A new independent review of special educational needs services conducted by Ipsos has found that, under the current system and processes, early intervention for children is almost impossible.
The report highlights the need for urgent reform. It builds on a number of critical reports and provides recommendations to improve support for children and young people with special educational needs and disabilities (SEND).
The Children’s Law Centre (CLC) has welcomed the report and called for urgent action, and the necessary ringfenced funding, to ensure meaningful changes are made to provide earlier and more effective support.
Rachel Hogan, SEND expert at the Children’s Law Centre, said:
“This is a welcome report that highlights a number of failures already well known to those who work with children with special educational needs and disabilities. We have been raising these issues for many years and at CLC we see the negative impact on children in our daily work.
“This is the latest in a number of damning reports highlighting the many failures to enable equality of access to education for children with SEND and offering solutions to fix this broken system. We now need urgent action.
“Interventions must come earlier and the obstacles to securing support must be removed. Interventions should be focused on outcomes for the child, rather than internal process-focused outcomes. Those who work with children should be better trained on how to identify and provide special educational support, with all children’s services co-operating to put support around the child, with schools becoming more accessible and inclusive educational spaces.
“The report also highlights the urgent need for investing in reform. The Children’s Law Centre, along with 200 organisations and individuals, recently wrote to the Secretary of State for Northern Ireland, Chris Heaton-Harris, to raise concerns around cuts to children’s services. Playing politics with our children’s futures and failing to properly invest in stabilising and reforming SEND services will not only continue to harm children but it will strip our economy of valuable financial resources and a properly educated workforce in the long-term.”
In two landmark cases, the High Court in Belfast has declared that the human rights of disabled children were breached when they were refused access to school transport, which denied them access to education. The cases were brought before the court through applications seeking leave for judicial review. After the Education Authority (EA) provided solutions for each child, legal declarations were secured through agreement that the children in both cases had been deprived of their right to education under Article 2 of Protocol 1, along with Article 14 of the European Convention on Human Rights.
The cases were brought by the Children’s Law Centre (CLC) on behalf of two children after a referral for specialist legal services by the charity Angel Eyes as part of a joint EqualEyes project with CLC, which protects the equality rights of children with visual impairment. The CLC legal team argued that prolonged and disproportionate Covid restrictions on school transport for reasons related to disability were unjustifiable and unlawful, interfering with the right to education.
One child was unable to attend specialist education placements in person for all but one day of nursery and for the entirety of the P1 and P2 academic years. The best interests of the children and their legal entitlements were entirely discounted within the decision making processes of the EA.
After protracted negotiations to seek and develop alternative educational and transport arrangements for the children, the CLC legal team secured landmark declarations where the EA acknowledged that the children’s human rights to education had been breached during the relevant time periods and they were treated differently to other children because of their disabilities.
Speaking after the conclusion of the case, Rachel Hogan, of the Children’s Law Centre, said:
“This is a significant legal milestone for these children, and for all disabled children who have been denied access to services which enable equality of opportunity. The High Court declarations reinforce the importance of ensuring that public authorities do not place unlawful systemic barriers in the way of disabled people, including disabled children. Failure to ensure accessibility of services throughout society is capable of breaching the human rights of groups of children who are protected by law.
“When we look at the experience of disabled children throughout Covid, including failures to identify mitigations before implementing restrictions, and also their much slower and ongoing return to normal life compared to others, we get a real understanding of the multiple barriers they face. In our legal casework, CLC sees a system-wide failure of equality for disabled children and their families that reaches far beyond the education sphere and into every element of daily life.
“The remedial actions taken and acknowledgements given to these children by the EA are therefore welcome as it is entirely right that public authorities should openly identify barriers to equality in order to enable these to be removed.
“We hope these landmark declarations serve as a significant reminder to public authorities and duty bearers more generally that disabled children and young people are entitled to equal treatment and equality of opportunity in all aspects of life.”
Speaking anonymously by order of the courts, a parent of one of the children welcomed the decision:
“I brought my child’s case to the attention of the Children’s Law Centre as I felt no person or child should be treated differently due to their disability and medical requirements and excluded from transport and vital education and learning with their peers. My child was made to feel different. This declaration will hopefully promote learning from public bodies and understanding that all children should be treated inclusively.”
A parent of the other child spoke of his frustration that his child was treated unfairly:
“This is an important recognition of the failure to treat disabled children fairly, particularly through Covid restrictions. While my child was being denied access to school transport and denied their right to education, other children were permitted to travel on packed school buses with no masks.
“My child was denied access purely on the basis of their disability, with no serious effort to risk assess the situation or consider the best interests of my child.
“I’m pleased with the declaration, I only wish it wasn’t yet another case where a disabled child has to go to the courts to get access to services. I hope the Education Authority learns from this and properly considers the impact policies have on disabled children.”
An immediate impact
Since securing access to education, the impact on the children was clear to see. One of the children initially received sessions of home education and immediately began to show signs of improvement. She began sleeping better, had more energy and became much happier in herself. She is now fully enjoying social and sensory stimulation, loves going to school and is learning to communicate. The family have more ability to recharge their batteries and to carry out their intense caring role while also looking after their younger child. The child now goes to school three days, has home tuition two days a week and is gradually moving towards full time school based education.
Speaking about the collaborative EqualEyes project, Karen Wilson, Education Advocate Lead at Angel Eyes said: “This result demonstrates the benefit of collaborative work to identify needs and protect the rights of disabled children and young people. Through our work in the EqualEyes project, we were able to identify additional barriers to education and signpost across the project to our partners at CLC to find a legal remedy.”
High Court Declarations
JR226
IT IS HEREBY DECLARED that:
The Proposed Respondent breached Section 6 of the Human Rights Act 1998 for the period of time from 24th February 2021 to June 2022 insofar as there was an unlawful interference with the Applicant’s access to education and he was treated differently to other children in the State on the basis of his medical condition contrary to Article 2 of the First Protocol to the European Convention on Human Rights in conjunction with Article 14 ECHR.
JR225
IT IS HEREBY DECLARED that:
The Respondent failed to discharge its obligations under article 16(5) of the Education (Northern Ireland) Order 1996 to arrange that the special educational provision indicated in the applicant’s Statement was made for her at school, for the period of time from September 2020 to June 2022, save for periods whereby the applicant was unable to attend school because of illness or otherwise including 16th September 2021 to 24th September 2021 and 15th November 2021 and 28th November 2021 and other various dates;
The Respondent failed to discharge its obligations under Article 86(1) of the Education (Northern Ireland) Order 1998 to make arrangements for the applicant’s suitable education at school or otherwise for various periods of time between September 2021 and February 2022 when the applicant was unable to attend school due to the lack of school transport or unfit to attend school but was fit to receive education at home;
The Respondent breached Section 6 of the Human Rights Act 1998 for the period of time from September 2020 to June 2022 insofar as there was interference with the applicant’s rights under Article 2 of the First Protocol to the European Convention on Human Rights in conjunction with Article 14 ECHR, as there was interference with the Applicant’s access to education on the basis of her medical condition and she was treated differently to other children in the State because of her disability.
Systemic failings worsened by the impact of COVID-19
Daily life still impossible for many as we emerge from the pandemic
07 April 2022
The Children’s Law Centre (CLC) and the National Autistic Society NI have warned that disabled children and adults are being discriminated against because of the lack of adequate service provision to meet their needs. The charities, who advocate for people with complex and high support needs, witnessed a sharp increase in the number of people, particularly children, who have lost access to vital services in the past number of years.
However, both charities insist the systemic failings have been there for a long time, and only worsened by the response to the pandemic. While others in society return to everyday life, many disabled children and adults have been ignored and left isolated, living restricted lives and having their freedoms and autonomy severely curtailed.
Speaking ahead of a special hustings debate titled ‘Forgotten Voices’, the charities called for urgent and meaningful action to address the failings.
CLC Mental Health Solicitor, Eamonn McNally, said: “We should be horrified and ashamed at the treatment of disabled children with complex needs. What some young people, as well as their parents and carers, are having to go through is nothing short of a disgrace in a modern society. How can they expect to live their lives without access to the services that make that possible?
“We know from recent reports that the health and well-being of disabled people has not improved as restrictions have lifted, and that their access to health services continues to remain limited. This is reflected in our everyday casework at CLC, which has grown in both size and complexity.
“Respite services have been crippled for many years and the impact of the pandemic has exposed the inequalities for disabled children and adults. But we can’t hide behind the pandemic or make excuses, these failings have long been apparent. Disabled children have a wide range of legal rights and those rights include access to services that allow them to live a full and dignified life, as well as services to support carers by providing them with the help they need to maintain care for their loved ones within the family home.
“The failure to provide adequate services to children with complex needs and their families breaches a range of fundamental human rights.”
Shirelle Stewart, Director of National Autistic Society NI, added: “As we emerge from the pandemic, much of society is feeling the benefits of a return to normal life. Yet this isn’t the case for many disabled adults and children with complex care needs, including many autistic people. Many are still facing a daily struggle to cope, as services remain wholly inadequate in providing for their needs. In some cases, already stretched services have disappeared completely.
“When are we going to start listening to the people who have had to suffer most during the pandemic and start giving them their lives back? We need to listen to the voices of people with complex needs, their families and carers. Their concerns need to be acted upon by the government and public authorities, recognising their protected status under Section 75 of the Northern Ireland Act. We need to see a significant drive towards joined up, properly planned and funded cross-departmental work, including the collection of disaggregated data to assess the level of unmet need.
“Disability discrimination in education settings, including informal exclusion, part-time schooling or no schooling, lack of required therapeutic input, failure to provide school transport to disabled children with complex needs and unauthorised restrictive practices must end. “Anything less than swift and targeted action by government departments and public authorities to address these unmitigated inequalities will be an abject failure of human rights compliance.”
Case Story
Jillian Black is mum to Peter who is nearly twenty. Peter is autistic and has a severe learning disability, ADHD and uncontrollable epilepsy, Peter can often become distressed because of his profound disability, which can result in harm to himself, others or property. When Peter was in children’s services he accessed four overnights a month. Although this was not a lot, it provided a welcome break to providing the 24/7 care that Peter needs.
When Peter turned 18 he entered adult services and the family have never been told what their assessed respite is. Since becoming an adult, he has only had four nights respite, two in December 2020 and two in spring 2021. The respite unit he was using had to be closed to house an adult on an emergency placement.
Peter’s mum, Jillian, said:
“You just feel absolute desperation when you are told that you will have no respite. We don’t begrudge our caring role but providing care on a 24/7 basis with no breaks really takes its toll. There is only me and his dad, as his sister is at university, so we are exhausted. No one would expect anyone to work all that time with no breaks.
“Peter is at the age where he needs to become less dependent on his mum and dad and allow others to help, but the lack of respite is not allowing this transition to happen. We don’t know what will happen in the future.”
The Children’s Law Centre has urged the Education Authority (EA) and the Department of Education to grasp the opportunity for meaningful improvements to the special educational needs and disability (SEND) process. The briefing comes at a time when the EA is conducting an internal improvement plan, including input from key stakeholders. It also follows shortly after the Children’s Law Centre submitted a critical response to draft SEND code and regulations.
In a briefing to the NI Assembly Education Committee, a number of key areas were identified to ensure improvements are meaningful and achieves positive outcomes. This included the need for meaningful consultation with children, their parents and carers. Other issues raised included the need to focus on early intervention and improve primary decision making, in the knowledge that over 97% of SEND Tribunal appeals achieve a successful outcome.
Rachel Hogan, the Children’s Law Centre SEND expert said: “The failings in the system have been largely operational, rather than caused by legal deficiencies. There is a robust legal framework around SEND – compliance is key. The EA and the Department must grasp this opportunity for improvement. It should be meaningful and must benefit those who are impacted by it – children.
“The SEND framework is there for the children & young people who need it. When will their voice be heard? How will they be empowered to participate in driving improvements & monitoring outcomes? This is a key concern if we want to make meaningful improvements. If we listen to those who are impacted – namely children, their parents and carers – then we can go a long way to providing better solutions.
“Those solutions must include a process for identifying unmet need, improving primary evidence-based decision making and a cultural shift in how we treat children with special educational needs and disabilities.”
Children’s Law Centre Service during Covid-19 Health crisis
We are not receiving post at present, all communication to be sent by email.
As a result of the current health crisis, and in accordance with government advice, all Children’s Law Centre staff are now working from home. We will continue to deliver services to the best of our ability and within ongoing restrictions.
What about Children’s Human Rights during the COVID-19 Pandemic?
The United Nations Committee on the Rights of the Child recently set out that “…restrictions must be imposed only when necessary, be proportionate and kept to an absolute minimum” and that “States should respect the right of every child to non-discrimination in its measures to address the COVID-19 pandemic as well as take targeted measures to protect children in vulnerable situations…States should ensure that responses to the pandemic, including restrictions and decisions on allocation of resources, reflect the principle of the best interests of the child.”
For answers to your legal FAQs on how COVID-19 impacts on children’s rights click here>>>
Brief note on children and the Mental Capacity Act (NI) 2016 and temporary changes to Deprivation of Liberty Safeguards during COVID-19 emergency, click here>>>
If you are concerned about how COVID-19 may impact on children’s enjoyment of their legal rights and you require further legal advice please email: info@childrenslawcentre.org
You may contact individual Children’s Law Centre staff via email. Please initially contact Sarah McAuley on reception@childrenslawcentre.org
If you have already been in contact with a member of staff please contact the relevant member of staff directly.
Email addresses for Children’s Law Centre staff are below:
reception@childrenslawcentre.org
sarahmcauley@childrenslawcentre.org
barbaramuldoon@childrenslawcentre.org
catherine@childrenslawcentre.org
claire@childrenslawcentre.org
dianehammond@childrenslawcentre.org
eamonnmcnally@childrenslawcentre.org
samnelson@childrenslawcentre.org
emmaroseduffy@childrenslawcentre.org
helenrafferty@childrenslawcentre.org
kathrynstevenson@childrenslawcentre.org
liammackle@childrenslawcentre.org
mariamccloskey@childrenslawcentre.org
paddykelly@childrenslawcentre.org
rachelhogan@childrenslawcentre.org
Sinead@childrenslawcentre.org
If you wish to contact our legal advice service you may continue to do so by emailing: info@childrenslawcentre.org
Please note that CHALKY our Free Phone Advice Line has been suspended until further notice.
We will continue to monitor government advice and hope to be able to return to a full service as soon as it is safe to do so.
Please stay safe and well.
Children’s Law Centre Management Committee and Staff
This includes requiring each country, every five years or so, to make a report on their progress to an international committee of experts on children’s rights (this is called: ‘The United Nations Committee on the Rights of the Child’). This Committee will then visit those countries to check if they are doing what they should be for children and let them know where they need to improve.
People should think about ways to make sure everyone knows about the Convention, regardless of their age. There should be training around how to do this, especially for those who work with children and young people.
Countries are free to give children and young people more rights than the Convention lists; they just can’t take away the rights that are given by it.
the government should always try to make sure that your rights:
are realised in practice
actively help you to live a safer and happier life
It also means that the government should take steps so that you and the adults who work with children and young people all know about the UNCRC.
The age of criminal responsibility in Northern Ireland is 10, however the UN Committee on the Rights of the Child say that this is too low and have asked our government to raise the age of criminal responsibility to at least 14 years old.
The government must do all that they can to protect you and look for your family so they can reunite you. If your family cannot be found, the government must provide you with the same support and protection as any other child that has been separated from their family.
This includes being taken from where you live against your will and forced to live somewhere else.
It is your right to learn and practice your language, customs and religion. The government must do all that they can to support you and make sure you do not face unfair treatment or discrimination as a result of this.
Our government should make sure you can participate in fun activities you like e.g. places to meet and socialise with friends, sports, youth clubs and cinemas. You should also have opportunities to enjoy cultural life and customs for instance taking part in special events and activities.
The government should;
Make sure primary education is compulsory and free
Develop different types of secondary education, for example vocational training, and offer accessible guidance to all young people on their options
Offer financial support for young people who cannot afford further education
Work to reduce dropout rates from school
Make sure all school disciplines are appropriate, for example teachers should not use violence or harm children or young people
Your education should:
Respect human rights and freedoms
Respect the environment
Respect your family, identity, language, your values and the values of communities different than your own
Prepare you for life when you leave school for example understanding, peace, tolerance, equality and friendship with people of all backgrounds
The government should help your parents/guardians to provide for you. This includes supporting you, or a parent/guardian on your behalf, to make a claim for social security benefits, offering support and training, clothing, food and housing.
This support and training should also include teaching you about the effects of drug use and the government should protect you from any harm you might suffer if your parents/guardians are using drugs.
You have the right to clean water and nutritious food so that you can stay healthy. You should also be taught about nutrition, hygiene and how to keep yourself safe.
The government should make sure you have access to education, training, health care services, rehabilitation service, preparation for employment and recreation opportunities necessary for your development, especially if you have a disability.
The government should do as much as they can to make sure you grow up happy, healthy and safe.
This includes providing you with child-care or other arrangements if your parents/guardians are working.
If you are living in conflict, it may be in your best interests to place you in a different country.
Your other rights must still be met, for example keeping in contact with your parents where it is safe to do so.
Some examples of being in the care of the government are when you are living in;
care homes
foster care
hospitals
residential schools
boarding schools
prisons
detention centres
rehabilitation centres
If it has been decided that the best option for you is alternative care (e.g. foster care, a children’s home or being adopted),
there should be independent checks to make sure that your rights are respected.
You have the right to keep in contact with your family if they are living in a different country, and to leave your country to live with your family, where possible.
Applications to reunite a family involving children can be made by children who are outside the UK,
to join their parent(s) with leave to remain in the UK, subject to meeting requirements set out in the Immigration Rules.
Being kidnapped also includes being taken from where you live against your will and forced to live somewhere else, e.g. being sent to a different country against your will.
The government must understand that your parents and family are important people in your life.
The government must also see that, generally, as you get older and more mature you should have even more say in these types of decisions.
For example;
If your parent is in prison you have a right to visit them if you want to, so long as this is in your best interests.
If you are in care, your parents may still be involved in decisions affecting your life. They should be helped to do this in a way that respects your rights and is in your best interests.
This includes help for survivors of:
violence
sexual violence
neglect
exploitation of any kind
abuse
torture
armed conflict
trafficking
This also applies to young people who are suspected of having breached immigration laws, such as asylum seekers and refugees.
You should be protected from anyone doing anything to your body that you do not want them to do, this includes physical punishment in school or for someone to touch you, to take inappropriate pictures of you, or to use images of you in a negative or inappropriate way.
Some types of harm include physical or mental violence, injury or abuse, neglect, maltreatment or exploitation. There are also traditional practices in some cultures which can cause harm to children, such as forced marriage, food restrictions, scarring/branding and other body modifications.
The government must help to make sure that people are never violent or harmful towards you and they should take steps to prevent you from harming yourself in any way.
You are free to join a peaceful protest about issues you feel strongly about e.g. climate change and your privacy should be respected when doing this, but you don’t have a right to meet others for unlawful purposes e.g. to cause harm to other people.
Some young people living in places like residential homes, juvenile justice centres or hospitals, may find it difficult to have their own space. Regardless of where you are living, you have a right to privacy.
Everyone should have access to the media and the internet, including young people whose freedoms are limited e.g. those in the Juvenile Justice Centre. Young people with a disability or where English is not their first language should get the help they need to access the media. You should be protected from harmful media for example material that shows graphic violence.
You can express yourself in different ways such as talking out loud or posting things on the internet. Your parents/guardians can guide you in this but as you get older and more mature, your ability to hold beliefs that are different from others must be respected.
For example, if your religion/beliefs are different from other students at your school, your teachers should make sure you have the chance to practice your religion and customs during school hours, if you want to. You should be able to follow your own beliefs as long as these beliefs respect and don’t cause harm to others e.g. you don’t have the right to reveal private information or say harmful things about a person that are not true.
Your identity is made up of many different parts, including:
Your name and nationality
Your race, culture, religion and language
Your appearance, abilities, gender identity and sexual orientation
The government should not interfere with your right to any of these and they should be able to help if any of these things are taken away from you.
For example;
Children in care – This means that your name should not be changed, unless you want it to be.
Stateless children – being stateless can affect whether you can go to school or to the hospital. The government should not have any laws that discriminate on the basis of ethnicity, race, religion or gender to cause statelessness.
If you are in care you have a right to have a say in where you are going to live. If you are in a hospital you have a right to have a say when there are different treatment options available to you. As you get older and more mature you should have even more say in these types of decisions.
The government should do as much as they can to make sure you grow up happy, healthy and safe.
This means all adults, like your parents/guardians, teachers, social workers, doctors and the police. When adults make decisions that will affect your life they must always think about what’s best for you and make sure you have a say in these decisions, where possible.
Discrimination can be direct or indirect. For example;
Direct: If someone did not get a job because they had a disability or a different skin colour.
Indirect: If everyone had to climb up a flight of stairs to get to an after-school club, this would discriminate against children who couldn’t do that because of a physical disability.
Training
Training
Due to the current Covid 19 Public Health Emergency all CLC’s face to face Training Calendar Events are postponed until further notice. We are hoping to offer online training seminars in the near future. Dates for online events and booking details will be posted to this page in due course…
The provision of training and information events are integral to the work of the Children’s Law Centre. All training delivered by CLC is directly informed by legal, policy and legislative developments relevant to children and young people and is underpinned by the key principles of the United Nations Convention on the Rights of the Child, ratified by the UK Government in 1991:
Article 2 – Non discrimination
Article 3 – Best Interests of the Child
Article 12 – Voice of the Child
CLC training aims to support all stakeholders in making children’s rights a reality in this jurisdiction by:
Raising awareness and understanding of children’s rights
Promoting the protection and mainstreaming of children’s rights
Links to online booking feature for future use?
Youth Participation and Advocacy
Youth Participation and Advocacy Project
The work of the Children’s Law Centre is guided and informed by the views of children and young people, particularly youth@CLC, our youth advisory panel.
Youth@CLC work closely with our Youth Participation and Advocacy Worker and other youth forums/young people in schools to raise awareness of children’s rights issues in Northern Ireland and advocate for positive change in children’s lives using children’s rights.
Youth@CLC inform our work and government policy affecting children through:
Participation in consultation responses
Running children’s rights projects and campaigns
Policy Work
Policy Work in CLC
CLC’s policy work ensures that where proposed governmental policies or legislation will impact on children and young people, government is reminded of its obligations to deliver on children’s rights as it is set out in the United Nations Convention on the Rights of the Child.
Some of the policy work we do includes:
Making consultation responses
Providing policy briefings to decision makers, partner organisations, children and young people and the general public
Delivering policy training
Making written and oral submissions to NI Assembly Committees
Carrying out consultations with children and young people and representing the views of children and young people to government
Legal Services
Our values
Our legal services are child focussed and the child is always our client.
We ensure that public authorities, tribunals and courts recognise children as rights holders with the right to express their views and have those views taken into account.
We strive to ensure that when decisions are being made that impact on the lives of children we represent…
The voice of the child is always heard ,
The child’s best interests are at the heart of decision-making
All children have equality of access to their legal rights, regardless of their age, background or circumstances
Chalky – Free phone Advice Line 0808 808 5678…(phone and email icon and address)
Our CHALKY legal advice and information service was launched in May 2000. We provide a free child friendly legal advice and information service, which deals with over 2000 issues annually. Our service provides free advice by phone or email to children and young people, their parents/carers and professionals with legal queries relating to difficulties in school, access to services for disabled children, special educational needs, mental health service provision, homelessness, family law issues and other general legal queries.
We can provide advice on children’s rights relating to the following areas:
Family Law
Being Looked After
Youth Justice
Mental Health Law
Access to Medical Services
Access to Family Support Services
School Admissions
Suspensions and Expulsions
Special Educational Needs
Social Security Benefits
Employment
Leaving home
The Human Rights Act
Equality and Discrimination
Housing
Immigration
Do you know you Rights series link here
Free Legal Representation for Children and Young People
We also provide free legal representation, particularly at SENDIST and Mental Health Review Tribunals and undertake strategic litigation following the criteria contained within our Casework Policy.(link to)
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New Digital Information and Advice Service for Children and Young People only (under 18)– Live Now!
Ree Rights Responder and Live Chat
Young people (aged 13 – 17) who would prefer to access information on their rights online can access our Children’s Rights chatbot REE- Rights Responder, which also offers a connection to an online legal advisor through REE live Chat for those young people who may need additional information and advice on their rights. See Ask an Expert in Youth Section for more information on REE.
