Nick Hobbs is Head of Advice and Investigations at The Children and Young People's Commissioner Scotland, which promotes and safeguards children's rights.

This article was first published by The Children and Young People's Commissioner Scotland on 23 October 2019 and is reproduced here

This Care Experienced Week, we want to focus on human rights to education for Looked After children and young people.

Children and young people who are pupils in school have a legal right to receive additional supports for learning in education if they have additional support needs (ASN).

They also have the right to a Coordinated Support Plan (CSP) if they have ASN and they meet certain other criteria.

Parents, young people over the age of 16 and some children, aged 12-16, have the right to request an ASN assessment, request a CSP, and to access the 1st Tier Tribunal (ASN Tribunal) to resolve a dispute with their local authority about the nature or level of support that has been provided.

CSPs are significant for Looked After children, as they are legally presumed to have ASN and the majority of them will meet the other legal criteria as well.

That means the majority of Looked After children will be legally entitled to a CSP.

There are more than 14,000 Looked After children in Scotland, but research by Professor Sheila Riddell from the University of Edinburgh found that only 2.9% of Looked After children had a CSP in 2018.

So for Care Experienced Week, we’d like to focus on the barriers preventing both Looked After children and other children with ASN from accessing their right to CSPs in Scotland.

What is a Co-ordinated Support Plan?

CSPs are a critical way of ensuring children’s human rights to education are respected, protected and fulfilled.

They set out a child’s educational needs, then specify how their education authority will meet those needs.

And they give the child the right to take that authority to Scotland’s Additional Support Needs Tribunal to settle any disagreements that come up around the plan.

So CSPs are an important tool in ensuring the rights of children with ASN are respected. They reflect Article 29 of the UNCRC, which confirms every child’s right to additional supports for learning in education ‘directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.’

But right now, that isn’t happening for the vast majority of children with ASN in Scotland.

Less than 1% of children with ASN and only 2.9% of Looked After Children have a CSP

Local authorities must ensure that they provide CSPs to those children who are entitled to them. Other plans, like GIRFEC Child’s Plans or Individual Education Plans are not a substitute for a CSP.

The Education (Scotland) Act 2016 says that children aged 12-16 have the right to ask for a CSP, to challenge the failure to provide a CSP, or to challenge the content of a CSP. They can do this by referring it to the independent Tribunal. But these rights are subject to what the law describes as “safeguards.” In practice, though, these are unjustifiable barriers to a child exercising their rights.

Capacity test

The first of these safeguards is the capacity test, which starts from a presumption that children over 12 with ASN do not have capacity to exercise their rights unless they can prove otherwise. Children under 12 cannot exercise rights at all under the 2016 Act.

However, generally in Scots law, children aged 12 and over are positively presumed to be mature enough to form views and make their own decisions, and children under 12 may be able to do so. This is true for all children in this age group, whether they have ASN or not. Scots law presumes that a 12-year-old with ASN has the capacity to instruct a solicitor, appeal decisions of a children’s hearing and grant permission for their own adoption. But right now, it also presumes they aren’t capable of requesting their own CSP.

What this means is that the 2016 Act is in breach of Article 12 of the UNCRC. As the Committee on the Rights of the Child notes in its General Comment No 12:

“States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity.”

Furthermore, Article 7 of the Convention on the Rights of Persons with Disabilities requires that:

“States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.”

So the capacity test discriminates against disabled children by placing them at a disadvantage in terms of participation rights. It also discriminates against Looked After children, who are subject to the same test before they can exercise their rights.

Wellbeing test

Capacity is not the only hurdle children with ASN are required to clear in order to exercise their rights. The 2016 Act places another barrier in their way framed around the concept of adverse impact on their wellbeing.

Wellbeing in the Act is defined by seven indicators: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible and Included, collectively referred to as SHANARRI. But as a concept this was never designed to be part of a legal framework, and when used in this way it can be unworkably broad. While this breadth is exactly what makes it effective as part of a practice model, it becomes a significant weakness when used as a threshold to justify interference with human rights. This weakness was identified by the UK Supreme Court in the Named Person case.

 As wellbeing can be so broadly defined, a wellbeing test can be used to deny a child their CSP rights for a very wide range of reasons. And as one of the CSP rights allows a child to bring a local authority to an independent Tribunal, it may give that authority an unhealthy level of power over the process. A local authority can argue that a child’s wellbeing would be adversely affected by the process of going to Tribunal against them, and so prevent them from registering concern around their CSP. This may be a breach of Article 6 of the European Convention on Human Rights.

This is particularly significant for Looked After children, where there may not be a parent to exercise their own rights as an alternative. In these cases, the child would be wholly reliant on their corporate parent being prepared to support a challenge to its own decision making.

What needs to happen and what we’re doing

The law on CSPs uses the language of human rights. But we are concerned that, in practice, it leads to the exercise of these rights being unreasonably limited in some of the situations where they’re needed most.

We need action to ensure that Looked After children – and other children with ASN – are receiving their rights to CSPs. And the Scottish Government needs to change the law on capacity and wellbeing to remove those barriers and make the law human rights compliant. We intend to create a legal brief that highlights the legal obligations local authorities have around this issue, to empower human rights defenders to advocate for, and support children to claim their human rights.

The views expressed in this blog post are those of the author/s and may not represent the views or opinions of CELCIS or our funders.

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