1 00:00:09,710 --> 00:00:17,660 Good, everyone of seems to have taken its toll on the motion controls, 2 00:00:17,660 --> 00:00:26,240 it's this is the fifth excuse excluded large series and this is against the on 3 00:00:26,240 --> 00:00:32,930 exclusion and our friend and colleague said the purpose of this talk of the city, 4 00:00:32,930 --> 00:00:45,230 it was a member of the faculty who worked with a specialism in child and family law, and she was great and she said I present it supervised. 5 00:00:45,230 --> 00:00:54,020 It was actually interesting in the world about exclusion from within myself and others that prevented the formation of the state laws, 6 00:00:54,020 --> 00:01:01,070 and that was one of those. But you must remember ActionScript largest group, so we're very, 7 00:01:01,070 --> 00:01:08,450 very pleased that she could come along to see what will happen is the single talk from 40 to 45 minutes. 8 00:01:08,450 --> 00:01:15,070 Then we'll have some questions and lots a chance to have a more informal chapter, possibly next. 9 00:01:15,070 --> 00:01:21,040 Thank you. Thank you. I should say that I'm slightly concerned that people think that about law is dry. 10 00:01:21,040 --> 00:01:28,420 I hope that's not the case. Well, we'll see how we go. If it feels dry, the questions will not be, I'm sure, and the answers won't be. 11 00:01:28,420 --> 00:01:31,540 The other thing I should say is that it's most unusual for me to talk this long. 12 00:01:31,540 --> 00:01:36,970 Only my students have to hear me for more than about 20 minutes because it most law conferences. 13 00:01:36,970 --> 00:01:45,490 That's the most you get. So if about halfway through, you start to flag or do some breathing exercises and come back for the second half. 14 00:01:45,490 --> 00:01:50,110 So you'll have seen from a topic of discussion that it's about law school exclusion, 15 00:01:50,110 --> 00:02:00,250 but with a slight focus on children with disabilities, and said I may inadvertently slip into talking about children with Sen only. 16 00:02:00,250 --> 00:02:08,860 And that will be by accident. That's not the intention, but driven by the fact that the recorded data and statistics is actually on children with Sen. 17 00:02:08,860 --> 00:02:19,450 I'm not also disabilities, so it becomes hard to maintain the accurate, adequate full focus without slipping to the slightly narrower focus. 18 00:02:19,450 --> 00:02:25,390 In terms of them, what I'm going to do, you'll have seen, I think, or maybe seen a bit of an outline. 19 00:02:25,390 --> 00:02:30,400 There's some statistics, some outline of the law, a little bit of theory. 20 00:02:30,400 --> 00:02:34,930 The theory is meant to be helpful rather than confusing. 21 00:02:34,930 --> 00:02:39,190 So there's a bit of a discussion on what intersectionality looks like and whether or not it might help us 22 00:02:39,190 --> 00:02:42,790 some discussion of children's rights and whether or not the notion of children's rights might help us. 23 00:02:42,790 --> 00:02:47,140 And I think these will be points that will come back to no doubt in discussion 24 00:02:47,140 --> 00:02:51,610 because I have particular views in terms of them not helping very much at all, 25 00:02:51,610 --> 00:03:00,580 but unfortunately being relied on to help. And so then the question is, can they help if we rework how we approach these concepts and ideas? 26 00:03:00,580 --> 00:03:02,420 Or actually, are we missing the point? 27 00:03:02,420 --> 00:03:10,630 And we should just, for example, focus directly on practical, pragmatic intervention, ignoring whatever theoretical ends we might like to apply? 28 00:03:10,630 --> 00:03:17,410 Treating that as not the problem. So to give you a sense of where we are at the moment, 29 00:03:17,410 --> 00:03:25,990 there was a report by the House of Commons Education Committee in 2019 that discussed the reforms that came in the law, reforms that came in in 2014. 30 00:03:25,990 --> 00:03:33,640 So it's the statute the Children and Families Act 2014 that introduced reforms in terms of how children with Sen, 31 00:03:33,640 --> 00:03:39,040 although it really should be children with disabilities and send children with special educational needs, were being treated. 32 00:03:39,040 --> 00:03:46,990 And this was the 2019 summary by the House of Commons Education Committee on how it had gone, how the reforms had gone. 33 00:03:46,990 --> 00:03:53,710 The reforms have resulted in confusion and at times unlawful practise bureaucratic nightmares, 34 00:03:53,710 --> 00:04:01,420 buck passing a lack of accountability, strained resources and adversarial experiences, and ultimately dashed the hopes of many. 35 00:04:01,420 --> 00:04:09,400 And this is where we are. We had actually probably quite good law reform in 2014 for children with disabilities 36 00:04:09,400 --> 00:04:13,510 and send not particularly in relation or specifically in relation to exclusion, 37 00:04:13,510 --> 00:04:18,790 but more generally about how the legal system can assist in supporting these children at school. 38 00:04:18,790 --> 00:04:22,330 But you'll see it's failed in terms of implementation. 39 00:04:22,330 --> 00:04:30,340 It's failed in part for budgetary reasons, in part for attitudes and behaviours within school and school leadership. 40 00:04:30,340 --> 00:04:33,670 But just notice it's failed. 41 00:04:33,670 --> 00:04:43,000 And there was also a report by a legal campaign group called Justice The Relatively Prominent, and they had a report from 2019, 42 00:04:43,000 --> 00:04:48,730 and they also said that there was a concerning the disparate effect that exclusion 43 00:04:48,730 --> 00:04:52,540 has on kind of disproportionately impacting children with disabilities. 44 00:04:52,540 --> 00:04:56,290 And and you'll see this when I start to talk about the data. 45 00:04:56,290 --> 00:05:05,470 What should be clear is that these children are in particular as a subset, being failed by the exclusion process. 46 00:05:05,470 --> 00:05:11,080 Now, the school experience by itself is exclusionary, right? So this isn't just the exclusion process that fails them. 47 00:05:11,080 --> 00:05:16,360 The school experience is exclusionary. Within schools, you've got children who are categorised and labelled. 48 00:05:16,360 --> 00:05:22,720 They have special needs, additional needs that set out as deficient or defective in some way. 49 00:05:22,720 --> 00:05:31,300 So what we then have to deal with is how to support those children without separating 50 00:05:31,300 --> 00:05:36,160 them as having this defective absence and without actually making it worse. 51 00:05:36,160 --> 00:05:43,090 Arguably, it just becomes a vicious circle. The reality of permanent exclusion in practise. 52 00:05:43,090 --> 00:05:46,480 I wanted to turn this into numbers because I imagine other seminars. 53 00:05:46,480 --> 00:05:50,530 You will have heard a lot about the stats on exclusion and the way I wanted to turn it into numbers. 54 00:05:50,530 --> 00:05:57,640 You may or may not have heard this. The most recent statistics on exclusion say that there are seven thousand nine hundred peoples 55 00:05:57,640 --> 00:06:03,160 excluded across England and the most recent academic year for which we have data 2017 18. 56 00:06:03,160 --> 00:06:08,050 But how it becomes, I think a bit more real is to turn that into the number of pupils per day. 57 00:06:08,050 --> 00:06:13,840 So it's more than 40 pupils every day in England get permanently excluded, 58 00:06:13,840 --> 00:06:19,480 and that is pupils that are permanent excluded via the formal legal process. 59 00:06:19,480 --> 00:06:23,530 And this is really important because we have lots of evidence of illegal exclusions. 60 00:06:23,530 --> 00:06:26,800 Illegal exclusions are exclusions that don't correctly follow the process, 61 00:06:26,800 --> 00:06:31,480 so they're not exclusions that follow the practise that we then challenge their exclusions we know about. 62 00:06:31,480 --> 00:06:32,830 That shouldn't have happened. 63 00:06:32,830 --> 00:06:40,690 So it could be, for example, that parents have been encouraged to educate their children at home so that they are then not excluded. 64 00:06:40,690 --> 00:06:41,320 They will be. 65 00:06:41,320 --> 00:06:48,880 Parents will have been encouraged to accept the managed move to another school that managed moves are treated as a perfectly legitimate means, 66 00:06:48,880 --> 00:06:53,440 and they are sometimes perfectly legitimate means of preventing exclusion. 67 00:06:53,440 --> 00:06:57,880 But the way that they tend to be pushed on to parents may not be legitimate. 68 00:06:57,880 --> 00:07:05,140 So the data that we've got suggests a problem. And in respect of pupils with disabilities and said in particular, 69 00:07:05,140 --> 00:07:13,570 we know that Sen. Because any sentence recorded that approximately 15 percent of all pupils have special educational needs. 70 00:07:13,570 --> 00:07:22,720 And yet it is approximately 45 percent of all permanent exclusions that are accounted for by children with Sen. 71 00:07:22,720 --> 00:07:27,040 In other words, to turn it into something that feels a bit more real. 72 00:07:27,040 --> 00:07:37,060 I suppose if you are right, people would send you are seven times more likely to be permanently excluded than the average people without sin, 73 00:07:37,060 --> 00:07:41,550 and you are in the highest category of permanent exclusion. 74 00:07:41,550 --> 00:07:49,530 And yet there is lots and lots of data that we don't know about in terms of why, so this is a black hole of a problem. 75 00:07:49,530 --> 00:07:55,560 We don't know how many of these pupils that aren't permanently excluded are subject to internal exclusions 76 00:07:55,560 --> 00:08:01,170 so that somewhere in the school sat in a room perhaps may be doing beneficial work by themselves, 77 00:08:01,170 --> 00:08:04,800 maybe getting ready to go back to mainstream? Maybe not. We don't know. 78 00:08:04,800 --> 00:08:13,740 We don't know how many of them are actually being, like I say, pushed to home education, pushed in unsuitable managed moves. 79 00:08:13,740 --> 00:08:24,270 How many? We don't know how many pupils who actually do have special educational needs that haven't been recorded are being permanently excluded. 80 00:08:24,270 --> 00:08:30,000 So the data that we've got is striking, right? But what's worse is the data that we know we haven't got. 81 00:08:30,000 --> 00:08:34,320 So we know that things are worse than they are. And of course, 82 00:08:34,320 --> 00:08:41,100 there are many other problems with the English system that I could get into that I know you'll know about the horrible inconsistencies across England, 83 00:08:41,100 --> 00:08:45,900 between local authorities, between schools. I could go into it, but I would try not to. 84 00:08:45,900 --> 00:08:52,570 So to talk about how this fits with the legal regulation. 85 00:08:52,570 --> 00:08:59,390 First, I just want to give you a little bit of an outline of the legal regime and what it looks like. 86 00:08:59,390 --> 00:09:08,690 So. We have the law, which just says that exclusion has to be on disciplinary grounds. 87 00:09:08,690 --> 00:09:14,240 And then we have the statutory guidance. So that's all that the law says. 88 00:09:14,240 --> 00:09:20,390 It just has to be disciplinary. Nothing else. It is done for the statutory guidance to give content to that. 89 00:09:20,390 --> 00:09:26,780 Now, every actor within a school or local authority or multi-academy trust that is thinking 90 00:09:26,780 --> 00:09:32,660 about permanent exclusion can't just take that couple of words and apply it. 91 00:09:32,660 --> 00:09:40,640 So they rely on the statutory guidance and treat it like law. So we'll be talking about what the statutory guidance says is had various iterations. 92 00:09:40,640 --> 00:09:48,110 The most recent version is from 2017. There was a short lived version in 2015, survived, 93 00:09:48,110 --> 00:09:54,590 I think two months attempted to on the sly reform the test and make it much easier to 94 00:09:54,590 --> 00:10:00,410 permanently exclude a child that was a purported legal challenge or threatened legal challenge. 95 00:10:00,410 --> 00:10:00,980 For that reason, 96 00:10:00,980 --> 00:10:09,260 the government withdrew it and then came back with the 2017 version that looks pretty similar to the 2012 version that had been running all along. 97 00:10:09,260 --> 00:10:16,910 Aside from the fact that the 2017 version gives more guidance, in fact, some more non-statutory guidance, 98 00:10:16,910 --> 00:10:23,540 more guidance guidance at the back to actors within schools to help them make sense of the statutory guidance. 99 00:10:23,540 --> 00:10:30,800 So the first thing to note about the statutory guidance is that it says that permanent exclusion should only be used as a last resort. 100 00:10:30,800 --> 00:10:32,810 And that's meant to be taken seriously. 101 00:10:32,810 --> 00:10:40,730 Last resort and in particular in respect of the children that we're talking about, should as far as possible be avoided. 102 00:10:40,730 --> 00:10:49,870 In the case of a child with a any H.S. in education and health care plan or a looked after child. 103 00:10:49,870 --> 00:10:54,740 Now, whether or not that's the case is something we'll come back to. 104 00:10:54,740 --> 00:11:02,270 In addition, neither permanent exclusion nor fixed period exclusion is justifiable if it's discriminatory within the terms of the Equality Act 2010, 105 00:11:02,270 --> 00:11:06,080 so we have this on the statute that says you cannot discriminate. 106 00:11:06,080 --> 00:11:10,700 Ironically, it doesn't actually include age for children as a grounds of discrimination. 107 00:11:10,700 --> 00:11:14,210 So you can actually treat children worse because of the fact that they're children. 108 00:11:14,210 --> 00:11:21,620 That's not considered discriminatory age discrimination and kicks in for older people, which I would say is actually a problem. 109 00:11:21,620 --> 00:11:26,570 When you think about how children and pupils in particular are treated because you can straightforwardly discriminate against them, 110 00:11:26,570 --> 00:11:29,330 it's sanctioned because they're children anyway. 111 00:11:29,330 --> 00:11:37,070 One thing to say, of course, is that if the child is disabled or has special educational needs, that would kind of qualify for that purpose. 112 00:11:37,070 --> 00:11:44,210 You can't discriminate against them. We have good evidence and justice reported on this in 2019. 113 00:11:44,210 --> 00:11:50,090 We have good evidence that that discrimination occurs because of a misunderstanding. 114 00:11:50,090 --> 00:11:57,110 I don't know how it's come about of what the law says. So you can't discriminate in theory means treat everybody equally. 115 00:11:57,110 --> 00:12:01,550 But of course, as you know, treating people equally doesn't mean identically. 116 00:12:01,550 --> 00:12:06,690 It means equality of opportunity, and that means you have to make reasonable adjustments. 117 00:12:06,690 --> 00:12:11,660 However, we have good evidence from schools reporting to justice. 118 00:12:11,660 --> 00:12:21,590 The campaign group in 2019 that there are significant instances in which children are permanently excluded, 119 00:12:21,590 --> 00:12:23,780 potentially on the grounds of their disability, 120 00:12:23,780 --> 00:12:31,550 because they had been treated the same and held to the same standards identically as children without disability or special educational needs, 121 00:12:31,550 --> 00:12:39,440 i.e. no reasonable adjustments were made at all. And the easiest way in which that happens is with the grounds of permanent exclusion. 122 00:12:39,440 --> 00:12:43,790 This isn't legal again. Remember, the only thing that you've got is that it has to be a disciplinary grounds. 123 00:12:43,790 --> 00:12:48,020 But there are particular ways of thinking about a kind of a disciplinary basis. 124 00:12:48,020 --> 00:12:51,950 The most common way of thinking about a disciplinary basis for permanent exclusion 125 00:12:51,950 --> 00:12:57,320 is that the student the pupil has engaged in persistent disruptive behaviour, 126 00:12:57,320 --> 00:13:04,940 and that accounts for about a third of permanent exclusions. What you should note is that there's no test for persistent, disruptive behaviour. 127 00:13:04,940 --> 00:13:10,340 It's low level classroom disruption. Now you can well imagine, and you'd be right. 128 00:13:10,340 --> 00:13:18,770 My pupils with disabilities and special educational needs are more likely than the general population to engage in low level classroom disruption. 129 00:13:18,770 --> 00:13:23,240 That's how they get permanently excluded. But we don't actually, ironically have any data to prove that. 130 00:13:23,240 --> 00:13:30,110 It's just a hypothesis which might explain why almost half of all permanent exclusions are comprised of by these 131 00:13:30,110 --> 00:13:37,190 pupils and persistent disruptive behaviour is the most common justification for exclusion on disciplinary grounds. 132 00:13:37,190 --> 00:13:44,840 But we don't know for sure, but given that we do know that schools are not making reasonable adjustments when they should be, 133 00:13:44,840 --> 00:13:46,970 it would be a reasonable hypothesis. 134 00:13:46,970 --> 00:13:53,390 You'll notice that there's going to be, unfortunately, in the next little while a lot of moments at which I say we really need the data. 135 00:13:53,390 --> 00:13:58,550 Now, if you were very cynical, you might think we don't have the data because then we can't prove these awful things 136 00:13:58,550 --> 00:14:04,340 that are happening internal to schools and we should do something about that. And if we have the data, we be able to challenge directly. 137 00:14:04,340 --> 00:14:06,470 I'm not going to be that cynical. 138 00:14:06,470 --> 00:14:12,920 I'm just going to suggest that we've only started to properly look at it and think carefully in about five years time. 139 00:14:12,920 --> 00:14:15,740 I might be much more cynical about why we don't have the data, 140 00:14:15,740 --> 00:14:22,580 but at the moment it appears as if it's simply a failure to think hard enough about the problem. 141 00:14:22,580 --> 00:14:24,620 You can challenge me on that and say, no, actually, 142 00:14:24,620 --> 00:14:35,360 I think that this is wilful oversight of critical data that might help us understand what's really going on. 143 00:14:35,360 --> 00:14:43,730 So to give you a sense of how children with disabilities are viewed in this context, I wanted to talk to you about one of the leading cases. 144 00:14:43,730 --> 00:14:48,170 It's an old case ish 2010, so kind of older in a legal context. 145 00:14:48,170 --> 00:14:54,050 But I wanted to talk about it just to show you about the attitude that we have to children with disabilities in this context. 146 00:14:54,050 --> 00:14:56,900 The case is called a and Essex County Council, 147 00:14:56,900 --> 00:15:05,210 and it involves a boy with severe autism who also has epilepsy and a number of other conditions that mean that he's not only disabled, 148 00:15:05,210 --> 00:15:13,760 but he's also categorised as having special educational needs. The school that he attends is a school for children with severe learning difficulties. 149 00:15:13,760 --> 00:15:20,960 So it's not mainstream, and that school is concerned that his behaviour means he poses a risk to himself and others. 150 00:15:20,960 --> 00:15:26,630 As a result, the school asked the parents to remove him, which they do, 151 00:15:26,630 --> 00:15:36,360 and the local authority then take 18 months to find him a place at a suitable, very expensive residential school. 152 00:15:36,360 --> 00:15:41,580 For that period of 18 months, he is not in education at all. 153 00:15:41,580 --> 00:15:49,830 He is waiting around for a school to attend. Now the delay is caused both by lack of suitable place and the local authorities, 154 00:15:49,830 --> 00:15:57,450 inadequate resources to carry out the special testing, medical testing, etc. required to know what type of school he'd need to go to. 155 00:15:57,450 --> 00:16:05,310 So the case was brought on his behalf to challenge that failure to find him a place for 18 months on the grounds that it had 156 00:16:05,310 --> 00:16:12,660 infringed his right to education under Article two of the first protocol under its law of the European Convention of Human Rights. 157 00:16:12,660 --> 00:16:21,750 So had it or had it not infringed his right to education in the courts below some in the lower English courts, the case was struck out. 158 00:16:21,750 --> 00:16:29,820 It went to the Supreme Court and the Supreme Court unanimously dismissed the boy's appeal against this, against the striking out. 159 00:16:29,820 --> 00:16:33,060 He has no case even worth hearing. That's what's striking out means. 160 00:16:33,060 --> 00:16:39,840 It's not that they heard his case and said no, actually, there was no discrimination or it didn't infringe your right to education, is it? 161 00:16:39,840 --> 00:16:46,170 Actually, you don't even have a case that's worth hearing. Your case is so weak and the reasoning is what I want to touch on. 162 00:16:46,170 --> 00:16:58,190 So the court constructed the right education as requiring effective access to such educational facilities as the state provides for such pupils. 163 00:16:58,190 --> 00:17:07,550 In respect of which the child could only be denied effective access to the import of it if he was deprived of the very essence of the right, 164 00:17:07,550 --> 00:17:14,330 i.e. the right to education doesn't mean that you are entitled to any particular form of education. 165 00:17:14,330 --> 00:17:18,140 So even if you have, for example, an education health care plan, 166 00:17:18,140 --> 00:17:24,920 you're not necessarily entitled to that particular form of education according to the right to education, as interpreted by the Supreme Court. 167 00:17:24,920 --> 00:17:33,670 You are simply entitled to the type of education that the state would provide for children in your position generally. 168 00:17:33,670 --> 00:17:40,960 And the court or one of the judges on the bench in particular emphasised how much the local authority had spent 169 00:17:40,960 --> 00:17:47,350 and how much effort they had gone to trying to find some interim solution so they haven't found anything. 170 00:17:47,350 --> 00:17:52,930 And Lord Clark says was the interim efforts made by Essex were far from perfect. 171 00:17:52,930 --> 00:17:54,880 They did as much as they could. 172 00:17:54,880 --> 00:18:00,550 And he says once one takes into account the fact that what was needed were interim measures pending the long term solution. 173 00:18:00,550 --> 00:18:09,940 He can't succeed at trial. But just note then what's really important about this is that if you have disabilities or special educational needs, 174 00:18:09,940 --> 00:18:18,400 it is very, very hard to legally enforce a right to anything specific that you need your right to. 175 00:18:18,400 --> 00:18:23,170 Education is so vague it probably doesn't help you very much. 176 00:18:23,170 --> 00:18:26,230 But we will come back to that again when I talk about children's rights more generally, 177 00:18:26,230 --> 00:18:29,320 whether they help but not the leading case on the right to education. 178 00:18:29,320 --> 00:18:35,750 It is currently going to the European Court of Human Rights still going there despite Brexit. 179 00:18:35,750 --> 00:18:38,470 Just because I know one of the barristers involved in it, 180 00:18:38,470 --> 00:18:43,930 because there is a concern that the Supreme Court has really read down the content of that right. 181 00:18:43,930 --> 00:18:49,420 It's just inadequate. It doesn't. All I can give effect to the intention of having a right. 182 00:18:49,420 --> 00:18:57,280 It has no real substance to it. Right, so key other features of the legal framework I want to highlight before I move on. 183 00:18:57,280 --> 00:19:06,100 I've noted the role played by statutory guidance and in contrast to law in terms of a little bit of the detail of the statutory guidance test. 184 00:19:06,100 --> 00:19:10,570 So remember, those said permanent exclusion can only be on disciplinary grounds. 185 00:19:10,570 --> 00:19:20,980 How that's been interpreted in the statutory guidance is a two part test, and the test is that you can only permanently exclude a child head teacher. 186 00:19:20,980 --> 00:19:29,260 Firstly, in response to a serious breach or persistent breaches of the school's behaviour policy, it's a serious breach or persistent breaches. 187 00:19:29,260 --> 00:19:30,730 And second, this is an. 188 00:19:30,730 --> 00:19:41,400 And second, where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school. 189 00:19:41,400 --> 00:19:46,240 What I just want to highlight about that is first, the first line says it has to be a serious breach or persistent, 190 00:19:46,240 --> 00:19:50,800 and that's where most pupils 30 or third of them have got persistent disruptive behaviour. 191 00:19:50,800 --> 00:19:55,450 It's much easier than showing a serious breach. And then second, the second limb. 192 00:19:55,450 --> 00:20:04,330 This balancing right where has to show you have to show a serious harm to the educational welfare of the pupil or others in the school. 193 00:20:04,330 --> 00:20:08,800 There is good evidence that that balancing doesn't occur, 194 00:20:08,800 --> 00:20:20,590 that schools head teachers invariably focus on the people that they are looking to exclude and assume that that if they don't exclude them, 195 00:20:20,590 --> 00:20:27,070 that will be harmful for others in the school community. Now, obviously, in some cases, you won't have to directly engage with the balancing if, 196 00:20:27,070 --> 00:20:32,500 for example, that it was a case of assault on another pupil or kind of a, 197 00:20:32,500 --> 00:20:37,270 I don't know, threatened use of a knife against another pupil, you're not going to have to directly engage with the balancing. 198 00:20:37,270 --> 00:20:40,360 But if you're looking at something like persistent disruptive behaviour, 199 00:20:40,360 --> 00:20:47,410 then the school should arguably be directly asking how they can balance that against the interests of other pupils in the school. 200 00:20:47,410 --> 00:20:51,670 And the reason that this becomes an interesting and difficult question is because we know that we have 201 00:20:51,670 --> 00:20:57,940 schools and clusters of schools that work together and local authority sub areas that work together, 202 00:20:57,940 --> 00:21:03,550 that have zero exclusion policies that therefore arguably have taken the view as a 203 00:21:03,550 --> 00:21:09,670 matter of policy that you can never seriously harm the pupil or others in the school, 204 00:21:09,670 --> 00:21:15,670 such that exclusion is justified. That's their policy view. You could never seriously harm in that way. 205 00:21:15,670 --> 00:21:21,280 Given that we have that situation, you have to ask then how this test should be applied. 206 00:21:21,280 --> 00:21:30,580 One thing I would flag as a legal academic is that this balancing requires the equivalent of balancing best interests of multiple children, 207 00:21:30,580 --> 00:21:37,630 and we know from elsewhere in the law that that is theoretically impossible. 208 00:21:37,630 --> 00:21:46,150 The best interest test in law is about looking at one child, and you can't balance competing best interests. 209 00:21:46,150 --> 00:21:51,430 You can ask what's the least worst outcome, but you can't balance best interests in that way. 210 00:21:51,430 --> 00:21:57,010 So we already know academic lawyers looking at the test that the test is set up to fail. 211 00:21:57,010 --> 00:22:03,940 And what that tells you, because that test has been in place for multiple sets of statutory guidance, 212 00:22:03,940 --> 00:22:08,890 the fact that it persists tells you that this new series scrutiny because if there was serious scrutiny, 213 00:22:08,890 --> 00:22:17,350 it would have to be reformed because it just can't work as a matter of theory for pupils with special educational needs in particular. 214 00:22:17,350 --> 00:22:23,050 We know, like I've said, that this balancing doesn't occur and to the extent it does occur, 215 00:22:23,050 --> 00:22:28,930 we have good evidence that there's no consideration of whether reasonable adjustments 216 00:22:28,930 --> 00:22:34,150 would enable that pupil to remain in school without causing serious harm to other peoples. 217 00:22:34,150 --> 00:22:36,880 And that's where reasonable adjustment should come in in the exclusion process. 218 00:22:36,880 --> 00:22:45,100 The school should ask, OK, if we engage in reasonable adjustments, could we keep them in the school? 219 00:22:45,100 --> 00:22:55,390 So that's some of the detail of the process. One other thing I should flag in how this applies in terms of the test is that headteachers and 220 00:22:55,390 --> 00:23:01,300 other decision makers only have to do what's called have regard to the statutory guidance. 221 00:23:01,300 --> 00:23:09,070 That's what the legislation says. Section 51 Big A subsection ex-officers and B it's a law of the Education Act 2002, 222 00:23:09,070 --> 00:23:15,070 just as the head teacher has to have regard to the statutory guidance. That means, of course, that it's not binding. 223 00:23:15,070 --> 00:23:22,810 It means that you should pay attention to it and you should follow it, potentially unless there's a good reason not to. 224 00:23:22,810 --> 00:23:29,140 But we know that headteachers and others involved in decision making don't treat the statutory guidance like that. 225 00:23:29,140 --> 00:23:33,970 They treat it like it's law. Why do they treat it like it's law? Because the law is just two words, right? 226 00:23:33,970 --> 00:23:38,680 Disciplinary grounds. It makes perfect sense that they treat it that way because they have nothing else to advise them. 227 00:23:38,680 --> 00:23:47,860 So one easy reform that you could come to is that actually, we should have much better law, not necessarily much better statutory guidance. 228 00:23:47,860 --> 00:23:53,740 So the Timpson review and Justice both talk about improving statutory guidance, but statutory guns isn't law. 229 00:23:53,740 --> 00:23:59,320 As a lawyer, I care about what's legal, and if it's not legal, well, then I'm probably going to say, 230 00:23:59,320 --> 00:24:03,700 Well, you should take it to court, or you should take it to a tribunal, or you should ask for a review. You should do something. 231 00:24:03,700 --> 00:24:05,740 So I would say what you should be doing is improving. 232 00:24:05,740 --> 00:24:12,430 The law is the legal regime that you should use to fix this rather than statutory guidance that doesn't have that status. 233 00:24:12,430 --> 00:24:14,050 It's a quick and easy workaround. 234 00:24:14,050 --> 00:24:20,980 It's much easier to reform statutory guidance than law because it doesn't need the same level of scrutiny and it can be pushed through by a committee. 235 00:24:20,980 --> 00:24:27,670 But that doesn't mean that it's preferable because actually what it means is that you often have simplified 236 00:24:27,670 --> 00:24:32,410 statements and statutory guidance so that people reading it without a legal background can understand it. 237 00:24:32,410 --> 00:24:40,810 But then those simplified statements get applied as if they were the correct legal regulations, and they're not right. 238 00:24:40,810 --> 00:24:44,050 Other aspects in terms of where the law comes in, just a note. 239 00:24:44,050 --> 00:24:50,110 So let's assume the head teachers made the decision to permanently exclude you then have depending on where you are in the country, 240 00:24:50,110 --> 00:24:56,950 a review by a governing body. So it could be called a GDC governing board, the governing council, the governors. 241 00:24:56,950 --> 00:25:00,520 It depends what you are. They will review that decision. 242 00:25:00,520 --> 00:25:08,110 They will almost always agree with the head teacher that is otherwise known as rubberstamping. 243 00:25:08,110 --> 00:25:16,690 We know it happens. It happens in part for good reason. Invariably, particularly if there is somebody on the governing council who's a lawyer, 244 00:25:16,690 --> 00:25:20,980 they'll almost certainly have been asked by the head teacher in advance what they think of the exclusion. 245 00:25:20,980 --> 00:25:26,110 They have said, actually, that makes perfect sense to me. Headteacher excludes governing council vote plus the governing council. 246 00:25:26,110 --> 00:25:32,860 The parents are probably highly conflicted. If they were also lawyers, they would have to excuse themselves from the decision making process. 247 00:25:32,860 --> 00:25:39,400 But no one has probably told them that they should actually conflict themselves out and not be involved in the decision anyway, 248 00:25:39,400 --> 00:25:42,880 so they will probably be thinking of their own children and the school's reputation. 249 00:25:42,880 --> 00:25:47,050 Anyone with a business background will be thinking of the school's reputation, and so they rubberstamp it. 250 00:25:47,050 --> 00:25:56,590 We know that. And then the next stage, if it gets there, if it gets there, is to go to what's called an independent review panel. 251 00:25:56,590 --> 00:26:01,090 There is a significant sense of irony in the name which I love first. Note it's review, not appeal. 252 00:26:01,090 --> 00:26:04,420 You can't appeal. Review just means that you look over it. 253 00:26:04,420 --> 00:26:11,800 And if the review panel says that the child should not have been permanently excluded, all they can do is ask the school to reconsider. 254 00:26:11,800 --> 00:26:16,060 They cannot ever make the school. Take the child back. 255 00:26:16,060 --> 00:26:22,540 They can't. They can say, if you don't take them back, we will impose a fine of four thousand pounds. 256 00:26:22,540 --> 00:26:30,010 Guess what? In the scheme of things, four thousand pounds is not very much even to cast for cash-strapped schools. 257 00:26:30,010 --> 00:26:36,850 Four thousand pounds. Not much. When you set it against the difficulties with caring for the needs of a child with disabilities and 258 00:26:36,850 --> 00:26:42,220 special educational needs and other needs that mean that that's why they're being permanently excluded. 259 00:26:42,220 --> 00:26:45,820 So that makes very little difference. We've got lots of good data on that. 260 00:26:45,820 --> 00:26:52,300 And actually, ironically, there are different policies in different parts of the country where some independent review panels will never, 261 00:26:52,300 --> 00:26:58,090 ever impose that anyway. It's just a policy where they will never even threatened to impose that as a sanction. 262 00:26:58,090 --> 00:27:06,250 Right? The other aspect to the ironic name Independent Review Panel is the independent part insofar as academies. 263 00:27:06,250 --> 00:27:13,810 And we'll note that we have lots of academies now set up their own independent review panels if they're in a multi academy trust, 264 00:27:13,810 --> 00:27:16,000 they rarely take from other parts of the trust. 265 00:27:16,000 --> 00:27:20,890 If they're not well, they take from connected individuals and they can advice the local authority along. 266 00:27:20,890 --> 00:27:28,240 But the local authority and an independent review panel for an academy has no right to make any representations. 267 00:27:28,240 --> 00:27:32,200 They have a right to attend, but they do not have a right to speak, 268 00:27:32,200 --> 00:27:39,940 and I know from local authority contacts that indeed they can show up and they are made to sit there silently and watch it happen. 269 00:27:39,940 --> 00:27:43,370 So we know as well independent review panels don't necessarily have. 270 00:27:43,370 --> 00:27:46,610 The degree of oversight that would be required. 271 00:27:46,610 --> 00:27:52,310 So there's lots of reform that could happen there, and there've been proposals such as saying, Well, actually, 272 00:27:52,310 --> 00:27:58,250 you should do away with independent review panels or panels, whatever you call them, and go straight to a tribunal. 273 00:27:58,250 --> 00:28:04,100 So not court because of what this is. You might say not wholly suitable because of the nature of the dispute. 274 00:28:04,100 --> 00:28:09,950 Not wholly suitable for court, because in some situations you're trying to keep the relationship between the pupil and the school together. 275 00:28:09,950 --> 00:28:16,640 And if you go straight to court, that might not work, though ironically, in family law, where I do most of my work, 276 00:28:16,640 --> 00:28:20,570 we make people go to court and we tell them, Don't worry, you can co-parent after this horrible dispute. 277 00:28:20,570 --> 00:28:26,960 So, you know, elsewhere we say courts fine for this, but I can see why there's an argument that maybe this should go to a tribunal instead. 278 00:28:26,960 --> 00:28:31,010 The alternative is to make it truly, truly independent. That would be hard work. 279 00:28:31,010 --> 00:28:36,230 It would need policing. We do have regional school commissioners that could be looking at this. 280 00:28:36,230 --> 00:28:42,470 They're not looking at it. We do have regional school commissioners that could be engaging in much greater oversight of academy decision-making. 281 00:28:42,470 --> 00:28:44,570 They're not that arguably, I think, 282 00:28:44,570 --> 00:28:50,840 is where we should be directing our complaints because that's as good as it gets in terms of complaining about some of these decisions. 283 00:28:50,840 --> 00:28:59,240 So to look at some of the problems in practise for these children, I'm just critically aware of the time. 284 00:28:59,240 --> 00:29:02,060 Let's talk about the value of children's rights arguments. 285 00:29:02,060 --> 00:29:11,900 So children with disabilities in particular have a large number of rights that are theoretically implicated here. 286 00:29:11,900 --> 00:29:17,060 So I would list some of let's start with the idea that we know the right to education is a multiplier, right? 287 00:29:17,060 --> 00:29:20,800 That means that it crosses boundaries between different types of rights, economics, 288 00:29:20,800 --> 00:29:24,140 economic rights, social rights, cultural rights, and it enhances other rights. 289 00:29:24,140 --> 00:29:29,150 And for that reason, you suddenly have a significant volume of implicated rights. 290 00:29:29,150 --> 00:29:36,680 It's a multiplier, right? The implicated rights, then, for children with disabilities and special educational needs, I would list off some. 291 00:29:36,680 --> 00:29:39,740 You've got direct universal expressions of the right to education. 292 00:29:39,740 --> 00:29:47,960 Article 26 of the Universal Declaration of Human Rights Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights. 293 00:29:47,960 --> 00:29:50,960 Article two of the first protocol to the European Convention on Human Rights. 294 00:29:50,960 --> 00:29:58,910 Although note, like I said in In Essex, that didn't count for much of a direct targeted expressions that reaffirmed the universal rights. 295 00:29:58,910 --> 00:30:03,830 Article 10 of the United Nations Convention on the Elimination of Discrimination Against Women. 296 00:30:03,830 --> 00:30:11,120 That's also discussed in general. Comment number one, general comments help elucidate these rights. 297 00:30:11,120 --> 00:30:18,200 So you should always if you're interested in this, take the UN convention, write that you're looking at and then look at the committee, 298 00:30:18,200 --> 00:30:23,090 the corresponding committee, and that general comments, because very often that's how those rights develop. 299 00:30:23,090 --> 00:30:28,340 You haven't got court cases in the same way. You've got general comments kind of put out anyway in general. 300 00:30:28,340 --> 00:30:32,810 Comment. Number one, the United Nations Committee on the Rights of the Child, when they were looking at the convention, 301 00:30:32,810 --> 00:30:40,040 the rights of the child talked about the indispensable interconnectedness of a number of convention on the rights of the child provisions. 302 00:30:40,040 --> 00:30:50,240 And I would list off some Article six, 12, 17, 18, 24 and 30, plus the important ones, for example, 28 and 29 in the convention. 303 00:30:50,240 --> 00:30:56,030 The rights of the child. 28. Access to Education 29. Goals of education. 304 00:30:56,030 --> 00:30:59,780 There are a couple more that I can tell you about as well for children with disabilities in particular. 305 00:30:59,780 --> 00:31:05,000 Article seven and 24 The United Nations Convention The Rights of Persons with Disabilities. 306 00:31:05,000 --> 00:31:11,360 Article seven is about kind of the general implementation provision. Article 24 is about the right to inclusive education. 307 00:31:11,360 --> 00:31:13,520 What is the point of this really, really long list of giving you? 308 00:31:13,520 --> 00:31:17,930 And there were more I could give in terms of how they relate, because of course you access lots of rights, 309 00:31:17,930 --> 00:31:21,710 Walsh, you an education and you are meant to have a human rights enhancing education. 310 00:31:21,710 --> 00:31:27,620 That's what inclusive education is in part about. Oscar, 24 and Article 29 the convention rights the child. 311 00:31:27,620 --> 00:31:32,210 The point to note is that there are a lot of rights. Go back to the stats. 312 00:31:32,210 --> 00:31:36,890 You know that children with disabilities and special educational needs are almost 313 00:31:36,890 --> 00:31:41,300 half of the total population of permanently excluded children in England, 314 00:31:41,300 --> 00:31:44,840 and that they are seven times more likely than any other people to become that excluded. 315 00:31:44,840 --> 00:31:49,530 That should tell you that these rights don't appear to be doing much in practise. 316 00:31:49,530 --> 00:31:55,790 And so then the question is why now as a lawyer? 317 00:31:55,790 --> 00:32:05,480 The answer kind of appears fairly straightforward, but as a non-lawyer, I often get people asking me why you don't just cite a particular right? 318 00:32:05,480 --> 00:32:10,670 You know why that won't help. So why, for example, the parent of a parent in this situation can't say, Well, look, 319 00:32:10,670 --> 00:32:15,530 you were infringing upon my child's right under Article 29 of the convention, the rights of the child. 320 00:32:15,530 --> 00:32:21,230 All these these conventions are binding on the state. 321 00:32:21,230 --> 00:32:27,950 But they and state organs. But it is very hard to give effect to them, lower down. 322 00:32:27,950 --> 00:32:33,770 So beyond kind of mere state obligation, now in theory, they have to be implemented. 323 00:32:33,770 --> 00:32:40,820 And so you, for example, should see the detail of these rights being filtered out through the education system. 324 00:32:40,820 --> 00:32:43,340 But that's not how it works. 325 00:32:43,340 --> 00:32:50,450 And when you see them cited in cases concerned with this tribunal decisions or court cases, they are cited and might be slightly controversial. 326 00:32:50,450 --> 00:32:56,240 But I think it's true as buttressing other arguments. They are not by themselves. 327 00:32:56,240 --> 00:33:01,310 The critical legal argument that is going to win. They are a useful buttress. 328 00:33:01,310 --> 00:33:09,710 If the judge or the kind of tribunal, judge or judge in courts is slightly nervous that the the decision might get challenged, 329 00:33:09,710 --> 00:33:13,610 what they're going to do is decide it the way they want to decide it and the convention, 330 00:33:13,610 --> 00:33:19,610 whichever happens to be on multiple conventions to support their decision to make it look like an even stronger decision. 331 00:33:19,610 --> 00:33:25,040 It's not going to critically decide any of these cases now. 332 00:33:25,040 --> 00:33:29,570 It might be that there's a problem with the way that we are thinking about these 333 00:33:29,570 --> 00:33:33,500 rights that makes that even more likely to happen there on the theorised. 334 00:33:33,500 --> 00:33:37,400 We don't think about the detail that on the United Nations level, 335 00:33:37,400 --> 00:33:43,370 they're aspirational in terms of the the European Convention of Human Rights right to education that we talked about. 336 00:33:43,370 --> 00:33:49,700 Article two, the first protocol that is also not thought about in detail in the Supreme Court, has thought about it in this abstract way. 337 00:33:49,700 --> 00:33:53,030 Perhaps we should be pushing for detailed implementation. 338 00:33:53,030 --> 00:34:00,740 The way that that works in those regimes, though, is have the various committees talk about them rather than to take them to court courts? 339 00:34:00,740 --> 00:34:07,220 Well, the courts will not state that particular rights require particular practical actions. 340 00:34:07,220 --> 00:34:10,580 These rights are too abstract for that. And indeed, 341 00:34:10,580 --> 00:34:14,690 they are much more likely to say that the right doesn't require it because these 342 00:34:14,690 --> 00:34:21,500 conventions also have regard to limited resources in different nation states. 343 00:34:21,500 --> 00:34:30,020 And so it's much more likely that if there is any kind of resource argument that the court is going to say, but actually the state can't afford it. 344 00:34:30,020 --> 00:34:36,840 This is very expensive, and for that reason, that article should not be interpreted in this restrictive way. 345 00:34:36,840 --> 00:34:42,420 In practise, then these rights give very little practical benefit to these children. 346 00:34:42,420 --> 00:34:49,530 I'll give you another example just to show this. There's a case from 2006. 347 00:34:49,530 --> 00:34:53,530 Again, this is the time of the House of Lords, but it's a Supreme Court case. 348 00:34:53,530 --> 00:34:59,880 But House of Lords is the most sorry for 2006. The case is called Ali and Head Teacher and Governance of Lord Grade School. 349 00:34:59,880 --> 00:35:07,440 And Ali is concerned with again Article two of the first protocol to the Open Convention of Human Rights Right to Education, 350 00:35:07,440 --> 00:35:12,300 and the focus is on provision that happens after permanent exclusion. 351 00:35:12,300 --> 00:35:17,370 What you might know of the practises day six provision. So what happens on day six? 352 00:35:17,370 --> 00:35:27,650 And the question is. What's good enough to satisfy the right to education on day six and the reasoning from Lord Hoffman is as follows 353 00:35:27,650 --> 00:35:34,730 Article two The protocol one is infringed only if there is a systemic failure of the educational system, 354 00:35:34,730 --> 00:35:41,750 which which results in the child not having access to a minimal level of education. 355 00:35:41,750 --> 00:35:47,630 And then Lord Bingham says Article two Protocol one is a weak right and deliberately so. 356 00:35:47,630 --> 00:35:53,420 That's how children's rights in the education context are interpreted. Weak rights deliberately so. 357 00:35:53,420 --> 00:36:01,650 Lord Bingham Ali. So we do have, like I say this, this on the theories, Asian, but if that's how it's been interpreted, 358 00:36:01,650 --> 00:36:06,840 it's not clear that really theorising these rights would help us anyway. We're not going to get anywhere with that. 359 00:36:06,840 --> 00:36:07,830 Sorry. 360 00:36:07,830 --> 00:36:15,750 So then the next thing to think about is whether there's another strategy, kind of another theoretical lens to apply that might get us somewhere. 361 00:36:15,750 --> 00:36:20,610 And this is where the literature on intersectionality might help. 362 00:36:20,610 --> 00:36:28,710 So, you know, intersectionality, potentially from thinking about women's rights in particular potentially and minority ethnic women's rights. 363 00:36:28,710 --> 00:36:38,400 That's where it kind of grew, kind of. Crenshaw's work in the U.S. looked at how African American women were treated and how there was a failure to 364 00:36:38,400 --> 00:36:44,670 adequately understand their situation because their situation wasn't just that they were female and black. 365 00:36:44,670 --> 00:36:49,380 It was. And it wasn't just kind of adding those disadvantages together. 366 00:36:49,380 --> 00:36:55,230 It was the disadvantage was more than that. There's something unique about that disadvantage that made it worse. 367 00:36:55,230 --> 00:37:01,260 And so what we might want to ask, in particular in respect of children with disabilities and special educational needs, 368 00:37:01,260 --> 00:37:06,210 is whether there is something that makes the situation much worse than the mere fact that they 369 00:37:06,210 --> 00:37:09,720 are child women who can't legally be discriminated against in the eyes of a child anyway, 370 00:37:09,720 --> 00:37:13,020 that they're a child and that they have disabilities or special educational needs. 371 00:37:13,020 --> 00:37:20,670 Is there something that is beyond the additive? And if there is, what might recognising that do? 372 00:37:20,670 --> 00:37:30,780 And that's why it becomes very problematic. So there's some discussion in the general literature on how we think about children and childhood. 373 00:37:30,780 --> 00:37:38,100 That childhood might be like a disability and that in that way, 374 00:37:38,100 --> 00:37:47,790 children might be like a minority group and be most readily comparable to a minority group of disabled. 375 00:37:47,790 --> 00:37:56,190 That's an argument and that that if how you think of children's situation is that they might be comparable to that type of minority group. 376 00:37:56,190 --> 00:38:00,510 There is conversely, another attitude to how you think about childhood more generally, 377 00:38:00,510 --> 00:38:04,110 which is that yes, they are vulnerable, as are other minority groups. 378 00:38:04,110 --> 00:38:09,300 But actually, absolutely everybody is vulnerable. So this is kind of Feynman's vulnerability theory. 379 00:38:09,300 --> 00:38:14,880 And if you recognise everyone is vulnerable, yes, we were vulnerable uniquely, but no one is more vulnerable than anybody else. 380 00:38:14,880 --> 00:38:24,450 Intersectionality changes that insofar as it suggests that that vulnerability is uniquely enhanced. 381 00:38:24,450 --> 00:38:32,070 Now, it doesn't necessarily fall in line with the idea that childhood is like a disability, because actually childhood. 382 00:38:32,070 --> 00:38:39,660 Can be very positive in the philosophy of childhood. We talk about the goodness of childhood, what we do now is kind of a more recent discussion, 383 00:38:39,660 --> 00:38:45,360 and the law tended to construct childhood as something separate of something that you always grow out of. 384 00:38:45,360 --> 00:38:47,220 And so in that way was seen as a deficit. 385 00:38:47,220 --> 00:38:53,940 But the recent philosophy in childhood suggests that there are inherent intrinsic goods of childhood to be valued in and of themselves, 386 00:38:53,940 --> 00:38:55,620 so not negative. 387 00:38:55,620 --> 00:39:03,150 And yet that if you take the intersectionality lens, then you're saying there's something special and unique that deserves particular attention. 388 00:39:03,150 --> 00:39:07,860 But where does it get us? Well, I'm going to ask the questions rather than answer them. 389 00:39:07,860 --> 00:39:13,820 And it's lucky because that's where I've gotten time in terms of the questions to to ask. 390 00:39:13,820 --> 00:39:23,090 I'm. There's an obvious starting point, which is that the exclusion rates suggest that something's missing. 391 00:39:23,090 --> 00:39:26,750 Beyond the additive perspective. Right? 392 00:39:26,750 --> 00:39:32,360 So more than the mere fact that you're dealing with a child with disabilities or special educational needs because you 393 00:39:32,360 --> 00:39:39,110 know that they are much more likely to be negatively impacted by the exclusions regime than a child that has been, 394 00:39:39,110 --> 00:39:41,940 I don't know, through the care system or had contact with care. 395 00:39:41,940 --> 00:39:49,060 The disproportionate impact suggests that something more than that one extra component. 396 00:39:49,060 --> 00:39:50,820 However. 397 00:39:50,820 --> 00:40:01,500 It's not clear what recognising that statistically can do for bringing about change that requires you to think about the intersectional theory, 398 00:40:01,500 --> 00:40:03,240 and this is why I get stuck. 399 00:40:03,240 --> 00:40:09,990 So it seems to be of value to say, OK, there's something special about this group of children that is a particular problem. 400 00:40:09,990 --> 00:40:14,520 But do you need to think about that to learn from the statistics? 401 00:40:14,520 --> 00:40:21,090 Or can you just look at the statistics and say, OK, then actually, what we need to do instead is to spend our money on targeting this group. 402 00:40:21,090 --> 00:40:23,820 And you haven't then had to have an intersectional solution, right? 403 00:40:23,820 --> 00:40:28,710 It's nothing that it just says, OK, we're just going to prove the stats and they're the most, 404 00:40:28,710 --> 00:40:32,520 worst affected by the stats and that's what we spend money. So I don't know. 405 00:40:32,520 --> 00:40:43,590 The other thing that I doubt is that intersectionality is meant to be a way of recognising unique positions and in a sense, 406 00:40:43,590 --> 00:40:52,260 moving away from unique disadvantage. But it can be readily, I think, interpreted might be interpreted in practise as a special kind of disadvantage. 407 00:40:52,260 --> 00:40:57,750 And it's not clear that you'd want to label children that way. And so it's not necessarily clear that it's advantageous. 408 00:40:57,750 --> 00:41:03,510 The other concern I have is that even though it recognises that you are 409 00:41:03,510 --> 00:41:11,550 combining multiple concerns to show an explanation for the statistical problem. 410 00:41:11,550 --> 00:41:19,210 So in that sense, moving away from silos, you may then be creating more more finely tuned silos. 411 00:41:19,210 --> 00:41:24,360 And so they're not actually improving things, but just carving off the problem. 412 00:41:24,360 --> 00:41:31,770 And that happens more readily if you focus on the theory that if you just look at the data where if you just look at the data, 413 00:41:31,770 --> 00:41:38,520 you are responding to what you can do to improve that data. And so you just target funding. 414 00:41:38,520 --> 00:41:43,980 The other problem with intersectionality is that and I hope this is clear to people in the room. 415 00:41:43,980 --> 00:41:52,710 It's not entirely clear what exactly it means. So we are saying it's more than merely adding up the the kind of multiple components. 416 00:41:52,710 --> 00:41:58,890 But there is significant disagreement on what that more than merely adding up means there's more than additive. 417 00:41:58,890 --> 00:42:04,290 But what's the rest? And how do you account for it? And how do you jump from accounting for that theoretically to the data? 418 00:42:04,290 --> 00:42:11,310 And how much of the data can you expect to be that more than additive approach and how much of the data is just the additive approach? 419 00:42:11,310 --> 00:42:16,530 And there's nothing that tells us how to do any of that. And you might say, Well, look, until then, we've got the theory resolved. 420 00:42:16,530 --> 00:42:25,330 Why even try instead, maybe just focus on improving things in practise? 421 00:42:25,330 --> 00:42:31,570 Where does that leave us? And this is, I think, where I'm quite troubled, so normally as a lawyer, 422 00:42:31,570 --> 00:42:37,060 when you talk about a problem you'd like to have already solution and the solution is normally if you've got 423 00:42:37,060 --> 00:42:42,430 mistreatment of some kind to think about rights that might help and how you're going to apply the rights to help. 424 00:42:42,430 --> 00:42:47,650 We can't do that here. It doesn't work. You kind of think about law reform. 425 00:42:47,650 --> 00:42:51,430 You're probably not going to get it through. You can't think about statutory guidance reform. 426 00:42:51,430 --> 00:43:00,280 You will get that through, but it might not achieve that much. You can think about just calls for more funding, but actually going back a few years, 427 00:43:00,280 --> 00:43:04,690 we have lots of evidence that funding isn't always the critical issue here. 428 00:43:04,690 --> 00:43:09,610 It's about attitude and the way you think about children, and you can single them out. 429 00:43:09,610 --> 00:43:15,010 We know go into the classroom and children would be kind of picked out was the ones that are likely to get 430 00:43:15,010 --> 00:43:20,200 permanently excluded before anything starts going wrong because of who they are and how they're behaving. 431 00:43:20,200 --> 00:43:24,940 And that's not about funding per se. There are some funding issues, particularly at the primary level, 432 00:43:24,940 --> 00:43:30,010 particularly with coping with disabilities and special special educational needs at the primary level. 433 00:43:30,010 --> 00:43:35,560 So where we're at is that we know that something needs to be done. 434 00:43:35,560 --> 00:43:37,990 We don't have the theory to help us. 435 00:43:37,990 --> 00:43:48,610 We have data to show us that it's a problem and we don't have a ready path to reform that can straightforwardly improve outcomes for these children. 436 00:43:48,610 --> 00:43:53,770 But again, we know something needs to be done. OK. 437 00:43:53,770 --> 00:44:03,498 Questions. Thank you very much.