Dr Rhian Croke  

10.6.24

Introduction 

I have been inspired to write this blog, after reading the Ethnic Minority Youth Support Team’s (EYST) report reflecting on school exclusions and racism experienced by Ethnic Minority children in Wales. It disturbs me to say the least, that Ethnic Minority children should be experiencing racism in school settings, and I wanted to lay out a few overarching reflections using the framework of a Children’s Rights Approach and the case studies of Maya and Faiz referred to in the EYST report. Before reading my own reflections, you should read the case studies in the report or immediately below this blog. 

These case studies have in common, that the children (in Faiz’s case his sister) were not protected from racism within their school environment and because this was not addressed, the children reacted to the perpetrators of the racism, which consequently resulted in their permanent exclusion from school.  

As discussed in the EYST report many children who are either subject to fixed or permanent school exclusions often reach this stage due to protracted issues arising from racist bullying that have been unrecognised, unreported or unchallenged. As is well understood, being excluded from school can have a profoundly negative impact on a child.  

A Children’s Rights Approach to Education seeks to create rights respecting environments that prevent rights breaches, such as racism. So firstly, lets lay out a bit of the background to the children’s rights policy and legislative landscape that are the background for the case studies I will discuss.  

Right to Education: The United Nations Convention on the Rights of the Child 

Wales was the first country in the UK to indirectly incorporate the United Nations Convention on the Rights of the Child (UNCRC) into its law, and place a duty of due regard to the UNCRC on Welsh Government Ministers, via the Rights of Children and Young Persons (Wales) Measure 2011. This applies to all Ministerial functions, which includes education policy.  

With regards to the right to education under the UNCRC, Article 28 of the UNCRC places emphasis on the right of each and every child to access education on the basis of equal opportunity, and for discipline to be administered in a manner consistent with the child’s human dignity. Article 29 focuses on the aims of education and the importance of developing each and every child’s personality, talents, mental and physical abilities to their fullest potential and the development of respect for human rights, and respect for cultural identity, language and values and respect for the natural environment. 

In the UN Committee on the Rights of the Child,  General Comment No. 1 on The Aims of Education, the Committee: 

‘insists upon the need for education to be child-centred, child-friendly and empowering….. and the education to which every child has a right is one designed to provide the child with life skills, to strengthen the child’s capacity to enjoy the full range of human rights.  (UN, 2001, para. 2)  The UN Committee on the Rights of the Child also makes clear, in the context of a child’s experience of their education, that when every child walks through the school gates they must have their dignity respected, should be kept safe (Article 19 UNCRC) and in accordance with Article 2 of the UNCRC, they should not be discriminated against on any grounds.  

The UN Committee on the Rights of the Child’s Concluding Observations 2023 

In June 2023, the UN Committee published their Concluding Observations to the UK Government and the devolved administrations – as indicated by the breadth of the almost 200 recommendations, the scale of non-compliance with children’s rights obligations across the UK State Party and devolved administrations must not be ignored – and must be taken seriously. Some of the recommendations that were made are very relevant to the EYST report in relation to racist bullying and school exclusions, but also with regards to a child’s experience of education (see recommendations 47 a-k). The UN report makes it clear that on a daily basis children experience breaches of their rights in education settings and often as a result of systemic injustices.  One of the clear recommendations was to embed children’s rights into any education setting and also school curricula.  

New legislation in Wales that progresses the agenda for children’s rights in education 

Wales is in the process of major reform of the education system, with regards to the embedding of a new curriculum. Children’s rights and human rights are included in the new curriculum, which states that in designing, adopting or implementing the curriculum:  head teachers and governors have a duty to promote knowledge and understanding of Part 1 of the UNCRC, and of the United Nations Convention on the Rights of Persons with disabilities, Section 64 of the Curriculum (Wales) Act 2021.  

It is a significant step in the embedding of children’s rights and human rights that they have been embraced as part of the new curriculum. Welsh Government guidance also acknowledges that a cross cutting principle of the curriculum is to ensure that children and young people understand their rights, and also participate in decisions about their learning and their wider school experience. Stating: 

‘Learners should experience their rights through their education and develop a critical understanding of how their educational experience supports their rights. Schools and settings can develop this experience by taking a children’s rights approach. (Welsh Government Guidance 2022).’  

A Children’s Rights Approach to Education  

As part of work, the Observatory on the Human Rights of Children has undertaken for the Children’s Commissioner for Wales, we developed a guide translating a children’s rights approach into practice for public bodies. The Children’s Commissioner for Wales, called this approach ‘The Right Way’. Since the development of the original ‘The Right Way’, the Children’s Commissioner for Wales (2017 p.4) has produced helpful follow-on guides of which one of them is focused on a children’s rights approach to education. 

The education guide communicates the importance of embedding children’s rights, as stated in the guide:  

‘It is about placing the United Nations Convention on the Rights of the Child at the core of a child’s experience of education and at the core of school planning, teaching, decision-making, policies and practice.’  

This is the approach that we would like to see all schools and education institutions undertaking in Wales, however when we learn of children’s experiences such as those of Faiz and Maya, it is quite apparent there is some way to go. So much of the root causes of rights violations such as discrimination and unfair or indeed unlawful exclusions can be affected by the ethos and the principles of education settings and also the law not being applied appropriately.  

If the 5 principles of a Children’s Rights Approach to education had been applied in these education settings – we believe there would have been a different outcome for the children involved. I will consider this below.

Embedding children’s rights  

School head teachers and their deputies, as well as school governors, as senior leaders should have a full and comprehensive understanding of children’s rights. The principle of embedding requires that senior education leaders should set a clear direction to ensure children’s rights are embedded into all policies and guidance and are core to the practice of all education practitioners in any settings. The principle also requires senior leaders when making any decisions to give due regard to children’s rights; so, in other words to consider how their decision positively or negatively impacts on all of the rights in the UNCRC. It is also incumbent that senior leaders understand, adhere to, and apply any domestic legislation that supports the rights of children. It is hard to see from the case studies how these children’s rights were taken into consideration when they were subject to such negative discrimination.  

In Wales there is the Anti-Racist Action Plan, the commitment to whole school approach to anti – racism an anti-racist curriculum and ultimately an anti-racist education system (access DARPL Diversity and Anti-Racism Professional learning). It is also very positive that Wales is the first country in the UK to make mandatory the teaching of Black, Asian and Minority Ethnic history within the school curriculum.  But as was made clear by a recent powerful report on racism in schools by the Children’s Commissioner for Wales, we are some way off eliminating racism in schools.  

Equality and non-discrimination  

Equality and non-discrimination is a fundamental principle of a children’s rights approach it is also embraced in our UK legislation, under the Public Sector Equality Duty whereby public bodies (including education institutions) must have due regard to the need to eliminate discrimination and advance equality of opportunity. However, when you consider what happened in the cases of Faiz and Maya, one questions whether this principle and the requirements of the legislation were core to the ethos of the school, taken into consideration or even complied with, when each of the children faced such negative discrimination towards them on the grounds of race.  

You may also be aware that Welsh Government expects every allegation of bullying or racism to be fully investigated, recorded and appropriate action taken. The Welsh Government are currently considering the lawful basis for doing so. It is not however, clear from the case studies whether this guidance was followed when the children faced such racism. So, it will be a positive step when this is strengthened in law in due course.  

Recording incidents is essential to be able to evidence whether discrimination has taken place, and provides vital data to monitor whether there are trends in schools or regions, concerning racist bullying or school exclusions that disproportionately impact children from ethnic minorities.   Also core to a Children’s Rights Approach (CRA) is taking action against discrimination, including racism on any basis and to share this as a clear and consistent message within the school community. Education staff and children should clearly understand the implications of any discrimination.  

Empowering the Child  

The UN Committee on the Rights of the Child, emphasises that children will actively learn from seeing their human rights valued on a daily basis within the education setting. Head teachers and governors in Wales, have as earlier mentioned, a duty to promote knowledge and understanding of the UNCRC this requires them to teach about children’s rights and human rights but in a way that helps children to experience their rights through their education.  

Empowering children is essential to the cross-cutting theme of human rights education in the curriculum in Wales. This draws on the elements of human rights education set out in Article 2 of the UN Declaration on Human Rights Education and Training and sets out that children will:  

• Learn about human rights (acquire knowledge about human rights, the UNCRC and the UNCRPD);  
• Learn through human rights (develop and experience values, attitudes and behaviours that reflect the principles of human rights);  
• Learn for human rights (children are empowered as active citizens to advance respect for the rights of all). 

From the EYST case studies, it suggests that these children were not fully aware of their rights or how to claim them. Children for example must be empowered to understand their legal rights regarding discrimination (i.e. the racism that the children experienced in the first place) so they are able to challenge the school to respect their rights. In more simple terms, children have the right not to experience racist bullying in school and should know what they can do in order to make sure it stops.  

As is, so often the case children are not fully aware of the implications of statutory government guidance, for example on School Exclusions (or the child friendly version)–  this makes it clear that school exclusions must not be applied in a discriminatory way and always as a last resort. The guidance also highlights the importance of restorative and pastoral alternatives as a first step. However, these important elements of the guidance are not made clear in the child friendly version. Children must be given full and accurate information regarding their rights; in language and formats they understand. 

Children must be empowered to identify and challenge breaches of their rights in school settings. The principle of empowering the child recognises there is often a power imbalance between children and adult decision-makers and consequently without being empowered to understand their rights how are children able to advocate that their rights are protected?

Participation  

It is well recognised that daily decisions that impact on children in education are made without their input with children often being ignored. The principle of full and effective participation means that all children, have a right to be to be heard in processes related to decisions that affect their lives, this includes in education. Children’s views must be taken into account and given due weight. Participation also includes enabling involvement in decision making processes, and creating the possibility to voice opinions and to complain when their right to be heard is denied.  

It is not clear what level of participation in decision making was afforded to the children in these cases – but this is something that should be guaranteed. It should also be clear how the children influenced the decision-making process and how their views had been taken into account, and feedback should always be given to the children.  

It’s also really important that an anti-discriminatory approach to children’s participation in any decision-making process is taken, so that all children’s views are taken into account. This should have happened at the outset of the racist incidences and continued throughout the school exclusion process.  

Accountability to children  

All education settings must be accountable to children and give full consideration to children’s rights when making decisions and actions and to also provide reasons for their decisions and actions. In the cases of Faiz and Maya, there was an initial failure to be accountable to the children regarding them experiencing a violation of their right not to be discriminated against. The important nexus between accountability and empowerment was not able to be fulfilled, because the children, it seems very likely had not been given any information or access to procedures to enable them to question and challenge what was happening to them.  

Children have a right to understand how to complain if their rights are being violated and also, they have right to urgent and effective remedies, if for example, like in these cases, the education setting is failing to ensure their right to not be discriminated against.  

Sometimes, access to good legal advice and legal representation may be the most effective method to support children who are facing/faced discrimination or permanent exclusion. However, it is not always possible to access legal aid.  

With respect to discriminatory school exclusions, it is positive there is currently a challenge before the high court regarding the lack of legal aid for appeals before the Independent Review Panel (specialist body that reviews the lawfulness of permanent school exclusions, called the Independent Appeals Panel in Wales). It is the claimant’s case (supported by the Equality and Human Rights Commission EHRC) that where there is an allegation that a permanent exclusion is discriminatory, that the legal aid safety net, Exceptional Case Funding (ECF) should be made available. 

While we await the court decision it is useful for children and parents to know that the EHRC funds legal cases where children have no funds or no access to legal aid and have been subject to any kind of racial discrimination.    

Final Reflections 

In Wales, we are witnessing significant progress on children’s rights being placed at the heart of education legislation and policy, this must continue. For example, the Welsh Government will be updating their statutory guidance on School Exclusions in 2025. As per obligations on Welsh Government, under the Children’s Rights Measure, it follows, children’s rights and a CRA should be integral to the new guidance and also a children’s rights impact assessment must be undertaken on the proposed changes to the guidance.

Embedding children’s rights into education in practice, however, requires sufficient resources. We need to see more resources dedicated to supporting head teachers and governors to fully understand their legal obligations, e.g. to fully deliver on their duty to promote knowledge on the UNCRC under the new curriculum, and to adhere to their obligation to have due regard to eliminate discrimination under the Equality Act 2010.  More resources need to be dedicated to ensuring that children’s rights become integral to children’s educational experience, through adopting a CRA. It is important that those children at risk of exclusion, such as Maya and Faiz, are not discriminated against but are instead empowered and given extra support and opportunities to enable them to engage in education equal with others, and for their voices to be heard and properly taken into account on matters relating to their education, and for educators to be fully accountable for meeting their obligations to  respect, protect and fulfil their rights.   

Annex 1 Maya and Faiz case studies  

Faiz 
Permanent exclusion case; 14 years old, Male, Black British/Welsh 

Faiz was a ‘model student’ and doing very well in school, embarking upon his CSE’s. Behind his academic achievements, Faiz started experiencing problems at school which mainly stemmed from the poor treatment of his younger sister by peers, who were a few years younger than him.  

Having recently lost their father who sadly passed away, Faiz felt a greater sense of responsibility on his shoulders to be the head of the household. His sister was being bullied by peers mainly due to her race, being called ‘monkey’, having food thrown at her, and pupils chasing her. These things were happening from peers both in and outside of school. Naturally, Faiz’s sister sought comfort from him when these incidents happened. He didn’t react to these incidents and just listened to and reassured his sister.  

On the day of the Faiz’s permanent exclusion, his sister had shared an experience of more racist comments made by her peers. This was following on from rocks being thrown at their home in the days leading up to these comments. On this day, he simply couldn’t handle the situation anymore and just ‘lost it’. Faiz had a physical fight with the younger boys who were bullying his sister. When a female teacher tried to stop the fight, she was pushed to the floor. 

Faiz was permanently excluded by his school. They had CCTV evidence showing the fight. Faiz was described as ‘aggressive’ and ‘tall’ in comparison to the other boys involved in the fight, who were ‘tiny’ year 7’s. The governor’s reviewed the decision, as per standard practice, and decided to uphold the permanent exclusion.  

Faiz’s mum wasn’t happy with the decision due to the context of this situation and it being a one-off incident. She wanted to appeal the decision made by the school at an Independent Appeal Panel (IAP).  

Support 

Faiz’s mum contacted the Children’s Commissioner’s Office for Wales, which has an investigations and advice helpline. The investigations and advice service referred Faiz’s case to our Right to Education service which can provide support for those navigating the school exclusions process with schools, specifically issues pertaining to race and ethnicity.  

The case work lead, Amira Assami, provided support to the family to prepare for the IAP. As part of Amira’s role, she helped to explain the upcoming process and attended the IAP alongside the family. As part of this appeal, Faiz shared a written letter which clearly shared his mindset on the day of the fight. He apologised and explained how he didn’t recognise himself and ‘lost it’. Seeing his sister’s self-esteem and confidence plummet made him lose his temper. 

Outcome 

The permanent exclusion was upheld by the IAP which wasn’t the outcome that the family wanted. The IAP didn’t seem to consider the context in the lead up to the incident and Faiz’s clean record of behaviour prior, only focusing upon the incident itself. The mum questioned the appeals panel about what happened to the other boys involved in the incident and whether the school recorded the incident as racially motivated. The appeals panel could provide no information to answer these questions and seemingly, there was no learning adopted by the school to avoid a similar incident happening in the future.   

Faiz is now attending another school in the area and has had a fresh start, with no issues reported so far. Mum is concerned about the permanent exclusion ‘label’ on Faiz’s record as, in the case of many young people from minority ethnic backgrounds, negative labels stick. In addition, Faiz’s sister’s circumstances haven’t changed, with the same bullies targeting her but now without her brother’s support. She blames herself for the problems her brother has faced, and this is further challenging her confidence and self-esteem.   

Maya 

Permanent exclusion case; 13 years old, Female, Mixed British/Welsh 

Maya had previously moved schools due to behavioural problems stemming from her peers making fun of her. Starting her new school, she was looking for a fresh start but unfortunately the students had already heard about her behaviour from the previous school, resulting in similar jokes by her peers.  

Maya has a mixed ethnic background (White and Asian) and many of her peers would make racially motivated comments about her mum. As a result of these ongoing jokes, one day Maya got into a fight with one of her white peers who made a comment to her.  

She was permanently excluded due to the incident involving violence and endangering the safety of other pupils at the school. She hadn’t reported any incidents of being bullied by her peers to the school, specifically the racially motivated nature of the bullying. A lack of reports resulted in the key evidence used to make a decision on her case as the CCTV and witness statements of those who witnessed the fight. No evidence around the cause or context of this fight was included in the decision-making process.  

As the governors upheld the decision to permanently excluded Maya, the family decided to challenge the decision at the Independent Appeal Panel (IAP) since not all evidence had been considered in the cause of her behaviour. EYST workers supported the family at this stage and attended the IAP to provide further confidence in the process.  

From the time between receiving the permanent exclusion and attending the IAP, months went by; the wait time after lodging an appeal can be around 15 school days to arrange a date for the IAP. During this time, as is similar with many other cases, there is a lot of stress and uncertainty placed upon the family. There is little support and communication from the school – 2 hours tuition were provided each week to ensure Maya still had access to education. Maya was faced with other witnesses versions of the truth, backed by evidence such as CCTV, and questioned her own perception of the events. Her parents also questioned whether she was telling the truth since the evidence was so clear cut with what you can see, the fight shown by CCTV. Unfortunately, Maya’s experience isn’t an isolated one. This is often the case for young people facing permanent exclusions for violent behaviour which has stemmed from an ongoing, untackled incident. When racism isn’t tackled or recognised by schools it can result in young people questioning their own realities and truth. Naturally, this ongoing and anxious wait for the final decision resulting in Maya experiencing extremely poor mental health, which was a further strain on the family relationship. 

Like many other school exclusions cases that EYST have supported, the independent appeals panel upheld the permanent exclusion. Maya’s dad questioned the circumstances leading to the fight – the racist bullying experienced by Maya – but the appeals panel could not consider this in their decision making as it wasn’t ‘evidenced’. There was little desire to learn from the incident from the school. Maya’s dad felt frustrated that there was no further conversation on Maya’s case. He felt that the panel had already made their decision before the panel meeting and that policies were used to protect the school. He felt that they weren’t interested in Maya as an individual, the priority is always the school’s reputation.  

Outcome 

The family chose not to seek legal support to challenge the appeal panel decision as their priority was to get Maya into another school. Maya has since started in a new school in the area and has settled well. Maya’s dad attributes this to the school being a lot more ‘open-minded’ and open to talking about racism. Despite this positive outcome, Maya’s dad feels that the school exclusions process is concerning namely due to the lack of independent decision making on appeals panels.