Article 39 fights for the rights of children living in state and privately-run institutions in England. A registered charity, we take our name from Article 39 of the United Nations Convention on the Rights of the Child (UNCRC), which grants every child who has experienced abuse or suffered other violations of their rights to recover in environments where their health, self-respect and dignity are nurtured. Our work runs across four complementary areas: legal education; practice development (our national network of independent advocates has nearly 300 members); policy advocacy, research and strategic litigation; and awareness-raising of the rights, views and interests of children.
Children who live in institutional settings have frequently experienced educational exclusion – formal and informal. Systems which demand children to fit in, to obey rules without question and to respond to group humiliation and being ostracised without feeling or expressing anger, frustration or distress usually do not work. They often hurt and harm children who have already experienced great hurt and harm elsewhere – children living with abuse and high levels of conflict and violence at home. They also disproportionately bear weight on disabled children, children living in poverty and children from black, Asian and minority ethnic communities, as exclusion statistics show.
Within smaller environments, where children’s individual needs, talents, personalities and interests are known and valued, children can thrive. With skilful work by experienced teachers, over time children’s confidence and self-esteem can start to rebuild. Rather than developing policy which pushes more children to the margins – to alternative provision and separate units – we strongly recommend that mainstream education learns from the cultures, environments and teaching expertise of those who study and work in specialist settings, including secure children’s homes and hospital schools.
It is bewildering that the Department for Education has issued a call for evidence on behaviour within school communities in 2021, which presents only strategies and approaches which exclude, isolate and punish children – ‘removal rooms’, behavioural units and managed moves. This demonstrates a very narrow understanding of child development, how to nurture and bring out the best in children, the reasons behind behaviours which challenge, and the positive impact of rights-respecting cultures and teaching which recognises and builds upon the talents and interests of students.
The absence of any direct consultation and engagement with students around creating positive school cultures is similarly mystifying and appears to demonstrate an archaic world-view that only adults matter in relationships between adults and children, and that communities of children and adults are formed and maintained by adults only.
Children and young people are a huge resource, which the Department for Education ought to be learning from and working in partnership with when developing policy as significant as this. In November 2020, the Court of Appeal found that the Secretary of State for Education had acted unlawfully in not consulting the Children’s Commissioner or other children’s rights organisations about the potential impact of removing and diluting 65 safeguards for children in care. The views and experiences of children are clearly pertinent when considering the development of national education policy which affects how children and young people are treated within their schools and colleges, and potentially interferes with their rights and freedoms under the European Convention on Human Rights/the Human Rights Act and the UNCRC.
It is almost 30 years since the UK ratified the UNCRC, with its affirmation of the rights, feelings and perspectives of children. Article 12 grants every child the right to express their views freely in all matters affecting them, and to have these views given due weight in accordance with their age and maturity. The Department for Education has lead responsibility for co-ordinating the UK Government’s implementation of the UNCRC. When the Committee on the Rights of the Child last examined the UK’s compliance with the treaty, it expressed concern that children’s views were not systematically heard in the policy-making process and made a number of recommendations to strengthen the implementation of Article 12, including specifically for disabled children.
The government is due to submit detailed information to the Committee on the Rights of the Child by February 2022, ahead of the Committee’s next periodic examination of the UK. The Committee has explicitly requested information about the fulfilment of children’s right to be heard within schools, and the promotion of positive and non-violent forms of discipline in schools.
The request for examples of behaviour management strategies which were effective before and since the COVID-19 lockdowns is welcome, though again the framing is on managing children’s behaviour rather than promoting whole school cultures of respect, inclusion and fairness.
Evidence supporting rights-respecting school cultures
We recommend the following documents which could assist the Department for Education to promote and encourage the development of rights-respecting school cultures:
 See, for example, Graham, B. and others (2019) School exclusion: a literature review on the continued disproportionate exclusion of certain children. Department for Education.
 Article 29 UNCRC sets out the aims of education as the development of the child’s personality, talents and mental and physical abilities to their fullest potential.
 R (Article 39) v Secretary of State for Education  EWCA Civ 1577: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1577.html
 Committee on the Rights of the Child (2016) Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland.
 Committee on the Rights of the Child (March 2021) List of issues prior to submission of the combined sixth and seventh reports of the United Kingdom of Great Britain and Northern Ireland.