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Lord Baker of Dorking: I support the views of all Members of the Committee who have spoken to the amendments, particularly to the amendment of the noble Lord, Lord Ashley of Stoke. It is right to take into account the views of the child. The child could be 14 years-old and perfectly capable of making a judgment. I appreciate that some children will not be able to make a rational decision, but many will. Those who are profoundly deaf or seriously visually impaired will be able to make rational decisions; so will those with physical disabilities.
I very much hope that the Government will be sympathetic to this. I am no lawyer, but through the recent changes in the human rights legislation and the various courts that exist in Europe, it is possible for a child of 14 to go to a European Court and insist that he not be caned, and for the court to uphold that. I suspect that one is only waiting for a trial case if this right is denied to children.
I hope that the Minister will be sympathetic to the views that have been expressed on all sides of the Committee. I know perfectly well that all the amendments are somewhat botched and do not quite do the job properly, but the parliamentary draftsmen will have a chance of doing their own botching and getting it right.
Some children will want to go to special schools and others will want to go to mainstream schools. Their wishes will differ enormously and it will run both ways, but their voice should be heard and taken into account.
Lord Lucas: I have an amendment in this group. I entirely agree with my noble friend that it is botched and I share his view of the other amendments. Just to take an example, none of them would help Simone, because my amendment would only give her a right to go to a special school, whereas other amendments would require her and her parents to agree in order for her to have a right to stay in a mainstream school.
I am addressing the clear principle that the child's voice should be heard. The Minister has echoed that principle, but there is no current provision to allow that to happen in this particular case. The wishes of the parents or the requirements of the provision of efficient education are considered, but there is no chink there for the wishes of the child to be taken into account. I am not sure what the right wording is, but we must find it. I very much hope that the Minister will
Of course I accept the ideal that the ascertainable wishes of the child should be respected, where possible. The question is who should ascertain the real wishes of a child who is incapable of making his or her mind known. That would apply to my own daughter, whom I think I know fairly well. She can be made to say almost anything, especially when she has been to McDonald's alone with the social worker. When she comes into the house, she says what the social worker wants her to say, but within five minutes of the social worker's departure, she is saying completely the opposite. I speak from reality, not from theory.
Likewise, Amendments Nos. 10 and 61, tabled by the noble Lord, Lord Ashley, say that regard should be had for the age and maturity of the child. Of course I accept that, but I would add that the mental capacity of the child to make that decision should also be taken into account.
This is an extremely difficult area. I accept the point that the noble Baroness, Lady David, made at Second Reading. I do not pretend that the parents are always right, but, as I shall repeat when I come to Amendment No. 11, I think they are usually right. They are usually the best people to make this sort of judgment. I would therefore be perfectly happy to support the amendments, with the caveat that they must not apply to children who really are incapable of making this sort of decision.
Baroness Blackstone: We understand and sympathise with the aim behind the amendments of giving a formal voice to the child. I have not seen the material that the noble Lord, Lord Rix, has sent, which was also referred to by the noble Lord, Lord Morris, from Simone Aspis, but I shall certainly look at it. However, I can tell my noble friend, Lord Ashley, that I have seen the RNID briefing.
Lord Morris of Manchester: My noble friend referred to the briefing from Simone. The briefing the noble Lord, Lord Rix, was referring to was about several cases known to Simone. I was talking about her own case, and quoting from Simone's personal experience.
Baroness Blackstone: I was aware of that and I am sorry if I did not make myself clear. We are strengthening the voice of the child in the SEN system. However, I will disappoint everyone who has spoken--with the exception of the noble Lord, Lord Pearson of Rannoch; I absolutely agree with everything that he said--including my noble friend Lady David, who regretted that I did not say more about this at Second Reading. We do not believe that
I can assure Members of the Committee, however, that the revised code of practice will make it absolutely clear that the views of the child should be taken into account wherever possible. Sometimes it will not be possible and I am sure everyone will accept that. In taking those views into account, however, it should include in the statutory process for making assessments and statements that LEAs and others will, by law, have to have regard to the guidance. That seems to us the most appropriate way forward, rather than trying to draft an amendment to put on the face of the Bill. I am grateful for the fact that noble Lords have accepted that some of these amendments are "botched". They are; but it points to the great difficulty we should have in finding an appropriate amendment here that would not create more problems than we can resolve through using the code of practice. Indeed, an entire chapter in the draft revised code of practice underlines the importance attached to ensuring that the child's wishes are listened to and taken account of. It provides guidance in involving pupils in the assessment and decision-making processes. It stresses that pupils' participation should start in the early years, so that all children are actively involved at an appropriate level in discussions about their education.
Schools and LEAs must have regard to this guidance. The SEN tribunal will consider whether LEAs have complied with the provisions of the code when they hear appeals from parents. LEAs which disregard the guidance will have to face the consequences of doing so and account for their reasons. In addition, the new SEN tribunal regulations, which are to be laid before Parliament shortly, will entitle the child to attend the hearing of an appeal and to give evidence. Thus, they will be involved in the appeal process too. We have consulted widely on these proposals and have received broad and strong support for them. The current regulations do not expressly entitle a child to attend hearings or to give evidence so we are moving forward substantially here.
If we were to accept Amendment No. 7, it would mean that there was no statutory requirement to take parents' wishes into account when deciding whether a child with a statement should be placed in mainstream education and it is felt that parents should have a say in where their child is educated. Perhaps that was not intended in the amendment that has been moved by my noble friend Lady Sharp. She was very honest in stating that were we to accept such an amendment, we should have quite a new principle in educational legislation. We do not take into account the views and wishes of children when deciding, in disputed cases, about allocation of secondary school places. This would be a dramatic change to existing educational legislation. The amendment would also mean that LEAs would not specifically be obliged to consider the
Members of the Committee will know that the key objective of the Government in promoting inclusion is to safeguard the interests of all children and the amendment would jeopardise that. We have already discussed the fact that for inclusion to work, there must be confidence that pupils' needs can be provided for appropriately in the mainstream without a detrimental effect on other children.
I should like to pick up on one final set of issues. My noble friend Lady David raised the matter of human rights. I repeat what I said during the Second Reading debate. This Bill is compatible with Protocol 1, Article 2, of the Human Rights Act, which deals with the right to education. There is no requirement under this article to allow them to determine the provision that should be made for their education.
Furthermore, Article 6 of the European Convention on Human Rights, the relevant article when considering a child's rights to bring a claim and be heard before the tribunal, applies only to claims where people's civil rights and obligations are at issue, which does not include educational rights which fall squarely in the domain of public law.
Turning to the UN Convention on the Rights of the Child, which my noble friend also mentioned, we believe that the changes to the SEN framework, of which the Bill forms a part, will ensure that the framework fully complies with the convention. The convention is relevant in two ways. First, Article 3 provides that in all actions taken concerning children, the best interests of the child shall be a primary consideration. We believe that the provisions made to meet the needs of children with SEN in legislation and associated guidance fulfil this requirement. The entire purpose of the SEN framework is to ensure that children are given the additional help they need.
Secondly, Article 12 provides that children who are capable of forming their own views shall have the right to express those views freely in all matters affecting them, with their views being given due weight in accordance with their age and maturity. It requires children to be given the opportunity to be heard in any judicial or administrative proceedings affecting them, either directly or through a representative or other body. We will ensure that these requirements are met by the changes to the SENT regulations and code of practice that we propose. I hope that with those assurances my noble friend will accept that there is no conflict with human rights provisions.
In the light of everything that I have said and the strong reassurance that I have given on what we intend to do in the revised code in this respect, I hope that noble Lords will feel able to withdraw these amendments.
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