Some children are being left to trash classrooms because teachers are unsure of their right to restrain students following a law change.
Principals are calling for an urgent review of new rules – and Education Minister Chris Hipkins has told the Weekend Herald he is open to that, saying "the balance is not quite right".
Whetu Cormick, president of the NZ Principals' Federation, said the rules rolled out last year had led some teachers to question their right to restrain students.
"[Students] might be throwing chairs at big screen TVs and smashing windows, and all teachers are now doing is taking the rest of the kids away and leaving the child to trash the room.
"And we have been told by the Ministry to leave them to it. So property doesn't matter. Whereas in the past you would step in immediately to restrain the child or remove that child."
Under rules introduced in August last year schools must file incident reports to the Ministry of Education and notify parents and boards of trustees every time a student is physically restrained.
Figures provided to the Weekend Herald under the Official Information Act show more than 700 restraint incidents have been reported and those overwhelmingly relate to younger children – just 12 per cent involved a student aged 13 or older.
A teacher can restrain a student if he or she reasonably believes there is a serious and imminent risk to the safety of the student or others, such as when fights occur or if a student has a weapon or is throwing furniture close to other students.
Guidelines have been issued to schools and training is being rolled out, but Cormick said some teachers were taking a "hands off" approach.
"Each time a child is restrained the principal has to fill out a form and send it to the Ministry…and if somebody complains to the Education Council, a parent for example, or goes to the police…then before you know it the teacher is in court or is being censured."
Kevin Bush, Auckland Primary Principals' Association president and principal of Te Hihi School, said he also knew of cases where school property had been damaged, but he was also concerned that minor cases of physical contact apparently required a restraint report.
Some new entrants tried to run after their parents when they were dropped at the school gate, for example.
"The parents ask the teacher, 'Can you just hold my child until I leave'. According to the Ministry guidelines…that is restraint. That is just ridiculous."
Guidelines given to schools include examples of when restraint shouldn't be used, including to stop a student damaging property. However, restraint could be appropriate if there is a serious risk to safety such as if furniture is thrown or glass broken close to other students.
Examples provided of acceptable physical contact that is not restraint include holding the hand of a young student who is happy to have their hand held for a short time, and temporary contact like an open hand on the arm to remove a student to a safer place.
A law change under the previous National Government banned the use of seclusion in schools and early childhood centres, and created a legal framework for the use of restraint – using physical force to prevent, restrict or subdue the movement of a student.
Then-Education Minister Hekia Parata moved to end seclusion after a Herald investigation revealed at least 10 children had been locked up as punishment at Miramar Central School.
The Education Act now states when restraint can be used, rules set out notification and reporting requirements, and statutory guidelines have been given to schools.
Hipkins was on a select committee that heard submissions about the law change, and said since then he had "thought that the balance is not quite right".
"Based on the evidence I've seen, I've been open to reviewing it. The Education Council has offered to lead a discussion with the profession on this issue and I am encouraging them to do so."
National's education spokeswoman Nikki Kaye said work was needed to clarify if there were issues with either the law, or the guidelines.
"I'm happy to work with any stakeholders and the Government to ensure we have a policy that keeps students safe, while not limiting what teachers need to be able to do in the classroom."
Susan Howan, the Ministry of Education's acting deputy secretary for sector enablement and support, said a catalyst for the legislation was the need to protect teachers in an area that is legally complicated.
"Teachers and authorised staff members also need to use professional judgment to decide what constitutes a 'serious and imminent risk to safety'," Howan said. "Restraint may be appropriate if the safety of the student or others is at risk...the use of professional judgment is a critical part of the guidelines."
Howan said the Ministry had increased resources to meet an increase in demand for training in managing challenging student behavior.
John Paul College principal Patrick Walsh was part of a group that helped draw up the restraint and seclusion guidelines. Other members included unions, the Principals' Federation and Ministry of Health.
He said getting the balance right was difficult, and a test case was probably needed to get clarity around what judges deem to be reasonable.
"But my view is I think most courts would be reluctant to find a teacher guilty, as long as they were reacting in good faith and thought what they were doing was reasonable."
Since August last year until November, 705 restraint incidents have been notified to the Ministry of Education involving 446 students.
Of those cases, 294 were carried out by a staff member who had not received training on how to use restraint. The vast majority occurred in primary schools, with just eight incidents involving 15-year-olds, four involving 16-year-olds, one incident with a 17-year-old and three with 18-year-olds.
By ethnicity, 269 Pakeha children were restrained, 181 Maori, 41 Pasifika and 20 Asian.
The Education Council, which is the professional body for teachers and also runs disciplinary processes against them, submitted on the law change last year.
The Crimes Act already prohibited excessive use of force, and the Education Act banned corporal punishment and the use of force by way of correction or punishment, the Council stated, and there was no need to legislate the circumstances where teachers could restrain students.
"We have concerns that the proposed amendment may lead to a raft of unintended consequences, whereby teachers fear that they are not able to physically hold or have physical contact with children and young people…it will also potentially expose the teaching profession to an avalanche of inappropriate complaints," the submission stated.