High spirits and derring-do: the right to play and be safe

A school should not be equated to a home. Often hazards exist in a home which it would be unreasonable to allow in a school. A better analogy is with a factory or other undertaking such as a hospital. Parents and pupils have in practice no choice of class mates or other students. Injury occasionally occurs through foolish and sometimes malicious acts of other students. The school has a right to control what occurs in the school, just as an employer has the right to control what happens at its undertaking.

The school had a system in place to guard against injury and accident, misuse of 'equipment' and the opportunity for pupils to succumb to lures – here, the lure of the flagpole. On the day of the principal's death, the system was ignored. The exigencies of the situation and its unusual nature did not mean that the system devised as appropriate for everyday schooling should be abandoned. Despite the principal's death, educational authority and staff responsibility to students remained as a matter of 'everyday schooling'. Hence, once devised – unless risks were, after proper consideration, determined as lessened – the system should be implemented and adhered to.

Does this mean that Harris v. Perry has no place for guidance in Australian schools? Does Introvigene place a supervisory burden precluding staff from allowing or even encouraging 'acrobatics' in playtime hours? To the contrary, the position remains that children are not to be banned, regardless, from somersaulting and jumping, bounding about the playground, or taking delight in playground equipment. Nor are schools obliged to provide armies of supervisors or padlocked swings, boarded-up monkey bars, see-saws anchored to the ground rendering them immovable, removal of roundabouts and climbing platforms, or fencing of potential 'jumping off points'. Introvigene provides a lesson in taking care where extraordinary 'equipment' exists – that which is not built nor intended for playing, but has another function entirely. It guides schools and educational authorities in what duty of care and taking care in respect of school pupils and students mean.

Children cannot be denied the right to play, simply because schools are wary of liability. Indeed, to engage in such denial lends itself to legal challenge, for as the UN Convention affirms, play is a part of being a child and young person. Schools are bound by the responsibility to provide access to play and playgrounds, just as they provide lessons in academic endeavour. Equally, just as they are bound to ensure that a proper standard of classroom teaching is maintained, they are bound to ensure that a proper standard of care is met in school grounds.

The right to play and the right to be safe are not in opposition. Schools and education authorities need to be sure that they work together, as complementary.

No child is 'safe' if bound up in rules or subject to surveillance allowing of no or little freedom of movement, no freedom to play and no freedom to be a child. The right to play and the right to be safe in so doing place no immeasurable burden upon schools, teachers, educationalists or Education Departments and their officials. The ruling in Introvigene is clear. In Justice Murphy's words:

The damage … may be attributed to causes for which the [authority] is liable, unsafe premises and lack of supervision of the children. It is enough that [the] injuries were due to the inadequate system of supervision and care. The system did not provide for sufficient staff to exercise proper supervision over the children in the playground.

Once having decided, upon a balanced assessment of risk and the right to play, that no fewer than five staff were essential, providing fewer brought the education authority's liability into play. Risk assessment does not dictate 'cotton wool' treatment. Encouraging daring and latitude for 'derring do' to enable imaginative play and initiative are part of the educational platform. As Australia's Minister for Early Childhood, Kate Ellis, said in response to the Drummoyne ban, health and safety is a matter for schools, yet:

… if I hadn't done handstands while I was at school, I would never do them in my whole life, because I'm not likely to do them again anytime soon …

A country bereft of handstanding, cartwheeling youngsters, confident in being safe whilst engaging in derring-do, is surely a country deprived.