Official Report 928KB pdf
Protection for Children (Physical Restraint and Seclusion)
To ask the Scottish Government what its response is to the Children and Young People’s Commissioner Scotland’s call for it to introduce “legal protection for children on the use of physical restraint and seclusion in all situations where children are in the care of the state”. (S6T-02182)
Restraint and seclusion of a child or young person must only ever be used as a last resort to prevent the risk of injury. A statutory framework already exists in many areas, including children’s residential and secure care, for those rare times when restraint or seclusion is necessary.
Last week, we published new guidance for schools on physical intervention, which reaffirms that position and has been drafted in line with our responsibilities relating to the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. It provides further advice on prevention, training and safeguards in relation to the use of restraint and seclusion. The guidance has been developed carefully, with extensive input from key stakeholders, including the Children and Young People’s Commissioner Scotland, young people, parents, staff and the teaching trade unions. We will work with partners to monitor and review its effectiveness by autumn 2025.
I recognise that there have been calls for further legislation, and we are exploring further options to strengthen the legal framework for schools. That includes my engagement with Daniel Johnson’s member’s bill, which I will consider carefully and respond to accordingly.
We are now six years on from the Children and Young People’s Commissioner Scotland’s report “No Safe Place: Restraint and Seclusion in Scotland’s Schools” and two years on from the “in safe hands yet?” report by Enable Scotland, which called for the publication of statutory guidance on restraint and seclusion in schools. However, the new non-statutory guidance on restraint in schools is still leaving children at risk according to teaching unions and the Children and Young People’s Commissioner Scotland.
Despite the First Minister’s assurances in response to my question last week and the answer that the cabinet secretary just gave, the rights of children and young people in Scotland are still not protected, which is unacceptable. Does the Scottish Government accept that its draft guidance is simply not good enough?
I thank the member for her question. I know that she raised the issue at First Minister’s question time, and I heard the First Minister’s response. I am sure that the member and I will continue to work outwith the chamber on the issues that she has raised today.
The member spoke about the delay in producing the new, updated guidance, which I accept should have been updated before now. However, it is important to say that the advice on that guidance came from the then children’s commissioner at the time, that his view on the matter changed in 2022 and that the current children’s commissioner is echoing the views of the previous children’s commissioner about the guidance becoming statutory.
The guidance that we have updated is non-statutory, as the member knows. I am very aware of Mr Johnson’s proposed member’s bill on restraint and seclusion. I have committed to working with him and I have been working with him throughout the past year.
The member mentions the views of the teaching trade unions. The teaching trade unions were represented on the physical intervention working group, and the guidance has been developed carefully over time, with extensive input from more than 30 different groups. Those groups included the Children and Young People’s Commissioner Scotland, young people, parents, staff, local government, teaching unions—including the National Association of Schoolmasters Union of Women Teachers—and those calling for Calum’s law. Therefore, this piece of work has been taken forward by a range of partners.
I recognise the call for further action on the matter, and I commit the Government to working with members across the chamber to address this and to exploring further legislative options. However, the updated guidance is a move forward and, although there have been delays, it has been broadly welcomed across the sector. I again commit to working with any MSP, irrespective of their party, to ensure that we have legislation and support that are fit for purpose and that support our children and young people in their education.
I am happy to work with the cabinet secretary on the guidance, but I fear that the words of the then Children and Young People’s Commissioner Scotland, Bruce Adamson, are not fully being taken into consideration. He stated that, with regard to putting the guidance into statute,
“we have moved well beyond a position where this can be just an option for consideration in future legislation.”
I raised with the First Minister last week the case of Isaac Tocher, which was yet another instance of a child being restrained—which resulted in significant injuries—and placed in seclusion. The First Minister reiterated to me that he could conceive of no circumstances in which what happened to Isaac should happen. However, the fact is that it did happen, and it is one of many cases. Experts are saying that new guidance is simply not sufficient to keep all our children safe. Is the cabinet secretary confident enough to guarantee that every child in state care today is safe from unnecessary restraint and seclusion, given the Scottish Government’s new framework, which has just been published?
I thank the member for her question. I heard the First Minister’s response and I share the serious concerns that she raised at last week’s First Minister’s question time, which she has raised again today. I echo—very much—the words of the First Minister, who said:
“I cannot conceive of a circumstance under which any of the detail that Roz McCall has put on the record would be justifiable under the guidance”—[Official Report, 7 November 2024; c 25.]
that is provided to schools on restraint and seclusion. I again put on the record that I agree very much with the First Minister’s views in that regard.
The matter goes back to the safety and wellbeing of our children and young people in schools, which are absolutely paramount. Restraint and seclusion must be used only as a last resort, to prevent the risk of injury. The Government supports the intention behind Daniel Johnson’s member’s bill proposal, and I will continue to work with him as his bill progresses.
The fact that we have updated the guidance does not preclude the Government working with Mr Johnson on his bill. The member’s bill process is at an early stage, but I will consider the bill’s contents carefully and will work with and respond to the member in relation to his work on the bill.
The member queries the effectiveness of the guidance, but it is important to say that there has been a clear commitment that the guidance will be updated within the year and that we will respond to and monitor the progress and development of the guidance throughout the year to ensure that it is being used effectively. I hope that Roz McCall hears, from the tone and spirit in which I am engaging with the question, that the Government will work with members from across the chamber. It is really important that we get this right.
I know that there are a range of stakeholder views on the guidance. It is fair to say that we heard some of those views on Friday at the publication of the updated guidance. Beth Morrison, who has been leading work on Calum’s law, said:
“Today is a positive step for children in Scotland”.
She recognised, too, that there is more to be done, and I commit to working with MSPs from across the chamber to do exactly that.
I understand that preventative support and early intervention are among the cabinet secretary’s top priorities, with a focus on improving relationships, behaviour and attendance in schools. Will she speak to the most recently published guidance under the behaviour and relationships in schools action plan and on how the Scottish Government is following up its implementation and success in schools across Scotland?
The new guidance that we published last Friday, on the use of physical intervention in schools, is the latest part in the delivery of our relationships and behaviour action plan, which I launched at the end of the summer. As Bill Kidd points out, the guidance advises that prevention and early intervention must be our primary approach, because we want to address the underlying causes of any behaviour that poses a risk to the safety and wellbeing of others.
The approach will help teachers and school staff to deliver a safe and supportive learning environment and will avoid the need for restraint and seclusion. I was quite taken by views that were expressed by the Educational Institute of Scotland on the approach, with some teachers feeling that they lack confidence in relation to the current policy. We very much hope that the updated guidance will provide support in that regard.
Local authorities have an important role to play in supporting staff to implement the guidance. I therefore welcome last week’s statement by the Convention of Scottish Local Authorities that the new national guidance will enable the reviewing and updating of local policies and practice. Of course, the Scottish Government will work with our partners to monitor and review the effectiveness of the guidance by autumn 2025, as I previously intimated.
I thank Roz McCall for lodging the question. The guidance takes us forward, and we have clear definitions. The requirement to inform parents within the school day or, at the outside, within 24 hours and the comprehensive recording are both important.
However, in 2018, the children’s commissioner’s report “No Safe Place: Restraint and Seclusion in Scotland’s Schools” found 2,674 instances of restraint used against 386 children. Most concerningly, only 18 out of 32 local authorities were recording such incidents, and fewer than half the total number of local authorities were recording them comprehensively. Is that not why we need the guidance on a statutory basis—so that local authorities have to record and inform? Parents are not being informed in a timely manner and, critically, there is a gap in recording. What steps will the Government take to ensure that all such instances are recorded by education authorities?
Mr Johnson raises a really important point, and I recognise the work that he is undertaking on this important issue. Reflecting on the commentary from the NASUWT on Friday, I note that it raised the very point that Mr Johnson is raising about inconsistency in the approaches that are being taken by local authorities. Local authorities have an important role in supporting their staff to implement the new guidance and in updating their local policies. The new guidance includes advice on reporting, recording and monitoring restraint and seclusion to ensure that we have a more consistent approach across the piece. The guidance applies to all schools, whether they are local authority, independent or grant aided.
I recognise the issue that Mr Johnson raises, and I look forward to working with him throughout the work that he undertakes on his member’s bill. I hope that he recognises and acknowledges that the new guidance makes specific reference to the issues that he has raised today because of the challenge in relation to inconsistency across the piece.
I support putting the guidance on a statutory footing, but is this whole debate not the result of a failure of the rest of the system? The fact that we are focused on the last resort means that the other resorts are not effective. We have significant problems with behaviour and violence in schools causing distress, and there is a failure to support those with additional support needs. Should we not be redoubling our focus on resolving those issues, so that we can reduce the use of restraint to the greatest possible extent?
I agree with the premise of Mr Rennie’s question. Post-pandemic, in particular, some of the challenges that he talks to—for example, ASN and changed behaviour in our schools—have been very live issues to me. As the Cabinet Secretary for Education and Skills, I spend a lot of time in the chamber responding to challenges on those very points. In Government, we need to reflect on how we can better support local authorities on those issues, because, post-pandemic, things are different.
I was in an early learning and childcare facility in Balmullo, in Mr Rennie’s constituency, recently and I heard what ELC practitioners in that local authority are doing in response to delays in speech, language and communication post-pandemic. It is important to work with local authorities in response to that greater need post-pandemic, and we, in Government, must better resource and support that work.
In the past financial year, we have spent record amounts on additional support needs. We have seen an increase of 725 in the number of learning support assistants, which is welcome news. However, I accept that that is not the end of the story and that the premise of Mr Rennie’s question is that this issue relates to wider issues within our education system post-pandemic. I agree with that.
The Government is in listening mode. We are approaching the budget, and I am sure that, if Mr Rennie has any proposals, my colleagues and I will be happy to engage with him, because we are all singing from the same hymn sheet on this issue and want to improve the support that is available for our children and young people.
I apologise to the cabinet secretary, because I am about to amend my question to her and go back to Roz McCall’s third question. The Government and local authorities have talked about review and update, and the Government is going to review the guidance in autumn 2025. So, when will all children be safe?
The guidance has been drafted in line with our responsibilities under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. It gives advice to staff about prevention, training and safeguards relating to the use of restraint and seclusion, and it sets out the types of restraint that should never be used on children and young people. That is really important.
The member asks a challenging question about the use of restraint in schools. We will have discussions about Mr Johnson’s bill in the coming weeks, and I commit to working with him on it. I have heard about the challenge today and I am aware of the inconsistent approaches that are currently being taken by local authorities across the country.
The purpose of the guidance is to provide a more consistent approach across the country, and I commit to working with COSLA and with members from all parties to deliver that, to ensure that our children and young people are safe in school.
That concludes topical questions. I will allow a few moments for those on the front benches to organise themselves before the next item of business.
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