January 2025. We provided MSPs with a briefing ahead of their Stage 1 debate on this Bill.

The Commissioner welcomes and support’s Daniel Johnson MSP’s Members Bill on the use of restraint and seclusion in schools. This Bill addresses longstanding concerns about the use of restraint and seclusion in Scottish schools and follows a long campaign by parents such as Beth Morrison and Kate Sanger as well as our own investigation, No Safe Place, in 2018.[1] It will support and protect both children and school staff from the distressing experience and consequences of unnecessary and unlawful restraint and seclusion.

We note the Scottish Government’s previous commitment to support its general principles at Stage 1 and work with Mr Johnson to address their concerns[2]. This Bill received the unanimous support of the Education Children and Young People Committee, to whom we provided evidence to the Committee during Stage 1.[3]

Definition of restraint

In her evidence to the Committee, the Commissioner stated that “it is important to me that the definition is consistent and clear for practitioners”. We acknowledge that there are different views on the definitions in both the Bill and the current non-statutory guidance and that they may currently be framed too broadly. Ordinary physical interactions such as holding a young child’s hand when they cross the road or giving them a consensual hug when they are upset should not fall within the definition of restraint.

Our view is that there is expertise in Scotland, with experience of monitoring the use of restraint and seclusion, which is capable of developing a human rights compatible definition suitable for all settings. On this basis, we called on the Care Inspectorate, the Mental Welfare Commission and HMIE to work together on a common definition of restraint that could apply across all sectors. We are reassured to hear that this work is progressing and would hope that such a definition would be in place in time for a Stage 2 or 3 amendment to this Bill.

Children do not experience restraint in school differently from other settings. Our position continues to be that there is a need for a consistent legal framework covering restraint and seclusion in all settings, including education, care (including secure care) and health services.

Human Rights framework

Restraint and seclusion engage a number of children’s human rights under both the UNCRC and the European Convention on Human Rights (ECHR).¹² Inappropriate use of restraint can amount to “inhuman or degrading treatment or punishment” which is prohibited by Article 3 of the ECHR (the prohibition of torture). Article 3 is an absolute right, interference with which cannot be justified on any grounds. Both the UNCRC (Article 37)¹³ and UN Convention on the Rights of People with Disabilities (UNCRPD Article 15)¹⁴ contain equivalent prohibitions on cruel, inhuman or degrading treatment or punishment. UNCRC Article 19, which outlines the right to protection from violence and injury, places a duty on the state to ensure that “all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment…” Restraint also engages children’s rights to respect for bodily autonomy contained within Article 16 UNCRC and Article 8 ECHR. ¹⁵  

Seclusion, where a child is placed in a room or space and is unable to leave if they choose to, may constitute an unlawful deprivation of liberty in terms of Article 5 ECHR. Unlike restraint to prevent immediate harm, a deprivation of liberty has to be authorised by a court or tribunal in order to be lawful.

The UN Committee on the Rights of the Child outlined in General Comment 8 that while restraint can be used in some situations there is need for governments take action to minimise its use:

“The Committee recognizes that there are exceptional circumstances in which teachers and others, e.g. those working with children in institutions and with children in conflict with the law, may be confronted by dangerous behaviour which justifies the use of reasonable restraint to control it. Here too there is a clear distinction between the use of force motivated by the need to protect a child or others and the use of force to punish. The principle of the minimum necessary use of force for the shortest necessary period of time must always apply. Detailed guidance and training is also required, both to minimize the necessity to use restraint and to 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.”

In 2023, the UN Committee on the Rights of the Child published its most recent set of Concluding Observations. It called on the Scottish Government to  

• “Regularly collect, analyse and publish disaggregated data on the use of stop-and-search checks, harmful devices, seclusion, restraint, solitary confinement and isolation on children;  
• “Take legislative measures to explicitly prohibit, without exception, the use of… (iii) solitary confinement, isolation, seclusion and restraint as disciplinary measures in schools and alternative care and health settings;  
• “Develop statutory guidance on the use of restraint on children to ensure it is used only as a measure of last resort and exclusively to prevent harm to the child or others, and monitor its implementation;  
• “Explicitly prohibit the use of restraint and seclusion in educational settings and adopt a child rights-based approach to addressing violence or other disturbances in schools, including by prohibiting the presence of police in schools and providing regular training for teachers on relevant guidance for addressing such disturbances in a child-sensitive manner”¹⁹

Statutory Guidance

We have been clear for some years that statutory guidance is needed on this issue. Restraint and seclusion are significant interferences with children’s rights and may result in grave dangers to their development or in some cases lives (Article 6 UNCRC).

We note the Cabinet Secretary’s argument that the current non-statutory guidance is still being implemented, however her predecessor committed to publishing this guidance in 2019 following legal action by the Equality and Human Rights Commission (EHRC) supported by our office. The fact it took nearly 5 years to be published only strengthens our position that it must be put on a statutory footing, as does the subsequent incorporation of the UNCRC, and its duties on Ministers, into Scots law.  

Training

Appropriate training of staff (teachers and support staff) is an essential part of the prevention of the use of restraint and seclusions in all schools. In many instances, training on de-escalation, responding to non-verbal communication of distress and developing a supportive culture should form part of behaviour management training. Where safe restraint techniques are addressed with the intention that restraint is used as a last resort. It should ensure that staff have the knowledge and skills to de-escalate and reduce reliance on physical restraint, in line with the Restraint Reduction Networks’ standards.[4]

Reporting and Monitoring

It is essential that the use of restraint and seclusion is not just recorded but reported and monitored. We support the provisions in the Bill for national reporting of data and recognise the positive reassurances provided by both Mr Johnson and the Cabinet Secretary to work to address the issues raised during Stage 1. We agree that there is an important quality assurance role for HMIE. We understand there are concerns that reporting incidents of restraint and seclusion could be overly burdensome on schools. Our view is that the use of restraint and seclusion should be relatively rare, and the purpose of this Bill is to make it rarer still. We would be extremely concerned about any school, even any special school, in which the use of restraint and seclusion was frequent enough that reporting and responding its use became burdensome. Instead, we believe that monitoring of restraint and seclusion will provide opportunities to further reduce its use and identify support needs of both children and staff, protecting the safety and rights of both.

[1] CYPCS, 2018. No Safe Place. https://www.cypcs.org.uk/resources/no-safe-place/

[2] Letter from Cabinet Secretary for Education and Skills to the Convener 26 June 2025. https://www.parliament.scot/-/media/files/committees/education-children-and-young-people-committee/correspondence/2025/restraint-and-seclusion-bill-cab-sec-es-to-convener-26-june-2025.pdf

[3] CYPCS, 2025. Restraint and Seclusion in Schools (Scotland) Bill. https://www.cypcs.org.uk/resources/restraint-and-seclusion-in-schools-scotland-bill/

[4] Restraint Reduction Network. RRN Training Standards. https://restraintreductionnetwork.org/training-standards/