Good, everyone of seems to have taken its toll on the motion controls,
it's this is the fifth excuse excluded large series and this is against the on
exclusion and our friend and colleague said the purpose of this talk of the city,
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.
It was actually interesting in the world about exclusion from within myself and others that prevented the formation of the state laws,
and that was one of those. But you must remember ActionScript largest group, so we're very,
very pleased that she could come along to see what will happen is the single talk from 40 to 45 minutes.
Then we'll have some questions and lots a chance to have a more informal chapter, possibly next.
Thank you. Thank you. I should say that I'm slightly concerned that people think that about law is dry.
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.
The other thing I should say is that it's most unusual for me to talk this long.
Only my students have to hear me for more than about 20 minutes because it most law conferences.
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.
So you'll have seen from a topic of discussion that it's about law school exclusion,
but with a slight focus on children with disabilities, and said I may inadvertently slip into talking about children with Sen only.
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.
I'm not also disabilities, so it becomes hard to maintain the accurate, adequate full focus without slipping to the slightly narrower focus.
In terms of them, what I'm going to do, you'll have seen, I think, or maybe seen a bit of an outline.
There's some statistics, some outline of the law, a little bit of theory.
The theory is meant to be helpful rather than confusing.
So there's a bit of a discussion on what intersectionality looks like and whether or not it might help us
some discussion of children's rights and whether or not the notion of children's rights might help us.
And I think these will be points that will come back to no doubt in discussion
because I have particular views in terms of them not helping very much at all,
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?
Or actually, are we missing the point?
And we should just, for example, focus directly on practical, pragmatic intervention, ignoring whatever theoretical ends we might like to apply?
Treating that as not the problem. So to give you a sense of where we are at the moment,
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.
So it's the statute the Children and Families Act 2014 that introduced reforms in terms of how children with Sen,
although it really should be children with disabilities and send children with special educational needs, were being treated.
And this was the 2019 summary by the House of Commons Education Committee on how it had gone, how the reforms had gone.
The reforms have resulted in confusion and at times unlawful practise bureaucratic nightmares,
buck passing a lack of accountability, strained resources and adversarial experiences, and ultimately dashed the hopes of many.
And this is where we are. We had actually probably quite good law reform in 2014 for children with disabilities
and send not particularly in relation or specifically in relation to exclusion,
but more generally about how the legal system can assist in supporting these children at school.
But you'll see it's failed in terms of implementation.
It's failed in part for budgetary reasons, in part for attitudes and behaviours within school and school leadership.
But just notice it's failed.
And there was also a report by a legal campaign group called Justice The Relatively Prominent, and they had a report from 2019,
and they also said that there was a concerning the disparate effect that exclusion
has on kind of disproportionately impacting children with disabilities.
And and you'll see this when I start to talk about the data.
What should be clear is that these children are in particular as a subset, being failed by the exclusion process.
Now, the school experience by itself is exclusionary, right? So this isn't just the exclusion process that fails them.
The school experience is exclusionary. Within schools, you've got children who are categorised and labelled.
They have special needs, additional needs that set out as deficient or defective in some way.
So what we then have to deal with is how to support those children without separating
them as having this defective absence and without actually making it worse.
Arguably, it just becomes a vicious circle. The reality of permanent exclusion in practise.
I wanted to turn this into numbers because I imagine other seminars.
You will have heard a lot about the stats on exclusion and the way I wanted to turn it into numbers.
You may or may not have heard this. The most recent statistics on exclusion say that there are seven thousand nine hundred peoples
excluded across England and the most recent academic year for which we have data 2017 18.
But how it becomes, I think a bit more real is to turn that into the number of pupils per day.
So it's more than 40 pupils every day in England get permanently excluded,
and that is pupils that are permanent excluded via the formal legal process.
And this is really important because we have lots of evidence of illegal exclusions.
Illegal exclusions are exclusions that don't correctly follow the process,
so they're not exclusions that follow the practise that we then challenge their exclusions we know about.
That shouldn't have happened.
So it could be, for example, that parents have been encouraged to educate their children at home so that they are then not excluded.
They will be.
Parents will have been encouraged to accept the managed move to another school that managed moves are treated as a perfectly legitimate means,
and they are sometimes perfectly legitimate means of preventing exclusion.
But the way that they tend to be pushed on to parents may not be legitimate.
So the data that we've got suggests a problem. And in respect of pupils with disabilities and said in particular,
we know that Sen. Because any sentence recorded that approximately 15 percent of all pupils have special educational needs.
And yet it is approximately 45 percent of all permanent exclusions that are accounted for by children with Sen.
In other words, to turn it into something that feels a bit more real.
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,
and you are in the highest category of permanent exclusion.
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.
We don't know how many of these pupils that aren't permanently excluded are subject to internal exclusions
so that somewhere in the school sat in a room perhaps may be doing beneficial work by themselves,
maybe getting ready to go back to mainstream? Maybe not. We don't know.
We don't know how many of them are actually being, like I say, pushed to home education, pushed in unsuitable managed moves.
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.
So the data that we've got is striking, right? But what's worse is the data that we know we haven't got.
So we know that things are worse than they are. And of course,
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,
between local authorities, between schools. I could go into it, but I would try not to.
So to talk about how this fits with the legal regulation.
First, I just want to give you a little bit of an outline of the legal regime and what it looks like.
So. We have the law, which just says that exclusion has to be on disciplinary grounds.
And then we have the statutory guidance. So that's all that the law says.
It just has to be disciplinary. Nothing else. It is done for the statutory guidance to give content to that.
Now, every actor within a school or local authority or multi-academy trust that is thinking
about permanent exclusion can't just take that couple of words and apply it.
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.
The most recent version is from 2017. There was a short lived version in 2015, survived,
I think two months attempted to on the sly reform the test and make it much easier to
permanently exclude a child that was a purported legal challenge or threatened legal challenge.
For that reason,
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.
Aside from the fact that the 2017 version gives more guidance, in fact, some more non-statutory guidance,
more guidance guidance at the back to actors within schools to help them make sense of the statutory guidance.
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.
And that's meant to be taken seriously.
Last resort and in particular in respect of the children that we're talking about, should as far as possible be avoided.
In the case of a child with a any H.S. in education and health care plan or a looked after child.
Now, whether or not that's the case is something we'll come back to.
In addition, neither permanent exclusion nor fixed period exclusion is justifiable if it's discriminatory within the terms of the Equality Act 2010,
so we have this on the statute that says you cannot discriminate.
Ironically, it doesn't actually include age for children as a grounds of discrimination.
So you can actually treat children worse because of the fact that they're children.
That's not considered discriminatory age discrimination and kicks in for older people, which I would say is actually a problem.
When you think about how children and pupils in particular are treated because you can straightforwardly discriminate against them,
it's sanctioned because they're children anyway.
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.
You can't discriminate against them. We have good evidence and justice reported on this in 2019.
We have good evidence that that discrimination occurs because of a misunderstanding.
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.
But of course, as you know, treating people equally doesn't mean identically.
It means equality of opportunity, and that means you have to make reasonable adjustments.
However, we have good evidence from schools reporting to justice.
The campaign group in 2019 that there are significant instances in which children are permanently excluded,
potentially on the grounds of their disability,
because they had been treated the same and held to the same standards identically as children without disability or special educational needs,
i.e. no reasonable adjustments were made at all. And the easiest way in which that happens is with the grounds of permanent exclusion.
This isn't legal again. Remember, the only thing that you've got is that it has to be a disciplinary grounds.
But there are particular ways of thinking about a kind of a disciplinary basis.
The most common way of thinking about a disciplinary basis for permanent exclusion
is that the student the pupil has engaged in persistent disruptive behaviour,
and that accounts for about a third of permanent exclusions. What you should note is that there's no test for persistent, disruptive behaviour.
It's low level classroom disruption. Now you can well imagine, and you'd be right.
My pupils with disabilities and special educational needs are more likely than the general population to engage in low level classroom disruption.
That's how they get permanently excluded. But we don't actually, ironically have any data to prove that.
It's just a hypothesis which might explain why almost half of all permanent exclusions are comprised of by these
pupils and persistent disruptive behaviour is the most common justification for exclusion on disciplinary grounds.
But we don't know for sure, but given that we do know that schools are not making reasonable adjustments when they should be,
it would be a reasonable hypothesis.
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.
Now, if you were very cynical, you might think we don't have the data because then we can't prove these awful things
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.
I'm not going to be that cynical.
I'm just going to suggest that we've only started to properly look at it and think carefully in about five years time.
I might be much more cynical about why we don't have the data,
but at the moment it appears as if it's simply a failure to think hard enough about the problem.
You can challenge me on that and say, no, actually,
I think that this is wilful oversight of critical data that might help us understand what's really going on.
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.
It's an old case ish 2010, so kind of older in a legal context.
But I wanted to talk about it just to show you about the attitude that we have to children with disabilities in this context.
The case is called a and Essex County Council,
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,
but he's also categorised as having special educational needs. The school that he attends is a school for children with severe learning difficulties.
So it's not mainstream, and that school is concerned that his behaviour means he poses a risk to himself and others.
As a result, the school asked the parents to remove him, which they do,
and the local authority then take 18 months to find him a place at a suitable, very expensive residential school.
For that period of 18 months, he is not in education at all.
He is waiting around for a school to attend. Now the delay is caused both by lack of suitable place and the local authorities,
inadequate resources to carry out the special testing, medical testing, etc. required to know what type of school he'd need to go to.
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
infringed his right to education under Article two of the first protocol under its law of the European Convention of Human Rights.
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.
It went to the Supreme Court and the Supreme Court unanimously dismissed the boy's appeal against this, against the striking out.
He has no case even worth hearing. That's what's striking out means.
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?
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.
So the court constructed the right education as requiring effective access to such educational facilities as the state provides for such pupils.
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,
i.e. the right to education doesn't mean that you are entitled to any particular form of education.
So even if you have, for example, an education health care plan,
you're not necessarily entitled to that particular form of education according to the right to education, as interpreted by the Supreme Court.
You are simply entitled to the type of education that the state would provide for children in your position generally.
And the court or one of the judges on the bench in particular emphasised how much the local authority had spent
and how much effort they had gone to trying to find some interim solution so they haven't found anything.
And Lord Clark says was the interim efforts made by Essex were far from perfect.
They did as much as they could.
And he says once one takes into account the fact that what was needed were interim measures pending the long term solution.
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,
it is very, very hard to legally enforce a right to anything specific that you need your right to.
Education is so vague it probably doesn't help you very much.
But we will come back to that again when I talk about children's rights more generally,
whether they help but not the leading case on the right to education.
It is currently going to the European Court of Human Rights still going there despite Brexit.
Just because I know one of the barristers involved in it,
because there is a concern that the Supreme Court has really read down the content of that right.
It's just inadequate. It doesn't. All I can give effect to the intention of having a right.
It has no real substance to it. Right, so key other features of the legal framework I want to highlight before I move on.
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.
So remember, those said permanent exclusion can only be on disciplinary grounds.
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.
Firstly, in response to a serious breach or persistent breaches of the school's behaviour policy, it's a serious breach or persistent breaches.
And second, this is an.
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.
What I just want to highlight about that is first, the first line says it has to be a serious breach or persistent,
and that's where most pupils 30 or third of them have got persistent disruptive behaviour.
It's much easier than showing a serious breach. And then second, the second limb.
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.
There is good evidence that that balancing doesn't occur,
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,
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,
for example, that it was a case of assault on another pupil or kind of a,
I don't know, threatened use of a knife against another pupil, you're not going to have to directly engage with the balancing.
But if you're looking at something like persistent disruptive behaviour,
then the school should arguably be directly asking how they can balance that against the interests of other pupils in the school.
And the reason that this becomes an interesting and difficult question is because we know that we have
schools and clusters of schools that work together and local authority sub areas that work together,
that have zero exclusion policies that therefore arguably have taken the view as a
matter of policy that you can never seriously harm the pupil or others in the school,
such that exclusion is justified. That's their policy view. You could never seriously harm in that way.
Given that we have that situation, you have to ask then how this test should be applied.
One thing I would flag as a legal academic is that this balancing requires the equivalent of balancing best interests of multiple children,
and we know from elsewhere in the law that that is theoretically impossible.
The best interest test in law is about looking at one child, and you can't balance competing best interests.
You can ask what's the least worst outcome, but you can't balance best interests in that way.
So we already know academic lawyers looking at the test that the test is set up to fail.
And what that tells you, because that test has been in place for multiple sets of statutory guidance,
the fact that it persists tells you that this new series scrutiny because if there was serious scrutiny,
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.
We know, like I've said, that this balancing doesn't occur and to the extent it does occur,
we have good evidence that there's no consideration of whether reasonable adjustments
would enable that pupil to remain in school without causing serious harm to other peoples.
And that's where reasonable adjustment should come in in the exclusion process.
The school should ask, OK, if we engage in reasonable adjustments, could we keep them in the school?
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
other decision makers only have to do what's called have regard to the statutory guidance.
That's what the legislation says. Section 51 Big A subsection ex-officers and B it's a law of the Education Act 2002,
just as the head teacher has to have regard to the statutory guidance. That means, of course, that it's not binding.
It means that you should pay attention to it and you should follow it, potentially unless there's a good reason not to.
But we know that headteachers and others involved in decision making don't treat the statutory guidance like that.
They treat it like it's law. Why do they treat it like it's law? Because the law is just two words, right?
Disciplinary grounds. It makes perfect sense that they treat it that way because they have nothing else to advise them.
So one easy reform that you could come to is that actually, we should have much better law, not necessarily much better statutory guidance.
So the Timpson review and Justice both talk about improving statutory guidance, but statutory guns isn't law.
As a lawyer, I care about what's legal, and if it's not legal, well, then I'm probably going to say,
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.
So I would say what you should be doing is improving.
The law is the legal regime that you should use to fix this rather than statutory guidance that doesn't have that status.
It's a quick and easy workaround.
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.
But that doesn't mean that it's preferable because actually what it means is that you often have simplified
statements and statutory guidance so that people reading it without a legal background can understand it.
But then those simplified statements get applied as if they were the correct legal regulations, and they're not right.
Other aspects in terms of where the law comes in, just a note.
So let's assume the head teachers made the decision to permanently exclude you then have depending on where you are in the country,
a review by a governing body. So it could be called a GDC governing board, the governing council, the governors.
It depends what you are. They will review that decision.
They will almost always agree with the head teacher that is otherwise known as rubberstamping.
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,
they'll almost certainly have been asked by the head teacher in advance what they think of the exclusion.
They have said, actually, that makes perfect sense to me. Headteacher excludes governing council vote plus the governing council.
The parents are probably highly conflicted. If they were also lawyers, they would have to excuse themselves from the decision making process.
But no one has probably told them that they should actually conflict themselves out and not be involved in the decision anyway,
so they will probably be thinking of their own children and the school's reputation.
Anyone with a business background will be thinking of the school's reputation, and so they rubberstamp it.
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.
There is a significant sense of irony in the name which I love first. Note it's review, not appeal.
You can't appeal. Review just means that you look over it.
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.
They cannot ever make the school. Take the child back.
They can't. They can say, if you don't take them back, we will impose a fine of four thousand pounds.
Guess what? In the scheme of things, four thousand pounds is not very much even to cast for cash-strapped schools.
Four thousand pounds. Not much. When you set it against the difficulties with caring for the needs of a child with disabilities and
special educational needs and other needs that mean that that's why they're being permanently excluded.
So that makes very little difference. We've got lots of good data on that.
And actually, ironically, there are different policies in different parts of the country where some independent review panels will never,
ever impose that anyway. It's just a policy where they will never even threatened to impose that as a sanction.
Right? The other aspect to the ironic name Independent Review Panel is the independent part insofar as academies.
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,
they rarely take from other parts of the trust.
If they're not well, they take from connected individuals and they can advice the local authority along.
But the local authority and an independent review panel for an academy has no right to make any representations.
They have a right to attend, but they do not have a right to speak,
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.
So we know as well independent review panels don't necessarily have.
The degree of oversight that would be required.
So there's lots of reform that could happen there, and there've been proposals such as saying, Well, actually,
you should do away with independent review panels or panels, whatever you call them, and go straight to a tribunal.
So not court because of what this is. You might say not wholly suitable because of the nature of the dispute.
Not wholly suitable for court, because in some situations you're trying to keep the relationship between the pupil and the school together.
And if you go straight to court, that might not work, though ironically, in family law, where I do most of my work,
we make people go to court and we tell them, Don't worry, you can co-parent after this horrible dispute.
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.
The alternative is to make it truly, truly independent. That would be hard work.
It would need policing. We do have regional school commissioners that could be looking at this.
They're not looking at it. We do have regional school commissioners that could be engaging in much greater oversight of academy decision-making.
They're not that arguably, I think,
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.
So to look at some of the problems in practise for these children, I'm just critically aware of the time.
Let's talk about the value of children's rights arguments.
So children with disabilities in particular have a large number of rights that are theoretically implicated here.
So I would list some of let's start with the idea that we know the right to education is a multiplier, right?
That means that it crosses boundaries between different types of rights, economics,
economic rights, social rights, cultural rights, and it enhances other rights.
And for that reason, you suddenly have a significant volume of implicated rights.
It's a multiplier, right? The implicated rights, then, for children with disabilities and special educational needs, I would list off some.
You've got direct universal expressions of the right to education.
Article 26 of the Universal Declaration of Human Rights Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights.
Article two of the first protocol to the European Convention on Human Rights.
Although note, like I said in In Essex, that didn't count for much of a direct targeted expressions that reaffirmed the universal rights.
Article 10 of the United Nations Convention on the Elimination of Discrimination Against Women.
That's also discussed in general. Comment number one, general comments help elucidate these rights.
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,
the corresponding committee, and that general comments, because very often that's how those rights develop.
You haven't got court cases in the same way. You've got general comments kind of put out anyway in general.
Comment. Number one, the United Nations Committee on the Rights of the Child, when they were looking at the convention,
the rights of the child talked about the indispensable interconnectedness of a number of convention on the rights of the child provisions.
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.
The rights of the child. 28. Access to Education 29. Goals of education.
There are a couple more that I can tell you about as well for children with disabilities in particular.
Article seven and 24 The United Nations Convention The Rights of Persons with Disabilities.
Article seven is about kind of the general implementation provision. Article 24 is about the right to inclusive education.
What is the point of this really, really long list of giving you?
And there were more I could give in terms of how they relate, because of course you access lots of rights,
Walsh, you an education and you are meant to have a human rights enhancing education.
That's what inclusive education is in part about. Oscar, 24 and Article 29 the convention rights the child.
The point to note is that there are a lot of rights. Go back to the stats.
You know that children with disabilities and special educational needs are almost
half of the total population of permanently excluded children in England,
and that they are seven times more likely than any other people to become that excluded.
That should tell you that these rights don't appear to be doing much in practise.
And so then the question is why now as a lawyer?
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?
You know why that won't help. So why, for example, the parent of a parent in this situation can't say, Well, look,
you were infringing upon my child's right under Article 29 of the convention, the rights of the child.
All these these conventions are binding on the state.
But they and state organs. But it is very hard to give effect to them, lower down.
So beyond kind of mere state obligation, now in theory, they have to be implemented.
And so you, for example, should see the detail of these rights being filtered out through the education system.
But that's not how it works.
And when you see them cited in cases concerned with this tribunal decisions or court cases, they are cited and might be slightly controversial.
But I think it's true as buttressing other arguments. They are not by themselves.
The critical legal argument that is going to win. They are a useful buttress.
If the judge or the kind of tribunal, judge or judge in courts is slightly nervous that the the decision might get challenged,
what they're going to do is decide it the way they want to decide it and the convention,
whichever happens to be on multiple conventions to support their decision to make it look like an even stronger decision.
It's not going to critically decide any of these cases now.
It might be that there's a problem with the way that we are thinking about these
rights that makes that even more likely to happen there on the theorised.
We don't think about the detail that on the United Nations level,
they're aspirational in terms of the the European Convention of Human Rights right to education that we talked about.
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.
Perhaps we should be pushing for detailed implementation.
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?
Well, the courts will not state that particular rights require particular practical actions.
These rights are too abstract for that. And indeed,
they are much more likely to say that the right doesn't require it because these
conventions also have regard to limited resources in different nation states.
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.
This is very expensive, and for that reason, that article should not be interpreted in this restrictive way.
In practise, then these rights give very little practical benefit to these children.
I'll give you another example just to show this. There's a case from 2006.
Again, this is the time of the House of Lords, but it's a Supreme Court case.
But House of Lords is the most sorry for 2006. The case is called Ali and Head Teacher and Governance of Lord Grade School.
And Ali is concerned with again Article two of the first protocol to the Open Convention of Human Rights Right to Education,
and the focus is on provision that happens after permanent exclusion.
What you might know of the practises day six provision. So what happens on day six?
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
Article two The protocol one is infringed only if there is a systemic failure of the educational system,
which which results in the child not having access to a minimal level of education.
And then Lord Bingham says Article two Protocol one is a weak right and deliberately so.
That's how children's rights in the education context are interpreted. Weak rights deliberately so.
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,
it's not clear that really theorising these rights would help us anyway. We're not going to get anywhere with that.
Sorry.
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.
And this is where the literature on intersectionality might help.
So, you know, intersectionality, potentially from thinking about women's rights in particular potentially and minority ethnic women's rights.
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
adequately understand their situation because their situation wasn't just that they were female and black.
It was. And it wasn't just kind of adding those disadvantages together.
It was the disadvantage was more than that. There's something unique about that disadvantage that made it worse.
And so what we might want to ask, in particular in respect of children with disabilities and special educational needs,
is whether there is something that makes the situation much worse than the mere fact that they
are child women who can't legally be discriminated against in the eyes of a child anyway,
that they're a child and that they have disabilities or special educational needs.
Is there something that is beyond the additive? And if there is, what might recognising that do?
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.
That childhood might be like a disability and that in that way,
children might be like a minority group and be most readily comparable to a minority group of disabled.
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.
There is conversely, another attitude to how you think about childhood more generally,
which is that yes, they are vulnerable, as are other minority groups.
But actually, absolutely everybody is vulnerable. So this is kind of Feynman's vulnerability theory.
And if you recognise everyone is vulnerable, yes, we were vulnerable uniquely, but no one is more vulnerable than anybody else.
Intersectionality changes that insofar as it suggests that that vulnerability is uniquely enhanced.
Now, it doesn't necessarily fall in line with the idea that childhood is like a disability, because actually childhood.
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,
and the law tended to construct childhood as something separate of something that you always grow out of.
And so in that way was seen as a deficit.
But the recent philosophy in childhood suggests that there are inherent intrinsic goods of childhood to be valued in and of themselves,
so not negative.
And yet that if you take the intersectionality lens, then you're saying there's something special and unique that deserves particular attention.
But where does it get us? Well, I'm going to ask the questions rather than answer them.
And it's lucky because that's where I've gotten time in terms of the questions to to ask.
I'm. There's an obvious starting point, which is that the exclusion rates suggest that something's missing.
Beyond the additive perspective. Right?
So more than the mere fact that you're dealing with a child with disabilities or special educational needs because you
know that they are much more likely to be negatively impacted by the exclusions regime than a child that has been,
I don't know, through the care system or had contact with care.
The disproportionate impact suggests that something more than that one extra component.
However.
It's not clear what recognising that statistically can do for bringing about change that requires you to think about the intersectional theory,
and this is why I get stuck.
So it seems to be of value to say, OK, there's something special about this group of children that is a particular problem.
But do you need to think about that to learn from the statistics?
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.
And you haven't then had to have an intersectional solution, right?
It's nothing that it just says, OK, we're just going to prove the stats and they're the most,
worst affected by the stats and that's what we spend money. So I don't know.
The other thing that I doubt is that intersectionality is meant to be a way of recognising unique positions and in a sense,
moving away from unique disadvantage. But it can be readily, I think, interpreted might be interpreted in practise as a special kind of disadvantage.
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.
The other concern I have is that even though it recognises that you are
combining multiple concerns to show an explanation for the statistical problem.
So in that sense, moving away from silos, you may then be creating more more finely tuned silos.
And so they're not actually improving things, but just carving off the problem.
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,
you are responding to what you can do to improve that data. And so you just target funding.
The other problem with intersectionality is that and I hope this is clear to people in the room.
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.
But there is significant disagreement on what that more than merely adding up means there's more than additive.
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?
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?
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.
Why even try instead, maybe just focus on improving things in practise?
Where does that leave us? And this is, I think, where I'm quite troubled, so normally as a lawyer,
when you talk about a problem you'd like to have already solution and the solution is normally if you've got
mistreatment of some kind to think about rights that might help and how you're going to apply the rights to help.
We can't do that here. It doesn't work. You kind of think about law reform.
You're probably not going to get it through. You can't think about statutory guidance reform.
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,
we have lots of evidence that funding isn't always the critical issue here.
It's about attitude and the way you think about children, and you can single them out.
We know go into the classroom and children would be kind of picked out was the ones that are likely to get
permanently excluded before anything starts going wrong because of who they are and how they're behaving.
And that's not about funding per se. There are some funding issues, particularly at the primary level,
particularly with coping with disabilities and special special educational needs at the primary level.
So where we're at is that we know that something needs to be done.
We don't have the theory to help us.
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.
But again, we know something needs to be done. OK.
Questions. Thank you very much.