Vulnerable children’s right to education, school exclusion, and pandemic law-making

Abstract

ABSTRACT This article draws on the impact of the ongoing pandemic to highlight the failure of the English legal regime to adequately protect children’s right to education, particularly equal access to education by especially vulnerable children. Ifirst outline key domestic and international legislative provisions positioned as securing children’s and parents’ rights in this context. Prior to the pandemic, there was growing recognition of the current regime's failings regarding illegal exclusions from school, children missing from education, and the lack of inclusive education for children with special educational needs and disabilities (‘SEND’). The protection of children’s rights relied on the benevolent exercise of discretion and key decision-makers not exploiting limited oversight and scrutiny in order to meet results-driven accountability measures. Second, I critically analyse pandemic law-making and regulation, particularly in relation to the exclusion process, the legal duty to provide education in an online environment, the law on Education, Health, and Care Plans (‘EHCPs’), and the de-registration and fines for non-attendance. Third, I argue that the educational impact of the pandemic highlights the need for law reform, rather than merely revisions to statutory guidance and focus on best practice. Such reform may also trigger improvement via the ‘reflexive regulation’ of the education system.