Inclusion, as a place in mainstream schools, is frequently advocated for pupils with special educational needs. For pupils with special educational needs that lie on the continuum of emotional and behavioural difficulties (EBD) this form of inclusion is often not an aspect of the provision they receive. This form of inclusion is based upon a rights argument mainly seen from one perspective, that of Human rights. This papers suggests that other rights, legal and civil, also have to be taken into account and that these rights conflict. Drawing upon case law as illustrations we suggest that conflicting rights and legal preferences result in segregative provision being more prevalent for pupils with EBD. We conclude that there are inadequate legal provisions to assist in the inclusion of pupils with EBD within mainstream schools where this is appropriate. Current changes in the law only provide a framework; changes in attitudes will need to follow.