The law is clear that children with special educational needs and disabilities who are in penal detention centres should receive appropriate provision and support. All secure penal settings are required to carry out an educational assessment of every child who is placed in custody. But how successful is this policy?

According to SEND legal advice charity IPSEA and the Howard League for Penal Reform, two-thirds of children who are in penal detention have some form of special educational needs and that these needs are often mislabelled, unrecognised and unmet. These difficulties can range from learning and communication problems, social, emotional and mental health issues. The Howard League’s work has uncovered failures in the system which do not protect the rights of this group. Indeed, it is thought that over 70 percent of children with SEND in custody are not receiving the help they need.

So what are the legal safeguards for these children?

All children under the age of 18 in England should receive special educational provision and support whilst in custody and if they have an EHC plan, this will remain in place. If the plan specifies health care provision also, NHS England must arrange this while the child is detained.

However, many children in custody who need an EHC plan do not have one and it is believed that they are currently not being given the appropriate support, instead, the focus remains on their post-detention needs.

Currently, there is no requirement to carry out annual reviews of EHC plans of children in custody. There are fewer appeal rights for parents of children over the age of 16 and there is no option to appeal to the SEND Tribunal on provision to meet the health and social care needs of children in penal detention. This needs to addressed urgently as children released from penal detention are likely to have significant social care needs.

IPSEA and the Howard League state that children in custody need to receive their educational entitlements within the existing legal framework and their rights should be strengthened and upheld. Professionals and parents should be supported in bringing legal challenges when necessary, and both legal charities are available to help to advise families with SEN children in custody of their next step in the penal detention system.

IPSEA offers free independent legal advice, support and training to get the right education for children and young people with SEND. Their helpline is: 0800 018 4016

Founded in 1866, The Howard League is the oldest penal reform organisation in the world. Their lawyers provide expert legal advice to anyone aged under 21 in prison. Their advice line is: 020 7249 7373

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