Extending children's rights guidance: consultation

Chapter Three: Assessment of Capacity

Assessment of capacity and particular rights

11 The new rights for children are conditional on their having capacity which is defined broadly as "sufficient maturity and understanding". This is different from adults and young people who are presumed to have capacity unless assessed as lacking capacity.

12 Education authority staff including teachers are best placed to decide on a child's capacity as they work with and know the child well. They will, as a result of their skills, experience and understanding of the needs of the child, be able to consider and provide evidence as to whether or not a child has capacity in relation to the specific rights that the child is proposing to use.

13 When carrying out an assessment of a child's maturity and understanding the education authority can take into account the following factors:

• the child's age and stage: to exercise their rights, a child will have attained 12 years of age whether at primary or secondary stages.
• sufficient maturity: a child's maturity will be evidenced by progress within health and wellbeing and its key features of healthy living and relationships, and in approaches to personal planning, assessing risk and decision making.
• sufficient understanding: a child's level of achievement can be used to provide robust and credible assessment, for example, children who have achieved across Second level and working towards Third level experiences and outcomes across literacy and numeracy will have sufficient understanding to exercise their rights; and
• personal support from an adult who knows the child well. The assessment by the teacher (whether in primary, secondary or special school) who knows the child will be based on a wide variety of sources of evidence including observing day-to-day learning, learning conversations and/or planned periodic holistic assessment.

14 The Supporting Children's Learning Code of Practice (Third Edition) 2017 sets the questions to be decided upon in respect of capacity in each of the areas where new rights are enacted. The assessment of capacity is in the context of the particular right a child is exercising. When assessing whether a child has sufficient maturity and understanding the following relevant questions are useful. For ease of understanding these are set out below:

Does the child have sufficient maturity and understanding to carry out an action (i.e. use the right)?

Where that particular right is in relation to making a decision - does the child have sufficient maturity and understanding to:

• make the decision,
• communicate the decision,
• understand the decision and its implications for themselves, and
• retain the memory of the decision?

In relation to rights relating to advice and information, or a co-ordinated support plan, does the child have has sufficient maturity and understanding to understand the information, advice or plan?

In relation to rights to express their views does the child have sufficient maturity and understanding to express the view?

15 Taking such factors into account and by answering the relevant questions, in almost all instances the class teacher, pastoral care staff or support teacher will have sufficient robust evidence to assess the child's maturity and understanding to exercise a particular right in context. In a few instances the assessment could be supported through the advice and guidance of education authority officials such as an educational psychologist.

Further support through quality assurance and moderation

16 As described above there is a wide range of assessment information which will support those working in schools and education authorities in reaching conclusions as to whether or not a child has capacity and sufficient maturity and understanding. However, it is recognised that in a very few instances and with specific circumstances, perhaps where a child has not had similar experiences i.e. they may have made decisions before, but not decisions of the same type or requiring the same preparation, there may continue to be challenges in reaching a conclusion on a child's capacity to exercise a particular right. Schools can develop approaches to quality assurance and moderation of such decisions and record and report on their assessment activities. In these circumstances, a specific assessment by education colleagues including education authority officials may provide further clarification on the decision.

Decision on capacity

17 When an education authority reaches a decision on whether or not a child has capacity they must inform the child and their parent or carer of their conclusions.

Where a decision is reached that a child does not have capacity

18 In the circumstances where a child does not have sufficient maturity and understanding as described above they would be considered to lack capacity in relation to that (or those) rights. Where it is assessed that the child lacks sufficient maturity and understanding to exercise that right the education authority (and the child) may not carry out the right. Children's maturity and understanding will change and/or progress over time and education authorities will take account of such changes towards capacity and adverse impact and wellbeing as children make further progress within Curriculum for Excellence.

Capacity of young people

19 A young person aged 16 or over in school education would be considered to lack capacity to use a right only if they do not have sufficient understanding to use it. There is no requirement to consider whether there may be adverse impact on wellbeing in relation to young people.

Capacity and communication needs

20 A child or young person should not be treated as lacking capacity because of a communication need which can be overcome by human, electronic or mechanical aid (whether of an interpretive nature or otherwise).

Eilidh is 15 and attends a special school. She is making good progress in her broad general education and is experiencing learning in some experiences and outcomes at Second level. She does not attain and achieve the outcomes at this level though she has attained a few outcomes in literacy and numeracy at First level. Eilidh has communication needs and uses a voice output aid that helps her communicate. Eilidh, her parents and her teachers are skilled at communicating through the vocal aid. Eilidh's parents have been invited to a review to discuss Eilidh's senior phase options. Eilidh's parents let her know about the review. Eilidh tells them that she wants to attend. The review discusses whether Eilidh is likely to leave or stay on at school. Eilidh communicates that she wants to stay on. In regard to this question, all participants at the meeting agree that Eilidh is mature enough and understands the choice. The education psychologist agrees with Eilidh and her parents that she will not feel any adverse impact in participating in this decision. Eilidh lets the meeting know she is happy to stay on at school.