Sarah
McCarthy-Fry: Currently schools have powers to use
reasonable and proportionate force either to control or restrain
pupils, in order to prevent an offence being committed, injury or
damage being caused or serious disruption to school discipline being
created. However, what the law does not currently require is that
significant incidents of force be recorded or reported to
parents.
That is a gap
in the current arrangements, which was highlighted in a case in late
2006-07; it may be the case that the hon. Member for Bognor Regis and
Littlehampton, who speaks for the Conservatives, was referring to. It
involved a young girl with special educational needs who had been
repeatedly restrained in school without the parent being informed.
Although the school’s actions in restraining the child were
found to be reasonable, some hon. Members rightly expressed concern at
the lack of a requirement to record and report such actions to parents.
Therefore, the Government committed to closing that loophole.
Most schools
already record incidents of force and many of them make reports to
parents. Both these practices are recommended as good practice in the
Department’s guidance to schools on the use of force. The clause
consolidates that good practice. As a further safeguard, the clause
requires schools to have regard to the section of the guidance on the
recording and reporting of significant incidents. We are revising our
guidance. I think that the key point to remember is the word
“significant”, which is the point that the hon. Member
for Yeovil made when referring to John Dunford’s evidence. Our
revised guidance will make it clear what the new legal duties on
schools regarding the recording and reporting to parents will mean in
practical terms and we will, of course, be consulting on that
guidance.
Ensuring that
there is a proper written record will protect the interests not only of
pupils and parents but of staff, meaning that disputes about the
veracity of events can be minimised. It will make it less likely that
school staff will refrain from physical contact for fear of a
mischievous allegation against them. Furthermore, we do not envisage
that recording an individual incident should add a significant
administrative burden. The guidance to schools includes a one-page
model form for recording incidents, which should be fairly easy for
schools to complete. That section of the guidance also draws attention
to wider issues around pupil safeguarding and the circumstances when a
school might need to involve other
agencies.
9.15
am I
appreciate that hon. Members are concerned to limit the requirements
placed on schools, but there are important reasons why clause 233 is
framed in the way it is. I am sure that I do not need to remind hon.
Members that the most important reason is child protection. I will
first speak to amendments 86 and 87. The recording of each significant
incident of use of force and keeping an accurate record will protect
both the pupils and the teachers involved. The circumstances leading up
to and surrounding incidents of use of force are often confusing and
emotive, and it is important that a contemporary, clear and honest
report is made of such an incident so that the appropriate facts and
time scales can be accurately recorded when they are still fresh in the
mind. Many schools have already implemented mechanisms for recording
and reporting incidents of use of force. The clause merely reinforces
existing good practice and should impose little additional burden on
schools. On amendment
210, I recognise that the requirement to report each use of force
incident might in a small minority of cases provoke an inappropriate
violent reaction from parents. However, that risk needs to be weighed
against the risk of keeping parents in the dark on such a serious
matter as their child being restrained. The clause properly requires a
procedure that ensures parents are always informed as soon as possible
of significant incidents where force has been used on their child. It
enables prompt action to be taken and helps to stop problems
escalating. When
giving evidence earlier in our deliberations, Sir Alan Steer made it
clear that he did not agree with withholding a report from parents. He
said: “If
there has been an incident involving my child which has required
restraint to be used, I would be fairly militant about the fact that I,
as a parent, needed to know that. I accept that the example you gave
could occur on rare occasions, but there are ways around
that.”——[Official Report,
Apprenticeships, Skills, Children and Learning Public Bill Committee,
5 March 2009; c. 108, Q252.]
Mr.
Gibb: I have listened carefully to the Minister. She has
made a compelling case for why parents need to be informed
automatically, but there is also a compelling case in the small
minority of cases that she refers to where the consequence of reporting
the incident could be very serious for the child—extremely
serious. Is there not a compromise that can be reached where there is
an automatic process for reporting? If a head teacher has concerns,
could the reporting be made to someone in the social services
department who may or may not know the parent? If they know the parent,
that is dealt with. That could count as telling the parent. If they do
not know the parent, it could trigger a case conference and initial
inquiries to see whether it would be safe to tell the parent. In such
circumstances, the child would be protected. It would be a pity if we
passed the legislation and as a direct consequence a child
dies.
Sarah
McCarthy-Fry: The hon. Gentleman has anticipated my next
remark. The requirement to inform parents is also subject to wider
requirements to safeguard children, and the report to a parent need not
come directly from the school. It could in some instances come through
social services. Where a school is particularly concerned about a child
protection issue, they should always bring in other support agencies. I
think that that gives the hon. Gentleman the reassurance he needs. I
referred previously to an incident a few years ago involving a
six-year-old girl with special educational needs. That example alone
shows the importance of reporting incidents to
parents.
Mr.
Gibb: It is good to hear what the Minister has said, but
my worry is that it is not in the Bill and would therefore not be on
the statute book. I wonder what she has in mind. Obviously, there is a
wider requirement to protect children in common law, and undoubtedly in
statute somewhere, but it is not in this piece of legislation. Our
concern is that a teacher or a lawyer looking at this will advise that
the teacher or head teacher has to tell the parent, and there seems to
be no leeway within the provision as regards telling the
parent.
Sarah
McCarthy-Fry: The legislation
states: “The
governing body...must ensure that a procedure is in
place”. There
will be guidance that backs that up. Our revised guidance will make it
clear what it means in practical terms, given that there are the
general obligations under the Children Act 1989 and the wider
requirements to safeguard children. I am happy to confirm that we
expect to put in that guidance the incidents in the particular cases
that the hon. Gentleman refers
to. On
amendment 94, our general position is not to specify a time scale for
how long pupil documentation should be kept. The current pupil
information regulations, which cover the range of information that
schools keep on their pupils and which we are considering revising, do
not set such a time scale. Similarly, our current guidance on use of
force does not specify a time scale for keeping records, as we believe
that such decisions are best taken locally.
The exception
is where a record has been handed to the police. Our guidance
recommends that in those circumstances, schools should retain the
record until the member of staff involved has reached normal retirement
age or for 10 years from the date of the allegation, in order to ensure
that a proper record is retained in case criminal or other proceedings
arise from the incident. We propose that the new overarching guidance
on the use of force that we will issue to follow the Bill should
continue to reflect that approach.
I recognise
concerns that the record of an incident passed to the police for
whatever reason may appear on a subsequent Criminal Records Bureau
check, but if a teacher has misused the power and acted unlawfully, it
is right that that should form part of their CRB disclosure. In
deciding how long to keep records of such incidents, schools will also
wish to bear in mind the time limits for bringing civil actions for
damages. Where a person under 18 has suffered injury, the limitation
period does not even begin to run until they reach the age of 18, so if
schools destroy records three years after an incident, they may face
difficulties if a claim is made subsequently.
In any case,
schools will wish to maintain accurate records of their pupils’
progress for at least as long as they remain in education, and the use
of force record is likely to be considered by most schools as forming
part of that record. Schools may wish, for example, to monitor patterns
of use of force over a number of years. They must be left to make their
own decisions about how long to keep records of use of force. Many
schools will have good reason to want to keep the records for longer
than three years. With that, I ask the hon. Gentleman to withdraw the
amendment.
Mr.
Gibb: I am grateful to the Minister for that full response
to the amendments, which raise serious issues. I am not totally
convinced that it will work. She is saying that primary legislation is
trumped by revised guidance, whose status is even less than that of
statutory instruments. I worry that we are relying on guidance to
provide a different interpretation of explicit legislation in new
circumstances. It will work if the guidance is read, the school is well
run, its staff have the guidance in front of them and all the teachers
are aware of it. The concern is that that will not
happen.
Sarah
McCarthy-Fry: Does the hon. Gentleman not agree that
proposed new section 85D(4)
says: “In
discharging their duty under subsection (1), the governing body must
have regard to any guidance
issued”?
Mr.
Gibb: Yes, I do, but the trouble is that people are not
lawyers out there. Teachers are teachers, bursars are bursars and head
teachers are head teachers. This way may look easier because we are
spending a lot of time ploughing through the Bill clause by clause, but
it is just one Bill among many to which teachers must have access.
Guidance is recommended in most clauses of education Bills.
The reality
is that teachers do not sit at their desks with neatly filed guidance
connected to each provision in legislation. A poor lawyer, or even an
average lawyer, might not spot this point. Indeed, a teacher might not
even ask a lawyer; they will work out in advance what they can and
cannot do. A barrack-room lawyer view might arise that if a serious
incident occurs involving physical restraint of a child, the parent
must be told, and a jobsworth view might well emanate that it is better
to do so regardless of the consequences.
The hon. Lady
might be right. The matter might be so serious that head teachers will
be cognisant of the guidance because the consequences of not knowing
about it are so tremendous. However, the worry is that that might not
happen. We should be legislating to produce the best possible piece of
legislation. As the matter is serious, I cannot understand why it is
not being put into the Bill, just in case what I am saying is right.
Given that I am not the only one—senior trade unionists are
saying it too—I wish that she would think again. I leave her
with this thought. Rather than pressing the amendment to a Division, I
urge her to give the issue a little thought between now and Report and
to come back on Report with a small amendment, which we will endeavour
to give a swift journey on to the statute book. With that in mind, I
beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 233
ordered to stand part of the
Bill. Clause
234 ordered to stand part of the
Bill.
Clause
235Co-operation
with a view to promoting good behaviour, etc.:
England
Mr.
Gibb: I beg to move amendment 84, in clause 235,
page 138, leave out lines 5 and
6.
The
Chairman: With this it will be convenient to discuss
amendment 371, in
clause 235, page 138, line 6, at
end insert— ‘(c) the
management committee of a school falling within section 19(2B) of the
Education Act 1996 (c.56) (pupil referral
units).’.
Mr.
Gibb: We are now on the fairly controversial clause 235 on
school behaviour partnerships. The thing about such partnerships is
that most schools are in them—I forget the actual percentage,
but I think that over 90 per cent. of schools are part of a behaviour
partnership with other schools in their area. Most academies are in the
same boat, because they want to co-operate in such matters with other
schools, make common cause, spread best practice and help one another
in dealing with the serious and growing problem of poor behaviour in
our schools. Schools are happy to enter into such arrangements. But the
problem comes when they are forced to enter into the arrangements by
legislation; it is like passing a law saying, “You should be my
friend.”, which will not be a genuine friendship if that is its
basis—although I am sure that everyone in this Committee is very
friendly, particularly after
yesterday.
Mr.
Simon: On behalf of everyone on this side of the
Committee, I would like to say that we are all happy to be the hon.
Gentleman’s friends, even without primary
legislation.
Mr.
Gibb: I am very grateful, and therefore I will withdraw
that particular amendment that we will come on to later—it is
obviously not necessary.
Schools
should be encouraged, not forced, to form the partnerships. Amendment
84 would take out subsection (1)(b), essentially taking out
academies—we will discuss the broader issue of voluntarism in
partnership later in the debate. Dr. Daniel Moynihan, chairman of the
Harris Federation, and a former principal of a very successful academy,
said when he gave
evidence: “For
me the issue of school behaviour partnerships remains about voluntarism
for academies. It is true that most schools are part of behaviour
partnerships, but the kind they are in are quite different to the kind
Sir Alan Steer mentions in his report. The behaviour partnerships that
most schools are in are about sharing out hard to place pupils and
managing moves for
exclusions. In
this case, however, we are talking about much broader partnerships in
which groups have the power to employ specialist staff together, have
common behaviour management training, take on services in managing
attendance, offer staff training and work with primary schools, so we
could be looking at a bigger and potentially more bureaucratic
process...We really feel that it is important that we have the
choice of which schools we partner with, because partnerships per se
will not improve anything: quality improves
things.” He
was not saying that he is against partnerships, but he was saying
that “if
we do not get that, academies and other schools should at least be able
to determine who they partner with. I do not think that central or
local government should say, ‘Here is your partnership and this
is how you should partner.’ I do not think that they are in the
best position to do that.”—[Official Report,
Apprenticeships, Skills, Children and Learning Public Bill Committee,
3 March 2009; c. 56, Q152 and
153.] It would
be helpful, if the Minister is not able to accept the amendment, if she
provided some comfort to senior figures such as Dr. Moynihan, who has
done so much to provide high-quality education in difficult parts of
London. Can he be assured that he can form partnerships with schools
that he chooses, and that they will not be chosen for him by local
authorities or existing school behaviour partnerships? With those few
words, I await the Minister’s assurance on that point with
anticipation. 9.30
am
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