Professional Documents
Culture Documents
Autonomy, Rights
and Children with
Special Educational
Needs
Understanding Capacity across
Contexts
Sheila Riddell
Moray House School of Education
University of Edinburgh
Edinburgh, UK
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature
Switzerland AG 2020
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Acknowledgements
v
vi Acknowledgements
Major thanks are due to Dr Grace Kong, who provided technical sup-
port throughout the project and formatted this book through its various
iterations.
Finally, this book is dedicated to my granddaughters, Sylvie and Cora
Jessop, who are already knowledgeable experts on children’s human
rights—as well as being fairly tough negotiators.
Contents
2 Research Methods 15
vii
viii Contents
11 Conclusion215
Index247
List of Figures
ix
x List of Figures
Fig. 4.6 Pupils with SEN by type of need and gender, England 2019
(Source: Department for Education. Special educational
needs in England: January 2019. Additional Tables: Table A) 59
Fig. 4.7 ASN identification by type of need and gender, Scotland
2019 (Source: Scottish Government, Pupil Census 2019,
Table 1.8)60
Fig. 4.8 Percentage of pupils within each ethnic group identified with
SEN in England, 2019 (Source: Department for Education.
Special educational needs in England: January 2019.
National Tables: Table 6) 61
Fig. 4.9 Percentage of pupils within each ethnic group identified with
ASN including English as an Additional Language in
Scotland, 2019 (Source: Scottish Government. Pupil Census
2019: special request data.) 62
Fig. 4.10 Percentage of pupils within each ethnic group identified with
ASN excluding English as an Additional Language in
Scotland, 2019 (Source: Scottish Government. Pupil Census
2019: special request data.) 63
Fig. 4.11 Pupils with ASN by SIMD decile, 2019 (Source: Scottish
Government, Pupil Census 2019, Table 1.16) 64
Fig. 4.12 Percentage of ASN pupils per category of need in the most
and least deprived areas, 2019 (Source: Scottish Government.
Pupil Census 2019: special request data.) 65
Fig. 4.13 Percentage of ASN pupils with a CSP per SIMD decile, 2019
(Source: Scottish Government, Pupil Census 2019, Table 1.16) 66
Fig. 4.14 Percentage of children with a CSP by type of difficulty, 2019
(Source: Scottish Government, Pupil Census 2019: special
request data) 67
Fig. 4.15 Registered appeals in England 2018–2019 (type of appeal by
percentage of total) (Source: Ministry of Justice. Tribunals
and Gender Recognition Statistics Quarterly, July to
September 2019. SEND tribunal tables 2018–2019) 68
Fig. 4.16 Registered appeals in Scotland 2018–2019, (type of appeal
by percentage of total) (Source: Tribunal Additional Support
Needs Forum, 8 May 2019: 13th Annual Report 2018) 69
List of Tables
xi
1
Children’s Independent Rights
in Education: Setting the Scene
Introduction
Traditionally, little attention has been paid to the independent educa-
tional rights of children and young people, with parental rights being
seen as paramount. Recently, however, the focus has shifted, with chil-
dren’s rights moving to centre stage. Policy and legislative changes have
been driven in part by international treaties such as the United Nations
Convention on the Rights of the Child (UNCRC), which was ratified by
the UK in 1991, and the United Nations Convention on the Rights of
Persons with Disabilities (UNCRPD), ratified in 2009. Children and
young people are no longer seen as passive recipients of education, but as
central to decision-making processes. In both England and Scotland,
those with special and additional support needs have been prioritised and
now enjoy enhanced and legally enforceable rights under the terms of the
Children and Families Act 2014 and the Education (Scotland) Act 2016.
The new legislation is of major significance because of the size of the
population currently identified as having special educational needs (SEN)
and additional support needs (ASN). Data from the Department for
Education for 2019 show that in England, 15% of the school population
was identified as having SEN, while Scottish Government data for the
same year show that 31% of children were identified as having ASN (see
Chap. 4 for further discussion). The central question considered in this
book is whether these changes indicate a great leap forward in terms of
realising children’s rights in practice, or whether they are merely cosmetic
and aspirational. Additional issues arise in relation to accessing the views
of children and young people with little or no speech, and those lacking
information and advocacy. Furthermore, given that parents have tradi-
tionally taken on the role of principal advocate for their child, questions
arise about the relationship between the wishes of the child and those of
their parent, particularly where these may be at variance with each other.
Finally, prioritising the wishes of children and young people throws into
question the role of local authority officers and school staff, given their
responsibility to ensure fairness in resource distribution.
This chapter begins with an overview of recent thinking about chil-
dren’s rights in education, including the upsides and downsides of the
focus on children as autonomous rights bearers. This is followed by a
brief overview of the legislation and of the empirical work informing the
later chapters and finally, a summary of each chapter is provided.
1
The Gillick case arose as a result of a health department circular which stated that a doctor could
prescribe contraception to a minor without parental consent. In 1985, Victoria Gillick mounted a
legal challenge against West Norfolk and Wisbech Area Health Authority on the grounds that
parents retained the right to determine what was in the best interests of a child under the age of 16.
4 S. Riddell
At the other end of the spectrum, some writers have questioned the
utility of autonomy as an over-arching principle in education, law and
medical ethics. In the context of medical rights, Foster (2009) has
described autonomy as a ‘tyranny’, which, if applied in an uncritical
manner, has the potential to work against service users’ best interests. He
suggests that ‘… autonomy flounders when it comes to the question of
the treatment of and withdrawal of treatment from children’ (Foster
2009, p. 121). In the use of the best interests test, Foster argues that the
law is ‘appropriately paternalistic’. He explains:
Lord Scarman determined that ‘As a matter of Law the parental right to determine whether or not
their minor child below the age of sixteen will have medical treatment terminates if and when the
child achieves sufficient understanding and intelligence to understand fully what is proposed’.
1 Children’s Independent Rights in Education: Setting the Scene 5
The child’s view of where its best interests lie should of course be ascer-
tained, and the older the child is, the greater the weight they will have, but
best interests, say the courts, are an objective matter: the child’s views are
pertinent but certainly not determinative. (Foster 2009, p. 123)
Children will now have, in wider measure than ever before, that most dan-
gerous but precious of rights: the right to make their own mistakes.
(Eekelaar 1986, p. 182)
An ongoing debate across many social policy fields concerns the age at
which children and young people should acquire specific rights. The
UNCRC suggests that rigid age limits should be avoided, and that deci-
sions should be made based on an individual child’s degree of maturity
and understanding. However, chronological age is still used in many
areas. For example, in the UK young people normally have the right to
vote at the age of 18, but in the Scottish referendum on independence in
2014, the voting age was reduced to 16. In the opposite direction, the age
6 S. Riddell
so that instead of dividing the population into those who receive or give
help, we recognise humanity’s interdependence.
To summarise, central to the critique of autonomy is the recognition
that the lives of children and adults are deeply intertwined and affected
by wider structural inequalities including those based on disability, social
class, gender, ethnicity, religion and age. The idea of the autonomous
child, like the myth of the autonomous adult, may have dangerous con-
sequences in terms of encouraging the view that individuals are respon-
sible for any adversity they may encounter, rather than recognising the
unequal distribution of risk in society. Ignoring the social, economic and
cultural factors affecting families may reinforce rather than challenge
social injustice. The idea of autonomy rights, taken to an extreme, has the
potential to foster dystopic rather than benign societal outcomes.
Despite objections to the reification of autonomy in the literature,
there is also a recognition that more needs to be done to ensure that chil-
dren are involved as central actors rather than bit-players in important
decisions affecting their lives. As noted above, international treaties have
been translated into domestic legislation in order to ensure that this hap-
pens. In the paragraphs below, I provide an over-view of the measures
which have been put in place in England and Scotland to further the
rights of children with SEN and ASN, outlining the rationale for com-
paring the two jurisdictions.
• The views, wishes and feelings of the child or young person, and the
child’s parents;
• The importance of the child or young person, and the child’s parents,
participating as fully as possible in decisions, and being provided with
the information and support necessary to enable participation in those
decisions;
• The need to support the child or young person, and the child’s parents,
in order to facilitate the development of the child or young person and
to help them achieve the best possible educational and other outcomes,
preparing them effectively for adulthood.
2
Now embedded in the Health and Education Chamber of the First-tier Tribunal for Scotland.
3
Via amendment of s.18(3).
10 S. Riddell
4
Now embedded in the Health, Education and Social Care Chamber of the First-tier Tribunal.
1 Children’s Independent Rights in Education: Setting the Scene 11
• The extent to which children (defined here as those of aged under 16)
and young people (those aged 16–24 inclusive) with SEN/ASN are
able to realise their participation rights effectively
• The degree to which the autonomy rights of children and young peo-
ple intersect with those of parents/carers and are driven by, or influ-
ence, the decision-making of schools and local authorities
• The way in which capacity for autonomous decision-making is under-
stood and acted upon in different social contexts
• The factors which promote or inhibit the realisation of autonomy
rights by children and young people with SEN/ASN, including those
who are looked after by the local authority
• The impact of a children’s rights-based approach on the broader educa-
tion and social policy landscape
References
Archard, D. (2004). Children, rights and childhood. London: Routledge.
Archard, D. (2015). Children, adults, autonomy and well-being. In A. Baggatini
& C. Macleod (Eds.), The nature of children’s well-being: Theory and practice
(pp. 3–14). Dordrecht: Springer.
Archard, D., & Skivenes, M. (2009). Balancing a child’s best interests and a
child’s views. International Journal of Children’s Rights, 17(1), 1–21.
Brighouse, H. (2003). How should children be heard? Arizona Law Review,
45(3), 691–711.
Department for Education (DfE). (2011). Support and aspiration: A new
approach to special educational needs and disability (Cm 8027). London: DfE.
Department for Education (DfE). (2012). Support and aspiration: A new
approach to special educational needs and disability: Progress and next steps.
London: DfE.
1 Children’s Independent Rights in Education: Setting the Scene 13
Department for Education, & Department of Health (DfE & DoH). (2015).
Special educational needs and disability code of practice: 0–25 years.
London: DfE&DoH.
Eekelaar, J. (1986). Emergence of children’s rights. Oxford Journal of Legal
Studies, 6(2), 161–182.
Farson, R. (1974). Birthrights. London: Macmillan.
Foster, C. (2009). Choosing life, choosing death: The tyranny of autonomy in medi-
cal law and ethics. Oxford: Hart Publishing.
Freeman, M. (2007). A commentary on the United Nations Convention on the
Rights of the Child Article 3: The best interests of the child. Leiden:
Martinus Nijhoff.
Holt, J. (1974). Escape from childhood: The needs and rights of children. New York:
E.P. Dutton & Co..
Lansdown, G. (2005). The evolving capacities of the child. Florence: UNICEF.
O’Neill, O. (1988). Children’s rights and children’s lives. Ethics, 98(3), 445–463.
Oswell, D. (2013). The agency of children: From family to global human rights.
Cambridge: Cambridge University Press.
Rutter, M. (1989). Pathways from childhood to adult life. Journal of Child
Psychology and Psychiatry, 30(1), 23–51.
Ryan, S., & Runswick-Cole, K. (2008). Repositioning mothers: Mothers, dis-
abled children and disability studies. Disability & Society, 32(3), 199–210.
Scottish Government. (2017). Supporting children’s learning: Statutory guid-
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(as amended). Edinburgh: Scottish Government.
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2
Research Methods
Introduction
This book draws on empirical data gathered as part of an ESRC-funded
project exploring the independent rights of children with special and
additional support needs. The research used a mixed-methods and cross-
border comparative approach, which I discuss below before turning to a
more detailed description of the specific elements of the research and
their links to the central theoretical focus of the study.
which these rights are realised within increasingly divergent school sys-
tems, drawing on sociological perspectives on the social construction of
choice and the impact of individual choices on education systems
(Vincent et al. 2013; Vincent and Ball 2006). Different educational gov-
ernance regimes in England and Scotland therefore provide the backcloth
for a natural experiment, allowing an exploration of the type of educa-
tional governance arrangements which are more or less conducive to the
realisation of children’s rights in SEN/ASN.
Despite the opportunities afforded by comparative studies of educa-
tional policy, there are also pitfalls. These pertain to different understand-
ings of central concepts, reflected in the use of different terminology and
categorisation systems. As argued in Chap. 3, SEN policy and practice in
the post-Warnock era of the 1980s developed along broadly parallel lines.
However, from the mid-1990s onwards, the promotion of parents as edu-
cational consumers advanced more quickly in England, reflected, for
example, in the establishment of the SEN tribunal, a modified version of
which was instituted in Scotland a decade later. As noted in the following
section, fundamental definitions of special and additional support needs
have diverged between the two nations, calling into question the reliabil-
ity and validity of cross-country comparisons. This book reflects the view
that, despite the undeniable differences in policy and practice, cross-
border comparisons are still interesting and relevant, as long as the reader
bears in mind the growing divergence across UK jurisdictions.