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Lord Ashley of Stoke: This has been an excellent debate. As we will be returning to my Amendments Nos. 13 and 14 later, and in view of the clock and the number of amendments, I beg leave to withdraw.

Amendment, by leave, withdrawn.

Clause 1 [Education in mainstream schools of children with special educational needs.]:

Baroness Blatch moved Amendment No. 2:

The noble Baroness said: I welcome this opportunity to go back and build on two important Acts--the Education Acts of 1996 and 1993. This is a welcome opportunity to revisit some of the measures in those Acts and to improve on them. The words in the amendment are used in Section 316 of the 1996 Act.

I am concerned that there is no reference to who should decide whether a child should be educated in a school. Most of us agree that most children should be educated in a school; there is not much between us on that. The alternative is for them to be educated at home by tutors, portage schemes or whatever else is available to enable parents to educate their children at home. Of course, the law allows for that.

In my village, a family has educated a young person with ME. Sadly, three people in the family have suffered from ME over a long period, and the child I refer to who was successfully educated at home simply could not cope with a mainstream school. It was fortunate in this case that one of the parents was a teacher who devoted much of her life during that period to the task, with help from outside, including from the local authority and from the her own school. In order for us to emphasise at the outset that the wishes of the parents--and of the child if they are old enough--are paramount, the amendment would replace the decision of someone unknown with the wish of the parents on whether their child is educated in a school. I beg to move.

Baroness Blackstone: Amendment No. 2 aims to strengthen the parent's right to educate their child outside the school system. All parents enjoy that right, which is protected by Section 5 of the Education Act 1996 and by the current defence framework.

The current wording of Clause 1 continues to protect that right. However, it depends on the parents providing an appropriate non-school based education. Where a child has special educational needs, such provision is sometimes very complex and far from easy. However, the Government do not feel that it is appropriate to change the existing provisions, which ensure that every child receives an appropriate education. I suspect that the noble Baroness, Lady Blatch, would accept that that is desirable. I hope she will agree that the present provisions cover what she is asking for.

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We have reflected the existing situation in the Bill. Where a child has special educational needs, it is especially important that he or she gets an appropriate education so that he or she has the best chance in life.

I add also that school-based education may not be appropriate in a number of situations. I accept what the noble Baroness has said. However, there are examples where children may be receiving psychiatric treatment in secure accommodation. It could not be said that they should attend school, even if it is what their parents wanted. Although I am sure it is not the intention, the effect of the amendment would be to allow parents to insist on mainstream education in a situation of that kind. Therefore, the existing provisions protect the right of parents to educate a child in a non-school situation as long as that education is appropriate.

I hope that in the light of what I have said, the noble Baroness, Lady Blatch, will feel able to withdraw her amendment.

4.15 p.m.

Baroness Blatch: First, the answer of the noble Baroness is helpful but I go back to the words in the Bill which states:

    "This section applies to a child with special educational needs who should be educated in a school".

I take what the noble Baroness is saying, that that is not so rigid that there is no other alternative and that somewhere else in statute there is the provision that protects the right of the parent to choose not to have a child educated in mainstream. The caveat is always there. As long as it is consistent with the educational needs of the child, the right to do that is fully protected. I believe that the noble Baroness agrees with that and that an official behind her also agrees with that. If that is the case, I shall read very carefully what the noble Baroness has said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne moved Amendment No. 3:

    Page 1, line 13, after ("child,") insert ("and it is in the child's best interests,").

The noble Lord said: The Children Act established the principle of the best interests of the child. I suggest that to pass the Bill without reference to the best interests of the child would be a retrograde step. The child's interests are not necessarily reflected in the wishes of the parents, especially not in cases of disability. Sadly, and I have had this experience a number of times, parents are unhappy about the disability of their child and they try to persuade themselves that the child has less of a disability than it has. The wishes of the parents, therefore, are not necessarily a reliable measure of the best interests of a child. The best interests of a child can be established. The principle has been accepted and has worked in relation to the Children Act.

Amendment No. 3 relates to a child with no statement. For such a child there is no option and, however unsuitable a mainstream school may be for

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that child, to a mainstream school he must go. The noble Baroness may say that such a child will be statemented and the answer to that is--I can only think of it in what I believe is now called estuary English--get real. The reality is that it takes up to two years to get a child statemented in some local authorities, partly because there is a shortage of psychologists, and partly because the local authorities do not want children to become statemented, because when they do, they have to pay for them to go to a special school. What happens to that child over those two years? He will sit at the back of the class, not understanding what is going on and possibly being disruptive. So my amendment would solve that problem in one shot. I beg to move.

Baroness Blatch: It may be appropriate for me to speak next as this amendment is grouped with my Amendments Nos. 5 and 22 to 26. My Amendment No. 5 deals children with special needs but who do not have a statement. There is a point to be made here and I seek the Minister's reaction to it. Children with special needs who are not statemented should enjoy the same attention and the same consideration as to what is and what is not appropriate as those who have statements. Clearly, the child with a statement has particular needs which are more serious than the child with special needs who is not statemented. Therefore, it really is a matter of equality. It is putting all children on the same footing so that all children receive the appropriate consideration that is consistent with their educational needs. consistent with their educational needs.

An exemption from having to be educated in a mainstream school is permitted during the period a child has been admitted to a special school for the purpose of making an assessment of that child. I accept that; it is fair. However, that exception is granted only with the agreement of the local education authority, the head teacher of the mainstream school, the parent and anyone else who is authorised to give advice.

If the child has been admitted to a special school for an assessment, all concerned with that child will have agreed to such an assessment being made. That is the whole point; that can be done only by agreement. Therefore, we do not need the bureaucracy and the delay of seeking agreement from all of those people, or ascertaining whether they disagree. My amendment leaves all of that out, with the exception, of course, of the agreement of the parent. If I were being really strict about this, it would not even be necessary to include the agreement of the parent because the parent should already have agreed to the assessment at a special school. However, for the sake of anyone who thinks I am anti-parent in these matters, I have chosen to leave that in and put beyond doubt that the parents' wishes are well and truly met. The measure I oppose would be bureaucratic and would allow for the sort of delays to which the noble Lord, Lord Northbourne, has just alluded in a different context. Anything that adds to

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bureaucracy or which inhibits the progress of the assessment and getting the child back into mainstream education should be avoided.

Baroness Sharp of Guildford: I speak to Amendment No. 3. The term,

    "the best interests of the child"

has worked extremely well in terms of the Children Act. The paramount interest in all these cases should be the best interests of the child. This applies both to those who are statemented and to those who are non-statemented. It is unfortunate that the term,

    "the best interests of the child"

has not been included on the face of the Bill. I therefore support the amendment.

Lord Davies of Oldham: Perhaps I may begin by reiterating the Government's policy on children with special educational needs who do not have statements. We believe that these pupils can be, and are, successfully provided for within mainstream schools. Many noble Lords present have visited schools where this is done successfully.

For pupils with special educational needs but no statement the Bill simply seeks to reflect the current arrangements for maintained special schools. This has not been a contentious issue. So there can be no confusion about when a child who does not have a statement can be placed full time in a special school, we have sought to set out the exceptional circumstances on the face of this Bill. Currently they are set out within the Education (Maintained Special Schools)(England) Regulations 1999.

The circumstances are as follows: the child is being assessed for a statement; the child's circumstances have changed--in both cases the agreement of his parents, the school, LEA and, where a child is being assessed, anyone advising on the statement, is required--or the child is in hospital and is attending a special school within the hospital. We believe that these provisions are appropriate and provide sufficient flexibility to ensure--this point has been made by several noble Lords--that the interests of all pupils must be taken into account.

I should like to turn to the amendments within the group. Amendment No. 3, in the name of the noble Lord, Lord Northbourne, would allow children without a statement of special educational needs to argue that it was not in their best interests to attend a mainstream school. Amendment No. 5, in the name of the noble Baroness, Lady Blatch, would mean that children with special educational needs but without a statement of SEN should not attend a mainstream school without the agreement of parents. The role of mainstream schools in meeting a child's special educational needs is clearly set out in the current and revised code of practice. The provisions in the Bill relating to the exceptional circumstances where pupils without a statement can attend a special school reflect the existing circumstance. Maintained special schools will accept children without statements only in these circumstances. The Government are firmly of the view

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that a child without a statement of special educational needs should go to a mainstream school except in the exceptional circumstances set out on the face of the Bill--or, of course, where his parents choose to educate him outside the maintained sector.

Amendments Nos. 26 to 28 seek to change the exceptional circumstances to which I have just referred. Amendments Nos. 22 to 24 remove the requirement for the consent of the LEA or head teacher or other professional staff. Any change can be unsettling and moving a child to a special school for the purpose of assessment would be a significant step for all concerned. Such a decision must not be taken lightly and should be reached with agreement from all those involved--the LEA, head teacher, parents and professionals--who have the child's interests in mind and who have a real contribution to make to the wellbeing of the child. Equally, we believe that following the child's assessment, decisions about his or her placement should not be taken in isolation by parents but with the agreement of all concerned.

Amendment No. 26 seeks to accommodate the wishes of the child before he is placed in a special school. This point is a recurring theme throughout the Bill and an important one, as it has implications for pupils well beyond the scope of the Bill. I can assure Members of the Committee that the revised SEN--

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