In January, Nursery World reported the story of a nursery owner facing a charge of common assault after intervening to stop a toddler hitting a baby over the head with a wooden brick.
The incident was witnessed and later reported by two Northamptonshire County Council officials who were visiting the nursery at the time.
However, the nursery owner said there was 'nothing unusual' in the way she had dealt with the toddler and described the incident as an 'everyday occurrence' (See Nursery World, 5 January 2006, page 4).
Many people working with small children must have paused in concern at this story. Surely, we sometimes need to use some form of physical force when dealing with dangerous behaviour? Does the law allow teachers and carers to use force or physical contact at all?
Controlling young children is an important part of caring for them and educating them. Yet many early years practitioners are still uncertain of their rights and responsibilities. The letter of the law is sometimes different between schools and nurseries, but the essential message is the same. Not only is corporal punishment prohibited, but any form of physical contact should be kept to a minimum to avoid injury to children or misinterpretation leading to allegations of abuse.
In the 'bad old days', it was quite normal for children to be slapped and manhandled on a regular basis by the adults in charge of their care and education. In the post-war period, corporal punishment in schools and nurseries was regarded as essential for the maintenance of discipline.
However, public opinion, influenced by campaigning groups, slowly changed and corporal punishment became less acceptable. It was formally abolished in state schools and nurseries in 1986, although it continued to be lawful in independent schools and nurseries until 1999. Childminders were allowed to smack children in their care, with parents' consent, though this was later removed from the National Standards in 2003, bringing childminders in line with other childcarers.
Rough handling In the legislation that abolished corporal punishment, the definition was stated to include 'rough handling'. Perhaps because of this, the perception has grown that children are not only 'unbeatable' (the catchphrase of a recent campaign against all corporal punishment) but also untouchable. Many teachers and carers fear that any physical contact with a child will lead them straight to court. This is understandable, given incidents such as the case reported above.
Probably foreseeing this lurch of the pendulum, the Government attempted to clarify the position when the legislation abolishing corporal punishment was introduced. A new provision was enacted allowing teachers and authorised staff in schools to use 'reasonable force' to prevent a child from:
* committing a criminal offence
* injuring themselves or others
* damaging property
* acting contrary to good order and discipline.
Detailed guidance was given in the form of Circular 10/98 written by the highly respected Michael Bichard, later to become Sir Michael Bichard, author of the report on the Soham murder case.
The guidance advises schools to have a policy about the use of force to control or restrain pupils. This is mirrored by the National Standards for daycare. The registered provider is required to produce a written statement on behaviour management which sets out the methods used to manage children's behaviour.
Force is more likely to be regarded as reasonable in the context of a calm, well-managed setting. It is usually possible to predict the types of behaviour and problematic situations that might give rise to physical intervention. If the manager has considered these together with staff and has agreed sensible strategies to deal with them, this should reduce the risk of unnecessary and forceful intervention.
Where a child is known to have challenging behaviour, for example, a tendency to bite other children, the manager should plan an appropriate response to such incidents. The handling of children with behavioural disorders needs specialist advice and the child may require a Statement of Special Educational Needs with extra support, funded by the local authority.
The guidance for schools looks at situations where the use of force may become necessary. These include:
* a physical attack by a pupil on a member of staff or another pupil
* fights between pupils
* deliberate vandalism and damage to property
* rough play or dangerous misuse of equipment
* careless behaviour in corridors or on stairs which is likely to cause an accident
* serious disruption to lessons.
What if a child tries to run off the premises? Physical intervention to prevent this is lawful, but only if the child would be put at risk by leaving. This will clearly apply to children in early years settings.
Indeed, the younger the child, the more likely it is that adults will need to have physical contact to care for and control the child.
Reasonable force The Children Act 1989 provides that an adult who has actual care of a child may do 'what is reasonable in all the circumstances of the case' for the purpose of safeguarding or promoting the child's welfare. However, the National Standards forbid 'any form of physical intervention, for example, holding, unless it is necessary to prevent personal injury to the child, other children, an adult or serious damage to property'. So what is reasonable force?
There is no legal definition of reasonable force. It will always depend on the circumstances. There are two basic factors to be borne in mind: 1 Is force (of any kind) necessary? Or can the situation be resolved without force?
Example: you see a child about to take a biscuit when you have told him to put his coat away first. Is it necessary to grab his hand to prevent this? Or will a firm 'No!' be sufficient?
2 The force used must be the minimum needed to achieve the desired result.
Example: a child is banging a toy on a table and you are afraid she will hit another child's fingers. It would be reasonable to gently hold the child's arm and remove the toy from her hand but not to pull her forcefully away.
Court action for assault will follow only if there is a complaint to the police, who will investigate and pass the decision to prosecute to the Crown Prosecution Service. Such cases often take a long time to come to court and although they frequently result in an acquittal, both the health and the career of the accused person will suffer.
Protests about this resulted in the Government publishing guidance called Safeguarding Children in Education: Dealing with allegations of abuse against teachers and other staff. This advises that common sense and judgement should be exercised, and that only in rare cases will allegations require immediate intervention by children's social care or the police.
The consequences of a conviction of assault in these circumstances can be severe. Registered early years providers can expect Ofsted to take enforcement action. In a worst-case scenario, this can result not only in the closure of the setting but also the convicted person being banned from working with children and being placed on the Protection of Children Act list held by the Department of Health. For teachers, a conviction could mean both dismissal and being banned from teaching, together with inclusion on List 99 held by the Department for Education and Skills.
Discipline in schools is an issue that rarely leaves the headlines. The Government's new Education and Inspections Bill has several provisions intended to support a school's right to discipline pupils, including punishing pupils for bad behaviour off school premises. The 'reasonable force' powers are confirmed. However, there is still no definition of reasonable force. As the Northamptonshire nursery owner will find, at the trial due to take place this month, the fate of carers and teachers depends on the court's view of the facts of the particular case.
It is, of course, important that injury and abuse should be eliminated from early years settings and schools. However, given the seriousness of the consequences for the adults involved, many believe the current state of the law to be less than satisfactory.
Christine Betts is a senior lawyer in the Early Years team at Veale Wasbrough Lawyers, Orchard Court, Orchard Lane, Bristol BS1 5WS, tel: 0117 925 2020, fax: 0117 925 2025, e-mail: cbetts@vwl.co.uk, website: www.vwl.co.uk
The advice given in this article is for guidance only. Nursery World readers should not place reliance upon it or take action without obtaining further advice relating to their specific and individual circumstances.
