Education Law News update : The correlation between the Mental Health Act and the law relating to Special Educational Needs for Children and young persons This weekend it was reported by Sky news that parents whose children with learning difficulties have been sectioned under the Mental Health Act are taking legal action to get them treated closer to home. The local authority have a legal duty to identify and assess the special educational needs of children and young people for whom they are responsible for and produce an Educational, Health and Care Plan or Statement. They must also name the placement requested by the parents in the Plan or Statement, unless the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned; or the attendance would be incompatible with the provision of efficient education for others, or efficient use of resources. Once finalised there is then duty to place the child in the placement named in the Plan or Statement. If required, the placement can be a residential placement with a waking day curriculum, which is used where the child or young person needs to be educated across all of their ‘waking hours’, inside and outside of normal school hours. When deciding which placement is best for the young person, distance is considered. The Government SEN Code of Practice states that if a residential placement is chosen, “so far as reasonably practicable, those placing the child or young person should try to secure a placement that is near to the child’s home. However, in making this decision they must have regard for the views, wishes and feelings of the child or young person and their families about the placement….Where the local authority names a residential provision at some distance from the family’s home, the local authority must provide reasonable transport or travel assistance. The latter might be reimbursement of public transport costs, petrol costs or provision of a travel pass.” The questions in relation to the reported legal challenge are; firstly whether the above detailed duty and guidance changes if the child requires a medical facility, and whether the detention of a child in a medical unit at great distance from the parents, against the parents’ wishes, constitutes deprivation of liberty. What must be remembered at all times is that young people over compulsory school age are presumed the right to participate in decisions about them. However, for those under the compulsory school age, or over but lacking mental capacity, decisions will be taken in the first instance by a representative on their behalf, usually a parent; a deputy appointed by the Court of Protection; or a person with lasting or enduring power of attorney. If the parent refuses to consent to for example a residential placement; to place the child at such a placement would constitute deprivation of liberty, a breach of the child or young person’s human rights, unless there is a successful court order, as noted in the case of Re: D (A Child; deprivation of liberty). This will be an interesting case to follow and we hope the 18 parents are successful in obtaining a closer placement for their children. If you have a child with special educational needs who the local authority is trying to place in an inappropriate setting, please do not hesitate to contact our education team to assist you in your fight for justice.