Extending children's rights guidance: consultation

Chapter Two: Children's Rights

Background

6 Scottish Ministers have set the ambition that Scotland is the best place to grow up and bring up children. This ambition requires a positive culture towards children. One where children are welcomed and nurtured. One where we all are alert to their needs and look out for them. Where children are listened to, where their views are heard and their rights protected. They should be respected as people in their own right with rights to a life that allows them to fulfil their potential.

Legislation

7 Parents and young people were given new rights under the Education (Additional Support for Learning) (Scotland) Act 2004 ("the Act"). Children's rights in education in Scotland were extended by the Education (Scotland) Act 2016 which amended the Act. Children who have attained 12 years of age who are in school education now have rights in respect of additional support for learning in their own regard.

8 Under the Act, as amended, children who are 12 years of age with capacity now have rights to:

• request the education authority to establish whether they have additional support needs.
• receive advice and information about their additional support needs.
• request, at any time, a specific type of assessment and/or examination for the purpose of considering their additional support needs as well as when the education authority propose to establish whether the child has additional support needs or requires a co-ordinated support plan (or where a plan is being reviewed).
• have their views sought and taken into account as part of the process of mediation.
• make use of dispute resolution arrangements for matters about additional support needs that are specified in regulations - generally matters not eligible to be considered by the Additional Support Needs Tribunal for Scotland, although the use of these arrangements does not affect the entitlement to refer any matter to a Tribunal.
• be informed of the outcome of requests under the Act, reasons why a request is refused and any applicable rights to have a decision reviewed, for example, through mediation or dispute resolution, or referred to a Tribunal or an education authority appeal committee .
• request the education authority to establish whether they need a co-ordinated support plan or to review an existing plan.
• receive a copy of the co-ordinated support plan, and any amended plan be asked for their views and have them taken into account and noted in the co-ordinated support plan.
• refer to the Tribunal specified matters relating to co-ordinated support plans, appeals against the refusal of placing requests to special schools and failures by an education authority in relation to their duties regarding school to post-school transitions.
• have a supporter with them or an advocate to present their case at any meeting with the school or education authority, in connection with the exercise of the education authority's functions under the Act and at Tribunal hearings.
• have access to a free advocacy service in Tribunal proceedings.
• have access to a support service for children and their parents that provides advice, support in discussions with an education authority and advocacy services.

9 Rights that parents and young people have within the Act that are not extended to children include:

• to request the use of mediation services
• to make a placing request to the education authority

New rights subject to safeguards

10 The extension of these rights to children over 12 years of age is subject to safeguards. The safeguards take the form of an assessment of capacity and a consideration of adverse impact on wellbeing of an individual child. These assessments require an evidence-based decision to be made in relation to both of these aspects. Education authorities have to be satisfied that the child has the capacity to carry out such actions under the additional support for learning legislation and that assessment will be used to decide on a child's capacity as well as whether exercising such rights will have an adverse impact of their wellbeing. Parents and children should be involved and informed about the assessments carried out by schools. Annex A includes some case studies of examples when exercising children's rights, assessing capacity and considering wellbeing.