Education Bill

Memorandum submitted by Dr Roger Morgan the Children’s Rights Director for England (E 87)


As Children’s Rights Director for England, I have a statutory duty to ascertain the views of looked after children (as well as those receiving any form of social care service, or living away from home in residential education). I am making this submission to convey to the Bill Committee a number of issues raised by children with me that I consider relevant to the objectives of the Education Bill, and to make additional comments on potential impact and implications for looked after children which I hope will be of help to the Committee.

1) The Bill could be stronger in requiring specific educational support to looked after children in order to help individual children to make up lost educational progress through missed or disrupted education, and to work towards reducing the achievement gap between looked after children and children generally.

In my 2006 report on ‘Placements, Decisions and Reviews [1] , children told us that along with choosing somewhere to live, choosing a school is important when changing placements. Having to keep changing school (because you are forever changing placements) … spoils your education.

"I’ve been to as many schools as a supply teacher"

Through my 2007 report on the ‘Care Matters Green Paper’ [2] , of the ten promises that children looked after wanted councils to make, "better help with education" ranked fifth. We know from other children’s views consultations that this ranking was not due to any downgrading of education by children. This is something that we know they rate very highly. However, taken as an indication of those who felt that they needed more help with their education, it is from that perspective given a particularly high ranking. Young people in care and care leavers felt that there should be more help for those with ambitions to go onto university.

"Children in care are not stupid because they are in care … it’s discrimination. We are not incapable. We can still achieve even when in care".

Children gave us a clear message that to help them do well in education, their carers need to be the sort of people who bond well with children, who do things to help children with their work, and who have enough resources to do this well.

From amongst the 437 children and young people who took part in the ‘Children’s Messages to the Minister’ [3] consultation, we received advice on how children in care can be helped more at school or college to get more GCSE’s. Individual support was identified as important and about three-quarters of children asked thought that having a ‘designated teacher’ to support children in care would be a good idea. Others also made clear the importance of supporting children in care who are high achievers and who want to do well.

In the 2007 ‘Looked After in England’ report [4] , we asked children still at school whether they thought they were getting a good education. Out of 221 respondents, nearly half said they were definitely doing as well as they could at school. Amongst the other children who were not sure that they were getting their right to a good education, 55% of these said that there was nothing particular that stopped them doing well at school, whilst 16% identified being distracted by ‘other people’s behaviour’ and 9% admitted that their own behaviour was a factor in them not doing so well in school.

We repeated this exercise again in 2009 [5] , and based upon answers received from 888 children, 84% rated their education as either good or very good. However, this figure falls to 77% when taken as just for children living in children’s homes. Not surprisingly, these figures also corresponded very closely to results for how well children think they are doing in education.

The top three reasons given for doing well in education were:

· Keeping on target with work and grades (21% of those doing well)

· Working hard (21%)

· Helpful teachers (12%)

The reasons given to us for doing badly in education were:

· Struggling without enough help in some subjects (23% of those doing badly)

· Poor attendance at school or college (16%)

· Not interested in school or don’t like school (13%)

· Easily distracted, then misbehave (10%)

· Not working hard enough (10%)

· Personal problems (10%)

We updated work that we had previously done in 2006, by consulting the views of some 1,888 children and young people on their rights and responsibilities [6] . Children rate their right to education very highly indeed. In a list of children’s top 36 rights, education came out second; only just behind the right ‘to be protected from abuse’. Incidentally, the right ‘not to be bullied’ figured eighth in the children’s list, in spite of it not being part of the United Nations Convention on the Rights of the Child.

Children voted for the right to an education because it enables them to get a job, to learn and to live their lives well. Most individual reasons were to do with education helping to give them a better future, rather than for their present.

The two top reasons for voting for the right ‘not to be bullied’ were; the bad effects that being bullied can have for someone; and, the view that bullying can take away someone’s confidence, health and well-being, or their ability to have a good life.

Other important rights, as identified by children themselves, included; ‘to make decisions for myself if I understand enough, whatever age I am’. Some said that making their own decisions was part of the process that helped them to grow and become independent. Children also ranked the ‘right to know what’s going on’; and, to be given the ‘right to a say’ in decisions about themselves pretty highly. A few even suggested that one important right for children was the ‘right to make mistakes’.

The improvements implicit through the later set of children’s views indicate that recent changes in government policy and legislation, to give more individual help to looked after children and promote their stability, would appear to be achieving more favourable educational outcomes. I would encourage the Bill Committee to ensure that measures are in place so that progress made in educational achievements for looked after children are maintained.

2) Each reference in the Bill to the role of, or actions by, a 'parent' needs to be checked for impact and adaptation if necessary to apply to looked after children where the parent is the local authority itself as corporate parent, rather than a biological parent - including a general requirement that the local authority must then perform any functions of a natural parent given in the Act solely in the best interests of the individual child concerned and wherever feasible ascertaining and taking fully into account that child's aspirations, potential, wishes and feelings (e.g. not according to considerations such as financial saving at the expense of individual children's welfare).

In my 2011 report ‘Having Corporate Parents’ [7] , looked after children spoke strongly of how having a local authority, rather than a person, as a parent can make a major difference to their lives, both in relation to major decisions and to day-to-day life. It is clearly important that the Bill ensures that provisions and expectations for biological parents also ‘work’ for looked after children, and do not either disadvantage them or make them stand out unnecessarily from their peers in educational contexts.

3) The Bill could also be stronger in requiring action to reduce admissions difficulties and likelihood of exclusion of looked after children, who are disproportionately likely to be affected by these factors.

In my 2006 report ‘About Education’ [8] , we consulted a total of 154 children and young people, with a combined experience of over 275 years of being in the care system. About a third of children and young people we consulted had been out of school at some time. Exclusion was one reason for this, but the main one was that the child had been moved to a different care placement to live, and had to wait for some time before a school place was found. A smaller number experienced lengthy periods out of education because ‘the council could not manage to find a school that could meet their particular needs’. Some key messages derived from children’s views were:

"It was not nice I missed out on my education"

"… it would have been better if I had not missed any school when I was younger"

For children who had been excluded from school because of their own problems or behaviour, getting help to sort that out had got them back into school.

"… they helped me to behave really well, they helped me to get back on track to have a normal life with no problems, and also helped me with other problems like anger, my swearing and stress related problems".

One of the things raised by children in discussion groups with us was the very different experiences that children and young people had for getting excluded. We had explanations ranging from the trivial (e.g. missing one lesson) to other much more serious incidents that led to no exclusion at all. What children picked up on most sharply was the inconsistency inherent in a system of exclusions where very different thresholds for exclusion operate.

From amongst the 362 children and young people we consulted for my ‘Care and prejudice’ report [9] , we were told by around a third that ‘being in care can be held against you’. We also heard that teachers can often treat children in care differently from (though not necessarily worse than) other children, and that being in care could mean that you are more likely to get into trouble with some teachers. There was a mixed set of views about whether children in care get the same chances as other children to do well in education. About half thought that they did, whilst the other half thought that others made assumptions about children in care.

"You’re stereotyped because they think your parents don’t want you"

"You get labelled for being in care"

Out of 276 children and young people, 35% said that they sometimes worry and 10% definitely worry about others knowing they are in care. This is because they fear that people will then judge them, they might be bullied for being in care, and people might treat them differently and make them ‘stand out’ from their peers for being in care, or for more individual and personal reasons.

We met many children and young people who have been excluded from school, or who are finding school difficult. A key and consistent message from these young people is that it is important that they should find that what they learn at school is interesting, and relevant to what young people will be doing in the future.

Those who have told us that they have experienced being excluded from school have explained that this is often due to their bad behaviour. However, the result does not always lead to improving their behaviour, and they can be losing out on getting an education at all. Children still need an education, so;

"Make sure being excluded from school doesn’t mean no education"

I would advise that the Bill Committee should consider special safeguards and protections that it considers are necessary, for schools to have in place, in order to best ensure the continued right of children, on behalf of the state, to receive an education. These might include a strong role for designated teachers and virtual school heads in considering possible exclusions of looked after children, the rehabilitation of looked after children who have been excluded, and in cases where there are admissions difficulties affecting looked after children.

4) I believe the Bill could valuably grant stronger complaints and appeals rights available to be triggered by individual children themselves.

Many young people looked after by their councils have told us [10] that complaints procedures need to work better than they are. We have written a lot in previous reports about children’s clear message to "sort it, rather than report it", which is an affirmation of the good practice encouraged through local resolution. Many schools will wish to resolve problems quickly and satisfactorily, without necessarily the burden of having to use formal processes of complaints procedures. Many children and young people are with them on that, wanting their complaints taken seriously, but for the most part dealt with in quick, user-friendly, informal manner.

The key to good complaints resolution is fairness, not prolonged investigation, procedure and formality; and it is well within the scope of most schools to achieve fairness without resorting to excessive prolongation. Children want their complaints to make things better quickly, not after a long time, to produce a report about something that happened a while ago. Within the field of social care, it has been shown that dealing with complaints quickly, effectively and with fairness can be a powerful influence in tackling otherwise unacceptable behaviour.

I would advise the Bill Committee to give serious consideration to introducing some means of giving children and young people an effective say in the running of their schools, and for individual redress of their complaints, for the purposes of promoting concepts of fairness and responsibility.

The UNICEF UK ‘Rights Respecting Schools’ programme has not only been effective at introducing the subject of children’s rights into our schools, and thereby helping to meet our international obligations under Article 42 of the United Nations Convention on the Rights of the Child, but recent evidence has also strongly linked a causal relationship between rights, responsibilities and all round improvement in respect and behaviour.

5) I would urge that the opportunity be taken to reduce the grounds for using physical restraint on children in education settings, restricting this to the current grounds for use of restraint in social care settings, i.e. to prevent likely injury to any person, or to prevent likely serious damage to property - but not solely if an individual teacher considers that physical restraint is necessary to their maintenance of good order and discipline (which I am concerned is too wide and variable a test, and children have told me that physical restraint is in all settings sometimes used as a punishment or to make them comply with an instruction which does not involve risk of injury to anyone nor of damage to property).

Young people told us about the kinds of things that can lead to a person being restrained and how this makes them feel [11] .  They told about some of the circumstances that lead to someone being restrained, when and how they thought staff should use restraint and how restraint could be avoided.  Their views in summary are:-

Why people are restrained and how this makes then feel

· Something quite small or trivial can trigger a build-up that ends in restraint.

· Restraint can make a young person want to ‘get their own back’

· Restraint affects the people watching it happen.

When staff should use restraint

· Staff should only use restraint as a last resort.

· Restraint should not be used when people are just messing or shouting and screaming.

· Restraint should not be used as a punishment

How staff should restrain

· Staff should not try to restrain if they don’t know how to do it properly as this can be even more dangerous

· Restraint should never involve pain

· Restraint should calm a young person down not make them more angry.

How restraint could be avoided

· Staff need to handle the initial problem well and avoid a build up of problems.

· Individual plans should describe how to deal with the person if they lose control.

Some children and young people have told us that being restrained makes them feel more angry and even violated. Restraint may not always be the best way of calming some people down.

I would advise the Bill Committee that it is essential for the safety of children that only teachers accredited as competent to conduct safe methods of physical restraint should be allowed to do so.

We have evidence, from experts in the field, that certain methods of restraint can be extremely harmful to children, and some have even lead to deaths and serious injuries (e.g. ‘A Place Apart’, Aycliffe Centre for Children, 1993; the deaths of Gareth Myatt and Adam Rickwood at separate secure training centres in 2004).

In addition, a legal ruling in 2008 [12] determined that use of physical restraint for the purposes of maintaining ‘good order and discipline’ was in breach of Articles 3 and 8 of the Human Rights Act 1998.

6) There does I think need to be some strong testing of the balance

between ensuring that children feel safe to disclose abuse, and the protection of teachers from mischievous allegations. There are no right absolutes here - but rights of all parties require us to get this balance right.

I would advise the Bill Committee to consider that whilst measures intended to give greater protections to teachers from false allegations of abuse are to be welcomed; if not handled properly within schools, however, they do have potential for unintended consequences of deterring some children with a genuine complaint of abuse from coming forward and seeking the help that they need.

March 2011

[1] ‘Placements, Decisions and Reviews: A children’s views report’ , Children’s Rights Director, Commission for Social Care Inspection, 2006

[2] ‘Care Matters: Children’s Views on the Government’s Green Paper’ , Children’s Rights Director, Commission for Social Care Inspection, 2007

[3] ‘Children’s Messages to the Minister: A report of children’s contributions to the 2009 ministerial stocktake of care’ , Children’s Rights Director for England , Ofsted, 2009


[4] ‘Looked after in England : How children living away from home rate England ’s care ’ , Children’s Rights Director, Commission for Social Care Inspection, 2007

[5] ‘Children’s Care Monitor 2009: Children on the state of social care in England ’ , Children’s Rights Director for England , Ofsted, 2009

[6] ‘Children on Rights and Responsibilities’ , Children’s Rights Director, Ofsted, 2010


[7] ‘Having Corporate Parents’, Children’s Rights Director, Ofsted, 2011

[8] ‘About Education’ , Children’s Rights Director, Commission for Social Care Inspection , 2006

[9] ‘Care and prejudice’ , Children’s Rights Director for England , Ofsted, 2009


[10] For instance in ‘Children’s Views on Standards’ , Children’s Rights Director, Commission for Social Care Inspection, 2006

[11] ‘ Children’s Views on Restraint ’, Children’s Rights Director, Commission for Social Care Inspection , 2004


[12] R(C) v Secretary of State for Justice [2008] EWCA