Do you dare make contact?
Most teachers get through their working lives with no need to worry about falling foul of the law and most get through a career without being accused of anything more serious than a rare or temporary lack of judgment. The difficulty when it comes to teachers understanding the full extent of their rights and responsibilities lies in the fact that there are some fairly hefty misconceptions doing the rounds in our staffrooms. Nowhere is this more true than when it comes to physical contact with pupils.
During sessions with trainee teachers, as well as those already in service, I regularly ask people what they think the law says about touching pupils. The immediate stern-faced replies always advise against doing so, which is perfectly sensible and, undeniably, the safest course of action if we don't wish to have our actions misconstrued. Following this initial reaction, someone and it's usually a colleague from the primary sector asks about the situation they encounter on a daily basis where a child runs into the classroom in the morning and, as a matter of course, gives them a cuddle. What is the teacher supposed to do here? This usually prompts a number of queries: what if, for example, a child is hurt or needs comforting? And what about those teaching situations where a physical action such as playing an instrument or handling a piece of equipment is best demonstrated by a teacher actually guiding or supporting the pupil?
The answer to these questions lies in the same place as the key to all good teaching through knowledge and preparation on the part of the teacher.
So, the first things teachers need to be aware of are the policies and practices on physical contact that originate from statutory regulations and, most importantly, how these are applied in their particular school. When it comes to physical contact with pupils, the law acknowledges that there are occasions when pupils may need physical comfort and, of course, actual physical help, but is insistent that "staff should use their discretion in such cases to ensure that what is normal and natural does not become unnecessary and unjustified contact, particularly with the same pupil". The same advice from the Department for Children, Schools and Families (DCSF) goes on to warn against attributing the touching of children to a particular teaching style or approach. This is excellent guidance, reminding teachers that it is how actions are interpreted rather than how they are intended that is critical to how a teacher's behaviour will be judged.
The statutory advice and guidance about this subject and, indeed, most matters pertaining to teachers and the law can be found on the websites of the teacher unions (nasuwt.org.uk, nut.org.uk, pat.org.uk, atl.org.uk and eis.org.uk) the Teachernet site (teachernet.gov.uk) or, if anyone wants absolute chapter and verse, from the DCSF circulars available at dcsf.gov.uk.
However, for most teachers it is how statute is interpreted and acted upon day-to-day that is of central importance. This is where the school comes in and it is a good time to remind ourselves of a fact of employment life: teachers must act on the policies of their school as decided by the governing body, whose decisions are applied through the actions of the head.
To illustrate how this works, let's go back to the example of the cuddling pupil. If the head, through documentation available to staff, has let it be known that the school's policy on physical contact is one that broadly follows the DCSF guidelines, then a brief cuddle is probably entirely acceptable. If, however, in the highly unlikely event that the head has said that the school's policy is one of absolutely no contact in any circumstances whatsoever, then it would be extremely unwise for a teacher to contravene that instruction. Where a teacher is uncertain about what is acceptable, it is critically important that any concerns are discussed with the head or the appropriate line manager.
When it comes to the matter of physical contact in the course of teaching, there are further sources of support and advice for teachers. This comes through particular professional bodies associated with subject areas such as the Association for Physical Education (afpe.org.uk) or the Association for Science Education (ase.org.uk). A flavour of the sort of advice available comes from the website of the Child Protection in Sport Unit (thecpsu.org.uk) which explains that "physical contact in sport should always be intended to meet the child's need, not the adult's" and that "unless the situation is an emergency, the adult should ask the child for permission."
As long as teachers comply with the advice given by their head, who will be acting in accordance with legal statute, along with that of a reputable public body such as recognised subject associations or trade unions, then they will have fulfilled their obligations according to the law. They will also have protected themselves against potential claims of negligence.
There is no procedure, statute or regulation that will protect the lazy, the dishonest or the malicious. Teachers cannot use the "cover" of acceptable physical contact to punish or reprimand a child. Under no circumstances is this an acceptable course of action.
But what about the occasional necessity of physically restraining a child? Once again, the law is unequivocal. In the event of pupils potentially harming themselves or other people, damaging property or disrupting the good order of the school, it is permissible for a teacher to use "such force as is reasonable in certain circumstances to prevent" this from happening. However, my suspicion is that for most teachers two questions immediately spring to mind: what is meant by reasonable? and what if I'm not physically confident enough to intervene?
Firstly, no law can be absolutely exact as to what constitutes reasonable force, but there is, for example, an obvious difference between shepherding someone with a hand in the small of the back and twisting their ear. If and it's a big if a teacher decides to intervene, then all sorts of considerations about the size, age and temperament of the pupil involved will have to be made. Once again, a sensible head will have issued clear guidelines to all staff beforehand and teachers should demand such training and information as a statutory right.
However, for many teachers in many situations, immediate physical intervention may simply not be an option. In these circumstances it is imperative that teachers have been given the information about who to send for in situations beyond their control and that they act promptly and effectively to summon such help.
In the meantime, teachers should do all they can to defuse the situation: standing by is simply not an option.
Most teachers will never come close to any sort of courtroom in the course of fulfilling their professional duties and they can best protect themselves by knowing procedures and acting on advice from reputable source *
Jon Berry is programme director for the PGCE secondary course at the University of Hertfordshire, and author of Teachers' legal rights and responsibilities: a guide for trainee teachers and those new to the profession (University of Hertfordshire PressNational Union of Teachers)
At a glance: comforting pupils
There are times when teachers may physically comfort a pupil, but they should use their discretion to ensure that contact does not become unnecessary and unjustified. A particular teaching style should not be used to justify touching children: it is how the touching is interpreted, rather than how it is intended, which determines whether or not it is acceptable.
At a glance: restraining pupils
Teachers can use reasonable force to prevent a pupil potentially harming themselves or another person, damaging property, or disrupting the good order of the school. There is no universal definition of what constitutes reasonable force.