De-centring inclusion: Discussing the meaning and place of inclusive education in international and European law through the case of children with autism

2.1 Autism

Autism can be defined as a neurodevelopmental condition characterised by differences in sensory processing, cognitive functioning, communication, and social interactions. ²⁰ While acknowledging that there is no consensus on the preferred terminology, this paper uses the term autism to encompass all shades of the autism spectrum. ²¹ It also adopts a person-first language (i.e., children with autism) to align with the publisher preferred terminology.

Due to its very nature and high heterogeneity, autism raises specific and complex issues in the field of education. ²² For example, the Council of Europe has recognised that persons with autism ‘present specific [educational] needs that are qualitatively different from other special needs and require specific understanding and approaches to meet them’. ²³ Authors have also highlighted that the specificities of the functioning of children with autism reinforce the current challenges and shortcomings in the interpretation of inclusive education as mainstream inclusion. ²⁴ As such, while the reflections developed in this paper are potentially applicable to other disabled populations, they are primarily centred on and informed by the case of children with autism.

2.2 Inclusive education

The concept of inclusive education has been gradually developed by human rights law up to its express enaction in Article 24 of the CRPD. However, despite its widespread recognition, there is still no agreement on what inclusive education precisely means. ²⁵ The CRPD Committee has endeavoured to provide some clarifications through its General comment no. 4, ²⁶ in which it has explained the difference between the notions of exclusion, segregation, integration, and inclusion. Briefly summarised, exclusion is defined as denying children with disabilities the access to any education; segregation as the systematic isolation of children with disabilities in separate environments; and integration as the mere placement of children with disabilities in existing mainstream educational institutions. ²⁷ In contrast, inclusion is conceived as:

a process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with a vision serving to provide all students of the relevant age range with an equitable and participatory learning experience and the environment that best corresponds to their requirements and preferences. ²⁸

This General comment nonetheless leaves many questions unanswered. As it will be developed throughout this paper, uncertainties as to the exact meaning to give to inclusive education persist both between and sometimes within the different international and European human rights texts and bodies.

2.3 Educational offers and settings

It is recognised that terms such as mainstream or special can be problematic and contested. ²⁹ However, to facilitate the discussion, the paper will make use of these terminologies. For the purpose of the paper, mainstream education refers to the regular education provided to children by their State. It covers both notions of settings (e.g., mainstream schools and classrooms) and teaching (e.g., pedagogies, curriculum). Special education refers to the education specially provided to some children by their State, whether based on their diagnostics, educational needs, or other criteria. It also covers both notions of settings and teaching. Alternative education refers to non-school-based forms of education, such as homeschooling, tutoring, or remote education. Depending on national systems, both mainstream, special, and alternative education can be provided through public or private institutions.

3.1 Inclusive education as non-discrimination and substantial equality

In international and European law, the right to education, like all human rights, is to be realised without discrimination. In this regard, both the CRC, the ECHR and the revised ESC prohibits discrimination on the ground of disability, either expressly or as developed through case-law. ³⁰ The CRPD reiterates such a prohibition. It also supplies a textual definition of disability-based discrimination, ³¹ which can be read as providing not only for a formal right to non-discrimination, but also for a substantive or transformative approach to equality. ³²

Regarding the right to education, States are therefore not only prohibited from adopting or maintaining legislation or practices which would deny or restrict the access to education of children with disabilities. They are also required to adjust and transform their existing educational system to facilitate the enjoyment of their rights by children with disabilities. Indeed, one of the major achievements of the CRPD, especially concerning the realisation of the right to education, is constituted by the express formulation of an accessibility duty, ³³ support measures, ³⁴ and reasonable accommodations. ³⁵ In addition to a right to non-exclusion from education, these legal mechanisms endeavour to provide substantial equality to children with disabilities. As introduced below, the CRPD Committee has provided detailed definitions of these mechanisms.

Accessibility constitutes an unconditional and ex ante duty, operating at a collective level. ³⁶ It imposes on States to take all appropriate measures to transform their society, and here in particular their education system, so it can deliver substantial equality and inclusion to disabled people. ³⁷ Accessibility is however subject to a progressive realisation obligation, which requires states to take all the measures necessary, to the maximum of their available resources, to progressively achieve the full realisation of the rights concerned. ³⁸ In this regard, Article 24 expressly requires for the provision of support measures. ³⁹ Support measures are ‘general measures’ which ‘aim at adapting the general education system with a view to making it accessible to children with disabilities’. ⁴⁰ While situated at the group level, these support measures can be more or less individualised according to the needs in presence. ⁴¹ As part of the accessibility duty, they also remain under a progressive realisation obligation only. ⁴²

Besides accessibility and support measures, the CRPD also provides for a right to reasonable accommodations, which are defined as adjustments directed to the individuals and their specific requirements in order to provide them with substantial equality. ⁴³ In contrast to support measures, reasonable accommodation constitute an ex nunc duty that exists upon the needs of an individual. As part of the non-discrimination principle, reasonable accommodations are of immediate application. ⁴⁴ However, they are not unconditional. Indeed, to be legally required they must first be feasible, both legally and materially. As the CRPD Committee itself has mentioned in its General comment no. 6, ‘an accommodation that is legally or materially impossible is unfeasible’. ⁴⁵ In addition, reasonable accommodations can be refused if they would create an undue or disproportionate burden for the duty bearer. ⁴⁶ Both financial costs and organisational or structural issues can therefore justify a denial of reasonable accommodations. ⁴⁷ Whether a reasonable accommodation creates an undue or disproportionate burden is to be evaluated on a case-by-case basis, also considering the impact it would have on third parties. ⁴⁸

While expressly required in the CRPD only, the questions of accessibility, support measures, and reasonable accommodations have since then been addressed, to a lesser extent, by other human rights bodies. For example, although not featuring an express provision on the subject in its Convention, the CRC Committee now also regularly refers to the question of accessibility. ⁴⁹ This can be seen in its Concluding observations where it frequently recommends states to ‘increase the accessibility of public facilities, including schools’, ⁵⁰ ‘take [the] measures necessary for improving the accessibility to and the quality of education’ ⁵¹ or ‘ensure the high quality and accessibility of public education’. ⁵²

Similarly, while neither the revised ESC nor the ECHR contain specific dispositions on accessibility, they have, to some extent, addressed this topic in their decisions. For example, the ECSR regularly cites Articles 24 and/or 9 of the CRPD in its decisions. ⁵³ Conceding that providing children with disabilities with inclusive education might be exceptionally complex and costly, it nonetheless requires States to realise this right in a reasonable timeframe, with measurable progress and to the maximum of their available resources, ⁵⁴ which resembles the progressive realisation obligation of accessibility existing under the CRPD. The ECtHR also regularly cites the articles of the CRPD and considers that its Convention must be interpreted in accordance with other relevant international norms and consensus. ⁵⁵ While not referring to an accessibility duty per se, it has repeatedly required that States operate a balance between the educational needs of their population and their own limited capacity, when regulating the right to access to education. ⁵⁶ Similarly, on the one hand, the Court considers that it is the responsibility of the States to define the means to address the educational needs of children with disabilities. On the other hand, the Court maintains that in doing so States must be particularly attentive of the impact of their decision on vulnerable groups, including children with autism. ⁵⁷ They must also respect the principle of non-discrimination, which might require the use of differentiated treatments when necessary to correct substantial inequalities. ⁵⁸

While offering different levels of requirement when it comes to accessibility, all these human rights bodies have adopted the notion of reasonable accommodations. While not initially mentioned in neither the CRC, the revised ESC nor the ECHR, the requirement of reasonable accommodations, as defined by the CRPD, has since been gradually adopted by all of their bodies, including in relation to the education of children with disabilities. The ECtHR has for example recognised that the principle of non-discrimination (as prescribed in article 14 ECHR) was to be read in light of the requirements of other international treaties regarding reasonable accommodations. ⁵⁹ Similarly, the ESCR has considered that an unjustified failure to provide reasonable accommodation constituted a discrimination. ⁶⁰ The CRC Committee also regularly requires states to provide reasonable accommodations to children with disabilities, including in educational contexts. ⁶¹

More than a formal right to non-discrimination and non-exclusion from education, children with disabilities therefore benefit from what can be phrased as a right to substantial equality in the enjoyment of their right to education. Mainly introduced by the CRPD, the legal mechanisms available to realise this right – accessibility, support measures, and reasonable accommodations – and their limitations – progressive realisation and undue or disproportionate burden – have also been adopted by other human right bodies, although to varying degrees. However, what constitutes this substantial equality and what inclusive education means, appears harder to define. Although not limited to this topic, the question of settings has remained central to these debates. ⁶² On this point, as it will be developed below, the CRPD Committee has contributed to crystallising the conception of inclusive education as necessarily realised in mainstream settings, which appears highly problematic.

3.2 Towards a conception of inclusive education exclusively in mainstream settings?

While the previous legal environment privileged the co-existence of both special and mainstream settings in the realisation of inclusive education, the CRPD Committee appears to be progressively requiring the latter as the only option. Indeed, while being one of the most debated issues during the drafting process, and although the text of Article 24 does not refer to mainstream or special education nor schools, ⁶³ the CRPD Committee has repeatedly imposed full inclusion in mainstream schools as the only way to realise inclusive education. To start with, in its General comment no. 4, the CRPD Committee has expressly stated that maintaining mainstream and special education systems was contrary to the progressive realisation of the right to inclusive education. ⁶⁴ Similarly, through its review of inquiries and communications, it has called for the abolition of special education systems ⁶⁵ and required that ‘all students [be] accepted by all schools regardless of their abilities’. ⁶⁶ Through its Concluding observations, the CRPD Committee has also gradually imposed full inclusion in mainstream schools. Indeed, it first began with requiring that States ‘[e]nsure that the decisions to place children with a disability in a special school or in special classes […] are taken in consultation with the parents’ ⁶⁷ and deploring that ‘parents of children with disabilities cannot decide freely on the type of education and services provided to their children’. ⁶⁸ However, it has then progressively moved on to requiring that States grant ‘all students with disabilities, regardless of their personal characteristics, the right to access inclusive learning opportunities in the mainstream education system’ and to precluding any education in special settings, assimilating it to a breach of the right to inclusive education. ⁶⁹ For example, it has repeatedly deplored the persistence of national laws allowing for education in special schools, even as an exception, ⁷⁰ qualified the existence of ‘“model schools” for deaf, blind […] as well as for students with autism [as] a form of segregation and discrimination’, ⁷¹ and denounced ‘the persistence of a dual education system that segregate children with disabilities in special schools including based on parental choice’. ⁷² It should be noted that the CRPD Committee does not consider that the placement of children with disabilities in mainstream settings amount, in itself, to inclusion. ⁷³ Nonetheless, it has progressively developed a conception of inclusive education as exclusively realised in mainstream settings.

The positioning of the CRPD Committee seems to have had a non-negligible influence on other human rights bodies. To start with, the CRC Committee, which had initially adopted a broader understanding of inclusive education, has recently tended to align more and more with the CRPD Committee's position. ⁷⁴ Indeed, initially, in its General comment no. 9, the CRC Committee had expressly stated that ‘the manner and form of inclusion must be dictated by the individual educational needs of the child’ and that ‘the extent of inclusion within the general education system may vary’. ⁷⁵ It had considered that ‘[a] continuum of services and programme options must be maintained in circumstances where fully inclusive education is not feasible to achieve in the immediate future’. ⁷⁶ Therefore, it had concluded that ‘the term inclusive may have different meanings’ and ‘can be achieved by different organisational means which respect the diversity of children’. ⁷⁷

While it still regularly refers to this General comment, when looking at its Concluding observations, one can however notice a shift towards mainstream settings. ⁷⁸ For example, while it has encouraged the inclusion of children with disabilities in the mainstream system from the beginning, it usually required so only when possible, ⁷⁹ to the maximum extent, ⁸⁰ or in priority. ⁸¹ Throughout the last decade however, it has been increasingly, although not systematically, requiring such inclusion with no added limitations ⁸² and even without parental consent. ⁸³ In addition, the CRC Committee has recently issued a joint statement on the rights of children with disabilities, together with the CRPD Committee, where they state that ‘the right to quality inclusive education is not compatible with sustaining two systems of education: a mainstream education system and a special/segregated education system’. ⁸⁴

The CRPD Committee also seems to have contributed to a shift towards mainstream settings in the European human rights bodies’ conception of inclusive education, although so far to a lesser extent. To start with the revised ESC, it provides for the right to education of children with disabilities to be realised in either mainstream settings or in special settings. ⁸⁵ However, the wordings used in recent decisions of the ESCR could be interpreted as calling this latest possibility into question. ⁸⁶ A careful reading of these decisions nonetheless confirms that, although the priority given to mainstream over special education has significantly increased throughout the last decade, education in special settings is still permitted and must be provided to the extent required. ⁸⁷

The ECHR appears to also remain more cautious when it comes to the question of educational settings. While acknowledging that inclusive education, understood as mainstream inclusion, has been recognised as the most appropriate means to guarantee non-discrimination in education for children with disabilities, the ECtHR still considers that national authorities are the most competent to decide how to meet the needs of children with disabilities. ⁸⁸ Although the wording of its recent judgements appears strongly in favour of inclusion in mainstream settings, the Court does not consider special schools as being in violation of the right to education of children with disabilities. ⁸⁹ In addition, it has repeatedly stated that the refusal to admit a disabled child in a mainstream school is not in itself discriminatory or contrary to their right to education. ⁹⁰

Overall, while repeatedly acknowledging and drawing on the CRPD, both the ESCR and the ECtHR have so far retained a more nuanced position regarding the possible settings of inclusive education. However, both subscribe to the principles of evolutive interpretation and European consensus and the possibility of a closer alignment with the CRPD Committee's position in the near future remains therefore open. ⁹¹

3.3 The risk and perils of conceiving inclusive education exclusively in mainstream settings

The CRPD Committee, in line with other proponents of full mainstream inclusion, assimilates the schooling of children with disabilities in separate settings to segregation. ⁹² While this paper recognises that special schools can be – and have been – vectors of poor-quality education and segregation, these characteristics should not be interpreted as inherent to those settings, but rather as contextual. ⁹³ Similarly, while there is merit to privileging the education of children with disabilities alongside their peers, including their siblings, and in close proximity to their residence, such merit should be balanced against other factors. ⁹⁴ As such, it appears that conceiving inclusive education as necessarily realised in mainstream settings, coupled with a prohibition of special settings, seems questionable for several reasons. As it will be developed below, this paper contends that such a conception appears overall legally misguided and could have detrimental consequences, especially in the case of children with autism.

To start with, while dynamic interpretation of treaties is not only permissible but needed for their durability, ⁹⁵ such an interpretation is bound by international law ⁹⁶ and must remain limited so as to avoid abuse of power. On this note, it might be important to underline that neither the formulation and drafting history of Article 24, nor the current practices of States Parties allow for the reaching of a consensus on the definition of inclusive education, and even less so on the prohibition of special educational settings. ⁹⁷ In fact, the notion of ‘environments which maximise academic and social development’ mentioned in Article 24§2 (e) and 3(c), has been interpreted by some as referring to diverse, including special and separate, educational settings. ⁹⁸ In addition, the UK has retained an express declaration in relation to Article 24 of the CRPD, stating that: ‘The General Education System in the United Kingdom includes mainstream, and special schools, which the UK Government understands is allowed under the Convention.’ ⁹⁹ Thus, imposing the interpretation of inclusive education only as full inclusion in mainstream schools appears problematic.

Furthermore, the CRPD Committee itself has also repeatedly explained that the CRPD did not create additional or specific rights for disabled persons. In that regard, children without disabilities do not have a right to full inclusion in mainstream schools. ¹⁰⁰ Instead, they have the right to a quality education, governed, as other human rights, by the principles of equality and non-discrimination. It has been established in international law that the right to education does not equate to schooling and can be realised through different options. ¹⁰¹ While it is true that most Western countries have chosen to deliver their public education through brick-and-mortar (i.e., physical) schools, this merely constitutes a logistic choice and other alternatives are sometimes used as well. ¹⁰² The CRC Committee has even underlined the potential importance of alternative or non-formal education for children with disabilities. ¹⁰³ Defining the right to inclusive education of children with disabilities as necessarily full inclusion in mainstream schools would therefore both create a specific right, which is not recognised to children without disabilities, and restrict the common right to education they benefit from as children/human beings.

Moreover, it appears important to recall here that education is one of the only human rights that should be made mandatory for the right-holders, if only at the primary education level. ¹⁰⁴ If inclusive education is exclusively understood as full inclusion in mainstream schools, children with disabilities would then be required to attend (primary) mainstream schools. This would impose an additional duty on them compared to children without disabilities for whom only education – not schooling – is compulsory. ¹⁰⁵ It would also infringe the right to educational freedom of parents to choose the type of (quality) education to be received by their children, ¹⁰⁶ which is part of the core obligations of the right to education. ¹⁰⁷

Finally, as previously described, the legal means to realise inclusive education are limited, either by the progressive realisation of the accessibility duty or by the risk of reasonable accommodations creating an undue or disproportionate burden. Thus, there is a possibility that for some children, neither the progressive realisation of the accessibility duty nor the required reasonable accommodations will be enough to provide quality education in mainstream settings. ¹⁰⁸ For these children, conceptualising inclusive education as only and necessarily full inclusion in mainstream schools would then leave them only with a right, if not a duty, to attend a poor-quality education.

On this note, while they might also apply to other disabled populations, the consequences of conceiving inclusive education as only realised in mainstream settings appear especially detrimental in the case of children with autism. Indeed, the topic of inclusive education has proven to be particularly challenging when it comes to this population. ¹⁰⁹ For instance, children with autism are regularly reported as one of the hardest populations to include in mainstream settings ¹¹⁰ and have poorer educational experience and outcomes than other groups of children with disabilities. ¹¹¹ These difficulties seem to arise from a lack of knowledge and understanding of the autistic functioning, from the high heterogeneity and regularly evolving needs of children with autism, and from the conflicting characteristics of autism and mainstream education. ¹¹² Indeed, the social, communicative, and sensory specificities of children with autism might enter in conflict with some of the core characteristics of mainstream schools. For example, children with autism have social specificities which often render prolonged social exposition, especially in large groups, particularly exhausting. ¹¹³ Their sensory specificities regarding lights, noises, smells, touch, and movements – while varying greatly – are also often at odds with any kind of collective environment. ¹¹⁴ However, even though States would progressively realise their accessibility duty and provide the required reasonable accommodations, it appears hard to conceive how they could implement mainstream schools which would not involve large groups of children, long hours of socialisation, and high levels of sensory stimulation. All of these characteristics will then create challenges for children with autism, ranging from temporary discomfort to unsustainable levels of anxiety. ¹¹⁵ On this note, authors have denounced that most reasonable accommodations regularly employed to address these difficulties – such as noise cancelling headphones or quiet rooms – actually rely on an exclusion logic and can be seen as forms of internal segregation. ¹¹⁶ Thus, while there is little doubt that rendering mainstream schools more inclusive, as legally required, would facilitate the inclusion of some children with autism within these settings, it appears that they cannot be rendered inclusive for all of them. For some children with autism, it is likely that neither the progressive realisation of the accessibility duty nor reasonable accommodations will be sufficient to render mainstream settings compatible with their needs and functioning. If inclusive education is conceived as necessarily realised in mainstream settings, this will therefore leave them without any rights-abiding educational offer. ¹¹⁷

As such, autism raises many challenges in providing access to education. ¹¹⁸ Furthermore, it underlines the need to not only render mainstream settings more inclusive, but to also develop quality and inclusive special and alternative educational offers. As addressed in the following section, such an endeavour will be facilitated by re-placing quality and children's rights at the centre of the conception of the right to education of children with disabilities and/or autism.

4.1 Inclusive education and quality education, two sides of the same coin?

To ensure a more holistic approach to the right to education of children with disabilities and/or autism, inclusive education and quality education have to be conceptualised and realised in accordance with each other. After briefly introducing the legal notion of quality education, the following paragraphs will therefore underline its relationship with inclusive education.

In international law, quality education can be defined through the aims of education. ¹¹⁹ As stated by the CRC Committee, the aims of education ‘underline the individual and subjective right to a specific quality of education’. ¹²⁰ Among other texts, these aims are prescribed in Article 29 (1) of the CRC and Article 24 (1) of the CRPD and consist of:

The individual aims, which focus on the development of the child's personality, sense of dignity and self-worth, talents, creativity, and mental and physical abilities to their fullest potential; ¹²¹

At the European level, the notion of quality education is not expressly mentioned in the texts of the ECHR or the revised ESC. However, both have referred to Article 24 of the CRPD ¹²⁸ and/or to Article 29 (1) of the CRC ¹²⁹ in their decisions. The ECHR and ECS also require that their rights are not deprived of their substance or effectiveness, which seems to entail a minimum quality requirement. In addition, the Council of Europe has issued a recommendation on ensuring quality education which mostly enounces similar aims to the ones developed by the UN bodies and reiterates that ‘the right to education can only be fully exercised if the education is of adequate quality’. ¹³⁰ As such, while not constituting a formal requirement, the notion of quality education is however not absent from the European human rights framework.

A first point that appears important to underline when it comes to the relation of quality education and inclusive education, is that the topic of inclusion is in itself part of the aims of education. Indeed, inclusion is a requirement of a quality education, whether for children with or without disabilities. The CRC Committee has emphasised that ‘the overall objective of education is to maximise the child's ability and opportunity to participate fully and responsibly in a free society’. ¹³¹ In parallel, the CRPD Committee has underlined that ‘[i]nclusion and quality are reciprocal: an inclusive approach can make a significant contribution to the quality of education’. ¹³² To provide a quality education therefore implies, among other things, that it acts as a support to the inclusion of children, both immediately and in the future, at school and in the wider society. However, this does not equate only nor necessarily to including all children in mainstream settings, ¹³³ nor to preparing them to be workers in a capitalistic society. ¹³⁴ Inclusion should rather be given a holistic definition that allows for different forms of participation in education and society. ¹³⁵

In parallel, as children have a right to a quality education, inclusive education must be conceived and realised in accordance with the aims of education. On this note, whereas quality and inclusion should work together, research has shown that the recent focus on full inclusion in mainstream schools can lead to a denial of the right to quality education for some children with disabilities, and among them some children with autism. ¹³⁶ In consequence, scholars have called for decentring inclusion and refocusing on the criteria of quality education. ¹³⁷ Indeed, both the CRPD and the CRPD Committee itself require that inclusive education be of quality. ¹³⁸ As such, alongside other authors, this paper argues that the possibility to receive quality education in mainstream schools should become the determining factor of the inclusion of children with disabilities in such settings. ¹³⁹ If quality education is realisable there, including through progressive accessibility and reasonable accommodations, then it is their right to receive it there. If it is not, then it is equally their right to receive it elsewhere.

Here, it appears important to underline that the principle of non-discrimination does not prohibit and sometimes even requires differential treatment. ¹⁴⁰ On this basis, to fully realise the right to education for all children with disabilities might entail a differential treatment for some of them, departing from the treatment of both children without disabilities and other children with disabilities. Besides reasonable accommodations, this differential treatment might then reside in providing special and alternative educational offers and, when required, settings. This thus entails that States render other educational options available and accessible to children with disabilities. As other authors have underlined, closing special schools in order to render mainstream education inclusive is therefore both chronologically and conceptually misguided. ¹⁴¹ While it does necessitate that mainstreams schools be made more inclusive, working towards an inclusive education system should not imply the closure of special or alternative settings and could even require more of these. On this note, while the ECtHR considers that the right to education does not include a right to a particular kind of educational establishments, it must however be realised without discrimination. ¹⁴² As such, there might still be an argument to be made to require States to provide educational solutions (including special or alternative settings) to children with disabilities whose right to education cannot be realised in mainstream settings.

Additionally, to allow the realisation of the right to education, it is paramount that special and alternative educational settings uphold the criteria of quality education. Indeed, the question of quality education, or lack thereof, is not exclusive to mainstream settings. While special settings are now viewed by some as offering more possibilities to focus on the individual needs of each disabled child and are therefore considered to provide better quality education to them, ¹⁴³ this has historically not always been the case. ¹⁴⁴ Similarly, alternative education must be regulated to guarantee that it follows the aims of education, and more generally, children's rights. ¹⁴⁵ This includes, as developed previously, that special or alternative educational offers also support the holistic inclusion of children with disabilities.

4.2 Re-placing inclusive education within the larger environment of children's rights

Alongside the notion of quality education, inclusive education must also be conceived and realised in accordance with other children's rights. Indeed, human rights are interdependent and must reinforce each other in their conception and realisation. ¹⁴⁶ This has also been highlighted by the UN Committees. For instance, in its General comment no. 1, the CRC Committee has expressly mentioned that Article 29 (1) ‘reinforces, integrates and complements a variety of other [rights] and cannot be properly understood in isolation from them’. ¹⁴⁷ In addition to the principle of non-discrimination, which, as developed previously, constitutes an inherent part of the right to education of children with disabilities, the CRC and CRPD Committees have therefore recognised the relevance of several children's rights in conceiving and realising the right to education. ¹⁴⁸ Reviewing the full interplay of these different rights would necessitate much larger developments than the present paper allows. However, as briefly developed below, it appears that the principle of the child's best interests could in this context hold a specific and systematic relevance. ¹⁴⁹

Indeed, departing from the conception of inclusive education as exclusively realised in mainstream settings and recentring the reflections around the right to quality education and other children's rights, will likely entail more complex educational decisions. In this regard, the principle of the child's best interests could act as a guiding principle, insofar as it encompasses all other relevant children's rights in its exercise. Besides being a core children's right in international law, ¹⁵⁰ the principle of the child's best interests has also been expressly referred to by both the ECtHR and the ESCR. ¹⁵¹ Overall, it emphasises that one-size-fit-all solutions or interpretations are unlikely to uphold rights-based standards. Instead, it supports the use of individualised and flexible approaches. In addition, it offers a procedural and interpretative framework to factor in and balance children's rights within a decision process. ¹⁵² As such, the best interests of the child (i.e., where and how they will be provided with an education that protects and promotes their rights to the maximum extent) could be the leading criteria for individual educational decisions. When assessing this, the child's opinion should be researched and given due consideration. Children's parents should also be involved in line with the principle of evolving capacities. ¹⁵³ In that regard, disability advocates have regularly underlined that it should be a matter of choice for children with disabilities and their families whether special or mainstream settings best meet their needs. ¹⁵⁴ As Chennat explains, children with disabilities, with the appropriate assistance from their parents, ‘should be able to make [an] informed choice on the right educational setting [for them] from a variety of settings’. ¹⁵⁵ On this note, studies have shown that children with autism might prefer special settings to mainstream ones. ¹⁵⁶ In addition, to ensure that the best interests of the child are served over time, movements between different types of education and settings should be permitted and feasible, ¹⁵⁷ and educational decisions should be reviewed regularly. ¹⁵⁸ In this regard, Veerman has proposed to apply the principle of periodic review of placement to educational decisions ¹⁵⁹ although it remains so far unclear whether such decisions fall under the scope of this principle. ¹⁶⁰

To allow these decisions to be taken and implemented, however, it is required that States provide a diversity of educational settings and options in the first place. Therefore, the child's best interests should also act as a guiding principle at the collective or systemic level. ¹⁶¹ In particular, decisions regarding the design of national educational systems should involve disabled persons and children, including children with complex and severe disabilities and for whom mainstream inclusion is hardly realisable. ¹⁶² In this regard, alongside non-discrimination in access to mainstream schools, organisations of disabled people – and particularly those of/with autistic members – also regularly call for the provision of alternative educational offers, such as online education or quality special settings. ¹⁶³

All in all, when deciding which education should be provided and where, quality and inclusive education, together with other children's rights, should mutually balance, reinforce, and safeguard each other. ¹⁶⁴ In line with this, it therefore appears crucial to allow for an interpretation of inclusive education which will be coherent with, and conducive of, the full range of human rights of children with disabilities and/or autism.