Article 1 Protocol 1: Peaceful Enjoyment of Possessions - fiddle toy focus

Blog 4 of our 6-part Human Rights in SEND series.

As this blog series has been exploring, the Human Rights Act is a critical piece of legislation that establishes and protects the fundamental rights and freedoms to which every person in the United Kingdom is entitled. One of its less talked about, but equally important provisions is the Right to Peaceful Enjoyment of Possessions, as outlined in Article 1 of Protocol 1. This right ensures that individuals can enjoy their belongings without undue interference.

Click here to learn more about the Right to Peaceful Enjoyment of Possessions.

For children with additional needs, this right can be particularly important. Many special needs children rely on certain items to help manage sensory challenges, regulate emotions, or simply bring comfort. Among these items, fiddle toys or fidget devices are common and play a vital role in their daily lives.

Fiddle Toys and Their Importance

Fiddle toys, also known as fidget toys, are small, handheld objects that can be moved around in various ways. They have become popular tools for children with autism spectrum condition, ADHD, anxiety, and other additional needs. These toys can offer sensory stimulation, reduce stress, improve focus, and can be calming during periods of high anxiety.

For many children with SEN, these toys are more than just games—they are essential tools for navigating the world. They can help children stay focused in school, calm down when overwhelmed, and express themselves in non-verbal ways. Given their significance, it can be crucial that children are allowed to use them without unnecessary restrictions.

What does the right to Peaceful Enjoyment of Possessions cover?

Under the Human Rights Act, the right to peaceful enjoyment of possessions means that individuals should not be deprived of their belongings without justification, and they should be free from arbitrary or disproportionate interference. This right extends to all possessions, including those used by children for therapeutic or comfort purposes.

In the context of fiddle toys, this right implies that children should be allowed to use these items in settings where they are needed. This could include classrooms, playgrounds, or other public areas, without undue interference or discrimination. Restricting access to these items could be an unlawful restriction of the right to peaceful enjoyment of possessions, as a non-absolute right, any restriction must be lawful, legitimate and proportionate.

This means that if a child is to have their fiddle toy taken from them, there must be a law that says that may happen, it must be for a good reason, and it must be the least restrictive option for achieving the ‘good reason’. This is called the ‘Three-stage test’ and school’s must be able to show any decisions meet this test in order to be rights respecting.

The HRA puts a duty onto all public bodies to respect, protect and fulfil human rights in all decisions they make. Click here to find out more about the Human Rights Act and who has duties. It also puts this duty onto anyone else who is performing a public function.

Examples of people who are performing public functions in the SEND sphere include:

People who work for the local authority: EHC case workers, social workers, educational psychologists, speech and language therapists, the SEN team.
Local authority run schools.
Private specialist schools where places are funded by local authorities.

In SENDIASS it’s important to say that academies have been held to be duty bearers for other pieces of legislation - as yet there hasn’t been a legal case to confirm this position regarding the HRA, but it is highly likely to be the case. This means that the HRA can also be used to challenge academies, which can otherwise be very difficult as they are not beholden to a local authority and formal complaints process can be notoriously hard to access effectively.

This means that the HRA can be used at any and all stages of securing the SEND support that children and young people are entitled to. This can be particularly useful in the stages before a formal appeal to the SENDist tribunal, as it can bolster a case to the point where a local authority will see no point in continuing to refuse support than can be shown to be necessary. Having an additional piece of legislation to use as evidence of the local authorities' obligations in a case will always be useful and the same can be said for lending weight to any other form of formal or informal complaint.

Abel's Story

Abel is 8 and although he is waiting for a diagnosis of Autism Spectrum Condition, he doesn’t have one yet. He has also just started on a new SEN Support Plan in school, which does offer him some differentiation and additional support. However, the school does not allow him to have his fidget toy in all his classes. Their argument is that he is allowed it sometimes, he doesn’t have a diagnosis or an EHCP, and it distracts other children who think it is a toy.

Abel’s parents have tried to explain that he needs it in all his lessons where they have to sit down for extended periods as it helps him to regulate himself and focus better. The school say they have a policy against any toys in class, and that allowing Abel to have his fidget toy in one lesson a day is already very generous of them as they don’t normally do that.

When Abel does not have his fidget toy, he is clearly less focused, finds sitting still harder and sometimes gets frustrated when he is unable to understand a task. This has led to Abel feeling less and less comfortable in the classroom and his behaviour at home is suffering because of his distress.

Using the Human Rights Act, Abel’s parent’s were able to explain to his SENCo that although the Education Act (Lawful reason) may say that school’s are allowed to ban distracting items from the classroom in order to promote effective learning (legitimate aim), taking it from him would not be the least restrictive option to achieve that for Abel (proportionate). For Abel it is not just a toy, but an essential possession that he needs to access learning properly, and the removal of it means he is distressed and frustrated.

The school had not though about Abel’s fiddle toy from a human rights perspective and agreed that he should be allowed to have it in all classroom lessons, regardless of a SEN Support plan or diagnosis. They could not justify an arbitrary ban on fiddle toys, as it was not the least restrictive option for children who need them, and therefore would be unlawfully restricting their right to peaceful enjoyment of possessions.

Challenges and Misunderstandings

Despite the clear importance of fiddle toys for many children , there can be misunderstandings about their use. Some schools or public spaces may view these toys as distractions or unnecessary gadgets. As a result, children might face restrictions on using them, which can lead to increased stress, decreased focus, and a sense of exclusion.

These challenges highlight the need for greater awareness and education about the importance of fiddle toys. By understanding their significance and the rights that protect their use, educators, caregivers, and policymakers can ensure that children with special educational needs and disabilities are not unjustly deprived of these essential possessions.

Promoting Understanding and Inclusion

To support the rights of children, it's essential to foster an environment of understanding and inclusion. This involves:

Education and Awareness: Educating teachers, caregivers, and the public about the benefits of fiddle toys for children who need them can help reduce stigma and prevent unnecessary restrictions.

Inclusive Policies: Schools and public spaces should adopt policies that recognise the importance of fiddle toys and other therapeutic tools, ensuring that children can use them without hindrance.

Respect for Rights: Upholding the right to peaceful enjoyment of possessions means respecting the needs of children and allowing them to use the tools that help them navigate their environments effectively.

Practical things you can do

Read our resources on all rights protected under the Human Rights Act: All rights explained here.

Include any human rights concerns in formal complaints to schools or the local authority itself. As well as in any submissions to the SENDist Tribunal. We will have model letters available soon and include the link to those in our next blog.

Our blog series over the next few months (finishing in April 2024) is going to look at:

Brief introduction to the Human Rights Act and how it can be used, using Article 8 as an example. Click here to read this blog.
Article 3 with a focus on residential schools and very high care needs students.
Blanket policies in schools – uniforms and behaviour policies etc. also building on Blog 3 about phones.
Article 1 Protocol 1, fiddle toy focus (this blog)
School Transport.
A practical tool to use – a letter template for bring up human rights issues with public bodies.

You will be able to find all published blogs here: BIHR Blogs

All our SEND specific and SENDIASS blogs are here: SEND blogs

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Find out more about workshops for SENDIASS and LA practitioners: Click here for more info.