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("( ) the best interests of the child,").

The noble Lord said: My Lords, the amendment seeks to amend Clause 1 of the Bill. The objective of Clause 1 is to secure that as far as possible all children with special educational needs or disabilities are educated in mainstream schools. I acknowledge and respect the Government's commitment to greater inclusion of disabled children. I acknowledge, respect and welcome the commitment they are making to include more disabled children in mainstream schools. There is no difference between us on that issue. But if inclusion is to be worth while and a success, it must be a positive experience for the child. If it proves to be yet another experience of rejection and failure, it will be worse than useless.

Other clauses of the Bill, and Section 317 of the 1996 Act, make provision for mainstream schools to move towards being able to provide the equipment and trained staff that they will need to cope effectively with children with special educational needs. That is a wholly desirable objective, but it will inevitably take time to achieve. In the mean time, there is a danger that children who are sent to mainstream schools which do not yet have the facilities may suffer. Sadly, the children who will suffer are likely to be the most vulnerable children. I shall return to that issue later.

Clause 1 of the Bill is very prescriptive. In effect it states that from the date on which the Bill comes into force schools and local education authorities will have less scope to place a child in the best available school for the child's needs. The proposed subsections are extremely inflexible. New Section 316(2) lays down in primary legislation that all children who do not have a statement must go to a mainstream school. There is no option. The only flexibility is that the local authority can start the process of assessment and statementing of that child and that it can be in a special school. I am not happy about the inflexibility of the clause but I reluctantly accept it and have not retabled my amendments on it.

Amendment No. 1 relates to new Section 316(3) which I believe contains the seeds of considerably greater potential damage. It lays down that even in the case of a child with a statement, he must go to a mainstream school. There are only two exceptions:

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unless it would be incompatible with his parents' wishes or with the satisfactory education of other children in the school. This subsection imposes a new and inflexible restriction on schools and LEAs. It prevents them taking into account local considerations or the welfare of the child when making a decision about his placement. If, as a result of professional and local knowledge, they were convinced that the child needed a special school, they could not send him to one unless his parents agreed or unless he were disruptive and therefore fell into the second category. I suggest that parents are not always the best judge of their children's needs. Some parents are humiliated by having a child at a special school. Some do not want to believe that their child has the degree of disability that he has.

There is a further problem about new Section 316(3). I am advised by a noble and learned friend on these Benches that the proposed new Section 316(3) would even prevent an LEA sending a statemented child to the special school mentioned in his statement unless the parents agree or he is disruptive.

I am grateful to the Minister for her two letters and for the full answers she gave on Report on these issues. However, the noble Baroness has not convinced me. There is nothing between us on the ultimate objective. However, I do not believe that this clause is the best way to achieve that objective.

The noble Baroness made the point that LEAs will have discretion under Schedule 27 to the 1996 Act. I am advised that if the new Section 316(3) were in place, there would be a conflict between it and Schedule 27: LEAs would no longer have that flexibility under Schedule 27.

The noble Baroness has stated repeatedly in debates that in the past LEAs have misused their discretion in relation to the "best interests of the child" to frustrate the Government's policy of inclusion. I know this to be a concern of the Special Educational Consortium. The dangers of this happening in the future are greatly exaggerated. The Government are preparing new guidelines: Ofsted will inspect the inclusion policies of schools. It does not seem likely that LEAs will be able to get away with cheating under those circumstances. We have to balance that risk against the risk of damage to vulnerable children arising from the Bill as drafted.

The children who will be hurt will not be the middle-class children with articulate and well-informed parents. The children who will suffer will be vulnerable children who do not have articulate and supportive parents who understand their needs and are able to argue their case. Those children are likely to be most in need of help. They will be damaged by being plunged into a large school that is not yet able to give them the support they need.

In many cases, such a child will end up sitting at the back of the class, not understanding what is being taught because he has fallen too far behind and traumatised by the social demands of a large and perhaps unfriendly group. He will experience failure and rejection yet again in his life--the failure and rejection to which he has learned to become

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accustomed in the family since he was born. That experience leads on almost automatically to truanting, exclusion, drugs, crime, unemployability and social exclusion.

If the proposed Section 316(3) proves to be a disaster, it will take primary legislation to change it. If those provisions were in guidelines, it would be a different matter. The amendment would introduce some flexibility, which could be regulated by guidelines or a code of conduct that would be checked by Ofsted. That is the route that the Government should take, in the best interests of all children. I beg to move.

Baroness Blatch: My Lords, the noble Lord, Lord Northbourne, has made a powerful case, delivered emotionally and passionately. I support him wholeheartedly.

The primary aim of the Bill is to serve the best interests of the child with special educational needs. I have yet to hear a coherent argument against that from the Government. We have had this debate at each stage of the Bill and Members of all parties have argued in favour of serving the best interests of the child.

The amendment was included in a large group on Report. The noble Baroness, Lady Sharp, had some reservations about some of the amendments in that group, particularly the reference to adequate support in mainstream education to provide effectively for the special educational needs of the child, but there are no amendments to that effect today. However, she was unequivocal in support of the noble Lord, Lord Northbourne, and his wish to include a reference to the best interests of the child in the Bill. She said:


    "There are three reasons why the Bill would be improved if some move were made in the direction of taking account of the needs or best interests of the child. First, the words, 'the best interests of the child' are used in the Children Act. Those interests should be paramount".--[Official Report, 20/2/01; col. 615.]

The noble Baroness has not tabled amendments on Third Reading, as she suggested she might, but the amendment tabled by the noble Lord, Lord Northbourne, has deservedly received support from all who have been involved in the Bill.

The best interests of the child should not be compromised in any way. Clause 1 has created confusion. The Minister has been hugely helpful since Report and has written a number of letters, copying them to all interested parties, but the issue of making a fundamental statement in the Bill of its main objective that the interests of the child should be served has not been addressed. That is the rationale for the Bill, even if there is no other. I wholeheartedly support the noble Lord, Lord Northbourne, in his attempt to get the words on the face of the Bill.

3.45 p.m.

Lord Renton: My Lords, I, too, support the amendment. It is obviously necessary and desirable. The trouble with Clause 1 is that subsection (3)(a) ignores the interests of the child by assuming that parents will always make the right decision. I speak as

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the parent of a severely mentally and physically handicapped child. Parents do not always make the right decision and cannot be relied on to do so. Some parents may even assume that their child with learning difficulties is normal. That is wishful thinking on their part. Some personal pride may be involved sometimes. They may want people to think that their child is fully normal when that is not the case.

Subsection (3)(b) should not be overlooked. It says that a child must be educated in a mainstream school unless that is incompatible with,


    "the provision of efficient education for other children".

That incompatibility is rightly to be avoided, but the interests of the child should be considered as a separate issue when the decision has to be made.

On Report, I said that the needs of the child were paramount. Strangely, the Minister told me that I was out of touch. I was a little surprised, but not offended by her comment. The needs and the interests of the child are virtually synonymous. The interests of the child are paramount.

The proposition that I have put before your Lordships, following the noble Lord, Lord Northbourne, is reinforced by the 1989 United Nations Convention on the Rights of the Child. It is a massive document, but I need only trouble your Lordships with one or two brief references. Article 3 says:


    "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".

That is another way of saying that the interests of the child are paramount. The Government are committed to that proposition because their predecessors, with the approval of Parliament, very properly supported the convention.

Article 18.1 says:


    "State parties"--

that means governments--


    "shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child".

That includes education. It then says:


    "The best interests of the child will be their basic concern".

I hope that they will be the basic concern of the Government, too.

I could refer in detail to Articles 28 and 29, which deal with education, but there is no need to do so. The noble Lord, Lord Northbourne, and my noble friend Lady Blatch have put forward strong arguments. I hope that the Government will bear them in mind.


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