In order to keep all of their children safe, schools will sometimes be put in the unenviable position of having to conduct searches on their pupils.

The Education Act 1996 covers schools’ right to search, and teachers must follow guidance from the Department for Education to ensure that their searches comply with the law.

Last week the DfE updated this guidance, releasing new Searching, screening and confiscation guidelines to schools.

This is the first update since 2018 and there are several key changes that schools need to be aware of following the conclusion of the safeguarding practice review into the Child Q case that rocked the sector earlier this year.

• Safeguarding: How schools should respond to the Child Q review
• The role of “appropriate adult”: What schools need to know
• KCSIE 2022-23 update: Changes to safeguarding guidance

So what are the big changes? And what are the potential implications for school leaders? 

Tes took a close look at the new guidance - due to come into force in September 2022 - and spoke with a raft of experts to find out what they made of the changes and what they might mean for schools.

New searching, screening and confiscation guidance for schools

1. A stronger focus on safeguarding

The most notable change throughout the document is the increased focus on safeguarding.

Compared with the 2018 guidance, in which safeguarding is only mentioned twice (and only then in the titles of linked documents), the new 2022 version mentions safeguarding 30 times, reflecting the difference in tone and focus of the guidance.

The first paragraph in the step-by-step guide to conducting a search on page 7 of the 2022 guidance says:

“Searching can play a critical role in ensuring that schools are safe environments for all pupils and staff. It is a vital measure to safeguard and promote staff and pupil welfare, and to maintain high standards of behaviour through which pupils can learn and thrive.”

By opening the guidance in this way, it seems clear that the DfE wishes to make safeguarding the first concern whenever a search is being considered.

This comes as no surprise, given that one of the recommendations from the Child Q safeguarding panel was for this change to be made to the guidance. On page 18 of the panel’s report, it was noted that there was a need for a focus on safeguarding in the update:

“In the opinion of the review, this guidance could be strengthened by including much stronger reference to the primary need to safeguard children.”

Designated safeguarding lead (DSL) and welfare officer Thomas Michael says the clear shift in tone on safeguarding, in response to the review’s suggestions, is a welcome move and should ensure a shift in school operations.

“Schools know that safeguarding should be at the centre of everything we do,” says Michael.

“There should always be a thought given to contextual safeguarding - and some searches require more thought to it than others. I think it’s always important to look at the wider picture rather than taking a ‘we’ve found this so we’re going to punish you and move on’ approach.”

Michael also raises the point that a search is something that can “put both the member of staff and the student in a vulnerable position” and so a further emphasis on safeguarding makes sense.

2. Advice on why students might refuse a search

The theme of safeguarding continues as the new guidance also includes more detailed advice on how to respond to a refusal to be searched.

Unlike in the old guidance, where the scenario of a pupil refusing to be searched contained advice only pertaining to the need to sanction, on page 10, paragraph 19, of the new guidance, schools are given suggested reasons why a search might be refused by a student.

The guidance says a student might refuse to be searched if they:

• are in possession of a prohibited item;
• do not understand the instruction;
• are unaware of what a search may involve; or
• have had a previous distressing experience of being searched. 

Nikki Cunningham-Smith is an assistant headteacher, Sendco and centre lead in a pupil referral unit outside of London, and she regularly deals with situations where pupils refuse to follow instructions.

She welcomes this update to the guidance, saying it will help to prepare staff to consider wider contexts when encountering pupils who are refusing a search.

“This advice may help staff to consider that non-compliance is not always because of bad behaviour,” she says.

“An element of understanding the child’s perspective could lead to de-escalation that would hopefully lead to compliance.

3. Guidance on record keeping

A key change that leaders should be aware of is the updated guidance on recording searches.

In the previous guidance, the only reference to record keeping was to say there was “no legal requirement to make or keep a record of a search”. This was criticised in the Child Q review, saying that although it is “likely to be accurate from a legal sense”, it was “permissive” and “runs the risk of promoting poor practice”.

Now record keeping has its own section on page 14 of the updated guidance: schools are advised to keep records and given a list of what to include in the records, including the reason for the search, who conducted the search and the outcome.

Tom Goodenough, a former headteacher and education lead for Thames Valley Violence Reduction Unit, says that although he would find it “surprising” if schools weren’t already recording these details, he thinks it is a good move to stipulate the need to keep track of what searches are being conducted.

“The guidance is welcome as it gives a clear rationale and good level of detail on what to record in order to ensure a full, accurate record,” he says.

As well as giving advice on how to record searches, the new guidance also advises schools to analyse the data generated by this record keeping and identify if “searching is falling disproportionately on any group or groups [and] they should consider whether any actions should be taken to prevent this”. 

This will inevitably create extra work for schools. Is there a chance schools might be resistant to the additional admin involved in the searches? 

Goodenough doesn’t think so and says that “a reminder to scrutinise the data for any patterns and proportionality is welcome as an indicator of whether any addition actions or support might be necessary to address such disparities”.

4. Informing parents

Communication with home is a key part of pastoral and behaviour lead roles, and yet the 2018 edition of the search guidelines contained no guidance regarding what was expected of schools in terms of communicating with parents following a search on a pupil.

Now the updated guidelines make it clear. In a new section on page 15 entitled “Informing parents”, the guidance says:

“Schools should reinforce the whole-school approach by building and maintaining positive relationships with parents. Parents should always be informed of any search for a prohibited item…and the outcome of the search as soon as is practicable.

“A member of staff should inform the parents of what, if anything, has been confiscated and the resulting action the school has taken, including any sanctions applied.”

John Jolly, CEO of Parentkind, a charity helping parents to get involved in their children’s education, says that he “welcomes this guidance for schools as a necessary measure for preventing any parental ill-feeling later on” and that he believes when the school is working openly with home it is “the best method for gaining their support”.

“The best educational experience for young people occurs when schools work in close partnership with homes,” Jolly says. “Part of the success of this approach is transparency and keeping parents informed.”

Jolly adds that he believes the change to record-keeping expectations in the guidance will also help to improve the home-school relationship.

“Schools keeping records of searches and working with parents when incidences occur should help to identify if any demographic is being disproportionately impacted so that the leadership can address this. Such moves will have to involve meaningful two-way conversation with parents. This will help schools to foster a better understanding of the whole-school community,” he says.

5. Guidance on strip searches and after care

The previous iteration of the guidance only referred to an “intimate search” in a single instance, and that was to say that the police would need to conduct it.

Now, in the new guidance, schools are informed of the process that the police must follow during a strip search, as well as the aftercare a pupil should receive following a police strip search.

On page 12, paragraph 35, in a new section titled “Strip searching’”, the two relevant pieces of legislation are referenced: the Police and Criminal Evidence Act 1984 (PACE) Code A and Police and Criminal Evidence Act 1984 (PACE) Code C.

The guidance reminds schools that even when police are called into the school, this doesn’t change their level of responsibility to the pupil. In paragraph 35 it says:

“While the decision to undertake the strip search itself and its conduct are police matters, school staff retain a duty of care to the pupil(s) involved and should advocate for pupil wellbeing at all times.”

It adds in paragraph 36 that schools need to consider the potential consequences of calling the police:

“Before calling police into school, staff should assess and balance the risk of a potential strip search on the pupil’s mental and physical wellbeing and the risk of not recovering the suspected item.”

In light of the recommendations made following the Child Q case, Micheal says this advice is “extremely useful” because in the evidence given to the panel by the designated safeguarding lead in the Child Q case there was a clear lack of knowledge around police searches, and the role of the school.

“A child should never have been put in the position [Child Q experienced], so it is reassuring to see that the guidance is there,” he says. “This will ensure school staff are informed and by including it in the guidance, hopefully it will prevent another Child Q incident from happening again.”

6. The role of an appropriate adult

The new search guidance also makes reference to the role of the “appropriate adult”, something that was absent in the previous guidelines and is also new to the 2022 Keeping Children Safe in Education guidance. 

“Appropriate adult” describes the role of the person who is designated to provide support to people under 18 who are being detained or voluntarily interviewed by police.

On page 13, paragraph 38, the guidance on strip searches specifies that except for in “cases of urgency where there is risk of serious harm to the pupil or others”, a strip search must be done with “at least two people present other than the pupil, one of which must be the appropriate adult”.

The guidance also includes the recommendation that if the pupil’s parent wishes to be the appropriate adult then “the school should facilitate this where possible”.

On page 13 of the new guidance, in the footnotes, it is also advised that school staff can take the role of appropriate adult:

“Examples of an appropriate adult include, but are not limited to, a parent, relative, social worker, teacher or, if the person is in the care of a local authority or voluntary organisation, a person representing that authority or organisation.”

It is somewhat surprising this isn’t given further prominence in the updated guidance, especially given that the Child Q review highlighted the need for more awareness of the role of the appropriate adult, and in its findings on page 21 stated that “school staff deferred to the authority of the police on their arrival at school. They should have been more challenging to the police, seeking clarity about the actions they intended to take”.

The Child Q review also quoted figures from 2015 from Just for Kids Law and the Children’s Rights Alliance for England (CRAE) showing that in 45 per cent of strip searches of children, no appropriate adult was present.

So what do staff need to know about their role if a pupil is questioned by police? Goodenough wrote about the duties of the school when acting as an appropriate adult in his article ‘”The role of appropriate adult and what schools need to know”.

In this article, Goodenough says that young people will find “the presence of someone from school who knows them may be very reassuring and more supportive of their needs”.

Goodenough also advises schools that staff should be aware that as the appropriate adult, they can request to have time alone with the child.

 “Private conversations can be held at any time between the young person and their ‘appropriate adult’. This can help to provide respite and clarity at key moments,” he says.

In addition to this, the new guidance also contains advice on what after care would be appropriate following a strip search.

Goodenough says that although “there is nothing here that would be new or unusual”, it is still “useful advice”.

“[This extra advice] is useful for those who would need to consult guidance,” he says. “Perhaps those who very rarely have cause to search.”

7. The need for staff to understand the child’s rights

The law is clear that schools have a legal right to search pupils but also pupils have their own legal rights that must be respected and followed.

In the new guidance, on page 9 in a paragraph advising schools to train a “sufficient number” of staff in how to search, there is also a new instruction advising schools on the issue of rights:

“[I]t is vital that all staff understand their rights and the rights of the pupil who is being searched.”

And what is missing from the updated guidance?

Although it is important for staff to be aware of the rights of their pupils, there is no mention in the updated guidance of the requirement for schools to ensure that the pupil understands their rights, too.

This was something the Child Q report said would have been beneficial in that instance, as Child Q  “appeared unable to challenge any of the actions being undertaken and is unlikely to have known about what she could expect”.

Another notable omission from the report is any mention of “adultification” that was raised as a concern in the Child Q review, where the panel concluded that it was “significan[t] to the experience” of Child Q.

Adultification is a concept whereby adults perceive black children as being older than they are.

In guidance from the NSPCC, the charity describes it as “a form of bias where children from black, Asian and minoritised ethnic communities are perceived as being more ‘streetwise’, more ‘grown up’, less innocent and less vulnerable than other children. This particularly affects black children, who might be viewed primarily as a threat rather than as a child who needs support”.

Louise King, director of policy at Just for Kids Law, believes this is a missed opportunity to draw attention to the different treatment black children experience.

“There should have been a reference to adultification, which results from racism,” says King. “This is a key reason why black children are treated more punitively than white children, as they are perceived as being less vulnerable.”

Cunningham-Smith agrees and says she believes it should have been included in the guidance.

“The adultification of children is something that also should be considered and everyone working in schools should be aware of - especially when it comes to serious matters like conducting a search,” she says.