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It has been accepted for some time within the area of Special Educational Needs (SEN) that important decisions about a child’s education are likely to be much more beneficial if they have been informed by the views of the child or young person themselves

The Children and Families Act 2014 built on and re-framed existing law to involve children in decision-making, giving them more power to participate, and created a new category of rights for those aged 16 or over.

In the past, a person under 18 was classed a child, with few independent rights, and all decisions were taken by the parent. Now, children aged 16 or over with SEN are classed as ‘young persons’ with independent legal rights. This has been seen as a very significant advance.

There’s a tendency to overlook the contribution that children with fairly profound difficulties can make. Professor Neville Harris and his team at the School of Law at The University of Manchester are researching how far these new rights are being delivered in practice and whether children really are being supported to contribute to decisions regarding their educational provision.

Neville explains the importance of legal rights in the context of SEN:

“It has been said by many that children have a unique insight into their own needs, so that must be fully taken on board if the best decisions are to be taken.

“It’s also important for children to have independent legal rights to ensure they’re viewed in a certain way by professionals and decision-makers within the system. There’s a greater likelihood that children’s views will be considered properly if there is a base of independent rights and they are legally recognised as rights holders.

“Around one sixth of the entire school population has SEN as defined by the law – so we’re talking about well over one million children in the system who are affected by this, just in England alone – it’s hugely significant.”

Professor Neville Harris
Professor Neville Harris

As part of their research, Neville and his team will be interviewing Local Authorities and parents, as well as establishing case studies of individual children drawn from representative parts of the special needs spectrum – children with different types and levels of disability.

They’ll also be speaking to children and young people, and going into schools and colleges to observe what happens and to see how involved children and young people really are in their own learning processes.

Neville says: “It’s all very well having rights on paper, but what happens in practice is the key.”

The research will be focusing on children with the most common SEN, such as emotional and behavioural problems, and specific learning difficulties like dyslexia and autism.

As well as ensuring the child’s involvement in decision-making, legal rights are hugely important when it comes to conflict in the decision-making surrounding a child’s education.

Neville says: “Local Authorities are obviously subject to financial constraints and SEN provision is often expensive. The overwhelming majority of children with SEN are educated in mainstream schools, usually with support provided by the school from its own resources. Then there’s a smaller number of children who require extra financial support – their needs have to be formally assessed and mapped out, along with a plan of provision to meet those needs. This is the most common cause for disagreement – what should be included in this plan.

“It’s a huge area of conflict between parents and Local Authorities, with Local Authorities having to spread their resources across all children, and parents wanting the best for their child.”

There’s a greater likelihood that children’s views will be considered properly if there is a base of independent rights

Professor Neville Harris

This volatile situation is also at risk of being compounded by evident inequalities in the education system, says Neville:

“It’s a classic case of a postcode lottery. Where you live can affect what provision is available, and there is much disparity across Local Authorities.

“Socio-economic background is known to be a major determinant of opportunity in general and when that is carried in to the field of SEN, the consequences can become even more limiting for children. We know it’s the better educated, more articulate parents who tend to be better equipped to put forward an argument to the Local Authority, and to prevail in that.

“Sometimes it’s a case of who shouts the loudest – which really isn’t fair.”

Neville and the project team are hopeful that this research will inform policy and improve the situation further for all children with SEN. He says:

“Certainly, the Department for Education (DfE) are very interested in our research, and we’re hoping to have a representative from the DfE on our advisory group.

“We also hope to influence the voluntary sector – children’s charities provide a lot of support, and our research will point them towards effective ways for overcoming some of the main barriers they face, amplifying children’s voices within the system.”

The School of Law has a very strong commitment to social responsibility, and a strong research ethos. This kind of research is representative of the School’s, and indeed the University’s, broader agenda and core values.

It’s these values that drive Neville’s obvious passion for the issue:

“Lawyers are often focused on things like contracts and divorce, which are very important areas, but we’re talking about individuals just starting out in life, with their futures ahead of them. These decisions could significantly affect how they develop and what opportunities they are going to have.

“So, for me, it’s a very important issue to get right, not only for the individuals, but for social justice. It’s about equality, and it’s an area where rights really do matter in terms of life chances.”

Read more about the project for mediation in Special Need Education

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