Publications

Submission to Department of Education on Guidance for Educational Settings on Restrictive Interventions

List of recommendations/messages:

2.14 The NIHRC considers that the draft guidance, in its current form, may not adequately support schools to meet their obligations under the Human Rights Act 1998. The guidance should more clearly set out the relevant human rights legal obligations and provide further explanation to ensure that restrictive practices are only used when strictly necessary.

3.13 The NIHRC advises that the use of restrictive intervention for the permitted purpose to “maintain good order and discipline” creates a real risk of non-compliance with ECHR Article 3 and Article 8. The NIHRC recommends that the Education (Northern Ireland) Order 1998 be amended to remove Section 4(1)(c) to ensure that restrictive interventions are not permitted to maintain good order and discipline but only as a measure of last resort for the safety of the child or others. Guidance from the Department of Education should be updated to reflect this. In the interim, Departmental guidance should be amended to expressly address the risk of non-compliance with ECHR in relation to section 4(1)(c).

3.28 The NIHRC recommends that the guidance is amended to include explicit reference to Article 5 of the ECHR, including clear guidance to support staff in identifying when restrictive interventions may amount to a deprivation of liberty. Guidance should emphasise critical factors for decision–making, including the degree, duration, intensity and manner of the intervention, rather than focussing solely on the type of intervention used.

3.29 The NIHRC recommends that the use of seclusion is prohibited in all but the most exceptional, time-limited situations where it is necessary to prevent immediate and serious harm. The guidance should emphasise the significant risk that seclusion, in certain circumstances, may amount to a deprivation of liberty under Article 5 of the ECHR, which cannot be authorised under the current arrangements.

3.33 The NIHRC recommends that the guidance is amended to include explicit reference to Article 14 of the ECHR and its interaction with other ECHR rights. This should include guidance on the need for individualised, needs-based approaches, the use of reasonable adjustments and the importance of monitoring to identify and address any disproportionate use of restrictive interventions.

4.5 The NIHRC recommends that the draft guidance is amended to ensure that any intervention which involves directing a pupil to withdraw from their environment should be subject to appropriate recording, monitoring and review. The guidance should emphasise that withdrawal spaces must be voluntary and not used in a manner that may give rise to an interference with Article 5 of the ECHR.

4.7 The NIHRC recommends that the Department of Education publish an annual report which contains disaggregated data on the use of restrictive practices across all educational settings in NI, setting out the techniques used (how often) and reasons why; whether any significant injuries resulted; and details of ongoing strategies for bringing about the minimisation/elimination of the use of restrictive practices in educational settings in NI.

4.10 The NIHRC recommends that all educational practitioners who may use restrictive practices must receive adequate and effective training on when it is appropriate to use these measures and how to do so safely. This training should include relevant human rights standards and be sensitive to the additional needs of children and young people with specialised educational needs and disabilities.