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Advice for professionals in Scotland

Understanding children and young peoples’ rights

By law, every child has the right to be provided with a school education. Children and young people also have the right to receive “adequate and efficient” support if they have been identified as having additional support needs. 

This means that every child has the right to attend school and receive support that meets their individual needs and helps them to reach their full potential. All children have the right to have their views listened to and be involved in decisions about their support.

By law some children have other specific rights. You can find out more about these below.

As of 10th January 2018 the rights of children aged 12 - 15 have been extended to give them many of the same rights as their parents and carers and children over 16 under the Additional support for Learning Act. This has been done so that children's views are listened to and they are properly involved in decisions about their education and support. It is hoped that these rights will be of particular use to children whose parents may not be able to act for them (for example young carers or looked after children).

Children aged 12 -15's have the right to:

- ask the local authority to find out if they have additional support needs
- ask the local authority to find out if they need a co-ordinated support plan (CSP) or review an existing CSP
- have their views noted in their CSP
- ask the local authority for a specific type of assessment to find out if they have additional support needs and what support they need
- ask the local authority for a specific type of assessment if the local authority are thinking about preparing a CSP or reviewing an existing CSP
- information and advice about their additional support needs
- a copy of their CSP
- ask for independent adjudication
- appeal to the Additional Support Needs Tribunal about CSPs, the failure of their school to plan for the time after they leave school, or decisions regarding their use of their rights
- be asked for their views during any independent mediation that takes place
- have a supporter or advocate with them to get their views across at any relevant meetings about their additional support needs
- use the My Rights My Say children's support service to help them make use of their rights.
- be asked if they are happy for their information to be shared with relevant agencies when they leave school

If a child is aged between 12 and 15 and wants to use their rights the school or local authority must first check whether the child has the capacity to do so. They must also decide whether by using their rights the child's well-being would be negatively affected.

In most cases professionals and parents will be working together to identify a child's needs and agree what support is required A child may not need to go through a formal process of asking to use their rights but this option is available.

If a child aged 12 - 15 is thinking about using their rights it can be helpful for them to discuss with their families whether they should use their rights or whether the parents or carers should use their rights. It is not expected that parents and children will use their rights at the same time or to overturn a request to a school or local authority has already considered.

To get in touch with the children's service My Rights, My Say please visit www.myrightsmysay.scot.

You can find more information about children's rights, how they can use them, how capacity and impact on well-being is assessed in our factsheet Rights of children aged 12-15.

When a child turns 16, and if they have capacity, it is assumed they will be able to act on their own behalf. This means they have the same rights as their parents. Even after a child turns 16, most parents remain involved in their children’s education, attending planning meetings and receiving copies of any letters or plans. However in some cases (such as when a child is over 16 and excluded from school) communication from the school may be directly with the pupil.

If a child is over 16 and has been assessed as lacking capacity parents or carers continue to make decisions on their behalf. Refer to the Adults with Incapacity (Scotland) Act 2000 for more information.

Looked after children (including those looked after by relatives, kinship carers, foster carers and those in a residential unit, school or secure unit) have the same rights to extra support in school as other children.

All children who are looked after are automatically assumed to have additional support needs unless they are assessed and it is decided they don't have additional support needs. If a child is assessed as not requiring extra support at one time, they may still need extra support further down the line to cope with disruptions or upset caused by leaving a foster family, moving home or changing school. The local authority must consider whether a looked after child needs a co-ordinated support plan (CSP).

Education, social work and staff from other agencies should work together to assess and plan the support a looked after child needs. Local authorities should have detailed policies on the education of looked after children to makes sure this happens. The child should be involved in planning their support and have a say in decisions about what they will learn at school and the support they need.

If a child is looked after, their home authority has responsibility for their education even if they are:

- placed in accommodation in another local authority and attending a school in that authority
- placed in a school in another local authority, for example, because school provision that meets their needs is available there.

Contact the Enquire Helpline on 0345 123 2303

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