SEND & HUMAN RIGHTS

This is an extract from my Spring (Half) Term 2015 'SEN Update' 
that was released on 27 February 2015.

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David Wolfe QCDavid Wolfe QC









I was fortunate to be invited recently to a seminar put on by the Council for Disabled Children/Special Educational Consortium where my good friend and colleague, David Wolfe QC of Matrix Chambers, gave a talk entitled: ‘Special Educational Needs & Disability – a Human Rights Perspective’.

David remarked that, when most people think of human rights, they think of the Human Rights Act; but he pointed out to us that there were also a number of other pieces of legislation that could be used to further the educational rights of children with SEND.  

In particular, David pointed out that the UK had ratified the UN Convention on the Rights of the Child (UNCRC).  The UK signed the UNCRC in 1990 and ratified it in 1991 and it includes things like:

  • Article 3 – which states that ‘…the best interests of the child shall be a primary consideration’;
  • Article 23(1) – which recognises ‘….that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community’’;
  • Article 28(1) – which recognises ‘….the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity….’

David said that the bad news was that, in the UK, international obligations have to be formally incorporated into domestic law, before the courts are obliged to follow them directly.  However, he then pointed out that Parliament is expected to legislate in accordance with international human rights law and that the courts have also said that, where there are two possible ways of interpreting legislation, the interpretation that should be followed is that which is consistent with the international obligations found in the UNCRC.  

He also said that statutory guidance has been issued to LAs about the UNCRC, which means that they must have regard to it and, if they decide to depart from it, they need to have clear reasons for doing so, otherwise they can be challenged.

David ended his presentation by pointing out that, now that we had a new SEN framework, we should be encouraging LAs and Tribunals to take the UNCRC into account into their decision making, as we are effectively now starting with a blank sheet of paper.

Interesting, isn’t it?
With best wishes

Douglas
Douglas Silas
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