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Autonomy, Rights and Children With Special Educational Needs: Understanding Capacity Across Contexts Sheila Riddell
Autonomy, Rights and Children With Special Educational Needs: Understanding Capacity Across Contexts Sheila Riddell
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Autonomy, Rights and Children
with Special Educational Needs
Understanding Capacity
across Contexts
Sheila Riddell
Autonomy, Rights and Children with Special
Educational Needs
Sheila Riddell
Autonomy, Rights
and Children with
Special Educational
Needs
Understanding Capacity across
Contexts
Sheila Riddell
Moray House School of Education
University of Edinburgh
Edinburgh, UK
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature
Switzerland AG 2020
This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether
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Acknowledgements
v
vi Acknowledgements
Major thanks are due to Dr Grace Kong, who provided technical sup-
port throughout the project and formatted this book through its various
iterations.
Finally, this book is dedicated to my granddaughters, Sylvie and Cora
Jessop, who are already knowledgeable experts on children’s human
rights—as well as being fairly tough negotiators.
Contents
2 Research Methods 15
vii
viii Contents
11 Conclusion215
Index247
List of Figures
ix
x List of Figures
Fig. 4.6 Pupils with SEN by type of need and gender, England 2019
(Source: Department for Education. Special educational
needs in England: January 2019. Additional Tables: Table A) 59
Fig. 4.7 ASN identification by type of need and gender, Scotland
2019 (Source: Scottish Government, Pupil Census 2019,
Table 1.8)60
Fig. 4.8 Percentage of pupils within each ethnic group identified with
SEN in England, 2019 (Source: Department for Education.
Special educational needs in England: January 2019.
National Tables: Table 6) 61
Fig. 4.9 Percentage of pupils within each ethnic group identified with
ASN including English as an Additional Language in
Scotland, 2019 (Source: Scottish Government. Pupil Census
2019: special request data.) 62
Fig. 4.10 Percentage of pupils within each ethnic group identified with
ASN excluding English as an Additional Language in
Scotland, 2019 (Source: Scottish Government. Pupil Census
2019: special request data.) 63
Fig. 4.11 Pupils with ASN by SIMD decile, 2019 (Source: Scottish
Government, Pupil Census 2019, Table 1.16) 64
Fig. 4.12 Percentage of ASN pupils per category of need in the most
and least deprived areas, 2019 (Source: Scottish Government.
Pupil Census 2019: special request data.) 65
Fig. 4.13 Percentage of ASN pupils with a CSP per SIMD decile, 2019
(Source: Scottish Government, Pupil Census 2019, Table 1.16) 66
Fig. 4.14 Percentage of children with a CSP by type of difficulty, 2019
(Source: Scottish Government, Pupil Census 2019: special
request data) 67
Fig. 4.15 Registered appeals in England 2018–2019 (type of appeal by
percentage of total) (Source: Ministry of Justice. Tribunals
and Gender Recognition Statistics Quarterly, July to
September 2019. SEND tribunal tables 2018–2019) 68
Fig. 4.16 Registered appeals in Scotland 2018–2019, (type of appeal
by percentage of total) (Source: Tribunal Additional Support
Needs Forum, 8 May 2019: 13th Annual Report 2018) 69
List of Tables
xi
1
Children’s Independent Rights
in Education: Setting the Scene
Introduction
Traditionally, little attention has been paid to the independent educa-
tional rights of children and young people, with parental rights being
seen as paramount. Recently, however, the focus has shifted, with chil-
dren’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 tradi-
tionally 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 chil-
dren’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.
1
The Gillick case arose as a result of a health department circular which stated that a doctor could
prescribe contraception to a minor without parental consent. In 1985, Victoria Gillick mounted a
legal challenge against West Norfolk and Wisbech Area Health Authority on the grounds that
parents retained the right to determine what was in the best interests of a child under the age of 16.
4 S. Riddell
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:
Lord Scarman determined that ‘As a matter of Law the parental right to determine whether or not
their minor child below the age of sixteen will have medical treatment terminates if and when the
child achieves sufficient understanding and intelligence to understand fully what is proposed’.
1 Children’s Independent Rights in Education: Setting the Scene 5
The child’s view of where its best interests lie should of course be ascer-
tained, 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)
Children will now have, in wider measure than ever before, that most dan-
gerous but precious of rights: the right to make their own mistakes.
(Eekelaar 1986, p. 182)
An ongoing debate across many social policy fields concerns the age at
which children and young people should acquire specific rights. The
UNCRC suggests that rigid age limits should be avoided, and that deci-
sions should be made based on an individual child’s degree of maturity
and understanding. However, chronological age is still used in many
areas. For example, in the UK young people normally have the right to
vote at the age of 18, but in the Scottish referendum on independence in
2014, the voting age was reduced to 16. In the opposite direction, the age
18 S. Riddell
which these rights are realised within increasingly divergent school sys-
tems, drawing on sociological perspectives on the social construction of
choice and the impact of individual choices on education systems
(Vincent et al. 2013; Vincent and Ball 2006). Different educational gov-
ernance regimes in England and Scotland therefore provide the backcloth
for a natural experiment, allowing an exploration of the type of educa-
tional governance arrangements which are more or less conducive to the
realisation of children’s rights in SEN/ASN.
Despite the opportunities afforded by comparative studies of educa-
tional policy, there are also pitfalls. These pertain to different understand-
ings of central concepts, reflected in the use of different terminology and
categorisation systems. As argued in Chap. 3, SEN policy and practice in
the post-Warnock era of the 1980s developed along broadly parallel lines.
However, from the mid-1990s onwards, the promotion of parents as edu-
cational consumers advanced more quickly in England, reflected, for
example, in the establishment of the SEN tribunal, a modified version of
which was instituted in Scotland a decade later. As noted in the following
section, fundamental definitions of special and additional support needs
have diverged between the two nations, calling into question the reliabil-
ity and validity of cross-country comparisons. This book reflects the view
that, despite the undeniable differences in policy and practice, cross-
border comparisons are still interesting and relevant, as long as the reader
bears in mind the growing divergence across UK jurisdictions.
How fearful
And dizzy ’tis to cast one’s eyes so low:
The crows and choughs that wing the midway air
Show scarce so gross as beetles.—Shakspeare.
On our first visit to the Pyramids we had our luncheon in the large
granite tomb a little below, and to the south-east of the Sphinx. One
feels that there is an incongruity, a kind almost of profanation, in
using a tomb, particularly such a tomb, for such a purpose. Its
massiveness, at all events, makes you conscious of a kind of
degeneracy in the present day. A sense of unworthiness and
littleness comes over you. What business have we, who send our
dead to heaven, and have done with them, to disturb the repose of
those on whose sepulchres a fortune was spent, if not by their
relatives, at all events by themselves? But on this occasion there
was little choice. Outside the sun was scorching, and the wind was
high, and the only alternative was the hotel. But that was impossible:
to be shut up in a hideous, plastered, naked room of yesterday,
within a few yards of the Great Pyramid. One would rather go without
one’s luncheon for six months together than have to bear the stings
of conscience for having so outraged the memory of Cheops and
Chephren. And so we took our luncheon that day in the tomb of one
of the great officers of the court of those old times.
It was formed entirely of enormous blocks and monolithic piers of
polished granite. I do not know of how many chambers it consisted,
for being considerably below the level of the surrounding sand-drift,
and the roof having been entirely removed, a few hours’ wind must
always completely fill and obliterate it. The Arabs then have to clear
it out again. When we were there four chambers were open. These
are all long narrow apartments. The one by which we entered runs
from west to east. At right angles to this are two other apartments,
their axes being from north to south. The fourth we saw was at right
angles to the north end of these two parallel chambers. It was in the
southern extremity of the westernmost of the two parallel chambers
that our party took their places. The comestibles were laid on a cloth
spread on the sand, with which the floor, to the depth of some
inches, was covered; the party reclined on the sand around, or sat
on blocks of granite arranged for seats. The hungry Arabs perched
themselves on the brink of the tomb, waiting for the fragments of the
feast, like vultures. The pert popping of the champagne corks again
disturbed ones sense of the fitness of things.
How was it possible to be there, and not feel the genius loci? The
whole of this edge of the desert, from Gizeh to the Faioum, is one
vast Necropolis. The old primæval monarchy lies buried here; at
Gizeh, Sakkara, Dashour, Abusseir, and throughout all the spaces
between and beyond, to the Faioum. No other empire has been so
buried.
In this wide field of the dead how much of early thought and
feeling, and life is storied. How much contemporary history in wood
and stone, in earthenware, and glass, and paint. Contemporary
history—not history composed, heaven save the mark! centuries
after the events, often by authors (sometimes truly the authors of all
they tell) who did not understand their own time, often merely for
bread and cheese;—not composed twentieth-hand from writings
which, even at their original source and fountain-head, were the work
of men who were not agents in what they endeavoured to record,
and who, not knowing truly the events, their causes, or their
consequences, were but ill qualified to write the record;—not
composed when the feelings and ways of thinking of the time were
no longer living things, but had died out, and other thoughts and
feelings come in their place, and when what the writer had to
construct had become obscure by party prejudice in politics and
religion, and by social misunderstandings. Nothing of this kind is
here. What is here is contemporary history, presented in such a form
that it is the actual pressure and embodiment of the heart and mind
of each individual. Here are the occupations he delighted in, the
sentiments that stirred him, the business that was the business of his
life, the clothes he wore, the furniture he used, the forms religious
thought had assumed in his mind, the forms social arrangements
had assumed around him. No people have ever so written their
history. Here is a biography of each man as he knew himself. Here
every man is a Boswell to himself. It is a nation’s life individually
photographed in granite.
We sat after luncheon taking our kêf, apparently absorbed in the
contemplation of the little fantastic wreaths of cloud formed by our
cigars. But the few remarks that were made showed that the
thoughts of most of us were occupied in resuscitating the past, and
repeopling the sacred terrain around with the grand impressive
ceremonies and funeral processions of five thousand years back.
What a scene must this have been then. The mountains—for that is
the meaning of the Pyramids—not rugged and dilapidated as now,
but cased with polished stone, each with its temple in front of it. The
many smaller Pyramids that have now disappeared, or are only seen
as mounds of rubbish, then acting as foils to their giant brethren.
Great Pyramids reaching all along the foot of the hills as far as the
eye could see towards the south: some of these still figure in the
landscape. The Sphinx was standing clear of sand with a temple
between his paws. Everything was orderly, bright, and splendid. The
dark red granite portals of the thousand houses of those, who slept
in the city of the dead, were standing out conspicuous upon the
sober limestone area, unchequered by a plant, unstained by a
lichen. The black basalt causeways traversed the green plain from
the silver river to the Pyramid plateau. The whole scene was alive
with those, who were visiting, and honouring, the dead, and
preparing their own last, earthly resting-places. Above all was spread
out the azure field of the Egyptian sky.
Opera basilica.—Bacon.