DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS Country Report on England, Wales and Northern Ireland for the Study on Member States' Policies for Children with Disabilities STUDY Abstract This study looks at the situation of children with disabilities in England, Wales and Northern Ireland to identify the gaps in the legal frameworks and its implementation, the obstacles faced by children with disabilities and best practices. This country study is part of a larger study which analyses 18 Member States. Based on a comparative analysis of the country studies, the report ‘Study on Member States' Policies for Children with Disabilities’ provides some recommendations for EU action to enhance the situation of children with disabilities. PE 474.434 EN This document was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs. AUTHOR(S) Gavin McBride Under the supervision of Milieu Ltd. (Belgium); Project Managers: Marta Ballesteros and Nathalie Meurens, e-mail: [email protected] and [email protected]; Milieu Ltd, 15 rue Blanche, B-1050, Brussels, Tel: +32 2 514 3601; Fax +32 2 514 3603; web address: http://www.milieu.be/. RESPONSIBLE ADMINISTRATOR Erika Schulze Policy Department C - Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR To contact the Policy Department or to subscribe to its newsletter please write to: [email protected] European Parliament, manuscript completed in June 2013. © European Union, Brussels, 2013. This document is available on the Internet at: http://www.europarl.europa.eu/studies DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. 2 Country Report on England, Wales and Northern Ireland for the Study on Member States' policies for children with disabilities ____________________________________________________________________________________________ TABLE OF CONTENTS LIST OF ABBREVIATIONS 5 EXECUTIVE SUMMARY 6 INTRODUCTION 7 1. OVERVIEW OF THE SITUATION AND CHALLENGES FOR CHILDREN WITH DISABILITIES IN ENGLAND, WALES AND NORTHERN IRELAND 9 1.1. Introduction to the situation of children with disabilities in England, Wales and Northern Ireland 9 1.2. Review of issues and identification of possible regulatory gaps 12 2. OVERVIEW OF THE LEGAL FRAMEWORK IN ENGLAND, WALES AND NORTHERN IRELAND 14 2.1. General overview of the national legal and institutional framework 14 2.2. Children with disabilities specific legal and institutional framework 15 2.2.1. Legal framework 15 2.2.2. Institutions and authorities 16 2.2.3. Definitions 17 3. LEGAL FRAMEWORK AND IMPLEMENTATION ASSESSMENT 18 3.1. Implementation of the provisions of the CRPD and CRC 18 3.1.1. Best interests of the child (Art. 3 CRC; Art. 7 CRPD) 19 3.1.2. Non-discrimination (Art. 2 CRC; Arts. 3 and 5 CRPD) 21 3.1.3. Evolving capacities of the child (Art. 5 CRC and Art. 3 CRPD) 22 3.1.4. The right to be heard/to participate (Art. 12 CRC; Arts. 7 and 30 CRPD) 22 3.1.5. Freedom from violence (Art. 19 CRC; Art. 16 CRPD) 23 3.1.6. Right to family life (Art. 9 CRC; Art. 23(3) CRPD) 24 3.1.7. Right to assistance (Art. 23 CRC; Arts. 23(5), 26 and 28 CRPD) 25 3.1.8. The right to inclusive education (Art. 28 CRC; Art. 24 CRPD) 27 3.2. Specific issues faced by children with disabilities 28 3.2.1. Gender vulnerability 28 3.2.2. Violence 29 3.2.3. Children as vulnerable suspects 30 3.2.4. Inclusive education 31 3.2.5. Other particular issues faced by children with disabilities in England, Wales and Northern Ireland 32 3 Policy Department C: Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ 4. ASSESSMENT OF THE PRACTICAL IMPLEMENTATION OF THE RIGHTS AND LEGAL PRINCIPLES 33 4.1. Enforcement and reporting mechanisms 33 4.2. Gaps, problems and issues in the implementation 35 4.3. Best practices 35 4.4. Data and monitoring mechanisms 36 4.5. Recommendations given by the literature 37 5. CONCLUSIONS 41 REFERENCES 42 ANNEX 1 – SUMMARY TABLE 46 ANNEX 2 – STATISTICAL INFORMATION 57 ANNEX 3 - STUDY ON MEMBER STATES' POLICIES FOR CHILDREN WITH DISABILITIES - EXECUTIVE SUMMARY 58 ANNEX 4 - OVERVIEW OF RELATED STUDIES 69 4 Country Report on England, Wales and Northern Ireland for the Study on Member States' policies for children with disabilities ____________________________________________________________________________________________ LIST OF ABBREVIATIONS Art. Article Charter The Charter of Fundamental Rights of the European Union CDSA Children with Disabilities Strategic Alliance CJEU Court of Justice of the European Union CRC United Nations Convention on the Rights of the Child CRPD United Nations Convention on the Rights of Persons with Disabilities DDA Disability Discrimination Act ECM Every Child Matters, 2004 ECHR Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms EU The European Union E&W England and Wales JCHR Joint Committee on Human Rights LSCBs Local Safegarding Children’s Boards NI Northern Ireland s Section SEN Special Educational Needs SI Statutory Instrument TEU Treaty on the European Union TFEU Treaty on the Functioning of the European Union OFMDFM Office of First Minister and Deputy First Minister UK United Kingdom UN United Nations YJS Youth Justice System 5 Policy Department C: Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ EXECUTIVE SUMMARY The UK framework relating to children with disabilities consists of a complex array of overlapping sectoral and cross-sectoral law and policy including children’s’ rights and rights for persons with disabilities, as well as regulations on health and social care, education and criminal justice. The primary issue identified in this study is that neither the CRC nor CRPD have been incorporated into UK law. Therefore, none of the Conventions’ provisions or principles can be directly invoked before courts in the UK. However, despite this issue, most of the Conventions’ provisions have been implemented indirectly in the UK way by a variety of different pieces of sectoral and cross-sectoral legislation. For example, the ‘best interests’ principle has been implemented in part by specific provisions of UK legislation that requires, inter alia, the child’s welfare to be the court’s paramount consideration when determining any question with respect to his/her upbringing. The UK legislation also places a general responsibility on the Children’s Commissioners1 to promote awareness of the views and interests of children. The main gap in implementation relates to the right to inclusive education, since the UK has reserved the right for children with disabilities to be educated outside their local community in the event where more appropriate education provision is available elsewhere. This is arguably not compatible with the concept of inclusive education envisaged by the Convention.2 The sectoral and cross-sectoral nature of disability rights and children’s rights in the UK, coupled with differing legislative and administrative provisions for child protection throughout the UK’s three jurisdictions (Northern Ireland, England and Wales, and Scotland)3 has contributed to a complex system which, as many children’s rights commentators argue, lacks coordination and clarity, particularly as regards available disability-oriented information for families and carers of children with disabilities. However, recent policy and legislative developments have been made in both disability and children’s policy, e.g. the Family Justice Review and Board aims to improve the system in favour of children’s rights. The Children and Families Bill, due in early 2013, is also viewed as an opportunity to strengthen child-oriented institutions such as the Children’s Commissioner. Other areas for improvement include increasing opportunities for child participation, particularly as regards Special Educational Needs and children’s assessment process and lack of their legal rights to make an appeal to the Special Educational Needs and Disability Tribunal. Recommendations by UK stakeholders included the need for legislative changes to strengthen the role of the Children’s Commissioner to promote and protect children’s rights. It has also been recommended that national legislation should reflect specific reference to the requirement of monitoring the UK’s implementation of both Conventions. The UK government has also recently carried consultations on the introduction of a Bill of Rights, and children’s organisations see this as an opportunity to incorporate the CRC into UK law. 1 Each country in the UK has its own Children’s Commissioner, responsible for safeguarding and promoting the rights and welfare of children. 2 UK Parliament website, UN Convention on the Rights of Persons with Disabilities: Reservations and Interpretative Declaration - Human Rights Joint Committee, available at: http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/70/7006.htm. 3 Scotland does