A fifteen-year old female was ‘strip searched’ after police were called to a school in Hackney, east London on suspicion that the girl was concealing drugs after she ‘smelled strongly of cannabis’.
A local authority safeguarding board of enquiry revealed the girl had been examined naked to see if she was concealing drugs and that this was done with the acquiescence of teachers at the school but without the knowledge of the girl’s parents. The enquiry concluded that racism may have been a factor in the decisions taken to conduct the search. Though the Metropolitan Police have apologised to the girl’s family she is said to have been deeply traumatised by the experience.
It is reported that once the police were called, the teachers deferred to the police decision-making process and acquiesced in their actions. It is not clear whether teachers were present when the girl was being searched or whether this was carried out entirely by the police, but while there are some questions for the police to answer, there are questions for the teachers involved too:
· did the teachers abdicate their legal responsibilities to provide a duty of care to a pupil in allowing an intimate strip search to take place, even without the knowledge of the parents?
· Should the teachers present have tried to prevent this? Do they have the legal authority?
· What are teachers’ responsibilities and powers in relation to searches, especially when the police have been called?
· Did the teachers involved behave unprofessionally or even illegally?
I lecture on the subject of ‘The Teacher and the Law’ and my sessions deal with searching pupils as part of the wider responsibilities and authorities teachers have to provide a duty of care. (I am not going to deal with the conclusion of the enquiry that racism may have been a factor simply because I cannot know what the motivations of those involved may or may not have been.)
I don't know the full details of this case, but it does seem that - on the face of it - to strip search a fifteen year old girl for suspected possession of a Class B drug is at the very least crass and unnecessary and at worst, to be an outrageous infringement and abuse of power.
But first let’s deal with the concept of duty of care. The law requires teachers to do what is reasonable in the circumstances to promote the safety and well being of children in their care. For most people that can be a very unsatisfactory definition because it begs so many questions, especially in a case like this where teachers have called the police and asked for their help to deal with a teenage girl suspected of using and possibly concealing drugs.
My advice to new teachers and trainees is to think of themselves like responsible parents and let that notion inform their ethical judgments. Indeed, until the 1989 Children Act formalised a definition of what it was to be ‘a child’, the idea of teachers being ’in loco parentis’ – in place of the parent was still very much at the forefront of defining a teachers’ responsibilities to provide a suitable duty of care. This idea can still be invoked in law and I argue strongly that new and trainee teachers will find it very – indeed VERY useful – to bear in mind when dealing with any situation involving the care of children.
If we accept this premise – and I suggest you do for the purposes of this article – then ask yourself what would you do if you detected a strong smell of cannabis on a pupil?
The answer is that you would - or should – refer the matter immediately to a more senior teacher or the school’s designated safeguarding lead (DSL) who may decide to search the pupil. A legal power to search pupils is invested in the head teacher, though they can and often do delegate that power to other, usually senior staff.
My advice is that a search of a pupil by a designated teacher should never involve an intimate body search of any kind, not even a ‘patting down’. Searching involving physical intimacy is not something that teachers are empowered to do, indeed it would not be appropriate within the notion of ‘duty of care’. The likelihood that such an actions could be perceived as assault is so high that is almost absurd to consider.
So what should designated teachers do if they suspect drug use or drug concealment?
They should of course ask the pupil have they used drugs or are they concealing drugs somewhere. Let’s assume the answer to both of those questions is no. Then a teacher can tell the pupil that they are going to be searched.
When I did this on a number of occasions as a head, I set out the parameters.
I said something like this:
“OK. You have denied using or concealing drugs. However, I have reasonable grounds to suspect you have them (the strong smell) and so I am going to search you.
I want you to turn out all your pockets, your jackets, coats, bags, trays, lockers - everything - that may conceal these drugs (or other prohibited items - and ‘prohibited items’ include weapons, alcohol, stolen property or whatever the school deems to be prohibited).
I’m going to carry out this search in the presence of Mr/Ms X (that is, another member of the teaching staff of the same gender) in order to safeguard everyone’s dignity.
This is not at intimate body search – but I am going to search your belongings until I am satisfied that you do not have this item or items in your possession. Have you anything to say?”
A designated teacher does not need a parent’s permission to do this. They already have the legal authority to do it. Indeed, they must not wait for a parent’s consent to do so if the suspected item is a knife or other weapon (unless the parents have been called and are willing to take the child home immediately as part of a temporary, emergency exclusion). Pupils must not be allowed to wander about school if there is a suspicion they are concealing a weapon.
Let’s now suppose that a teenage pupil refuses to be searched.
What I did when that happened was to call the parents and ask them to come to the school immediately and take their child home. On one occasion, a parent refused to co-operate. Her words were: “I’m at work. I can’t just leave. You deal with it, you’re the head teacher!” As the child was suspected of concealing a knife, I told the parent that if she didn’t come immediately, I would have to call the police and let them deal with the matter. She came.
But what if the parent had refused to come to school and I had to call the police?
Now the designated teacher – hopefully the head teacher – would be faced with the situation of whether to defer to the authority of the police (and they do have the authority to carry out intimate body searches). However, my primary responsibility is to the welfare and care of the child, as if I was a responsible parent.
In a case where the police wanted to carry out an intimate body search I would insist on having a parent present, especially if they wanted to carry out the search on the school premises (though if the item was a knife and the police considered the matter to be an emergency, they may well ignore that request – and they have the power to do so). If the police were unwilling to wait for a parent to attend and were insistent on carrying out an intimate search, I would ask that the search takes place at a police station and not on the school premises – effectively handing over the duty of care to the police at that point - not something I would be happy doing. However, the dilemma I am now faced with is acquiescing in their decisions to a degree that compromises my duty of care. I would ask to attend the police station myself (or ask an appropriately senior member of staff of the same gender to do so) to satisfy that duty of care as far as possible.
This is all with the benefit of hindsight and the privilege of making decisions in a calm and considered atmosphere with time to think things through. Sometimes actions are taken peremptorily, without knowledge of the law or without having considered the wider ethical dimensions.
It’s easy to pick out the failings of the teachers in the case of ‘Girl Q’ (and it may be even easier to do that with the police). It’s easy to decide what should have been done in ideal circumstances. Judgments and decisions are always more difficult when a situation is fluid, complex and especially where conflict is involved – as any experienced teacher knows.
The difficulty lies where and when action is required in the interests of the child, though the child and even the parent may not agree to it. Sometimes inaction is not an option.
Alan Newland worked as a teacher, teacher-trainer and head teacher in London for over 20 years and then for a decade with the DfE and the GTC. He now lectures on teaching ethics and runs the award-winning social media network newteacherstalk.
His new book: ‘Becoming a teacher – the legal, ethical and moral implications of entering society’s most fundamental profession’ is published by Crown House Publishing and can be ordered here.