Subjects of rights, not objects of concern: reclaiming agency in the SEND reforms

by Jacqui Lewis

The Department for Education’s recent white paper, Every Child Achieving and Thriving, alongside the consultation Putting Children and Young People First, articulates an ambitious commitment to reform SEND support. Framed through rights-based inclusion, early intervention and improved consistency, the vision of a system where every child can achieve and thrive is clearly set out.  But, if these reforms are to be truly rights-based, a deeper question emerges. Are children, particularly those under 5, being positioned as subjects of rights with agency, or as objects of concern within a system designed around adult interpretation? For the youngest children whose voices are communicated through gesture, play, and relationships rather than formal consultation this is not simply a matter of language, but of participative rights. It speaks to whether their ways of expressing meaning are recognised as valid contributions, and whether their agency is genuinely included in the decisions that shape their lives.

The reforms rightly position inclusion as a rights-based endeavour, drawing on international frameworks that emphasise belonging, access, and high expectations. The reforms also acknowledge the need to move away from lengthy, challenging processes and toward earlier, more responsive support. Proposals such as National Inclusion Standards, Individual Support Plans (ISPs), and a tiered system of universal, targeted, and specialist provision, articulate a desire to act sooner, reduce red tape, and ensure consistency. However, explicit participation remains unevenly realised, particularly for children under 5, in both the vision and consultation.

For our youngest children, “voice” is rarely verbal or easily captured through consultation documents, surveys, or structured dialogue. Instead, it is expressed through gesture, play, interaction, engagement, withdrawal and silence.  It is relational, embodied, and deeply contextual. While the consultation expresses gratitude to children for their contributions, the mechanisms used to gather those contributions largely rely on adult interpretation, including parents, practitioners, and professionals acting as proxies. Of course, this reflection does not seek to diminish the powerful and integral advocacy of parental or professional voice. Neither does it seek to reject, for example, the vital work of organisations such as the Council for Disabled Children, who amplify the voices of those whose perspectives are often marginalised. However, with regards to these reforms, work has typically focused on older children, leaving a critical gap in how the participative rights of the under-5s are directly realised within the reform process. As we well know, early childhood is a critical period that shapes a whole life, making meaningful participation essential.

A rights-based approach to inclusion must extend beyond access and provision to uphold participation in decision making, especially given the scale and significance of these reforms for a child’s early years. When consultation processes rely on text, abstract concepts, or adult interpretation, they risk excluding those who communicate differently. “Easy-read” versions do exist, but do they go far enough to capture the scale and consequence of such reforms, especially for our youngest children? The absence of developmentally appropriate, play-based consultation tools for under-5s suggests a gap between the aspiration to “put children first” and the mechanisms available to do so.

At the same time, the proposed reforms introduce a significant structural shift. Moving towards ISPs and a tiered model is designed to get support to children and families more quickly. For many this could improve access to early help, but for those in the sector it raises a crucial question, how do we ensure that as duty bearers, children’s rights are not only recognised on paper, but actively upheld in practice? Education, Health and Care Plans (EHCPs) currently provide a statutory “must”, a legally enforceable guarantee of provision. In contrast, the emerging framework of guidance, standards, and ISPs may operate more as a “should”, relying on consistent implementation across settings. While flexibility is essential in early years, there is a risk that, without clear legal weight, support may become variable, particularly for children with less visible needs, or for families less able to challenge decisions. This palpable tension between responsiveness and legal certainty is at the heart of the reforms.

Importantly, early childhood education does not begin from a deficit position. High-quality early years pedagogical practice is already inherently inclusive. Through play-based curricular, flexible expectations, and relational key-person systems, early childhood educators routinely adapt environments and interactions to meet the unique needs of each child. For many educators, responsiveness to each child is inseparable from their professional identity. Differentiation is not delayed by process, but immediate, a daily practice to seek connections and make a difference. The introduction of National Inclusion Standards and increased training investment offers an opportunity to strengthen and share this expertise more consistently. However, inclusion cannot be reduced to a set of resources, a building or embedded through the threat of compliance measures.  It is a culture, one built on attunement, trust, and the image of a child as a competent, agentic individual, which requires a presence in policy.

As the consultation remains open, there is a valuable opportunity to deepen this vision. This includes considering how participation can be meaningfully extended to under-5s through visual, play-based, and relational methods. To also slow down and consider how ISPs can not only capture children’s individual needs, but their expressed preferences and choices and how legal frameworks can maintain both flexibility and protection. Ultimately, the success of these reforms will not only depend on what is implemented, but significantly, how children are positioned within such implementations.True reform must move beyond children as objects of concern and instead recognise them as subjects of rights, building a system that actively enables the agency of the child, the family, and the educator, creating a culture of mutual trust and legal certainty, where our children, families and workforce are truly inspired and ready to re-engage.

This reflection is grounded in children’s participative rights, primarily Article 12 of the UNCRC, which affirms that every child has the right to express their views in decisions that affect them, and that those views should be given due weight.

Other relevant rights include Article 2 (non-discrimination), Article 5 (guidance from parents and caregivers), Article 23 (children with disabilities), Article 24 (right to health), Article 28 (right to education), and Article 29 (goals of education), highlighting that inclusion, support, and meaningful participation are inseparable from a child’s entitlement to thrive.

Jacqui Lewis is an Early Education Associate, a Makaton tutor and a Research Associate on an ESRC funded project exploring children’s participative rights

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