Duties to report restraint in schools must now be brought into force

by Carolyne Willow

The Guardian newspaper recently reported on children’s harrowing experiences of restraint in special schools. Calum, aged 11, came home from school with his clothes in a plastic bag. He was not wearing any underwear. His mum noticed bruises on his upper arms the next day, and asked what had happened. Calum replied: “Teacher hurt arm. Wet on the floor.”

A later incident left him with 63 bruises and handprints on a shoulder and each ankle. The doctor who examined Calum suggested the police be informed. Calum’s mother discovered her boy’s injuries were caused by restraint, and that he had been strapped into a chair with an egg-timer in front of him.

Another child attending a special school, Michelle, had been secluded in a small, locked room on a daily basis in her secondary school. It was only through freedom of information (FOI) requests that her mum discovered she had been restrained in primary school.

Over a period of five hours a third child, Adam, was restrained on nine separate occasions – and responded by spitting, kicking and throwing gravel at staff. The police were called. Adam, 12, was pinned down, handcuffed and put in a spit hood and detained in a police station until the early hours. He was convicted of criminal damage and six counts of actual bodily harm on staff.

FOI requests by Adam’s parents told them he had been restrained when he came down from a tree. He had climbed it with a rope threatening to hang himself.

Never-enacted legislation

The Apprenticeships, Skills, Children and Learning Act 2009 requires the recording and reporting of significant incidents of use of force in schools and further education colleges.

Had these duties been implemented the following year – as planned by the Labour government of the time – a written record would be available to assist child protection and/or police investigations. Parents and carers would always be told of significant incidents (unless the passing of such information would endanger a child).

Instead, 2013 Department for Education non-statutory guidance simply states it is up to schools to consider how to record serious incidents. It grants schools the freedom “to decide whether it is appropriate to report the use of force to parents” though states it is “good practice” to inform them of serious incidents.

Notifying parents, or the local authority if a child is in care, of restraint makes it more likely that the child’s perspective is understood, and that human rights violations are challenged. This is especially critical for very young children and for some disabled children who may struggle to communicate their experiences of restraint.

Children may not know restraint is being used unlawfully

One of the cases which led to the 2009 legislation concerned a young disabled child, Jade Chambers, whose parents only found out she had been the subject of 45 separate incidents of restraint in the space of six weeks after they submitted an FOI request. In a House of Commons debate, the family’s constituency MP, Andrew Selous, said: “The issue that I find totally unacceptable is that a child can be repeatedly physically restrained in a school without the parents knowing that it is happening.”

Children living in institutional settings – residential special schools, hospitals or prisons for example – may have no idea that restraint is being used on them unlawfully. When I was running the Children’s Rights Alliance for England, we took the Ministry of Justice, G4S and Serco to court for the widespread unlawful restraint of children in secure training centres.

Given the systemic misuse of restraint, the judge observed that children in the centres “in the vast majority of cases… would simply have accepted it as part and parcel of the routine”.

Restraint monitoring allows for the identification of any patterns – among staff using restraint and the children being restrained. Children interviewed for the serious case review into child abuse in Medway secure training centre identified some custodial staff as “heavy handed” and more likely to use pain-inducing techniques.

A similar finding emerged from the serious case review into Winterbourne hospital for adults with learning disabilities. A senior nurse who acted as a whistleblower wrote that certain members of staff “seem to relish restraint procedures”.

The BBC’s Panorama exposed systemic mistreatment in both of these institutions, and each documentary featured distressed parents finding out for the first time that their children had been physically and emotionally abused under the guise of ‘restraint’.

Duties must be brought into force

A new law was passed last year that will require staff in mental health units to maintain detailed records of restraint, including whether the patient’s parents or other named contact has been notified.

Aware of the growing number of parents working together to protect their children from abusive restraint, I wrote to the children’s minister, Nadhim Zahawi, in March asking him to implement the school recording and reporting duties. All that is needed is a short statutory instrument giving a commencement date.

Citing a review by Charlie Taylor (then Michael Gove’s school’s ‘behaviour tsar’, now chair of the Youth Justice Board) into the implications for schools of enacting the duties, the response from education minister Nick Gibb said the department trusts schools to develop their own policies – though it expects serious incidents to be recorded and reported to parents.

It is remarkable that ministers are still relying on Taylor’s review, which was undertaken over the school summer holidays in 2011 and didn’t involve any consultation with children or parents. How can a seven-page report usurp legislation passed by Parliament?

An online search reveals many schools and colleges believe the 2009 duties have been commenced: they are referenced in policies and procedures.

But leaving this to the professionalism, or ignorance, of individual establishments is arbitrary and neglectful. It privileges adult freedoms over the protection of children. The restraint duties must be brought into force.

Carolyne Willow is the founder director of Article 39 and a registered social worker

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