Sam is eight years old. He has autism and other special educational needs and was permanently excluded from his school last year. His family believed the exclusion resulted from his disability. They wanted to challenge it, but the school took an inordinately long time to arrange a hearing, well over the 15 school days allowed. In the meantime, Sam watched his friends and brother continue to attend school whilst he stayed home. We don’t yet know the full impact this has had on Sam - psychologically and on his life chances - but it’s not looking good.
Vulnerable children like Sam have been the worst affected by UK government policies made in response to the coronavirus pandemic. Many of these policy decisions have been made without a Child Rights Impact Assessment despite a Government commitment to take the UN Convention on the Rights of the Child (UNCRC) into account when making policy decisions during the pandemic.
Today marks International Children’s Day, which celebrates the adoption of the UNCRC. Its vision is to set out the basic things that children under 17 years old need to thrive: the right to an adequate standard of living, to be protected from all forms of violence, an education, to play, be healthy, and be cared for. Children’s rights should act as a safety net, meaning children always receive at least this minimum standard of treatment whatever the changing economic or political climate.
Sam’s story: school exclusions
Sam’s story shows that even before the pandemic, there were serious delays in the time that schools and appeal panels could take to hear a challenge to a school exclusion. This meant that children whose exclusions were not lawful could unfairly miss significantly more education. Matters became worse when, in June 2020, in response to the pandemic, the government introduced regulations that extended this time even further.
After approximately three weeks of Sam being out of school, his parents took the decision to get legal advice from Just for Kids Law. After we got involved, the exclusion was swiftly rescinded — Sam was allowed to return. However, he had been out of school for so long that he became anxious and felt unwelcome once he was allowed to return. In the end, it proved too difficult for Sam to reintegrate into his old school and he needed to move to another school entirely.
Gypsy and Roma Traveller children and Black Caribbean children are already excluded at between double to four times the national rate, while children with special educational needs and disabilities (SEND) are excluded by as much at six times the national rate. We know from our direct work that Black children with SEND are frequently excluded, and those with SEND will have a harder time finding a new school afterwards. Any changes to the exclusions process, therefore, will disproportionately affect these children.
It was clear these time limit extensions would cause harm that could not be justified, especially because hearings could already happen remotely. We therefore issued a pre-action letter – the first step towards bringing a case against the government in order to challenge the lawfulness of the regulations.
It didn’t get to court as the Department for Education agreed to work with us to achieve substantial changes to the regulations and guidance. The changes ensure that if families want a video hearing, rather than a face-to-face one, then the school should not refuse them one. If the family does not have the technology to take part in a video hearing, then the school must take steps to facilitate their access to it.
The changes also mean that the time limit extensions should no longer kick in over the family’s objections. New regulations, brought in from 25 September 2020 for six months, have dropped the 10-day extensions to hearing deadlines. Instead, panels can only delay for the shortest time possible to hold a hearing.
With widespread concerns about a spike in school exclusions as children return to school after six months off, we will be closely monitoring how these changes are put into practice by schools.
Custody time limits
To help address delays in the criminal justice system caused by the pandemic, the Government also introduced new regulations which extend the custody time limits in the Crown Court by two months. The regulations, which came into force in September 2020, mean that a child can now spend almost eight months in custody before they have even had a trial.
We knew that these changes would disproportionality impact the BAME population, and particularly BAME children. The Government’s own Equality Impact Assessment concluded the same thing. Despite only making up 18% of the total population of children, Government statistics show that over half of children held in custody (52%) are from a BAME background (the majority being Black) and 57% of children on remand are from a BAME background.
BAME children are also more likely to be remanded to custody and then acquitted. Contrary to popular belief, children in prison are some of the most vulnerable in our society - nearly half of children entering young offender institutions were previously in care, many children are subject to child protection plans prior to entering custody, one in five are disabled and mental health issues are wide-spread. Additionally, numerous reports have also shown that child prisons are unsafe.
We wrote jointly to the Ministry of Justice with The Howard League for Penal Reform and Liberty to raise our concerns about the disproportionate impact of the extension of custody time limits on those remanded pending trial, particularly on children from BAME backgrounds. In our view, the regulations were unlawful and we demanded that they be withdrawn. The government refused. They relied on an overused argument around the “unprecedented challenges” that the pandemic has brought to the justice system.
So again we issued a pre-action letter. We now wait for a further response from the Government. Given the severity of the impact on vulnerable children, we hope they will do the right thing and amend the regulations so that they do not apply to children.
As we celebrate the adoption of the UNCRC, it’s crucial to remember that Article 2 of the Convention makes it clear that its protections apply to all children, without discrimination of any kind. During these extremely testing times, it’s even more important that we continue to hold the Government to account when its policies and regulations have a disproportionate impact on the rights of particular groups of children.
Despite the unprecedented challenges that have arisen during the pandemic, we cannot allow our Government to implement rules or legislation that don’t respect the rights of all children, especially those, like Sam, who cannot speak up for themselves.
This story is part of our series The Unlawful State: Stories from a Pandemic where we lift up the voices of those whose lives are being disproportionately affected by the coronavirus crisis.