This paper presents findings from an ESRC funded research project entitled Autonomy, Rights and Children with Special Needs: A New Paradigm? (ES/P002641/1).

The central research question addressed is the following:

In the light of key legislative and policy developments in England and Scotland, to what extent is a new era of children and young people’s autonomy/participation rights materialising in practice across the field of special educational needs (SEN) and additional support needs (ASN)? 

Objectives

The specific objectives of the research are to analyse:

• The extent to which children and young people with SEN/ASN are able to realise their rights of participation and redress;
• The degree to which the autonomy rights of such children and young people intersect with those of parents/carers and are driven by, or influence, the decision-making of schools and local authorities;
• The way in which capacity for autonomous decision-making is understood 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 education and social policy landscape.

Theoretical framework

The implications of the current emphasis on children’s rights in SEN/ASN will be explored in relation to the contested notion of autonomy (Freeman, 2007; Taylor, 2005). 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, whilst also taking into account their long-term interests and their evolving capacity (Hollingsworth, 2013). While exploring the way in children’s agency is being realised in the new legislative context, the research will take account of critical perspectives in the sociology of childhood, which point to an undue focus on the way in which children demonstrate agency, at the expense of an examination of the structural and cultural limits on children’s autonomy (Oswell, 2013).

Where education is concerned, there is a seemingly universal expert assumption, reflected, for example, in the UN Convention on the Rights of the Child and the English and Scottish Codes of Practice on SEN and ASN (DfE, 2015; Scottish Government, 2017), that decisions will be better if informed by children’s wishes and perceptions of their needs. However, from a wider perspective there are ongoing debates, often challenging adults’ assumptions, about the point at which children should be regarded as capable of making independent judgements concerning matters affecting them. This paper examines the contrasting policy contexts in England and Scotland and the extent to which children with SEN and ASN are being helped or hindered from exercising their rights of participation and redress in different geographical contexts and school settings. 

The research uses the following methods: 1. Quantitative analysis of English and Scottish administrative data to explore patterns of identification, placement and use of redress mechanisms; 2. Analysis of policy and legislation underpinning children’s rights in the fields of SEN and ASN in England and Scotland; 3. Surveys of local authorities’ approaches to implementing legislation on the rights of children with SEN/ASN; 4. Key informant interviews in England and Scotland (20 in each jurisdiction) to explore perceptions of the children’s rights agenda in education, particularly SEN/ASN. 5. Case studies of six local authorities (three in English and in Scotland) to explore the implementation of the new legislation; 6. Forty eight case studies of children with SEN/ASN and their families to investigate the impact of policy change on individuals with different characteristics and in different settings. The eight case studies per authority focus on children whose primary needs fall within the four most common overall official categories of SEN/ASN (Riddell et al., 2016): (1) social, emotional and behavioural difficulties (Scotland) and social, emotional and mental health difficulties (England); (2) moderate learning difficulties; (3) speech, language and communication difficulties; and (4) autistic spectrum disorder. Case studies are drawn from different deprivation quintiles , ethnic groups and age groups, and reflect a gender balance. We are also selecting cases from different types of school (local authority maintained mainstream and special; academies (England only); other special schools). This paper draws principally on analyses of administrative data (Carmichael and Riddell, 2017), policy and legislation (Harris, 2018), local authority surveys and key informant interviews to illustrate the similarities and differences in approaches to children’s rights in SEN/ASN, and the practical implications of these differences.

With reference to earlier work on SEN and ASN policy in England and Scotland (Harris, 2009; Harris & Riddell, 2011; Riddell & Weedon, 2009; Riddell & Weedon, 2010; Beaton & Black-Hawkins, 2014), we examine the impact of historical policy frameworks on current approaches to children’s rights. In Scotland, the emphasis on professionalism and bureaucracy has limited parents’ and children’s rights, whereas the focus on consumerism and rights in England has advanced parents’ rather than children’s rights (Harris, 2018). In England, the greater focus on consumerism and rights is illustrated in the use of Education Health and Care Plans (EHCPs), which have strong statutory underpinning and stipulate the resources to be allocated to individual children. In Scotland, Co-ordinated Support Plans (CSPs) have weaker statutory underpinning, with practitioners at school and local authority level exercising considerable discretion in resource allocation. EHCPs and the tribunal in England are used for more extensively than their counterparts in Scotland (Carmichael and Riddell, 2017). The paper concludes by suggesting that the realisation of children’s rights in Scotland is hindered by their association with CSPs, which are only issued to 0.3% of children, a proportion which is declining year on year. England, compared with Scotland, has a stronger rights tradition associated with SEN, although these rights have generally been accorded to parents rather than children. In both jurisdictions, the extent to which children are able to realise their rights is compromised by the complexity of the legal terrain. In addition, cuts to public sector funding are leading to reductions in SEN/ASN staff, limiting children’s meaningful participation.

Beaton, M. C., & Black-Hawkins, K. (2014) Editorial: Changing policy and legislation and its effects on inclusive and special education. Special Issue. British Journal of Special Education, 41(1), 340–343, DOI: 10.1111/1467-8578.12084. Carmichael, D. A. & Riddell, S. (2017) Working Paper 1: An Overview of Statistics on SEN in England and ASN in Scotland Edinburgh: Centre for Research in Education Inclusion and Diversity. Department for Education (2015) SEND Code of Practice: 0-25 Years London: DfE 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. Harris, N. (2009) Playing catch-up in the schoolyard? Children and young people’s ‘voice’ and education rights in the United Kingdom. International Journal of Law, Policy and the Family, 23(3), 331–366. Harris, N (2018) Working Paper 2: Legislative and Policy Developments in Special Educational Needs in England and Additional Support Needs in Scotland: Advancing Children and Young People’s Rights Edinburgh: Centre for Research in Education Inclusion and Diversity. Harris, N., & Riddell, S. (2011) Resolving Disputes about Educational Provision. A Comparative Perspective on Special Educational Needs. Aldershot: Ashgate. Hollingsworth, K. (2013) Theorising children’s rights in youth justice: The significance of autonomy and foundational rights Modern Law Review, 76(6), 1046–1069. Oswell, D. (2013) The Agency of Children: From Family to Global Human Rights. Cambridge: Cambridge University Press. Riddell, S., Adler, M., Farmakopoulou, N., & Mordaunt, E. (2000) Special educational needs and competing policy frameworks in England and Scotland Journal of Education Policy, 15(6), 621–635. Riddell, S., & Weedon, E. (2010) Reforming special education in Scotland: tensions between discourses of professionalism and rights Cambridge Journal of Education, 40(2), 113–131. Scottish Government (2017) Supporting Children’s Learning: Code of Practice (Third Edition) 2017 Edinburgh: Scottish Government. Taylor, J. (ed.) (2005) Personal Autonomy: New Essays on Personal Autonomy and its Role in Contemporary Moral Philosophy Cambridge: Cambridge University Press.