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).

Callus, A-M & Farrugia, R. (2016) The Disabled Child’s Participation Rights London: Routledge. Foster, C. (2009) Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law Oxford: Hart. Freeman, M. (2007). Article 3 the best interests of the child. In A. Allen, J. Van Lanotte, E. Verhellen, & E. Ang (Eds.), A Commentary on the United Nations Convention on the Rights of the Child. Leiden: Martinus Nijhoff Publishers. Harris, N. (2020) Education, Law and Diversity: Schooling for One and All? Oxford: Hart. Hollingsworth, K. (2013) Theorising children’s rights in youth justice: The significance of autonomy and foundational rights Modern Law Review, 76, 6, 1046-1069. MacAllister, J. & Riddell, S. (2019) Realising the educational rights of children with special and additional support needs: paradigm change or more of the same? International Journal of Inclusive Education 23, 5, 469-472. Oswell, D. (2013) The Agency of Children: From Family to Global Human Rights Cambridge: Cambridge University Press.