New Searching, Screening and Confiscation Advice from the DfE - What Do Schools Need to Know?

In July 2022, the DfE published revised advice on Searching, Screening and Confiscation (Advice) in the wake of the media attention surrounding the 'Child Q' case. The Advice comes into force on 1 September 2022.

What Are the Key Points?

• There is a prominent reminder that, under Article 8 of the Human Rights Act 1998, pupils have a right to respect for their private life, which means they can expect a reasonable level of privacy at school. This right is not absolute, but any interference with it by the school (or other public body) must be justified and proportionate.

• The Advice clearly sets out the statutory power of headteachers and authorised staff to search for any of the items prohibited by law which are listed (schools should note that these do not include vapes and e-cigarettes) and those that are prohibited in the 'school rules' (ie identified as banned or their use restricted in the Behaviour Policy) where they have reasonable grounds to suspect the pupil has them on their person or in their possessions. This includes items suspected to be used (or likely to be used) to commit an offence, or cause injury or damage.

• Separately, school staff can search a pupil for any item at all, if they agree. However, the Advice clarifies that staff members should ensure the pupil "understands the reason for the search and how it will be conducted so that their agreement is informed", which replaces the previous assertion that a staff member can simply ask a pupil to turn out their pockets and, if they acquiesce, take that to mean they have agreed to this (which could not be considered to be true consent).

• The Advice emphasises that being found to be in possession of certain prohibited items may raise concerns that the pupil is, or is at risk of, being involved in criminal behaviour/gang involvement, invoking the school's Safeguarding and Child Protection Policy and procedures as well.

• Schools are explicitly required to take into account the age and needs of pupils being searched or screened, including any special educational needs (SEN) and/or disabilities (including behavioural disabilities) which require the school to make an adjustment to avoid particular/substantial disadvantage.

• The SSC Guidance now gives more detail on the roles of the Headteacher, Designated Safeguarding Lead (DSL) and authorised staff members, including the Headteacher's responsibility to oversee the school's searching practices to safeguard the welfare of pupils and staff (with support from the DSL), and ensuring that sufficient numbers of staff are adequately trained.

• The DSL (or deputy DSL) must be informed without delay whenever a search is conducted for a prohibited item, and/or where the circumstances surrounding a proposed search suggest that there may be a safeguarding risk, with a referral being made to Children's Social Care Services immediately where there is a risk of harm to any person (not necessarily the pupil being searched).

• School staff must consider in advance how urgent the search is and, where it is not urgent (and therefore does not need to be done then and there) seek advice from the Headteacher, DSL or deputy DSL, or pastoral member of staff, before conducting the search. School staff should also seek the co-operation of the pupil in advance of the search, and consider the reasons why this may not be forthcoming.

• References to 'without consent' searches have been removed, and the new guidance now states that, if a pupil does not co-operate, the staff member will then need to assess whether it is appropriate to use reasonable force to conduct the search. It is made explicitly clear that reasonable force can only be used to search for items prohibited by law, not items banned by the school in its Behaviour Policy (eg mobile phones). Schools are referred to the DfE's Use of Reasonable Force advice for further information.

• Schools can make it a condition of having a locker or other personal space in school that the pupil agrees to these being searched. If the pupil withdraws their consent, a search can be made for prohibited items and items banned by the school in its Behaviour Policy.

• Screening is described as "the use of a walk-through or hand-held metal detector (arch or wand) to scan all pupils for weapons before they enter the school premises" (our emphasis added). This therefore appears to exclude police screening operations involving a screening arch and/or wand that take place during the school day on the school site, rather than on entry to the school site/building. Schools participating in police/school 'safer schools' schemes may therefore want to seek specific guidance from the police and/or DfE before future operations take place.

• There is now more detailed information on what schools should do with items they have found during searches (eg retain, dispose, hand over to the police, etc.).

• There is now more detailed information on the examination of mobile phones and other electronic devices, including a stipulation that staff must not intentionally look at nude or semi-nude images, or copy, print, share, store or save such images, and that these must be referred to the DSL. The reasons for this are obvious, but this does potentially raise a question as to how parents, pupils and their legal representatives will be able to access the evidence on which adverse decisions (eg suspensions/exclusions) are made in order to decide whether and how to challenge them, in accordance with public law principles.

• Schools should keep a record of all searches for prohibited items and/or searches conducted by the police in their safeguarding reporting system, whether or not an item is found. The Advice sets out what information should be recorded, and confirms that analysis of trends should be carried out, including consideration of whether the searches are being carried out disproportionately in relation to particular groups.

Strip Searches

There is now detailed advice on strip searching, with confirmation that school staff do not have this power. Strip searching is defined as involving the removal of more than outer clothing, which can only be carried out by police officers under PACE Code A and in accordance with PACE Code C. Not all PACE searches require an 'appropriate adult' to be present when a minor is searched - this depends on whether intimate parts of the body would be exposed - however, the guidance states "schools may wish to involve an appropriate adult as a matter of course during all searches conducted by police".

The Advice makes it clear that a decision to undertake a strip search is a police matter. However, before calling the police, staff are required to "assess and balance the risk of a potential strip search on the pupil’s mental and physical wellbeing and the risk of not recovering the suspected item. Staff should consider whether introducing the potential for a strip search through police involvement is absolutely necessary, and should always ensure that other appropriate, less invasive approaches have been exhausted. Once the police are on school premises, the decision on whether to conduct a strip search lies solely with them, and the role of the school is to advocate for the safety and wellbeing of the pupil(s) involved".

The Advice summarises how strip searches must be conducted by the police under PACE, including when they can be conducted, who must be present, and what sex they should be. Bearing in mind the circumstances in the 'Child Q' case, we assume that this has been included to enable school staff to be more confident in challenging the police if they do not appear to them to be acting lawfully.

It is made very clear that safeguarding is the overarching priority for schools during and after a strip search of a pupil, with relevant staff being involved (including the DSL) and an emphasis on after-care (particularly where an item is not found following the search).

The Advice states that, except where there is an immediate risk of harm, parents should be informed before the strip search takes place (even where a parent is not acting as 'appropriate adult'), where reasonably possible. Parents should always be notified after the search has taken place. Schools should keep a record of strip searches conducted on school premises and monitor any trends.

Unfortunately, the Advice is silent on whether a staff member should consider acting as 'appropriate adult' during a search conducted by the police on school premises. We see no reason why this could not happen in appropriate cases, as long as the teacher will not be a potential witness in any resulting criminal process (eg they smelled drugs/saw something suspicious and arranged for the police to be called). A guide on being an 'appropriate adult' published jointly by the Home Office and the National Appropriate Adult Network can be accessed here. The role is not dissimilar to the role the DfE foresees school staff playing during strip searches by the police anyway.

The Advice therefore makes it clear that it is the police who have primary responsibility for ensuring that they act lawfully when conducting searches on school sites, however safeguarding is of paramount importance to schools throughout the process, with staff being expected to act in the best interests of pupils to ensure their safety and wellbeing at all times. This means that staff should take note of what is happening and what officers are saying they plan to do, and be prepared to ask questions and challenge officers where they are concerned they may not be acting lawfully, where the pupil's welfare is at risk or where they consider that this is in the best interests of the pupil.

How Can VWV Help?

We have updated our template Behaviour Policy and other related school policies to reflect all recent changes to behaviour, exclusions, and searching, screening and confiscation in schools. Please contact us for further information and fixed fees (including the discount for retainer clients).

We are also presenting a Behaviour and Exclusions Update webinar on Tuesday, 20 September, 2022 from 3.30pm to 5.00m, which is free to attend - register here.

If you work at, or are a Governor or Trustee of, a school, academy or multi academy trust, and you have a query relating to the article above and would like to discuss ways in which we can support your school/trust, please contact Joanna Goddard on 020 7665 0805 or Yvonne Spencer on 020 7665 0870, in our Regulatory Compliance team, or complete the form below.