The Use of Pain to Restrain Children – A Response From The Department for Education [Video]

Mark Dawes here once again and I’m just doing this video to follow up on a video I did a while ago about the use of force on children and particularly any use of force that may cause discomfort, harm or pain.

Because there’s a drive at the moment by a particular lobbying group to ban or to make illegal should I say any restraining technique with a child that causes pain.

Now I did a video on that and we actually had about three and a half thousand views on Facebook alone, God knows how many on YouTube.

My Correspondence To The Government

But following that, I actually wrote to the Government and I got a reply so I thought I’d read you what I wrote then I’ll read you their reply.

I wrote to them July the 3rd 2017 and I said,

“Dear Sir/Madam,

I write to you concerning the following paragraph in the Guide to the Children’s Homes Regulations including Quality Standards 2015. Namely, quality standard 7 (9.51) which states: “Restraint that deliberately inflicts pain cannot be proportionate and should never be used on children in children’s homes.”

The above statement is contrary to provision provided by common and statute law.

In addition, there may be extreme or exceptional occasions where cogent reasons exist where a restrictive intervention, one that may cause discomfort, harm, or even pain, may be necessary in the best interest of the child to protect the child from a greater harm.

Also, if a harm were allowed to occur, which could have been prevented by the use of a more restrictive intervention, because of this statement, that could amount to negligence and in a serious case, possibly even willful neglect (see section 20 of the Criminal Justice and Courts Act 2015), as well as a breach of Article 2(1) of the Human Rights Act 1998 should a death occur.

Therefore, please advise who would be liable if quality standard 7 (9.51) was followed to the letter and resultant harm occurred.”

Now as usual with Government, it takes them a while to reply. But they did, and this is the reply I got.

Now I know some of you are going to be screaming at me on this one, particularly you Mark Williams even though you’re retired because you know this already, so (and my apologies for this) I’m teaching those of you that know this how to suck eggs.

But the important part about this is that there are still people out there following guidance that isn’t law.

But let me read you what they sent anyway.

The Governments Response

It says:

“Dear Mr Dawes, Thank you for your email to the department of education regarding sections of the guide to the Children’s Homes Regulations including the Quality Standards 2015 (the Guidance) relating to restraint.

Your query has been passed to me as a member of the team responsible for children’s social care policy.

The guidance and regulations for children’s homes are designed to help children’s homes implement regulations effectively and provide the highest quality of care and safeguarding to a group of highly vulnerable young people.

Paragraph 9.51 of the guidance must be read in context with the remainder of that section and the Children’s Homes Regulation 2015 as a whole.

It is important to note that the prohibition on using force which causes pain does not prevent restraint where it is deemed necessary and appropriate.

“Restraint” is defined in Regulation 2.1 of the 2015 regulations as being the use of force or restricting liberty of movement.

Regulation 20 of the 2015 Regulations sets out the circumstances when restraint may be used which includes in order to prevent injury to any person, serious damage to property or to prevent a child from absconding.

Paragraph 9.50 of the guidance confirms that where restraint includes the use of force, that the force must be no more than is necessary and should be applied in a proportionate way.

This is described as being the minimum amount of force needed to avert injury or serious damage to property for the shortest possible time.

This is consistent with the lawful use of force against another person and strikes an appropriate balance between permitting the use of force where necessary and avoiding if being used inappropriately.

Paragraph 9.55 of the guidance is clear that restraint carries risks including physical injury but that this must be considered very carefully before restraining a child.

This acknowledges that pain may result from a restraint, however, it cannot be the primary purpose of using force.

With regards to the question of who might be considered liable in the event of harm where the guidance and the legislation is followed, we do not think it would be helpful or appropriate to speculate on liability in theoretical circumstances.

I hope you find the above information helpful.” etc., etc., etc.

So What Does That Tell Us?

Well it tells us nothing new.

It tells us what all of us, particularly those of us in the NFPS family, already know.

Providing we use force that’s reasonable in the circumstances and we use it to prevent harm to an individual or another or to prevent serious damage to property, and that reasonable force used was is necessary in the circumstances and proportionate to what harm could occur if it wasn’t used, that’s all we really need to do.

The Guidance is Confusing

So the Guidance to the Regulations is actually a little bit of a red herring because it’s actually thrown a curved ball in there and it’s confusing a lot of people.

But here’s a question that I’d like some of you to think about. Particularly those of you commissioning training.

What’s Your Liability If You Blindly Follow The Guidance?

If you follow the Guidance and you decide that you will not use any technique that may cause discomfort, harm, or pain and omit that from a training syllabus and operational use and an injury or death occurs that could’ve been prevented by the use of a more restrictive technique, then there is an absolute liability associated with that.

Now the Department of Education, are not going to speculate on that liability because they say it is “theoretical”, but legally it’s not theoretical at all.

It is actually called an omission.

That means someone will have been negligent.

Wilful Neglect

Also, if serious harm occurs that could’ve been prevented, there’s a potential there for wilful neglect and that is a very very serious offence.

Anyway, I just want to leave you with that thought.

I just wanted to let you know that we’ve had the response from the Government and that’s the response we’ve had and for those of you that have trained with us you’ll already know this stuff.

For those of you considering training with us on our BTEC Level 3 Restraint Instructor Award Course, we’d love to have you join us, and when you do you’ll learn a lot more as well.

Thank you so much for watching and/or reading this blog land feel free to share.

Speak to you soon.

Best Regards

Mark Dawes

PS:The video below is the one I am referring to in the video and blog post above.