Disabled children's rights in everyday life: problematising notions of competency and promoting self-empowerment

Children’s rights in Scotland are covered by a number of Acts, Rules, Regulations and Guidance which include: the Children (Scotland) Act (1995), the Adoption (Scotland) Act 1978, Children’s Hearings1 (Scotland) Rules 1996, the Age of Legal Capacity (Scotland) Act 1991, educational guidelines, Rules and Acts relating to the Court of Session and the Sheriff Court, regulations relating to adoption, fostering, residential childcare and child protection, recent amendments brought about by the Children (Scotland) Act 1995 and the recently enacted Standards in Scotland’s Schools etc. (Scotland) Act 2000. Despite this protective web2 (which we will refer to as guidance and legislation) there is still much uncertainty surrounding how children’s rights are upheld in practice. Whilst the guidance and legislation (post the UN Convention on the Rights of The Child) stresses the importance of taking the child’s views into account, it also contains caveats that can be used to limit a child’s ability to have his or her voice heard and taken account of during a variety of proceedings and in different settings (Marshall 1997; Tisdall 1997).We find that very often in Scotland the wording of guidance and legislation includes provisos such as: ‘taking into account age and maturity’,3 ‘when in the child’s best interest’, ‘wherever possible’, or ‘where costs are not prohibitive’. This means that many institutions have ‘get out clauses’ when it comes to including children. For example, schools were given exemption from the Children (Scotland) Act 1995 requirement that those providing services from children should take account of their views (Children in Scotland 1999) and the Standards in Scottish Schools etc (Scotland) Act 2000 states that schools only have to say whether they consulted children about their development plans, there being no requirement that they should consult children. Despite the inclusion in the Act of a requirement that children’s views should be taken into account when considering ‘significant decisions’, schools are under no legal obligation to consult children on everyday matters (see Tisdall et al. forthcoming). As well as this ‘special’ status afforded to schools, the Scottish guidance and legislation (like that in England) (Bell 1993) allow children’s opinions to be overlooked on the grounds of ‘safety’ (when inclusion in decision making processes could harm the child) or ‘competency’ (when the child is not thought capable of understanding the process).