Theme 8 in the ASL Review is “Understanding Rights”. As a lawyer, and a former law centre lawyer at that, you would expect me to be in favour of a rights-based approach – as indeed I am.
Things have moved on since the Review was published. It notes the Scottish Government’s commitment to incorporation of the UN Convention on the Rights of the Child into Scots law. Now, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill has been passed by the Scottish Parliament. The Bill has been referred to the Supreme Court under section 33 of the Scotland Act 1998 by the Attorney General and the Advocate General for Scotland, which may delay implementation a little, but is unlikely (as I understand it) to have any significant impact on the main operation of the law.
Left with Rights
The Review sees definite benefits to incorporation – seeing it as “fundamental to making children’s rights real” allowing, as it does, “children .. to advance their rights in the Scottish courts”. In terms of the content of the Review, the themes of inclusion, participation and understanding of rights are identified as areas which need to be improved so that the ASL framework is a “robust rights based” one.
In terms of the rights which already exist in this area (including the rights held by children with additional support needs aged 12 to 15), the Review found that many struggled to find information about their rights. It goes on to note that “it is essential that rights and associated processes for the Additional Support Needs .. Tribunal should be clear and understood and barriers to access removed.” This is important so that it is not only those children whose parents or carers are capable and effective advocates can access their rights.
The Health and Education Chamber comes out of this section rather well, receiving deserved praise for taking into account “the needs and preferences of the small number of children and young people who engage with the Tribunal”. From personal experience, I can confirm that the Tribunal are really good at promoting and facilitating children’s involvement – whether the child is a party to the case, or it is one brought by their parent(s).
However, notwithstanding this focus on the Tribunal, the Review notes the importance of making provision (and resolving disputes) “at the earliest possible point”. Revisiting a recurrent theme, it notes the importance here of “positive relationships and communication” and even going on to suggest that it is the breakdown of such relationships which ultimately lead to “adversarial processes, which are distressing for all involved..”.
Plans and Planning
The next section looks at the use of plans and planning, an important area – but not an end in itself. The Review notes that the “range of planning formats and frameworks” can be “a source of confusion” for all concerned. Parents often found planning “overly complicated, time consuming and bureaucratic”, while professionals reported frustration at “complicated and overlapping planning processes.”
So, what does the Review suggest in relation to plans?
- “Planning and plans should be proportionate to complexity and purpose”;
- “planning to meet the needs of children and young people should be done at the earliest possible opportunity, with clear guidance and expectations set.”;
- “..there must be regular and proactive review – when needed, not just when required by legislation”; and most importantly
- “children, young people and their families should be at the centre of these discussions and given the support they need to be fully involved and engaged in the process.”
In terms of Co-ordinated Support Plans (CSPs), the Review is quite critical. It notes the fact that CSP “criteria are very narrow” (which is true). It also noted the risk of “need being defined by support provided” – that is, writing in the CSP the amount of support which can be allocated / spared for that child, rather than the amount which they might require.
Despite having been around for over 15 years, there remains “widespread misunderstanding by parents, carers and professionals too, about the purpose, relationship to other planning mechanisms (usually the Child’s Plan), eligibility, or legal entitlement / requirement for a CSP.”
The review notes that disputes about whether a CSP should be opened can arise because parents and carers see a CSP as a “gateway to access support”. This is understandable given the statutory basis of the plan and rights of appeal to the Tribunal associated with it. The Review suggests that better understanding of the CSP and its purpose would lead to fewer disputes, and urges that “a CSP must be viewed as a tool for effective planning, rather than an outcome.”
The Review has one recommendation in relation to the UNCRC:
- The incorporation of UNCRC and its impacts on Additional Support for Learning legislation and processes, must be fully anticipated and planned for to ensure children’s rights are embedded and effectively underpin the implementation of the Additional Support for Learning legislation.
For my own part, I would anticipate issues like restraint and seclusion, exclusion from school, failure to provide education where children are excluded or otherwise unable to attend, to be ones which are likely to have a significant UNCRC dimension.
The main recommendation in relation to planning again looks to a future review:
- The planned review of Co-ordinated Support Plans (CSPs) – first announced on 15 May 2019 – must take the findings of this Review into account.
- Also, it must consider:
- a) planning mechanisms within a whole life perspective for children and young people with lifelong conditions, including transitions between and beyond education settings.
- b) clarifying the interaction between CSPs, child’s plans and GIRFEC.
- c) the relationship between education and partners in health, social work and other agencies to identify where re-alignment is needed in the preparation and delivery of support.
- d) where improvements are needed in the availability and accessibility of information and guidance about planning and its processes for all parents, carers, children and young people.
Next up is the final theme: assurance mechanism and inspection.