Unlawful Exclusions

Together members: Enable, Enquire, Children in Scotland

UNCRC Article 23 (rights of children with disabilities)

Children and young people with disabilities have the right to be treated fairly. At school, they should be able to join in, feel included and be taught in a way that understands their disability.

“Children want and need adults in school to understand their needs and be there for them to support learning and engagement in the full life of the school, as and when they need it. This is partly about an adult commitment to seeing learning and school from the child’s viewpoint, but also a matter of appropriate resourcing, particularly for children with additional support for learning needs.”

‘What Kind of Scotland?’ (Children’s Parliament, Page 19.)

Unlawful exclusions are the removal of a child or a reduction in their attendance of classes in school without the use of the formal exclusion process. As such, systems of monitoring and reporting are not used and it is difficult to know how many children are affected by them.

The 2018 report, Not Included, Not Engaged, Not Involved, demonstrated the impact that unlawful exclusions can have on children with additional support needs:

“Kyle is only six but he’s already at his second school. The first school treated him like he had an infectious disease. He was left in a room by himself all day, away from the lesson and his friends. One day he came home and told me he was meant to be alone. It was heart-breaking.”

(Kyle’s mum, Not Included, Not Engaged, Not Involved)

Kyle’s experience is not unique, with the report highlighting that 37% of parents of autistic children reported their child having experienced unlawful exclusion. 31% of parents said that their child had been put on a part-time timetable at school. Scottish Government figures show that the rate of recorded exclusion for pupils with additional support needs is almost five times higher than for those without additional support needs.

Children with additional support needs have a right to education (Articles 28 and 29), and a right not to be discriminated against (Article 2). Article 23 is clear that children with a disability have the right to special care and assistance to achieve the ‘fullest possible social integration and individual development’. In order for these rights to be fully respected, the UN Committee recommended in 2016 that the use of informal exclusions should end.

Scottish Government guidance states that unlawful/‘informal’ exclusions remain a form of exclusion and must be recorded as such. The guidance notes that “[t]his will ensure transparency, allow for appropriate monitoring and enable support to be put in place through the education authority’s staged intervention system.” Whilst this guidance is in line with the UNCRC and the UN Committee’s recommendations.  The challenge is how to ensure that this is reflected in practice.

Children, young people, parents and carers have set out a number of factors that they feel would make a difference in helping children with additional support needs attend school (see ENABLE ‘IncludED in the Main?!’ and Not Included, Not Engaged, Not Involved). These include:

  • Training issues (ensuring school staff have an understanding of autism and how it can affect children’s communication needs);
  • Resource issues (ensuring that there is adequate support in place for children with additional support needs); and
  • Communication issues (including better joint working between the school, other professionals and parents).

Incorporation of the UNCRC would help bring these recommendations and existing Scottish Government guidance into practice, by encouraging rights-based budgeting, implementation of more robust recording and monitoring systems, and allowing for redress in the case of rights violations in schools.

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