We responded to the Scottish Government’s consultation on their draft guidance on physical intervention in schools.
Introduction and approach to responding to the consultation
We welcome the Scottish Government’s draft guidance on physical intervention in schools, which takes into account many of the findings and recommendations from our 2018 investigation into the use of restraint and seclusion as a form of behaviour management. In responding to the consultation, we have set out our analysis of the draft guidance, focussing on key areas where the guidance can be improved. Before considering the detail, we have set out our overarching view that there is an urgent need for a single coherent legal framework to cover every circumstance in which children in the care of the State may be subject to restraint, seclusion, or other restrictive practices.
The UN Committee on the Rights of the Child, in their 2016 concluding observations on the UK, expressed concern about the use of restraint, and in particular pain-inducing techniques, on children in institutional settings in England, Wales and Scotland. The Committee also expressed concern about the use of restraint and seclusion on children with psychosocial disabilities, including children with autism, in schools. The Committee has indicated that it will consider this issue again at its examination of the UK in May 2023. We continue to hear evidence that the use of restraint and seclusion is being used in schools and other care settings in a way that breaches the rights of children. It is imperative that unlawful practices of restraint and seclusion are eliminated as a matter of urgency.
On 13 December 2018, we published the outcome of our investigation into the use of restraint and seclusion under the title No Safe Place: Restraint and Seclusion in Scotland’s Schools. As explained in our report, ‘restraint’ and ‘seclusion’ are measures capable of resulting in injury, loss of dignity and considerable distress to the child concerned. We found evidence that significant physical interventions may be taking place in some education authorities without any kind of policy or procedure at a local level to ensure the lawful and rights-compliant treatment of children. We also found that recording and monitoring of restraint was patchyinconsistent across Scotland. In our report, we called on the Scottish Government to:
“[…] publish a rights-based national policy and guidance on restraint and seclusion in schools. Children and young people should be involved at all stages of this process to inform its development. The policy and guidance should be accompanied by promotion and awareness raising.”
In the years since we published our report, we have seen cross-party parliamentary commitment to put children’s rights into Scots law; the publication of the Webster report into safeguarding and child protection failures in the Scottish Borders; and sadly, many further cases of children being restrained, sometimes to significant injury, placed in seclusion or subject to restrictive practices in a range of different settings. There have also been important contributions from the Independent Care Review (the Promise) and the Mental Health Law Review, both of which flagged serious concerns about restraint and seclusion within the areas covered by their own remits. Finally, the Scottish Prisons Service has acknowledged that pain-inducing restraint remains authorised for use against children in Polmont YOI.
In addition, legal and policy developments in England, Wales and Northern Ireland have resulted in Scotland becoming increasingly notable in the lack of protection it affords children from restraint. We note that the recently published Report of the Independent Inquiry into Child Sexual Abuse has recommended that the UK Government prohibits the use of any pain inducing technique in custodial institutions in which children and detained.
Need for a single legal framework
It is necessary that the Scottish Government put in place a single coherent legal framework to cover every circumstance in which children in the care of the State may be subject to restraint, seclusion or restrictive practices: education, the care system, places of detention and mental health.
The Scottish Government must urgently consider the most suitable options for achieving a rights-respecting framework, whether through amendments to existing legislation, or through a stand-alone piece of legislation. Failure to grasp this opportunity would represent a generational failure to protect children’s rights.
There will remain a need for sector-specific guidance targeted at minimising and eliminating restraint and seclusion.
In order to provide proper and full protection for children’s rights, the guidance should be placed on a statutory footing and linked to the overarching statutory framework we refer to above. It is critical that the requirement to record, report, and monitor incidents of restraint and seclusion are given the force of law and are translated into legal duties, given the severity of the rights infringements involved.
The role of this guidance should be to support decision making and promote understanding of the legal duties as it applies to restraint and seclusion. Even in terms of the current legal context, this aspect of the guidance remains lacking, for the reasons we set out below.
Human Rights framework
The use of restraint is an interference with the child’s right to respect for their private life under Article 16 of the United Nations Convention on the Rights of the Child (UNCRC); Article 8 of the European Convention on Human Rights (ECHR); and Article 17 of the Convention on the Rights of Persons with Disabilities (UNCRPD). In order to avoid a breach of the child’s rights, the interference must be lawful, necessary and proportionate. These rights also include the right to respect for bodily integrity, a principle which sums up the right of every human being to autonomy and self-determination in regard to their own body. Non-consensual physical intrusion is considered to be a human rights violation, which means that unlawful restraint constitutes a breach of the child’s Article 8 ECHR rights. Children with disabilities or other Additional Support Needs are especially vulnerable to such rights breaches.
In more extreme cases restraint may result in a breach of the child’s right to protection from injury, violence and abuse under Article 19 of the UNCRC. It may even constitute cruel, inhuman or degrading treatment or punishment under Article 37 of the UNCRC; Article 3 of the ECHR; and Article 15 of the UNCRPD. For these reasons, restraint must be clearly and consistently defined, and subject to the tests of lawfulness, necessity and proportionality which need to be applied by staff who are expected to use these techniques.
Our investigation found practices of restraint and seclusion in Scottish schools which engage Article 3 of the ECHR, but with no regulation of these practices so as to prevent ill-treatment. Even since the publication of our No Safe Place report, we have continued to hear of instances of restraint in a range of settings which arguably breach Article 3 of the ECHR. The draft guidance, as part of a broader legal framework, would go some way to minimizing the need to use restraint in education settings and ensure that any methods used are safe and proportionate to the situation and do not involve the deliberate infliction of pain as a form of control. As it stands, there is a risk that the Scottish Government will be found to have failed to provide an adequate framework of protection for a cohort of its most vulnerable children for the purposes of Article 3 of the ECHR.
The seclusion of a child may constitute a deprivation of liberty in terms of Article 5 of the ECHR. In order to be lawful, deprivation of liberty must be authorised by a court or a tribunal. A distinction fails to be drawn between deprivation of liberty, which falls under the scope of Article 5, and restriction of movement which does not. Children may be restricted in their movements, to ensure their welfare and safety. Such ordinary care will not constitute deprivation of liberty. Seclusion as a means of controlling behaviour in school should be viewed as a different issue.
There are three measures to the test of deprivation of liberty applied by the courts (described commonly as the Storck criteria). Firstly, that the child is confined for a “not negligible period of time”. This will vary according to factors including the intensity of the restrictions imposed. Secondly, that there is a lack of valid consent from the child or a parent exercising legitimate parental rights. Thirdly, that the confinement is attributable to the State.
The seclusion of a child in school, or in another setting, for even a short period, is therefore capable of constituting an unlawful deprivation of liberty. It is irrelevant that the purpose may be to control behaviour. Refusal of consent is not of itself likely to justify refusal to provide education. The absence of any procedural protection means that deprivation of liberty in these circumstances is likely to violate Article 5 of the ECHR.
The voice of the child
Article 12 of the UNCRC states that children have the right to express a view and have it taken into consideration when decisions are made about them. This means that the views and interests of children must be reflected in policies and guidance at all levels that govern the use, recording and monitoring of restraint and seclusion in schools. Article 7 of the UNCRPD contains a similar right relating to the views of disabled children. Paragraph 20 of the Committee on the Rights of the Child General Comment 12 makes it clear that States should presume that all children have the capacity to form their own views and the right to express them and that they do not first have to prove they have capacity. General Comment 12 states that “age alone cannot determine the significance of a child’s views” as levels of understanding vary even within similarly aged children. As such the views of children must be considered on a case-by-case basis. Due regard should also be considered in the context of the concept of the evolving capacities of the child. Even very young children are capable of forming and expressing a view and the greater the age and capacity of the child, the more seriously their views should be considered.
We acknowledge that the draft guidance makes some references to the views of children in the context of post-incident learning reviews (at page 26) and in the data set included at Annex G. The draft guidance should be clear that the views of children must be included at all stages in the design and delivery of school policies on the use of restraint and seclusion, including for example in assessment and planning processes under Additional Support for Learning legislation. Children must also be involved, with reasonable adjustments as necessary, in the development of individual assessments, and both statutory and non-statutory plans. It is important that all references to the views of the child in the draft guidance are linked to the human rights framework.
Is the guidance easy to understand?
In responding to the present consultation, we are mindful that the lack of clarity over professional practice in this area has been a matter of concern, not just for children and their parents, but also for staff, and for their employers. It is therefore vital that the guidance is framed in such a way as to ensure clarity for staff about how to respond to difficult situations, while at the same time respecting the rights of children. We have highlighted in our response areas where the guidance could be made more accessible or user-friendly.
It is important that teachers and staff working in schools have a practical understanding of the UNCRC and how it applies in relation to the use of restraint and seclusion. We therefore welcome references in the draft guidance to the human rights framework, including to specific provisions contained in the ECHR, UNCRC, the UNCRPD and other international human rights instruments.
We are however concerned that this framework is largely set out in an annex to the draft guidance. In order to better promote knowledge and understanding, we consider that the draft guidance’s general considerations and safeguards on the use of restraint and seclusion should be linked to the rights framework. For example, at page 6 of the draft guidance (under the heading ‘guiding principles’), we note the description of restraint as a measure of last resort, which should only be used to avert an immediate risk of injury to the child or to others, and only for the shortest time necessary and in the safest, least restrictive manner. These statements are derived from Article 3 of the ECHR and Article 37 of the UNCRC (prohibition on inhuman and degrading treatment), and in particular the principles of necessity and proportionality. We consider that the draft guidance ought to make this link clear.
The Scottish Government should also include examples and case-studies to help illustrate the practical impact of respect for rights on practice. There are a number of schools and head teachers who have successfully adopted a rights-based approach to responding to distressed behaviour who could assist with this. These case studies should be co-developed with children with experience of restraint and seclusion,their parents and relevant staff.
More generally, we consider that the draft guidance (particularly the introduction) is too long for guidance which is intended to support decision-making in difficult situations. The Scottish Government should consider making edits to maximise accessibility for all staff working in schools.
Definitions of restraint and seclusion
Our investigation found that the terms ‘restraint’ and ‘seclusion’ suffer from inconsistent definitions across local authorities in Scotland. We therefore welcome the approach of providing clear rights-based definitions for these practices in educational settings. We recommend that these definitions are put on a statutory footing to ensure a clear and consistent approach across all local authorities, and to allow for the accurate monitoring of data by the Scottish Government.
We note that the draft guidance provides a general definition for ‘physical intervention’ to cover a range of situations, including ‘non-restrictive physical intervention’ and ‘pupil-led withdrawal’. In our investigation, we found that ‘physical intervention’ was the most used term across all local authorities’ policies, encompassing a wide range of practices including restraint and seclusion. We see some usefulness in providing a general definition of ‘physical restraint’, particularly to cover situations where there is physical contact that would not constitute restraint (e.g. providing communication, aid, reassurance or comfort). We remain concerned however that there is a risk that ‘physical intervention’ will be used as a substitute for restraint or seclusion, or will be conflated by practitioners. It is important to have a clear understanding and consistent usage of the terms for what are serious actions which can have a significant negative impact on children’s rights and wellbeing.
Again, the Scottish Government may wish to consider using case-examples for practitioners to illustrate the boundaries between what would clearly constitute unlawful use of restraint and/or seclusion (e.g. where it is used in anger, for discipline or for punishment) and where its use is likely to be a proportionate and necessary measure to secure the safety and wellbeing of a child, e.g. holding hand to cross a busy road.
We agree with the position of the Equality and Human Rights Commission that the definition of ‘mechanical restraint’ at page 20 of the draft guidance should be expanded to include ‘the removal of an auxiliary aid such as a wheelchair or walking stick to prevent a pupil from being able to move independently’.
We do not consider that the definition of ‘staff-led withdrawal’ is sufficiently clear. We note that the draft guidance (at paragraph 71) appears to imply that a child can be moved to a space as a part of a ‘staff-led withdrawal’ without their consent. The human rights framework (see above) is clear that a lack of consent is one of the factors that is used to test whether there has been a deprivation of liberty. In this scenario, we are of the view that this would amount to seclusion. The draft guidance does not draw a sufficiently clear distinction between ‘seclusion’ and ‘staff-led withdrawal’. As it stands, there is a risk that teachers and those working in schools will conflate the two actions. In addition, we consider that the term ‘staff-led withdrawal’ should not be used as a proxy for seclusion and should not seek to underplay the nature of the act, the impact it can have on the child and the potential for it to be a significant breach of their rights.
Recording and monitoring
The Committee on the Rights of the Child has called for disaggregated data on the use of restraint and other restrictive interventions on children to be systematically and regularly collected and published to allow for the monitoring of the appropriateness of discipline and behaviour management for children in all settings, including education, custody, mental health, welfare and immigration settings.
The advice in the guidance under the heading ‘Recording, reporting and monitoring’ is directed at schools and education authorities. We welcome the emphasis on the importance of recording and monitoring to ensure accountability and that children’s rights are respected. Notwithstanding, it is important to recognise that in line with the recommendation of the UN Committee on the Rights of the Child, the obligation of collating, analysing and publishing disaggregated data on the use of restraint at the national level rests with the Scottish Government. We note in this regard that the Mental Health Law Review has recommended that the Scottish Government bring forward legislation to establish a national register of restraint, which is maintained by a central authority, and which would be responsible for reporting publicly on trends in data from all local authorities.
We recommend that mandatory recording and reporting is included as part of a legal framework regulating the use of restraint and seclusion. The guidance (under Annex B) recommends that schools record any incidents within a period of 2 days. In recognition of the seriousness of the impact of any physical intervention on the rights of the child, we consider that this recommendation be translated into the weight of a legal requirement. This should be read in line with statutory definitions of ‘restraint’ and ‘seclusion’, to ensure a consistent understanding of the meaning of these terms, leading to all incidents being appropriately recorded and reported.
We also note that Annex B recommends that data is reported to the education authority. In line with the obligations on the State under the human rights framework, the draft guidance should require that schools report incidents of restraint and seclusion to the Scottish Government, or a national public authority.
Following our investigation, the Scottish Government met with our office and the Equality and Human Rights Commission and agreed, amongst other things, to develop and introduce a standard dataset to be implemented across Scotland to ensure consistent recording and monitoring of incidents. The draft guidance has taken the approach of setting out a data set at Annex G, containing information relating to incidents of restraint and seclusion which schools must record, taking into account the different systems for recording in schools. We recall that our investigation found that even where incidents of restraint and seclusion are recorded in schools, there was a lack of consistency from school to school, and across local authorities, as to whether and who monitors the use of restraint and seclusion in schools. In order to ensure consistency of approach, we would therefore recommend that the guidance should contain a template form for schools to use to record incidents of restraint and seclusion.
As regards information that should be recorded, we agree with the response of the Equality and Human Rights Commission that the draft guidance should provide more detail on what protected characteristics should be recorded. In this regard, the evidence that we have seen suggests that restraint and seclusion are used disproportionately with children with disabilities or other Additional Support Needs. However, during our investigation, only a handful of local authorities were able to provide this information. In line with the recommendation by the UN Committee on the Rights of the Child and obligations on Scottish public authorities (including the Scottish Ministers) under equality law, it is critical that good-quality equalities data is collected to monitor the impact of policies on restraint and seclusion on groups with protected characteristics. The draft guidance must make clear why the collection of this data is required, in line with the Equality Act 2010 and other equality regulations.
We note that the draft guidance requires that training on restraint be provided only to a small number of people where it is foreseeable that they will need to use restraint. The training should be certified as complying with the Restraint Reduction Network standards. This is in line with the recommendations set out in our No Safe Place report. Any training provided to teachers or staff in school must be rights-based and in line with the Council of Europe recommendations set out in Recommendation 2004(10). It is crucial that any training has, as a starting point, prevention of the use of restraint. It is also important that the training is made available to support staff where it is possible that they will need to use restraint at any time during the school day, and where staff are temporarily redeployed.
In line with Scotland’s obligations under the human rights framework, it is important that there is a national body who is responsible for ensuring that the training procured by local authorities to provide restraint training meets human rights standards.
Inspection and enforcement
In our report No Safe Place, we called on Education Scotland and the Care Inspectorate to further scrutinise the use of restraint and seclusion in schools as part of their inspection regimes. We therefore welcome the reference to Education Scotland’s inspection role in the context of their “How Good is Our School? Self-evaluation framework. It is important that Education Scotland involves children and young people in developing ways of doing this that enable disabled children and those with Additional Support Needs to participate in decision making.
As part of our recommendation that there is a coherent and comprehensive statutory framework on the use of restraint and seclusion, the Scottish Government should ensure that as part of the review of legislation associated with His Majesty’s Inspectorate of Education, the potential to strengthen inspection duties is considered
Finally, in recognition of the fundamental importance of access to justice and effective remedies, the draft guidance should consider in greater detail how schools should approach investigating complaints brought by children or their parents about incidents of alleged unlawful restraint or seclusion. This ought to address what procedure should apply if a child and/or parent is unsatisfied with the outcome of any investigation by an education authority, for example referral to the First-tier Tribunal of Scotland’s Health and Education Chamber.
Any use of physical restraint, seclusion or restrictive practice is traumatic and creates a risk of harm for the child and the staff member involved. Children and staff need the protection and clarity that statutory guidance brings.
It is therefore important that the draft guidance is put on a statutory footing as a matter of urgency. It must be based on a consistent legal framework that applies to all situations where children are in the care of the State, including schools, residential and secure care, and mental health provision. We have moved well beyond a position where this can be just an option for future consideration.
 Concluding observations on the 5th periodic report of the United Kingdom of Great Britain and Northern Ireland: Committee on the Rights of the Child (2016). Available here: https://digitallibrary.un.org/record/835015?ln=en
 United Nations Committee on the Rights of the Child, 2021. List of Issues Prior to Reporting. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGBR%2fQPR%2f6-7&Lang=en
 Page 14
 Report to Scottish Borders Council by Andrew Webster into the handling by Scottish Borders Council of school assault allegations, February 2022, available here: https://scottishborders.moderngov.co.uk/documents/s62614/Item%20No.%2004b%20-%20SBC%20Final%20Report%20-%20Andrew%20Webster%20QC.pdf
 Report of the Independent Inquiry into Child Sexual Abuse published October 2022, Recommendation 5: Pain Compliance, page 175. Available here: https://www.iicsa.org.uk/key-documents/31216/view/report-independent-inquiry-into-child-sexual-abuse-october-2022_0.pdf
 Derived from the case of Storck v Germany (2005) 43 EHRR 96, at the European Court of Human Rights. The UK Supreme Court has provided guidance on the interpretation of the Storck criteria – see P v Cheshire West and Chester Council and P and Q v Surrey County Council (2014) UKSC 19
 UN Committee on the Rights of the Child (CRC), General comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12, available at: https://www.refworld.org/docid/4ae562c52.html
 No Safe Place, page 22
 Concluding observations on the 5th periodic report of the United Kingdom of Great Britain and Northern Ireland, paragraph 40(d)
 Recommendation 9.12
 No Safe Place, page 37
 Scottish public authorities (including the Scottish Ministers) are required to comply with the public sector equality duty (or general duty) set out in Section 149 of the Equality Act 2010. This general duty requires Scottish public authorities to have ‘due regard’ to the need to: eliminate unlawful discrimination; advance equality of opportunity; and foster good relations. In 2012 Scottish Ministers made regulations that placed specific duties on listed Scottish public authorities (including Education Scotland, and all education authorities) to help them meet the general duty. These are also known as the Scottish Specific Duties. Regulation 5 places a duty on listed Scottish public authorities to assess the impact of applying a proposed new or revised policy or practice against the public sector equality duty.