Letter of the law
With draft legislation before the Scottish Parliament seeking to extend children's rights in the field of additional support needs and education, Iain Nisbet explores the current law and practice
The statutory guidance which accompanies the Act, a Code of Practice entitled “Supporting Children's Learning”, underlines the importance of these duties. First, it states that children and young people should be afforded the opportunity to express their own opinions, and have these taken seriously. It also states that children and young people should be encouraged to contribute to decision making, where appropriate, such as the setting of educational objectives, and the preparation of learning plans, reviews and transition planning. This goes well beyond setting up a pupil council or an eco-committee, and requires an active and on-going practice of pupil engagement. Participation is also specifically mandated in the preparation of a Co-ordinated Support Plan (CSP), on which the authority is required to record the views of the child and the parent. In the case of a young person, their views should be recorded. Where the young person lacks capacity, the views of their parent should also be recorded. However, writing in her 2007-2008 annual report, the first President of the Tribunals highlighted the review of 24 CSPs which were the subject of references that year. She found a disappointing lack of participation, noting: “In a third of those reviewed this part [parents views and child's views] was not completed or was very cursory. Where this is not completed then it would be helpful for the plan to state why this could not be completed. Other examples of bad practice were where in the parental comment box was typed, ‘Parent did not volunteer comment on the draft.’ In another where the views of the child were supposed to be recorded ‘none received to date’ was entered.” Similar concerns were expressed by one Tribunal, who were “...concerned that the child's views were not recorded in the CSP...” and “...also concerned that the appellant's views were recorded in very short compass...”.
The general principle that children should be educated in accordance with the wishes of their parents is long established. However, his principle is not absolute.
“Children and young people should be afforded the opportunity to express their own opinions, and have these taken seriously”
Two legal challenges to the education department of Strathclyde Regional Council in the 1980s demonstrated that the wishes of parents must be considered alongside other relevant factors – including “the avoidance of unreasonable public expenditure”. It is nonetheless, an important legal duty and one which is confirmed by the European Convention on Human Rights, which states that children should be educated in accordance with a parent’s “religious and philosophical convictions”. More recently, the importance of the views of the child has been recognised. The UN Convention on the Rights of the Child, which the Scottish Government has an obligation to uphold, affords “the child who is capable of forming his or her own views the right to express those
10 Children in Scotland October 2015
views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” Scots law reflects the international position and requires that each and every education authority adhere to these rights in practice. These principles of participation apply, even where the child or young person has additional support needs. At a national level, the Bill going through the Scottish Parliament looks to strengthen and extend these rights – but this is not new. The Education (Additional Support for Learning) (Scotland) Act 2004, which has been in force for nearly a decade, sets out a number of specific instances where the views of the child, young person and/or parent must be sought and taken account of.
The Presidential review also noted examples of good practice and highlighted alternative means used to express a child’s view: “For instance, where the child was not able to express their views, photos of the child at school were included; or in another the views of both the parent and child were expressed in first person terms indicating a real engagement with both to ensure that their views were properly and authentically recorded. A further example was where comments from a letter from the parent were copied into the report rather than just summarised.” Taking account of the views of the child will not always be straightforward. Indeed, the Code of Practice notes that in some cases, specific arrangements may have to be made to meet these requirements, using alternative or augmentative communications systems if appropriate. Further, the Code urges the recording of both what the young person actually expressed (whether through gesture, vocalisation or other means), what interpretation was made of that expression, and by whom. The best way of ensuring that a child's views can be recorded accurately and fairly is to make sure they are familiar and comfortable with giving their views, and used to having those views taken seriously. “Schools and early
years settings should create a climate where seeking children's views and encouraging participation in decision-making are everyday activities.” Similar considerations apply to seeking parents’ views, and particular consideration is given within the Code to ensuring “good relationships with parents, based on trust, openness and effective communication”.
“Taking account of the views of the child will not always be straightforward”
The Education (Scotland) Bill, currently working its way through the Scottish Parliament, seeks to strengthen the rights of children to express a view and to participate in the decision-making process in relation to their additional support needs. It also aims to ensure compliance with the UN Convention of the Rights of the Child by extending rights of appeal, dispute resolution and other formal requests to children with legal capacity. The Committee’s stage one report, published in September, notes several concerns about the proposals for the use of a “best interests” test – and with good reason. If a child has rights, then it is not for others to decide if it is in their best interests to use them. That is part of what it means to have rights – deciding whether and how best to exercise them. Despite these (and other) concerns, the Bill represents another step towards the full participation of children with additional support needs in their own education and, as such, deserves support. Iain Nisbet is Head of Education Law at Govan Law Centre The Education (Scotland) Bill The Education (Scotland) Bill was introduced to Parliament by Angela Constance MSP on 23 March, 2015 with the intention to impose duties in relation to reducing pupils’ inequalities of outcome. It contains provisions to modify the Education (Additional Support for Learning) (Scotland) Act 2004 and section 70 of the Education (Scotland) Act 1980; to make provision about Gaelic medium education, about the provision of school meals, for appointing Chief Education Officers and in relation to registration of independent schools and teachers in grant-aided schools; to extend the duty to provide early learning and childcare to certain children; and for connected purposes. A call for evidence was issued by the Education and Culture Committee, with a Stage One report published on 10 September, 2015. More information on the Education (Scotland) Bill can be found at www.scottish.parliament.uk/parliamentarybusiness/Bills /87330.aspx The stage One report can be accessed via http://www.scottish.parliament.uk/parliamentarybusine ss/CurrentCommittees/88283.aspx Children in Scotland responded to the initial call for evidence in May 2015. Read our response at www.childreninscotland.org.uk/policy-andresearch/previous-consultations
October 2015 Children in Scotland 11