being completed, I think it would be helpful set out clearly the basis on which my office has approached this matter, the reasoning which underpins the recommendations we have made to the Government, and the context in which we will assess the Scottish Government’s forthcoming response when considering next steps.

1. The primary responsibility to respect, protect and fulfil human rights rests with the State as the contracting party to international treaties. In the case of the human rights issues raised in the investigation report, which cover the United Nations Convention on the Rights of the Child (UNCRC), the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the Convention Against Torture (CAT) and the European Convention on Human Rights (ECHR), this responsibility is owned by the Scottish Government.

2. States parties are required to refrain from acting in a way which breaches human rights, but are also under a positive duty to act where human rights are being breached or are at risk of being breached. In relation to restraint and seclusion in schools, this responsibility should be exercised through the creation and maintenance of a robust and effective legal and policy framework at a national level which ensures the protection of children’s human rights. As our investigation has revealed, this is not currently in place.

3. Even where delivery is devolved, the State retains overall responsibility for compliance with its international treaty obligations. The Scottish Government has responsibility for education and this is reflected in legislation. For instance, while education authorities are the mechanism through which the State’s duty to educate children is delivered, the Scottish Government has the power to direct and guide them in order to ensure the fulfilment of that duty eg through Section 2 of the Education (Scotland) Act 1980.

4. We note that there are a number of other areas of law, policy and practice relating to children where the Scottish Government directs practice in order to ensure human rights compliance, including among others, National Guidance for Child Protection in Scotland (2014);Safeguarding and Child Protection in schools (2018); and Respect for All: National approach to anti-bullying ( 2017);

Our clear view is that simply reviewing the Scottish Government’s existing IEI2 guidance would be insufficient in of itself to ensure children and young people are adequately protected from risk of harm and breach of their human rights through the use of restraint or seclusion in school. Rather, we trust a similar approach to other safeguarding issues in school will be adopted, whereby specific guidance and resources will be developed by the Scottish Government and aligned to other safeguarding and child protection guidance materials, examples of which are noted above.

A proportionate approach to such matters requires recognition of the level of risk and the severity of potential rights breaches. Since the publication of the investigation report in December, the Challenging Behaviour Foundation (CBF) and Positive and Active Behaviour Support Scotland (PABSS) published their own report on Restrictive Intervention (in January 2019) which reinforces the concerns raised in our investigation. PABSS’ Beth Morrison has reported over 400 cases of restraint and seclusion brought to her by families across Scotland, and her data suggests more than 60% of those children are aged 7 or under. I know you will share my profound concern about this.

The high level of risk and likelihood of harm to children more than justifies a focus on safeguarding, as opposed to the much more limited guidance on managing exclusions and behaviour in schools. As we have noted previously, the IEI2 guidance currently and inappropriately locates restraint and seclusion within a behaviour management framework that presents the child as the source of the problem, rather than recognising an unmet need which should be considered in the context of Additional Support for Learning.

A clear, consistent, national approach required by the Scottish Government would ensure compliance with its domestic and international obligations to safeguard children, prevent breaches of their human rights and the potential for resultant remedial legal action. You will be aware that in England parents are currently commencing a judicial review which would challenge the UK Government’s compliance with its human rights obligations on this matter.

I look forward to the conclusion of your work with local authorities and to a positive and detailed response to my office’s recommendations that recognises and reflects the important legal principles set out above.

Yours sincerely

Bruce Adamson

Children and Young People’s Commissioner Scotland