When it comes to protecting children no rule is too tough

First published by The Herald on 17 December 2019

THE Scottish Government – and Scotland more generally – has long prided itself on the way it promotes, protects and respects human rights. And, with the Government recognising that it is “during our very earliest years and even pre-birth that a large part of the pattern for our future adult life is set”, children’s rights are at the forefront of that. It should come as no surprise, then, that the Government has committed to creating “a Scotland where children’s human rights are embedded in all aspects of society”. It is just a shame that it keeps displaying such inconsistencies in getting us there.

Take this year. On the one hand, the Government set an example for the rest of the UK and many other countries to follow when it voted in October to take the justifiable-assault defence off the statute book. The so-called smacking ban, which does not outlaw smacking but rather prevents adults accused of brutality from arguing that physical chastisements were deserved, has created a gold-standard level of protection for children. It is a law that as a nation we can be justifiably proud of.

Yet on the other hand, because it had scrapped its controversial Named Person scheme a month prior to passing the smacking ban, the Government has made it harder for the very children that legislation was designed to protect to access the justice they deserve. It’s all very well to say the actions of those who abuse and assault children will not be tolerated, but if there is no one there to identify that abuse – and no joined-up system for monitoring or acting on it – it will be tolerated by default. It is an unfortunate fact of life that rights aren’t there for the taking; when they are breached they have to be actively upheld.

It is precisely the kind of inconsistency that has marred the introduction of new rules that should ultimately better protect some of the most vulnerable children in our education system. Having earlier this year refused to impose a country-wide policy on the use of restraint and seclusion in schools, education secretary John Swinney has decided to change tack. Guidance that will apply across all 32 local authority areas is being written and, if necessary, a new law will be passed. In a country that wants to embed children’s rights in all aspects of society it is a welcome change that is long overdue, though it has only come after much campaigning – and legal action – from a range of organisations including the Equality and Human Rights Commission (EHRC) and the Children and Young People’s Commissioner Scotland (CYPCS).

In a report issued last year Children’s Commissioner Bruce Adamson highlighted that the practice of physically restraining or segregating children as a means of controlling their behaviour is going largely unmonitored. Most individual councils have their own policies for dealing with challenging behaviour, but there are no overarching guidelines on what kind of restraint could be deemed acceptable and no requirement to report its uses in any specific way. Though he acknowledged that as a last resort restraint or seclusion may occasionally be the best way to ensure harm is prevented, Mr Adamson called on the Government to put a national framework in place so that all children in all schools are treated in the same way.

Reading the testimony of families who have been affected it is easy to see why. One parent reported that their child – a five-year-old with the mental age of a three-year-old – was left “distraught” after being put “in a room on his own in a totally unregulated state” while the handle was held from the other side; another told how instead of reducing the stress of her son, who has sensory issues and anxiety, “restraining him and locking him alone in a room increased it and led to serious mental health issues by the time he was eight years old”. Similarly, a report issued last month by the charity Enable Scotland heard from a mother whose autistic son had been repeatedly secluded or restrained – once allegedly with the use of handcuffs – because rather than “trying to use the techniques that we know work and calm him down” teachers had gone straight for the “nuclear button” instead.

Yet until the EHRC and CYPCS began legal proceedings against the Government Mr Swinney had refused to act, stating instead that it is up to individual councils to take responsibility for the care, safety and welfare of pupils in their schools. Given the difficulties the Government encountered while pursuing its Named Person scheme, its reticence is perhaps understandable. Though ultimately undone due to laws that prevent confidential information being shared between multiple parties, that scheme had been dogged from the start by claims it would unjustifiably interfere in family life. The smacking ban passed because it removed a defence rather than creating a new offence, but the Government would have had every reason to suppose that those who blocked new child-protection laws on the basis they undermine parents would be just as vociferous about regulations that could be seen as undermining teachers.

It is certainly true that opponents of all these policies have relied on the same kind of arguments to denounce them: restraining children who play up in class or chastising children who play up at home is part and parcel of daily life; stopping adults from doing that or – worse still – monitoring those thought to repeatedly do so would be to infringe their human rights. How very adultcentric; how very wrong. The truth is, for the vast majority of children the rights these measures have sought to protect are a given, meaning the vast majority of adults have nothing to fear from them. Jeopardising the safety of those who do not enjoy or cannot access those protections is an indulgence that should shame us all.

In a letter sent to Mr Swinney earlier this year, Mr Adamson said that by not adopting a “clear, consistent, national approach” the Scottish Government was “inappropriately locating restraint and seclusion within a behaviour management framework that presents the child as the source of the problem, rather than recognising an unmet need which should be considered in the context of additional support for learning”. It is to the education secretary’s credit that he has listened, though it is regrettable that in a nation so seemingly committed to upholding the rights of the child it took the threat of legal action for him to finally do so.