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On the 1st April 2007 new powers came into force under the new 2006 Education and Inspections Act.
Under the new Act teachers can use "reasonable force" to break up classroom fights when a youngster or teacher risks being injured, or to remove a pupil from the classroom. Teachers now also have new powers to search youngsters for weapons - without a need to call in the police. They are also able to discipline youngsters who create trouble away from classroom, outside school - for example on school buses or in shopping centres, if they see children behaving badly.
Previously, teachers had been allowed to restrain pupils under common law. However, as the common law was seen by many as 'vague' and therefore open to misinterpretation and misuse, the Government has seen fit to create yet another Act of Parliament to 'clarify explicitly' what teachers can and cannot do.
But will this create more of a problem then it will solve and has this been properly thought through? Has the need for the new Act of Parliament arisen out of a perception that teachers need more clarity on what their powers are - or has it simply arisen because schools and their staff are not being trained properly in the first place?
Let me give you an example. Only the other week, I was contacted by a school that wanted us to train around 100 teachers in physical restraint - in less than half a day!! We were asked to work within such a tight timeframe because of all of the other requirements that schools are expected to comply with, and the burden this creates in managing training around an already over-stretched inset-day programme of staff training.
In addition, the new Act places the determination and the responsibility to make the new statutory powers work, right at the feet of the Head Teacher of each school - who will be held ultimately responsible also for any challenges, legal or otherwise, that may arise in the exercising of these new powers by school staff.
What Head Teachers need to be aware of therefore, is that where the common law was 'artfully vague', it was this vagueness that, in many ways, was it's actual strength. As Richard Card puts it in his textbook, Criminal Law (16th edition, 2004), and about which John Wadham wrote in his article 'The Use of Force - Reason for Optimism':
"The test of reasonable force might be thought to be so vague that a citizen acting in public or private defence has inadequate guidance on how far he may go. The vagueness of the test is, however, its strength. It provides the flexibility to provide an appropriate response, however unexpected the situation, which a more detailed test specifying those situations in which one might use force would not."
My concern for Head Teachers therefore, is that now that they have a new law, which is explicit in it's intention, they also now have a more rigid requirement to ensure that stricter controls are in place in line with other current statutory requirements. This includes compliance with Sections 2(2)(c) of the Health and Safety at Work etc Act 1974, and Regulations 5 and 13 of The Management of Health and Safety at Work Regulations 1999 (to see these in more depth read the article on Refresher Training by clicking here).
Furthermore as it is now 'reasonably foreseeable' that teaching staff are more likely to be expected to use force, as required by the new Act of Parliament, then, training it's use and the law associated with it, has to form a part of all teacher training if schools are to comply with the various laws and guidance associated with its use - including compliance with the Children's Act 1989, the Human Rights Act 1998, Common Law and Criminal Law (Section 3(1) of the Criminal Law Act 1967) to name but a few. Failure to accept this and proactively act on it can lead to problems should an investigation arise.
For example, in November 2002, the High Court ruled that the Children's Act 1989 also applies to children in Young Offender Institutions and such children therefore have the same rights to have their welfare protected as others up to the age of eighteen. Mr. Justice Munby's decision was in response to a legal challenge brought by the Howard League for Penal Reform who challenged the Home Office's insistence that Young Offender Institutions were immune from the Children's Act. The Howard League said that segregation and physical restraint inflicted under harsh regimes contributed to high levels of self-harm and suicide. Many campaigners have viewed the decision as a major development in terms of endorsing children's rights as well as an endorsement of the Human Rights Act.
Therefore, what Head Teachers need to be mindful of is that these new powers do not remove or dilute the rights of the child as protected and provided by the Children's Act 1989, The Human Rights Act 1998 and The United Nations Convention on the Rights of the Child.
Although we can all hopefully presume that schools would not impose harsh regimes similar to a young offenders institution this should not distract us from the fact that children have rights and that all Local Authorities actively promote these rights, as a requirement to comply with law. As such all schools need to allocate in their risk assessments and behavioural management plans what hazards or risks are likely to be considered 'reasonably foreseeable' as a casual or systematic result of how the new powers are exercised in each school specifically, and indeed with each child specifically, with regard to how they may lead to the cause of new or resultant harm such as increased levels of self-harm or distress.
Furthermore, the 'Welfare' or 'Best Interests of the Child' principle imposes a legal requirement on all Local Authorities and Social Services Inspectorates to investigate any allegation that they believe is either placing, or is likely to place, a child at risk of harm. This can lead to staff being investigated for actually doing what the new laws actually give them increased powers to do, and, if subsequently found guilty of gross misconduct they can be referred to The Protection of Children Act List or if found guilty of an assault even face prosecution for a Schedule One Offence.
Where this is likely to occur is where schools have failed to implement proper training and guidance for it's staff, resulting in staff having to revert back to using their 'common sense'. In 1996 David Leadbetter stated the following:
"The historical tendency has been to individualise .the management of challenging behaviour. To frame it simply as a matter of individual staff competence with risk viewed as simply "part of the job". This perspective has effectively de-emphasised the role and responsibility of the agency and focused the responsibility for risk assessment and intervention on the individual staff member, who inevitably remains in the frame when things go wrong."
In short the paradoxical dichotomy is that it is wrong not to train staff to a competent level and then hang them out to dry when things go wrong because they had to use their common sense primarily because the school didn't allocate enough time to train them properly to comply with what the new legislation requires!
What Head Teachers must be aware of now is that the new Act places responsibility and accountability right at their feet. Therefore, any failure to train staff competently will leave the Head Teacher liable for any injury or fatality that may occur as a casual or systematic failure attributable to inappropriate training systems. We only have to look to the current inquest in the death of Gareth Myatt as reported in last month's newsletter to see the possible implications and consequences for Head Teachers should a death result from a restraint attempted by inadequately trained staff, or from the fact that the system of restraint was not actively monitored, audited and reviewed as part of the schools commitment to heath and safety. This could even lead to charges of Corporate Manslaughter against the school / head teacher.
In short, if proper time is not allocated for training teachers to a competent standard, which results in teaching staff having to use their own common sense, then the very purpose of the new Act, the need for more explicit rights, is compromised by the very fact that staff are still having to use their common sense - which is why the common law exists in the first place!!
Our Instructors Qualifying Course covers all of the legal, physical and health and safety aspects of physical restraint in relation to the use of force with children, young people and vulnerable adults. The next course is running from the 17th - 21st September 2007 and I would personally advise all Head Teachers to send at least two people on this event to train as trainers - that way they would have an in-house resource available to them, with support and backup to run their own courses around their own timetables and be able to monitor, review and implement training as required by law.
To find out more click here |
