This paper considers some possible pitfalls in recent legislation in Scotland that has enhanced agency rights for older children with additional support needs (ASN). It does so with particular reference to philosophical literature on children’s rights. Though the UNCRC increasingly animates education law, policy and practice in Scotland and elsewhere, some philosophers, including O’Neill and MacIntyre, have raised pertinent questions about whether or not a rights-based approach is the best way of ensuring that all children receive the care, support and education they need to flourish. Discussion concentrates on four possible objections to the human rights tradition generally and the new legislation concerning the rights of older children with ASN in Scotland specifically. It is concluded that: 1) future policy, practice, law and research on child well-being should prioritise capabilities over rights and; 2) the concept of capability might be a helpful one through which to analyse the extent to which children with ASN in Scotland really do have enhanced agency rights in practice.