Faculty warns new rights for schoolchildren ‘risk causing confusion’
Measures to give more rights to schoolchildren with additional support needs have been welcomed in general by the Faculty of Advocates, although the specifics “risk causing confusion.”
The Education (Scotland) Bill proposes changes to the Education (Additional Support for Learning) (Scotland) Act 2004 which confers various rights on young people, those aged 16 and 17, but very few on children, those under 16.
Extending most rights to children aged 12 and over with capacity is an important part of the bill.
The Faculty said in written evidence to the Scottish Parliament’s Education and Culture Committee: “While the extension of rights to children with capacity in this area is consistent with the United Nations Convention on the Rights of the Child and as such welcome, the Bill is not consistent with Scots law generally and risks causing confusion.
“The general principle, found in the Age of Legal Capacity (Scotland) Act 1991, section 2, is that a child of any age has legal capacity to instruct a solicitor in connection with any civil matter where the child has a general understanding of what it means to do so…There is a presumption that a child of 12 years or age or more is of sufficient age and maturity to have this understanding.”
The Faculty added: “The Bill as framed would prevent children under 12 with capacity from making an application to the Additional Support Needs Tribunal under the 2004 Act while the same children may make an application to the Tribunal based on disability discrimination and to the sheriff in connection with any other unlawful discrimination.
“The child excluded from the Tribunal could seek other remedies, such as judicial review…The Faculty considers that the approach in the 1991 Act should be universally applied, ie a child of any age who understands the issues may access legal remedies…
“The actual provisions of the Bill are unduly complex. They will be difficult for parents and children to understand. Consideration should be given to a simpler statement of the test of capacity.”
The evidence also covered two other areas of the Bill – complaints under section 70 of the Education (Scotland) Act 1980, and a small number of children with guardians who, because of “convoluted drafting”, do not benefit from early learning and child care provisions of the Children and Young People (Scotland) Act 2014.