Bolton Data for Inclusion
The
Action Research Centre for Inclusion
(Sponsored
by: The Barrow Cadbury Trust)
at
Bolton Institute of Higher Education.
Data No 29 :
December 2000
Author(s) :
John Kenworthy and Joe Whittaker
Title :
Anything to Declare? The Struggle for Inclusive Education and Children’s Rights.
Abstract :
This paper argues for a clear and unequivocal message from those who advocate Inclusive Education I suggests that the compulsory segregation of children with ‘special needs’ will continue until the Law underwrites their rights to an equal choice of education. The message to advocates is to make the affirmation of children’s rights their primary goal, before resorting to detailed educational debates. It also highlights the plight of David McKibben and his family who have taken on the East Belfast Education Board to fight for David’s right to attend his local mainstream high school. David experienced further discrimination and rejection by the independent special needs tribunals. David and his family have welcomed the opportunity to gave their predicament highlighted in this paper, which asserts that the independent special needs tribunals and current United Kingdom education legislation are fundamentally at odds with the human rights of disabled and non-disabled children.
Anything to Declare?
The Struggle for Inclusive Education and Children’s Rights
If special schools have one
clear function, it is this: They
define the limit of adult society’s tolerance for children. These ‘special’ places have become the twentieth century
gulags, where the collective fear of children who are seen as different is
assuaged and their segregation from other children is reconstructed as
‘special’ treatment in a ‘safe’ environment.
These children are, in a very real sense, the ‘disappeared’ young
whose separation from ordinary children experience and the potential of ordinary
adult life is compelled by law. Challenging
this practice and the continued existence of special schools requires sustained
and coordinated effort between those organisations and individuals that advocate
for an inclusive education system. It
demands a shared conviction that whilst education may be the focus for a change
of practice, the central issue is much more crucial. It is about the right of the child to have an equal place
within this society. It is about
how children are actively encouraged to assert such rights and to what degree
those rights are overridden or abused for the convenience of professional
society.
The conviction that ‘inclusion’ is, at root, a matter of equality of rights
and opportunities is understood by many who advocate for a fair and just
education system.
| “Inclusion and
participation are essential to human dignity and to the exercise and
enjoyment of human rights”
(Salamanca Statement, 1994)
“By reminding everyone that there was a plan to end segregation because of the human rights of children and young people, it was somehow always just possible to gain some level of agreement about the way forward”. (Jordan and Goodey, 1996) |
This conviction is underpinned by some assumptions about how the general concept of ‘rights’ impact on the practice of compulsory segregation.
Firstly,
that segregation is an offence against the right of all children to be protected
from discrimination.
Secondly, those rights are asserted as self-evident and do not require
‘proof’.
Thirdly, that
the assertion of rights tends to cause offence to those with a vested interest
in denying such rights and maintaining status quo.
Fourthly, that purely technical, quasi-legal ‘proof’ related to one child,
without reference to the rights of that child, is a disservice to all children.
Fifthly, that
any ‘expert proof’ presented to maintain a child’s segregation from their
local school, is a way of supporting an injustice, by accepting the
discriminatory codes, structures and language.
We argue that it amounts to a professional abuse.
The greater the number and variety of special schools that exist, the less
likely we are to learn from children whose contributions may appear
significantly different. Children
are deemed acceptable when they:
All
schools have the power to subject all children to a wide range of petty rules
and restriction, which direct many aspects of their lives (Franklin, 1995). Moreover, these oppressive practices are fostered in a
climate where the voice of children is generally unheard (Whittaker, et. al.
1998).
In relation to children with ‘special needs’, these petty regulations are
compounded by the existing legislation which not only refuses to hear their
voice but assumes that it is the child’s behaviour or impairment which is
‘the problem’ or ‘the difficulty’ preventing their participation in
mainstream education.
In relation to disabled children, United Kingdom legislation continues to
operate within the medical model of disability (Kennedy, 1995; Hall, 1997). This way of thinking assumes that the child’s impairment
equates to the “child’s deficit” which will be “fixed” by the
professionals who will take the child through a process of assessment. This particular formal assessment was introduced in the
Education Act 1981. This act
requires a ‘Statement of Special Educational Needs’ to be made on the child
and this element of the 1981 Education Act has been retained in the subsequent
legislation, including the most recent Education Act 1996.
The ‘Statement’ will determine if that child has special educational needs if s/he has:
| A
significantly greater difficulty in learning than the majority of children
her/his age.
OR A disability, which either prevents or hinders the child from making use of the educational facilities of a kind generally, provided in schools. (Education Act, 1996) |
The assumption with the legislation however, is that the child will receive their education within the ordinary mainstream school, if three conditions can be meet:
In practice these three caveats
have come to be seen and used as loopholes in the existing education
legislation. They have encouraged
local authorities to preserve their special sector and the considerable budgets
they command to maintain segregation.
Local education authorities have argued that placing a child with ‘severe
learning difficulties’ in a mainstream school would so obviously interfere
with the learning of other children that there would be no purpose in admitting
the child even for a brief period of assessment.
For one youngster, well known to the authors, it was argued by the local
education authority that placing the child in a mainstream primary school would
be an inefficient use of resources. This
they argued was because the school was insisting on the erection of a perimeter
fence, costing seven thousand pounds, to offset an assumed risk of the child
‘running off’. At the point
this decision was made the child had never set foot on the school grounds. An extract from the independent special needs tribunal,
digest of decisions illustrates the logic, which allows special schools to
thrive:
| “16/98
The mother of X, a boy with moderate learning difficulties, wanting him to
be educated in a mainstream secondary school instead of the maintained
special school named in his statement. The LEA accepted that section 316
(of the 1996 Education Act) bound them to honour the parental preference
for a mainstream school, unless (inter-alia) a mainstream school would not
be suitable. The tribunal
accepted that the amount of support that X would require in a mainstream
school would be likely to damage his self-confidence and jeopardise the
progress already made. On the
other hand it was confident that the special school could make suitable
provision. The appeal was
dismissed.”
(Education Law Reports 1998) |
By
contrast, in the next decision cited in the same journal (17/98) the independent
special needs tribunal compelled a local education authority to provide fifty
five thousand pounds to finance a child’s third year placement at an
independent special school in the United States of America.
What many of the independent special needs tribunals decisions have in
common is the notion that separating a child from their natural peer group and
community is not in itself damaging to their self-confidence or sense of
identity. At least it may be argued
by some that any social disadvantage would be outweighed by the supposed
advantages of ‘special’ treatment and the further underlying assumption that
we all know what this ‘special’ treatment is.
As long as children do not fall foul of the three caveats of special needs law,
mentioned above, and in so far as they can learn rules of behaviour and respond
to particular a discipline they are conditionally allowed into the mainstream
school community. Children are seen
as less acceptable when they struggle to learn basic rules of behaviour, laugh,
shout or fail to control their bodies. When
they lack concentration, and need significant levels of support or
understanding. In other words, when
they become the subjects of a ‘Statement’ of special educational needs and
professionals using the same three caveats judge their acceptability.
An inability to conform to rules, learn from instruction or appear to be
different, tests the patience of adults and it is the intolerance of adults for
others, including children, which is, historically, the root of social and
political practices which lead to categorisation, segregation, isolation and
ultimately rejection. Such a
response to disabled children or those with ‘emotional and behaviour
difficulties’ appears to be at odds with the United Kingdoms government’s
current thinking:
| “Where
all children are included as equal partners in the school community, the
benefits are felt by all. That
is why we are committed to comprehensive and enforceable civil rights for
disabled people”
(DfE. Excellence for All, 1997) |
Ending the segregation of children is, above all, a human rights objective. The objective is the affirmation in law of the right of disabled and non-disabled child to be accepted as equal. This encompasses the common right of all children to attend their local school, in their local community, with appropriate support. This is an aspiration already stated in Article (2) on the United Nations Convention of Human Rights.
| “The
next most important right is to be regarded as equal value to non-disabled
children. Disabled children
must not be segregated, labeled or characterised as ‘special’
children; this de-humanises and isolates them”.
(Kennedy, 1995) |
Ending
the segregation of children also requires the planned closure of special schools
to remove the temptation to segregate children.
It requires the shift of resources towards support in mainstream setting.
It requires schools to change their way of thinking about disabled
children and a redefinition of the Law to give equal basic rights to all
children. It depends on achieving a
consensus, a shared conviction between young people, parents and survivors of
segregation, educationalists and policy makers.
That conviction must be that segregated education is a damaging and
archaic practice, incompatible with a civilised society.
When some children are supported in mainstream schools for some or all the time
we move a small step away from segregation on a long and difficult path toward a
more tolerant alternative. This is
the current state of affairs: a compromise, which sits comfortably with
segregation and depends on some ‘experts’ proving why some deserving
children ought to be included. It
allows the continued use of special schools, it does not require any major shift
of resources or thinking or a change in the law and does not require any
acknowledgement of the rights or aspirations of the individual child.
In contrast we promote ‘Inclusive Education’ which will value and meet the
support requirements of all children.
It cannot be fully realised whilst the option to segregate exists and it
cannot happen for some children some of the time.
Those who promote ‘inclusive education’ must be convinced of the
human rights foundation and be prepared to assert it plainly and publicly if
there is to be genuine progress toward equality for all children and their
families. By failing to assert the rights of the individual child we
undermine the credibility of the campaign for human rights of all children.
We can not hide behind the ‘illusion of choice’, whilst secretly
hoping that the necessary changes in the law will come about by stealth.
The demand for a change in the law has to be clear and unequivocal.
This is not to argue that current mainstream provision is any way near
perfect but that necessary changes will simply not occur without the
contribution and presence in the mainstream schools of those who are currently
excluded.
The current education legislation is the formal code, which underpins the
practice of compulsory segregation. It
is the threat of compulsion, which characterises the present system and
preserves the monopoly of special schools.
Families who challenge this monopoly can find themselves locked into
months if not years of exhausting and expensive disputes with their local
education authorities, independent special needs tribunals and the courts. High Court judgements related to ‘special education’ also
appear to be heavily influenced by
a medical model of disability, in which ‘the problem’ is seen as resulting
from the child’s impairment rather than the inappropriateness of support, or
the unwillingness to accept difference and diversity in children.
(High Court of Justice, 1997).
Efforts to change the law are slow but change is more likely to occur when the
damage caused to a child’s sense of self and place in the world by segregation
is more widely understood, particularly among educationalists and policy makers
(Rae, 1997). Finding a way forward
for an individual child in such a divisive system depends on reaching an
understanding with a school, local education authority or independent special
needs tribunal. Regrettably, the
understanding often achieved is that a particular child is ‘good enough’ or
‘able enough’ to fit in. This
does nothing to promote inclusion or assert the rights of all children because
it is a particular argument and such an argument, regardless of its value, is
not allowed, by existing education legislation to be generalised. The child’s right to attend a local school cannot and
should not be conditional upon the vagaries of the support available or denied
as dictated by the three caveats. These
three conditions have been subject to wide interpretation by different local
education authorities and have been used effectively to deny many disabled and
non-disabled children a place in their local mainstream schools.
Before 1993,
parents who sought to question and subsequently appeal against local education
authorities interpretations of the three caveats had recourse to a local panel,
consisting of elected local representatives.
It was generally recognised that such appeal procedures were lengthy and
bureaucratic, often creating logjams, which left families feeling distressed and
frustrated. Dissatisfaction with
the decisions of these panels could lead to an appeal to the Secretary of State
for Education. (Now Secretary of State for Education and Employment).
It was partly as a response to these concerns that changes were included in The
Code of Practice on Special Educational Needs, introduced in September 1994 (DfE
1994). A new independent special
needs tribunal was formed to replace the earlier two-tier appeals system.
There was a general expectation that the new independent special needs
tribunals would be fairer, quicker. Less formal and encourage a less adversarial
stance between the local education authority and parents.
During the passage of the Codes of Practice, the Director of the Council for
Disabled children suggested caution in relation to the independent special needs
tribunals.
| “The
advent of an independent appeals system has been widely welcomed, but the
process of going to appeal will always be traumatic; may contribute to
adversarial relationships between those who challenge and those who defend”
(Russell, 1994) |
Reference was also made to an American survey of parents of disabled children who used a similar system of United States of America public hearings. Russell referred to these findings which stated that significant numbers of parents felt that the procedures were ‘very negative’. She highlighted the importance of having an effective and fair appeals procedure:
| “The
moral for the future is that we need much greater honesty and respect between
parents and professionals and the LEA”
(Russell, 1994) |
Four years since their introduction there is little evidence or literature to suggest that the independent special needs tribunals have helped to challenge the injustices against disabled children. Where segregation is the issue, there is little evidence that they inspire confidence or the respect of parents. The independent special needs tribunal operates within a law that discriminates against disabled children and operates within the traditional ‘medical model’ of disability. Even when some children have ‘won’ their argument to be supported in mainstream schools the independent special needs tribunals are not bound by these precedents or ‘case law’ in a way which could promote a change in the existing culture or practice. Every new case presented to the independent special needs tribunal is a case which has to start from the same discriminatory practice and where every child and parent has to repeat the same laborious procedure, to justify their inclusion and acceptance, over months if not years of the child’s life.
| “Although
the tribunal aims at a general consistent approach, a tribunal hearing an appeal
is not bound to follow an earlier decision”
(Aldridge, 1999) |
Where
segregation is the issue the independent special needs tribunal is a wasteful,
prejudiced and unworkable system. It
is about as plausible as police investigations of mishandled police
investigations.
Parents who want their child to attend a mainstream school and appeal to the
independent special needs tribunal in the hope of an ‘impartial hearing’ are
often disappointed. This is not
wholly surprising as the tribunal members are constrained by a Law that not only
defines their role but also promotes institutionalised segregation for large
numbers of disabled children. Tribunal
members who argued any other line, for example, that every child has the same
rights in Law, could be accused of misrepresenting the Law as it presently
exists.
The common understanding we should be striving to achieve is that the child, by
virtue of being a child, has a moral, if not yet legal, right to be included and
accepted. Adults, by virtue of
maturity and experience, have a moral duty, to listen to them and promote their
right to be included and their acceptance.
Debates about resources or in-class support are likely to be reduced to test
scores, medical labels and relative costs when the common understanding is that
some children have to ‘prove’ that they can belong to the mainstream school.
In this instance ‘experts’ are given license to present their
technical evidence and argue about the construction of a system of in-school
support which ultimately has no firm foundation.
The child is exposed to the vagaries of support systems and left
vulnerable to their collapse. ‘Proof’
can be disputed or simply dismissed at any time during the child’s school
career. When segregation is the
issue at stake we should check our professional obsession with ‘proof’ and
question the morality of a system, which demands such proof.
Even children who have spent many years successfully supported in
mainstream primary schools can find themselves routinely rejected at secondary
level as the following story shows.
On a blustery Monday morning in mid-January 1999, two meetings were being held
at Stormont, Belfast, different in scale but equally important for those
involved. In the Northern Ireland
Assembly a deadlock on the issue of ‘decommissioning’ was threatening to
wreck the ‘Peace Deal’ again.
In the four-star
Stormont Hotel at the other end of the famous driveway an independent special
needs tribunal was in progress. Here
the deadlock was between a Belfast mother and her family and the East Belfast
Schools Board. Gail McKibben had
finally been given the chance to state why she believed that her son, David
should have the right to attend his local high school.
The East Belfast Board, who had insisted for three years that David
should attend a special school, opposed her.
The circumstances of David’s case have a familiar ring, to an
increasing number of parents with disabled children, but two features have
attracted extra publicity. Firstly,
in March 1998 Gail was threatened with a prison sentence by a magistrate if she
refused to comply with the East Belfast Board’s view.
Secondly, tribunal hearings in Northern Ireland have been rare to date
(David’s case is only the third in the North of Ireland compared with the
hundreds or so heard in the rest of the United Kingdom).
David McKibben is a friendly, outgoing teenager who loves company and enjoys
having a joke. David met many of his friends at the local primary school he
attended until the age of 11. Though
he requires some support he enjoyed his time in school and teachers reports were
consistently positive. Unlike his
friends and his older sister Laura and brother Robert, David was refused a place
at the local high school because he is a disabled child.
David remained at home was denied access to his local school for two and
a half years. Whilst most of his
friends are non-disabled David does have an understanding of disability and what
it means for him. He has been
involved in campaigning for the rights of disabled children and took part with
other young disabled people from the ‘Young and Powerful’ group in meeting
David Blunkett, the Secretary of State for Education and Employment.
He has on more than one occasion flown unaccompanied to conferences
outside Ulster, being met by friends at the airport.
This sense of confidence and identity has been helped, by his years in
the local school where he was accepted and was seen to be accepted as an equal
member of his community.
For the last three years, Gail has been locked in a dispute with the East
Belfast Schools Board about David’s education.
Her warm personality and beaming smile combined with unusual energy and
personal conviction have brought her to the attention of the local education
authority, the courts and, inevitable, the media.
Gail has lived in Belfast all her life and is no stranger to struggle.
She has been active in promoting disability issues for many years, across
the political and religious divides, since David was born, and is therefore,
easily type cast as an ‘activist’ who is putting her own views above the
needs of her son. She has been
accused, by one Belfast magistrate of “using her son as a battering ram to
change the system” the official solicitor at the East Belfast Education Boards
said she was someone “prepared to expose her son to the stress of
publicity”.
In many discussions with the authors, Gail spoke plainly on how she related the
needs of her son to the wider inclusion/civil rights debate.
| “Of course if I win David’s case, this may in the long run benefit other children but my prime objective is always my own son. If it has any knock-on effect for other children, then that’s a bonus but my personal human rights issues come from my own family and whilst it starts with myself as their mother, it goes out first to my own children. In this particular situation it’s David first, second and last” |
As
with so many other parents, Gail’s stand on her son’s behalf has attracted
attention. Mostly it has been
supportive but inevitably there have been viscous critics, mainly those with an
interest in maintaining the segregation of disabled children and those who fear
the exposure of publicity. Conflicts
inevitably generate interest and it is the minority party, which is more likely
to be glad of outside interest or support..
They are often pitted against huge organisations, such as education
authorities, which have lawyers to protect their employees from criticism
whether fair or unfair. Families do
not usually have that luxury and to ‘refuse comment’ to those who show an
interest (including the media) serves little purpose in such a vastly unequal
struggle. It is after all the
refusal of the East Belfast Education Board to allow David into his local
school, which has brought the McKibben family attention they would like to
avoid. It is ironic that it is
mostly the parent in these situations who is accused of ‘not putting the
child’s needs first’. Even
worse is when this view is used to infer that the parent is inadequate in some
way.
As ever, the laborious proceedings, ‘bundles’ of documents, and professional
jargon spoke more of bureaucratic ritual than justice and again raised concerns
about the independent special needs tribunal’s ‘impartiality’ and
quasi-legal status. At the outset,
the panel refused Gail’s request for an open hearing.
At the close, some six hours later, Gail’s team could not be sure
whether any hearts or minds had been won over.
Whilst the outcome of these hearings is always uncertain what is clear is
that having a ‘strong case’ is no guarantee in a system where ‘rights’
is an offensive word and where even professed ‘inclusionists’ avoid the use
of such language. Parents and
independent advocates of the disabled child’s right to belong to the
mainstream school, will often acquiesce to the ritual of the independent special
needs tribunals, in the faint hope, that they will be heard and justice will be
done.
Some weeks after the hearing Gail received the decision.
With the exception of an acknowledgement that David had good
interpersonal skills, the independent special needs tribunal rejected every
single argument put forward by Gail and her team.
The rationale offered was that David’s placement in the mainstream
school would not be consistent with the ‘efficient use of resources’. It is arguable that the outcome was predictable given the
current legal position and the domination of the Tribunal’s lay membership by
education professionals. (Whittaker and Crabtree, 1997).
In the early
1990’s there was optimism that the 1993 Education Act would tackle some of the
inequalities endemic in the 1981 Education Act.
The publication of the Act and the Code of Practice brought
disappointment to many but, as is so often the case for those campaigning to
change legislation, left some people with a hope that justice and fairness would
eventually emerge from the new legislation. Parents
were still only able to state a preference for a mainstream school and the three
notorious caveats remained unchanged. However,
the introduction of independent special needs tribunals’ appeared to be an
improvement on the earlier local appeals committees. Six years on however, there
is scant evidence that the, so-called independent special needs tribunals have
had any significant impact on the numbers of children being segregated or
excluded from school. Whilst they
may have some useful role in determining funding or resources to individual
children in school, they have been a serious impediment to the development of an
inclusive system of education in this country. The independent special needs tribunals continue to take
place behind closed doors, they have come to be seen as incestuous in that the
lay members they recruit are totally unrepresentative of the people they are
there to serve.
One of the most insidious features of the independent special needs tribunals is
how it presents itself as “Independent”.
Such a respectable perception has ensnared many people who would support
the general argument for ‘inclusion’. Many
professional advocates carefully avoid the use of words such as ‘equality’,
‘rights’ or even ‘inclusion’ on the assumption that their educational
arguments will be given equal status in the hearings.
There is evidently a worry that setting out the human rights agenda could
offend the sensitivities of the ‘impartial’ panel members and, possibly bias
the result. It should by now be
clear that the reason for concern here is that the ‘impartiality’ or
‘independence’ of the panel members has always been a matter of some doubt. It is, after all, well established that the membership of
independent special needs tribunal is weighted in favour of people with
experience of traditional special segregated provision firmly based within the
medical model of disability. (Whittaker and Crabtree, 1997).
In general it is professionally risky to be associated with controversial views.
It is generally more acceptable to one’s colleagues and professional
body to take the middle ground, to present the reasonable, impartial view.
Indeed it could be argued that much professional training guards the
individual against being or appearing to be ‘emotionally involved’. In the ‘caring’ professions colleagues see such an
approach as evidence that one ‘has lost the plot’.
However, in an area where fundamental inequalities define the system, not
being clear about the human rights issue is likely to reinforce those attitudes,
which focus on the individual child rather than the school system as ‘the
problem’. To present individual
cases to independent special needs tribunal hearings without any reference to
the basic inequalities in the system is to weaken the argument not only for that
individual disabled child but also for all children.
Such an approach amounts to the professional abuse of children, where
professionals collude with the power of government, local education authorities
and the independent special needs tribunals in deciding whether a child should
be accepted or rejected. In this
way detailed arguments about test scores, relative costs and diagnostic labels
carry far more weight than the right of a child to belong or be accepted.
The evident unwillingness of independent special needs tribunals to directly
seek the views of the child, let alone meet with them or allow them into
hearings, is yet another indication of the bias the procedure has toward polite
exchanges of views between professionals. This
is at least consistent with the difficulty the United Kingdom government has in
implementing Article 12 of the United Nations Convention on the Rights of the
Child, which included the following expectation:
| “State parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”. |
| “For
this purpose the child shall in particular be provided the opportunity to be
heard in any judicial and administrative proceedings affecting the child, either
directly or through a representative or an appropriate body, in a manner
consistent with the procedural rules of national
(UNICEF, 1995) |
In 1995 the United Nations Committee on the rights of the Child, had the following comments to make on the United Kingdom’s progress in this area:
| “The
Committee is concerned about the apparent insufficiency of measures taken to
ensure the implementation of the general principles of the Convention, namely
the provisions of its articles 2, 3, 6 and 12.
In this connection the Committee observes in particular that the
principle of the best interests of the child appears not to be reflected in the
legislation in areas such as health, education and social security which have a
bearing on the respect for the rights of the child”.
(UNICEF, 1995) |
Articles
2, 3, and 6 deal respectively with ‘non-discrimination’, ‘best interests
of the child’ and ‘survival and development’ but article 12: ‘The
child’s opinion’, is seen by many, particularly young people, as the
cornerstone of the convention. The
concern about this has been reflected in the creation of ‘Article 12’, a
nationwide organisation run by and for children.
The United Kingdom’s government’s next report to the committee is due
in the year 2000. What has been
done since 1995, particularly in the area of special education to improve the
representation of children’s views? If
tribunal decisions to date are any indication, there is still a long way to go.
Without an acknowledgment or statement on the wider political context we
represent the issues to independent
special needs tribunals in a vacuum. We
have to acknowledge shifts of thinking and practice, which may have been slow
but nevertheless distinct. A
similar tribunal five years earlier would have heard debates about whether a
child was even ‘educable’, that is, entitled to attend a school rather than
a health authority ‘Training Centre’. To
highlight such a shift in thinking and practice offers the opportunity for a
more visionary approach and gives context to particular arguments around one
child’s needs. It is also a clear
indication that the schooling system is slow to learn from its past experiences.
A stronger and clearer
position is needed where cases are taken to independent special needs tribunal
or to court; one that positively affirms the rights of the child to be protected
from discrimination and to have their voices heard.
There would be more clarity and, we would argue, a greater chance of
understanding and justice if the Courts and independent special needs tribunals
were presented with certain assumptions at the outset, before any detailed
supporting arguments were introduced. These
include:-
That the United Nations Convention on the Rights of the Child is accepted as the
framework for any judicial or administrative proceedings affecting the child.
That the current United Kingdom legislation on special education is
discriminatory and is in need of radical reform.
The practice of compulsory segregation is not compatible with a modern
education system.
That the child has right to express his or her own views in the proceedings,
either directly or, where this is not possible, indirectly through a
representative or recording.
That however inadequate the current education law, there is at least a
presumption that children should be educated in mainstream schools.
That the burden of proof therefore lies with the local education authority to
demonstrate that they have
exhausted their imagination and resources in trying to achieve this.
That it is assumed to be in the common interest that hearings are held in
public, not only for justice to be done but to be seen to be done.
Finally, and perhaps most importantly, that the special school is no longer a
viable option for the increasing number of parents who demand a genuine academic
and social education for their children.
These assumptions about the status of the child and the nature of
education need to be re-affirmed at every opportunity if the momentum for change
is to be sustained. Cases of
compulsory segregation presented to independent special needs tribunals and the
Court have greater integrity when they assert the child’s right to belong.
Asserting these views will inevitably offend those who would maintain a
divisive and unjust system but, whether cases are won or lost, those who
arbitrate will at least be required to examine their own assumptions, beliefs
and prejudices. When a more just
and inclusive system is achieved they may also reflect on their personal role in
promoting or denying the rights of these children.
| “Once segregation has ended it will not be long before we look back at
what we used to do to children and ourselves. Children have the right to be
together. They have the right To be
part of a community…”
(Jordan and Goodey, 1996) |
REFERENCES:
ALDRIDGE, T. (1999) in Education Law Reports, pp. 1-8 No. 1. Jordans.
DEPARTMENT FOR EDUCATION (1996) Education Act 1996 (London, Central Office of Information)
DPEARTMENT FOR EDUCATION (1994) Code of Practice on the Identification Assessment of Special Educational Needs (London, Central Office of Information)
DEPARTMENT FOR EDUCATION (1993) Education Act 1993 (Chapter 35) Sec 156 (2) (London, Central Office of Information)
DEPARTMENT FOR EDUCATION (1997) Excellence for All: Meeting Special Educational Needs (1997). (London, Central Office of Information).
FRANKLIN, B. (1995) ‘The Case for Children’s Rights: a progress report’ In “The Handbook of Children’s Rights. Edited by Franklin, B. Routledge.
HALL, J. (1997) Social Devaluation and Special Education. JKP
HIGH COURT OF JUSTICE (1997) Cranes V Lancashire County Council Reference CO/2654/96. High Court of Justice, Queens Bench Division. The Strand, London.
JORDAN, L. and GOODEY, C. (1996) Human Rights and School Change: The Newham Story. Center for Studies on Inclusive Education, London.
JORDAN, L. and GOODEY, C. (1996) ibid.
JORDANS (1998) Education Law Reports, pp 129-136, No. 2, p. 231.
KENNEDY, M. (1995) Rights for Children who are disabled. In Franklin, B. ibid.
RAE, A. (1996) Survivors of the Special School System. Bolton Data for Inclusion. Online. Available: http://www.sar.bolton.ac.uk/inc/index.htm
RUSSELL, P. (1994) The Code of Practice: New Partnerships for Children with Special Educational Needs. British Journal of Special Education, Vol.21 No.2 pp.48-52
RUSSELL, P. (1994) ibid
SALAMANCA STATEMENT and Framework for Action on Special Needs Education. (1994) UNESCO, Special Education Programme, 7, Place de Fontenoy 75352 Paris 07-SP
UNICEF (1995) The Convention on the Rights of the Child- The United Kingdom Committee for UNICEF: London.
UNICEF (1995) ibid.
WHITTAKER, J. and CRABTREE, C. (1997) How Independent are the Independent Special Needs Tribunals? Bolton Data for Inclusion. Online. Available: http://www.sar.bolton.ac.uk/inc/index.htm
WHITTAKER, J. and CRABTREE, C. (1997) ibid
WHITTAKER, J., KENWORTHY, J. and CRABTREE, C. (1998). What Children Say About School. Bolton Data for Inclusion. Online. Available: http://www.sar.bolton.ac.uk/inc/index.htm
Further information is available from:
Karen Barton (k.barton@bolton.ac.uk)
Bolton Institute
Chadwick Street
Bolton, BL2 1JW
England