FXS v Mulberry Bush Organisation: Court of Appeal clarifies battery, false imprisonment and aggravated damages in school restraint cases

The Court of Appeal has handed down its judgement in FXS v Mulberry Bush Organisation Limited [2026] EWCA Civ 415, a case arising from the residential care of a child with autism spectrum disorder at a specialist school in Oxfordshire between 2008 and 2009. The judgement, delivered on 1 April 2026, addresses three significant questions: the ingredients of the tort of battery, the lawfulness of a novel restraint technique for the purposes of false imprisonment, and the threshold for aggravated damages.

Battery: hostile intent is not a required ingredient

The defendant appealed liability on the basis that battery requires hostile intent, relying on Wilson v Pringle [1987] 1 QB 237. Popplewell LJ firmly rejected that argument. Drawing on Lord Goff's observations in In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 and his own earlier analysis in Collins v Wilcock [1984] 1 WLR 1172, the court restated the ingredients of battery as: an intentional application of force, without express or implied consent, which is not generally acceptable in the ordinary conduct of everyday life and for which no lawful excuse exists. Hostile intent forms no part of this formulation.

On the facts, three incidents in which a care worker had restrained the claimant face down — a technique prohibited by the school's own policy and for which she had received no training — were found to constitute battery notwithstanding that physical restraint had been appropriate in each case. The court declined to disturb the first-instance findings, accepting that the care worker's physical size, her deployment alone with a child whose propensity for violence was well-documented, and the absence of any genuine dynamic emergency together rendered the restraints unreasonable. The compensatory damages of £6,000 were upheld.

False imprisonment: the "towel method" was lawful

The court reached a different conclusion regarding fourteen incidents in which staff had held the claimant's bedroom door shut using a towel wrapped around the internal handle — keeping the door ajar, maintaining staff contact, and preventing the claimant from attacking staff. The trial judge had found these to constitute false imprisonment, applying criteria from the 2002 DfEE/DoH Guidance which required planned physical interventions to be agreed in advance with parents and incorporated into written documentation.

Popplewell LJ held that this involved an error of principle. Departmental guidance, he emphasised, does not determine legality; the relevant question is whether the conduct was reasonable for the statutory purposes in s 93(1) of the Education and Inspections Act 2006, or for the fulfilment of the school's duty under s 87 of the Children Act 1989. Failure to consult parents in advance does not of itself render a particular deployment unreasonable.

The judgement also resolves a point of construction: s 93(1) extends to temporary seclusion and detention, not merely physical contact. The historical common law treated force and detention equivalently in the school context, and there is no principled basis for distinguishing between them when assessing lawful excuse.

On the evidence — including unchallenged testimony that the claimant sometimes preferred the towel method to physical restraint, that a gap was maintained throughout for communication, and that the technique was deployed as a means of de-escalation — each incident was found to be reasonable and proportionate. The false imprisonment findings and the associated £5,900 in compensatory damages were set aside.

Aggravated damages require egregious conduct

The court quashed the £4,000 aggravated damages award on the battery claim. Although witnesses had interpreted incident notes in terms the trial judge considered unrealistic, Popplewell LJ held that this fell well short of the conduct — high-handed, malicious, insulting or oppressive — that aggravated damages are designed to address. The witnesses had given evidence about incidents some fifteen years earlier in a challenging and specialised environment. The school itself had not been found to have conducted the litigation improperly, and the judge had expressly declined to award indemnity costs.

The appeal was allowed in part: the three battery findings and compensatory damages stand; the false imprisonment findings, and all awards of aggravated damages, do not.

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