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The Deputy Chairman of Committees: A Division has been called. The Committee stands adjourned until 4.39 p.m.

[The Sitting was suspended for a Division in the House from 4.27 p.m. to 4.39 p.m.]

Lord Davies of Oldham: I have no doubt that the Committee will be relieved to hear that at the enforced interruption, I was in any case coming to the conclusion of my argument, having dealt with the amendments. I wanted to assure the Committee that the revised SEN code of practice, which will in due course be placed before Parliament for approval, will make clear that the views of the child should be taken into account wherever possible, including in the statutory processes for making assessment and statements.

LEAs and others will, by law, have to have regard to the guidance. We consider this to be the most appropriate way forward. Having heard my reasons and reassurances, I would ask the noble Lord to withdraw his amendments.

Lord Lucas: Perhaps I may say something in support of the noble Lord, Lord Northbourne, and refer to something which has not been answered by the Minister. Why should it be part of subsection (2) that although it is not in the best interests of the child to be educated in a mainstream school, nevertheless that is what must happen? Why should this part of the legislation in relation to children not be based on the best interests of the child when all other legislation connected with children is so based? It may be an

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exceptional circumstance but why should, under those circumstances, a child have to be educated in a place which is not in their best interests?

Lord Northbourne: That is exactly the same question that I was going to ask. It seems to me that the special educational needs code of practice will not work because this Bill says that child must go to a mainstream school.

Lord Davies of Oldham: The Bill states that the Government's policy is that the child should go to a mainstream school in all circumstances except under the exceptions outlined in the Bill. That is because we appreciate the general argument that as far as possible, children with special educational needs should be included within the framework of our main schools, as part of our general policy of inclusion. We state that as a fundamental principle upon which this legislation is based.

Lord Northbourne: I am grateful to the noble Lord for that explanation, although I do not necessarily accept that it is always to the child's benefit. The point I wish to make in connection with my amendment, before I withdraw it, is this: there are mild forms of disability and I have particularly in mind Asperger's syndrome, of which I have knowledge in the school where I am involved. A sympathetic school can cope, depending upon the size of the school, with one or two children with Asperger's syndrome. If that number rises to eight or a dozen, then the interaction between them and the difficulties imposed on the staff begin to affect the education of both those and other children in the school.

As the Bill is written, if a particular mainstream school has applications for one, two, three, or any number of children with Asperger's syndrome, it will have to accept them. The result of this will be that if a school does well for Child A and Child B with Asperger's syndrome, people are going to hear about it and parents of other children with Asperger's syndrome will want them to go there. Thus, the school will find itself with an influx of children with that particular disability, which in itself is not to the benefit of the child, let alone of the other children in the school or of the teachers.

Lord Lucas: The noble Lord did not really answer my question at all. In the circumstances where it is not in the best interests of the child that he should be at mainstream school, why are we passing legislation which forces him to be at a mainstream school? All our legislation in relation to children now provides that authorities must act in the best interests of the child. In this legislation, that is not so and here we are, forcing a local education authority to act otherwise than in the best interests of the child. I know that there can be exceptional circumstances but why are we doing this? If the noble Lord cannot answer that now, could he at least write to me?

Lord Davies of Oldham: I certainly undertake to do that, if the noble Lord thinks that the explanation I have given is unsatisfactory. We recognise that there is

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a great deal of work to be done on this Bill but the answer to the general question--that indicated by the noble Lord, Lord Northbourne--is that the local authorities will of course be charged with the responsibility of ensuring the proper education of all their children. If, therefore, the inclusion of too many children with a particular disability would tilt the balance against the effective education of the children already there, then that is covered by the provisions in the Bill. That is the basis on which we give local authorities responsibility for education in this country.

4.45 p.m.

Baroness Blatch: Perhaps I may follow up the answer given by the Minister today and the answers given by the noble Baroness, Lady Blackstone, in reassuring me that there can be exceptions to mainstream education. Those provisos are a critical part of the Bill. The Bill states:

    "must be educated in a mainstream school".

I believe that the aim should be consistent with the educational needs of the child. If the educational needs are met, the interests of the child are met. However, it is inconceivable that we are passing a Bill that allows for such flexibility, as the noble Lord, Lord Lucas, said--for education to be provided which is not in the interests of the child.

Given that it is such an obvious statement, why is there such resistance to accepting an additional statement which puts beyond doubt that the provision should be in the interests of the child? That would subsume my concern about it being consistent with the educational needs of the child.

Lord Addington: Having listened to the argument, I believe that noble Lords are right. Something about the best interests of the child should be on the face of the Bill. I suggest that a small amendment would at least clarify the situation. We are arguing about inches here and that is a way to waste vast amounts of time.

If the Government can give an undertaking about the legislation we should be much happier. Having such a provision on the face of the Bill is better than having it in guidance or codes.

Lord Davies of Oldham: The issue with which we are concerned is the concept of the best interests of the child. It is a rather widely-based phrase. Within this framework, it would indicate that the child had an absolute right to a place outside the mainstream sector. It is breadth of the conflicts of the best interests of the child that causes us some difficulty.

We believe that it is in the best interests of non-statemented children to be in the mainstream school. Who would define the best interests of the child if partners are involved in the successful education of a non-statemented child? Would it be identified as one particular group, or would a range of people have that issue in hand? It is the breadth of the proposal which is unacceptable to us within the framework of the Bill.

Lord Ashley of Stoke: There may be some misunderstanding here. I wonder whether my noble

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friend will kindly reflect on what has been said and undertake to think about the matter before the next stage of the Bill.

Lord Davies of Oldham: I am grateful for that contribution. I recognise that there is anxiety among Members of the Committee and a desire for greater clarification. I shall indeed reflect upon it. We shall have a chance to deal with this issue subsequently.

Lord Northbourne: I am most grateful for that assurance. In view of the support for the idea, we shall either have to discuss it or I shall have to bring it back at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 4:

    Page 1, line 13, leave out ("educated") and insert ("registered").

The noble Baroness said: I can be brief on Amendment No. 4. It is clear that the purpose of subsection (2) is to put all non-statemented children into mainstream schools. The Bill states that the child must be educated in such a school. We have debated that and talked about the flexibility of such a system. However, that wording again excludes the possibility of the child receiving some or even most of the education in the mainstream school but also receiving specialist education commensurate with the child's learning difficulties outside that school but not necessarily at a nearby specialist school. Therefore, my amendment is within the spirit of what I believe the Government's intentions are, but by referring to "registered" instead of "education"--in other words, there would be a commitment to the child being educated at a school--the child would be registered at the parent school. That would leave open the possibility of some of the child's education being conducted elsewhere. The exemptions granted by the Government in section 316A apply only for temporary admittance to a special school. They do not cover a situation in which the child is based at one school but attends other schools for certain lessons or therapy. Some schools may also provide specialist education--not special school education, but specialist facilities--when a child moves from one school but remains registered at a parent school. The amendment would not change the substance--it says that "registered" would subsume all the other alternatives. I beg to move.

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