Last week the Department for Education launched a call for evidence to understand more about the use of reasonable force, physical restraint and restrictive practices in schools.

The intention is that this will inform revisions to the current non-statutory advice on the use of reasonable force in schools, which was published ten years ago in 2013.

Acting on the White Paper

This signals a willingness on the part of the government to deliver part of what was promised in the White Paper, published in March 2022, namely to ensure all schools are calm, safe and supportive environments in which pupils and staff can learn and work, despite its decision to drop the Schools Bill.

The current legal position is all school staff (including non-teaching staff) have the power to use reasonable force to prevent pupils from hurting themselves or others, from damaging property or causing disorder.

This is also set out in the statutory guidance, Keeping Children Safe in Education.

The 2013 guidance is limited to providing advice on reasonable force (rather than restrictive intervention) and covers the following:

• Reasonable force can be used to prevent pupils from hurting themselves or others, from damaging property or from causing disorder.
• Schools should not have a “no contact” policy - this risks placing a member of staff in breach of their duty of care towards a pupil.
• It is always unlawful to use force as a punishment.
• Every school is required to have a behaviour policy and to make this policy known to staff, parents and pupils - this should include content on when reasonable force might be used (although there’s no current requirement to have a separate on this policy).
• Any policy on the use of reasonable force should acknowledge schools’ legal duties in relation to children with special educational needs and disabilities (SEND).
• It is current good practice (but not a legal requirement) for schools to speak to parents about serious incidents involving the use of force and to consider how best to record such serious incidents.
• It is up to schools to decide whether it is appropriate to report the use of force to parents.

More to be done

There is some evidence that the DfE’s advice does not go far enough and attempts have been made to address this before now, for example, the DfE did launch a call for evidence in 2019, following the publication of its amended guidance on Reducing the Need for Restraint and Restrictive Intervention in special schools and health and social care settings.

However, this did not result in any revisions to the standalone guidance for mainstream schools.

The recent amendments to the Behaviour in schools, Searching, screening and confiscation at school and School suspensions and permanent exclusions guidance attempted to provide a little more context of where it might be appropriate to use reasonable force, eg, when conducting searches for prohibited items.

Where clarity is needed

The DfE also confirmed restrictive practices, such as removal from classrooms, should only be used as a response to serious misbehaviour.

While this has proved useful to some schools, it still falls short of having a single piece of standalone guidance.

It’s hoped that this call for evidence will result in revisions that will clarify:

• How force, restraint and restrictive practices can be minimised, and if needed, how staff can use these safely and effectively.
• How school leaders can support pupils, parents and staff involved in/or affected by restraint or other restrictive practices.
• The impact these practices can have on pupils, particularly those with SEND.
• How incidents of the use of force, restraint and restrictive practices should be reported and recorded (and whether it will become a legal requirement to record and report incidents to parents).
• How this is connected to the legal duties placed on schools by the Human Rights Act 1998, Equality Act 2010 and Children and Families Act 2014.

Certainly it will be interesting to see when the response to the call for evidence is published whether schools are already embedding good practice as a result of the publication of the behaviour and searching and screening guidance at the end of 2022  - and whether this will have an impact on how prescriptive the DfE’s revisions to the guidance will be.

The consultation is open until 11 May.

Victoria Guest is an associate at the education law firm VWV