Scotland’s most vulnerable children at risk of being restrained and secluded will have greater protection following successful action by the Equality and Human Rights Commission Scotland (EHRC) and the Children and Young People’s Commissioner.
Restraint means holding a child or young person to stop them from moving.
And seclusion means shutting a child somewhere alone and not allowing them to leave.
Recommendations of our investigation into restraint and seclusion
Last year, our No Safe Place investigation found that use of restraint and seclusion on pupils across Scotland is largely unmonitored, with glaring inconsistencies across local authorities.
It recommended the Scottish Government produce effective and human rights compliant national guidance to direct local authorities, schools and staff in the lawful use of restraint and seclusion.
The EHRC and the Commissioner warned the Government that without new guidance it was in breach of its human rights obligations to children, as laid out in the United Nations Convention on the Rights of the Child (UNCRC) and the European Convention on Human Rights (ECHR). Although the Government agreed to refresh the existing two-page guidance, this was not sufficient to safeguard children’s rights.
Intervention by EHRC Scotland
The Equality Act 2006 affords the EHRC the right to institute legal proceedings on matters that are relevant to its functions, as long as the Scottish Human Rights Commission consent. These include supporting the development of a society in which there is – among other things – respect for and protection of each individual’s human rights, and respect for the dignity and worth of each individual. In August 2019, EHRC Scotland used this power to support a Judicial Review raised in the Scottish courts.
Following this intervention – and after a series of productive meetings between the office of the Children’s Commissioner, EHRC Scotland and the Deputy First Minister and Cabinet Secretary for Education and Skills, John Swinney MSP – the Scottish Government has agreed to:
- Produce human rights-based guidance on restraint and seclusion and review the effectiveness of that guidance,
- Involve children, young people and their families in the drafting and review of the guidance,
- Consider statutory action should the guidance prove to be ineffective, and
- Develop and introduce a standard dataset to be implemented across Scotland to ensure consistent recording and monitoring of incidents.
It is expected that the guidance will be developed and available by mid-2020.
Nick Hobbs, Head of Advice and Investigation at the office of the Children and Young People’s Commissioner said:
“The use of restraint and seclusion is a human rights issue. Our investigation revealed that a lack of national guidance was leaving children in school at risk of human rights violations. We were pleased to be able to work with the EHRC Scotland using our complementary legal powers to hold the Scottish Government accountable to its human rights obligations to children.
“We are pleased that the Deputy First Minister has committed to implement our recommendation to produce human rights-based national guidance on restraint and seclusion and that children and families will be involved in the drafting and review of this guidance. It is particularly important that the Government will consider putting the guidance on a statutory footing if the evidence shows it is necessary.
“Clear and robust guidance will support staff and ensure that fewer children will be subjected to physical intervention in school.”
Lynn Welsh, Head of Legal, at the Equality and Human Rights Commission Scotland said:
“School ought to be a place of sanctuary and safety for all children. All staff must have clear and robust guidance to underpin their practice and ensure that children are supported to reach their full potential, regardless of background, health and ability while having their human rights upheld and respected.
“Across Scotland, guidance and policies on the use of restraint and seclusion in schools have been inconsistent at best and totally inadequate at their worst. As the regulator of the Equality Act, we are pleased to have worked closely with the Children’s Commissioner to use our unique legal powers to achieve this change.
“No child should experience inhumane or degrading treatment at school or later in life. Our schools play an essential role in shaping the attitudes of the future, and enabling children to fulfil their potential.
“We welcome the Deputy First Minister’s commitment to ensure that national guidance governing restraint and seclusion is produced that is rooted in the values of human rights and co-produced by children and their families. We hope this guidance will protect children from disproportionate use of restraint and the negative impacts which this can have on children and young people. We will continue to monitor progress on this area.”
Education Secretary John Swinney said:
“The unlawful use of physical intervention and seclusion is completely unacceptable, and I want to do everything I can to prevent it from happening. That is why I have agreed to introduce new national human rights-based guidance to ensure that for the rare occasions where it is used, it is used lawfully and ensures that children’s rights are protected.
“We will work with key partners, as well as children, young people and their families to develop the new guidance, with a review taking place a year after its introduction to test its effectiveness. I am confident that by taking forward these actions, we will be able to affect the necessary change.”