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Memorandum submitted by Children's
Rights
About CRAE[i]
1. CRAE seeks the full implementation of the
United Nations Convention on the Rights of the Child in
2. CRAE protects the human rights of children by
lobbying government and others who hold power, by bringing or supporting test
cases and by using national, regional and international human rights
mechanisms. We provide free legal information and advice, raise awareness of
children's human rights, and undertake research about children's access to
their rights. We mobilise others, including children and young people, to take
action to promote and protect children's human rights. Each year we publish a
review of the state of children's rights in
Summary
3. CRAE welcomes the opportunity of the Apprenticeships, Skills, Children and Learning Bill to address the following issues affecting children's human rights: Functions of Children's Trust Boards; use of force in schools; extension of powers to search in schools; and learning in child prisons.
4. We welcome the fact that the functions of Children's Trust Boards have been explicitly linked to improving the well-being of children (clause 185) and would like the definition of well-being to extend to the provisions of the UN Convention on the Rights of the Child. We would like the Government to clarify which body/bodies will be responsible for monitoring the exercise of the functions of the Children's Trust Boards and their effects on working practice.
5. We welcome the introduction at clause 233 of the Bill of a new statutory requirement on schools to ensure procedures are in place for recording incidents of staff using force on children, and for reporting such incidents to children's parents as soon as practicable after the incident. We are calling on the Government to ensure that children are given the opportunity to give their own written account of any incident involving the use of force by staff and that children are provided with a copy of the official record.
6. We welcome the opportunity presented by the Bill to consider the use of force in schools more generally in light of recent developments concerning restraint in child custody, including in particular the Court of Appeal's judgment in R (AC) v Secretary of State for Justice [2008][iii]. We are calling on the Government to reform the statutory powers of staff to use force in schools, in light of the Court of Appeal's judgment. This should include repealing the power for staff to use force in schools in order to maintain good order and discipline.[iv] This opportunity should also be taken to scrutinise and strengthen the safeguards in place, with a view to introducing regulations to support the exercise of the 'use of force' powers.
7. Clauses 229 to 232 of the Bill set out extended search powers for school staff. Head teachers and authorised members of staff have an existing statutory power to search a student or his or her possessions without consent if there are reasonable grounds for suspecting that the student is in possession of a weapon. These clauses extend this power to cover controlled drugs, alcohol (for students under 18) and stolen property.
8. CRAE is very concerned by the breadth of these additional powers. They constitute a significant intrusion into children's privacy which must be shown to be necessary and proportionate in order to be lawful. We are particularly concerned by the inclusion of a power to search for "stolen articles" and would like the Government to clarify why this has been included.
Functions of Children's Trust Boards
9. CRAE welcomes the fact that the functions of Children's Trust Boards have been explicitly linked to improving the well-being of children[v] (clause 185). We would like the Government to clarify which body/bodies will be responsible for monitoring the exercise of these functions and their effects on working practice.
10. The
definition of children's "well-being" here refers to the Every Child Matters
outcomes (section 10(2) of the Children Act 2004). CRAE is concerned that this
definition does not adequately encompass all of the provisions of the United
Nations Convention on the Rights of the Child (UNCRC), the comprehensive human
rights treaty ratified by the
11. The Children's Plan, published in December 2007, explains:
12. In October last year, the UN Committee on the Rights of the Child issued its third set of recommendations to the UK Government. In relation to the Government's overall strategy for implementing the UNCRC, the UN Committee concluded:
13. We hope that the Government will consider including reference to the provisions of the UNCRC in its definition of "well-being."
Use of force in schools
Recording and reporting the use of force in schools
14. CRAE welcomes the introduction at clause 233 of the Bill of a new statutory requirement on schools to ensure procedures are in place for recording incidents of staff using force on children, and for reporting such incidents to children's parents as soon as practicable after the incident. This is an important safeguard to help protect children against the unlawful use of force in school, in breach of their rights to physical integrity and protection from violence under the UN Convention on the Rights of the Child.
15. Children should be given the opportunity to give their own written account of any incident involving the use of force by staff and should be provided with a copy of the official record (current guidance recommends only that the member of staff involved should receive a copy of the report[viii]).
Powers to use force in schools
16. CRAE welcomes the opportunity presented by the Bill to consider the use of force in schools more generally in light of recent developments concerning restraint in child custody, including in particular the Court of Appeal's judgment in R (AC) v Secretary of State for Justice [2008][ix]. This case established that rules allowing children in secure training centres to be restrained in order to ensure good order and discipline[x] violated articles 3 and 8 of the European Convention on Human Rights, interpreted in line with the UN Convention on the Rights of the Child. The rules were quashed.
17. We believe the opportunity should be taken in this Bill to reform the statutory powers of staff to use force in schools, in light of the Court of Appeal's judgment. This should include repealing the power for staff to use force in schools in order to maintain good order and discipline.[xi] This opportunity should also be taken to scrutinise and strengthen the safeguards in place, with a view to introducing regulations to support the exercise of the 'use of force' powers.
18. There is insufficient centrally collected data on the use of force on children in schools. In response to a written question on 6 October 2008 asking how many times restraint had been used in maintained primary and secondary schools in England for the purpose of preventing a child from (a) committing an offence, (b) causing personal injury to, or damage to the property of, a person, including the child in question and (c) prejudicing the maintenance of good order and discipline at the school or among students receiving education at the school in the previous 12 months, the Minister for Children, Beverley Hughes, stated:
This information is not collected centrally because that would be an unjustifiable bureaucratic burden for schools.[xii]
19. However, CRAE is very concerned by anecdotal evidence received by our children's advice service from members of the public and from education advice services, which detail worrying incidents of use of force on children by staff in schools and Pupil Referral Units. These incidents appear to disproportionately affect children with disabilities or special educational needs.
20. We recognise that teachers generally have no wish to use force on children at school. We consider that, where force is used inappropriately by staff, it is likely to reflect a lack of training on the part of staff to manage children's behaviour or cater for their needs, or deficiencies in school systems and settings.
21. The 'use of force' powers contained in section 93 are too broad and there are insufficient safeguards. The powers are supported only by non-statutory guidance issued by the Department of Children, Schools and Families in 2007, which we understand is due to be revised following the outcome of the independent review of restraint of children in custody, published in December by the Joint Youth Justice Unit[xiii].
22. The powers apply to any teacher who works in a school and any other person the head has authorised to have control or charge of pupils[xiv]. There is no statutory requirement for staff to undergo appropriate, accredited training in behaviour management. Such training should be based on an assumption that use of force will only very rarely be required, and should include instruction on de-escalation techniques, risk assessment and safe methods of using force when absolutely necessary, based on a framework of respect for children's rights to dignity and physical integrity.
Extension of powers to search in schools
23. Clauses 229 to 232 of the Bill set out extended search powers for school staff. Head teachers and authorised members of staff have an existing statutory power to search a student or his or her possessions without consent if there are reasonable grounds for suspecting that the student is in possession of a weapon. These clauses extend this power to cover controlled drugs, alcohol (for students under 18) and stolen property.
24. CRAE is very concerned by the breadth of these additional powers. They constitute a significant intrusion into children's privacy which must be shown to be necessary and proportionate in order to be lawful. We are particularly concerned by the inclusion of a power to search for "stolen articles" and would like the Government to clarify why this has been included.
25. We recognise the crucial need to protect children from gun and knife crime, as well as the harmful effects of the misuse of alcohol and drugs. However, we caution against further incursions into children's privacy unless they are based on sound evidence that they represent necessary and proportionate measures which will effectively guard against these dangers.
26. Such measures may also cause damage by further alienating children already at risk of disengagement from school, as well as generally increasing the difficulty faced by teachers in building trusting and mutually respectful relationships with students.
27. In 2005, the Report of the Practitioners' Group on School Behaviour and Discipline (chaired by Sir Alan Steer) recommended that:
...the DfES should monitor, evaluate and publish a report on the use of the new legal power to search pupils without consent for weapons. In the light of that report, they should review whether the right to search should be extended in due course to include drugs and stolen property.[xv]
28. Sir Alan Steer's July 2008 Behaviour Review does not provide details of a systematic evaluation of how the powers to search for weapons have been used by school staff, stating only that "[e]nquiries have failed to discover instances of headteachers searching pupils for dangerous weapons without their consent".[xvi]
29. It is not clear therefore on what basis the existing search powers are being extended. Any such intrusion into privacy must be rigorously justified and we would like the Government to explain its reasoning.
Learning in child prisons
30. Clauses 47-50 address learning in child prisons, imposing a duty on local education authorities (LEAs) to secure suitable education for children in custody. Clause 48 reverses the effect of section 562 of the Education Act 1996 for children in custody, with the result that the education functions of LEAs and the Secretary of State will now generally apply to them.
31. These are welcome developments, following the recommendation of the UN Committee on the Rights of the Child in October 2008 that the Government should provide for a statutory right to education for all children deprived of their liberty.[xvii] We are scrutinising the provisions to ensure that they fully reflect the equal rights of children in custody to education, including children with special educational needs.[xviii]
32. CRAE is a member of the Standing Committee for Youth Justice (SCYJ) and refers Committee Members to the evidence submission of the SCYJ on this matter.
March 2009 [i] The [ii] In this document we define "children" as children and young people under the age of 18 [iii] EWCA Civ
882. Recently followed by the High Court
in R (Carol Pounder) v HM Coroner for the
North and South Districts of [iv] Section 93 of the Education and Inspections Act 2006 gives staff the power to use force to prevent the committing of an offence, personal injury, damage to property, or to maintain good order and discipline. http://www.opsi.gov.uk/Acts/acts2006/ukpga_20060040_en_10#pt7-ch1-pb3-l1g93 [v] In this document we define "children" as children and young people under the age of 18 [vi] Department for Children, Schools and Families (December 2007) The Children's plan. Building brighter futures. http://www.dcsf.gov.uk/childrensplan/downloads/The_Childrens_Plan.pdf [vii] Committee on the Rights of the Child (October 2008). Forty-ninth session. Concluding observations United Kingdom of Great Britain and Northern Ireland http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf [viii] DCSF
(2007) The use of force to control or
restrain pupils: Non-statutory guidance for schools in http://www.teachernet.gov.uk/_doc/12187/ACFD89B.pdf [ix] EWCA Civ
882. Recently followed by the High Court
in R (Carol Pounder) v HM Coroner for the
North and South Districts of [x] Secure Training Centre (Amendment) Rules 2007 http://www.opsi.gov.uk/si/si2007/uksi_20071709_en_1 [xi] Section 93 of the Education and Inspections Act 2006 gives staff the power to use force to prevent the committing of an offence, personal injury, damage to property, or to maintain good order and discipline. http://www.opsi.gov.uk/Acts/acts2006/ukpga_20060040_en_10#pt7-ch1-pb3-l1g93 [xii] Written answer to parliamentary question, 6 Oct 2008: Hansard Column 503W. [xiii] Smallridge P and Williamson A (June 2008). Independent review of restraint in juvenile secure settings. http://www.justice.gov.uk/publications/restraint-review.htm Joint Youth Justice Unit (December 2008). The Government's Response to the Report by Peter Smallridge and Andrew Williamson of a Review of the Use of Restraint in Juvenile Secure Settings. http://www.official-documents.gov.uk/document/cm75/7501/7501.asp [xiv] Section 95 of the Education and Inspections Act 2006 http://www.opsi.gov.uk/Acts/acts2006/ukpga_20060040_en_10#pt7-ch1-pb5-l1g95 [xv] Learning Behaviour: The Report of The Practitioners' Group on School Behaviour and Discipline (2005) http://www.dcsf.gov.uk/behaviourandattendance/uploads/Learning%20Behaviour%20(published).pdf [xvi] Sir Alan Steer (July 2008) Behaviour Review 3 http://www.teachernet.gov.uk/_doc/12743/Steer%20Report%20and%20letter%200708.pdf [xvii] Committee on the Rights of the Child (October 2008). Forty-ninth session. Concluding observations United Kingdom of Great Britain and Northern Ireland http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf [xviii] For
further information, see The Right to
Education in |