Although we welcome the proposal to extend the rights to children in relation to additional support needs, we are concerned that the proposal in the schedule is not compatible with the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities. Article 7(3) of the UNCRPD says:
“States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.”
We are concerned that, rather than being given the same rights as children who do not have disabilities, children who have additional support needs will have to jump through an additional hoop to prove that they have capacity before they are able to access their rights.
11:30
The legislation seems to be framed the wrong way round; if children have additional support needs they will have to prove that they have capacity, rather than, as Irene Henery said, there being a presumption that they have capacity if they are over the age of 12 or, indeed, if they are under the age of 12, if it can be shown that they have the maturity to make the decision. That is a major concern, and we do not think that the legislation is compatible with the UN conventions.
No doubt we will talk a bit more about the best-interests test but, in addition to children having to prove that they have capacity, the local authority may then just say, “You’ve got the capacity, but you still can’t make the decisions, because we don’t think it’s in your best interests.” In other words, they are given the right to participate, but then that right is refused once it is used.
The bill must be amended. A key factor is that there was no consultation on the issue or on the definition of capacity when the question about extending the rights on additional support needs was consulted on last year. The legislation goes way beyond what is reasonable without proper consultation on its consequences.
If I were to make a suggestion on how the capacity issue might be resolved, I would stop paragraph 2 in the schedule to the bill at the proposed insertion of new section 3(1) into the 2004 act and not include proposed sections 3(2) or 3A. A right to make regulations or statutory guidance, which could be further consulted on, on the process for assessing capacity where there is a doubt about whether a child has capacity, could be included.