Neville Harris, Professor of Law, University of Manchester
The report of an ESRC funded Anglo-Scottish research project on the rights of children and young people with special and educational needs and disabilities (SEND) (England) or additional support needs (ASN) (Scotland) was launched at a conference at the University of Manchester in June 2019. The film produced as part of the project (see the video above) was also shown and the conference was addressed by five young people who have SEND as well as by academics and professionals.
The focus of this interdisciplinary research (Grant Ref No ES/P002641/1) has been on the impact of the new participation rights accorded children and young people under part 3 of the Children and Families Act 2014 in England and the Education (Scotland) Act 2016. It has looked among other things at the extent of the effective realisation of these rights, the influence of parental authority, how far a children’s rights-based approach is being adopted and the way in which capacity for autonomous decision-making is understood and acted upon.
The rights have in principle given children and young people enhanced agency and a degree of autonomy over decisions concerning the determination of their needs and the educational provision intended to meet them. The rights are unmatched within the field of education decision-making and, among other things, appear to represent a significant step towards the realisation in this context of both Art 12 of the UN Convention on the Rights of the Child (UNCRC) and Art 7 of the UN Convention on the Rights of Disabled Persons (CRPD), which provide for the child’s views to be freely expressed on matters affecting the child and given ‘due weight’ in accordance with the child’s age and maturity, on a basis of equality for all children, and (under the CRPD) with those with disabilities being provided with ‘disability and age-appropriate assistance’ to enable them to realise their right. Young people, defined by the legislation as those aged 16 plus, hold rights independently and in place of their parent or carer, subject to a test of capacity. The rights include requesting an assessment of needs, expressing a preference for a named placement, and challenging a decision via mediation or an appeal to the First-tier Tribunal. In the case of children these rights are held by the parent or carer, but the child’s views must be considered. In Scotland, however, children with ASN aged 12-15 may exercise autonomous ASN rights if they have ‘sufficient maturity and understanding’ and notify the local authority that they wish to exercise their right, and if it would not ‘adversely affect the [child’s] wellbeing’ to exercise their right.
The ESRC research included a survey of all English and Scottish local authorities, interviews with over 40 key informants from a range of stakeholder bodies and professions, and 36 case studies of individual children and young people (interviewed along with their parent/carer and key support professionals) in three English and three Scottish local authority areas. The research was led by Professor Sheila Riddell (Edinburgh) in Scotland and Professor Neville Harris (Manchester) in England. Amanda Gillooly and Duncan Carmichael assisted the former, Gail Davidge and Lucy Dix the latter. The research team produced nine working papers across the various stages of the research. These reports, together with the final research report and details of other publications arising from the research, can be found on the project’s webpages (see below).
It is difficult to summarise the research findings in just a few sentences. But in essence we found that local authorities, schools and colleges in general evince a strong commitment to the principle of engagement with children and young people with SEND/ASN. However, there are many obstacles to the full realisation of participation rights. For local authorities, preparation for and implementation of them has been hindered by the squeeze on resources and the enormous pressures arising from the changes to ASN or SEN as whole – for example, in England, the transition from statements of SEN to education, health and care plans, the increase from 18/19 to 24 in the upper age of young people to whom they owed duties, and the increased demand for formal assessment of needs. The complexity of the legislation in Scotland is also an inhibitive factor. Moreover, while in England there are statutory duties to ensure provision for advice and support for young people, neither are always guaranteed. In both jurisdictions few young people exercise their independent right to invoke mediation or an appeal, and children’s participation in these processes is still quite rare. Levels of autonomy afforded children and young people by either parents/carers or professionals tend to be limited by a lack of clarity with regard to participatory capacity, with a constant risk that capacity will not (contrary to what is expected under the UNCRC or CRPD) be presumed. There is still a prevalent concern to protect children and young people from undue stress or emotional harm arising from participation. While appropriate in some cases, this may go too far in others. There were, however, instances of good practice in this field in which participation was facilitated through an adaptive child-centred approach. There was also evidence that collective participation, by which children and young people’s views feed into local authorities’ ongoing mandatory reviews of local SEND provision in England, was working reasonably well. But in the context of decisions in individual cases, there is still a considerable way to go in both jurisdictions before the participation of children and young people follows the course promised by the legislation.
At the launch conference there was a presentation of the research findings by members of the project team to which Professor Helen Stalford, Director of the European Children’s Rights Unit at the University of Liverpool, responded. Discussing the issue of capacity, she argued that there should be a shift of policy focus onto professionals’ capacity to elicit children’s views. She also addressed the economic context of human rights and the importance of resources. She stressed how investment in participatory rights for children and young people tends to yield wide long term benefits in terms of improved capability and reduced social costs. The importance of various levels of information about rights and their enforcement was also emphasised. Olly (a student with SEND and a member of the POWAR participation groups in Lancs) gave a powerful presentation on what being involved in decisions meant to him. Joe and Nicola (both Youth Ambassadors for Greater Manchester Youth Network) continued this theme and demonstrated, among other things, how young people’s views can successfully inform service planning. Debbie Nolan-Plunkett of Barnardos reflected on the importance of engaging with young people’s views. Two young people, Mathew and Rosie (also of POWAR), explained how having a participatory role in decision making has impacted upon their own lives, that young people can play a role in staff recruitment and how their group has used a range of different media to convey young people’s views about SEND provision and the impact of cuts. Sophie Pilgrim of Kindred, a body providing information and advocacy support for parents of children with complex needs in Scotland, explained how supporting parents was far from incompatible with children and young people’s participation, which in itself hinged on factors including age, complexity of need, complexity of the case and the child or young person’s capacity and their mental health. In the final session, Julie Hicklin (SEND Lead) and Michael Gallon (Project Officer working on children and young people’s engagement), both of Manchester City Council, explained how the children and young people’s rights agenda was being addressed in the city and the initiatives introduced to facilitate engagement and participation.