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FXS v The Mulberry Bush: Court delivers significant ruling on school accountability and child welfare

December 2024

Organisation Ltd [2024] EWHC 1406 (KB). This followed a liability trial earlier this year in respect of complaints about the claimant’s treatment at Mulberry Bush School, a non-maintained special school providing residential care and education, and day placements, for young children who have experienced emotional damage in infancy and early childhood.

The claimant, now an adult but aged nine at the time of placement with the school in 2008, had a diagnosis of Autism Spectrum Disorder (‘ASD’) and exhibited extremely challenging and, at times, violent behaviour during his time at the school which necessitated frequent physical interventions. It was alleged that the school had subjected the claimant to restraint with excessive force and unlawful confinement towards the end of his time there in 2009. The claimant was said to have been subjected to face-down restraint on several occasions, each constituting battery, in addition to being falsely imprisoned many times, in some cases for several hours. In addition, it was alleged that the school’s conduct towards the claimant, including by failing to manage his behaviour appropriately, amounted to negligence.

The law and applicable guidance

• Battery

The court observed that, “any touching of another person, however, slight, may amount to a battery.” (Collins v Wilcock [1984] 1 W.L.R. per Goff LJ).

Whilst most of the physical contacts of ordinary life are impliedly consented to, and therefore not actionable, “In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case.” (Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871 per Goff LJ)

In the education context, section 93 of the Education and Inspections Act 2006 provides that a person may use such force as is reasonable in the circumstances for the purpose of preventing a pupil from:

• committing any offence;
• causing personal injury to, or damage to the property of, any person (including the pupil themselves);
• prejudicing the maintenance of good order and discipline at the school or among any pupils receiving education at the school, whether during a teaching session or otherwise.

Guidance relevant to the school’s conduct in the present case was that issued by the Department for Education (DfE) in July 2002, namely its ‘Guidance on the Use of Restrictive Physical Interventions for Staff Working with Children and Adults who Display Extreme Behaviour in Association with Learning Disability and/or Autistic Spectrum Disorders’ (the ‘2002 Guidance’). The 2002 Guidance provides that any physical intervention must be proportionate and involve the minimum necessary force and that, “Where possible, there should be careful planning of responses to individual children and adults known to be at risk of self-harm, or of harming others.” It makes a significant distinction between planned and unplanned interventions. Planned interventions will involve the use of pre-arranged strategies, based on risk assessments and agreed in consultation with the child’s carers and those with parental responsibility. Such interventions are to be implemented under supervision from an appropriately trained staff member and recorded in writing.  Unplanned interventions, by contrast, occur “in response to unforeseen events”.

Furthermore, the school’s own behaviour policy (the ‘Policy’) provided the following:

“Guidance on the use of physical restraint:

• Only use a physical restraint if you have been trained in the use of [PROACT].
• Only use a physical restraint if a child is in danger of hurting her/himself, yourself or another person, causing non-trivial damage to property, or seriously disrupting another child.
• Only use a physical restraint if other forms of intervention have been tried and preventative steps are unsuccessful. These may include talking, comforting, calming, withdrawing yourself from the situation. It is not permitted to restrain children face down .” [emphasis added]

 

• False Imprisonment

The court observed that false imprisonment is a tort of strict liability, established on proof of the fact of imprisonment (including by means of physical barriers or threats of force or legal process) without lawful authority. It is no defence that the defendant might have honestly and reasonably believed that they had the necessary authority.

Relevant to this, the Policy recorded that the school has no approval under the Children Secure Accommodation Regulations 1991 and therefore “[t]he locking of a child or children in a single room at any time, even when accompanied by a responsible adult or adults” is not permitted.

The Complaints

The complaints of battery related to several incidents where the claimant was restrained in a face-down position in response to violent behaviour.

The complaints of false imprisonment concerned some 14 occasions on which the claimant was imprisoned using the ‘towel method’ in response to violent behaviour (this involved the looping of a towel around the bedroom door’s inner handle which is then used to pull the door to, enabling a pupil to be kept in their room whilst retaining a gap enabling staff to observe and communicate with them).

Findings

In respect of the battery allegations, the court found that the claimant was unlawfully restrained on three occasions, constituting acts of battery.

On each occasion, the claimant was restrained in a face-down position. Face-down restraint was not permitted by the Policy and the member of staff involved had received no training in applying face-down restraint, increasing the associated risk of harm from its use. Furthermore, the use of face-down restraint could not be justified on the basis that the member of staff was responding to an emergency situation. Not only did the Policy not provide for such an exception, but the claimant’s behaviours were well known prior to each instance of unlawful restraint, the court accepting the submission that, “His unpredictability was entirely predictable and was a key feature of his behavioural issues.”

Noting the important distinction in the 2002 Guidance between planned and unplanned interventions, the court found that the claimant’s integrated treatment plan (‘ITP’) included no record of a risk assessment in respect of different intervention techniques or of any consultation having taken place with the claimant’s parents on the physical intervention strategies to be used. The 2002 Guidance provides that the setting should ensure “that the number of staff deployed and their level of competence corresponds to the needs of children and service users and the likelihood that physical interventions will be needed. Staff should not be left in vulnerable positions.” The member of staff who had restrained the claimant on the occasions in question was the same size as the claimant, a factor which the court found called into question the appropriateness of their being left in situations where they may have had to restrain the claimant alone (especially since on other occasions multiple staff members had been required to restrain the claimant safely). The court concluded that they should not have been left to work with the claimant alone if physically incapable of restraining him in accordance with the Policy.

As to the complaints of false imprisonment, the court found the use of the towel method to be a planned physical intervention in that there was no evidence that it was implemented in the context of an “unexpected” event. It followed again, therefore, that the nature of any physical intervention should have been agreed in advance by the school team with the claimant/his parents, incorporated into the claimant’s ITP and implemented under supervision from appropriately trained staff. In the circumstances the court concluded that the claimant’s seclusion by means of the towel method amounted to unlawful imprisonment.

Notwithstanding these conclusions, the court did not accept that the school had acted negligently and breached the duty of care, competence and skill to be expected of it in its care of the claimant. The school’s approach to the claimant was, on the whole, a reasonable one and the fact that the strategies it implemented for managing his behaviour did not ultimately work did not mean that they were not appropriate, nor was it negligent not to have attempted alternative techniques at an earlier point in time (the likely efficacy of which was doubted in any event). The court had found that a number of physical interventions (those not involving face-down restraint) were not assaults and determined that the claimant was, for the most part, restrained only “as a last resort in the context of a well-managed school environment” and with proper justification. It also observed that those interventions which were found to have constituted battery/unlawful imprisonment would have been lawful if the Policy and the 2002 Guidance had been followed, or if the claimant’s behaviour had been unexpected.

The court went on to award basic and aggravated damages for all instances of battery and false imprisonment totalling £18,900.

Comment

The decision provides an important reminder for educational institutions of their potential exposure to claims arising from physical interventions, particularly those responsible for pupils who frequently exhibit challenging behaviour.

To reduce such exposure, it is crucial not only that a school’s policy complies with the applicable law and guidance (currently the DfE’s July 2013 advice note ‘Use of reasonable force Advice for headteachers, staff and governing bodies’) but also that staff are fully familiar with the policy and receive appropriate training so as to implement it safely and effectively. All physical interventions must be carefully recorded so that the school can evidence the appropriateness of the action taken.

In particular, the case highlights the importance of determining restraint strategies in response to those pupils where challenging behaviour is to be expected. In such instances, prior consultation with carers/those with parental responsibility as to the nature of any proposed physical intervention should serve to avert any subsequent complaint.

If you have any questions on the content of this article, please contact the authors.

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