Conference Agenda

Until recently, little attention was paid to the independent educational rights of children and young people, with parental rights being seen as paramount (MacAllister & Riddell, 2019; Harris, 2020). Recently, however, the focus has shifted, with the rights of children and young people (CYP) 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) and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). CYP are no longer seen as passive recipients of education, but as central to decision-making processes. Legislation in England, Scotland and Spain now ensures that the legally enforceable rights of CYP with SEN exceed those of children who have not been so identified. The new legislation is of major significance because of the size of the population currently identified as having SEN/ASN in the three jurisdictions (Castilla y Leon: 7%; England: 15%; Scotland: 29%). The central issue considered in this symposium is whether CYP with SEN/ASN are able to use their new rights of participation and redress in practice, or whether the new rights are aspirational and tokenistic.

The three papers draw on findings from an ESRC funded research project entitled Autonomy, Rights and Children with Special Needs: A New Paradigm? (ES/P002641/1) conducted by researchers at the Universities of Edinburgh and Manchester between 2017 and 2019. A parallel research project with similar research questions was conducted over the same timeframe at the University of Burgos, Spain.

The central research question addressed is the following:

In the light of key international treaties and national legislative and policy developments, to what extent is a new era of participation rights materialising in practice for children and young people with SEN?

The specific objectives of the symposium are to analyse the extent to which:

• the needs of CYP with different types of SEN/ASN are identified, recorded and met;
• CYP participation rights in schools and classrooms are respected;
• CYP are involved in dispute resolution and enjoy access to justice.

Methods used include analysis of administrative data, qualitative work in schools and classrooms and analysis of qualitative and qualitative data relating to children’s involvement in different types of dispute resolution.

Theoretical framework

The implications of the current emphasis on CYP’s rights in SEN/ASN will be explored in relation to the contested notion of autonomy (Freeman, 2007; Foster, 2009). Conceptually, autonomy has a strong association with personal choice and the freedom to exercise it. The notion of autonomy as a right of the child is based on the precept that children as individuals are capable of making rational independent decisions, as long as inappropriate choices are not made which work against the child’s own interests. There are inherent tensions between recognising a child’s right to autonomy, while also taking into account their long-term interests and their evolving capacity (Hollingsworth, 2013) and the duty of care owed to children by parents and the state. While exploring the way in which the agency of CYP is being realised in the new legislative context, the papers take account of critical perspectives in the sociology of childhood. It is argued that an undue focus on the way in which children demonstrate agency may lead us to ignore the structural and cultural limits on children’s autonomy (Oswell, 2013). The authors underl9ine the dangers of an overly individualistic approach to rights, arguing that social rights for all children, including those with the most significant impairments, demand an understanding of inter-dependency between care givers and receivers (Callus & Farrugia, 2016).

Over the past years, there have been calls for child friendly justice in a range of social policy fields including family law, immigration and education. According to the Council of Europe (2011), child friendly justice is: accessible; age appropriate; speedy; diligent; adapted to and focussed on the needs of the child; respecting the right to participate in and to understand the proceedings; respecting the right to private and family life; respecting the right to integrity and dignity. The move towards a children’s rights approach has been supported by international treaties and by domestic legislation in England (The Children and Families Act 2014) and Scotland (The Education (Scotland) Act 2016). There is a general assumption, reflected in the SEN/ASN Codes of Practice for England and Scotland, that educational decision-making will result in better outcomes if informed by the views, wishes and feelings of CYP. However, little is known about CYP involvement in and experiences of SEN/ASN tribunals. The England/Scotland comparison is important because of historical differences in approaches to administrative justice in education, which are amplified in the recent extension of rights. In Scotland, children with capacity aged 12-15 are now able to make references to the First-tier Tribunal independently of their parents, whereas this right has only been extended to young people aged 16 and over in England. Despite the radical nature of the new rights, which the Scottish Government claims are the most progressive in Europe, little is known about the extent. This research addresses these gaps in knowledge, providing a timely assessment of the extent to which the principles of child friendly justice are reflected in practice on the ground. Data are drawn from ESRC project ES/P002641/1, and include analysis of tribunal and mediation data and case studies of CYP and their families. The main conclusions are that while the legislation is radical in substance and progressive in intent, results on the ground have been limited to date. Very few CYP have been the party in a dispute, although progress has been made in ensuring that the voices of CYP are heard at tribunals. The vast majority of cases are brought by parents, who continue to act as the principal advocates. Parents from poorer backgrounds are under-represented as tribunal appellants and existing support for families is increasingly limited.

Council of Europe (2011) Guidelines of the Committee of Ministers of the Council of Europe on Child-friendly Justice Strasbourg: Council of Europe. Cullen, M., Lindsay, G., Totsika, V., Bakopoulou, I., Gray, G., Cullen, S., Thomas, R., Caton, S., & Miller A. (2017). Review of Arrangement for Disagreement Resolution (SEND). Research Report. London: DfE/Ministry of Justice. Doyle, M. (2019), ‘A Place at the Table: young people’s participation in resolving disputes about special educational needs and disabilities’, forthcoming, UK Administrative Justice Institute. Harris, N. & Riddell, S. (eds.) (2011) Resolving Disputes about Educational Provision Farnham: Ashgate. McKeever, G. (2013) A ladder of legal participation for tribunal users Public Law, July, 575-598. Stalford, H., Hollingsworth, K. & Gilmore, S. (2017) Rewriting Children’s Rights Judgements: From Academic Vision to New Practice Oxford: Hart Publishing.

The year 2020 marked the thirtieth anniversary of the signing of the United Nations Convention on the Rights of the Child (UNCRC). At present, the national legislative development and that of the 17 autonomous communities incorporates the minimum standards proposed by UNCRC and UNCRPD but this development has not yet reached the educational legislation and in practice there are limitations to the participation of children and young people, particularly those with Specific Educational Support Needs (SESN) (Casado-Muñoz, Lezcano-Barbero, & Baños, 2019). Spanish research on child participation highlights the concept of "the voice of the child" (VdN) (Escobedo, Sales and Traver, 2017; Márquez and Sandoval, 2016). The studies emphasize the VdN as a matter of democratic life (Susinos, 2013), rather than defending a participatory and inclusive model based on children's rights and related policies (Byrne & Lundy, 2018). This need for further research in this field based on a new rights-based paradigm, particularly that defined by Article 12 of the UNCRC, led to the development of parallel research in Spain and Scotland, allowing us to compare the practical realization of rights in two jurisdictions in northern and southern Europe. The research revealed different levels of legislative development, administrative processes and approaches to dispute resolution. When asked to comment on the legislative development in Scotland, which give children with ASN the same rights as their parents, Spanish practitioners expressed reservations, believing that this approach might not work in their own context. Schools also varied, with some practitioners far more enthusiastic than others in their adoption of a children’s rights focus.

Byrne, B., & Lundy, L. (2019). Children’s rights-based childhood policy: a six-P framework. The International Journal of Human Rights, 23(3), 357-373. Casado-Muñoz, R., Lezcano-Barbero, F., & Baños, M.E. (2019). Participation and rights of children with Specific Needs of Educational Support in Castilla y León (Spain): Bridging the gap between policies and practices. International Journal of Inclusive Education, 23(5), 532-545. doi: 10.1080/13603116.2019.1580922 Escobedo Peiro, P.; Sales Ciges, A. y Traver Martí, J. (2017). The voice of students: His silence and professional culture [La voz del alumnado: Su silencio y la cultura profesionalista]. Educación XX1, 20(2), 299-318, doi: 10.5944/educXX1.11940 Márquez, C. y Sandoval, M. (2016). When is the improvement of student participation in schools? [¿Para cuándo la mejora de la participación de los estudiantes en los centros educativos?] Intersticios: Revista Sociológica de Pensamiento Crítico, 10(2), 21-33. Susinos, T. (2012). The possibilities of the voice of the students for change and educational improvement [Las posibilidades de la voz del alumnado para el cambio y la mejora educativa]. Revista de Educación, 359, 16-23.

This presentation examines administrative data gathered on pupils with special/additional support needs (SEN/ASN) in four jurisdictions: Spain, Scotland, England and Sweden with the aim of understanding the extent to which children’s right to an assessment of their special needs is being fulfilled in different contexts. The data is collected from the Educational Agency for Special Needs and Inclusive Education (EASIE) and from the responsible ministries in each country. It is acknowledged that being categorised as having SEN/ASN may be a double edged sword. On the one hand, a formal acknowledgement of learning difficulties may result in the delivery of additional resources and assistance, and provide opportunities to challenge inadequate educational provision. On the other hand, identification with SEN/ASN may lead to lead to educational marginalisation or exclusion. Much depends on the specific labels employed, which may be more or less stigmatising, and the extent to which they are applied disproportionately to specific groups. This presentation describes the categories used to identify SEN/ASN in the four jurisdictions, focusing on variation in the attachment of labels to specific groups of children. The data shows that, while there are disparities in rates of identification, boys and those from socially disadvantaged backgrounds are disproportionately identified with non-normative difficulties. Non-normative labels, such as social, emotional and behavioural difficulties, tend to be socially stigmatising and of dubious value to the child or young person in terms of enhancing their life chances. Implications with regard to the rights of children and young people to be educated in inclusive education systems are explored. While international treaties underscore the universal nature of educational rights, our data reveal wide disparities in how additional support needs are understood and catered for at national and regional level in Europe. This variation can also be problematic at an individual level for families that have to move across boundaries and require additional support for their children.

Ministerio de Educación y Formación Profesional (2019). Estadísticas. Enseñanzas no universitarias. Alumnado matriculado. Datos avance (2018-2019). Available at: http://www.educacionyfp.gob.es/servicios-al-ciudadano/estadisticas/no-universitaria/alumnado/matriculado.html Junta de Castilla y León (2017). Instrucción de 24 de agosto de la Dirección General Innovación y Equidad Educativa. Available at: http://transparencia.jcyl.es/Educacion/EDU_(DGIEE)_INSTRUCCION_2017-08-24_Datos_Acnees.pdf Scottish Government (2017). Pupils in Scotland, 2017, supplementary tables updated February 2018. Available at: https://www2.gov.scot/Topics/Statistics/Browse/School-Education/dspupcensus/dspupcensus17, accessed on 30.09.2019 ScotXed (2018). Data Collection Document, School and Pupil Census. Available at: https://www.gov.scot/publications/scottish-exchange-of-data-school-pupil-census/ Weedon, E., and Lezcano-Barbero, F. (2020). The challenges of making cross-country comparison of statistics on pupils with special educational needs. European Journal of Special Needs Eduction. 854-862. https://doi.org/10.1080/08856257.2020.1847763