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Taking liberties with detention

As a Scottish pupil prepares to take her local authority to court, Chris Lowe clarifies the situation in England and Wales

Teachers in Scotland may lose their right to impose detentions on pupils if a 15-year-old girl wins her case in the Court of Session in Edinburgh.

Could this happen in England and Wales?

Freya Macdonald is suing Moray Council because she believes she has had too many detentions. She claims that Article 5 of the European Convention on Human Rights, the right to liberty and security, makes it illegal to detain children in school against their will.

Her solicitor argues that schools should seek a court order every time they wish to impose detentions because Article 5 says educational detentions of minors "must be by lawful order".

Lawyers in England and Wales might, however, reason that all detentions south of the border are lawful as they stem from the legal duty laid on governors and heads to "regulate the conduct of pupils".

The fact that convention rights cannot override primary legislation further strengthens the position in England and Wales, where detentions, even without parental consent, have been sanctioned by Parliament. But before detentions can be imposed legally, heads must inform all parents, pupils and staff that they may be used.

Detention can be imposed by the head or other authorised teachers. It must be "reasonable in all the circumstances", and the pupil's parents must be given at least 24 hours' notice in writing. Where parents do not live together, it is sufficient to notify one parent or someone with parental responsibility.

Notice of the detention can be handed to a parent, delivered by hand, sent by post or by any other effective method. The notice must indicate why the detention was given, where and when it will take place and for how long.

Heads can assume the notice has been received, even without a response. By law, schools must consider:

* whether the detention is proportionate to the circumstances;

* any relevant special circumstances, including the pupil's age; l any special educational needs or religious arrangements affecting the pupil;

* travel arrangements afterwards.

Parents can object to a detention giving their reasons, and schools must take them into account. They can then revoke or alter the sanction, or simply go ahead with it. In this case it would be politic to record the reasons for the detention.

Article 5 of the ECHR; DfEE Circular 1099; and s 550B Education Act 1996

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