I have recently met with a Government-appointed panel of ‘experts’ who told me, quite enthusiastically, that it is illegal for anyone to use a physical technique with a child that may intentionally or unintentionally cause pain.
Not only do I believe that the statement is wrong (contrary to what is provided by law or contained in statute law), but such a statement is fundamentally dangerous, because the potential collateral fallout could be far greater than the statement is intended to prevent – namely the prevention of harm to a child consistent with what is commonly called the ‘best interest criteria’, and you can read some of my thoughts below.
The ‘Best Interest’ Criteria
Under Children’s legislation, the ‘best interests of the child’ is the paramount consideration, and the doctrine is used by all family courts to determine a wide range of issues relating to the well-being of children. The most common of these issues generally concern questions that arise upon the divorce or separation of the children’s parents.
This doctrine also extends beyond these general issues into other areas of a child’s welfare when considering the wider context of how we must all act in the best interests of the child, and this can be achieved by adopting a more universal approach to the ‘best interest criteria’ as opposed to simply the more general approach.
For example, in relation to the use of force on a child, it must be in the best interest of the child to avoid any technique that we know could increase the risk of possible death, such as the prone position and also in avoiding wherever possible, the need to cause intentional or unintentional harm or pain to a child.
However, when considering the issue of ‘intentional or unintentional’ pain caused by the use of a physical technique to control a child, who is at risk of harming themselves or others, a broader scope within the context of reasonable force must be considered, which means having a clear understanding of what the law actually states as opposed to any individual subjective opinion.
What “Illegal” Means
To start with, for something to be “illegal” it must be clearly prohibited by statute law. For example, Section 1 of the Prevention of
Crime Act 1953 prohibits the possession in any public place of an offensive weapon without lawful authority or excuse.
So in legal pragmatic terms a police officer may stop and challenge someone who is found to be in possession of a screwdriver whilst walking down the road. If it transpires that the person had a ‘lawful excuse’ because they had just bought it from a hardware store and they were on their way to their grandmothers house to fix a piece of furniture or a light fitting for example, then no criminal offence would have been committed.
However, if the person was arrested and charged by the police then a court would have to find, beyond reasonable doubt, that the defendant was ‘intending’ to use the screwdriver offensively. To do that the court would have to be satisfied (beyond reasonable doubt once again) that the reasons given by the defendant for possessing the screwdriver found in his or her possession were not true.
Innocent Until Proven Guilty
This is because the law states that you are innocent until proven guilty.
Therefore, if a physical technique that intentionally or unintentionally caused pain to a child, prevented a greater harm from occurring, then that falls within the scope of reasonable force provided in statute and common law and if that was the genuine intent then that must surely be consistent with the best interest of the child doctrine.
To simply state that any technique that causes pain to a child, be it intentional or unintentional, is illegal, is, in my opinion a naive and incompetent perspective that highlights a genuine lack of understanding of what the law provides.
In addition, however, it also raises the issue of whether or not the panel concerned are ‘biased’ towards any thinking that doesn’t agree with their beliefs and whether or not they are actually willing to look at the evidence.
These are the basic fundamentals upon which English law is built.
English Common Law: The Bias and Evidence Rules
In English Law the Bias Rule states that investigators and decision‐makers must act without bias in all procedures connected with the making of a decision.
To this extent a decision‐maker must be impartial and must make a decision-based on a balanced and considered assessment of the information and evidence before him or her, without favouring one party over another.
Even where no actual bias exists, investigators and decision‐makers should be careful to avoid the appearance of bias.
Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation.
The Evidence Rule
The ‘Evidence’ rule is that any administrative decision must be based upon logical proof or evidence material.
Investigators and decision-makers should not base their decisions on mere speculation or suspicion.
I am of the opinion that the statement made is nothing more than a subjective opinion of the Chair of the panel as opposed to a clear understanding of the law.
The Human Rights Act
Article 2 raises specific issues with regard to the use of physical force with regard to the right to life. Article 2(1) [the first part of
Article 2], is an ‘Absolute Right’ and so cannot be derogated against.
This requires that all public authorities (whether direct or quasi) take positive steps to promote and preserve the right to life – especially where a risk to life is known to exist, such as prone positions, supine positions, seated double-embrace holds and also basket holds and ‘wraps’, etc.
In addition, where a technique can be used that could eliminate or greatly reduce the risk to life, that has to be considered.
Therefore, if a more restrictive technique / pain-compliance technique / or a technique that is likely to cause harm, can eliminate or reduce a much greater harm – the risk to life – it is a legal requirement under Article 2(1) to use it, if an organisation is to ensure compliance with the Act.
Now the panel has raised concerns regarding the fact that the causation of pain to a child may be a breach of Article 3 of the Human Rights Act, and this would be true if the intent was to act in an inhumane, degrading or torturous manner.
However, if this is their primary argument then we are back to the issue of ‘bias’ once more.
The Health & Safety at Work etc Act 1974
In addition, the Health & Safety at Work etc Act 1974 requires all organisations to take ‘reasonably practicable’ steps to ensure the
health safety and welfare of staff and others whilst at work.
Therefore, if a restrictive physical technique, which may cause ‘intentional or unintentional harm’, can prevent a greater harm from occurring, then it has to be a considered as a ‘reasonably practicable’ control measure.
In fact, the absolute failure to provide such an option could also be seen as a negligent omission that could lead to an individual or an organisation being sued if it was proved that the omission of such a technique, was a factor in the failure that led to a harm occurring, that could have been prevented by the incorporation of such a technique.
In addition, I believe that the panel’s position on this could amount to a ‘knowledge-based’ or ‘rule-based’ mistake under a Health & Safety Model called HSG48 that could, in turn, lead to someone being seriously injured or killed.
I am also pretty sure that an ECFA Analysis would also highlight the position of this panel in relation to this absolute statement as a ‘systematic’ or ‘causal’ factor in a set of events that may lead up to a failure resulting in serious injury or even death.
The Law of Unintended Consequences
So, let us say that this Government appointed panel gets their way and any technique that is likely to cause harm is banned from use.
Well, this could mean that in some circumstances staff will be unable to control the children in their care if they are to be limited by the omission of such techniques.
In addition, if staff are only allowed to rely on the lower end ‘less-intrusive’ or ‘non-harmful’ option, it is also highly likely that the techniques will fail in certain circumstances.
The real paradox is that if this is done in an attempt to reduce the risk of injury to the service user, who may be seriously harming themselves or someone else and therefore to reduce the overall liability of the organisation, this view is very short-sighted indeed.
In fact, this is actually known as the law of ‘Unintended Consequences’ which basically means that in an attempt to reduce risk by teaching more appropriate’ or ‘less intrusive’ techniques, the employer actually ends up creating more collateral damage due to increased injuries to staff and service user because the techniques are limited in effectiveness.
Interview With Gary Slapper
I interviewed Gary Slapper, who is the Professor at New York University, and Director of NYU London and the former Dean of the Law Faculty for the Open University and who regularly writes and comments for the Times Newspaper. Professor Slapper is also a Legal Consultant at 36 Bedford Row, the Chambers of Frances Oldham QC.
This is an extract from the interview I did with Professor Slapper on this issue a while ago:
Mark Dawes: “So, what if they left out, for example, the contingency or the ability for someone who is going to be licensed, to use a more restrictive degree of force? To not allow someone to use the full remit of what the law in relation to reasonable force provides, and only allow them to use something that was ‘nice’ (for want of a better word). For example, techniques that would not cause any harm whatsoever because they are designed to be totally non-restrictive, but by default therefore, very limited by design. Then you license that person who has been given that limited degree of training and knowledge to work on a door (as a door supervisor) or in a care home, or school, or in any environment where there is likely to be a much higher degree of foreseeable violence, without the necessary training and full range of skills to deal with the level of violence that they are likely to encounter. What is your view on this?”
Professor Gary Slapper: “My view is that by doing this you could enable the so-called Law of Unintended Consequences to apply. The unintended consequences are, that by erring on the side of caution (so that the degree of physical force that they exercise is limited) could result in explosive situations not being managed as appropriately as they should be. Furthermore, if these situations are not being controlled appropriately, or if violent troublemakers are not being appropriately subdued, then you have not used excessive force on them. In fact, what you have probably enabled to happen, by omitting this, is to allow a greater level of collateral damage and injury than if they had been properly restrained in the first place.”
I have, with the help of many eminent lawyers, looked into all of the legislation in relation to the use of force. It has been a passion and commitment of mine for many years.
The problem in this area (the law related to Children) is that a lot of the legislation and regulation contradicts each other and in some cases the same document actually contradicts itself.
However, I have found nothing so far in any area of statute law that specifically prohibits (makes it illegal) the use of force that may cause intentional or unintentional pain to a child.
Interestingly, sat with me at this panel were representatives of the Prison Service and I know for a fact that one of them has spent time at the Feltham Young Offenders Institute, where staff are trained in the Prison Service C&R system. I also have a copy of the current C&R Manual and guess what – it shows techniques that incorporate pain.
In addition, in today’s papers, it is reported that the Police used Tasers “on children as young as 11 almost every day”. In one reported case, Merseyside Police shot a 12-year-old girl in St Helens as she brandished two knives and threatened to harm herself.
At the time a spokesman said: ‘The taser was deployed as a means to safely to detain the girl and prevent serious harm to both her, the public and the officers. The girl was uninjured and was subsequently arrested and cautioned for the offence.’
Therefore, am I missing something here? If the Government panel is correct in stating that any technique that intentionally or
unintentionally causes pain to a child is “illegal”, then surely every prison officer being trained in the Approved Home Office system of C&R/MMPR is being taught “illegal techniques” and also every police officer who tasered a child brandishing a knife has acted “illegally”?
The fact is, it is not illegal, provided the force can be ‘lawfully excused’.
Oh, and just in case you were wondering, the Government panel’s view on that is that any application of force that causes pain to a child is abuse.
Therefore, you will never have a lawful excuse because anyone who harms a child, even when acting in the child’s best interest, as required by law, must be an intentional abuser.
Now I am not an advocate of causing harm to children, nor do I relish in the need to cause pain unintentionally to a child and without lawful reasons, as some may have you believe in an attempt to take the focus away from this issue.
I believe fully in the sanctity of human life and I am passionate about keeping people safe.
Only this week Lord Justice Mumby’s judgment (in response to an application by Essex for an injunction on further reporting of the case that has been covered across the world), highlighted his growing criticism of this country’s dysfunctional “child protection” system, and I am of the opinion that the thinking of this panel is exactly that – dysfunctional.
I have raised my concerns directly with this panel and I have also instructed a very well-known Barrister to provide me with his independent legal opinion of their statement.
Once received I will post it in full and also forward it to the Lord Chancellor and Secretary of State for Justice, Chris Grayling MP, who is supposedly directly responsible and accountable for this panel on behalf of the Cabinet, as it wouldn’t surprise me if an attempt at plausible deniability will be forthcoming, should there be a concern that what was stated would become public knowledge.
If you have any comments please do feel free to leave them below.