New Brunswick’s child and youth advocate says a policy meant to protect children with special needs is not being used.

Kelly Lamrock and his office recently launched an investigation into the use of the “delicate relationship” clause.

The union that represents educational assistants has a practice called “bumping,” which allows more senior staff to claim a job over a less-tenured colleague.

But Lamrock said there are some instances where children need to keep the same educational assistant for the entire school year in order to prevent their learning needs from being affected.

“We have seen cases where children on the autism spectrum have a high need for routine and familiarity, or they’re unable to begin to learn the material,” Lamrock told reporters Thursday.

“There are cases where the educational assistant performs fairly intimate health-care functions. That is one where, again, familiarity, trust, and even the EA’s familiarity with the routine can make a great deal of difference for the child’s security.”

That is where the delicate relationship clause comes into play. When an educational professional determines a child’s learning needs will be affected by switching EAs, a school district can override the union’s seniority rights.

However, Lamrock said his investigation found many districts are refusing to use the clause, or even advise parents of its existence.

“That raises a difficult question as to whether or not the human rights of children have been bargained away for the sake of labour peace and political capital,” he said.

In most cases, EAs can switch responsibilities without there being any negative effect on the child, said Lamrock.

But he said this does not excuse the times when districts are refusing to consider evidence that a child needs continuity.

“When school districts avoid even seeking professional advice on those cases, it is a clear violation of the child’s rights,” said Lamrock.

Lamrock recommends the Department of Education develop a clear policy surrounding the use of the delicate relationship clause and publish it on all school district websites by September.

He also recommends the department track and evaluate the number of delicate relationships by region, including the reasons this clause is accepted or rejected.

In addition, Lamrock said the clause should also apply to casual workers and temporary workers, in addition to permanent employees who are members of CUPE Local 2745.

The Department of Education and Early Childhood Development, in an emailed statement, said it agrees with Lamrock’s recommendations.

“We want to ensure every learner’s needs are met by providing them with the appropriate supports and services,” said the statement.

“When a delicate relationship between an educational assistant (EA) and a student with special needs is deemed critical to the well-being of the student, the district Education Support Services team can recommend the use of the ‘delicate relationship’ clause to allow the EA to continue to support the student for the duration of the school year.

“While there have been instances of the clause being used in NB schools, there would not be large numbers.”