Autonomy, Rights and Children with Special Educational Needs

Understanding Capacity across Contexts

Sheila Riddell

• Publisher: Palgrave Macmillan
• Year: 2020
• ISBN:
  9783030558253
• Topic: Education
• Subtopic: Educational Policy

This books examines the increased prominence of children's rights in education to ask whether we are witnessing a paradigm shift within the education system. The author uses a wide range of case studies from Scotland and England to examine the extent to which children and young people with Special Educational Needs/ Additional Support Needs are in practice able to realise their new rights of participation and redress. In addition, the book examines the ways in which the child's capacity to make independent decisions is understood and acted upon in different contexts, and the factors which ultimately promote or inhibit the rights of young people and children with SEN/ ASN. The author asks whether, in a context of tight budgets and often limited support, this new emphasis on children's rights can be seen as 'window-dressing' and a distraction from reductions in support for social welfare.

© The Author(s) 2020

S. RiddellAutonomy, Rights and Children with Special Educational Needshttps://doi.org/10.1007/978-3-030-55825-3_1

Begin Abstract

1. Children’s Independent Rights in Education: Setting the Scene

Sheila Riddell¹

(1)

Moray House School of Education, University of Edinburgh, Edinburgh, UK

Sheila Riddell

Email: [email protected]

End Abstract

Introduction

Traditionally, little attention has been paid to the independent educational rights of children and young people, with parental rights being seen as paramount. Recently, however, the focus has shifted, with children’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 traditionally 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 children’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.

Children’s Autonomy: Possibilities and Pitfalls

As reflected in the English SEN and Scottish ASN Codes of Practice, most education experts assume that taking account of children’s wishes and views will lead to better decision-making. However, the idea of children’s autonomy as the over-riding principle is contested in areas such as medical and family law (Freeman 2007; Taylor 2005; Rutter 1989). In the following sections, I provide a brief overview of current debates around the primacy of autonomy in legal and administrative decision-making concerning children and young people.

At the heart of the discussion is the extent to which children should be allowed to make independent decisions and whether, in deciding whether to act on children’s preferred course of action, account should be taken of any potentially negative consequences on their future life chances. Onora O’Neill (1988), for example, has argued that although children should be seen as rights-bearers, their vulnerability and need of protection makes them inherently different from adults. Whereas adults with capacity are expected to make choices and accept the consequences, O’Neill suggests that children may be unable to understand the future implications of choices made at an early stage in their lives, and therefore adults must always mediate children’s expressed wishes with a view to determining what is in their best interests. In addition, children generally lack the power to use formal mechanisms to enforce their rights, and as a result, they should not be expected to act as fully autonomous rights-holders. O’Neill does not seek to undermine the importance of children’s rights:

We may begin with a reminder of the appeal and importance of thinking in terms of children’s rights. Children easily become victims. If they had rights, redress would be possible. Rather than being powerless in the face of neglect, abuse, molestation and mere ignorance they (like other oppressed groups) would have legitimate and (in principle) enforceable claims against others. (O’Neill 1988, p. 445)

At the same time as arguing for the importance of children’s rights, O’Neill urges pragmatism in recognising the limitations of children’s autonomous decision-making, since, in her view, adults have a duty to ensure that children avoid making life-limiting choices. In addition, responsibility for the institutions and services supporting children lies with adults, not children themselves.

These arguments are broadly in line with Article 12 of the UNCRC, which suggests that the rights enjoyed by children should gradually increase in relation to their age and maturity. Rather than arguing that all children of a particular age should have exactly the same rights, the UNCRC reflects the view that rights should increase in line with the individual child’s growing maturity and ‘evolving capacities’ (Lansdown 2005). Post-Gillick¹ case law in the UK confirms the principle that decisions on a child’s capacity hinge on an assessment of his or her maturity and understanding. However, as noted by Archard (2004, 2015), there is an unfair asymmetry in the treatment of children and adults. All adults, other than those who are deemed incapable, are permitted to exercise autonomous choices irrespective of whether these are objectively wise or not. By way of contrast, children are required to demonstrate capacity in order to have their views taken into account, and in some areas (for example, voting) are judged as a group to be ineligible. By virtue of their age, adults are always in a position to make judgements about whether children’s views are in accordance with their ‘best interests’, even if the adult’s beliefs and judgements may objectively be against a child’s interests. With reference to legal decision-making in health in the UK and child protection in Norway, Archard and Skivenes (2009) argue that the child’s views are not authoritative, but neither should they be treated as merely consultative, as suggested by Brighouse (2003).

Criticising these types of approaches on grounds of paternalism, those adopting a children’s liberation perspective, such as Farson (1974), maintain that children should be regarded as fully autonomous rights holders with a similar status to adults. Along similar lines, Holt argues that:

The rights, privileges, duties, responsibilities of adult citizens [should] be made available to any young person of whatever age who wants to make use of them. (Holt 1974, p. 15)

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:

The child’s view of where its best interests lie should of course be ascertained, 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)

Eekelaar (1986) also discusses the tensions between different orders of rights owed to children. He notes that within the broad legal framework, children have basic, development and autonomy rights. Basic rights pertain to ‘general physical, emotional and intellectual care within the social capabilities of his or her immediate caregivers.’ These are linked to the child’s development rights, associated with access to resources in order to maximise future life chances. Duties associated with basic and development rights are held by parents and the state, with the state having powers to assume the role of corporate parent if birth parents fail in their responsibility to ensure that children are adequately cared for and educated. Autonomy rights are understood as the freedom of the child ‘to choose his own lifestyle and to enter social relations according to his own inclinations uncontrolled by the authority of the adult world, whether parents or institutions’ (Eekelaar 1986, p. 171). The problem, however, is that the deployment of autonomy rights by children may rob them of the opportunity to mature into rationally autonomous adults. In Eekelaar’s view, the direction of travel in legal judgements is towards autonomy rights, so that:

Children will now have, in wider measure than ever before, that most dangerous but precious of rights: the right to make...