Consultation on excellence and equity for all: guidance on the presumption of mainstreaming

The guidance aims to ensures that local authorities have the guidance required to help their decision making in applying the presumption of mainstreaming.

Annex A – Legal basis

Legal basis

What are the international rights for all children and young people?

The UN Convention on the Rights of the Child (UNCRC), especially articles 28 and 29, enshrine a set of fundamental educational rights for all children and young people.

These essential rights form part of the wider human rights and social justice approach of the Scottish Government. As the UK is a signatory of the UNCRC, the Scottish Government has sought to incorporate the spirit of the convention in our own laws and our policy approach in Scotland. For example, section 1 of the Children and Young People (Scotland) Act 2014 requires Scottish Ministers to keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements, and if they consider it appropriate to do so, take any of the steps identified by that consideration.

The UK has also ratified the UN Convention on the Rights of Persons with Disabilities ( UNCRPD). Article 24 of this convention outlines the rights of disabled children and young people in education.

What are the specific and relevant duties under each piece of legislation?

The Standards in Scotland’s Schools Etc. Act 2000, s2 (1) incorporates article 29 (1) of the UNCRC, stating that ‘ education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential’. This duty is for all children, regardless of whether they require additional support to reach their full potential or not.

In support of this right, the process of deciding whether a mainstream provision is best suited for an individual child or young person has to take account of three interlocking factors:

1) The voice of the child and the three exemptions stated in section 15 of the Standards in Scotland’s Schools Etc. Act 2000.

These exemptions are explained in depth on p.11 – 14 of this guidance.

As always, the important thing with any decision is to get it right for every child and young person. Their voice, and the voice of their parents or carers, should always be considered in the decision making process. This right to be consulted is enshrined in the same piece of legislation, in s15 (4).

2) The duty to accommodate all additional support needs is set out in section 4 of the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) (“the 2004 Act”)

The Supporting Children’s Learning Code of Practice, to accompany the Education (Additional Support for Learning ) (Scotland) Act 2004 (as amended), outlines what the above legislation means in practice.

The Code of Practice is currently being refreshed and will also be revised and published before the end of 2017 – the final version of this guidance will reflect the refreshed Code of Practice.

3) The duty to consider the wellbeing of the child or young person, as outlined in the Children and Young People (Scotland) Act 2014. These duties have not yet been commenced however this practice is well established within the GIRFEC practice model.


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