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Submission to the Post Primary Review Body by the Children’s
Law Centre
Review of Post-Primary Education: A Children’s Rights
Audit
Introduction
This paper attempts to examine the extent to which the Burns
Review of Post-Primary Education meets the expectations and
obligations of international human rights standards. Before
looking at some of the proposals and conclusions of the Review
Body’s Report, however, it is important to set out clearly
what international human rights standards say about the rights
of all children to education and in education.
International Human Rights Standards relating to the Right
to Education
The United Nations Convention on the Rights of the Child
The most important instrument in this area is the United Nations
Convention on the Rights of the Child. In addition to provisions
on the child’s right to education, the Convention has
three guiding principles, which inform the implementation
of all of the Convention’s provisions in all areas of
the child’s life.
The United Nations Convention’s Guiding Principles
The three guiding principles are set out in Article 2 (non-discrimination);
Article 3 (best interests of the child) and Article 12 (the
child’s right to be heard).
Under Article 2, each Member State undertakes to ensure Convention
rights to every child without discrimination on any ground
including gender, social origin, property, disability, birth
or other status. All children are thus entitled to equal access
to education regardless of their social origin or status,
their geographical location, their membership of a linguistic,
ethnic or other minority, their detention or their disability.
Moreover, under Article 2 (2), States also undertake, to take
all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis
of their status, activities, or the expressed opinions or
beliefs of the child’s parents, guardians or family members.
Article 3 of the Convention sets out that in all actions
concerning children, the best interests of the child shall
be a primary consideration.
Article 12 provides that every child who is capable of forming
his or her own views shall be granted the right to express
those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with
the age and maturity of the child.
These three provisions form the backbone of the United Nations
Convention and commitment to upholding these principles in
every area of the child’s life is vital for the Convention’s
implementation. The Committee on the Rights of the Child,
which monitors implementation of the Convention, has reiterated
the relevance and importance of these principles in vindicating
the child’s right to education and has attached particular
importance to the right of the child to be heard and to play
an active part in decisions regarding his or her education.
It has stressed frequently that the Convention requires States
to provide every child with the right to a suitable and effective
education without discrimination on any ground. When it last
considered implementation of the United Nations Convention
in the UK, the Committee expressed concern about the insufficiency
of measures taken to ensure implementation of its general
principles, particularly children’s representation in
education law and policy. It has recommended that procedures
be introduced to ensure that children are provided with the
opportunity to express their views on the running of schools
in matters of concern to them, that the training curriculum
of teachers and of pupils should incorporate the United Nations
Convention and that teaching methods should be inspired by
and reflect the spirit and philosophy of the Convention in
light of its general provisions and the aims of education,
contained within Article 29.[1]
The Right to Education
Article 28 of the United Nations Convention on the Rights
of the Child sets out the right to education to which every
child is entitled. Fundamentally, Article 28 paragraph 1 provides
that every State party recognises the right of the child to
education. With a view to achieving this right progressively
and on the basis of equal opportunity, the State undertakes
to adopt a number of measures. Of particular relevance to
post-primary education in Northern Ireland are commitments
to
¨ Encourage the development of different forms of secondary
education, including general and vocational education, make
them available and accessible to every child and take appropriate
measures such as offering financial assistance in cases of
need (Article 28 (1)(b));
¨ make higher education accessible to all on the basis
of capacity (Article 28(1)(c) and
¨ make educational and vocational information and guidance
available and accessible to all children (Article 28(1)(d)).
The Aims of Education
Article 29 of the Convention sets out the aims which education
should fulfil and identifies as the primary aim of education
the holistic fulfilment of a child’s development to their
fullest potential. According to Article 29 paragraph 1, State
parties agree that the education of the child shall be directed
to:
(a) the development of the child’s personality, talents
and mental and physical abilities to their fullest potential;
(b) the development of respect for human rights and fundamental
freedoms, and for the principles enshrined in the Charter
of the United Nations;
(c) the development of respect for the child’s parents,
his or her own cultural identity, languages and values, for
the national values of the country in which the child is living,
the country from which he or she may originate and for civilisations
different from his or her own;
(d) the preparation of the child for responsible life in
a free society, in the spirit of understanding, peace, tolerance,
equality of sexes, and friendship among all peoples, ethnic,
national and religious groups and persons of indigenous origin;
(e) the development of respect for the natural environment.
According to the Committee on the Rights of the Child’s
General Comment on Article 29 of the Convention – a statement
of its meaning and objectives - education must be child-centred,
child-friendly and empowering.[2] The goal is to strengthen
the child’s capacity to enjoy the full range of human
rights, to promote a culture which is infused by appropriate
human rights values and to empower the child through developing
his or her skills, learning and other capacities, human dignity,
self-esteem and self-confidence. In this context, ‘education’
goes far beyond formal schooling to embrace the broad range
of life experiences and learning processes which enable children,
whether individually or collectively, to develop their personalities,
talents and abilities and to live a full and satisfying life
within society.
The Committee expressed it’s view that were a State
to deny a child access to educational opportunities, primarily,
this might present a failure to comply with the right to education
contained within Article 28 of the Convention. The Committee
also went further, in it’s secondary contention that
any failure to comply with the principle aims of education
under Article 29 could potentially have a similar effect in
denying a child’s right to education. For example, discriminatory
practices, including discrimination against children with
disabilities, are in direct contradiction of the requirements
in Article 29(1)(a) that education be directed to ‘the
development of the child’s personality, talents and mental
and physical abilities to their fullest potential’.
Article 29 of the Convention also attaches importance to
the process by which the right to education is to be promoted.
Thus efforts to promote the enjoyment of other rights must
not be undermined, and should be reinforced, by the values
imparted in the educational process. This includes not only
the content of the curriculum, but also the educational processes,
the pedagogical methods and the environment within which education
takes place, whether it be the home, school or elsewhere.
Children do not lose their human rights by virtue of their
passing through the school gates on entry to school. Education
must be provided in a way that respects the inherent dignity
of the child, enables the child to express his or her views
freely in accordance with Article 12 and to participate actively
and meaningfully in school life.
Consistent with the Convention’s emphasis on the importance
of acting in the best interests of the child, Article 29 emphasises
the message of child-centred education -the key is the development
of the individual’s child’s personality, talents
and abilities, in recognition of the fact that every child
has unique characteristics, interests, abilities and learning
needs. Accordingly, the curriculum must be of direct relevance
to the child’s social, cultural, environmental and economic
context and to his or her present and future needs, take full
account of the child’s evolving capacities and tailor
teaching methods to the needs of different children. Education
must also be aimed at ensuring that essential life skills
are imparted to every child and that no child leaves school
without being equipped to face the foreseeable challenges
that will confront him or her in life. Basic skills include
not only literacy and numeracy but also life skills, such
as the ability to make well-balanced decisions, to resolve
conflicts in a non-violent manner, to develop a healthy lifestyle,
good social relationships and responsibility, a critical way
of thinking, creative talents and other abilities which give
children the tools needed to pursue their life options.
Article 29(1) insists upon a holistic approach to education
which makes sure that the educational opportunities made available
reflect an appropriate balance between promoting the physical,
mental, spiritual, and emotional aspects, together with the
intellectual, social and practical dimensions on childhood
and lifelong learning. The overall objective is to maximise
the child’s ability and opportunity to participate fully
and responsibly in a free society.
According to the Committee, it should be emphasised that
the type of teaching that is focused primarily on accumulation
of knowledge, prompting competition and leading to an excessive
burden of work on children may seriously hamper the harmonious
development of the child to the fullest potential of his or
her abilities and talents. Thus, it is arguable that the current
selection procedure for post-primary education in Northern
Ireland may be detrimental to the child. The educational experience
should be child-friendly, inspiring and motivating for the
individual child. Schools should foster a human atmosphere
and allow children to develop according to their evolving
capacities.
Implementing these Principles: Informing Law & Policy,
Curriculum and Training
The Committee on the Rights of the Child is aware that the
United Nations Convention is comprised of general principles
with broad-ranging implications. In this regard, it has encouraged
States to include in their educational policies and legislation
a clear commitment to using the Convention’s principles
on the right to education to inform educational policies.
According to the Committee, the effective promotion of Article
29 paragraph 1 requires the fundamental reworking of curricula
to include the various aims of education and the systematic
revision of textbooks, other teaching materials and information
technology, as well as school policy and teaching practice.
Approaches which do no more than seek to superimpose the
relevant aims and values on the existing system without encouraging
any deeper changes are clearly inadequate. The relevant values
cannot be effectively integrated into the existing system
and thus be rendered consistent with a broader curriculum
unless those who are expected to transmit, promote, teach
and as far as possible exemplify the values themselves, have
first been convinced of their importance.
Pre-service and in-service training schemes, which promote
the principles reflected in Article 29(1), are thus essential
for teachers, educational administrators, and others involved
in child education. It is also important that teaching methods
used in schools reflect the spirit and educational philosophy
of the Convention and the aims of education set out in Article
29 (1).
National Plan of Action
Finally, the Committee recommends the development of a comprehensive
national plan of action to promote and monitor realisation
of the objectives listed in Article 29(1). It also recommends
that States should consider establishing a national internal
review procedure, which may respond to any complaints that
existing policies and practices are inconsistent with Article
29 (1).
Right to play and participation in cultural and other
activities
Article 31 recognises the right of the child to rest and leisure,
to engage in age-appropriate play and recreational activities
and to participate freely in cultural life and the arts. Moreover,
in Article 31 (2) States undertake to respect and promote
the right of the child to participate fully in cultural and
artistic life and shall encourage the provision of appropriate
and equal opportunities for cultural, artistic, recreational
and leisure activity.
In addition, Article 17 recognises the right of the child
to access information and material from a diversity of national
and international sources, especially those aimed at the promotion
of his or her social, spiritual and moral well being and physical
and mental health. To this end, States parties undertake to
encourage the media to disseminate information and material
of social and cultural benefit to the child; encourage co-operation
in the production and dissemination of material from a diversity
of cultural, national and international sources and encourage
the production and dissemination of children’s books.
Schools appear to be one obvious forum in which this dissemination
should take place. Also, the introduction of Citizenship Education
to the Northern Ireland curriculum shall be a catalyst for
developing children’s understanding and tolerance of
cultural diversity both in Northern Ireland and on a global
scale, the principles of democracy and international human
rights standards.
Children with Disability
Article 23 identifies the rights of children with disabilities
and in particular, recognises that a mentally or physically
disabled child should enjoy a full and decent life, in conditions,
which ensure dignity, promote self-reliance and facilitate
the child’s active participation in the community. Among
other rights, Article 23 (3) recognises that any assistance
extended to children with disabilities shall be designed to
ensure that the disabled child has effective access to and
receives education, training, rehabilitation services, preparation
for employment and recreation opportunities in a manner conducive
to the child’s achieving the fullest possible social
integration and individual development, including his or her
cultural and spiritual development.
The Role of Parents and Guardians
Article 5 recognises the responsibilities, rights and duties
of parents to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance
in the exercise by the child of his or her Convention rights.
Other Human Rights Provisions
UNESCO Convention against Discrimination in Education (CDE):
Article 1(1) categorises as discrimination any distinction,
exclusion, limitation or preference which, being based on
race, colour, sex, language, religion, political or other
opinion, national or social origin, economic condition or
birth, has the purpose or effect of nullifying or impairing
equality of treatment in education and in particular depriving
any person or group of persons of access to education of any
type or at any level or limiting any person or group of persons
to education of an inferior standard.
Thus, it is arguable that the current selection procedure
for post-primary education in Northern Ireland is a discriminatory
process, within the terms of Article 1 (1) of the UNESCO Convention.
For example, children may be discriminated against on the
basis of their economic condition or birth, where they come
from disadvantaged backgrounds, their parents have underachieved
in education and do not have the academic ability nor financial
resources to pay for private tuition to support and prepare
their children for the transfer procedure examinations. Other
children from the Traveller community, the Chinese community,
the Indian community and other indigenous minority groups
in Northern Ireland, may be discriminated against on the basis
of their language and national or social origin.
Under the Convention, ‘education’ refers to all
types and levels of education, and includes access to education,
the standard and quality of education, and the conditions
under which it is given. Under Article 4, States undertake
to formulate a policy which promotes equality of opportunity
and treatment in the matter of education and in particular,
to ensure that the standards of education are equivalent in
all public education institutions of the same level, and that
the conditions relating to the quality of education provided
in every institution are also equivalent.
International Covenant on Economic, Social and Cultural Rights
(CESCR): Article 13 ICESCR sets out the right to education
in similar terms to the United Nations Convention on the Rights
of the Child. In particular, Article 13 (2)(b) provides that
secondary education in its different forms, including technical
and vocational secondary education, shall be made generally
available and accessible to all by every appropriate means.
The General Comment on Article 13 by the Committee on Economic,
Social and Cultural Rights explains that secondary education
includes the elements of availability, accessibility, acceptability
and adaptability which are common to education in all its
forms and at all levels.[3] According to the Committee, Article
13 (2)(b) applies to secondary education ‘in its different
forms’, thereby recognising that secondary education
demands flexible curricula and varied delivery systems to
respond to the needs of students in different social and cultural
settings. The Burns proposals in respect of Collegiate groupings
of schools may enhance the possibility of enabling certain
post primary schools to become specialist centres in the areas
of vocational and general education, thereby widening the
educational options currently available to children in Northern
Ireland and allowing children to develop all of their talents
and skills.
Article 2 First Protocol to the ECHR/Human Rights Act 1998:
Article 2 of the First Protocol to the ECHR provides that
no one shall be denied the right to education. This has been
interpreted to mean that every child is entitled to access
effective education. Moreover, taken together with Article
14 ECHR - the non-discrimination principle - the right to
access available educational facilities must be secured to
all children without discrimination.
The Review of Post-Primary Education
Overview
It is widely accepted that the current arrangements for post-primary
education, including the transfer process in its current form,
do not provide adequate protection for the rights of children
as set out above. The review of post-primary education undertaken
by the review body thus provides an important opportunity
to make proposals to remedy the current system in this regard.
Although the Review Body purports to have considered human
rights standards as part of its work, it is apparent that
the proposals made are not informed by international human
rights standards in any serious or coherent way. Moreover,
there lacks an acknowledgement of education as a children’s
rights issue and an understanding that the failure to provide
for the education of every child raises serious human rights
concerns.
While further detail as to the inadequacies of the review
and its proposals from a children’s rights perspective
are highlighted below, a further general point needs to be
raised in respect of the Review Body’s lack of detail
as to how its proposals are to be implemented. While this
is a cause of concern in itself, it also makes it even more
important that the changes envisaged to Northern Ireland’s
post-primary education system take place against the backdrop
of a clear commitment to international human rights and equality
principles. There is a clear need, therefore, to establish
a platform of human rights and equality standards, which will
underpin all the strategic and detailed planning necessary
to bring about the changes envisaged by the Review Body, should
they be adopted. In particular, and to ensure compatibility
with the UK’s treaty obligations, it is submitted that
the United Nations Convention on the Rights of the Child and
other international standards should be at the heart of and
provide the framework for any measures adopted as part of
a review of the post-primary education system. Moreover, and
further to the recommendations of the Committee on the Rights
of the Child, the United Nations Convention – more particularly,
its principles in Articles 2, 3 12 and 29 - should be used
as the basis for new legislation and policy to be developed
as a result of the review and specifically cited in same.
Explicit references to the United Nations Convention’s
principles and provisions should be made throughout the review
process.
Specific Causes of Concern
In addition to the general need to adopt greater commitment
to international children’s rights standards, the following
issues have been identified as causes of concern from a children’s
rights perspective.
Guiding Principles
At Chapter 5 of the Report, the Review Body sets out its Vision
and the Guiding Principles that it believes should underpin
the education system of Northern Ireland in the 21st Century.
While many of these principles (para 5.7) are positive in
nature – in particular, the importance of access to holistic,
needs oriented education is acknowledged throughout - there
is an absence of a rights based approach to the issue of education,
which is out of step with international norms. Thus, protection
and promotion of the rights of the child is seen by the Review
Body as a consequence of a system of post-primary education,
which provides schools with the responsibility, freedom and
resources to tailor provision to meet individual needs. Respect
for the rights of the child is not seen as an end or a legitimate
objective in itself. (para 6.19) Thus, the report identifies
that each young person should be valued equally and should
be accorded the same respect, but it does not identify this
as the right of every child. The human rights and equality
principles enshrined in the United Nations Convention on the
Rights of the Child and the other international instruments
previously referred to in this paper should provide a platform
for children’s rights standards and should be embraced
by the Review Body in developing new policy and law relating
to post primary education. The standards that have been set
under these international treaties provide a starting point
and bedrock for the Review Body to work from, in order to
ensure that children’s rights in and to education are
protected in the future.
Similarly, the report states that ‘all young people
should be enabled to develop their talents to the full’
whereas the United Nations Convention on the Rights of the
Child identifies this as a right of every child with the stronger
wording placing clear obligations on the state to vindicate
this right.
The list of General Principles in the Burns Report also fails
to identify the rights of individual children and certain
groups of children who currently do not enjoy equal access
– children with disabilities, Traveller children, children
from linguistic and other minorities. Thus, while there is
mention of the importance of an inclusive education system,
this reference is made in the explicit context of cultural
diversity. Moreover, the section refers to the fact that education
should have regard to the changing needs of society and refers
to the conflict, no mention is made of the importance of human
rights education and human rights in education in this context.
Fundamentally, in relation to the latter, the General Principles
make no reference to the rights of children in the education
system – in addition to their right to enjoy equal access
to effective education, every child also has the right to
receive a child-centred education and to have his or her rights,
particularly the right to be heard and to have their best
interests respected while in education.
Selection Criteria
It is widely recognised that ensuring equality of access to
education is central to the success of an education system
and to vindicating the rights of individual children to an
effective and appropriate education. The 5 criteria proposed
in the Burns Report are as follows:
(1) Parental preference
(2) Siblings/eldest child
(3) Children of staff
(4) Compelling individual circumstances
(5) Proximity to school
Parental Preference
It is evident throughout the Review Body’s report that
although it is their belief that child-centred education is
a priority, meeting the aspirations and expectations of parents
is equally important. Thus, in Chapter 9 on the Administrative
Arrangements for Transfer, the Report states that ‘the
objective of the new transfer system must be to place the
needs of the learner and the aspirations of parents at the
centre of the transfer arrangements’ (para 9.15).
While the report goes on to provide more detail on the former,
but not the latter, it is clear that parental preferences,
albeit informed by the proposed Pupil Profile and most often,
the parent’s perception of what is in their child’s
interests, will determine where their child will continue
his or her education. There is no proposal for any requirement,
(statutory or otherwise), upon parents, to take cognizance
of the Pupil Profile prepared for their child. The Pupil Profile
is designed to be an instrument for guidance only and whether
parents accept a teacher’s assessment of their child’s
individual needs would appear to be a matter of parental discretion.
There are other inherent risks that have been identified
in respect of the proposed preparation of Pupil Profiles by
the teaching profession. The concept is introduced under the
context that Pupil Profiles should only be made available
to post primary schools after a decision has been made regarding
the child’s transfer. Unfortunately, there is a risk
that this process may be abused by some parents who may find
themselves in a position of influence and are desperate to
enhance their child’s chances of securing a placement
in the school of their preference. Additional concerns exist
in relation to the pressure that teachers may experience from
parents who are dissatisfied with the content of a Pupil Profile
document. Finally, it is recommended that Pupil Profiles be
piloted broadly prior to introduction so that specific concerns
may be monitored and evaluated in practice.
The Report refers to providing for ‘fairness in the
determination of parental preferences in circumstances where
schools are oversubscribed’ (para 9.19). The Children’s
Law Centre, drawing on international human rights standards
believe what should be provided for is fairness and proportionality
in the necessary balancing of the needs of individual children
and the right of every child to an effective education on
the one hand, and the available school places/resources on
the other. Alternatively, a more sophisticated model for ensuring
that the best interests of all children are met, insofar as
that is possible, should be identified.
The Review Body recommends that parental preference be accorded
statutory priority for admissions purposes (para 9.24).
With regard to this proposal by the Review Body, the Children’s
Law Centre submits, that parents should not have absolute
authority in the matter. The reason for this submission is
concern that notwithstanding the best intention of parents,
the parent’s preference may not always reflect the best
interests of the child and/or the child’s preference
(taking cognizance of the child’s age and maturity).
Three alternative approaches are proposed, as follows:
The statutory priority should accord equal priority to the
views of parents and their children. This is proposed in accordance
with the principle enshrined under Article 12 of the United
Nations Convention on the Rights of the Child that children
shall be assured of the right to express their opinion freely
and to have their views considered in accordance with their
age and maturity, in all matters concerning them.
That statutory priority should be given only to a parent’s
informed preference, incorporating a requirement to consult
with teachers and children themselves and to have the rights
of the child and the best interests of the child determine
their choice, insofar as that is possible.
In some circumstances, where no agreement on school preference
can be reached, it may be necessary for an independent analysis
of a child’s needs to be obtained before any decision
may be made in accordance with the rights of the child and
the child’s best interests.
The fact that the Review Body later refers to this as ‘Parental
(and pupil) preference’ (at para 9.30) and in its summary
refers to ‘informed parental preference’ (at para
9.35) supports this recommendation.
While the importance attached to parental preference is in
line with Article 2 of the First Protocol to the European
Convention, which requires the state to respect parental convictions
in the education of their children, in order to comply with
the Convention on the Rights of the Child and other children’s
rights standards, it is submitted that the rights of the child
and the ‘best interests of the child’ are more widely
accepted child-centred and appropriate criteria by which to
determine the most appropriate school for each child.
Current practice reflects that it is parents who formally
exercise the discretion to choose which school it is in their
child’s interests to attend. Very often, one would assume,
that the matter is discussed at length between the parents
and child in the home, before any decision is reached. However,
in line with the principle of the child’s evolving capacity
and to ensure that the best advice is sought in determining
what a child’s rights are and what is in a child’s
best interests, exercise of this discretion by parents should
be something which parents, children, teachers and in many
cases other parties who have a role in children’s education
should be compelled to decide together. (This may be particularly
relevant in relation to children with Special Educational
Needs). The child’s best interests are a paramount consideration
for the education sector, all public authorities and Government
Departments. Accordingly, any statutory instrument or guidance
underpinning this discretion should certainly reflect these
standards.
It is very likely that some of the more popular schools shall
remain oversubscribed following the exercise of parental preference.
It is in these circumstances, that the other criteria proposed
in the Review Body’s Report are to be applied. The Children’s
Law Centre has a number of concerns in respect of the other
criteria proposed, from a children’s rights perspective:
Siblings/Eldest Child
There are specific concerns presented by these criteria in
relation to equality of access to the school of choice. For
example, some children may be discriminated against in situations
where:
Their elder sibling(s) did not attend the school of their
preference
Their elder sibling(s) had very different individual educational
needs
Their elder sibling(s) attended a single sex school and were
of the opposite sex – In this scenario, should priority
be given to the eldest boy and also the eldest girl in a family
unit?
The child is coming from a socially and economically deprived
background, his or her parents have low educational achievement
and they are the first child in the family to have attained
educational achievement and shown an aptitude for learning.
If this criterion is to be adopted as one of the Department’s
proposed statutory admission criteria, it is likely that we
shall see future legal challenges grounded on the basis of
the Department’s failure to afford protection in respect
of a child’s right of equal access to an effective education,
as provided under Article 2, Protocol 1, (ECHR), in conjunction
with the non-discrimination clause under Article 14 (ECHR).
Children of Staff
With regard to this criterion, it is questionable whether
a process which affords preference to children whose parents
work at the school can guarantee that each child gains a place
at the school most appropriate to meet his or her educational
needs.
While it is apparent that it may be inconvenient to have
parents working at one school and/or different children attending
different schools, if the choice of a different school satisfies
the child’s rights and is deemed to be in the child’s
best interests, then it is difficult to see what meaningful
purpose can be served by the application of this criterion,
which may in any event be inconsistent with the obligation
to provide every child with equality of opportunity in access
to education. Many other parents have to overcome difficulties
in the logistics of ensuring that their children have a safe
passage to and from (different) school(s) each day. It is
unfair for school staff to be treated differently from other
parents and therefore represents a discriminatory practice
in schools.
Such criterion clearly discriminates against any child whose
parents do not work within the environment of the school of
their preference. Moreover, this criterion also raises wider
socio-economic issues where a child is discriminated against
in their access to a school on the basis that their parents
are out of work or more particularly, unable to secure employment
in that school. There are many reasons why a child’s
parents may be unable to secure employment, for example, due
to long term disability or illness, commitments as a lone
parent or carer and/or the financial burden of paying for
childcare, which may not make it worthwhile to return to low-income
employment, taking into account the loss of benefits, free
prescriptions, dental care etc for the whole family.
Finally, taking account of current practices in respect of
the employment of teaching staff in segregated schooling in
Northern Ireland, there may be situations where children are
indirectly discriminated against in their access to a school
on religious grounds, on the basis that their parents are
restricted in their access to work in a particular school
because of their religion.
Compelling Individual Circumstances
This criterion is not currently an issue in Secondary school,
however Grammar schools have long been required to consider
special circumstances for admission.
The use of a ‘compelling individual circumstances’
category is sensible only if statutory safeguards are put
in place to prevent its exploitation by those with capacity
to manipulate the system. It would appear from the business
of the Admissions Appeal Tribunals that it is the more influential,
educated and affluent parents who exercise their right of
appeal against the refusal by a school to admit their child.
This inequality is perpetuated by the fact that there is no
legal aid available for representation at tribunal hearings.
If the Review Body proposes to adopt criteria based on a child’s
‘compelling individual circumstances’, it must aim
to redress the imbalance noted in the current system. One
option is to ensure that an independent body, rather than
the school or collegiate, would be empowered to consider such
cases.
Proximity to School
The criterion of proximity to school is already widely used
in admissions to primary and Grammar school sectors in Northern
Ireland. However, concerns have been raised in relation to
distance criteria, particularly in respect of the right of
access to a school of preference for children living in rural
areas. The distance between a child’s residence and school
should not in our opinion be a deciding factor in respect
of the suitability of a school to meet his or her educational
needs. It is recommended that if some of these criteria are
to be introduced by the Department of Education, that a child’s
‘compelling individual circumstances’ must always
be the priority criteria, as is currently proposed by the
Review Body.
There are also wider concerns that this criterion shall simply
replace one form of social segregation in education, namely
selection via the transfer procedure, with another form of
segregation based on the child’s postcode area. Northern
Ireland is a society where there are marked levels of social
differentiation in urban areas and if parents and children
are prompted by this admission criterion simply to choose
the school located nearest to the family home, not only shall
the child’s right to choose a school which may provide
a more appropriate education be jeopardized, but the wider
implications may be that the socio economic boundaries in
our society will not be addressed through the system proposed.
It is clearly of fundamental importance that the development
and application of criteria for entry to schools be informed
explicitly by children’s rights standards, particularly
the right to an effective and appropriate education, and the
guiding principles of non-discrimination, best interests of
the child and the child’s right to be heard. In this
regard, the Review Body has recommended (para 9.31) that the
Department of Education establish a new statutory framework
governing the type of criteria, which should be given priority
by Boards of Governors in the drafting, and application of
admissions criteria for all schools in the light of its proposals.
In this regard, it is submitted that such a statutory framework
should have as its basis the children’s rights standards
outlined above.
In recognition of the social and religious segregation of
our communities in Northern Ireland and of the geographical
boundaries that are crossed within the proposed collegiate
groupings as detailed in the Review Body’s Report, the
Department of Education must ensure the safe passage of all
pupils in traveling to and from school. This may have large
scale implications in relation to the cost of school transport
for the Department of Education, particularly where children
require private transport arrangements to avoid having to
walk or travel, (on public bus routes), through neighbouring
communities, areas of civil unrest and/or ‘flashpoint
areas’.
Children with Disabilities
The Review Body envisages that special schools would not be
constituent members of the Collegiates due to their ‘distinctive
provision and cross-sectoral and all-age responsibilities’
(para 10.9). Given that other schools that are cross-sectoral
and all-age are included in the collegiate, it would appear
that the actual basis for the exclusion of such schools is
their ‘distinctive provision’, namely that they
educate children with disabilities. It is arguable that this
proposal is discriminatory and runs contrary to the States
obligation to protect the child’s right to education
under Article 2, Protocol 1, in conjunction with the non-discrimination
clause under Article 14 (ECHR), on the grounds of a child’s
special educational needs or disability. In addition, it is
clearly contrary to best educational practice[4] as well as
the letter and spirit of international human rights standards,
both of which advocate inclusive education as being in the
best interests of all children.
Article 23 (3) of the United Nations Convention on the Rights
of the Child recognises that disabled children’s special
needs and right to education shall be designed to ensure that
the child has effective access to and receives education in
a manner conducive to the child’s achieving the fullest
possible social integration and individual development. It
is of concern therefore that the Review Body envisages that
the expertise of the special schools will be contributed to
‘one or more of the Collegiate learning support services’
(thereby enabling ‘mainstreamed provision for the majority
of those with special educational needs’) but that the
expertise will flow one way only.
There is no explanation or basis provided anywhere in the
Report for the conclusion that special schools are to be excluded
from the Collegiate system despite the fact that the proposals
will require all other schools to integrate, co-operate and
co-ordinate, alienating and isolating special schools –
including pupils, their parents and teachers - further from
the mainstream education system and the community in general.
While it is arguable that the terms of reference of the Post-Primary
Review did not include children with special educational needs
who are outside the transfer system, it is certain that any
proposal for radical change, which is designed to ensure that
all children in Northern Ireland fulfil their potential, but
which excludes children with disabilities, is both discriminatory,
exclusionary and contrary to both national and international
equality and human rights standards and could leave the Department
of Education open to future legal challenge. It also stands
opposed to all efforts outlined in the Report to celebrate
diversity, promote tolerance among cultures and fulfil the
true potential of each individual child.
Representation of Children in the Collegiate Structure (Chapter
10, Paragraphs 10.23-10.32)
It is acknowledged that the introduction of a collegiate
system may present a great deal of flexibility and renewed
opportunity for many children within the post-primary sector.
It has been suggested that certain schools within a collegiate
may become specialist centres for vocational and general education
and that there shall be greater flexibility for pupils to
change schools, as necessary, within the collegiate. Furthermore,
in Year 12 it may become possible for children to experience
taster courses in additional curricular options either by
attending at another school within the collegiate or through
the extended use of computers for distance learning. It has
also been suggested that each collegiate may work through
the Collegiate Liaison Council to formulate joint approaches
in areas such as pupil support, post 16 education, to forge
stronger links with further education and higher education
colleges and to provide more effective careers advice and
training. It is clear from these goals, that the success of
the collegiate model shall be dependent on the willingness
of all member schools to work co-operatively and to share
collective resources. The aim of the collegiate should be
to ensure that all schools within the collegiate are afforded
equal status, that they are provided equal access to all facilities
and services and are supported by the collegiate body in providing
an effective education, which is commensurate with their pupils
individual educational needs.
Given the important role played by collegiates in fulfilling
the right of every child to an effective and appropriate education,
it is submitted that children be represented, directly or
indirectly, throughout the collegiate structure. In order
to ensure consistency with international standards, it is
vital that the voices of children are heard throughout the
collegiate structure and that an advocate is present at every
level of the structure to ensure that all decisions taken
and measures adopted serve to further the fulfillment of the
rights and best interests of children in and to education.
The most appropriate place for such representation would appear
to be the Collegiate Standing Conference given that this is
the strategic planning authority within the collegiate structure,
but there should be no obstacle to ensuring the representation
of children throughout all levels of the structure. It is
also in keeping with the recommendations of the United Nations
Committee on the Rights of the Child that each school within
the collegiate should adopt its own measures to promote active
and meaningful participation of children within decisions
governing the running of the school. This type of participation
could be assured through the continuing development of student
councils and appointment of student representatives within
schools.
It is not clear from the Review Body’s Report how the
formation of a collegiate system will affect the existing
procedures for appeal in relation to decisions regarding school
admissions and expulsions from school. The Children’s
Law Centre has concerns regarding the possible transferal
of functions from the Education and Library Boards to the
proposed collegiate management structures. It is fundamental,
in the interests of natural justice that any future appeal
hearings continue to be heard by a body that is independent
and autonomous from the school or collegiate which makes such
decisions regarding a child’s education. Finally, the
Children’s Law Centre also has concerns regarding the
implications of a child’s access to an alternative suitable
school placement following a suspension or expulsion from
a school within a collegiate. Would the impact of such disciplinary
action prejudice or effectively exclude a pupil in seeking
admission to any school within that collegiate, and if so,
due to the proximity admission criteria proposed, would that
child have difficulty in securing a placement within another
collegiate? These are issues that we would ask the Department
of Education to re-examine as the potential for disaffection
of pupils from education may be exacerbated by the structures
proposed, effectively denying children a right to education.
Right to further and vocational education
The Children’s Law Centre supports calls for greater
co-operation and collaboration between mainstream schools
and colleges providing further and vocational education and
in particular recommends that the basis of this relationship
and its development should be guided by what is in the best
interests of pupils in pursuing appropriate and effective
further education. Reference should also be made in the formal
arrangements of this relationship to the rights of young people
under Article 28 of the Convention on the Rights of the Child
to make general and vocational education available and accessible
to every child. Efforts to enhance existing collaboration
should be intensified in this regard and the Review Body’s
recommendation (para 11.28) that DE and DEL develop a strategic
plan to put in place funding arrangements for post-16 education
and training is strongly supported.
States are obliged under Article 28(1)(d) of the Convention
on the Rights of the Child to make educational and vocational
information and guidance available and accessible to all young
people. The recommendation of the Review Body that the current
system of careers guidance should be enhanced (para 11.45)
is strongly supported.
Article 28(1)(e) of the Convention requires states to take
measures to ensure regular attendance at schools and the reduction
of dropout rates. Accordingly, the focus on education for
older pupils, particularly pupils over 16, is welcome here
and it is submitted that the need to diversify and broaden
the curriculum so as to retain the attention and meet the
educational needs of all young people be stressed further.
The Review Body recommends that when drawing up standards,
principles and criteria for endorsement by the Collegiate
Standing Conference, collegiates should take advice from appropriate
professional sources about post 16 curriculum and qualifications
and should have regard to the quality standards and findings
of the Education and Training Inspectorate (para 12.27). It
is recommended that in addition to these measures, specific
regard should be had to the obligations imposed by the principles
and provisions of the Convention on the Rights of the Child.
Conclusion
It is clear that considerable political will, resources and
the determination of teachers and all staff in the education
sector will be required to meet the demands and challenges
of implementing the Review Body’s recommendations and
ensuring that the right of every child to an appropriate and
effective education is met, in accordance with domestic and
international human rights obligations. Many of the Review
Body’s recommendations already reflect international
standards, albeit implicitly. More can be done, however, to
ensure that the reform of the post-primary system takes place
with a children’s rights perspective and that the implementation
of any of the Review Body’s recommendations should be
carried out explicitly within a children’s rights framework
Fortunately, that framework already exists in the form of
the United Nations Convention on the Rights of the Child and
the other international human rights standards referred to
earlier in this document. Accordingly, every effort should
be made to ensure that this opportunity is seized to incorporate
international human rights standards further into Northern
Ireland law, policy and practice and to make Northern Ireland’s
education system a model of good practice in this regard.
--------------------------------------------------------------------------------
[1] UN Doc CRC/C/15/Add.34 Concluding Observations of the
Committee on the Rights of the Child: UK of Great Britain
and Northern Ireland, 15th February 1995.
[2] CRC General Comment 1 Article 29(1) The Aims of Education:
08/02/01.
[3] UN Doc E/C.12/1999/10, CESCR General Comment 13, 8 December
1999.
[4] See Horgan, ‘Promoting education for all our children?’
Scope (February 2002) p 21.
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