I have a confession: I am a Special Educational Needs (‘SEN’) lawyer and I work mainly for local authorities.
On occasion I work for parents too.
I can’t think of any other branch of law which has put me in the same room as highly experienced psychologists, therapists, teachers, Judges and some diverse and wonderful young persons. It’s amazingly refreshing work.
Every child or young person with SEN is unique. Gaining a thorough understanding of their complexities is an essential part of doing this work. I’ve visited schools and specialist units to help me to grasp the issues.
The same way that speech therapists study those with speech impairments in order to enrich our understanding of how language and the mind work, I feel I’ve learnt valuable insights into communication, emotions and mental health by studying children and young people with SEN.
When I’m in the SEN Tribunal or involved in a judicial review in the High Court, my main concern is about achieving fair outcomes for the child or young person at the heart of the proceedings.
If I think a local authority client has taken an unlawful decision, or should make concessions, I tell them, firmly. I will do the same to a parent if I think they should not bring a costly legal action with no merit.
That’s my job: to give independent, practical and objective advice based on the facts and law.
But there’s a problem in some parts of the legal profession. Some advocates are out to ‘win’, whatever it takes. To meet targets, official or unofficial. They aren’t particularly fussed about fairness. Often they are in-house government officials, or perhaps they work a lot on one side of various legal proceedings.
The Home Office and the Crown Prosecution Service employ some of the worst offenders. They should assist fact-finders to seek the truth, but some of them will try to get away with whatever they can, unless the lawyer on the other side is hawk-eyed and stops them.
Don’t get me wrong. I like winning just like the next lawyer. I’m always trying to win for my clients, whoever they are. The fact that I act for both sides makes no difference to this. Sometimes my clients are loathed by society but I do my best for them, regardless of my feelings about their conduct. That’s a basic professional duty.
But doing the job well requires sensitivity to the way that you behave and interact with others. Legal proceedings are not a competition. They are all too real-life disputes that often deprives vulnerable people of sleep at night and exhausts them emotionally and financially.
This is one of the many reasons why the Baker Small twitter scandal is so wincingly awful and has led to rapid responses from some local authorities. There’s simply nothing to be proud about defeating an opponent if you have the resources of Goliath and they are the size of David. Anyone can do that. They should certainly not be gloating on twitter about defeating parents of children with special needs.
I respect those parents and carers. Not because it’s politically correct, or because I’m afraid to challenge them where necessary. I respect them because they deserve it. Living with children who have complex difficulties magnifies the enormous pressure all parents and carers are under.
I know that, even if my appreciation is second-hand. (I have 2 kids but neither have been diagnosed with education-related difficulties).
That’s why I approach SEN cases with humility. Parents and carers are often a hard act to follow. They know their children’s cases inside out. They have lived experience of the child or young person’s difficulties. They can have a level of insight which most lawyers will never have. Judges on the whole listen with great care to what they have to say.
Parents should be listened to and their feelings acknowledged, rather than patronised and gloated over in a public forum.
There’s a harder-edged legal principle here. In many legal proceedings where a child’s best interests are concerned, the approach to be taken should be investigative and collaborative rather than adversarial. That means that all parties have to explore the facts rather than seek to impose or prove their own preferred version of it. That’s why most of the time you have plenty of independent professional experts involved.
In this sense, SEN cases aren’t really ‘won’ or ‘lost’, as much as Baker Small may have it differently for their own reasons. As some have already pointed out, the entire SEN framework depends on co-operation between parents, local authorities and education institutions. Without it, this network of relationships crumbles and the delivery of provision for children or young persons may suffer as a result. Outside of very extreme cases, there is little to be gained for any local authority who takes, or is seen to take, an aggressive or confrontational approach.
Feelings can run high in Tribunals, but neither side should leave with bridges burning behind them. That approach will corrupt the effectiveness of the system and ultimately could harm families who least deserve it.