FXS v Mulberry Bush Organisation Ltd - Battery and False Imprisonment

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  FXS (Through His Father And Litigation Friend JLM) v Mulberry Bush Organisation Ltd [2026] EWCA Civ 415 (01 April 2026)

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[2026] EWCA Civ 415 | | |
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Neutral Citation Number: [2026] EWCA Civ 415

Case No: CA-2024-002626

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

Ms Margaret Obi (sitting as a Deputy High Court Judge)

KB-2020-001662

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/04/2026

Before :

LORD JUSTICE BEAN

(Vice-President of the Court of Appeal, Civil Division)

LORD JUSTICE MOYLAN
and

LORD JUSTICE POPPLEWELL

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Between :

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| **** | FXS (through his father and litigation friend JLM) | Claimant/Respondent |
| **** | ****

- and ?

**** | **** |
| **** | Mulberry Bush Organisation Limited | Defendant/Appellant |

---

---

Catherine Foster (instructed by DWF Law LLP) for the Defendant/Appellant

? Amelia Walker (instructed by Leigh Day) for the Claimant/Respondent

????

Hearing date : 4 February 2026

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Judgment Approved

This judgment was handed down remotely at 10.30am on April 1, 2026, by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lord Justice Popplewell:

Introduction

1. In 2008-2009 the Claimant was a child aged between 9 and 11 with challenging behavioural problems.? He was a residential pupil at the Mulberry Bush School ('the School'), a special school run by the Defendant ('Mulberry Bush'), a charity and a private limited company.? He brought proceedings against Mulberry Bush, by his father as his litigation friend.? Because he was a vulnerable child and remains a vulnerable young adult, his name has been anonymised and so necessarily has that of his father.? I will refer to them as FXS and 'the father' respectively.?
3. Three causes of action were advanced.? One was a claim in negligence in relation to many aspects of his care at the School, including allegations of inappropriate and excessive restraint and failing to manage his behaviour appropriately, which was said to have contributed to his subsequent placement in a mental hospital setting.? There was also a claim that three incidents in which he had been restrained face down constituted the tort of battery ('the face down incidents'); and that incidents in which a towel had been wrapped around the inside handle of his bedroom door, and the door pulled to from the outside, constituted the tort of false imprisonment ('the towel incidents').? The trial was heard by Ms Margaret Obi, then sitting as a Deputy High Court Judge before her full-time appointment to the High Court Bench.? She dismissed the claim in negligence but allowed the claims in battery and false imprisonment.? She awarded compensatory damages of ?2,000 for each of the three battery incidents, totalling ?6,000; and aggravated damages of a further ?4,000 for those incidents.? In respect of the towel incidents, she held that there were fourteen such incidents amounting to false imprisonment; she awarded compensatory damages of ?2,000 for the incident on 15 May 2009, which she said lasted for nearly 5 hours, and ?300 for the other thirteen, totalling ?5,900; and further aggravated damages of ?3,000.
5. Mulberry Bush appeals against the liability findings; and in the alternative against the awards of aggravated (but not compensatory) damages.
7. The facts
8. The School is approved by the Department for Education ('DfE') as a non-maintained special school which provides 38 weeks a year of residential care and education, as well as day placements, for children aged 5-12 years who have experienced severe emotional damage in infancy and early childhood.? It has a high reputation as a leading special school in its field, graded then and now by Ofsted as "Outstanding".
10. FXS was a looked after child in the care of the local authority pursuant to s. 20 of the Children Act 1989.? He was placed with the School in emergency circumstances on 19 June 2008, when he was aged 9.? There was a 12 week assessment, either side of the summer holidays, during which he went missing, necessitating the assistance of the police to ensure his return.? He remained at the school until September 2009, when he was withdrawn by the father who had obtained parental rights in May 2009.? FXS had just turned 11 when he left the School.? During his time at the School he presented frequent and severe behavioural challenges.? He was developmentally immature and often physically violent and aggressive, and verbally abusive. ?He was diagnosed with Autistic Spectrum Disorder ('ASD'). ?There were 117 occasions between June 2008 and September 2009 in which physical restraint had to be used, against a background of 550 recorded incidents of disruptive behaviour.? On one occasion he attacked a gap year volunteer in the face with a fork, with no apparent provocation and at a time when he had appeared calm.? The incidents with which this appeal is concerned mostly took place in the last few months of his time at the School, during which his disruptive behaviour escalated and he would often lash out physically.? This coincided with the time at which his father came back into his life and during which his father was expressing dissatisfaction with the School and a desire that he be moved to a specialist ASD school.
12. The Judge heard oral evidence from the father and from a number of witnesses from the School, notably William Long who was a therapeutic care worker at the School at the time, and the key worker responsible for FXS (and also personally involved in? many of the towel incidents); and Carol Day, the former Head of Group Living at the School, who had responsibility for supervising the care of pupils including FXS, and for reviewing incidents in which staff were involved.? The staff member involved in the face down incidents was Christina Pusey.? She was not called as a witness by the School.? The Judge drew no adverse inferences from this, holding that she could not reasonably have been expected to remember the incidents, that they were well documented, and that there was other evidence available.?
14. Mr Roberts, the head of Outreach who was responsible for staff training, provided a witness statement and his evidence was not challenged.? He explained that at the time, all staff were trained in the use of physical interventions through an accredited training programme called PROACT-SCIPr-UK ('PROACT').? The programme used four types of restraints: one-person escort; two-person escort; a wrap (one member of staff standing behind a child holding (wrapping) the child's arm across one another to ensure they are safe); and a supine (a two or three person restraint whereby the child is laid on the ground, on their back, with physical support from staff to the child's shoulders and arms). It did not involve any training in a technique of placing the child prone, face down, on the ground or another surface.? The School moved to Team Teach behaviour support training in or around 2010/2011, which did involve training in a face down restraint technique which was regarded as more effective; this was after the incidents which are the subject matter of the appeal.
16. Ms Day and Mr Long recalled aspects of FXS's behaviour and staff responses to it generally, but the principal evidence as to what happened in the face down incidents and towel incidents came from the notes which were made shortly after the incidents by the principal member of staff involved, and shown to FXS and signed off by him as accurate.?
18. The towel incidents involved wrapping a towel around the long handle, like a disabled toilet handle, on the inside of the door of FXS's bedroom, and pulling the ends of the towel from outside the room so as to pull the door to, without fully shutting it.? This would prevent FXS leaving the room but would not involve leaving him alone, with the member or members of staff at the door with a gap through which to communicate with FXS.? In his witness statement Mr Long said this of such incidents, on which he was not challenged in cross-examination:
20. "There were also occasional instances when a towel was wrapped around the door handle of the Claimant's room, enabling the door to be held slightly ajar so that the Claimant could be seen and spoken to inside but could not open the door to attack staff. This method was not used often, and only as a last-resort alternative if physical restraint was deemed to be ineffective or inappropriate. My recollection is that the Claimant sometimes found this method preferable to physical restraint, as it enabled him to use the space of the bedroom to express anger and calm down. In cases of extreme aggression or emotional distress this could be a safer and more effective way to de-escalate an incident."
21. Ms Day's evidence about the use of the towel method was summarised by the Judge as follows:
23. "The towel method was only to be used as a stopgap in highly charged and violent situations. No concerns were raised by Ofsted or the Oxfordshire Safeguarding Team about the use of this method and it was only deployed when it was reasonably necessary to enable the carers to protect themselves. The towel method reduced the risk of injury to staff members and the door was never closed; there was always a gap to allow the carer to maintain contact with FXS at all times. As soon as FXS stopped attacking the door would be opened. According to Ms Day, FXS was never trying to leave the room; he was trying to attack staff. In light of [the father's] continuing complaints, Carol Day sent an email on 1 July 2009 reminding her team of the guidance with regard to the use of the towel method. The email stated the towel method should only be used in the following circumstances:
25. " 1. If you are on your own or if there are more of you but you do not feel it is safe to go into the room to restrain. This may be if the child is throwing hard objects, so therefore to *protect yourself*.
26. 2. If the child has been restrained for a long time and you feel it is not healthy for him or her to continue and you want to try giving the child some space by backing away. If the child is attempting to attack, then holding the door *briefly** may break this dynamic."*
27. [emphasis in the original]"
28. **
29. **
30. The Judge also heard evidence from expert witnesses on the negligence/duty of care aspect of the claim.? For the Claimant there was evidence from Ms McKenzie, who was an experienced social worker in child protection.? For the School the evidence came from Mr Vince who was a care and education management expert.? The experts were asked to identify any particular incidents of restraint they regarded as inappropriate or unreasonable.? Ms McKenzie identified four, three of which were the 'face down incidents'.? Mr Vince did not accept that any of the recorded incidents were inappropriate or unreasonable. ?He pointed out that each physical restraint is unique and requires staff to act decisively and effectively in the moment, often in a matter of a few seconds to assess the presenting risk, to communicate to all involved and act to steer the situation to a "good enough" outcome.? The Judge was critical of Mr Vince's independence and of aspects of his evidence.
32. As to the towel incidents, the Judge described the expert evidence as follows:
34. "the experts agreed that whether the School's towel method amounted to a " deprivation of liberty " (it was agreed by Ms Walker that this term has a specific meaning and therefore references to deprivation of liberty in the Particulars of Claim should be read as a reference to false imprisonment) is a legal matter outside of their expertise. Mr Vince pointed out that the towel method was used to keep FXS's bedroom door ajar to allow staff to continue to communicate with him without being at risk of attack. He relied upon his own experience of having used a similar methodology in his own practice. He also relied upon a guidance document from 2019 which supports this approach. Ms McKenzie stated that the 2019 guidance post-dates the events in question and in response to the question " what other technique D should have utilised ", she stated that she " is not an expert in residential care ". It was Ms McKenzie's view that the towel was used to hold the door closed and any means to prevent FXS from leaving his room amounted to a ' deprivation of liberty'. It was Ms McKenzie's understanding that FXS was not under direct supervision as staff were not in his room but remained outside."
35. The Judgments
36. The Judge gave judgment on liability on 10 June 2024 after hearings occupying 10 days spread over the previous 16 months ('the Liability Judgment').? She gave a further judgment on damages and costs on 8 November 2024 ('the Quantum Judgment').? We would pay tribute to the clear and closely reasoned terms in which they were expressed.?
38. In the Liability Judgment she set out relevant legal principles at [61]-[65].? In relation to battery, she there referred to the long-established principle that any touching of another person however slight may amount to a battery, citing Collins v Wilcock [1984] 1 W.L.R. 1172, 1177C, and the further passage at p. 1177E-F in which Robert Goff LJ stated that so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subject to the lawful exercise of powers of arrest; and reasonable force may be used in self-defence or for the prevention of crime; and that apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life; and that 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 ?She stated that an intention to injure was not an essential ingredient of an action for trespass to the person citing Wilson v Pringle [1987] QB 237 at p. 249 G-H.? She also set out s. 93(1) of the Education and Inspections Act 2006 ('the 2006 Act') which provides:
40. "(1) A person to whom this section applies may use such force as is reasonable in the circumstances for the purpose of preventing a pupil from doing (or continuing to do) any of the following, namely?
41. (a) committing any offence,
42. (b) causing personal injury to, or damage to the property of, any person (including the pupil himself), or
43. (c) 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."
44. In relation to false imprisonment she identified that the ingredients of the tort were the fact of imprisonment and absence of lawful authority to justify it.? As to the former she referred to the speech of Baroness Hale in R (Jalloh (formerly Jollah)) v Secretary of State for the Home Department [2021] AC 262 at [24] as setting out the principles:
46. "As it is put in Street on Torts, 15th ed (2018), by Christian Witting, p 259 "False imprisonment involves an act of the defendant which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the defendant." The essence of the imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or legal process."
47. She went on to say that it was irrelevant whether or not the defendant honestly and reasonably believed that it had the necessary authority to detain FXS if, in fact, no such authority existed, citing R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19 at p. 32F and p. 35A-F.
49. She then referred to a document entitled "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" issued by the Department for Education and Employment ('DfEE') and the Department of Health ('DoH') in July 2002 ('the 2002 Guidance'), referring to paragraphs 3.1, 3.3, 3.4 and 3.8.? She referred to the School's Policy document in force at the time entitled "Handling Difficult Behaviour and Use of Sanctions". ?She identified that the latter stated, amongst other things, that physical restraints should only be used if the staff member has been trained in PROACT and if a child is in danger of hurting themselves or another person, causing non-trivial damage to property or serious disruption to other children.? She highlighted a section which said:
51. "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."
52. In her analysis and conclusion in respect of battery, she set out the notes of each of the three face down incidents, which require citation in full.? We set them out in slightly fuller terms than did the Judge, with our emphasis, which differs slightly from hers.? [CP] refers to Ms Pusey.
53. 16 June 2009 1800
54. [This incident followed FXS setting off the fire alarm at about 5.40 pm the previous day, and becoming agitated and being held in a 2-person supine earlier in the day at 3.30 pm]
56. [FXS's] bedroom... [FXS] trying to hit
57. [FXS] was separate[d] for setting the fire alarm off. ?After tea, [FXS] started trying to leave his room, and said he was going to set the fire alarm off again. ?[CP] stopped [FXS] by holding his forearms and reminded him, he could only have the door open, if he could be sensible in his room. ? [FXS] could not do this and started to hit and kick. [CP] held [FXS] in a wrap, but this was not effective, to protect herself [CP] held [FXS] on the floor, applying some weight to [FXS's] back.? [CP] called for support so that she could leave [FXS's] room and hold his door shut until he could take control of himself.?Dave Goodspeed assisted in helping [CP] leave [FXS's] room so that she could hold his door shut. Holding the door shut felt safer than one adult restraining [FXS].? [FXS] was eventually able to calm, but went on to have further unsafe incidents that evening.
58. ****
59. 29 June 2009 7.25pm
60. [This incident followed FXS setting off the fire alarm earlier in the day and being violent to staff; he had been held in a wrap and then a two person supine]? ?
61. ****
62. Jigsaw TV room / [FXS]'s bedroom
63. [FXS] trying to hit and bite
64. [FXS] was in the TV room with [redacted] watching a film. At 7.25pm [redacted] began trying to encourage [FXS] to watch him pretending to hump his duvet. [CP] ?asked [redacted] to leave the TV room, at which point [FXS] became unsettled saying 'hit her/kick her' to [FXS] also started swearing (sic). [CP] then asked [FXS] to go to bed. [FXS] used racist language. When [CP] told [FXS] he would no longer be getting his ice lolly that night, because of his behaviour, he started trying to hit [CP] in the face. CP protected herself by holding [FXS] in a wrap, face down on his bed.? [FXS] remained in this position for roughly ten minutes before being able to start talking about what could help him to now settle. [FXS] went on to settle ok, but sat out of the house 20 minutes to calm with Prince William about half an hour after the incident, and helped [CP] to collect supper.
65. [FXS] was prevented from hurting by hitting and biting.
66. Jay Oldfield was close by
67. ****
68. 15 September 2009 5.15 pm
69. [There were various incidents earlier in the day involving violent and disruptive behaviour from FXS]
71. 30 minutes (only ten in supine)
72. Supine
73. bit [CP's] arm twice
74. [FXS] was being supported to do his question 21's with [CP] on the bench outside Jigsaw. After doing roughly 2, [FXS] ran over to the swings. ?[CP] took [FXS] in touch support, telling him that he needed to do his question 21's before tea. ?[FXS] started attacking [CP] and bit her arm, so [CP] put [FXS] in a wrap and then pushed him onto the ground face down to protect herself, whilst she called for support. Paul Rutterford(?) and Liz Bosley then supported [CP] to put [FXS] into a supine. ?[CP] then left to attend to her bites. Paul and Liz held [FXS] on the floor in a supine, until he was able to sit up between them and calm.
77. The Judge referred to the evidence of Mr Long, Ms Day and Mr Vince about these incidents.? She was critical of the fact that none had referred in their witness statements/report to the Policy prohibiting face down restraint.? She rejected their evidence that these were to be interpreted as occasions where it might not be possible to employ a safe technique in a dynamic situation or that they were unplanned interventions.? She regarded the records as speaking for themselves and plainly showing that FXS was put in a face down situation in each of these incidents.? She referred to the fact that the Policy did not qualify the prohibition on face down restraint by reference to dynamic risk assessment or emergency situations; and that the 2002 Guidance makes an important distinction between planned and emergency responses, ?the latter only being justified when the behaviour is "unexpected" whereas the behaviour that FXS was exhibiting on these occasions was normal for him.? Mr Vince had agreed that planned physical intervention should be in an agreed plan and specific to a child, which had not happened with FXS.? At [114] she concluded that the face down incidents involved restraint contrary to the Policy.?
79. She appears to have treated that as conclusive of the legal issue on battery.? However she went on in the following paragraphs to address whether the face down restraints were reasonable, which she regarded as dependent on a number of factors including the content of the Policy, appropriate training and the age and size of the child.? She referred to the fact that FXS was about 4 ft 6 ins tall and on the 50 th centile of weight for his age at 33 kgs, and that Ms Day had referred to Ms Pusey being the same size.? She referred to the part of the 2002 Guidance which identified that the number of staff deployed and their level of competence should correspond to the needs of the children and the likelihood that physical interventions would be required; and that staff should not be left in vulnerable positions.? She accepted submissions on behalf of FXS that Ms Pusey's size put into question the appropriateness of her being left in a position where she might have to restrain FXS alone, especially as on other occasions a number of individuals had been required to impose effective restraint.? She rejected the suggestion that these were emergency or unforeseeable circumstances and that Ms Pusey was having to respond by way of a dynamic risk assessment.? She summarised her conclusions at [119] in these terms:
81. " Pulling these threads together. I am satisfied that the face-down restraints on 16 June????????? 2009, 29 June 2009, and 15 September 2009 were not reasonable for the following????????? inter-related reasons: (i) they were contrary to the Policy; (ii) Ms. Pusey had no training in applying such restraints; (iii) applying face-down restraints without appropriate training increases the risk of harm; (iv) given FXS's known behaviour profile there was no proper basis for an "emergency" or "dynamic" response; and (v) to the extent that Ms Pusey's size contributed to the need to improvise this was also a known factor and she should not have been permitted to work with FXS alone if she was unable to restrain him in accordance with the Policy."
83. In the Quantum Judgment, the Judge said a number of things which cast further light on her reasoning.? ?She said that:
85. (1) there is an inherent risk to safety in the use of face down restraints because they may cause breathing problems due to compression of the chest and airways;
86. (2) the records did not indicate that the position was accidental; rather FXS was held in a wrap in this position;
87. (3) the record of the 29 June incident suggested that it was for 10 minutes which is on any view a long time and without any indication of an attempt at prior physical restraint; and
88. (4) the 16 June incident involved sitting on his back whilst he was on the floor.
89. In relation to false imprisonment, the Judge did not set out the content of each report. ?I have set them out in Schedule 1 to this judgment.? The Judge referred to the incident on 15 May 2009 as involving the use of the towel for a period of nearly five hours from 5.15 pm until 10 pm (as I shall explain she was mistaken about this).? She rejected Ms Day's evidence in cross examination that the towel method was an unplanned or emergency intervention as inconsistent with her witness statement. ?The Judge referred to a meeting with a social worker on 14 September 2009 who had expressed a concern about the use of this method, and at which, the Judge said, it had been agreed not to use it, yet it had been used two and three days later.? She concluded that it amounted to "seclusion" and was a form of physical intervention.? She concluded that the seclusion of FXS through the use of the towel method constituted unlawful imprisonment, expressing her reasoning at [130] as follows:
91. "There is nothing in the Policy which describes the use of the towel method, and the circumstances in which it is appropriate to be used. Furthermore, there was evidence that the Local Authority disapproved of the strategy. However, the real difficulty with the evidence from Ms Day and Mr Vince was that the towel method was a physical intervention. It was also planned in the sense that there was no evidence before me that it arose within the context of an " unexpected " event. Therefore, there was a requirement for the intervention to be: (i) agreed in advance by a multidisciplinary or school team working in consultation with FXS and his parents; (ii) described in writing and incorporated into other documentation such as the ITP (or elsewhere in documents relating to him), and (iii) implemented under the supervision of an identified member of staff who has undertaken appropriate training. There was no documentary evidence to suggest that this had been discussed with FXS's parents."
92. It is tolerably clear that in expressing her reasoning in this way she was directly applying the criteria identified in section 3.8 of the 2002 Guidance.
94. I will address the Quantum Judgment below to the extent rendered necessary by my views on liability.
96. The law
97. Battery
98. Ms Foster submitted, on behalf of Mulberry Bush, that the Judge made an error of law in relation to the face down incidents because it is an essential ingredient of the tort of battery that there should be "hostile intent", relying in particular on Wilson v Pringle [1987] 1 QB 237.? ?I am unable to accept that submission.
100. In Collins v Wilcock [1984] 1 WLR 1172, the Divisional Court allowed an appeal against conviction for an assault on a police officer in the course of her duty because the officer had committed a battery on the defendant in taking hold of her arm, and so had not been acting in the course of the officer's duty.? Robert Goff LJ, giving the judgment of the Court, provided a typically penetrating analysis which bears citation in full:
102. "The law draws a distinction, in terms more easily understood by philologists than by ordinary citizens, between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another's freedom of movement from a particular place. The requisite mental element is of no relevance in the present case.
104. We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt C.J. held in Cole v. Turner (1699) 6 Mod 149 that "the least touching of another in anger is a battery." The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:
105. "the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner."
106. The effect is that everybody is protected not only against physical injury but against any form of physical molestation.
108. But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped: see Tuberville v. Savage (1669) 1 Mod Rep 3. Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is "angry, revengeful, rude, or insolent" (see Hawkins, Pleas of the Crown, 8th ed. (1824), vol. 1, c. 15, section 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception.
110. Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable's staff on the shoulder of a man who had climbed on a gentleman's railing to gain a better view of a mad ox, the touch being only to engage the man's attention, did not amount to a battery: see Wiffin v. Kincard (1807) 2 Bos. & Pul. 471; [1807] EngR 312; for another example, see Coward v. Baddeley (1859) 4 H. & N. 478; [1859] EngR 513. But a distinction is drawn between a touch to draw a man's attention, which is generally acceptable, and a physical restraint, which is not. So we find Parke B. observing in Rawlings v. Till (1837) 3 M. & W. 28, [1837] EngR 205, 29, with reference to Wiffin v. Kincard, that "There the touch was merely to engage [a man's] attention, not to put a restraint upon his person." Furthermore, persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty. 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."
111. In Wilson v Pringle [1987] 1 QB 237, this court was concerned with a case in which a schoolboy claimed damages for personal injury which he claimed had been caused by another schoolboy jumping on his back.? The defendant denied that he had done so and alleged that what had happened was that he had pulled a bag off the plaintiff's shoulder as an act of schoolboy horseplay.? The plaintiff sought summary judgment in trespass to the person.? The Judge gave summary judgment on the basis that the defendant's account involved the use of force without consent which was sufficient.? The Court of Appeal overturned the decision.? Croom-Johnson LJ, giving the judgment of the court, treated Tuberville v Savage (1699) 1 Mod 3 as authority for the proposition that for battery there must not only be deliberate touching but hostile intent (p. 246H).? Cole v Turner (1704) 6 Mod was treated as authority for the proposition that there must either be overt hostility or an intention to harm (at p. 247B and 248B).? At p. 248D he asked the question:
113. "What then turns a friendly touching (which is not actionable) into an unfriendly one (which is)?"
114. He cited the lengthy passage from the judgment of Robert Goff LJ in Collins v Wilcock which I have set out above, and said this at p.252-253:
116. "This rationalisation by Robert Goff L.J. draws the so-called "defences" to an action for trespass to the person (of which consent, self-defence, ejecting a trespasser, exercising parental authority, and statutory authority are some examples) under one umbrella of "a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life." It provides a solution to the old problem of what legal rule allows a casualty surgeon to perform an urgent operation on an unconscious patient who is brought into hospital. The patient cannot consent, and there may be no next-of-kin available to do it for him. Hitherto it has been customary to say in such cases that consent is to be implied for what would otherwise be a battery on the unconscious body. It is better simply to say that the surgeon's action is acceptable in the ordinary conduct of everyday life, and not a battery. It will doubtless be convenient to continue to tie the labels of the "defences" to the facts of any case where they are appropriate. But the rationalisation explains and utilises the expressions of judicial opinion which appear in the authorities. It also prevents the approach to the facts, which, with respect to the judge in the present case, causes his judgment to read like a ruling on a demurrer in the days of special pleading.
118. Nevertheless, it still remains to indicate what is to be proved by a plaintiff who brings an action for battery. Robert Goff L.J.'s judgment is illustrative of the considerations which underlie such an action, but it is not practicable to define a battery as "physical contact" which is not "generally acceptable in the ordinary conduct of daily life."
119. In our view, the authorities lead one to the conclusion that in a battery there must be an intentional touching or contact in one form or another of the plaintiff by the defendant. That touching must be proved to be a hostile touching. That still leaves unanswered the question "when is a touching to be called hostile?" Hostility cannot be equated with ill-will or malevolence. It cannot be governed by the obvious intention shown in acts like punching, stabbing or shooting. It cannot be solely governed by an expressed intention, although that may be strong evidence. But the element of hostility, in the sense in which it is now to be considered, must be a question of fact for the tribunal of fact. It may be imported from the circumstances. Take the example of the police officer in Collins v. Wilcock [1984] 1 W.L.R. 1172. She touched the woman deliberately, but without an intention to do more than restrain her temporarily. Nevertheless, she was acting unlawfully and in that way was acting with hostility. She was acting contrary to the woman's legal right not to be physically restrained. We see no more difficulty in establishing what she intended by means of question and answer, or by inference from the surrounding circumstances, than there is in establishing whether an apparently playful blow was struck in anger. The rules of law governing the legality of arrest may require strict application to the facts of appropriate cases, but in the ordinary give and take of everyday life the tribunal of fact should find no difficulty in answering the question "was this, or was it not, a battery?" Where the immediate act of touching does not itself demonstrate hostility, the plaintiff should plead the facts which are said to do so."
120. I have a number of difficulties with this reasoning.? Hostility seems a particularly unhelpful and impractical criterion if one can have the necessary hostility without a hostile intent, as envisaged at p. 248B of Croom-Johnson LJ's judgment ("If there is hostile intent that will by itself be cogent evidence of hostility.? But the hostility may be demonstrated in other ways."); and where it is merely the unlawfulness of the touching, however friendly and well meaning, which can establish hostility, which is the explanation given for the decision in Collins at p. 253B-C.? If friendly and well-meaning touching can be unlawful, it seems to be an abuse of language to describe hostile intent as a necessary ingredient. ?An unwanted kiss may be a battery (R v Chief Constable of Devon and Cornwall ex parte CEGB [1982] QB 458, 471), or indeed some ?other forms of inappropriate intimacy, which may exhibit the very opposite of hostility in the sense here being used.? ??
122. The suggestion that such a conclusion is required by authority is not supported by the cases cited.? Tuberville v Savage is not authority for the proposition that hostile intent is an ingredient of trespass to the person in the form of battery. ?That was not a case of battery but an allegation of assault in which no physical contact was alleged.? The person had put his hand upon his sword and said "If it were not assize-time, I would not take such language from you." ?Assault, of course, can be committed by a threat of the use of force without physical contact, but the decision in that case was that there was no assault because the person had made clear that he would not use his sword because the assize judge was in town.? The decision merely confirmed that an assault was not committed on the occasion in question because what was said did not involve a threat to strike (given that the assize judge was in town).? It does not refer to hostile intent even in the context of assault.? Cole v Turner provides the slenderest of support by containing the bald statement that " the least touching of another in anger is a battery" without reference to the facts of the case, which are not evident from the report.? A criterion of "angry, revengeful, rude or insolent", which is akin to "hostile", was rejected by Robert Goff LJ in Collins.? The case of Bentley v Brudzinsky (1982) 75 Cr App R 217 is a modern example of a case in which trespass by battery was established by an act expressly found not to be hostile, as is clear from the Justices' findings in that case and as described by Robert Goff LJ at p. 1179G of Collins.?
124. Nor do I consider it correct to describe Robert Goff LJ in Collins as seeking to put all aspects of the so-called "defences" to an action for trespass to the person (of which consent, self-defence, ejecting a trespasser, exercising parental authority, and statutory authority are some examples) under one umbrella of "a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life."? He recognised that there were separate categories of cases involving conduct which is with express or implied consent, such as shaking hands, conduct which would not easily fit within that framework but which is physical contact which is generally acceptable in the case of ordinary daily life, such as jostling in the underground, holding children, or an emergency surgeon operating on a patient; and further instances of lawful authority such as self-defence or statutory authority.
126. I am fortified in my view that the concept of hostile intent should form no part of the ingredients of the tort by the fact that Lord Goff of Chieveley, as he had then become, took that view himself in the House of Lords case of In Re F (Mental Patient; sterilisation) [1990] 2 AC 1, after considering what was said by the Court of Appeal in Wilson v Pringle.? At pp.72F to 73E he said:
128. "Of course, as a general rule physical interference with another person's body is lawful if he consents to it; though in certain limited circumstances the public interest may require that his consent is not capable of rendering the act lawful. There are also specific cases where physical interference without consent may not be unlawful? chastisement of children, lawful arrest, self-defence, the prevention of crime, and so on. As I pointed out in Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177, a broader exception has been created to allow for the exigencies of everyday life?jostling in a street or some other crowded place, social contact at parties, and such like. This exception has been said to be founded on implied consent, since those who go about in public places, or go to parties, may be taken to have impliedly consented to bodily contact of this kind. Today this rationalisation can be regarded as artificial; and in particular, it is difficult to impute consent to those who, by reason of their youth or mental disorder, are unable to give their consent. For this reason, I consider it more appropriate to regard such cases as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life.
129. In the old days it used to be said that, for a touching of another's person to amount to a battery, it had to be a touching "in anger" (see Cole v. Turner (1794) 6 Mod. 149, per Holt C.J.); and it has recently been said that the touching must be "hostile" to have that effect (see Wilson v. Pringle [1987] QB 237, 253). I respectfully doubt whether that is correct. A prank that gets out of hand; an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it?all these things may transcend the bounds of lawfulness, without being characterised as hostile. Indeed the suggested qualification is difficult to reconcile with the principle that any touching of another's body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass."
130. I would therefore define the ingredients of trespass to the person in the form of battery as requiring:
132. (1) the application of force, however slight;
133. (2) which is intentional not accidental (it is the force which must be intentional; there need not be any intention to cause harm);
134. (3) without the express or implied consent of the other person (recognising that in certain limited circumstances the public interest may require that their consent is not capable of rendering the act lawful);
135. (4) which is not physical contact which is generally acceptable in the ordinary conduct of everyday life; and
136. (5) for which there is not some lawful excuse (which will include certain contact with children, lawful arrest, self-defence, the prevention of crime, and so on).
137. False Imprisonment
138. In relation to false imprisonment, Ms Foster's argument was focussed on a submission that the towel method did not constitute "imprisonment" for the purposes of the tort because it did not impose a total deprivation of liberty.? I would reject that submission.? In Jollah, the Supreme Court rejected the submission that the jurisprudence on deprivation of liberty under article 5 of the European Convention on Human Rights, with its distinctions between total deprivation of liberty and restriction of liberty, is applicable to the tort of false imprisonment in domestic law.? At 24, Baroness Hale made clear that all that is necessary for the ingredient of imprisonment is some enforced restriction of liberty of movement within a confined area, the essence of which is being made to stay in a particular place, whether by physical barriers, threats or other methods of coercion.? Confining a child at a residential school to their bedroom by holding the door shut with a towel is such a restriction.? It is no less so by virtue of the fact that the door is not completely closed but has a space through which communication is possible: exit by the child is not possible through the space and the very purpose of the manoeuvre is to prevent the child from leaving the room.
140. The real question in relation to the towel incidents is not whether there was "imprisonment" but whether it was unlawful.? For the purposes of that question, and of examining whether the face down incidents constituted the tort of battery, it is necessary to examine more closely the particular legal framework governing care of children in schools in general and special schools in particular.
142. Powers and duties of schools
143. Common law
144. At common law, a school is under a tortious duty to take reasonable care to protect the health and safety of pupils within its charge, which extends to the protection of pupils from harm caused by other pupils.? This approximates to the standard of a reasonably prudent parent but must take account of the particular conditions of the school environment.? See Van Oppen v Bedford Charity Trustees [1990] 1 WLR 235, 250; Gower v London Borough of Bromley [1999] ELR 356, 359; and Bradford-Smart v West Sussex County Council [2002] EWCA Civ 7 at [28] to [30].?
146. In the context of children with special educational needs, Lord Slynn gave this warning in Phelps v Hillingdon London Borough Council [2001] 2 AC 619 at 655D, which is apposite to the issues in this case:
148. "The difficulties of the tasks involved and of the circumstances under which people have to work in this area must also be borne fully in mind. The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. But though claims should not be encouraged and the courts should not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded."
149. Statute
150. Section 87 of the Children Act 1989 provides that where a school provides accommodation for a child, it is under a duty to " safeguard and promote the child's welfare". ??This obviously involves seeking to safeguard and promote the welfare of all children in the school.? Where the conduct of one child jeopardises the welfare of one or more of the other children in the school, the duty remains one owed to all the children in the school, such that a balance needs to be struck.? The school will have to exercise a judgment as to how to promote the individual child's welfare to the extent reasonably possible in promoting the welfare of the other children.?
152. How that balance is to be struck in the case of use of force is governed by section 93 the Education and Inspections Act 2006 ('the 2006 Act'), not only in relation to the welfare of other children, but also in relation to potential injury to staff or other adults, damage to property, and the maintenance of good order and discipline in the school. Section 93(1) provides:
154. "(1) A person to whom this section applies may use such force as is reasonable in the circumstances for the purpose of preventing a pupil from doing (or continuing to do) any of the following, namely?
155. (a) committing any offence,
156. (b) causing personal injury to, or damage to the property of, any person (including the pupil himself), or
157. (c) 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."
158. Subsection (5) provides:
160. "(5) ? The powers conferred by subsection (1) are in addition to any powers exercisable apart from this section and are not to be construed as restricting what may lawfully be done apart from this section."
161. Section 93 follows ss. 91 and 92.? Section 91 is concerned with the lawfulness of disciplinary penalties.? Section 92 is concerned specifically with the lawfulness of detention outside school sessions as a disciplinary penalty.? Section 93(1) is concerned with the use of force in a care context as well as a disciplinary context.
163. Section 93(1) of the 2006 Act refers to the use of "force".? I would treat this as extending to the use of temporary detention or seclusion as well as force involving physical contact.? I say this for a number of reasons.? First it is natural in the school setting to talk of seclusion or temporary detention of a pupil as something they are forced to do.? The enforcement may be by physical barriers or may simply be by non-contact coercion.? Even a pupil who dutifully submits to an instruction involving seclusion or detention without complaint is in reality forced to do so by an implicit threat of sanction in the event of refusal.
165. Secondly, assault, battery and false imprisonment are all historically forms of trespass to the person, as Robert Goff LJ observed in Collins at p. 1177B (see also Professor Sir John Baker, The Oxford History of the Laws of England Volume VI 1483-1558, p.88; ? Anon (1348) Y.B. 22 Edw. III, Lib. Ass., pl.56; and Clerk & Lindsell on Torts, 24 th edn at para 14-01).? In R v Governor of Brockhill Prison ex parte Evans (No 2) [2001] 2 AC 19 at 28, Lord Steyn described the imprisonment element of the tort as "the infliction of bodily restraint".? There is therefore no juridical reason for distinguishing between them when addressing the ingredient which applies to each, namely whether there is a lawful excuse for the conduct.? Moreover, there is no good reason in practice for drawing a distinction between physical contact and enforced seclusion or detention in the specific context of s. 93(1), which is concerned with reasonable steps taken for the prevention of harm to others, protection of property and the maintenance of good order and discipline in schools.? When faced with an aggressive or violent pupil, it may be more effective, in seeking to achieve the statutory purposes set out in subsection (1), to use temporary detention or seclusion as a form of de-escalation or prevention of further harm, in a way which allows the pupil to calm down, rather than to use physical contact restraint.? The use of 'time out' is a well-recognised technique.? In circumstances in which it would be reasonable to use contact restraint to prevent a pupil from causing physical harm to others, for example, it would in my view be very surprising if it were not equally lawful to use temporary detention or seclusion instead, to the extent reasonable, to achieve the same result. ?Temporary detention or seclusion may be less invasive and more effective than contact restraint.
167. Thirdly, there is support for this construction of s. 93 in the common law background and legislative history which led to its enactment.? The right of teachers to use force against a pupil, or to detain a pupil, where there were reasonable grounds for believing that doing so was necessary for the welfare of the child or the welfare of the other children, was established in the 19 th century in cases which based the right on teachers being in loco parentis.? A parent could lawfully use such force or detention, and so, therefore, could teachers.? The promotion of the welfare of the other children made it lawful to use force or detention where reasonable for the maintenance of good order and discipline in the school, because attending to those pupils' welfare involved conferring the benefit of education.? See, for example, Fitzgerald v Northcote (1865) 4 F & F 656, 176 ER 734; Hutt v Governors of Haileybury College (1888) 4 TLR 623; Price v Wilkins (1888) 58 LT 680; and Cleary v Booth [1893] 1 QB 465.? These cases did not draw a distinction in this context between the use of physical force on the one hand and detention on the other, treating each equally as a form of punishment or coercion (see e.g. Hutt at p. 624, and Mansell v Grifffin [1908] 1 KB 160 in which at pp. 166-167 Phillimore J equated the principles to be applied in cases of deprivation of liberty to those applicable to the use of force).?
169. By the 1980s, there was a concern that the lack of a clear legislative statement of the existence and extent of teachers' disciplinary powers, and the reliance instead upon judicial pronouncements, many of which originated in the nineteenth century before the emergence of compulsory education, had the effect that teachers were not sufficiently prepared to exercise their powers in the face of disruptive behaviour from pupils and legal challenges or threats of legal challenges.? This led to the Report of the Committee of Enquiry Chaired by Lord Elton on Discipline in Schools dated 31 January 1989, which recommended legislation.? This was first achieved in 1997 by the insertion of ss. 550A and B into the Education Act 1996 by ss. 4 and 5 of the Education Act 1997, s. 550A(1) being in the same terms as s. 93(1) of the 2006 Act.? However by July 2005 there remained a concern in Government and amongst professional associations that school leaders and staff had not been faithful to the spirit of the Elton Report, as a result of which the Government commissioned the Steer Report of the Practitioners' Group on School Behaviour and Discipline, issued in October 2005.? It reaffirmed the principles and sentiments contained in the Elton Report and ****** recommended a single new piece of legislation to clarify the overall basis of teachers' authority to discipline pupils. **?At paragraph 224 it emphasised that it was concerned with the balance between discipline and care:
171. "We also believe it important for any new legislation to balance the power to punish with the power to provide care - these two aspects being both integral to the common law doctrine of in loco parentis. The new legislation also needs to be couched in sufficiently broad terms not to have the effect of diminishing or circumscribing the existing, very broad rights. Finally, it needs to be framed in such a way as to provide a clear read across to the parents' duties and responsibilities, and to encompass something that will not conflict with teachers' right to restrain a pupil using reasonable force."
172. To this was appended recommendation 3.10.1, recommending that:
174. "as a matter of urgency, the Government should introduce a single, new piece of legislation to make clear the overall right to discipline pupils. This should be framed in such a way as not to diminish existing, wide legal rights; provide a clear read across to the duties and responsibilities of parents; and reaffirm teachers' right to restrain pupils using reasonable force"
175. The Government's October 2005 White Paper entitled Higher Standards, Better Schools for All (Cm6677) committed to implement the recommendations of the Steer Report and it was this which led to the enactment of ss. 91 to 93 of the Education Act 2006.?? Section 93(5) made clear that it was supplementary to, and not in place of, the existing common law powers (a subsection which had not been in s. 550A of the 1996 Act).
177. Fourthly, I note that there are departmental materials published by the DfEE and DoH which suggest that their understanding is that the principles are the same: see the references in the 2002 Guidance and the 2012 National Minimum Standards for Special Schools to which I refer below.
179. If I am wrong about this as a matter of construction, I would regard the same conclusion as flowing as a matter of common law, for the reasons explored above.? Section 93(5) expressly recognises the preservation of common law principles alongside those expressly contained in s. 93(1).
181. Regulations and National Minimum Standards
182. Section 23(1) of the Care Standards Act 2000 empowers the relevant minister to publish statements of national minimum standards applicable to establishments or agencies.? Pursuant to that power the DoH published in 2002 National Minimum Standards for Special Residential Schools, which were those applicable to the School at the relevant time.? Standard 10.6 prohibits certain forms of punishment, such as corporal punishment or deprivation of food and drink.? Standard 10.10 provides:
184. "Physical intervention is normally only used to prevent likely injury to the child concerned or to others, or likely serious damage to property. Physical intervention is not used as a punishment, as a means to enforce compliance with instructions, or in response to challenging behaviour other than in situations set out in s550A of the Education Act 1996 [the statutory predecessor to s.93 of the 2006 Act]"
185. Standard 10.11 provides:
186. "The school has a stated policy on the use of physical intervention and the circumstances in which it may be used, which is consistent with any relevant current government guidance on approved methods of physical intervention and is appropriate to the needs and difficulties of the children at the school.? All staff of the school are aware of and follow in practice the school's policy on use and techniques of physical intervention."
187. There were also in force and applicable to the School at the time the Education (Non-Maintained Special Schools) (England) Regulations 1999 made under s. 342(1) of the 1996 Act.? By s.3 and Part 1 they imposed as a condition of the right to operate as a special school that "The governing body shall make such arrangements for safeguarding and promoting the health, safety and welfare of the pupils at the school as are approved by the Secretary of State, and shall secure so far as is practicable that such arrangements are carried out."? Neither side was able to identify any relevant arrangements approved by the Secretary of State under these regulations.
189. The Children (Secure Accommodation) Regulations 1991 as amended in force in 2009 regulated secure accommodation for children, which was defined as " accommodation which is provided for the purpose of restricting the liberty of children". ?Under those regulations approval by the Secretary of State was required before accommodation in a community home could be used as secure accommodation.? The School was not such an approved institution.?
191. Departmental Guidance
192. As referred to above, the DfEE and DoH published the 2002 Guidance in July 2002.? It was addressed to Local Education Authorities, Health and Social Services and Special Schools. There was another guidance document issued jointly by the DfEE and the DoH in 2003 addressed to Local Education Authorities and Special Schools entitled "Guidance on the Use of Restrictive Physical Interventions for Pupils with Severe Behavioural Difficulties."? These documents were, it would appear, in their original form at the time of the events with which we are concerned, and it is clear that before the Judge they played a significant part in the expert evidence and the arguments of the parties.? I set out or summarise a number of their provisions below.? However before doing so, I would emphasise that they were merely departmental guidance, not a statement of the law, which was, and is, that the use of force, seclusion or detention for the purposes of protecting and promoting the welfare of staff and pupils, and maintaining good order and discipline, is lawful if reasonable in all the circumstances.? The departments are not the arbiters of what is or is not reasonable and the guidance has no statutory force save to the extent that National Minimum Standard 10.11 in force at the time requires the School's policy to be consistent with the relevant current government guidance on approved methods of physical intervention.? Being consistent with it is not the same as following the letter of it.
194. It would appear that departmental guidance has changed considerably from time to time.? The version of the 2002 Guidance which was before the Judge, and before us, was the version in existence in 2012.? The first page of that document made clear that the guidance was at that time (2012) being revised in discussions between the two departments, and that it no longer reflected current Government policy.? It does not reveal when those discussions commenced or when the departmental doubts which led to them first arose or indeed were first publicly intimated, and the researches of the parties have been unable to shed any further light on that question.? It is not certain, therefore, that at the time of the conduct with which the appeal is concerned, the content of the original 2002 Guidance represented departmental views or even unqualified guidance.? The cover page (in 2012) said that it was intended to be revised and incorporated in a new guidance document amalgamating it with the 2003 Guidance.? Researches by the parties have not been able to identify any such replacement.? The 2012 version of the National Minimum Standards for Residential Special Schools is in rather different terms to that published in 2002.? Standard 12 requires the school to have a policy as to when restraint, including reasonable force, is to be used.? The footnotes to that provision refer to restraint as including using force or restricting liberty of movement; and to the relevant guidance for the use of ?reasonable force as to be found in "Use of reasonable force, advice for head teachers, staff and governing bodies", which is applicable to all schools and has a version which dates from 2011.? That 2011 Guidance says at paragraph 3(iii) "the decision whether or not to physically intervene is down to the professional judgment of the staff member concerned and should always depend on the individual circumstances".? At paragraph 4 it identifies that a school must have a behaviour policy, that there is no legal requirement to have a policy on the use of force but it is good practice to set out in the behaviour policy the circumstances in which force might be used.? Paragraph 4(iv) provides: "Schools do not require parental consent to use force on a student."? Paragraph 5 identifies that a panel of experts had identified that certain restraint techniques presented an unacceptable risk when used on children and young people.? The itemised techniques do not include face down restraint as one of the techniques presenting an unacceptable risk.? Paragraph 7 states that whilst it was good practice for schools to speak to parents about serious incidents involving the use of force, it is up to schools to decide whether that was appropriate.
196. These principles are much less detailed than the 2002 Guidance, to which I turn.
198. The 2002 Guidance made clear that it treated seclusion as a form of restrictive physical intervention to which the Guidance applied (for example in sections 3.1 and 3.11).? It defined seclusion (at 3.7 and 3.11) as being "where an adult or child is forced to spend time alone against their will".? This would not cover the "towel incidents" if and to the extent that one or more members of staff was at the door, which was not fully closed, so as to talk to FXS to calm him down or at least be able to do so.? That would not be forcing him to spend time alone.?
200. The 2002 Guidance included the provisions I have set out at Schedule 1 to this judgment.? Of potential relevance are the following.
202. (1) "Underpinning principles" included that there are occasions when the use of force is appropriate and that when necessary, it must be used in ways that maintain the safety and dignity of all concerned.
203. (2) There should be a policy on the use of physical interventions, which should be part of a more general behaviour management strategy, with specific strategies and techniques for specific pupils being outlined in that pupil's behaviour management plan.? Policies should include reference to strategies for preventing and "de-escalating" behaviours that precipitate the use of physical interventions.
204. (3) Restrictive physical interventions should always be designed to achieve outcomes that reflect the best interests of the child or adult whose behaviour is of immediate concern and others affected by the behaviour requiring intervention. The decision to use a restrictive physical intervention must take account of the circumstances and be based upon an assessment of the risks associated with the intervention compared with the risks of not employing a restrictive physical intervention (section 1.15).
205. (4) The use of force is likely to be legally defensible when it is required to prevent self-harming; injury to other children, service-users, staff or teachers; damage to property; an offence being committed; and in school settings, any behaviour prejudicial to the maintenance of good order and discipline within the school or among any of its pupils (section 3.5).
206. (5) Elevated levels of risk are associated with holding someone who is lying on the floor or forcing them onto the floor; any procedure which restricts breathing or impedes the airways; seclusion, where an adult or child is forced to spend time alone in a room against their will; pressure on the neck chest abdomen or groin areas (section 3.7).
207. (6) Planned physical intervention strategies should be agreed in advance by a multidisciplinary or school team working in consultation with the child or service user, his or her carers or advocates and, in the case of a child, those with parental responsibility; and ?implemented under the supervision of an identified member of staff who has undertaken appropriate training provided by an organisation accredited by the British Institute of Learning Disabilities ('BILD') (section 3.8).
208. (7) Unplanned or emergency intervention may be necessary when a service user behaves in an unexpected way; in such circumstances, members of staff retain their duty of care to the service user and any response must be proportionate to the circumstances; staff should use the minimum force necessary to prevent injury and maintain safety, consistent with appropriate training they have received (section 3.10).
209. (8) Schools owe a duty of care to their pupils; the duty of care requires that reasonable measures are taken to prevent harm. Therefore, the use of "high handles" that are beyond the reach of a child and the use locks or other security measures on outside doors to control visitor entry are permissible, if the child is supervised by an adult. It may be appropriate to employ restrictive physical intervention to prevent a significant risk of harm, for example to prevent an adult or child injuring another person or to prevent an adult or child committing an offence (sections 4.1 and 4.3).
210. (9) The use of restrictive physical interventions should be minimised by the adoption of primary and secondary preventative strategies (section 5.1).
211. (10) Whenever it is foreseeable that a service user might require a restrictive physical intervention, a risk assessment should be carried out which identifies the benefits and risks associated with the application of different intervention techniques with the person concerned; where incidents are foreseeable, service users should only be exposed to restrictive physical intervention techniques which are described in their individual records/Positive Handling Plans following a risk assessment (section 7.4).
212. (11) Emergency use of restrictive physical interventions may be required when service users behave in ways that have not been foreseen by a risk assessment. Research evidence shows that injuries to staff and to service users are more likely to occur when physical interventions are used to manage unforeseen events and for this reason great care should be taken to avoid situations where unplanned physical interventions might be needed (section 9.1).? An effective risk assessment procedure together with well-planned preventative strategies will help to keep emergency use of restrictive physical interventions to an absolute minimum. However, staff should be aware that, in an emergency, the use of force can be justified if it is reasonable to use it to prevent injury or serious damage to property and, in schools, to prevent a pupil engaging in any behaviour prejudicial to the maintenance of good order and discipline in the school or among any of its pupils (section 9.2). Even in an emergency, the force used must be reasonable. ?It should be commensurate with the desired outcome and the specific circumstances in terms of intensity and duration. Before using restrictive physical intervention in an emergency, the person concerned should be confident that the possible adverse outcomes associated with the intervention (for example, injury or distress) will be less severe than the adverse consequences which might have occurred without the use of a physical intervention (section 9.3).
213. (12) Staff should "normally" only use methods of restrictive physical intervention for which they have received training (section 13.2).
214. The 2003 Guidance offered model policies for Local Education Authorities which had been developed by BILD, but made clear that they were designed to be helpful rather than followed rigidly.? The Guidance placed repeated emphasis on the need for physical intervention to be reasonable and proportionate, and provided that policies for its use should reflect an ethos of respect, care and safety in schools.? So far as policies for Special Schools are concerned, the Guidance stated that all identified behaviours necessitating the use of physical intervention should be formally risk assessed, and recommended that risk assessments should be shared with, amongst others, the parents or those with parental responsibility and other professional agencies involved with the child (section 4.6). It recognised that "on occasion staff may find themselves in unforeseen or emergency situations when they have no option but to use reasonable force to manage a crisis"; and that "in exceptional circumstances (where permitted techniques are ineffective or staff are unfamiliar with the action they should take) staff manage the situation as best they can to comply with Section 550A of the Education Act 1996" (section 3.6).
216. The face down incidents: was there a battery?
217. The Judge appears to have treated it as sufficient to establish a battery that the face down incidents involved conduct which was contrary to the School Policy.? In this I believe she was mistaken. ?Of the ingredients of the tort which I have identified, the relevant one is the last: was there a lawful excuse? ?Section 87 of the Children Act 1989 means that it was lawful if it was a reasonable and proportionate way of fulfilling the duty to safeguard and promote the welfare of FXS and/or other children in the School.? Section 93(1) of the 2006 Act provides that it was lawful if and to the extent that it was reasonable for one of the statutory purposes there identified.? In the circumstances of this case that involves one and the same question.? There can be no doubt that what Ms Pusey did was for one or more of those s. 93(1) purposes, namely to prevent harm to others and prevent damage to property and prevent prejudice to the maintenance of good order and discipline at the School. ?It was common ground between the experts that on each occasion the use of physical restraint was appropriate.? So the question is simply whether what Ms Pusey did, which resulted in FXS being face down on those occasions, was reasonable.
219. This is an intensely fact sensitive question which depends upon what actually happened.? There is, in my view, an important difference between a staff member in Ms Pusey's position going to a technique in which they have not been trained, and which carries with it increased risks to health, as a preferred choice where an alternative is or ought to be available; and on the other hand doing so only as a dynamic response in the course of grappling with a child in an attempt to apply approved techniques, with the unapproved technique being the only reasonable available option to prevent harm to staff and others.? In the end I have concluded that the Judge was entitled to find, for the reasons she gave, that this was much closer to the former than the latter and was not reasonable in all the circumstances.? In doing so I recognise the challenging task faced by those with responsibility for FXS's care and that in the overwhelming majority of the very numerous occasions which required intervention the conduct of the staff, including Ms Pusey, is beyond any criticism.? However, the Judge had the benefit of assessing what the notes conveyed as to what had happened in each incident, not only by reference to the words used, but in interpreting them in the light of the language used in the notes of other incidents; and of the evidence of Mr Long, Ms Day and Mr Vince.? They were all cross-examined about the notes in some detail, and gave views which were in significant respects simply at odds with the language used by Ms Pusey and on two occasions unrealistic, as the Judge concluded.?
221. Mr Long was taken to the three records of the face down incidents in cross examination.? The Judge summarised his evidence about them as follows:
223. "He stated that within a residential setting, there may be a "small moment" of dynamic risk assessment and then an attempt to institute a safe restraint technique as quickly as possible. He stated that he had a general memory of the struggles that Ms Pusey had in managing FXS physically. He suggested that taking FXS to the ground was the most effective one-person restraint technique that she could apply. It was something that happened occasionally within a much broader context of her job."
224. And
225. "Mr Long was taken to the incident on 29 June 2009 which records Ms Pusey holding FXS face down on his bed.? He appeared reluctant to accept that FXS had been held face down despite the clear wording in the log. When pressed, by Ms Walker, he stated that he could " only agree to what it says."
226. Ms Day was cross examined about the three face down incident reports.? The Judge recorded some of her evidence in these terms:
228. "...she suggested that on 16 June 2009, although the record states that FXS was held on the ground with weight applied to his back, he might have been on his side. In respect of 15 September 2009, when FXS was placed in a wrap by Ms Pusey and then pushed onto the ground face down, Ms Day suggested that it was not a face-down restraint; Ms Pusey was doing what was necessary and proportionate to keep herself safe."
230. The Judge recorded Mr Vince's evidence when cross examined about the notes as follows:
232. "Mr Vince also appeared to suggest that a restraint would only be a restraint if an approved technique had been used. Although Mr Vince did not refer to face-down restraints in his expert report he stated during cross-examination, that " there were occasions where [FXS] was held on the floor or towards the floor face down, ...they were not taught techniques, so they were not techniques." He described this as an " unplanned intervention "."
233. I have considered the transcript of the cross-examination of Mr Long and Ms Day on these incidents and on the notes of them.? The Judge was entitled to reject the interpretation which they sought to put on the notes, which was at times unrealistic, and to conclude that the notes meant what they prima facie appeared clearly to say.? ?
235. They clearly convey that these were deliberate manoeuvres adopted by Ms Pusey; they do not convey the sense of FXS simply "ending up" face down as at one stage Ms Foster characterised it.? The notes of the 29 June incident in which FXS was held face down on the bed for roughly ten minutes do not suggest that a wrap without this face down restraint was either attempted or unavailable.? The notes of the other two incidents do suggest that Ms Pusey found a wrap ineffective to protect herself.? However, if they were ineffective for Ms Pusey to protect herself because of her small and slight build, as Mr Long suggested, the Judge was entitled to find that it was unreasonable for the School to have put her in that position which was entirely predictable so far as FXS's behaviour was concerned.? Moreover, for anyone, the next option following an unsuccessful wrap would be a supine restraint, not a prone one; and again, if that were not available to Ms Pusey because she was alone, the Judge was entitled to find that the School had not acted reasonably in putting her in that position.? The Judge was far better placed than we are, having heard all the evidence over the course of a lengthy trial, to make the evaluative judgments necessary, and I can detect no error of principle in her conclusions on reasonableness at [119] or the preceding paragraphs which expand upon them.
237. I would therefore dismiss the appeal in relation to the findings that the face down incidents involved the tort of battery.?
239. The towel incidents: were they false imprisonment?
240. I take a different view about the towel incidents.? The Judge appears to have based her conclusion on the terms of paragraph 3.8 of the 2002 Guidance.? However that guidance does not determine whether the conduct was lawful, for the reasons I have sought to explain.? It might be a matter of good practice to consult in advance with parents and/or the local authority over the use of such a technique, but a failure to do so does not render the use of the technique in any given situation unreasonable for the statutory purposes identified in s. 93(1), or for the purposes of fulfilment of the duty to safeguard and promote the wellbeing of FXS and the other children at the school, which depends upon the circumstances in which the technique was deployed.? This involved an error of principle on the part of the Judge.? She needed to ask herself in respect of each occasion whether the use was reasonable for one of those statutory purposes, and that required an assessment of the notes of what happened on each occasion taken together with the evidence of witnesses, including in particular the unchallenged evidence of Mr Long.? We must therefore make that assessment for ourselves.? We note also that the Judge was mistaken in treating the incident on 15 May 2009 as involving the use of the towel method to keep FXS in his bedroom for nearly 5 hours from 5.15 to 10 pm.? As is clear from the note, some of that time was before he even went up to his bedroom, and thereafter it only suggests that the towel method was used at some point over the course of the evening.?
242. The notes of each of the incidents makes clear that on all occasions the towel method was being used to avoid the risk of further injury and was often being applied so as to promote FXS's welfare by allowing him to calm down whilst communication with a member of staff remained available, as a form of de-escalation.? Mr Long's evidence which I have quoted in [10] above to that effect was not challenged in cross-examination.? I am satisfied that in each case it was confinement which was no more than was reasonable to fulfil both the statutory purposes of s. 93(1) and also the fulfilment of the School's duty to FXS and the other pupils under s. 87 of the Children Act 1989 in a reasonable and proportionate way.?
244. I would therefore allow the appeal in respect of the towel incidents and the findings of false imprisonment.
246. Aggravated damages
247. In cases of assault or battery, aggravated damages can be awarded in certain circumstances for injury to feeling.? They are compensatory, and cannot be awarded as punishment.? They are to compensate for indignity, humiliation, disgrace or mental suffering.? ?In Thompson v Commissioner of Police for the Metropolis [1998] QB 498 Lord Woolf MR, giving the judgment of the Court, said at p. 514G:
249. "As the law stands at present compensatory damages are of two types, (a) ordinary damages which we would suggest should be described as basic, and (b) aggravated damages. Aggravated damages can only be awarded where they are claimed by the plaintiff and where there are aggravating features about the defendant's conduct which justify the award."
250. Since Rookes v Barnard [1964] AC 1129, there have been relatively few cases in which aggravated damages have been awarded.? A number of first instance cases treated aggravating features of the conduct constituting the wrong sued on as giving rise to aggravated damages, but the principled approach, now endorsed by this court in Richardson v Howie [2004] EWCA Civ 1127 [2005] PIQR Q3, is that because aggravated damages are compensatory, not penal, all damages for injury to feeling from an assault itself should be the subject matter of an award of basic damages (or as Thomas LJ put it "ordinary general damages").? This requires the basic or ordinary general damages to compensate any injury to feeling in the form of indignity, mental suffering, humiliation, distress, indignation or anger, which may arise from the assault itself, including from the spiteful nature or motive of the assault or any other aspect of its context.? It follows that aggravated damages should be reserved for additional conduct beyond the assault itself and its motive/context, which causes additional injury to feelings.? ?It is therefore important when considering an award of aggravated damages to avoid double counting by focusing on conduct other than the assault, and on additional injury to feelings caused by that additional conduct.
252. As to the nature of such additional conduct which can justify an award of aggravated damages, Lord Woolf identified it at p.516 B-D of Thompson as including behaving in a high handed, insulting, malicious or oppressive manner, which may comprise such behaviour in the conduct of the litigation.? McGregor on Damages 22 nd edn (2024) says at 43-002:
254. "Aggravated damages come into the picture where injury to the claimant's feelings is increased by the flagrancy, malevolence and particularly unacceptable nature of the assaulting defendant's behaviour".
255. In this case the Judge identified at [17] of her quantum judgment two "key features" justifying aggravated damages in relation to the face down incidents:
257. (1) "a failure to appreciate the significance and seriousness of a member of staff using a face down restraint"; and
258. (2) the School's conduct of the litigation in two respects:
259. (a) a reluctance to acknowledge the prohibition on face down restraints in the School's Policy, including by Mr Vince in his Report, for which the School was responsible because it chose to rely on it; and
260. (b) "some witnesses refused to accept the plain wording of the incident reports".
261. The first of these was aimed at Ms Day and involved her allowing Ms Pusey to be involved in the second and third battery after discussing the first with her and being aware of her stature.? This is not properly the subject matter of aggravated damages because it is the context in which the second and third battery occurred and injury to feelings from those batteries can only be included in the award of compensatory damages which was made, not an award of aggravated damages.
263. As to the reluctance to acknowledge the prohibition in the School Policy, the Judge's views on this were no doubt influenced by her finding that the mere fact of such prohibition was sufficient to establish a battery.? As I have explained, that was erroneous: and the School's case was that the face down restraint was reasonable in the particular circumstances of each incident irrespective of the content of the Policy.? That was a cogent case and would have defeated the claim in battery had the Judge accepted the School's interpretation of the incidents, irrespective of any prohibition in the Policy.? Accordingly the justification for awarding aggravated damages ultimately rests solely on the ground that "some witnesses refused to accept the plain wording of the incident reports".
265. I do not consider that an award of aggravated damages, which requires egregious conduct, can be supported on this basis.? The reference must be to the evidence of Ms Day and Mr Long, both of whom had long since ceased to work at the School when giving their evidence.? They were seeking to interpret the notes of what had happened some 15 years earlier, as people who were familiar with the realities of life in the special environment of the School, familiar with the member of staff involved and her professional capabilities and record (of which no criticism was made apart from on these three occasions) and familiar with the considerable challenges of physical restraint of this particular aggressive and disruptive child, who by this time was requiring sometimes lengthy physical restraint on what was an almost daily basis, and when it was accepted that physical restraint was appropriate on these three specific occasions. ?Whilst the Judge was entitled to treat two of their answers as unrealistic (she gave one example for each of those witnesses at [109]) this was not the sort of conduct for which aggravated damages are intended.? It was not malicious or malevolent.? It was not insulting or oppressive.? Nor was it the kind of egregious conduct of litigation which is to be characterised as "high handed" or "particularly unacceptable".? It is revealing that the Judge did not consider that the conduct of the litigation justified an award of costs on the indemnity basis, correctly identifying that the critical qualifying requirement for indemnity costs is conduct which takes the case "out of the norm" (Excelsior Commercial and Industrial Holdings Ltd [2002] EWCA Civ 81 at [31], [39])? or "something outside the ordinary and reasonable conduct of proceedings" (Esure Services Ltd v Quarcoo [2009] EWCA Civ 595). ?
267. Accordingly I would quash the award of aggravated damages on the claim in battery.? The award of both compensatory and aggravated damages for the towel incidents would fall away with my decision that they did not involve the tort of false imprisonment.
269. Conclusion
270. For these reasons I would allow the appeal save for the finding on liability in respect of the three face down incidents, for which the award of compensatory damages remains undisturbed.?
272. Lord Justice Moylan:
273. I agree.
275. Lord Justice Bean:
276. I also agree.
282. ?????? Schedule 1: Extracts from 2002 Guidance provisions
283. Underpinning Principles (p.4)
285. ? The use of force should, wherever possible, be avoided
286. ? There are occasions when the use of force is appropriate
287. ? When force is necessary, it must be used in ways that maintain the safety and dignity of all concerned.
289. Policies (p4)
290. 1. Every agency included within the remit of the guidance should have a policy on the use of physical interventions. In general terms, policies will describe the context in which it is appropriate to use restrictive physical interventions
291. 2. Policies should be part of a more general behaviour management strategy
292. 3. Specific strategies and techniques for specific pupils should be outlined in that pupil's behaviour management plan
293. ?4. Policies should indicate how children and their families could participate in the planning, monitoring and review of the use of restrictive physical interventions
294. ?5. Policies should include reference to the following:
295. • strategies for preventing and "de-escalating" behaviours that precipitate the use of physical interventions
296. • descriptions of strategies staff are allowed to use when managing extreme behaviour • procedures for post-incident support • how the concept of reasonable force will be determined
297. • the approach to risk assessment and risk management employed
298. • distinctions between seclusion, time out and withdrawal
299. • distinctions between planned and emergency physical interventions
300. • descriptions of practices which carry elevated levels of risk
301. 1.15 Restrictive physical interventions should always be designed to achieve outcomes that reflect the best interests of the child or adult whose behaviour is of immediate concern and others affected by the behaviour requiring intervention. The decision to use a restrictive physical intervention must take account of the circumstances and be based upon an assessment of the risks associated with the intervention compared with the risks of not employing a restrictive physical intervention. A restrictive physical intervention must also only employ a reasonable amount of force- that is the minimum force needed to avert injury or damage to property, or (in schools) to prevent a breakdown of discipline - applied for the shortest period of time.
302. 3.5 The use of force is likely to be legally defensible when it is required to prevent:
303. ??????????? • self-harming
304. • injury to other children, service-users, staff or teachers
305. • damage to property
306. • an offence being committed and
307. • in school settings, any behaviour prejudicial to the maintenance of good order and discipline within the school or among any of its pupils
309. 3.7 Elevated levels of risk are associated with:
310. • the use of clothing or belts to restrict movement
311. • holding someone who is lying on the floor or forcing them onto the floor
312. • any procedure which restricts breathing or impedes the airways
313. • seclusion, where an adult or child is forced to spend time alone in a room against their will
314. • extending or flexing the joints or putting pressure on the joints?
315. • pressure on the neck chest abdomen or groin areas.
317. 3.8 Planned physical intervention strategies should be:
318. ??????????? • agreed in advance by a multidisciplinary or school team working in consultation with the child or service user, his or her carers or advocates and, in the case of a child, those with parental responsibility
319. • described in writing and incorporated into other documentation which sets out a broader strategy for addressing the service user's behavioural difficulties
320. • implemented under the supervision of an identified member of staff who has undertaken appropriate training provided by an organisation accredited by BILD.
321. • recorded in writing so that the method of physical intervention and the circumstances when it was employed can be monitored and, if necessary, investigated.
322. 3.9 Where planned physical intervention strategies are in place, they should be one component of a broader approach to behaviour management, treatment or therapy.
323. 3.10 Unplanned or emergency intervention may be necessary when a service user behaves in an unexpected way. In such circumstances, members of staff retain their duty of care to the service user and any response must be proportionate to the circumstances. Staff should use the minimum force necessary to prevent injury and maintain safety, consistent with appropriate training they have received.
324. 4.1 It is a criminal offence to use physical force, or to threaten to use force (for example, by raising a fist or issuing a verbal threat), unless the circumstances give rise to a 'lawful excuse' or justification for the use of force. Similarly, it is an offence to lock an adult or child in a room without a court order (even if they are not aware that they locked in) except in an emergency when for example the use of a locked room as a temporary measure while seeking assistance would provide legal justification. The use of double or high door handles in classrooms or locking outside doors, as a safety measure and/or security precaution when children are supervised by an adult would be considered a reasonable measure to prevent a significant risk of harm within a school's duty of care to its pupils. Use of physical intervention may also give rise to an action in civil law for damages if it results in injury, including psychological trauma, to the person concerned. (emphasis in original)
325. 4.3 Schools owe a duty of care to their pupils ... The duty of care requires that reasonable measures are taken to prevent harm. Therefore, the use of "high handles" that are beyond the reach of a child and the use locks or other security measures on outside doors to control visitor entry are permissible, if the child is supervised by an adult. It may be appropriate to employ restrictive physical intervention to prevent a significant risk of harm, for example:
326. ...
327. • to prevent an adult or child injuring another person
328. • to prevent an adult or child committing an offence
329. 4.5? Any physical intervention should employ the minimum reasonable force to prevent injury or serious damage to property, to avert an offence being committed and, in school settings, to prevent a pupil engaging in extreme behaviour prejudicial to the maintenance of good order and discipline at school or among any of its pupils ...
330. 5.1 The use of restrictive physical interventions should be minimised by the adoption of primary and secondary preventative strategies....
331. 7.4 Whenever it is foreseeable that a service user might require a restrictive physical intervention, a risk assessment should be carried out which identifies the benefits and risks associated with the application of different intervention techniques with the person concerned ....Where incidents are foreseeable, service users should only be exposed to restrictive physical intervention techniques which are described in their individual records/ Positive Handling Plans following a risk assessment.
332. 9 Emergency use of restrictive physical interventions
333. 9.1 Emergency use of restrictive physical interventions may be required when service users behave in ways that have not been foreseen by a risk assessment. Research evidence shows that injuries to staff and to service users are more likely to occur when physical interventions are used to manage unforeseen events and for this reason great care should be taken to avoid situations where unplanned physical interventions might be needed.
334. ?9.2 An effective risk assessment procedure together with well planned preventative strategies will help to keep emergency use of restrictive physical interventions to an absolute minimum. However, staff should be aware that, in an emergency, the use of force can be justified if it is reasonable to use it to prevent injury or serious damage to property and, in schools, to prevent a pupil engaging in any behaviour prejudicial to the maintenance of good order and discipline in the school or among any of its pupils.
335. 9.3 Even in an emergency, the force used must be reasonable. It should be commensurate with the desired outcome and the specific circumstances in terms of intensity and duration. Before using restrictive physical intervention in an emergency, the person concerned should be confident that the possible adverse outcomes associated with the intervention (for example, injury or distress) will be less severe than the adverse consequences which might have occurred without the use of a physical intervention.
336. 13.2 Staff should normally only use methods of restrictive physical intervention for which they have received training.
339. ??????????????? Schedule 2: The Notes of the Towel Incidents
340. 1. 14 December 2008, **** 5.00pm (Will Long)
341. People carrier, car park, Jigsaw
342. [C] had been on a trip to Jolly Rogers indoor play area in Swindon. After a good afternoon, [C] was returning to school in a people carrier, with other Jigsaw children, Angela Lewin and Will Long. ?[C] began to make inappropriate comments of a sexual and racist nature, such as "fucking black nigger" and "suck my mum's cock". ?[C] was warned by both Will and Angela that if he continued he would have follow up on returning to the house, and would not join trips in future. [C] continued, and after a second warning began to pull Will Long's hair. Will Long asked Angela Lewin to find a place to pull over so that Will could move next to [C] and hold his hand. Once Will had moved next to [C], [C] attempted to hit, bite and headbutt Will. [C] also spat at Will. Will held [C] in a wrap for a few minutes while [C] calmed, and Will gave [C] the option of having his arm held. Will held [C's] arm, but [C] again attempted to hit, so Will held [C] in a wrap again. [C] attempted to lock the windows of the car, while the car was being driven, and had to be stopped. Will held [C] in a wrap for the duration of the journey back to school, only able to loosen the grip on [C's] arms; but not grade down to touch support. On returning to school, [C] was taken by Will and Angela in a two-person escort up to his bedroom and put inside. [C] was abusive to Angela and had to have his door held with a towel for some minutes. ?[C] was eventually able to be in his room.
343. [C]kept safe in a car on journey back, eventually, able to be in his bedroom for time out.
344. ****
345. 2. 23 March 2009, 3.30pm. (Will Long)
346. Jigsaw hallway, [C]'s bedroom, story space.
347. [C] - Punching, biting, spitting.
348. [C] was returned from class by Theo Smith in a one-person escort. Theo Smith swapped with Will Long who sat with [C] on the hallway bench. ?[C] was able to sit calmly holding Will's hand, but became aggressive and violent towards Will. When other children and adults passed through the hall. Will guided in to a seated 1 person escort until [C] again calmed. Will then took [C] upstairs to [C's] bedroom. As [C] continued to be attacking Will held [C] in a 1 person escort. This continued for around half an hour and Will at one point held [C] in a wrap in the corner. Will felt that [C] could not continue to be held safely, and used a towel to hold [C]'s door shut, as if other adults were available to support. After this [C] was able to calm and tidy his bedroom, and then join the daily meeting on the story spa(ce?). However, [C] became agitated again during the meeting, and Boni Delos Santos removed [C] from the story space in touch support, as [C] attempted to hit Boni Delos Santos. ?[C] then sat in the corridor with Boni Delos Santos.
349. [C] continued to require close adult supervision for the remainder of the day
350. ****
351. 3. 15 May 2009, From 17 15 onwards (Paul Rutterford, Will Long and others)
352. ****
354. From teatime when he ran out of the house, [C] was kept very close to adults. He needed lots of support + restraint to remain in his room after coming upstairs at times this involved holding his door to with a towel wrapped around the handle inside. This need continued up until 10pm after which he gradually settled to sleep
355. [C] was prevented from disturbing the order in the house and prevented from putting himself at risk by touch support.
356. Paul Rutterford(?). Megan (agency). Will Long, Jay Oldfield
357. ****
358. 4. 4 June 2009, **** 8.20am (Mike O'Kane, Will Long and others)
359. Sunset? Jigsaw
360. [C] B - spitting, biting, hitting, kicking
361. Mike O'Kane went to pick [C] up from Sunset to get him on track for day. ?[C] began to protest 'I hate jigsaw, Fuck you Mike'. Also used the words 'Paki, nigger'. [C] tried to hit and bite Mike so was put in a Supine (with Jessica Bate (LT)/Sunset) 4 min.? Will Long came to assist and 2 person escort was used to bring C to his room. He continued to attack Mike. Louise Tolley helped Mike pull [C's] door shut using towel for 3 minutes (timed). ?[C] threw his toys around but managed to calm. Mike asked [C] to tidy up, he did with minimal help. [C] spent 9.00-9.30 managing well, eating breakfast + going to class.
363. Mike has explained that if [C] attacks him badly again, anytime, he will be shut in his room for 5 mins till he calms. This appears to be clearly understood by C
364. ****
365. 5. 5 June 2009, **** 4.45 pm (Claire Gaskins and Will Long)
366. [C's] bedroom
367. [C] had been asked to return to his bedroom after the daily meeting. Instead [C] ran downstairs. [C] was caught up to by Will Long and returned to [C's] bedroom. ?[C] then became attacking of Will, who held [C] in a wrap in [C's] bedroom, before withdrawing to hold [C's] door shut. After this [C] threw things around [C's] bedroom and shouted "Fucking Paki" out of the window. Will informed [C] that [C] would have to do half an hour for racist language. After around twenty minutes [C] was calm enough for Will to stop holding [C]'s door, and [C] did all follow up without a problem.
368. [C] prevented from running off
369. [C] given clear message racism is not on & given time to reflect on this
372. ****
373. 6. 8 June 2009, First report (Joy Oldfield and others)
374. front field then C's bedroom
375. A bite to Joys breast
376. [C] had struggled after the daily meeting & Joy had taken over from Lukas Roth, being alongside [C]. [C] appeared calm & Joy asked [C] ?to clear up the mess he made in the corridor. ?[C] impulsively set the fire alarm off & [C] & all other children were evacuated. Joy took [C] in touch support. On the front field [C] appeared to be increasing in aggression when another adult would offer support. For a while, Joy managed [C] on her own & this was feasible. However Max Reiner(?) offered support & [C's] aggression increased to the point that Max needed to hold [C] along with Joy in a 2 person escort position. ?[C] was attempting to bite, kick & scratch. ?[C] was struggling to let himself be looked after, so Max & Joy stood up & started to walk whilst holding in a 2 person escort. Max swapped with Helen Banfield. Joy & Helen continued to walk [C] in a 2 person escort. However [C] headbutted Joy & then bite Joy on the breast. Helen & Joy held [C] in a 2 person supine. [C] continued to try & bite for several minutes & complained that Joy was hurting his left shoulder. Jay told [C] that sometimes being in a supine position be a little uncomfortable. Joy told [C] that he needed not to be hurting before adult could withdraw. [C] calmed within approximately 5-10mins & Helen & Joy withdrew slowly. ?[C] was asked to sit on the bench outside Jigsaw house & was then taken up to his bedroom. ?[C] was unable to remain in his room without either trying to hurt or throw things & so Joy held a towel round the door to prevent [C] needing to be held again or to prevent [C] hurting again. ?[C] was reminded of the things that he needed to do, one thing at a time - the first being to tidy up the mess in the hallway. [redacted] offered [C] to help him clear up & this helped [C] to make sensible choices to move on & was able to eat his dinner in his bedroom
377. It felt effective to walk with [C] whilst he was in a 2 person escort & to be very clear what was expected of [C] in simple & straightforward language
378. [C] said that his shoulder was hurting
379. Joy received bruising to her forearm
382. 7. 8 June 2009, Second report, 7.30pm (Christina Pusey and another)
383. Jigsaw, stairs
384. C hitting at Chrissy. Pulling her hair
385. ? - trying to lash out at Lukas Roth
386. [C] was supposed to be in bed settling down. Chrissy Pusey was making supper when [C] tried to creep downstairs. Chrissy stopped [C] on the stairs and used touch support to encourage him in the right direction. [C] started trying to push Chrissy, so Lukas and Chrissy escorted [C] to his room, where he became very resistant to going to bed. Lukas put a towel around [C's] door handle to hold the door shut and keep [C] from hurting. When Chrissy tried to withdraw, [C] grabbed Chrissy's hair, but Chrissy was able to draw away from [C].
387. [C] stopped from hurting
388. ****
389. 8. 11 June 2009, 8.20 am **** (Mike O'Kane and another)
390. Front field? [C's] room
391. [C] had been in rainbow after setting off the fire alarm. ?Mike had arrived at work to see [C] running around on the field with Harry. ?Lukas caught up with [C] and tried to escort him to the house. [redacted] made his way to the house followed by Mike. Mike stopped to assist Lukas because [C] was biting and struggling. They used a two person escort to take [C] to his room. Mike used a towel to hold [C's] door shut for 5mins till he calmed down. ?[C] continued to throw things from his room so Mike held the door another 5, then 5 more. ?[C] had settled and tidied his room when Mike came in the 3 rd time to check.
392. [C] was settled for 30mins before school
393. Lukas + Mike bitten hard
394. ****
395. 9. 12 June 2009, First report, lunchtime **** (Mike O'Kane and others)
396. Jigsaw
397. ?[C] ?hitting/kicking Mike, spitting a lot
398. ?[C] had been brought to his room by Rebecca after not managing (?) at the lunch table and running out. ?Mike O was outside his door, monitoring [another child] as well. After about 10 mins [C] walked towards Mike rubbing his crotch saying 'Ooh, sex me'. Mike asked him to stop and go back to his room. ?Once close enough he attacked Mike who guided [C] back to his room using touch support firmly. He came out of his room two more times so Mike used a towel to hold the door shut for 5 mins to prevent more hitting + biting. ?[C] threw lots of his things from the window and tipped over his drawers but tidied his room before his time was up. [Another child] brought some of [C's] clothes up for him. He stayed in his room and made it to class with Joy.
399. Prevented further hitting/hurting/swearing
400. ****
401. 10. 12 June 2009, Second report, **** 7 pm **** (Joy Oldfield, Will Long and others)
402. Jigsaw - [C's] bedroom
403. sexualised behaviour
404. [C] had been brought inside after setting the fire alarm off .? Joy had been alongside [C] for some time. Joy had had periods of holding [C] in touch support. But when Joy asked that [C] have a shower & move on, [C] became increasingly sexualised - rubbing up & down Joy's leg, using sexualised language; saying 'suck my cock' repeatedly. Saying I'm going to bite your boobs, sticking his tongue out in a suggestive way. [C] was also trying to 'mount' Joy's leg. Joy said that his behaviour & language was making Joy feel cross & not very nice & that Joy was going to leave the room & be alone. [C] repeatedly said he was going to struggle. Joy & Will withdrew from the bedroom & held [C's] door closed by holding a towel round the handle. Will Long was required to be alongside [redacted] & because [C] had struggled since school, set the fire alarm off & needed 3-4 adults to support him. Joy felt that holding his door closed would mean that other adults could carry on looking after the children & keep herself & [C] safe. At one point Joy withdrew from the door. Despite [C] being given lots of encouragement to do the right thing & get into PJs, Paul Rutterford(?) then held the door briefly. ?James Eckey(?) then swapped with Paul. [C] was moving items around his room, which he said was a b__(?). Soon after James swapped with Paul, [C] requested to go to the toilet..... James opened the door and took [C's] hand without a problem. After visiting the toilet, [C] refused to come out slamming door and using abusive language against James..? [C] then threatened to set the fire alarm off.? When [C] went for the fire alarm James held him by his upper arms (both) .? [C] began to struggle and James moved behind him, pulling his arms across [C's] chest holding onto his hands.? [C] quickly calmed down.? James was by himself in the corridor called for support.? Paul came and helped [C] back to his room.? James took back the towel and [C] began crashing around in his room and pulling on the door.? James was advised earlier (?) to stop a child running out the building if it would prevent a major incident by Will Long.
406. 11. 16 June 2009, 1800 (Christina Pusey and another)
407. [As per the first incident of alleged battery]
408. [This incident followed C setting off the fire alarm at about 5.40 pm the previous day, and becoming agitated and being held in a 2-person supine earlier in the day at 3.30 pm]
410. [C's] bedroom... [C] trying to hit
411. [C] was separate[d] for setting the fire alarm off.? After tea, [C] started trying to leave his room, and said he was going to set the fire alarm off again.? [CP] stopped [C] by holding his forearms and reminded him, he could only have the door open, if he could be sensible in his room.? [C] could not do this and started to hit and kick.[CP] held [C] in a wrap, but this was not effective, to protect herself [CP] held [C] on the floor, applying some weight to [C's] back.? [CP] called for support so that she could leave [C's] room and hold his door shut until he could take control of himself.? Dave Goodspeed assisted in helping [CP] leave [C's] room so that she could hold his door shut. Holding the door shut felt safer than one adult restraining [C].? [C] was eventually able to calm, but went on to have further unsafe incidents that evening.
412. [C] prevented from hurting
415. 12. 21 June 2009, 9:15 pm (Hannah Mason and others)
416. [C's] bedroom
417. [C] touching himself, spitting
418. [C] ?was in his bedroom, in bed trying to get to sleep. [redacted] to struggle which caused [C] to begin being silly because of one noise. Hannah Mason had stood outside [C's] door as she thought the noise from [redacted] would cause [C] to struggle. [C] started to touch himself in his private area and Hannah told [C] to be in bed. [C] was unable to do this and spat at Hannah. Hannah held [C] in a brief wrap whilst Lukas Roth collected a towel to be used to hold [C]'s door shut. [C] started to try and kick Lukas so Hannah let go of [C] and Hannah and Lukas quickly left the room and held his door shut with a towel. ?[C] continued with his sexualised language. Hannah swapped back with Lukas. [C] began to push things from his bedroom up against the door and then moved them back again. ?[C] told Hannah he needed the toilet and Hannah said she would ask another adult for support as he had been attacking. ?[C] again started swearing and using sexualised words. Angela Mufford took over from Hannah and took [C] in hand through the link to Shifford. [C] remained with Angela in Shifford, lying on the floor, until [C] was calm enough to return to Jigsaw house and to his bedroom.
419. [C] held to prevent him from hurting. [C's] door was held shut as [C] was trying to attack.
420. ****
421. 13. 16 September 2009, 4:00pm ( Hannah Mason and others)
422. [C's] bedroom
423. 5 minutes
424. Two person escort
425. [C] [C] was brought into Jigsaw in a two person escort by Mike Staines and Liz Minani. ?[C] was taken to his room. Hannah Mason took over and took [C] [C] his plan. [C] ripped his plan and threw water at Hannah. ?[C] threatened to throw a box so Hannah briefly held [C's] door shut with a towel. Mike O'Kane took over and was able to open the door and talk to [C].
426. ****
427. 14. 17 September 2009, 16.00 ****
428. Jigsaw
429. 1 minute
430. 1 person escort, 2 person escort
431. spitting, kicking, biting
432. During the playground opening, [C] was asked if he wanted to watch but didn't want to. He was told he could stay with Mike indoors. ?[C] started to get agitated and attack Mike who used touch support to help [C] to the stairs. Mike used 1 person escort to help [C] to his room. [C] seemed calm enough to be left alone while Mike spoke to YM. [C] ran from the house to the field. John Ruddock helped Mike take [C] ?to his room in 2 pers escort. ?[C] began throwing objects at Mike and swearing/threatening. John was called to help with others so Mike held [C] door shut for 5 mins till he had calmed down.
433. [C] managed to hit, spit, hurt and bite Mike on the chest. Intervention helped him calm down.
434. Bite marks on Mikes chest. Holding [C] door shut helped avoid further struggles which may have injured children ([C]) or staff furthermore

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