Michael Clifford: How the State breaks laws for children

Michael Clifford: How the State breaks laws for children
Members of the of the Oireachtas Disability Group: Robert Murtagh, Inclusion Ireland; Joanne McCarthy, DFI; Enda Egan, Inclusion; James Cawley, Independent Living Movement; senator John Dolan; and Alison Harnett, National Federation of Voluntary Service Providers. Picture: Paul Sherwood

THE law in Ireland is inclusive for children, and particularly for children who have a disability, writes Michael Clifford.

If you arrived in the State and perused the statute books, you’d be highly impressed. If you stuck around to see how the laws are routinely broken or ignored by the State, you would get a more accurate picture of the attitude to some children.

A recent seminar in Trinity College Dublin heard how the law is wantonly broken in denying some children their rights.

The research presented showed that one in four children with disabilities are subjected to shortened schooldays. The report, Education, Exclusion, and Behaviour, concluded that this is true of one in three children with autism.

The research was undertaken on behalf of Inclusion Ireland by the Technological University of Dublin. One of the authors, Deborah Brennan, told the seminar that about half of the cases of children on restricted timetables were illegal.

Shortened schooldays are, effectively, suspension. Suspending a child is a serious matter that can only be effected once a number of provisions under the Education Welfare Act 2000 are completed.

Many schools simply didn’t bother with these provisions. Shortened days were imposed on children with a disability, usually because of challenging behaviour, but the child’s rights were not observed.

In most of these instances, parents who have experienced great difficultly in getting an education for their children are unaware of their rights. Even those who know what is happening must go through a protracted, and often expensive, legal process to have their child’s rights asserted.

Those who appeal suspensions find this out to their cost.

“The pyrrhic victories won by the families we spoke to — challenging, time-consuming, bureaucratic, sometimes confrontational, largely pursuable only by well-informed and well-resourced parents — suggest the need for parents to know ‘gentler’ ways of escalating such issue,” according to Education, Exclusion, and Behaviour.

Another law that shows how much children are allegedly valued in this society is the Education for Persons with Special Education Needs Act, 2004.

This law sets out, among other things, how every child with a disability should receive a specific plan for their education, taking into account needs. The law demonstrates that government and society are acutely aware of the challenges faced by children with special needs.

The year after its enactment, the education minister issued a commencement order on some of the provisions of the Act, but left others out. Among those left out were the real meat of the law, which would have ensured each child was assessed for their specific educational needs and a proper programme put in place.

At the time, the teachers’ unions resisted this, on the basis that there simply weren’t the resources available to carry it out properly.

As a result, the Act was never fully commenced. According to the statute books, this very progressive law is in operation. Out in the real world, it is not worth the paper on which it is written.

The seminar heard a number of calls for the Act to be commenced. A child who was born with a disability in the same year the law was passed would now be heading towards the latter stages of a second-level education without ever having benefited from a law enacted to protect his or her rights.

The child law that is most routinely abused by the State is the Disability Act 2005. This provides a legal entitlement that a child’s needs must be assessed within three months of application and completed within another three months.

It is highly unusual for time limits to be written into statute, but the inclusion, in this instance, is a reflection of the urgent need for a diagnosis. The sooner a child’s needs are diagnosed, the sooner those needs can be addressed, the better the chances of arresting any deterioration in a condition or effecting improvements.

This is particularly, but not exclusively, the case in areas like autism.

Last year, another fine law, the Educations (Admission to Schools) Act came into force. Section 8 of this Act confers powers on the minister of the day to direct a school to make provision for a special class for children with a disability. Typically, this would be an autism spectrum disorder class, which might have between four and six pupils.

As of yet, no school has been thus instructed, despite a shortage of places for children with a disability in many areas, most notably parts of Dublin and Cork.

At the seminar, Professor Tom Collins pointed out the value of education to society.

“Investment in education always pays off in all other sectors,” said Prof Collins. 

Jobs, health, people less likely to go to prison, a better sense of wellbeing. We know this and yet it seems so difficult to persuade people that we should be up-front in investing in education, especially for groups who are in the disadvantaged sector.

“In the 1980s, Ireland spent the same proportion of GNP in education as health: around 8%. It continues at that level in education, but has doubled in health. If you had the reverse (in investment), you might find there was less need for the spending on health,” said Prof Collins.

The point is well made in terms of common sense and the moral obligations of society.

But it is also the case that investment is required to ensure that the State properly observes the law.

Collectively, the laws mentioned above reflect a society that allegedly prioritises the rights of those who are among the most vulnerable. In reality, these rights are routinely trampled on, or ignored by, agencies of the State.

Quite obviously, what is absent is the political will to ensure that laws must be observed by all.

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