Behaviour and Discipline in Schools - Education Committee Contents


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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