COLLECTION OF EVIDENCE OF PRACTICES THAT PREVENT DISABLED CHILDREN FULLY PARTICIPATING AT THEIR LOCAL SCHOOL

Introduction

IHC is currently preparing a complaint to the Human Rights Commission against practices that exclude disabled children from participation at their local school. The aim is to obtain a declaration under Part 1A of the Human Rights Act that such practices breach the right to freedom from discrimination contained in s 19 of the New Zealand Bill of Rights Act.

The complaint is not being made by an individual or a group of individuals. IHC is the complainant and will become the plaintiff in proceedings should this be necessary. This means that no family or individual will be necessarily subjected to the scrutiny of the judicial process.

It is also important to note that no individual school is being targeted. The complaint is against the Attorney-General on behalf of the government. This means that no individual school will necessarily be required to explain its practices or be accountable in any way.

However, it will still be necessary to show the nature and extent of the problem by way of evidence of what actually happens. Part of the evidence will include families telling their stories. While this will involve families naming the school at which the discriminatory practices were experienced, this will be done simply as part of the evidence. It must be remembered that the challenge is not against a child's local school.

The purpose of this letter is to outline exactly what it will mean for those who provide evidence of their experiences in order to give families and individuals the opportunity to explore the possibility of becoming involved. It is our intention that you give this letter directly to families for this purpose.

Balancing the need for individual participation with protection of participants' interests

Before explaining the process, it is important to acknowledge the difficulties that many families may have participating in such an exercise, especially given that there will be experiences and situations that involve sensitive subject matter. Such difficulties would vary considerably and may range from issues around potential harm to relationships with schools through to the need to recollect experiences many of us would probably wish to forget. Such difficulties are real and must be acknowledged in the way we conduct the complaint.

Having said that, the testimony of families and individuals are essential components of the complaint. It is critical that we document precisely what happens to show both the nature and extent of the problems and the consequences for those affected. We must be able to provide evidence of the existence of the practices and show the negative effects on students and their families in order to prove the existence of discrimination. The voices of people who have experienced the discriminatory practices complained of are vital to the success of the action.

At the same however, it is equally important that we do all that we can to ensure people know exactly how the complaints process works, that informed decisions are made as to participation, and that all is done to protect the individuals who do provide evidence.

Subject of complaint

New Zealand's education policy focuses largely on the benefits of ensuring that all children with disabilities are able to participate fully at their local school alongside other children of the same age. The Education Act gives parents of children with disabilities the general right to choose an inclusive education for their child. Inclusive education is acknowledged within the New Zealand Disability Strategy and the United Nations Convention on the Rights of Persons with Disabilities as central to ensuring inclusive communities.

However, the reality for parents who attempt to choose an inclusive education for their child is quite different. Parents regularly report instances where their children are unable to access an inclusive education. Practices are many and varied but include for example limiting attendance because of a lack of support, requiring parents to financially contribute to teacher aide hours, through to refusing enrolment altogether.

It is these types of practices that IHC believes are discriminatory, and that are the focus of the complaint.

Gathering of evidence

Evidence will be collected from a number of different sources, including academics, teachers, parents and others. Most evidence will be in the form of written statements together with any supporting documents such as letters to and from school principals, boards of trustees, the Ministry of Education etc. Supporting documents would be useful but are not strictly necessary. It is the stories of people affected that are our key concern.

We wish to hear from parents who have experienced negative treatment towards their child within the education system because of one or more of the range of practices that in one way or another has resulted in exclusion from full participation at their local school. Practices may range from exclusion from school camps, being required to go home when teacher aides are not available, being required to make financial contributions to teacher aide hours, through to refusals to enrol. These are examples only. There are many other practices we believe are discriminatory.

We would provide all the support necessary to assist parents put all of their information together, after which the final written statements would be put into affidavit form and sworn before a JP, solicitor or court registrar. This is a fairly simple process but formalises the statements as official evidence that the particular practice complained of did actually occur.

It is important to point out that it is not necessary for a particular practice to still be occurring. We are very interested to hear from parents who may have experienced difficulties that are no longer of concern to them, for example because the problem has been resolved or the student no longer attends school. We intend to show not only the nature and extent of the problem, but also the unacceptable length of time the discriminatory practices have been with us.

Complaints process

IHC hopes to lodge the complaint with the Human Rights Commission before the end of March 2008. We will still be collecting evidence well after this date. The initial complaint will be for the purpose of outlining the nature of our concerns and will include a limited amount of evidence from parents and academics in order to show the Commission that the issue is serious enough to warrant further investigation.

After some preliminary discussions the Commission will decide whether the complaint has substance and whether it is possible for a resolution to be reached through a mediation process. Failing mediation the complaint is then passed on to the Director of Human Rights Proceedings who then decides whether or not to provide the complainant with representation at the Human Rights Review Tribunal. There are also a number of other options open to the Director, for example referring the complaint back to the Commission for further action, including further mediation.

If the Director decides to represent the complainant another opportunity for mediation exists. Again, if this fails the matter is referred to the Human Rights Review Tribunal for hearing. If the Director decides not to provide representation, the complainant can then choose to take the matter to the Tribunal on their own behalf.

Participants can withdraw at any time

It is important to note that the experience of parents is for the purpose of providing evidence only. Parents and families are not required to become a party to the complaint. For this reason we envisage that the names of people will not be made public. However, regardless of the reasons, participants can withdraw their involvement at any time.

All participants will be regularly informed of all developments as the complaint progresses. At this stage we have a general idea of how the complaint is likely to proceed, but it is important that participants are able to make decisions about their continued involvement as each stage progresses. The process may even unfold in ways not envisaged, in which case it is of greater importance that participants are given the opportunity to decide whether to continue involvement or not. We will give all participants that opportunity at every stage.

Desired result

As mentioned above, ideally we are seeking a declaration from the Human Rights Review Tribunal that practices that cause students to be excluded from full participation at their local school on the basis of disability are discriminatory under Part 1A of the Human Rights Act. Declarations do not deem acts complained of unlawful, but they are solid reminders that the government agency involved is falling short of what is expected within its area of responsibility. For example, Parliament is informed of any breach, and questions are asked around why the discriminatory practices are occurring. If a breach is found, the agency concerned at least ought to consider ways of addressing the causes of that breach. For this reason it is important that the complaint goes ahead. All must be done to address the difficulties parents of children with disabilities have faced for a very long time.

All enquiries regarding the complaint and ways to become involved can be made by email to: tony.mcgurk@ihc.org.nz or by phoning 0800 442 442. Postal address is:

Tony McGurk
IHC Advocate
PO Box 4155
Wellington

Yours faithfully

Trish Grant
Director of Advocacy