Opinion

What’s the law on confiscating a pupil’s mobile phone?

Confiscation has been a hot topic on social media this week. Ramona Derbyshire clarifies schools’ and teachers’ legal rights

If a teacher confiscates a mobile phone (or something else of value) from a pupil and it then gets broken or lost, who is responsible, and who must therefore bear the cost of replacing the item? Is it the teacher, the pupil or the school? And what does the law say about how long it is reasonable to withhold such items from pupils?

Legally, the school has taken possession of the pupil’s property. However, Section 94 of the Education and Inspections Act 2006 states that where a teacher disciplines a pupil by confiscating an item, neither the teacher nor the school will be liable for any loss or damage to that item. Equally, there is no statutory liability on schools for items that go missing in other ways.

This will no doubt come as a relief to schools. However, there are some caveats to all this.

READ MORE: How schools should be preparing for GDPR

First, the disciplinary penalty must be lawful. This means the action must be reasonable, proportionate and imposed by an authorised person (normally a paid member of the teaching staff) and not in breach of any statutory requirement or prohibition. The act does give some helpful guidance on considerations to be taken when deciding if such a penalty is reasonable: these include deciding whether the punishment is proportionate in all the circumstances, and whether there are any personal characteristics relevant to the pupil, including their age, special educational needs, disability or any religious requirements (e.g.  dress) affecting the imposition of the penalty.

Second, the school’s policy on items such as mobile phones and other electronics should be communicated clearly to the pupil and their parents or guardians. They should be told that bringing such items into school is done so at their own risk. The policy should also outline what is considered acceptable phone use and that the school retains the right to confiscate items for inappropriate use.

The school owes a duty to each child in its care

Third, when school staff confiscate such items they should also take reasonable steps to ensure their safety, such as storing them in lockers in the staff room.

However, even if the school adheres to all the above, additional complications can arise. Picture the following scenario: the parents of the pupil whose phone has been removed lodge a complaint with the head the following day. Their child was unable to call home, telling their parents they had been held back for detention, or decided to stay on for a revision session that night; this caused untold worry for the parents, who were left in the dark and unable to get hold of their child.

In short, the school owes a duty to each child in its care, requiring it to do what is reasonable to protect the health, safety and welfare of children and dependent on the facts of each individual case. Following the guidance from the act, confiscating a pupil’s phone overnight for a student who is older, lives locally and is not otherwise vulnerable is likely to be seen as more reasonable than a younger child, or one with special needs, whose phone may be an important safety item.

In summary, the law does protect the teacher and school, provided the guidelines are followed.

Ramona Derbyshire is a partner at Thrings

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37 Comments

  1. Paul Robinson

    My son had his phone confiscated this week. He stupidly sent a text in detention and by the school rules he loses the phone for four weeks.
    My concern is that my 11 year old son suffers from ADHD, ODD and high anxiety levels. He has to travel by himself to school on a public bus across three towns to get to school.
    The phone is there for emergency purposes and we have an app where we can exactly where he is. So in essence it’s there for Safeguarding purposes.
    The school seemed to dismiss these facts, even though I said that perhaps a better solution would be for him to hand the phone in on arrival at school and to collect it on the way out of school and that we would confiscate it on his arrival at home.
    However the school were happy for us to but another phone for him to use……bizarre!
    We are happy to support the school with their rules, but in this instance some common sense has to prevail.
    What can we do?

    • jayne wilkins

      did you get anywhere with this matter or did they retain it for 4 weeks. i think it breaches the safeguarding responsibilities that they have towards your child. 4 weeks is excessive.

        • Dr Michael Roch

          This is illegal, schools will often trick parents with their ‘rule and regulation’ however those don’t override law. The phone must be handed back to the student or parent by 4:30pm on the day of confiscation. Lots of schools have a policy that the parents have to collect the phone after confiscation and they will hold the phone until the parents collect it, this is illegal and a complaint can be lodged to your local department of education.

          • Professor Ian Peabody

            This isn’t factually correct. Schools’ general power to discipline enables a member of staff to confiscate, retain or dispose of a pupil’s property as a disciplinary penalty, where reasonable to do so. So assuming this is within a school’s behaviour policy this would be reasonable.
            The law also protects members of staff from liability in any proceedings brought against
            them for any loss of, or damage to, any item they have confiscated, provided they acted
            lawfully.

    • Star Butterfly

      I’m a South African High school student and in my schools code of conduct it states that a learner is strictly prohibited from bringing their cellphone to school . The teachers sometimes do a search in each classroom for cellphones and other times pat downs (if that’s the correct term). If a learner is caught with a phone whether they were using it or not they’re phone will be confiscated and given back at the end of the year after the parents pay a R400 fine. Is this legal?

      • Fatima Rehman

        Not at all!! This is illegal. My school lets us bring our phones into school but if we are caught using it there will be a severe punishment(Taken for the full term) mine has just been taken of me and i will be defiantly taking serious action and getting my parents involved.

  2. My daughter has a 1 hour commute to school across east London, she is 11. Her new secondary have a strict no phone policy and refused to make allowances for my daughter due to to length and complications of her journey. We told them we would send her with a phone anyway, as we feel this a breach of safeguarding, especially as the have 2 mandatory late nights a week and she has to travel home in the dark. She had her phone confiscated in a ‘random’ bag check and has now lost it until the end of term (Christmas) – would you have any advice on how to deal? They are unwilling to budge despite me explaining the above.

  3. Mr Cioffi

    My sons phone was confiscated for 6 weeks which is not concidered in any case to be acceptable punishment. My son is 11 and considered under law a vulnerable child. He had only just transitioned from primary school. The schools policy says no mobile phones in school. However I As a parent and the school have a duty to protect my child’s under the children’s act and safeguarding law.

    The European Convention on Human Rights, together with its first protocol, guar- antees the right to peaceful enjoyment of possessions in all states party to the Con- vention. These states have an obligation to guarantee this right, an alleged violation of which can be examined by the European Court of Human Rights. If the Court finds a violation of the right, just satisfaction, inclu- ding the payment of compensation, can be awarded for the deprivation of your property.

    Once put to the school all these
    Factors and considerations will ensure the immediate return of your property.

      • Not in the U.S.A. it’s an illegal search, you are not even required to give your passcode, fingerprint scan to the Police, it falls under the 5th amendments right not to incriminated one’s self.

    • Bedin Dover

      Searches of mobile devices can only be carried out by a police officer with a search warrant or a reasonable suspicion that illegal things are happening on the phone. This is illegal and you must report it to the police or your local department of education.

  4. daniel smith

    Taking anyone’s property without their consent is theft.
    Detention and letters home is the solution to this.
    Confiscation of phones is wrong and unlawful.

  5. Technically the person who took your phone or someone’s phone is taking the phone with consent and it is technically theft and is taking someone’s private property which schools like to discourage students to do so by taking private property from students depending upon their age will take after the teachers with is being a very bad rolemodel and encourages the student to take things without consent with again is theft so no schools should not be able to take phones bc it is a violation of your private property

  6. My 10 year old son takes his phone to school, hands it to a teacher and they lock it away until the end of the day , however my son came home today and said the school have lost it.

    Where do I stand on this? The phone was handed to a teacher this morning and has been given no other explanation other than it was supposed to be put in a locked cupboard and it’s not there.

    Any help and guidance would be much appreciated.

    Thank you

  7. Abdul Khan

    My son phone was taken on Thursday and was told it will be held till next Tuesday without letting me know I struggled to find him after school and he missed his online tutorial at home that day and for the remaining days. Also he stays home alone with me so when I am not home he cannot call emergency services or myself in case he needs me. he is 15 years old. Is this legal. By the way the school didn’t inform me of that.

  8. Tara Davis

    My daughter has autism. I found the most helpful age appropriate safe device. It’s called the Spacetalk Adventurer watch. It’s a GPS tracker telephone watch. You can set safe zones and receive an alert to your cell phone if your child leaves the area. It is disabled during school time and provides no distraction. It has no internet and is completely controlled by the parent via an App. The school will not allow me to send her in with the device.

  9. Natasha

    My 14yr old son had his phone confiscated by the head teacher for playing music in class, even though it wasn’t done on purpose I totally understand why it was confiscated during school times but my issue is they keep it over night without informing me, is this OK to do ?

    • Gordon Dugdale

      My sons school have just phoned me telling me my sons phone will be taken off him for 24hrs, I said absolutely not and raised my safety concerns with them. They were not interested in what I had to say and said he would be put in isolation every day until he handed it over. Which in turn said I will pick my son up in 15mins and took him home.

  10. Sharon Plimmer

    There seems to be a lot of protection for the schools and staff but none for the child or parent who is presumably paying the bill on the phone?! If someone in another setting took your phone this would not be looked on so lightly, so why in schools?? Theses aren’t prisons they are schools, and as such such have fair policies in usage of mobile phones, and prepare children better for adult life and work settings. Schools attitudes seem out of line with current lifestyles.

  11. harry palmer

    i had my phone taken because i was in isolation and when i finished my isolation i was meant to be given my phone back but instead they locked it in my head of years office so that i did a 1hr detention .

    please tell me what you think about this

  12. Was the headtecher allowed to confiscate my son’s phone? A bit of context: The incident happend outside school ground, on the way to school. My son and his classmate are walking to school by themselves, on the way to school they downloaded a Ghost detector app on my son’s phone. One of their school mates, a girl younger than them (2 years younger, her sister in the same class with the boys) approched them and askes what do they have there. They explained to her what that app is and she saw a red spot on the screen. Started to wail and make a complete drama, thinkong that is a ghost. The headtecher called to inform me about the incident and that she confiscated my son’s phone and that I need to come and collect it. Her version of the incident is different from my son’s. She has been informed by the mom of that girl, mind you that mom was way behind them, that my son told her that a ghost is following her and that her child is traumatized. I know the girl and she likes to get attention, but I know my son very well and he doesn’t lie as he knows there are consequences for lying. Although the app is not harmuful and age appropriate the headteacher judged me for giving permission to download this type of app and told me that what he has done was unforgivable. I’ve asked my son if he told the headtecher his side of the story and told me that he did, but was dismissed imediately.