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This is a document for discussion.
It will be presented to the Community Legal Dept, Group Special Education, Ministry of Education and others.
Please read and send your comments, or anything that you may feel needs to be added to this document.
A fundamental human right to go to school and receive the same education as other children. Under the Charter United Nations right for the child.
A publication jointly written with the Office of the Commissioner for Children and Wellington Community Law Centre.
This valuable document is strongly recommended for all families as it outlines very clearly the rights of our children to go to school and when facing disciplinary hearings etc.
How often are parents told to take their children out of school due to funding shortfalls?
How many special needs children are allegedly set up for exclusion?
We hope this will help clarify the situation concerning the rights of the child, and against the legal obligations of the school.
The Education Act is very specific on the rights of special needs children to attend school. They are entitled to the same education as other children (Section 8) this means that they have the right to go to school 6 hours a day 5 days a week. Four days a week due to lack of teacher aide funding does not equal five, a very clear breach of the Education Act.
The right to an education without prejudice is a fundamental human right of every child in this country, and was adopted as part of the UN Convention of the Child - NZ is a signatory. To require a child to be taken from school (except in exceptional circumstances where a proper procedure has been applied in exclusion ) is not only against the law, but is a breach of a fundamental human right of the child.
School as part of their legal and contractual obligations through the Ministry of Education, schools cannot refuse to enroll special needs children on account of disability. Schools push inquiring parents out the door by making it very clear that these children are not welcome and should go elsewhere is therefore extremely unethical. In the future there needs to be an amendment to the Education Act making such underhand practices illegal.
Likewise with securing funding for teacher aide help is not the responsibility of any parents. This sits squarely with the school and if funding is short, it is their responsibility to seek redress from the Ministry of Education. All to often principals find it easier to dump that burden back on us the parents by either requiring parents to take children out of school or push to top up teacher aide salaries. Both are clearly illegal but there are cases where such payments have been clearly disguised as donations. There is a difference between the many parents who willingly give extra donations to the school for a job well done and coercion or pressure to pay extra. No parent should be expected to top up a teacher’s or teacher aide’s salaries.
Issues about rates of pay, holiday pay etc for teacher aides are not the responsibly of parents nor are the rates of pay for teachers or general staff. It is inappropriate to discuss these issues with parents. If a school is in genuine difficulty, it may be appropriate in some cases to alert the parents concerned but there has to be some ethical guidelines as to how such actions are carried out, as this can be seen as coercing a parent to take their children out of school or come up with extra cash. The school should have a clear plan in mind as to how they are going to approach the (issue) problem, that doesn’t include coercion to break the law. There are many worthy activities where parents can remove their children from school with the approval of the Principal and in most cases these will be seen as very beneficial to the children. Some parents may consider this a good alternative if they have a special activity they wish to pursue for their child. But is very important to realise that this is the parents’ call with approval of the school and not the other way round.
Where parents have stood their ground and refused to take their children out of school, it has, in some cases, forced a reassessment of the funding allocation for the child. If there is a request to remove a child for 1 or 2 days a week, there may be no records kept of this as it could form the basis of an adverse ERO outcome or similar. The Ministry of Education Verification Office will therefore not know that the child is not going to school for those days and will rightly assume that s/he is coping well at times without teacher aide support. At the next review what is to stop them whipping a bit more from under him/her?. After all if s/he can manage 12 hours without teacher aide time each week, why cannot s/he manage with 18 hours or more?
One serious anomaly, that exists, is while the school is required to lodge all applications for ORRS funding with the consent of parents, any appeal must be lodged by the parents and not the school. It makes it a very difficult situation for the school if the parent refuses to lodge an appeal against a very unfavourable outcome with ORRS, this is something, that needs changing. While we are responsible for the child as parents, the management of the child during the school hours is the responsibility of the school and should therefore, schools should manage all the issues around funding including extra help. We as parents must remember too that the appointment of a teacher aide is the responsibility of the school it is the appointment of the teacher who will teach the children. We do not often get limited input, but this is ultimately the right of the school.
As parents we may be sympathetic to the plight of the school, but our children come with the package of education, this is something that every state or state integrated school has signed in their contract with the Ministry of Education. If they were unhappy with the present arrangement then they should not have signed the contract in the first place.
It may suit some parents who wish to take their children out of school for special activities such as swimming music or the like. Some parents in making such decisions base it on the premise that their child will receive benefit at least equivalent to what they would get by being at school for that same period. At special meetings to find a ways out of funding shortfalls, some suggestions will often be made such as parents taking the child to select activities such as Riding for the Disabled. Again parents should not feel pressured to comply. There is a caution with this approach. What happens if the activity planned doesn’t eventuate and you have agreed to take your child out of school? What happens during bad weather when the activity cannot be held? We will be told that our child cannot come to school, as there will be no teacher aide.
One of the largest issues we face is that what other parents have done before will be held up as a precedent. “Other parents have taken their special needs child out of school and so should you!”What other parents do is completely irrelevant as most if not all, parents make the best decisions for themselves and their children based on their value judgments, culture, beliefs, aspirations etc. In exceptional cases some parents may take an autistic child out of school for the first week of the year on the premise, as Autistic children can unsettle a class will in itself be quite distressing. Therefore it is good sense to let the teacher settle the class down and then bring the child into a settled environment. Any savings, which can be made by the school, has to be a win-win situation all round but again this should not be set as a precedent.
If confronted by such a situation there are several approaches:
They will react and quickly if they think the law is about to be broken. Sometimes school Board’s, even Principals are not as well versed in the law, as they should be. Usually a meeting will be set up with the school Principal and the child’s special education staff from Group Special Education. At this meeting you are well within your rights to state that your wishes for your child/ren to go to school and remind them as to how they manage him/her is their responsibility under the law. What other parents have done before is not relevant but if the school are insistent, ask them in fairness to all children, to close the school down for a day a week and see how far they get.
If this is not successful, then you can contact the Office of the Commissioner for Children, who have an advocacy service and staff who will represent the interests of the child.
They receive a large number of complaints so getting a result may be very time consuming.
You may also contact the Education Review Office or the Wellington Community Law centre, who provides a national advisory service through a toll free number. Anyone in New Zealand can seek information from this service. We understand that they spend a lot of time explaining to schools their legal obligations!
You may seek private legal counsel.
You also have the right to appoint a neutral representative from any agency that you may have been seeking advice from.
There are cases where children with serious disabilities have been excluded for disobedience.
The Office of the Commissioner for Children has very clear guidelines on this point. Essentially where disobedience is a result of a serious disability, this is not a valid reason to exclude a child/ren. To give a child instructions, which he/she is completely incapable of understanding, cannot then be used to deem a child to be disobedient. Any school proceeding down this path would be on very flimsy ground in court. There has to be clear intent that the child knows what he/she is doing and willingly chooses to proceed down that path. The school would need to demonstrate that they have done everything reasonably possible and that this is the last resort. Not only that a clear procedure must be followed. A 5-year-old child with a serious disability was excluded, the school showed its level of competence by writing a letter to a child who couldn’t read. There are legal documents and they must be correct. This could be challenged in a court and most likely quite successfully with a ruling against the school. A defence lawyer may use such a document to question the very competence of the school who are to professionally manage a child with disability.
There is a duty of the school staff to be informed, to properly manage and show a level of competence in dealing with any special needs child/ren. Failure of a teacher for instance to properly transition an autistic child that then results in anxiety and adverse behaviour, is the fault of the school for mismanagement and not of the child for serious misbehaviour. Lack of knowledge, incompetence or mismanagement has never been an excuse. They are in the business of Education, they have a duty to seek advice and knowledge to professionally manage any child. Schools cannot claim they didn’t know because it is their duty to find out and undertake sufficient professional development to manage the children in their care. Again we may be sympathetic with the large number of conditions, which can constitute a special needs child. However workload issues can never an excuse to neglect professional or legal responsibilities.
We cannot imagine a court ever ruling unfairly against a seriously disabled little boy or girl especially a 5 year old. Once such exclusion is overturned, those responsible may they be facing disciplinary action for what amounts to nothing short of disgraceful conduct. Teachers should now realise that any such actions against a seriously disabled child could see their registration brought into question if the court or other statutory body rules against an unfair exclusion or a vagrant breach of the child rights.
If confronted with this situation I believe you should firstly consult the Ministry of Education whether your child ORRS funded or not and proceed from there. The charter and policies of the Ministry’s Group Special Education would not allow it to sit by and watch a seriously disabled little boy or girl being unfairly set up for exclusion. Group Special Education should be involved long before any question of exclusion arises and if they are not, then this could be deemed to be a failure of the school to follow proper procedures by not seeking professional advice in the management of the child.
Help can be sought from the Office of the Commissioner of Children’s Advocacy Service as well as the nationally available advisory service of the Wellington Community Law centre through their 0800 number.
At any disciplinary hearing, all parties who deal with the child while at school should be represented. This would include Group Special Education, they are expected to fairy advocate for any child/ren by challenging any statement or actions they deem inappropriate, unjustified or a breach of the law. They are there to not only assist the school, but to fairly advocate for the child and not be the mouthpiece of the school. You can also take legal counsel, but if not take a person who can take notes who will record everything that is said."
A paper for your input and additions please.
Return to: LBCTNZAttn: Moira Buchanan PO Box 40161 Upper Hutt Ph 04 5678781 Fx 40 5676783 Mb 027 2475745 lbctnz@slingshot.co.nz www.lbctnz.co.nz