Department of Education Consultation

Learning to Learn:

A Framework for Early Years Education & Learning

Children’s Law Centre

Response

31st January 2013

Children's Law Centre
3rd Floor
Philip House
123-137 York Street
Belfast
BT15 1AB

Tel: 028 90 245704
Fax: 028 90 245679

Website:

For further information contact:

Contents

Introduction 2

Restriction of Consultation Period 3

Restriction of the Scope of the Policy – Strand One 5

Restriction of Cooperation – Delivering Social Change - Strand Two 6

Fulfilling Potential – Learning to Learn 8

Respecting the Legal Rights of Children & Young People10

Delivering Improved Outcomes – Key Actions11

Assessing Equality Impacts14

Conclusion19

Introduction

The Children’s Law Centre (CLC) is an independent charitable organisation established in September 1997. Our aim is to protect, promote and realise children’s rights using the framework of international children’s rights law alongside the law of Northern Ireland.

CLC is founded on the United Nations Convention on the Rights of the Child, in particular:

  • Article 2: Children shall not be discriminated against and shall have equal access to protection.
  • Article 3: All decisions taken which affect a child’s life should be taken in the child’s best interests.
  • Article 12: Children have the right to have their voices heard in all matters concerning them.

CLC undertakes education, training and research on children’s rights, produces leaflets on a wide range of children’s rights topics and makes submissions on law, policy and practice affecting children and young people. We have a youth advisory group called youth@clc who act as peer advocates and inform our work.

We have a dedicated free phone legal advice line known as “CHALKY” for children and young people. We offer free legal advice and information on a wide range of children’s legal rights issues. Examples of our areas of work as they relate to children include education, mental health, discrimination, human rights and criminal justice.

CLC provides free legal representation in strategic cases. We represent at the Special Educational Needs and Disability Tribunal, school Admission and Expulsion Appeals Tribunals and the Mental Health Review Tribunal. We also provide legal representation in a limited number of strategic cases via Judicial Review and have undertaken Third Party Interventions in cases with a particular focus on children’s rights.

Learning to Learn: A Framework for Early Years Education & Learning

Restriction of Consultation Period

CLC welcomes this opportunity to respond to the Department of Education’s consultation on “Learning to Learn: A Framework for Early Years Education and Learning”.

We are extremely disappointed at the manner in which this policy is progressing. Rather than truly addressing the valid criticisms of the Early Years (0-6) Strategy, the Department has opted to present radically revised proposals, substantially reducing the scope of the policy on the ground of what is described as a “realignment of functions, agreed by both the DE and DHSSPS Ministers”[1].

At the outset we wish to highlight our serious concerns around the unacceptable restriction of the consultation period to 8 weeks, which in our view, taking into account the complete change in policy direction in relation to Early Years, renders the consultation process invalid.

In relation to this policy, an 8-week consultation period does not comply with the Department’s duty to consult under Section 75 of the Northern Ireland Act 1998. The Equality Commission recommended in 2010 that the minimum period for consultation be extended from 8 weeks to 12 weeks.

The Department has not to our knowledge outlined any exceptional circumstance, as defined under the Equality Commission’s Guidance[2] or valid justification for the shortening of the consultation period, despite the fact that this policy has the potential to impact significantly upon access to education and the foundations of learning for all children in their early years in Northern Ireland.

The Equality Commission’s Guidance, “Section 75 of the Northern Ireland Act 1998 - A Guide for Public Authorities,”[3] provides that policy makers should ensure that:

“...adequate time be allowed for groups to consult amongst themselves as part of the process of forming a view. We recommend that the consultation period lasts for a minimum of twelve weeks”[4].

The Department’s own draft Equality Scheme, which is awaiting approval from the Equality Commission, states in relation to consultation that:

“The consultation period (for this plan and other equality consultations) will last for a minimum of twelve weeks to allow adequate time for consultees to respond.

However, in exceptional circumstances when this timescale is not feasible (for example implementing EU Directives or other legislation, meeting Health and Safety requirements, addressing urgent public health matters of complying with Court judgments), the timescales may be shortened to eight weeks or less before the policy is implemented. The policy will be reviewed as part of monitoring commitments”[5]

This draft Equality Scheme clearly indicates the acceptance by the Department of the Equality Commission’s guidance about the length of the consultation period.

In our view, an 8-week consultation period is not a sufficient time to allow for proper consultation on this policy, which represents a significant retreat from the original policy, to the extent that the original proposals have been scrapped and these new proposals are now put forward. Highlighting the anticipated changes ahead, linked to this policy, the Minister stated to the Assembly on 4th December 2012 that “the changes I have outlined will have a significant impact on the way we manage and implement our services”.

Whilst implementation of such changes is to a large degree dictated by financial constraints,finance should not be the starting point in the process of policy design. To place the child at the centre of the policy the starting point should always be the legal rights of the child so that finance may be appropriately prioritized.

To exacerbate the unjustified shortening of the consultation period, the consultation coincided with the Christmas period, in effect limiting even further the time available for consultees to properlyform a view upon what is in effect a completely different policy to that originally put forward in 2010 by the Department in the Early Years (0-6) Strategy.

The current approach to consultation by the Department strongly suggests that the consultation is a “tick-box” exercise to facilitate the driving through of the Department’s preferred policy, with no real account to be taken of the views of those affected by the operation of the policy and with no real intention to place the rights of the child at the centre of the policy.

It is stated in the consultation document[6] that “the Department is keen to start implementing the actions in this framework as soon as possible” and that “the time has come to focus upon what can realistically be achieved”. Regardless of the Department’s keenness and budgetary constraints, there remains a legal duty upon the Department to properly consult with the public about this policy under Section 75 of the Northern Ireland Act 1998.

Restriction of the Scope of the Policy – Strand One

This consultation marks a significant move by the Department away from the Early Years (0-6) Strategy, a policy formulation which prompted almost 2000 consultation responses and generated a great deal of interest around taking forward a coherent, holistic strategy for the benefit of children in their early years. The Early Years (0-6) Strategy had, according to the Department, been framed to reflect “a drive for cohesion in the policies and services affecting early years so that children and parents get the best outcomes possible”.[7]However, this drive was not reflected in the detail of the consultation paper which suggested a rather more limited approach to early years provision.

The Department has now set out a new two strand approach, the first strand being the “revised” or new proposals and associated key actions which are the subject of this consultation. The key actions are intended to “build effectively on existing good practice”[8]by improving the quality of existing services including pre-school placements, early years support through Sure Start; extended schools funding; ongoing pilots on sharing knowledge and expertise; staff training and advertising to parents the benefits of education and learning for their children.

In effect, there is now no Early Years Strategy for children in Northern Ireland and this current consultation refers only to current DE service provision and how that might be enhanced by taking funding away from some services and redistributing them to others. In our view the Learning to Learn Framework, while it may improve some existing services, which are not available to all, cannot fulfill the stated policy aim of ensuring that all children should have opportunities to achieve their full potential.

The proposed Framework and associated key actions are so restrictive that they cannot possibly achieve the policy aim or even begin to promote the underpinning policy principals. Were the policy aim and the policy principals to be followed through within the policy, children would have opportunities to achieve their potential by accessing timely and appropriate services; by having their rights respected – including the right to full inclusion and by experiencing the benefits of collaborative working between key sectors and bodies. Splitting the policy into two strands is an entirely artificial construct, designed to absolve the Department of its legal duties regarding respect for the educational and developmental rights of young children and to delegate responsibility and accountability away from the Department.

The child’s education is treated as an isolated service, without accounting for linkage with health, social care and other needs. This approach by the Department of Education in tandem with the Department of Health appears to be predominantly concerned with the careful apportionment of budgetary responsibility to each government department, with cooperation restricted to limited discrete projects which may or may not be agreed at a future date and which may or may not attract funding through the “Delivering Social Change Framework”.

Through legal case work, we have experience of the fact that the rights and needs of the child cannot be clearly and unequivocally separated in this way and that children need a holistic joined-up approach with integrated service provision and clear enforceable legal accountability mechanisms.

In our experience it is not those who are accessing quality services who require an accountability mechanism, it is those who have been denied access who are the most vulnerable and disempowered in society and whose rights will not be vindicated on the implementation of this policy.

Restriction of Cooperation - Delivering Social Change – Strand Two

The Department seeks responses only on further refinement of planned “key actions” in what is being referred to as a “focused consultation”. The policy aim for the Learning to Learn Framework is stated to be that “all children should have opportunities to achieve their full potential through high quality early learning and education experiences”.

The “drive for cohesion in the policies and services affecting early years” which precipitated the original early years strategy now falls within strand two, through which the Department seeks “to explore the potential for enhanced cooperation around early intervention, including early years under the Delivering Social Change Framework.”[9]

The Executive policy “Delivering Social Change” is promoted as “a new level of collaborative working across Ministers and senior officials across the Executive Departments…deploying resources flexibly across Departments” through a £118 million “Delivering Social Change Fund” (operational to 31st March 2016)”[10].

The Minister for Education has stated to the Assembly that “While I welcome the debate on early years services, the context has changed with aspects of early years policy going back to the DHSSPS and the emergence of the Delivering Social Change Framework”.

The change in context referred to (the further division of responsibilities between DE and DHSSPS and transfer of certain areas away from DE) as justification for abandonment of an early years strategy, is irrelevant to the children who are not accessing education and health provision in their early years. The mechanisms through which the systems of provision are operated by the two (or more) Departments to enable access to children and to empower their parents and carers to ensure obligations are met, are the key to meeting children’s rights obligations and meeting the aims and objectives attached to this policy. “Delivering Social Change” does not appear to us to be a sufficient mechanism to ensure systematic cooperation and we are not at all convinced that difficulties highlighted in the responses to the Early Years (0-6) Strategy consultation can be dealt with through “Delivering Social Change”.

A change in political or departmental context does not in our view justify neglect by government to make systematic improvements to ensure cohesive holistic early years provision. The Executive’s programme for “Delivering Social Change”, while welcomed in terms of providing specific programmes and supports to a limited number of vulnerable groups and marking a move towards some limited inter-departmental cooperation, falls far short of the legal duty to cooperate which CLC and many others have called for repeatedly to ensure children’s rights to early education and early intervention and to ensure real inclusion.

The current 8-week consultation, relates to a limited section of a limited strategy with clearly drawn boundaries, carving up the financial responsibilities of the Department of Education and the Department of Health, Social Services and Public Safety, with little or no regard to the duty to consult or to respect the rights of all children who require access to integrated early years service provision to enable them to build the foundations of learning so that they may reach their full potential.

It is CLC’s view that the proposed revised policy represents a complete failure by the Department to take account of available evidence in relation to early years provision and provided through almost 2000responses to the Early Years (0-6) Consultation. Lacking evidential validity and without direction in terms of children’s rights, the revised policyis entirely inadequate and is likely to attract very limited resources with no guarantee of further significant development. This does not accord with the aim of the revised policy that all children should have opportunities to reach their full potential to learn through high quality early learning and educational experiences.

While we acknowledge and welcome the Minister’s statement to the Assembly that he “will seek to identify further opportunities for joint working with other departments and improved coordination of services to families”, the policy itself does not in any way guarantee to young children that their rights will be upheld or their needs met through systematic joint working. In our experience the current ad hoc “arrangement” between departments regarding cooperation is continually failing to meet the needs and rights of vulnerable children.

We would also like to highlight the additional fact that barriers to inclusion are often placed in the path of children and young people, for example those with special educational needs and disabilities, by a lack of “joined-up” workingwithin an individual department.

By way of example, within each of the five Education and Library Boards, operating within the Department of Education, relating to special education there are separate sections for statementing, home tuition and transport. In our experience information is not routinely shared between these sections, even though one section may hold an important piece of information which could impact upon the decision of another regarding whether or not to grant a particular service. A decision to withhold one of these services can in our experience have a devastating impact upon a young person, resulting in educational and social exclusion with implications for the mental health and well being of the young person as well as negative impacts upon parents/carers and siblings.

Again this issue stems from separated financial streams which inhibit cooperation and prevent the prioritization of the rights of the child as the central consideration. The remedy of course is to replace budgetary considerations with “the best interests of the child” as the primary consideration when decisions are being made which affect the child in compliance with the obligations within the UNCRC (Article 3) and the UNCRPD (Article 7).

Fulfilling Potential - “Learning to Learn”

CLC takes the view that the Department, in taking forward “Learning to Learn” in full compliance with its legal obligations should properly take into account the constructive criticisms made and valuable evidence provided by consultees in their almost 2000responses to the Early Years (0-6) Strategy, in particular, as noted in the Department’s Summary of Responses[11], the: