Lawyers Instructed By Parents Of Injured And Traumatised Children

The families of four children with special educational needs today welcome a report from the Equality and Human Rights Commission on restraint in schools but call for more to be done.

The report says the government should ensure that schools count the number of children subject to restraints and seclusion, as well as developing national training standards for restraint.

However, it shows there are wider issues that need to be addressed. Four families have instructed lawyers at Irwin Mitchell to call for an inquiry under the Inquiries Act 2005 to investigate and recommend measures to end this hidden, traumatic and unnecessary practice in schools in England and Wales.

Their call is supported by the International Coalition Against Restraint and Seclusion (ICARS), a specialist non-governmental organisation with expertise in this field.

The four children from England and Wales have all been subjected to restraint and/or seclusion in schools, which has caused them distress, pain, injury and long-term trauma.

The families are calling for a statutory inquiry to be established by the Westminster and Welsh governments under the 2005 Act to investigate:

• Whether restrictive practices are being used to maintain good order and discipline - as is currently allowed - is acceptable and appropriate. The families are concerned that whilst that may be perfectly adequate in some scenarios – a teacher breaking up a fight in the playground for example – it provides no meaningful safeguards in the context of the repeated restraint of children with special educational needs
• Whether the legislative framework is sufficiently precise to ban the use of restrictive practices in all but the most extreme of circumstances
• Setting a minimum level of training for teachers and staff, as recommended by the Commission, and as there already exists in the adult health and social care context
• The role of regulators in scrutinising the use of restraint
• The consistency across local authorities in responding with child protection measures.

In November 2020, ICARS conducted a survey with Positive and Active Behaviour Support Scotland (PABSS) and 275 families across the UK responded. It found there was a widespread use of restraint and other restrictive practices, including the use of prone - face-down - holds which were banned by the government for use in mental health settings in 2014.

There were also repeated instances of restraint deemed "necessary" by schools, when the reality was that the school was failing to meet the needs of their disabled pupils. This led to vulnerable children suffering physical and psychological harm. Schools kept inconsistent records, schools and local authorities failed to monitor records that did exist, and schools did not communicate with parents about the use of restraint and resultant injuries to their children.

Expert Opinion

“We welcome the EHRC’s findings and recommendations but the report clearly shows there are wider systemic issues that need to be addressed.

We are now urging the Secretary of State for Education and Minister for Education in Wales to launch a statutory inquiry to recommend wider systemic change.

The government has a duty to require schools and educational authorities to record and monitor the use of restraint, to communicate the data to parents, and to take steps to reduce restraints and other restrictive practices. Without this, children, parents and guardians cannot secure accountability for physical and psychological harm resulting from unlawful restraint in individual cases, and the government can claim that there is no widespread problem.

It also results in schools, local authorities and the governments being unable to learn lessons and take steps to prevent future occurrences and improve their practice in order to ensure they respect the rights of the children.

As a result, we believe the UK is likely in breach of its obligations under the European Convention on Human Rights, the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities. We call on the Westminster and Welsh governments immediately to establish a wider inquiry so that ministers and civil society can understand the nature and scale of the problem and can suggest solutions."
James Betts - Associate Solicitor

In an open letter last year, Irwin Mitchell's clients wrote: “Children in distress need care and understanding, not physical force imposed on them by adults far bigger and stronger than themselves.  These interventions can cause huge distress, pain and injury, and have even caused death.

“Use of such interventions have changed the lives of our own children forever.  They have been injured and become traumatised.  This is not care.  We believe the status quo must change.”

Beth Morrison, co-founder of ICARS, said "We now support more than 1,600 families across the UK whose children have been physically and emotionally harmed through the use of restraint and seclusion in schools.

“We see a system that is broken. Children’s needs are going unmet in schools and staff are struggling to cope.

“We have collected evidence from families that shows the UK is in violation of its duties under domestic and international human rights law. The only way to confront these violations is through a statutory inquiry that identifies and informs ministers, parents and the general public about the barbaric practices taking place. Practices that in any other environment would lead to criminal prosecution, accountability and justice for victims.

“New families are presently joining us on a daily basis. These families deserve answers, and as a group, we are united in our knowledge that this abuse is not necessary and that it needs to stop in order that other children are spared the harm that so many have suffered."

The families submitted a formal request for a statutory inquiry to the Secretary of State for Education and Welsh Minister for Education on 27 May. Over a month has passed and the families have yet to receive a substantive response from the decision makers in England or Wales. They are now contemplating legal action.

Case studies

North Yorkshire

Abigail Gillespie, now 17, was born with Foetal Alcohol Spectrum Disorder (FASD).  As a result, she has complex needs.

Abi’s mother Becky said she has been restrained at two schools. Records provided by Becky suggest Abi was subjected to more than 100 incidents of restraints at one of the schools between January 2017 and September 2018.  In 16 of these cases, she said none or limited de-escalation techniques were attempted.  She said the records also made clear that the school had “downplayed the extent of the restraint used on Abi” and had failed to inform her parents of what was taking place.

Abi was excluded in September 2018 following an incident of restraint.  A Special Educational Needs and Disability Tribunal found she had been discriminated against.

Wales

Client B’s son is estimated to have experienced 30 restraints between the ages of seven and 10 in two schools in Wales. He is currently not attending school.

East Midlands

Client C’s autistic son was restrained over 100 times over a two-year period and now suffers from night terrors. 

Irwin Mitchell acts for a fourth family of a child who has been restrained at school on a number of occasions.

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