Memorandum submitted by Children's Rights
Alliance
ABOUT CRAE
The Children's Rights Alliance for England (CRAE)
is an alliance of statutory and voluntary organisations and individuals
that seeks the full implementation of the United Nations Convention
on the Rights of the Child in England. Our vision is of a society
where the human rights of all children are recognised and realised.[180]
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 England.
SUMMARY
The UK Government is bound by international
law to ensure that behaviour and discipline measures in schools
are consistent with children's human dignity and the provisions
of the UN Convention on the Rights of the Child (CRC).[181]
Evidence from UNICEF UK's Rights Respecting Schools Award indicates
that a rights-based approach to the whole school environment has
a beneficial effect on behaviour, as well as improving relationships
amongst students and staff.[182]
A national research project by CRAE showed that,
when given a free choice of naming three things they would like
to change about their school, "more respect and fairer
treatment from teachers" was the third most common request.
Children described teachers who constantly shouted at, were rude
to, were disrespectful to or "picked on" particular
students.[183]
Exclusion rates remain too high and disproportionately
affect certain groups of children. The right to appeal permanent
exclusions is a crucial tool for providing a system of redress
and for safeguarding children's right to receive education, and
must be retained. The right to appeal should also be extended
to enable children to bring their own appeal against an exclusion.
Proposals to extend powers to search children
without consent constitute a significant intrusion into children's
privacy which must be shown to be necessary and proportionate
in order to be lawful. The suggestion of a general search power
in statute was rejected by the previous Government following legal
advice.
Guidance on the use of force in schools should
clearly state that force should only be used as a last resort
and in a proportionate manner. All staff should receive accredited
behaviour management training. The Government should reinstate
the duty to record significant incidents of the use of force and
to report these incidents to parents. Statutory powers to use
force in schools should be reformed to ensure that restraint is
not used for good order and discipline.
BENEFITS OF
A RIGHTS-BASED
APPROACH TO
BEHAVIOUR AND
DISCIPLINE
When the UK Government ratified the UN Convention
on the Rights of the Child (CRC) in 1991, it agreed to "ensure
that school discipline is administered in a manner consistent
with the child's human dignity and in conformity [with the CRC]"
(Article 28(2)). Any Government proposals regarding behaviour
and discipline must comply with the UK's legal obligations under
the CRC and other human rights legislation.
Every five years, the UN Committee on the Rights
of the Child (the leading authority on children's rights) examines
the UK Government's progress and issues recommendations to ensure
compliance with the CRC. During the last examination in October
2008, the Committee recommended that the Government "promote,
facilitate and implement, in legislation as well as in practice,
within … schools … the principle of respect for the
views of the child"[184]
and "intensify its efforts to
tackle bullying and violence in schools, including through teaching
human rights, peace and tolerance".[185]
A rights-based approach to the whole school
environment has been shown to have a beneficial effect on behaviour,
as well as improving relationships amongst students and staff.
UNICEF UK's Rights Respecting Schools Award enables the
entire school community, including students, to use the CRC as
a framework to develop and uphold whole school values. The award
scheme is now running in more than 1,600 primary and secondary
schools across the UK. An evaluation of the Rights Respecting
Schools Award published in 2009 showed that "positive
relationships and behaviour" was the area where schools
showed the most extensive evidence of impact. One parent who also
worked as a teaching assistant in a school commented:
I think the children are far more tolerant of
each other, and of each other's difficulties and understandings
of things. They don't tend to go round and say, "My rights
are this, and my responsibilities are this", but underneath
you know that there is half an eye on, "oh hang on, have
I done something wrong here? Have I upset this person? Should
I go and do something about it?" There's less of "me,
me, me" and more of "us".[186]
The evaluation highlights a reduction in fixed
term exclusions, an improvement in attendance, fewer instances
of bullying and an improvement in conflict resolution without
adult intervention.[187]
CHILDREN WOULD
LIKE FAIRER
TREATMENT FROM
THEIR TEACHERS
In 2008, CRAE published its findings from a
national research project, finding out from children in England
how their rights were being protected and respected (n=1708).[188]
When given a free choice of naming three things they would like
to change about their school, "more respect and fairer
treatment from teachers" was the third most common request.
Children described teachers who constantly shouted at, were rude
to, were disrespectful to or "picked on" particular
students. One young disabled person shared their experience: "You
don't really walk in any of the corridors and not hear at least
one bit of verbal abuse [from teachers] going on. "[189]
There was also criticism of teachers being too
strict with students and failing to fully investigate incidents
brought to their attention. Rather than just being told off for
getting involved in a dispute with another student, children and
young people asked for teachers to take more time to actually
find out what had happened and to listen to different perspectives.
Teachers who didn't take time to listen to both
sides of a story were seen as unjust. This was because they often
punished an entire class when they could not identify the "culprit",
or because they put one particular child in the "awkward
position of either getting suspended again or getting [their]
mates in trouble".[190]
CRAE believes that the development and implementation
of behaviour and discipline measures in schools should involve
children and give due regard to their views, in line with Article
12 of the CRC.
EXCLUSIONS SHOULD
ONLY BE
USED AS
A LAST
RESORT
CRAE is concerned that exclusion rates remain
too high and disproportionately affect certain groups of children.
In 2008, The UN Committee on the Rights of the Child recommended
that the UK Government "use the disciplinary measure of
permanent or temporary exclusion as a means of last resort only
[and] reduce the number of exclusions …".[191]
Recent statistics from the Department for Education show that
there were 6,550 permanent exclusions from primary, secondary
and "special" schools in 2008-09.[192]
Whilst the number of permanent exclusions has reduced since 2007-08,
the high figures indicate that exclusion is not being used as
a genuine last resort. These statistics also highlight an over-representation
of certain groups of children. For example, students with special
educational needs (SEN) are over eight times more likely to be
permanently excluded than other students and Black Caribbean students
and students eligible for free school meals are three times more
likely to be permanently excluded.[193]
CRAE is extremely concerned that the right to
appeal permanent exclusions may be at risk.[194]
At present, parents and young people over the age of 18 have the
right to bring an appeal against a permanent exclusion. This right
of appeal is a crucial tool for providing a system of redress
and for safeguarding children's right to receive education under
Articles 28 and 29 of the CRC and Article 2, Protocol 1 of the
ECHR. The policies of leading private secondary schools indicate
that a right to appeal permanent exclusions is standard practice.
There is no justifiable need to remove such a right in the state
sector.
CRAE believes that the right to appeal should
be extended to enable children to bring their own appeal against
an exclusion. This is particularly important for looked after
children, whose parental responsibility lies with the local authority.
This is in line with the recommendation from the UN Committee
on the Rights of the Child to "ensure that children who
are able to express their views have the right to appeal against
their exclusion …".[195]
The recommendation reflects the UK's obligations under Article
12 of the CRC to ensure that children have a right to participate
in matters which affect them, including specifically the opportunity
to be heard in judicial and administrative proceedings.
POWERS TO
SEARCH WITHOUT
CONSENT MUST
BE NECESSARY
AND PROPORTIONATE
CRAE is extremely concerned at the coalition
Government's proposals to extend powers to search children without
consent.[196]
They constitute a significant intrusion into children's privacy
(protected under the CRC as well as the Human Rights Act) which
must be shown to be necessary and proportionate in order to be
lawful.
In 2009, school staff's existing powers to search
students (or their possessions) without consent for weapons[197]
were extended to include alcohol, drugs, and stolen property.[198]
The report of the Joint Committee on Human Rights showed that
the Government had not provided sufficient evidence to demonstrate
these measures to be necessary.[199]
This extension of powers went ahead despite the absence of a published
evaluation of how schools were using their existing search powers,
as recommended by the Practitioners' Group on School Behaviour
and Discipline (chaired by Sir Alan Steer).[200]
CRAE has consistently called on the Government to undertake a
thorough review of how schools are using their existing search
powers before further powers are considered. This review should
show disaggregated data on the students who have been searched,
in order to ensure that the powers are not being used in a discriminatory
way.
In July this year, the Government announced
its intentions to extend the items for which school staff can
search children without consent to include "personal electronic
devices (mobile phones, iPods and personal music players); pornography;
fireworks; cigarettes and other tobacco; and `legal highs'".[201]
The Government must provide specific evidence concerning the scale
of the problem these items present in schools in order to justify
the necessity of their proposals.
CRAE is extremely concerned that the Government
proposes to introduce a general search power "covering
any item which may cause disorder or pose a threat to safety"
in the forthcoming education bill.[202]
Legal advice given to Sir Alan Steer prior to the Apprenticeships,
Skills, Children and Learning Bill questioned the legality of
a general power.[203]
This view was upheld by the then Government:
The reason why the human rights legislation is
there in the first place is to ask us as parliamentarians and
Ministers to pause and check that it is justifiable to interfere
with a student's rights, such as the rights of the privacy of
the person. If we deem it justifiable, necessary and proportionate
to do so, we will bring forward legislation, but I share [the
Minister's] concern about the general stop and search power. The
question of whether the police should have the power to stop and
search on our streets has been much debated in this House over
many years. If you were to extend stop and search into our schools,
you would do so very deliberately on the basis of real concerns
that have been expressed. Those concerns have not been expressed,
so we do not have the justification to interfere with those rights.[204]
CRAE recognises the crucial need to protect
children from harm. However, we caution against 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. These criteria must be
met in order to ensure compliance with the Human Rights Act.
HUMAN RIGHTS
CONCERNS ABOUT
USE OF
FORCE IN
SCHOOLS
In July 2010, the Government announced its plans
to simplify the guidance on use of force for schools.[205]
This revised guidance must include information on how these powers
can be used in compliance with human rights legislation. In particular,
it should clearly state that force should only be used as a last
resort and in a proportionate manner. Children should be involved
in the development and evaluation of school policies about use
of force and should be given information about the complaint mechanisms
available to them if they feel that they have been treated unfairly
or their rights have been infringed.
There is no statutory requirement for school
staff to undergo appropriate, accredited training in behaviour
management. Such training should be a requirement. It should be
based on an assumption that use of force will 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.
CRAE was deeply disturbed to learn of the Government's
decision to suspend the duty on schools to record significant
incidents of use of force, and to report these to the child's
parents.[206]
The Government laid a statutory instrument before Parliament in
July with no public announcement or debate. The duty, which was
due to come into force in September 2010, would have been an important
safeguard for children. The implications could be extremely serious,
especially for very young children and some young disabled people
who rely on teachers to share information with parents. No doubt
parents will be shocked to learn that they have no right to be
notified if a member of school staff uses force on their child.
Recording significant incidents of use of force
against children provides a crucial safeguard against the disproportionate
use of these powers. Recent statistics show that more than 1,700
complaints were made against staff in UK schools last year, over
half of which concerned physical assault or "inappropriate
restraint".[207]
Having a clear record of incidents, including accounts from those
concerned, is in the best interests of both staff and students.
CRAE is concerned at the broad powers available
to staff in schools to use force on students. We urge the Government
to reform the legal framework to repeal powers to use force to
prevent a pupil "prejudicing the maintenance of good order
and discipline".[208]
Corporal punishment is of course specifically prohibited in schools.
However, we believe the term "good order and discipline"
is open to broad interpretation and could be used to justify disproportionate
use of force which does not fall within the definition of "corporal
punishment". Indeed, the provision could erode in practice
the absolute prohibition of corporal punishment in schools. In
2008, the UN Committee on the Rights of the Child recommended
that the Government "ensure that restraint against children
is used only as a last resort and exclusively to prevent harm
to the child or others and that all methods of physical restraint
for disciplinary purposes be abolished." [209]
A recent Court of Appeal judgment[210]
established that rules permitting children in secure training
centres to be restrained in order to ensure good order and discipline[211]
violated Articles 3 (prohibition of torture) and 8 (right to privacy)
of the European Convention on Human Rights, interpreted in line
with the CRC. The rules were quashed. CRAE urges the Government
to reform the statutory powers to use force in schools in light
of the Court of Appeal's judgment.
September 2010
180 Not all CRAE members necessarily support the content
of this briefing. Back
181
UN Convention on the Rights of the Child http://www2.ohchr.org/english/law/crc.htm.
The CRC defines a child as a person under the age of 18. Back
182
Sebba & Robinson (2009) Evaluation of UNICEF UK's Rights
Respecting Schools Award http://www.unicef.org.uk/publications/pdf/sussex_interim_summary.pdf Back
183
CRAE (2008) What do they know? Investigating the human rights
concerns of children and young people living in England http://www.getreadyforchange.org.uk/images/uploads/Compressed_What_do_they_know_FINAL.pdf Back
184
UN Committee on the Rights of the Child (2008) Concluding observations:
United Kingdom Of Great Britain And Northern Ireland, para.
33a) http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf Back
185
Ibid., para 67f) Back
186
Sebba & Robinson (2009) Evaluation of UNICEF UK's Rights
Respecting Schools Award, p. 7 http://www.unicef.org.uk/publications/pdf/sussex_interim_summary.pdf Back
187
Ibid.. p. 8 Back
188
CRAE (2008) What do they know? Investigating the human rights
concerns of children and young people living in England http://www.getreadyforchange.org.uk/images/uploads/Compressed_What_do_they_know_FINAL.pdf Back
189
Ibid., p. 67 Back
190
Ibid. Back
191
UN Committee on the Rights of the Child (2008) Concluding observations:
United Kingdom Of Great Britain And Northern Ireland, para.
67d) http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf Back
192
Department for Education (2010) Permanent and Fixed Period
Exclusions from Schools in England 2008-09 http://www.dcsf.gov.uk/rsgateway/DB/SFR/s000942/index.shtml Back
193
Ibid. Back
194
"We will be announcing further measures in due course,
including … head teachers' powers to exclude children"
Nick Gibb, House of Commons Written Ministerial Statement,
Behaviour and Discipline in Schools, 7 July 2010 : Column
11WS http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100707/wmstext/100707m0001.htm£10070742000024 Back
195
UN Committee on the Rights of the Child (2008) Concluding observations:
United Kingdom Of Great Britain And Northern Ireland, para.
67h) http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf Back
196
Nick Gibb, House of Commons Written Ministerial Statement, Behaviour
and Discipline in Schools, 7 July 2010 : Column 11WS http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100707/wmstext/100707m0001.htm£10070742000024 Back
197
Violent Crime Reduction Act 2006, section 45 http://www.legislation.gov.uk/ukpga/2006/38/section/45 Back
198
Apprenticeships, Skills, Children and Learning Act 2009, section
242 (came into force September 2010) http://www.legislation.gov.uk/ukpga/2009/22/section/242 Back
199
Joint Committee on Human Rights (2009) Legislative Scrutiny:
Welfare Reform Bill; Apprenticeships, Skills, Children and Learning
Bill; Health Bill, pp. 40-42 http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/78/78.pdf Back
200
Department for Education (2005) Learning Behaviour: The Report
of The Practitioners' Group on School Behaviour and Discipline,
pp. 81-82 http://publications.education.gov.uk/eOrderingDownload/1950-2005PDF-EN-02.pdf Back
201
Nick Gibb, House of Commons Written Ministerial Statement, Behaviour
and Discipline in Schools, 7 July 2010 : Column 11WS http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100707/wmstext/100707m0001.htm£10070742000024 Back
202
Ibid. Back
203
Apprenticeships, Skills, Children and Learning Bill, House of
Commons Public Bill Committee, 5 March 2010: Column 108 http://www.publications.parliament.uk/pa/cm200809/cmpublic/appren/090305/pm/90305s01.htm Back
204
Jim Knight, Apprenticeships, Skills, Children and Learning Bill,
House of Commons Public Bill Committee, 10 March 2010: Column
174 http://www.publications.parliament.uk/pa/cm200809/cmpublic/appren/090310/am/90310s06.htm Back
205
Nick Gibb, House of Commons Written Ministerial Statement, Behaviour
and Discipline in Schools, 7 July 2010 : Column 11WS http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100707/wmstext/100707m0001.htm£10070742000024 Back
206
The Apprenticeships, Skills, Children and Learning Act 2009 (Commencement
No. 2 (Amendment) and Transitional Provision) Order 2010 http://www.legislation.gov.uk/uksi/2010/1891/contents/made Back
207
BBC News (2010) School staff get 1,700 complaints http://www.bbc.co.uk/news/education-10918940 Back
208
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.legislation.gov.uk/ukpga/2006/40/section/93 Back
209
UN Committee on the Rights of the Child (2008) Concluding observations:
United Kingdom Of Great Britain And Northern Ireland, para. 39
http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf Back
210
R (AC) v Secretary of State for Justice [2008] EWCA Civ 882 Back
211
Secure Training Centre (Amendment) Rules 2007 http://www.legislation.gov.uk/uksi/2007/1709/contents/made Back
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