Apprenticeships, Skills, Children and Learning Bill

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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.
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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 235

Co-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. 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.
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