By Office of the Child, Youth and Seniors’ Advocate – New Brunswick
Child, Youth and Seniors’ Advocate Kelly Lamrock has issued recommendations on means to uphold the rights of children with special needs in New Brunswick classrooms. This follows his office’s review of the “delicate relationship” clause in the educational assistants’ collective agreement under Section 13 (1) (f) of the Child, Youth and Seniors’ Advocate Act.
Lamrock reviewed the practice of changing educational assistants due to union seniority rights. He found cases where these reassignments were carried out without a proper evaluation of the child’s educational needs. Lamrock said this is inconsistent with a school district’s legal obligation to accommodate children with special needs and the moral obligation to place the child’s learning at the centre of the education system.
“The rights of children with special needs should not be used as a bargaining chip to buy labour peace,” said Lamrock. “In some cases, continuity and familiarity are necessary for the child to have the best possible outcome. When school districts avoid even seeking professional advice on those cases, it is a clear violation of the child’s rights. In no other case would it be acceptable for a union and the government to bargain away the human rights of people who lack a voice in those negotiations. It should not be acceptable here simply because children with disabilities lack a political voice.”
Lamrock said the duty to provide service allowing children with disabilities to learn is well established under Section 15 of the Charter of Rights and Freedoms and the New Brunswick Human Rights Act. In 2008, aclause was added to the collective agreement of CUPE Local 2745 to give students with complex and exceptional needs the right to keep the same educational assistant for the duration of the school year, but the advocate’s investigation indicated many districts are refusing to use the clause, or even advise parents of its existence.
“In most cases, educational assistants can switch responsibilities and there is no negative effect on the child,” said Lamrock. “However, this does not excuse the times when districts are refusing to consider evidence that a child needs continuity.”
Lamrock recommends the Department of Education and Early Childhood Development develop a clear policy on the use of the delicate relationship clause and how parents can request that it be considered. He said it should be published on all school district websites where it will be accessible to parents.
He also recommends the department track and evaluate the number of delicate relationships by region, including the reasons this clause is accepted or rejected.
Lamrock said, prior to collective agreement negotiations with any union, legal guidance on human rights issues should be sought by the Department of Finance and Treasury Board, and a child rights impact assessment should be considered for any proposed amendments affecting services to children.
He said the clause should also apply to casual workers and temporary workers, in addition to permanent employees who are members of CUPE Local 2745.
“I urge government to complete the consultation and policy development process by September 2023 to end the practice of bargaining away the human rights of vulnerable children,” said Lamrock.