Additional support proposals inconsistent with Scots law: Faculty
Proposed extensions of rights in relation to school pupils with additional support needs have not been made properly consistent with Scots law, the Faculty of Advocates claimed today.
In its written submission on the Education (Scotland) Bill, the Faculty welcomes the conferring of rights on children with capacity as consistent with the United Nations Convention on the Rights of the Child, but argues that the bill "risks causing confusion".
Extending most rights to children aged 12 and over with capacity is an important part of the bill. However, Faculty points out that this does not cover all children that the law otherwise regards as having capacity.
"The general principle, found in the Age of Legal Capacity (Scotland) Act 1991, section 2, is that a child of any age has legal capacity to instruct a solicitor in connection with any civil matter where the child has a general understanding of what it means to do so", the submission states. "There is a presumption that a child of 12 years or age or more is of sufficient age and maturity to have this understanding."
Faculty added: "The bill as framed would prevent children under 12 with capacity from making an application to the Additional Support Needs Tribunal under the 2004 Act, while the same children may make an application to the Tribunal based on disability discrimination and to the sheriff in connection with any other unlawful discrimination.
"The child excluded from the Tribunal could seek other remedies, such as judicial review... The Faculty considers that the approach in the 1991 Act should be universally applied, i.e. a child of any age who understands the issues may access legal remedies".
It adds that the actual provisions of the bill are unduly complex, and will be difficult for parents and children to understand. "Consideration should be given to a simpler statement of the test of capacity."
In other areas such as complaints, learning and childcare, however, Faculty welcomes clarifications made by the bill.