Special Educational Needs and Disability Bill [Lords]

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Mr. Hilary Benn (Leeds, Central): Will the hon. Gentleman explain the circumstances in which the best educational interests of the child would not be covered by the express wishes of the parents? Does not the Bill provide sufficient safeguard by requiring that the wishes of the parents must be given the fullest possible consideration, and does that not accommodate the hon. Gentleman's argument?

11.30 am

Mr. Boswell: One can argue that point in two ways. Indeed, it was touched on in the other place. The child, especially an older child, may have views of his own, which should be canvassed and discussed. I understand that the hon. Gentleman's point is sincerely made, but by arguing that the parents' wishes mark the end of the matter, a local authority could absolve itself from even considering the matter. I am not saying that the local education authority is right or wrong, and I do not worship professionals, but that aspect should be considered.

Mr. John Hayes (South Holland and The Deepings): I do not imagine that I will be able to slip references to both Gilbert and Sullivan and Wagner into my intervention—I am sure that you would not allow me to do so, Mr. O'Brien. Good practice in this area is about achieving a balance between a studied analysis of the child's needs and the parents' or child's wishes. We want to reinforce that balance of elements in making the right provision.

Mr. Boswell: My hon. Friend makes a helpful intervention, as I knew that he would. Parents may bring their personal commitment to bear on the situation. It is important to achieve a blend of the cool professional opinion and the committed parental view. In my constituency, I sometimes have to correspond with the county education officer saying, ``I think that the parents want this, but I believe that there is a hidden agenda.'' Sometimes, there are even tensions between the parents about the child's education. One may be right to say to the education officer, ``This child is unable to do what the parents think he can do and has a problem that the parents have not acknowledged.'' However, that must be balanced by the right of the parents to express strong feelings about a matter. I often say to parents who visit my surgeries, ``Thank goodness that you have come. The most important thing is that you are committed to your child.'' My hon. Friend had the music of this right.

Mr. Laurence Robertson: Is there not a grey area regarding parental wishes in new section 316(2)? That subsection says:

    ``If no statement is maintained ... he must be educated in a mainstream school.''

Does that not mean that if the LEA did not maintain a statement, the parents' wishes could be totally overridden?

Mr. Boswell: That is another point to which we need a response. There are several safeguards, including the parents' right to educate in the private sector, but not everyone has an open cheque book. I am sure that we all know of parents who have gone to great lengths and expense, if they have been unable to get a statement, to put their child into the school that they believe is appropriate and to have the child dealt with appropriately there. In some such cases, the LEA has eventually produced a statement.

Prompted by the intervention of the hon. Member for Leeds, Central (Mr. Benn), I shall indulge in one more anecdote. Foot and mouth permitting, I am a breeder of South Devon cattle. I do not come from either Devon or Cornwall—the hon. Gentleman will know that Cornwall is strong in the South Devon breed—but the rules at important agricultural shows usually allow for a Devon judge, a Cornwall judge and an umpire to decide which of them is right. If the right of the child is paramount, clause 1 is rather like an umpire clause, because it allows us to balance the interests of the parents against the properly cool concern of the professionals. I shall return in a moment to the question whether such a right is necessary. The second question is whether the clause would have a perverse effect.

Mr. Andrew George: Would the hon. Gentleman clarify his thoughts? Is he saying that the Secretary of State, through the LEA, is the best arbiter of the most appropriate education of a statemented child? If so, is he prepared to say that a non-statemented child's education is best determined by the LEA and not the parents? Can that be applied more widely? Why is he saying that only statemented children are appropriate for such treatment?

Mr. Boswell: I refer the hon. Gentleman to the clause, which is about children with special educational needs. The amendment would come after subsection (1), which applies to

    ``a child with special educational needs who should be educated in a school.''

It is not tied to statements. Of course, given the resources available to the Opposition, we are putting forward a general proposition that may need tying in. I shall return to the point when considering whether the clause would have a perverse effect, but we must first consider general local authority practice. We must also remember that the tribunal is, thank goodness, independent of the Secretary of State. The logical extension of the question posed by the hon. Gentleman is whether the Secretary of State should sort matters all out when little Johnny in Newlyn or Beccles has a problem and his parents do not like what the LEA is doing, and whether he should issue a diktat saying that the child should be moved from X school to Y school, despite it having nothing whatever to do with SEN. I can see the constraints on that approach, but the basic principle that we should put the child first is central.

Mr. Win Griffiths: Do not our exchanges over the past 10 minutes confirm the incredible difficulty of such definitions? I have seen professionals form very different opinions on the needs of children, but which of them is right? Is there not a difference between what might be perceived as the professional's view of the needs of the child and the wishes of the child? Records show that the wishes of the child are sometimes ignored when the children might have been better served in mainstream schools than in special education institutions—or even vice versa.

Mr. Boswell: I very much agree with the hon. Gentleman. They are sensitive issues. There are genuine disagreements between professionals—that is, before they say, ``We can't afford it even if we should do it''. There are also differences between parents—who may be separated or experiencing marital difficulties and trying to use the child as a weapon or pawn in the game. There may be differences between the parents and the child. All those issues are complicated. I am feeling my way towards the ultimate tribunal being the educational interests of the child.

I turn from those interventions, which have been helpful to the debate, to the argument that has been put to us that including a general provision for the rights of the child would have perverse effects. The Minister did not do an especially good job on that point on Second Reading. In fairness, I realise that time was constrained, but it is less constrained in Committee. The Minister must explain more clearly than she—or even, dare I say it, the Special Educational Consortium briefing—has yet done why including the caveat that is in the Education Act 1996, or the more general provision in the amendment, would damage the rights of the child.

The implied argument is that LEAs, being good at both reaching professional decisions and, dare I say, covering their tracks if they want to obscure a difficulty, may say to Mr. and Mrs. X, ``We don't care. You think that your child should go to a certain special school in another county, but our professional judgment is that they should go here.'' There would then be an argument with professionals about that. In my view, that issue is properly resolved by the tribunal. On Second Reading, the case cited by the Minister made our point. She said that the case had to go to tribunal. Precisely. At the tribunal, it was overturned under existing legislation in the interest of the child and the parents. In other words, provision was made.We need a little more flesh on the argument that creating a right for the child is perverse—that it will somehow result in children losing their rights. I have yet to be convinced of that.

We all know that the child should come first. We all know that, in an imperfect world, resources are not always available, and the provisions do not suit everybody. The system must do the best job that it can. Including a right in the Bill would strengthen the rights of the child; removing the existing caveat would weaken the rights of the child. We have discussed last resorts, umpires and so forth. Under our amendment, the Secretary of State would ultimately be under a duty to satisfy himself that the child's interests were protected above all. That is what we want; no one argues about that. I may not have the wording quite right—we have tried it from different angles—but the principle is important and incontestable: to put the child first and make the system fit the needs of the child, not to drop those needs and rights and say that the system will do the best for the child that it can. Only if there is that ultimate sanction, so that everyone is under a legal duty that can be tried in court if necessary, will the child be told, ``You are entitled to that. That is what you need, and that is what you will get.'' The amdts have been tabled for that reason and in that spirit.

The Chairman: Before I proceed, I remind the Committee that there is a financial resolution in connection with the Bill, and that copies are available on the Table. I remind hon. Members also that adequate notice should be given of amendments. As a general rule, my co-Chairman and I do not intend to call starred amendments.

11.45 am

Dr. Evan Harris (Oxford, West and Abingdon): I am disappointed to have been delayed by train, taxi and traffic, for two reasons. First, I can only now and belatedly welcome you to the Chair, Mr. O'Brien. Secondly, I missed the Programming Sub-Committee resolution debate and all the excitement that that implies. I was pleased, though, to catch the last 60 minutes of the 61-minute speech by the hon. Member for Daventry. I caught almost all that he had to say and shall be a little briefer in dealing with the two issues that we face.

The first issue is the needs or best interests of the child. There has, unintentionally, been too much interchange between the terms ``best interests'' or ``needs'', which can be said to be equivalent, and the separate ideas of the wishes or rights of the child. When the hon. Member for Daventry, upon whose every word I hung, reads the record of his speech, he will see that he used some of those terms interchangeably. It might have been useful if he had not done that in a speech that was thoughtful and thought-provoking. It is important to identify correctly what one is talking about.

Complying with a child's wishes may be in his or her best interests, and one would hope that it often would be. However, sometimes complying with the wishes of children—or adults, but this debate is about children—is not in their best interests. That is why children do not have rights to autonomy equal to those of adults, but gradually gain rights as they gain capacity. We could debate at length the capacity of children, with or without special needs, to want what is congruent with their best interests. The rights of children are not necessarily congruent with their wishes, and they do not necessarily involve their best interests or needs. Those important concepts should not be conflated.

My second point is about what should be paramount. As my hon. Friend the Member for St. Ives pointed out, it cannot be that two things are paramount. The Bill implies that in a conflict the wishes of the parents will in most circumstances be paramount. It would be difficult to superimpose the idea that the wishes, best interests or needs of the child should be paramount. In accepting the wording in the Bill the Liberal Democrats accept, first, that the needs of the child are already taken into account—I shall come on to that issue—and, secondly, that we can almost always accept parents as the best guarantors of the needs of the child. Removing that status would suggest that we do not trust parents. No doubt, that is not what the hon. Member for Daventry intends, but we should examine the logical consequences of what is proposed.

I do not mean to say that the voice of the child should not be heard. Many of us have received an interesting brief, and had interesting conversations, with a group that is keen to make us aware that in some cases parents do not speak in the best interests of their children. At the wishes of parents, children are forced into special schools through lack of information, lack of interest or even sadder circumstances. They do not want to be there and are miserable, and their needs are not met as best they might be. That is why, before the amendment is rejected, it will be important for the Minister to make it clear that those issues are covered elsewhere in the legislation.

 
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