Ireland has a long and shameful history of failing to adequately safeguard children or place their rights first. This is particularly true of children with an intellectual disability, Autistic children and children with disabilities generally. For many years, our organisations and communities have highlighted the use of inappropriate restraint in Irish schools. These practises have seen children experience unexplained injuries, endure major trauma and distress and have their movements unlawfully restricted. We have patiently awaited guidelines from the Department of Education since 2018. During that time, children have continued to experience unexplained injuries and inappropriate restraint whilst the Department has sought to minimise its role and responsibility in proactively safeguarding children. The Department of Education published ‘Understanding Behaviours of Concern and Responding to Crisis Situations Guidelines for Schools in Supporting Students’ on Thursday the 12th of December 2024. The guidelines represent the weakest level of protections which can be given to those most at risk of abuse or injury. They have been published in a context in which the advice and concerns of Ireland's human rights institutions have been ignored and during a period in which a caretaker government was in situ and the Oireachtas not in session.
We are urging the Minister for Education and Minister of State for Special Education and Inclusion to instigate a child protection review of the guidelines, and the reporting mechanism on the use of seclusion and restraint in schools, prior to their taking full effect in September 2025.
We believe this is of the upmost importance because:
1. The guidelines lack a firm evidence base: The Department has reported that they have piloted the guidelines prior to publication. No report of the pilot was drafted or published meaning a firm evidence base, which gives due weight to the views of students and parents, has been produced.
2. The reporting mechanism is not compliant with Children's First Legislation: The guidelines require schools to refer instances of restraint to the NCSE. The NCSE will have no power to investigate these incidents or a formal referral pathway to Tusla, the appropriate statutory agency to receive such concerns as set out under the Children's First Act. The Department is thus failing to put in place systems which robustly safeguard children.
3. The reporting mechanism does not prioritise children's rights or the voice of the child: The Department has been at pains to note that the voices of all stakeholders have to be given equal weight. This is not a child-centred or rights-based approach which prioritises those most at risk of restraint or injury.
4. The reporting mechanism falls foul of Ireland's international human rights obligations: The guidelines create a system which is inadequate to proactively safeguard children. This falls below the standards expected by the UNCRC, UNCRPD and the European Convention on Human Rights. It also fails to meet the standards expected of the Department of Education under its public sector duty.
5. The reporting mechanism is weaker than the protections which already exist in health, social care, mental health and incarceration settings in Ireland: Robust mechanisms are already in place to protect both service users and employees in health, social care, mental health and incarceration settings in Ireland. That children who access HSE services will have greater protection in those settings that in school makes little sense and ignores best practise approaches already in operation in the jurisdiction.
6. The reporting mechanism was published at a time in which adequate scrutiny and political accountability was sorely lacking: Given the extensive wait for the publication of the guidelines and the contested nature of their content, we believe it was wholly inappropriate for the Department to publish the document prior to the formation of the new government and at a time in which the opposition was constrained in its ability to scrutinise the guidelines.
7. The reporting mechanism continues to lack adequate independence or oversight: The guidelines as published will continue to see schools investigate instances of restraint, without any requirement to put in place school policy, clear pathways of referral to appropriate statutory authorities or the requirement of the Inspectorate to include compliance with the guidelines in Child Protection Inspections.
8. The guidelines will not safeguard children - particularly those disproportionately affected by seclusion and restraint: We are of the firm view that the guidelines that have been published will not robustly safeguard children. We believe your failure to act now will inevitably lead to more Autistic children and children with intellectual disabilities experiencing restraint, injury and trauma.
