I do not normally read law reports in the Times. But on the 15 July this year the headline “Delay did not deny right to education” caught my eye. But in this instance the delay did! The Times got it wrong.

The case: A v Essex County Council

When I read it, I saw that it was about the rights of an autistic child and they were being argued out in the Supreme Court. It must have been a close run thing because the decision voiced by Lord Phillips was a majority decision, three to two. The decision was against the child.

I felt for the child and for the local authority too, the educational needs of the one, the difficulty meeting those needs of the other. It was a very sad situation. I felt for the Court as well.

The child, named A, was autistic with a severe learning disability. He also had a severe communication disorder and challenging behaviour. He suffered from epilepsy; frequently having 10 to 15 short epileptic fits a day, despite medication. He was doubly incontinent, had no concept of danger and required constant supervision.

At the age of 12 he was excluded from his school because it couldn’t cope. It took eighteen months to assess his needs and find residential accommodation for him. The case was all about those eighteen months. Had he been deprived of the education he was entitled to during that time?

As I read the heading to the Times law report, I realised that the case was wrongly described. Shame on the Times! It should not have read “Delay did not deny right to education.” It should have read, “Delay denied the right to special school”. The “right” to education was only to a mainstream school. It was not disputed that child A could not exercise it, having been excluded from it.

What about the right to opt out?

These were the words that Lord Phillips used:

“The authorities … did not support the proposition that article 2 imposed … a positive obligation to provide education that catered for the special needs of the small, if significant portion of the population which was unable to profit from mainstream education…. The right of access to education conferred on A had to have regard to the limited resources actually available to deal with his special needs.”

WOW, as they say. Brothers, sisters, comrades and all you lawyers and academics trumpeting “rights” provided by Parliament or, better still, in the European Convention of Human Rights, it is high time you realised that sometimes rights are worth no more than the pot of gold buried at the end of a rainbow, and just when you most need them.

Let me underline what precisely this means in the context of special educational needs.

Over 100 special schools were closed from 1997 onwards. “For a small if significant portion of the population” this curtailed those resources So, for some children it actually destroyed the “right to education” enshrined in article 2 of Protocol 1 of the European Convention of Human Rights. In the future, parents wanting their children educated in a special school will find this case argued as a precedent against them.

I do not criticise the Judges for seeing the world as it is, not just as they would like it to be. They are not the problem. I do criticise the politicians, lawyers and academics – those who fashion and lead opinion – the social engineers among them.

They never seem to take into account how the world actually is when they try to make it how they would like it to be,totally ignoring human frailty for a start. I especially criticise those of them who “delete without reading” anything that conflicts with their mind set opinions. They are the real Termites. You will know what I mean by that if you have read these posts.

All of this explains is why, as chair of governors of a special school, I helped parents in their successful campaign to keep it open; why I have written Death of a Nightingale and continue to write this Blog.

Act 2 Scene 6

The scene is outside the School. A bulldozer is slowly demolishing the building. Staff, parents and children watch. Joan Errington is the English teacher, Emma Kirk the music teacher.

JOAN ERRINGTON Oh God, politicians. Save us from politicians. Scurvy politicians, that’s how William Shakespeare described them.

EMMA KIRK Jesus Christ said, “Forgive them, for they know not what they do”.

Visit Post 43 of this Blog “Rights – Buttercups and daisies, buttercups and daisies …

…. And we are those little white dandelion heads that blow away in the wind.” It is with these words that Tracey, a pupil with cystic fibrosis, introduces the audience to the stage version of “Death of a Nightingale.”

And read on.

Just what is the value of a right to mainstream education for children with special needs if they are then left in the hands of classroom assistants (“amiable mums” as they are affectionately called) instead of trained teachers with time to give them, and if they are bullied? And, I repeat, what about the right to opt out?

Some people do not want to know, do not really care.They should stew in their own juice.

I have seen a boy controlling his computer with a wand attached to his forehead. I have seen children rescued from bullying in mainstream schools. I have listened to their parents. For them it was not just a “learning experience”! You do not forget these things.

Today all the talk is about “The Big Society” and, in education, Academies. In the autumn Sarah Teather MP, Lib Dem Minister of State for Children and Families, is producing a Green Paper on Special Educational Needs. I hope that it is not edged in black.

When so many special schools have been closed, when resources are tight, when all the talk is about voluntary effort and the tiny question that has to be asked, apart from any other, is where it is going to get its core funding from, just how do we make sure that children with special needs receive the skilled professional support that they need?

What about this right?

Clause 1 (3), 2001 SEN Act: ‘If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with – (a) the wishes of his parent, or (b) the provision of efficient education for other children.’ (my underlining)

Catchpole v Buckingham County Council and another, The Times Law Reports on 18 March 1999, Lord Justice Thorpe said “the local education authority had a duty to ensure that a child with special education needs was placed at a school that was appropriate. It was not enough for the school to be merely adequate.”

I hope that the staging of Death of a Nightingale at the New End Theatre in Hampstead next March will make a contribution to answering that question.

This entry was posted on Saturday, July 24th, 2010 at 4:39 pm and is filed under Thoughts. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.