Putting safety first: Is it ever okay to use 'reasonable force' on children and young people?

In New Zealand law when someone (including a staff member or a caregiver) restrains or uses force on a child or young person, they are technically likely to be committing an assault (which is a criminal offence). There are defences available in the Crimes Act 1961 in certain circumstances that justify the use of reasonable force, however these defences do not necessarily prevent prosecution or conviction.

Any force used against a child or young person should be reasonably necessary for the purpose by which that force is applied, and only applied for the shortest amount of time needed to de-escalate a situation. What is reasonable force is a judgement call based on the circumstances of the particular situation. The decision to use force may occur very quickly but, regardless, it needs to be made in a careful and informed way.

Ideally force will only be applied by people who have received the appropriate crisis intervention training, although this will not necessarily always be the case.

Examples of ‘reasonable force’ in a real world context may include holding a child’s hand down to stop them from hitting another child, grabbing a child’s arm to prevent them from running into the street, or moving a child away to keep them from touching a hot stove.

In the rare cases when reasonable force is seen as appropriate, this should only ever involve contact with robust areas of the child or young person’s body such as their arms, legs and torso.

Learning and Capability Development offer a module called Non-violent crisis intervention (NVCI) which provides social workers with tools to deal with anxious, aggressive or violent people. The NVCI programme is owned and operated by an American organisation called the Crisis Prevention Institute (CPI), and trainers within Oranga Tamariki are certified to run the module according to CPI’s standards.

For children and young people in s.101 custody (or its equivalent), social workers are authorised to use force as is reasonably necessary to place, transfer or return a child or young person. The authorisation applies to social workers when custody is in favour of the chief executive or any other person (e.g. their caregivers). A social worker is also authorised to use reasonably necessary force when removing or detaining a child or young person in warrant situations, and when taking a young person to their placement in a ‘supervision with residence’ situation. Even when the use of force is authorised, the social worker applying the force is at risk of assault charges if they are unable to show that the force used was reasonably necessary for the prescribed purpose.

A decision to use force should only ever be made after non-physical interventions were either unsuccessful or assessed as inappropriate in the circumstances.

Some forms of youth justice custody authorise ‘detaining’ a child or young person. Detention is considered to involve a higher level of control/supervision than in ordinary custody. Force is not specifically authorised in a detention situation but is considered to be inherent within the meaning of detain.

If a social worker thinks the use of force is reasonably necessary but the circumstance is not covered by the above, the social worker is in the same legal position as caregivers, trackers, mentors and escorts (see below).

It is often possible to predict situations when a child or young person’s behaviour is likely to escalate towards harmful behaviour, e.g. straight after contact with parents, when they are removed from a place they don’t want to leave, following any traumatic events. Discuss with your supervisor how to manage any issues, have contingency plans to deal with the behaviour, and have adequate support in place to manage the situation.

Try to exhaust all possible alternatives and put strategies in place that may prevent an escalation in the child or young person’s behaviour. Consider the following de-escalation techniques:

• Listen: Take the time to listen to what their worries are, and what is making them angry or agitated
• Keep calm: Practice ‘active’ listening, use language the child or young person can understand, respond in a calm manner and create a calm atmosphere by adopting non-threatening body language (e.g. sit at a diagonal to the child or young person with your legs and arms uncrossed) and lowering the volume and register of your voice
• Distract: Give the child or young person a task to complete (e.g. get them to draw you a picture) which helps take their mind off the reason for their escalation in behaviour. This works particularly well with younger children
• Divert: Redirect the child or young person by asking them questions about themselves e.g. friends, favourite food, favourite colour, best subject at school
• Walk away: When a child or young person is angry they may not always be able to listen to or see alternative points of view; in these circumstances it might be best for you to remove yourself from the situation and give the child or young person some time to calm down on their own
• Remove the ‘audience’: Some children and young people may act out more if they are surrounded by an audience, particularly if this audience comprises other children and young people. Moving them away from their audience may reduce their aggression and put them in a better state of mind to hear what you have to say
• Negotiate: Negotiating with children and young people is not about giving up control, or winning or losing; rather it is about empowering them, building trust and strengthening relationships, and encouraging them to work with you so they in turn to learn to work with others. This technique often works well with young people who are starting to become independent but still need boundaries to help them make safe decisions.

The more imminent and foreseeable the danger a child or young person presents to themselves or others, the more likely it is that a person may be justified in using force to restrain the child or young person. Only use force proportionate to the risk and for the minimum length of time necessary. Whether use of force is considered reasonable will depend on a number of factors including imminence of danger or anticipated attack and the age, nature and maturity of the child or young person. Consider the following scenarios:

• When a child or young person is running away from a safe place such as the office or a caregiver’s home consider the likelihood of harm vs. the child or young person’s age. A younger child heading onto a busy main road at night is likely to be at imminent risk as opposed to a teenager in the same situation. Some teenagers may have sufficient contacts and life experience to keep themselves relatively safe for a short time after absconding, whereas another teenager of the same age may have developmental issues which makes life so much more difficult for him.
• A child who regularly runs away from a caregiver’s home and makes their way to a nearby parent’s home may not be at the same level of risk as a teenager who is intoxicated and attempts to drive the caregiver’s car away from the property.

There may be times where you believe using force on a child or young person could be more dangerous than if you did nothing at all. The child or young person may have worked themselves into such a state that it is not safe or appropriate for you to attempt to have any physical contact with them. If the child or young person is in a highly agitated state and walks away from you, and you are concerned about their safety but consider reasonable force is inappropriate, follow them at a distance and/or contact the Police. If you follow the child or young person, keep in touch with your colleagues so that they know what is happening and can give you advice and guidance along the way. If the child or young person goes missing, make a report to the Police immediately.