The Court of Appeal has clarified the legal framework governing the use of force and restraint in special schools, ruling on the balance between safeguarding a child's welfare and maintaining safety among other pupils and staff. The judgment was delivered on appeals concerning a special school’s liability in incidents involving a former pupil with behavioural difficulties.

The case involved a child, anonymised as FXS, who was a residential student at the Mulberry Bush School between the ages of nine and eleven. The school is operated by a private limited company and registered charity. Claims brought by the child, through his father as litigation friend, included allegations of battery and false imprisonment arising from several episodes during his time at the school.

The High Court had previously ruled in favour of FXS, awarding compensatory and aggravated damages related to three specific instances where he was restrained face down, as well as incidents where a towel was tied around the handle of his bedroom door to prevent exit, which was found to constitute false imprisonment. The defendant school appealed against these decisions.

In the Court of Appeal’s decision, Lord Justice Popplewell emphasised that schools providing accommodation have a legal duty under Section 87 of the Children Act 1989 to safeguard and promote the welfare of children in their care. This duty requires a careful balancing act when the welfare of one child must be weighed against the safety and wellbeing of others.

The court considered the lawfulness of the use of force within the statutory framework provided by Section 93(1) of the Education and Inspections Act 2006. This provision allows reasonable force to be used to prevent harm, protect property, and maintain good order and discipline in schools. Importantly, the court extended this reasoning to include not only physical contact but also temporary detention or seclusion as forms of force that may be lawfully employed.

Lord Justice Popplewell noted that seclusion or temporary detention is often implemented through physical barriers or coercion without direct contact, and is recognised as a behaviour management technique akin to a “time out.” The court found no legal justification for distinguishing between physical restraint and enforced seclusion in this context, given their shared objective of managing behaviour and preventing harm.

Regarding the face-down restraint incidents, the court upheld the lower court’s finding that the force used had constituted battery because it was not deemed reasonable or proportionate under the circumstances. However, the court overturned the award of aggravated damages, stating that the conduct did not meet the threshold for egregious behaviour.

Conversely, the Court of Appeal reversed the false imprisonment ruling related to the towel incidents. It held that the confinement in those cases was a lawful and proportionate exercise of the school’s duty and statutory rights under the Children Act and Education Act.

The judgment reflects a nuanced approach to the complex issues around managing challenging behaviour in residential special school settings, reinforcing that any use of force or restrictive practices must always be reasonable, proportionate, and justified within the statutory duties owed to all pupils.

Lord Justices Moylan and Bean concurred with the decision. The parties were represented by solicitors from DWF Law LLP and Leigh Day.