Joint Committee on Human Rights Appendices to the Minutes of Evidence


APPENDIX 22

Memorandum by the Children's Rights Alliance for England

RESPONSE TO JOINT COMMITTEE ON HUMAN RIGHTS

  The Children's Rights Alliance for England (CRAE) is a membership organisation of over 170 organisations, committed to promoting children's human rights through the fullest implementation of the UN Convention on the Rights of the Child. The Alliance was established in April 1999, but formerly existed from 1992 first as the Children's Rights Development Unit and later as the Children's Rights Office. We are the only national human rights organisation for children. Our members include the major children's charities, other voluntary organisations, including those led by young people, professional associations, Royal Colleges, local and health authorities and individuals.

ASSESS THE GOVERNMENT'S EFFORTS THUS FAR IN IMPLEMENTING THE HUMAN RIGHTS ACT

(i)   Human Rights Task Force

  The Home Office set up a Human Rights Task Force in 1999 to assist government departments and other public authorities prepare for the implementation of the Human Rights Act 1998 (HRA) and to help establish a human rights culture. One of the terms of reference of the Task Force was to increase awareness, especially among young people, of the rights and responsibilities that flowed from the ECHR. Nevertheless, there was a distinct absence in the membership of any children and young people's representatives and/or organisations, although the Task Force did include some human rights organisations.

(ii)   Promotional Materials

  The Home Office has produced a number of publications on the HRA, but most are designed for adult readers. One of them, entitled Human Rights Act an Introduction, could be used by young people as a very basic starting point. The publication has a section on "How does the Act affect me?" in a question/answer format that addresses some preliminary issues, but is not comprehensive. It will not be useful to younger children.

  The Home Office has also published a Study Guide on the Act. It may be suitable for young people, as it explains the HRA and the ECHR in some detail and provides examples of potential challenges under the section "What does my right include?".

  The Home Office web site also has a fair amount of information on the HRA and is kept up to date with general information about its implementation. However, unlike some of the other Government web sites, the Home Office site does not have a dedicated area for children and young people.

 (iii)   Dissemination

  We are not sure to what extent the above information has either been circulated to people or been made accessible at, for example, public libraries, Citizens' Advice Bureaux and Law Centres. Similarly, it is our understanding that there has been no concerted effort to disseminate either the above referenced publications or other information to children and young people in schools, hospitals, youth centres or custodial settings.

ASSESS THE GOVERNMENT'S EFFORTS, THUS FAR, IN BUILDING A HUMAN RIGHTS CULTURE

  Although the Government has placed human rights legislation on our statute books, it has certainly not consistently pursued or respected human rights in its policy development.

  In relation to children, the treatment of young refugees and asylum seekers and children and young people involved in crime, are areas of exceptional concern among child welfare and human rights organisations. Rather than respecting and promoting a human rights culture, the Government has actively encouraged punitive attitudes and responses. CRAE is particularly concerned about the continuing use of vouchers for refugees and asylum seekers and the appalling conditions in Young Offender Institutions. The Chief Inspector of Prisons has severely criticised the state of these institutions in successive reports revealing shocking breaches of young people's basic human rights.

  The UK heads the European league table for locking up the greatest proportion of our children and young people. On 31 March 2000, 1708 under 18 year-olds were serving sentences in prisons in England and Wales. Despite extensive efforts from child welfare and human rights organisations, the Government has failed to keep children out of prison. Their propensity for locking up children is further evidenced by the provisions in the Crime and Disorder Act 1998 that allow for ten year-olds to be subject to detention and training orders.

  More recently, the proposal to extend child curfew schemes to under 16 year olds shows a lack of respect from the Government for young people's and parents' basic civil rights. In 1998, when child curfews were first proposed for under ten year-olds, a consortium of children's organisations, including Barnardo's, the NSPCC and the National Children's Bureau, was advised that the scheme breached Article 8(1) of the ECHR. (CRAE's briefing on child curfews, recently sent to the Committee, is attached).

  Another example of a minimalist approach to human rights obligations is the Government's response to date to the unanimous judgement of the European Court of Human Rights in the case of A v UK and the 1995 formal recommendation of the Committee on the Rights of the Child that it should prohibit all corporal punishment of children. At least nine other European countries have prohibited all corporal punishment (Germany being the most recent, in 2000). The European Court judgement requires legal reform. Yet in its consultation last year, the Department of Health rejected out of hand the proposal—supported by over 300 organisations—that it should remove the defence of "reasonable chastisement" altogether to give children the same protection as adults under the law on assault (proposing instead that the law should define how children can be hit—with what implements, on what parts of the body and so on). Persisting legality of corporal punishment plainly breaches children's fundamental rights to respect for human dignity and physical integrity. The existence of special defences justifying violence to children breaches the right to equal protection under the law. Yet some Ministers have persisted in defending corporal punishment.

  The terrible abuse and mistreatment of children and young people in the care system has resulted in the growth of independent advocacy in care settings over the past decade. Although this is reflected to some extent in the Government's Quality Protects programme, there is, as yet, no over-arching Government commitment to provide children and young people in all settings with the right to independent advice and advocacy to help them seek redress when their rights are being ignored or compromised.

  While, since the Children Act, policy and practice in the child care system have moved substantially towards respecting children's right to express their views and feelings and have them given due consideration about all matters which affect them there has been no such change in education legislation; many schools provide an environment which is entirely inimical to teaching and learning about human rights.

What has been the consequence at national and local government level, in terms of both formulating policy and delivering services?

  The Local Government Association (LGA) was a member of the Home Office Task Force on Human Rights and thus, from an early stage, has been apprised of the implications of the HRA for local government. Before the HRA came into force, several local authorities undertook service audits and training on the HRA. We would strongly recommend that all local authorities be required to undertake this exercise, which would also serve as a catalyst in developing a human rights culture and framework within local government.

  Also before the Act came into force the LGA produced a small handbook, Acting on Rights—A guide to the Human Rights Act 1998, a very useful introduction for local authorities to the HRA, ECHR and the implications of the new legislation. They have since produced guidance for local government on Article 6 of the ECHR, Deciding Rights: Applying the Human Rights Act to good practice in local authority decision making. To what extent the training, awareness and guides have actually affected day to day practice and delivery of services will be apparent only after a period of time.

  It is hoped that the proposed new Children and Families Court Advisory and Support Services (CAFCASS) body will premise their policies and provide their services using human rights principles. Although their draft National Standards referred to the HRA and listed the rights in the ECHR relevant to family law, there was little or no reference to those rights in the rest of the document. CAFCASS clearly needs to take ECHR rights into account in the way it functions as a public body, both in relation to the children and families it serves and its staff, and in relation to its recommendations to the court.

  CRAE hopes that national and local government will now start to take a more positive approach to human rights. At present it appears that policy and service development are planned on the basis of the minimum requirements for avoiding breach. In some areas, as with curfews, there is even an acknowledgement that a test case may be necessary to clarify the boundaries. We propose a more positive, proactive commitment to the principles and standards of the ECHR, in effect putting into practice the positive obligation that public authorities must also subscribe to. We also strongly recommend rigorous, independent scrutiny of all proposed Government policy and legislation to ensure its compliance with the principles and standards of the HRA.

What has the Human Rights Act meant, thus far, for the courts?

  The courts play a crucial role in developing both human rights jurisprudence and a human rights culture. They are required to interpret existing legislation in a way that is compatible with ECHR rights. Prior to the HRA coming into force, members of the judiciary were trained on the implications of the HRA.

  Analysis of the case law reflects a new development in this area. Some cases are being argued only from a human rights basis, whilst others explore human rights violations in addition to their substantive claim. The Human Rights Act Research Unit at King's College London Law School has produced statistics from a selection of 60 cases, 23 of which were criminal proceedings (including judicial review), 27 were civil and public law proceedings and 10 civil and private law proceedings. It was found that in 35 of those cases the HRA made no difference, whereas in 25 cases it did.

  Examples of some issues that have been explored in the courts:

    —  Injunctions preventing the media disclosing information about the new identity, appearance or addresses of either Thompson or Venables, in part on the basis of Article 2 (right to life) of the ECHR.

    —  Planning law that was declared incompatible with ECHR rights

    —  The decision not to separate a baby from the mother in prison

    —  A father with HIV was permitted to stay in the UK pending the outcome of his ex-partner's application for asylum. The decision was not based on either Article 2 (right to life) or Article 3 (freedom from inhuman or degrading treatment or punishment), but instead on Article 8 (right to respect for his family life).

    —  A 15 year-old's appeal against a secure accommodation order on the grounds that it breached his Article 5 right to liberty. The Court held that detention of a minor was lawful for the purpose of "educational supervision" Article 5(1)(d), and that section 25 the Children Act was not incompatible with Article 5.

What impact has the Human Rights Act had on everyday life?

  We believe that the Human Rights Act has had very little impact on the everyday life of children. In Autumn 2000 Save the Children UK and CRAE commissioned a series of briefings (attached as appendix) and organised seminars on "Using the Human Rights Act to Promote Children's Rights". These covered education, health and child protection, immigration and asylum-seeking, juvenile justice, and family and care. The seminars brought together lawyers and others working with children. They highlighted many potential breaches of children's rights. They also identified the unique difficulties for children in pursuing remedies of breaches of their rights.

  Undoubtedly the legal profession is increasingly aware of the potential of the HRA challenges that can be made. This is through training and articles in legal and professional journals. It is also apparent that the human rights aspect of cases, mainly concerning adults, is increasingly being explored and the case law reflects this change. But whether this actually helps instil a wider human rights culture is debatable. It is not really ideal for a human rights culture to be established largely through litigation.

  For example, as predicted, a cluster of cases has been brought within the context of the prison service, which is unfortunately everyday life for a still increasing number of people. Some proposals for prison and custody regimes for adult and young offenders in the Government's 10 year criminal justice plan, The Way Ahead, will incidentally promote prisoner's human rights, but this is not the stated rationale.

  Other proposals, such as allowing courts to refuse bail to young people on the grounds of previous offences would be a clear breach of their human rights.

  There has been no attempt to ensure the promotion of children's human rights, in particular the UN Convention on the Rights of the Child, in the education system or other children's settings.

  The language of rights is slowly entering our vocabulary through newspaper reports of HRA cases. But much will depend on the way in which the HRA and its principles are portrayed. We have to deal with negative and perhaps inaccurate reporting of what the HRA is meant to achieve, a recent example being the sensational reporting of the HRA being used by two young people to challenge the imposition of anti-social behaviour orders.

  Other sources of information for adults include a number of non-government publications on the Act, its implications and details about case law, which are specifically directed at the legal profession. There are subject specific guides, such as Family Law and the Human Rights Act 1998, Heather Swindells, The Child and the European Convention on Human Rights, Ursula Kilkelly.

  There are also voluntary sector publications. For example, Save the Children has recently published Children and the Human Rights Act, which is a useful booklet and a good introduction for adults to both the ECHR and the HRA. However, its readers will not be children and young people. The Citizenship Foundation has published Have I the Right? A workshop pack on the Human Rights Act for young people. It has four activities and is an interactive pack that generally introduces the concept of human rights, and addresses the HRA in some detail.

  The Council of Europe has also published a pack on the ECHR, Starting Points for Teachers, marking the 50th anniversary of the ECHR and the halfway point for the UN Decade for Human Rights Education. This is a useful and informative pack that would benefit students, but its contents have not been widely publicised or circulated.

How should the Committee direct its efforts in the medium term and why?

  The Committee should from the beginning develop a special focus on children's human rights. Children—defined as in the UNCRC as everyone from birth to 18—form a substantial proportion of the population. Their special status makes them particularly vulnerable to breaches of their rights by Government and by adults in positions of authority over them—in the home, in schools and other institutions and forms of care. Children lack political power and the ability to influence law and policy that affects them. There are particular problems for children in using the legal system to assert their rights. Most fundamentally, children are the key to building a human rights culture for the future.

  We believe it would be appropriate for the Committee to review the recognition and realisation of children's human rights, and also the adequacy of human rights education in schools and the human rights elements in training programmes for all those who work with and for children.

  The Committee should promote the application of human rights (especially children's rights) impact analyses to all policy development within central and local government, and within the voluntary sector where services are of a public nature. Also, as suggested above, the Committee should promote comprehensive local audits of services, training programmes, and dissemination of information, in particular to children and young people.

  We assume that the Committee will early in its life review the case for a Human Rights Commission and in this context will look in depth at children's special need for an independent human rights institution. There is a strong UK-wide campaign for statutory Children's Rights Commissioners. We have already written to the Committee, together with other children's rights alliances from Northern Ireland, Scotland and Wales, to express our concern at the limitations in the powers of the UK's first human rights institution for children—the Children's Commissioner for Wales. Unless the Children's Commissioner for Wales Bill, currently in the House of Lords, is amended, this institution will not comply with the Paris Principles (UN Principles for the status of national human rights institutions).

  A Committee of the Scottish Parliament is currently reviewing the case for a Commissioner in Scotland, and the Northern Ireland Assembly is committed to establishing a Children's Commissioner alongside the Human Rights Commission. England's 11 million children need a statutory, independent human rights institution designed to take account of their special status. It seems extraordinary that there should be active steps to create such institutions everywhere except England.

  Their establishment will undoubtedly be the catalyst for change in effectively instilling a human rights culture. They would also provide advice to the Government and to public authorities on ways of complying with the obligations under the HRA and other human rights legislation.

March 2001

LOCAL CHILD CURFEW SCHEMES: A BREACH OF CHILDREN'S HUMAN RIGHTS AND AN ATTACK ON CHILDREN LIVING IN DEPRIVED, INNER CITY AREAS

  The Children's Rights Alliance for England is an umbrella organisation of over 165 statutory and voluntary organisations committed to children's human rights.

  Last month we wrote to the Home Secretary with detailed objections to child curfew schemes, on behalf of the following organisations:

    —  NSPCC

    —  The Children's Society

    —  Save the Children

    —  National Association for Youth Justice

    —  National Children's Bureau

    —  Article 12 young people's organisation

  The letter was also sent to Sir David Ramsbotham, HM Chief Inspector of Prisons, given his extensive contact with young offenders. Extracts from Sir David's response to CRAE are included at the end of this briefing.

  We believe that Section 14 of the Crime and Disorder Act 1998 must be repealed on the following grounds.

  1.  Child curfews are an unnecessary addition to existing measures to tackle youth crime, and to support children and families in difficulty. Section 47 of the Children Act 1989 gives local authorities and the police extensive powers, and the duty to investigate, where they think a child or young person (under 18 year-old) is suffering from "significant harm". Local police forces can already take systematic action to deal with children and young people who are at risk, or engaged in criminal or anti-social activities. Indeed, Hamilton in Strathclyde is often held up as a positive example of a child curfew scheme in operation. Yet that local police was using existing police powers, not child curfew legislation.

  2.  Punitive action by the police and local authorities to deal with the problematic behaviour of a few will have a deleterious effect on local initiatives to foster positive relationships between young people and those in authority.

  3.  Legal advice obtained in 1998 by a consortium of major children's organisations, including Barnardos, the National Children's Bureau and the NSPCC, held that generalised curfews for under 10 year-olds were likely to be in breach of the European Convention on Human Rights. Principally, the schemes were said to interfere unreasonably with Article 8 (1) of the ECHR, the right to private and family life. Now that the Human Rights Act 1998 has simplified the process of testing potential breaches of the ECHR, we are certain that any local (or police) authority introducing a child curfew scheme will be quickly subjected to legal challenge.

  4.  There is no doubt that curfews are intended for areas where there are high levels of poverty and social exclusion. In this respect, the negative nature of child curfews runs counter to cross-party initiatives to end child poverty, and help children and young people living in difficult circumstances to reach their full potential. We are certain that the Children's Fund can have significant impact on youth crime: it is the environment and social conditions that children and young people live in that most determine whether they get involved in crime and anti-social behaviour.

  5.  We are deeply concerned about curfews being disproportionately applied to communities whose members come from diverse minority ethnic communities. Black families tend to live in inner city areas that have increased child populations and disproportionate levels of poverty and disadvantage. Our society suffers from high levels of racism, especially against young black people. We anticipate that curfews are much more likely to be used in communities with diverse communities than in areas that are predominantly white. This would further damage relationships between black communities and the police.

  6.  There is potential for curfews to prevent individual young people taking part in youth service, arts or sporting activities, quite apart from putting additional pressure on young people and families living in cramped accommodation, perhaps with difficult family relationships.

  7.  The publicity generated by the announcement of curfews for teenagers feeds public intolerance of society's young. Public spaces do not belong just to adults. Young people have always gathered in groups—it is how they socialise and of course, it is safer than being out alone. While we do not underestimate the fear and anxiety that this can provoke in older members of communities, we believe that politicians have a responsibility to promote tolerance and diversity for all members of society.

  8.  Regrettably, curfews are likely to backfire and add to rather than diminish problems. Clamping down on teenagers is likely to provoke them into retaliating, seeing curfews as a legitimate challenge. The whole concept of curfews—a restriction on freedom that applies to everyone under a certain age, irrespective of individual behaviour and circumstances and with no legal process—runs counter to natural justice and proportionality. They are a classic example of adults "going over the top" and blaming all young people for the actions of a few. It is precisely this kind of behaviour that loses, rather than wins, the respect of young people.

Sir David Ramsbotham, HM Chief Inspector of Prisons, January 2001

  I find the whole proposal [to extend child curfew schemes to under 16 year olds] to run absolutely counter to all my instincts and beliefs about the way to treat our children. I am particularly concerned that society appears to be marginalising its young males. They are represented as failures at school, domestic circumstances mean that too many are denied adult male role models; proper jobs are denied to them and all that is available is a series of unskilled, unsatisfactory employment; they tend to leave school early and drift around in rootless packs, getting into trouble; they are demonised by the press; no-one pays any attention to them or their values. No nation can afford to behave like this, and if such behaviour is reinforced by the sort of measures against which you are complaining this is a situation that can only get worse rather than better.

Using the Human Rights Act 1998 to develop respect for children's human rights

ASYLUM, IMMIGRATION AND NATIONALITY

  While the European Convention does not specifically address the rights of refugees or immigrants, a substantial body of European case law in this area exists which has already affected the development of UK law and policy. This means that applicants can expect a better understanding of the implications of the Human Rights Act in relation to these issues, although the courts may feel more bound by the Strasbourg case law in this area.

  The Human Rights Act (HRA) will apply to the decisions of government staff (such as immigration officers), special adjudicators, entry clearance officers, the Immigration Appeal Tribunal, those running detention centres, local authorities making decisions about asylum-seeking children, as well as to Government Ministers.

  The Government has promised to use its order-making powers under the Human Rights Act (section 7(11)) to enable a right of appeal under the Act to any asylum seeker who has a case under the HRA, but whose application has been refused. However, this is likely to be a rare event, since the Immigration and Asylum Act itself gives a right of appeal from any decision relating to entitlement to enter or remain under the Immigration Acts on the grounds that the relevant authority has breached the applicant's human rights (section 65).

  The main potential of the Human Rights Act for refugee and immigrant children relates to procedural rights and to their rights to family reunification; the Act has only limited application to their treatment in relation to social and economic conditions, for example under the dispersal programme. Nor should the political context be overlooked. European Court rulings have reflected "fortress" Europe's fear of being swamped by immigrants, and of children being used to gain adults' entry or citizenship, and the domestic courts may be influenced by a similar agenda.

  Current experience suggests that one difficulty specifically arising with refugee children is that individual cases are often conceded in order to prevent a precedent being set. In addition, there may be no consistency between local authorities, or even between social work area teams within one authority, so that only a few refugee children with strong advocates receive adequate services and planning from social services. Efforts should therefore be made to publicise successful challenges to mistreatment of individual refugee children, so that others may make similar claims.

Article 14: The overarching principle of non-discrimination

    14.  The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

  Article 14 must always be read in conjunction with one or more of the Convention rights, though the connection with a substantive article (articles 2-12) can be a fairly loose one.

  Immigrant and refugee children, while they are in the UK, enjoy the rights of the HRA regardless of the legality of their status. Limitations on their rights to legal representation, fair processes and to education or family life, for example, can thus been challenged.

  Discrimination against children because of the status of their parent should also be considered in relation to this article. One example is the denial of citizenship rights under the British Nationality Act 1981 to the children of unmarried British fathers and non-British mothers. However a Court of Appeal case on the Human Rights Act held that this breached neither article 14 nor 8, because the distinction under the 1981 Act between fathers' relationships and mothers' relationships with non-marital children had not been changed by the subsequent legislation that gave equal rights and responsibilities to parents of non-marital children. (R v Secretary of State for the Home Department, ex parte Montana, CA, 5.12.00).

    Potential Violations

    • Failure to grant unaccompanied refugee children the same rights to be united with their families that adult refugees are given.

    • While there is no Convention right to welfare benefits as such, the lower levels of benefit available to asylum-seeking children and their families may be open to some form of challenge, for example the lack of minimum standards or criteria for provision of support. The Audit Commission's finding that unaccompanied children are not receiving the same standard of care as other children in need could be considered in relation to non-discrimination and article 8.

Article 3: Protection from torture or inhuman or degrading treatment or punishment

    3.  No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

  The European Court and Commission have ruled that treatment that is mildly degrading or inhuman will not be found to be a violation of Article 3. A "minimum level of severity" must be reached. However the provision in Article 8, that: "everyone has the right to respect to private...life", helps protect individuals from lesser forms of inhuman and degrading treatment. This is because the concept of privacy includes the "physical and moral integrity of the person", an invasion of privacy may involve a degree of public humiliation, which is recognised as one element of "degrading".

    Potential Violations

    • Plainly those refused asylum are likely to invoke this article, although the cases to the European Court have not been uniformly successful (for example the Commission has rejected claims relating to refugees seeking asylum from likely persecution in Yugoslavia, Turkey, Iran, Syria and Uganda). It may be harder to establish children's right to protection from torture or persecution under Article 3 than it is with adults, particularly where they are unaccompanied asylum seekers, because adults are perceived as the targets of persecution.

    • The protection of Article 3 has been extended to include preventing the return of an individual to a country where there are inadequate medical facilities, for example for a person suffering from AIDS. As a rule, however, the relative superiority of living conditions between countries is not a consideration.

    • While children can be sent back even when they have no family to receive them, some countries cannot even provide social services to receive and place children in residential institutions and this could be found to constitute inhuman treatment.

    • Any invasive attempts to establish the age of children at entry ports—for example, by examining genitals, skin-pinching or X-rays. The Royal College of Paediatrics and Child Health has definitively rejected the possibility of accurately determining an older child's age by any method.

    • Dispersal of children within the UK to areas where they are vulnerable to, for example, racial harassment.

Article 4: Prohibition of Slavery and Forced Labour

    4.1  No one shall be held in slavery or servitude.

    4.2  No one shall be required to perform forced or compulsory labour.

    4.2  For the purpose of this article the term "forced or compulsory labour" shall not include:

      (a)  any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

      (b)  any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

      (c)  any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

      (d)  any work or service which forms part of normal civic obligations.

    Potential Violations

    • Children from countries which have a record of slavery or bonded labour could also, in theory, use this article to claim leave to remain in the country.

Article 5: No Arbitrary Detention

    5.1  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

    (a)  the lawful detention of a person after conviction by a competent court;

    (b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

    (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

    (d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

    (e)  the lawful detention of persons for the prevention of spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

    (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken or with a view to deportation or extradition;

    5.2  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

    5.3  Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

    5.4  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

    5.5  Everyone who has been a victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

  This article specifically allows for the lawful detention of a person "against whom action is being taken with a view to deportation or extradition". The 1999 Immigration and Asylum Act does enable the detention of children in detention centres. The HRA requires that lawfulness of such detention must be determined "speedily" by the courts.

    Potential violations

    • Any unreasonable delays in determining status of detained children. Where children are concerned, it should be noted the Government has accepted, in relation to secure accommodation, that detention beyond 72 hours without judicial confirmation is unacceptable.

    • When the bail provisions of the Immigration and Asylum Act are implemented children may be denied bail in violation of their rights.

Article 6: right to a fair hearing to determine civil rights

    6.1  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

    6.2  Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.

    6.3  Everyone charged with a criminal offence has the following minimum rights:

    (a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

    (b)  to have adequate time and facilities for the preparation of his defence;

    (c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

    (d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    (e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

  The right to enter or remain in a country has not been held to be a civil right under the Convention. However the right to family life (article 8) is a matter for which children can claim the procedural rights under article 6. And although refugees do not have an enforceable right to social security, the procedures for determining eligibility to welfare benefits do fall within the ambit of article 6. In any event, given that Article 13 of the European Convention on Human Rights, the right to an effective remedy for breaches of rights, is omitted from the Human Rights Act there is an argument that the English courts should find Article 6 applicable.

    Potential violations

    • In a recent Scottish HRA case the independence of a sheriff was unsuccessfully challenged on the grounds that he was appointed by the Secretary of State; similarly the independence of the adjudicator in appeals might be questioned in England.

  • Any lack of legal representation or assistance for children involved in immigration appeals.

Article 8: Right to private and family life, home and correspondence

    8.1  Everyone has the right to respect for his private and family life, his home and his correspondence.

    8.2  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  This article has been used to successfully challenge state action where parents or children are threatened with deportation which will separate them or where they are denied entry for family reunification. There is now a presumption that the relationship between both parents and child constitutes family life, even where the actual relationship is extremely tenuous or the parent has committed offences. Other relationships such as those with siblings or grandparents or adoptive parents do not necessarily constitute family life.

  The State is permitted to interfere with article 8 rights on various grounds, so the success of cases is likely to be as a result of a balancing act—between the State's case for "economic well-being" or "prevention of disorder or crime", for example, and the strength of the family ties in question or the likelihood of the family being able to live together elsewhere, or having some kind of family life elsewhere. Challenges to deportation have had more success than those where entry has been refused.

    Potential violations

    • Current immigration rules limiting the rights of separated parents who apply to enter in order to have contact with their child.

    • Cases where the State fails to take reasonable steps to reunite unaccompanied refugee children with their families, although obviously the risk of identifying family members still in the country or origin has to be taken into account.

    • The 1999 Immigration and Asylum Act exemption of social services' duties to provide services to the families of accompanied children under the Children Act, limiting this to services to children themselves, is perhaps a violation of article 8; as is the lack of choice over place of accommodation under the dispersal programme (particularly as right to family life has been held to include the right to develop relations with others of one's own community). There will be a need to monitor social services departments' obligations under section 17 of the Children Act when the Secretary of State does not use his powers in the asylum support regulations. It will also be necessary to check how unaccompanied children, particularly 16 and 17 year-olds, fare under the dispersal programme.

    • Degrading treatment under the voucher system probably would not be deemed to have reached minimum level of severity needed for a violation of Article 3, but could well be considered a violation of Article 8.

    • Asylum-seeking children who are taken into care and given indefinite leave to remain, but who are then vulnerable to this leave being reviewed and withdrawn when they reach 18 despite having a settled home in this country, could claim that their rights to family, home and identity were being breached.

Article 9: Freedom of thought, conscience and religion

    9.1  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

    9.2  Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

    Potential violations

    • The voucher system may restrict families from being able to buy, for example, Halal meat, or other things which are a part of the child's religion or culture.

    Article 2 of Protocol 1: right not to be denied education

    No one shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

    • Refugee and immigrant children who do not receive effective education, for example in teaching them English, could mount an action under this article, taken with article 14. The dispersal programme has exacerbated the difficulties asylum-seeking children experience in relation to education, as LEAs are not geared up to meet their needs.

    • Deporting a child to a country which does not provide education.

SCHOOLS AND EDUCATION

  In considering the relevance of Convention rights it is important to consider the full age range including early years care and education, colleges and universities as well as schools, and the legislative framework for and actions of all involved in the education system—state, voluntary and private.

Article 14—the overarching principle of non-discrimination

    14  The enjoyment of the rights and freedom set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

  Article 14 must always be read in conjunction with one or more of the Convention rights, though the connection with a substantive article (articles 2-12) can be a fairly loose one.

  Article 14 should be applied to review the enjoyment of each right by all groups within a school/college community and between schools. Varying enjoyment of rights in different types of school, different education authorities or different countries within the UK (including differences caused by distinct education legislation in England, Northern Ireland and Scotland) may cause unjustifiable discrimination, although domestic courts may apply the principle of "margin of appreciation", allowing for different levels of rights in different cultures, to variations between the three jurisdictions.

Article 2: Right to life

    2.1  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

    2.2  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

    (a)  in defence of any person from unlawful violence;

    (b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

    (c)  in action lawfully taken for the purpose of quelling a riot or insurrection.

  A legal opinion obtained a few years ago suggested that the right of parents to withdraw children from aspects of sex education could potentially breach the child's right to life, by preventing the child receiving life-saving information about HIV/AIDS (but this matter may be more appropriately considered under article 10—freedom of expression, or article 2 of Protocol 1—right to education). Other issues raised under this article include the failure of LEAs or schools to meet the therapeutic needs of suicidal school students, and insistence that asthma inhalers or other medicines are kept centrally rather than entrusting children with them.

Article 3: Inhuman or degrading treatment or punishment

    3  No one shall be subjected to torture or to inhuman or degrading treatment or punishment

  A school regime could in itself amount to inhuman or degrading treatment; the ECHR case law has established that to breach Article 3 a certain level of severity must be reached (Article 8, which includes protection of physical integrity, may allow claims relating to less severe punishment or treatment—see below). Treatment is degrading if it is such as to arouse in its victim feelings of fear, anguish and inferiority capable of humiliating or debasing them and possibly breaking their physical and moral resistance: "...it is sufficient if the victim is humiliated in his or her own eyes".

  European Court judgements and Commission decisions have already been influential in ending corporal punishment in UK schools (also quoting Article 2 of Protocol 1—the right to respect for parents' philosophical convictions in education—and Article 8). The School Standards and Framework Act 1998, section 131, extended abolition of corporal punishment to cover all independent schools and nursery education (as defined in the Act) in England and Wales. In Scotland legislation with similar effect has now been passed and it is promised for Northern Ireland: meanwhile, the persisting legality of corporal punishment for privately funded independent school pupils in Northern Ireland potentially breaches the Convention, as does its legality in forms of daycare not defined as nursery education.

  In 2000 the European Court rejected without a hearing an attempt by a group of Christian private schools in the UK to challenge the ban on corporal punishment as a breach of parents' rights under Articles 8 and 9.

  Other forms of discipline could amount to "inhuman or degrading punishment", including humiliating practices (being forced to stand in a public place or sit in a "naughty chair" for long periods, formal public humiliation, forced to wear distinctive clothing, forms of isolation, etc.). Particular concerns have been voiced about the treatment of children in small private schools and in residential special schools, where there is little parental challenge to maltreatment of children by the staff, either because they support it (for example the isolation of children in fundamentalist Christian schools) or because they do not know about it (for example ostracising children with particular disabilities).

  Children are frequently treated in English schools in humiliating ways which domestic courts may, unfortunately, dismiss as trivial, or an ordinary part of school life (though if the victim were an adult the case might be treated more seriously).

  A failure to protect students adequately from bullying could breach Article 3 (or Article 8—see below). It has been argued that this possibility will force schools to exclude bullies. While clearly schools have an obligation to protect children from inhuman and degrading forms of bullying, it is not a solution simply to exclude bullies since this may violate the bully's rights (to fair treatment, education, non-degrading treatment etc). More constructive measures must be adopted which protect the rights of both sets of children.

  Article 14 prohibits discrimination in the enjoyment of Convention rights: where particular forms of discipline are only applied to one sex or to particular age groups, this may raise distinct issues, reading the Article with Article 3.

Article 4: Prohibition of slavery and forced labour

    4.1  No one shall be required to perform forced or compulsory labour.

    4.2  For the purpose of this article the term "forced or compulsory labour" shall not include:

    (a)  any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

    (b)  any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

    (c)  any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

    (d)  any work or service which forms part of normal civic obligations.

  One of the exemptions to this right is "work or service which forms part of normal civic obligations". It is unclear what the definition of children's "civic obligations" is. There do not appear to have been any Strasbourg decisions relating to forced labour within compulsory education (one problem being that all compulsory education is forced labour). Forms of discipline which include forced labour could breach Article 4.

Article 5: Right to liberty and security

    5.1  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

    (a)  the lawful detention of a person after conviction by a competent court;

    (b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

    (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

    (d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

    (e)  the lawful detention of persons for the prevention of spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

    (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken or with a view to deportation or extradition.

    5.2  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

    5.3  Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

    5.4  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

    5.5  Everyone who has been a victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

  There have been publicised instances of school students being tied to chairs, rooms in which children are placed in solitary confinement in special schools and other forms of restriction of liberty without lawful order. The legislation which defines secure accommodation requires a court hearing within 72 hours to test placement in it applies to education settings—but the definition of restriction of liberty goes wider.

  There are very limited exceptions specified in Article 5(1). It does specifically allow "the detention of a minor by lawful order for the purpose of educational supervision...".

Article 6: Right to a fair trial

    6.1  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

    6.2  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

    6.3  Everyone charged with a criminal offence has the following minimum rights:

    (a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

    (b)  to have adequate time and facilities for the preparation of his defence;

    (c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

    (d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    (e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

  This article covers "determination of civil rights and responsibilities" as well as criminal charges. Unfortunately an admissibility decision of the European Human Rights Commission in 1989 (Simpson v UK, 14688/89, 4 December 1989) did not consider the right not to be denied education (Protocol 1, Article 2) to be of a civil nature for the purposes of Article 6. The decision stated that Article 6(1) is not applicable to the administrative procedures before domestic education authorities. But this decision was not made by the Court and was in any event only a few lines long. The Court, treating the Convention as a "living instrument" whose jurisprudence should develop seems to be re-visiting the ambit of "civil rights and obligations". In any case, domestic courts are not bound by Strasbourg jurisprudence. The Simpson ruling could, for example, be challenged in relation to an exclusion case relating to allegations of serious behaviour which could amount to a criminal charge.

  It is possible that the fact that students under the age of 18 have no right to challenge school exclusions in England, Wales or Northern Ireland and the inadequacy of appeal procedures could be tested. In Scotland, the Standards in Scotland's Schools, etc Act 2000 extends the right to appeal to pupils "with legal capacity". The current guidance from the DfEE to Exclusion Appeals Tribunals appears to violate their independence, since their discretion is being fettered by the Government without the authority of primary or secondary legislation. "Informal" exclusions of children might also be challenged, since this deprives them of a fair hearing (see also First Protocol, Article 2, the right to education, below).

  Failures by social services "parents" of children in care to challenge or appeal the LEA's actions, eg through admissions, exclusions or SEN appeals, because one part of the authority cannot or will not act against another, clearly denies these children their rights. Similarly, parents who refuse to appeal despite their children wishing them to do so, looks like a denial of fair hearing. The general invisibility of children in English education legislation makes it ripe for Human Rights Act challenges, and may be the lever which forces the DfEE to recognise at least "competent" children as autonomous individuals.

Article 8: Right to respect for private and family life

    8.1  Everyone has the right to respect for his private and family life, his home and his correspondence.

    8.2  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  This article includes the right to respect for physical integrity. Thus forms of punishment and treatment which do not reach the level of severity required to be judged "inhuman or degrading" in breach of Article 3 may breach this article. Breaches of privacy could include, for example, school procedures relating to maintenance of and access to school records (the Data Protection Act 1998, which implemented the Data Protection Directive, based on Article 8, may also be relevant to the keeping and use of school records), other information passed to or from schools to other agencies or institutions, or interference with students' correspondence from/to boarding school; also use of CCTV and possibly restrictions on personal appearance, hair length, dress, etc. (using Article 8 alone or in conjunction with Article 14). Breaches of confidentiality in students' relationships with teachers or other staff (school nurses, education welfare, etc.) could raise issues.

  Other aspects of life in boarding schools, and possibly in day schools, including the physical environment and design, may breach students' privacy: for example, communal showers, toilets without doors or locks, lack of private space/storage space. Discrimination issues could be raised in relation to gender, to disability, requirements of religion, etc. The right to private and family life has been held to include the right "to develop a personality", which could raise questions about children's access to their own school records, and some aspect of segregation.

  Forced searching of students is potentially a breach, but interference is allowed if it is "in accordance with the law" (case law suggests this means that procedures would have to be set out in law) and necessary in a democratic society for public safety, prevention of disorder or crime, protection of health or morals, or for the protection of the rights and freedoms of others.

  Any case involving the compulsory segregation of children in a boarding school, particularly if this is against parents' wishes, could be found to violate their right to family life.

Article 9: Freedom of thought, conscience and religion

    9.1  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

    9.2  Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

  In the HRA, section 13 places a special emphasis on this Article: "If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right".

  The lack of any right in education legislation for children themselves to opt out of religious education and worship in schools (the right can only be exercised by parents) should raise an issue under this Article, as potentially does lack of respect for students' rights where they are in conflict with parents' religious convictions. But Protocol 1, Article 2 requires the State to "respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions". This provision reflects the insensitivity of the ECHR to children's rights and conflicts with the assertion of children's freedom of religion in Article 14 of the UN Convention on the Rights of the Child.

  Interference with students following the requirements of their religion in relation, for example, to dress, food or fasting, times of worship, etc. could constitute breaches. Lack of appropriate non-discriminatory arrangements for any particular religions (and for atheists and agnostics) could raise issues under Article 9 read with Article 14 (discrimination in enjoyment of rights). So could preferential funding and other arrangements for schools with a particular religious nature. The current legal requirement for a compulsory act of primarily Christian worship in all State schools also raised potential breaches, particularly for the children of atheist/agnostic parents for whom disqualification of the requirement would not easily be obtained.

  Arrangements allowing schools to select students on the basis of the religion of their parents appear to be justified by Protocol 1 Article 2 (see below).

Article 10: Freedom of expression

    10.1  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises.

    10.2  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

  The limitations on this right are set out in detail in the second paragraph. An application by a parent asserting that strict school uniform regulations breached Article 10 (and also Article 2 of Protocol 1) was declared inadmissible by the Commission in 1986. But the decision stated "although the right to freedom of expression may include the right of a person to express his ideas through the way he dresses, it has not been established on the facts of the case that the applicant's children have been prevented from expressing a particular opinion or idea by means of their clothing" (Decision on admissibility of application 11674/85, March 1986). This decision was made 15 years ago, since when the European Court has become more sensitised to children's rights (and it must be remembered that the Court regards the Convention as a "living instrument", to be interpreted in the light of present-day conditions). In any case this decision leaves open the possibility that regulations or limitations on personal appearance—hair length, tattoos, studs, political badges, etc—could breach children's rights.

  It is hard to see how the relatively narrow exemptions in paragraph 2 of the Article can justify uniform regulations other than for certain activities on grounds of safety (often used to justify broad banning of jewellery, long hair, etc.). Yet the DfEE is currently (2001) proposing that serious violations of uniform regulations should be a justification for school exclusion (see also First Protocol, Article 2). A case upholding the right of a Dutch citizen to wear anti-abortion stickers suggests that freedom of expression does include clothing.

  Discriminatory uniform regulations could breach Article 10 read with Article 14 (no-trousers rules for girls may also breach equality legislation—see recent case supported by the EOC); also regulations which deny children the right to wear clothes, etc. dictated by their religion could breach this Article and Article 9, as noted above.

  Limitations within the curriculum or to do with its application to particular students could raise issues: rigorous application of a narrow national curriculum, preventing coverage of or discussion of certain topics should be challengeable. Also parents' rights to withdraw children from aspects of sex education could breach the child's rights (and may raise an issue under Article 2—see above).

  Interference with students' contributions to publications or with their own publications, notice boards, web-sites and so on could breach the right unless the interference can be justified as necessary within the terms of paragraph 2 of the Article.

Article 11: Freedom of assembly and association

    11.1  Everyone has the right of freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

    11.2  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

  Limitations on these rights are set out in the second paragraph. Limits on or interference with the activities of students' organisations within schools may breach this Article; also attempts by schools to place limits on students' rights to freedom of assembly and association outside school (refusal to allow students to join demonstrations, for example).

  Students' freedom of peaceful assembly and association must be enjoyed without discrimination (Article 14): this could raise issues relating to gender, disability or other grounds.

First Protocol

Article 1: Protection of property

    Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

    The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

  Restrictions or interference with students' "peaceful enjoyment of possessions", including by confiscation, which are not justified under the terms of the Article could constitute a breach.

Article 2: Right to education

    No one shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

  Currently, children in detention, including those in penal systems, secure accommodation, and detained by court order in mental health institutions, are excluded from any statutory right to education (see related briefing on juvenile justice). Additional discrimination prevents children with statements of special educational needs who move from schools into detention being guaranteed the special provision set out in the statement (this could raise an issue under Article 2 of Protocol 1 read with Article 14).

  An overall lack of sufficient school places in an area at a particular time, or imposition of part-time education for some children—for example, because of a shortage of teachers, could constitute a breach (but not lack of places at a particular school).

  Exclusion from school can constitute a breach, depending on the reasons for it and, presumably, what alternative education is on offer. For example, the Court found that a student's right to education was breached when he was suspended from school because he and his parents refused to accept that he receive or be liable to corporal punishment (Campbell and Cosans v UK).

  A judgement of the Court (Belgian Linguistic Case, 1968) found that the rights protected by this Article are:

    —  a right to access to educational institutions existing at a particular time;

    —  a right to effective education;

    —  a right to official recognition of studies a student has successfully completed.

  But the Court held that none of these rights is absolute; the State may regulate them all. While it may take into account "the needs and resources of the community and of individuals", the regulation must "never injure the substance of the right to education, nor conflict with other rights enshrined in the Convention or its Protocol".

  Read with Article 14, this Article guarantees a right to education without discrimination. Any deprivation of education for particular groups of children—for example asylum seekers, Travellers' children, children excluded from school or forced in a discriminatory way to leave at school leaving age—could constitute breaches. Also, lack of availability of education in their mother tongue for children who have no English could deny them the right to education.

  The compulsory segregation of disabled children into special schools may be tested as discriminatory, but various applications to the Commission on this point have failed (though most recently in 1995, while declaring inadmissible an application concerning the right of a deaf child to attend a mainstream school, the Commission noted the increasing weight of opinion which believed that disabled children should be educated together with other children wherever possible; Klerks v Netherlands, 2512/94, 4 July 1995).

  Children with special needs who miss significant parts of their education because they have to travel to hospitals or specialist centres for therapy which could be provided within schools may also have a claim under this Article.

  The second sentence of Article 2 requires the State to respect the right of parents to ensure education and teaching "in conformity with their own religious and philosophical convictions": see also Article 9 above. While not about children's rights, where children share their parents' religious or philosophical convictions, the Article may reinforce the right to freedom of religion under Article 9. Philosophical convictions that disabled children should be educated in mainstream schools have not as yet been accepted by Strasbourg.

    The UK has entered a reservation to this provision in Article 2 of the First Protocol: ". . . a view of certain provisions of the Education Acts in force in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure".

CHILDREN IN FAMILIES AND IN THE CARE SYSTEM

The general picture

  Although there is a large body of Strasbourg case law in this area, the extent to which these cases will act as strong precedents for the UK courts may be limited. First, many of the judgements arise from specific family circumstances which will not necessarily apply to other cases. Second, the Court of Human Rights is traditionally reluctant to substitute its own judgement for the domestic family court, and the same approach may well be taken by the UK courts. Third, many of the cases are essentially about parents' rights, while children's rights remain relatively undeveloped. Fourth, the European Convention on Human Rights is held to be a "living instrument", whereby previous rulings may be ignored "in order to ensure that the interpretation of the Convention reflects societal changes, and remains in line with present-day conditions". Certainly courts and governments have become progressively more respectful of children as rights-holders. The UN Convention on the Rights of the Child is particularly likely to have a rapidly increasing influence on interpretations of the European Convention.

  As a rule children tend not to take cases themselves but rely on a close adult to do this for them. Difficulties may arise if their case is about their parent or carer. The European Commission has in the past refused to accept cases submitted on behalf of children except where the applicant is a parent with legal custody. One issue for consideration therefore is how children who are victims of human rights violations perpetrated by their parent/carer will manage to take an action under the Human Rights Act.

    Awaiting judgement: two important cases

    UK law in this area may soon be affected by two important cases, Z and others v UK and TP and KM v UK, currently awaiting judgement by the European Court. If the Court upholds the Commission's rulings, the implications for local authorities and other public authorities will be considerable.

    Z and Others v UK concerns four children who were severely neglected and ill-treated for five years before being protected by Bedfordshire local authority taking care proceedings. The Official Solicitor took a negligence action on behalf of the children but the House of Lords decided that the authority enjoyed immunity on public policy grounds. However the European Commission unanimously found violations of article 3 and 6.

    TP and KM v UK, on the other hand, involved a child who was wrongly taken into care because the abuser named by the child in the investigation video was mistaken for the mother's boyfriend, though the child explicitly exonerated him, and the mother was not given access to the video for a year, when her new baby was threatened with care. The House of Lords dismissed the mother's claim for negligence on the grounds that the local and health authorities could not be held liable for the actions of the social worker and psychiatrist involved. The Commission, however, found violations of articles 9, 6 and 13.

  The President of the Family Court issued a practice direction on 24.7.2000 that if a question arose under the Human Rights Act in family proceedings, then authorities cited should consist of the original texts and be authoritative and complete reports; cases concerning declarations of incompatibility should be reserved to High Court judges; claims in respect of judicial acts should be heard and determined in High Court judges or county court circuit judges.

Article 14—the overarching principle of non-discrimination

    14  The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

  Article 14 must always be read in conjunction with one or more of the Convention rights, though the connection with a substantive article (articles 2-12) can be a fairly loose one.

    Potential Violations

    1.   Children in families

      Variation between countries and federated jurisdictions has tended to be allowed under the European Court principle of "the margin of appreciation"; however an issue could arise over, for example, the fact that, whereas the Children (Scotland) Act places parents under a duty to consult their children about major decisions, English and Northern Irish children's legislation does not.

    • Discrimination against the children of unmarried parents has been firmly criticised by the European Court—such children should be "placed legally and socially in a position akin to that of a legitimate child". Children's rights of contact with unmarried fathers, for example, may be challenged; any discrimination in welfare or tax benefits against the children of unmarried parents could also be considered.

    2.   Looked after children

    • Looked after children, or wards of court, may also claim discrimination in the exercise of their rights. For example, local authority social services departments may be less robust in appealing against school exclusion, admission or special education appeals. Wards of court may claim discriminatory limitations on their freedoms, for example on their right to talk to the media.

Article 3

    3  No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

  The European Court and Commission have ruled that treatment that is mildly degrading or inhuman will not be found to be a violation of article 3. The violation must reach a "minimum level of severity". This is partly because the Convention permits no justifications to excuse an Article 3 violation. No matter how dreadful the behaviour of the claimant nor how compelling the State's reasons for its actions, if a breach of article 3 is found then the Court must find against the State.

  However Article 8 should also be considered in relation to potential violations of Article 3, in that Article 8 protects individuals from less extreme forms of inhuman and degrading treatment. This is because Article 8 includes the provision that: "Everyone has the right to respect to private...life". The concept of privacy includes the "physical and moral integrity of the person", such as protection against minor forms of assault. An invasion of privacy may involve a degree of public humiliation, which is recognised as one element of "degrading". It should be noted that Article 8(2) does provide a list of reasons whereby States may be justified in not respecting the article's rights.

  As well as not perpetrating inhuman and degrading treatment, the State and public authorities under the HRA have active obligations to prevent and deter such treatment.

    Potential Violations

    1.   Children in families

    • Although a previous European Court ruling has found that relatively mild blows do not reach article 3's "level of severity", challenges should be considered in any case in which parents or others are acquitted of assault charges on grounds of "reasonable chastisement"—for example, where a child has been publicly humiliated though not physically harmed, or where "provocation" has been used to justify the chastisement. A v UK, involving the caning of a young boy by his stepfather, confirmed the principle that the State is responsible for ensuring that children are protected even within the privacy of the family. In response the Government has proposed minimum changes to the law on physical punishment.

    • Other forms of mistreatment of children by parents which are permitted by law or the authorities: for example, the neglect suffered by the children of Z and Others v UK included lack of hygiene with consequent social ostracising. Mistreatment based on cultural or religious traditions should also be challenged, for example forced arranged marriages. While such cases may be difficult to mount, they can be vital in establishing human rights as the framework for cultural diversity.

    • In some cases failures to maintain contact between child and parent may amount to a violation of article 3, but in most cases this will be an issue under article 8.

    • Women's aid refuges and others involved in domestic violence have expressed concern about violent fathers compelling contact orders on reluctant children, or access arrangements failing to protect children. Applications by children under the HRA are arguably more likely to succeed than those of mothers.

Lack of adequate protection of children in private forms of fostercare.

    2.   Looked after children

    • In Z and Others v UK (see above) the Commission found a violation of article 3, citing as relevant the slowness of the authority to convene a case conference, the failure to put the children on the at risk register or to take them into care or to assign social workers or to obtain alternative accommodation or respite care. It also noted the fact that the guardian ad litem was only appointed to represent the children's interests at the point care proceedings were instituted. These are all issues which, in themselves, do not amount to a violation of article 3 but if these failings can be shown to contribute to a child suffering severe mistreatment, then the authorities will become liable. Many looked after children do not have social workers assigned to them, or experience delays in responses to complaints of mistreatment.

    • The children's homes regulations contain a series of prohibitions, but not a general prohibition on inhuman or degrading treatment. Mistreatment of children in residential institutions could amount to a breach of article 3, or, if less severe, of article 8. The head of home, even members of staff exercising their discretion, could directly be challenged under the Act for hurtful or humiliating forms of discipline or control.

    • Failure to protect children from other children could also be a violation—for example where they are not protected from bullying, or where the victims of abuse are accommodated alongside perpetrators of abuse.

Article 5

    5.1  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

    (a)  the lawful detention of a person after conviction by a competent court;

    (b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

    (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence of fleeing after having done so;

    (d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

    (e)  the lawful detention of persons for the prevention of spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

    (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken or with a view to deportation or extradition.

    5.2  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

    5.3  Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

    5.4  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

    5.5  Everyone who has been a victim of arrest or detention is contravention of the provisions of this Article shall have an enforceable right to compensation.

    Potential Violations

    1.   Children in families

    • English law is unsatisfactory about the degree to which parents can deprive children of their liberty. The finding of the European Court in the Neilsen case (in which a 12 year-old Danish boy objected to his mother admitting him involuntarily to a mental hospital) is also regrettable. Further challenges can be expected in this area.

    2.   Looked after children

    • The prescriptive list of reasons under 5(1) raises the possibility of challenging secure accommodation orders under section 25 of the Children Act since some of the grounds for the order—running away, prostitution, self-harm etc.—appear not to be allowable reasons for deprivation of liberty. However, a Court of Appeal case in November 2000 held that section 25 in most cases would fall within Article 5(1)(d) because "educational supervision" could be interpreted widely as including a range of parental duties to benefit and protect the child. (Re K (a child) secure accommodation order: right to liberty, CA, 15.11.00) This still leaves in theory the possibility that a section 25 order would breach article 5(1), particularly if the deprivation of liberty could be shown to have had a detrimental effect on the young person.

Article 6—right to a fair trial

    6.1  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

    6.2  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

    6.3  Everyone charged with a criminal offence has the following minimum rights:

    (a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

    (b)  to have adequate time and facilities for the preparation of his defence;

    (c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

    (d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    (e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

  This article covers "determination of civil rights and responsibilities" as well as criminal charges. These have been recognised by the European Court as including contact, custody and guardianship issues (but even if a family issue is excluded from the ambit of article 6, article 8 may guarantee procedural rights if people suffer arbitrary interference in their family life). Parents must have full participation rights, including access to relevant reports and documents. Article 6 also guarantees a hearing "within a reasonable time"—heavy workloads and lack of resources have not been accepted as excuses for delay.

    Potential Violations

    1.   Children in families

    • Parents have an automatic right to apply for any section 8 order in respect of their children; where children are concerned the court "may" grant them leave to make a section 8 application if it considers they have sufficient understanding to do so. Given section 8 is about the child's life, it could be argued that the court "shall" grant leave to any competent child in the same way it must grant leave to parents.

    • Failure to provide children with independent representation in divorce proceedings, for example if children have difficulties in making applications for contact with parents or other relatives, or if there were inadequate investigation into the child's circumstances.

    2.   Looked after children

    • Care plans which involve any significant life changes for children arguably should be authorised by a court hearing. Some cases have suggested that parents should apply for a discharge of a care order if there is dissatisfaction with a care plan, but clearly this may not be possible in some circumstances, and does not solve the problem if it is the child, rather than the parent, who objects to a care plan.

    • A finding of violation of article 6 in TP and KM v UK (see above) may produce changes in the ways in which children are represented and kept informed in child protection proceedings.

    • The right of courts to exclude children from secure accommodation hearings if this is thought to be in their best interests may be open to challenge. Children are not excluded from criminal proceedings which deprive them of their liberty.

Article 8

    8.1  Everyone has the right to respect for his private and family life, his home and his correspondence.

    8.2  There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

1.   Children in families

  The definition of family is probably where the Human Rights Act will most show the effects of social change. At present the European Court always recognises the family bond between child and mother, and, though not consistently, it has also respected the family rights of unmarried fathers—even ones who have had little or no contact with the child. The Family Court has ruled that such rights will not be automatic, but will be recognised on the basis of the facts of the case (In re H (a child) (Adoption: Disclosure); In re G (a Child) (Adoption: Disclosure), FD, 30.11.2000). Otherwise existence of a family is dependent on the circumstances of the relationship: "it depends on real existence in practice of genuine and close family ties" (K v UK 1986).

    Potential Violations

    • There are some precedents for respecting the rights of grandparents and siblings to protection under article 8; however the family claims of gay or lesbian co-parents, foster-parents, step-parents and other relatives are still to be fully tested as there are as yet only inconclusive European Court rulings on such issues. In particular, there are likely to be many more cases which are taken from the perspective of the child's right to this relationship rather than the adult's. The European Court has upheld the principle that child's best interests "trump" parent's rights, but of course best interests are not the same thing as the child's views or wishes, and there may be a conflict between long-term and short-term best interests (for example being in the short-term "settled" in a placement, but in the long-term needing contact with birth family). In some cases the wishes of children have been disregarded, but in other cases the wishes of older children are at least a relevant factor, and under the Children Act 1989 children's wishes must be one consideration, though not a determining one.

    • Cases where children seek to know the identity of their biological parent: "private" life under article 8 includes the right to identity. Article 7 and 8 of the Convention on the Rights of the Child give children rights to identity and to "know" their parents. The increase in artificial methods of conception is likely to give rise to cases. Cases taken by putative fathers wanting to know their relationship to children are rarely successful—but children themselves have not yet taken such cases. A case could also be raised by an adoptive child who wanted to know the identity of biological parents before his or her eighteenth birthday.

    • Cases where custodial parents are given leave by the court to live abroad might also be challenged under the Act by the child or by the non-custodial parent, though there would have to be compelling arguments as leave is granted on the grounds that this would be in the child's interests.

    • Children could challenge the placements of parents in prisons at long distances from themselves, or even the imprisonment of a custodial parent per se.

    • Article 8 is about protecting existing families not making new ones, therefore one might expect the rights of birth parents would be stronger than prospective adoptions. There may be some human rights challenges to Government's current plans to accelerate and increase the number of adoptions, if the new legislation does not include competent children's rights to veto an adoption.

2.   Looked after children

  It is well established in both European and domestic law that parents and child lose the right to live together when this is deemed necessary for the best interests of the child. The determination of best interests has been seen as a matter for domestic family courts. However this right must be accompanied by a fair and transparent process (going further than the requirements of article 6), and must not be simply on the grounds that the family is poor or that the child would be better off in another family. On the other hand the Court has held that there are no rights under the Convention to welfare assistance to help parents to care for children at home. The grounds for separation must be "sufficiently sound and weighty", very compelling, and, until the child's best interests show otherwise, the presumption must be that children in care will be rehabilitated.

    • The decision to terminate contact between looked after children and their parents is subject to court review; but children's contact with siblings and wider family members is not.

    • "Home" under article 8 includes the concept of a residential home, and therefore children's challenges to homes closures might well succeed under article 8, particularly if there is no great saving to public funds in the closure or the move.

    • Treatment of looked after children which is humiliating or unnecessarily invasive of personal integrity which children in normal families would not experience, for example, if looked after children are required to have their friends police-checked before they are allowed to stay with them.

    • Challenge to situation where children in care no longer have an identifiable parent because there is no social services committee or director of social services.

Protocol 1 Article 2—right to education

    No one shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

  The Government has entered a reservation to the second right, accepting it "only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure". "Education" has been broadly interpreted to include the upbringing of a child.

    Potential Violations

    Children in families

    • As yet the European Court has not had to consider the potential conflict between the child's rights under this article. The logistical problems for children in challenging their parents' religious or philosophical convictions are considerable, but it is likely that such challenges are likely to emerge over the next decades—for example, parents withdrawing children from religious or sex education, or forcing children to practice a particular religion.

      Looked after children

      • Many looked after children are out of school and are not provided with sufficient full-time education as is their right. Social services may be insufficiently rigorous in acting as their parent when challenging the actions of their colleagues in local education authorities.

      • Exclusion of detained children (including those in secure units) from rights to education.

      • The Children Act provides that local authorities must, when making decisions about looked after children, give due consideration to "the child's religious persuasion, racial origin and cultural and linguistic background", and equal weight must also be given to the children's views and the parents' views. The Act does not give guidance about what to do if there is conflict between these factors: it may be up to the Human Rights Act to determine at this point.

    THE YOUTH JUSTICE SYSTEM

      The European Convention on Human Rights (ECHR) was not written with children in mind and does not uphold some of the fundamental principles of juvenile justice endorsed by other international treaties, notably the UN Convention on the Rights of the Child. However, increasingly the European Court's rulings have acknowledged the special vulnerability and rehabilitative needs of young offenders. This growing recognition means that, even where there are unhelpful earlier European Court decisions, it may still be well worth challenging the treatment of juveniles in the criminal justice system, particularly if the UN Convention on the rights of the Child, or the UN Rules and Guidelines relating to the treatment of young offenders, can be relied upon.

      Prison officers, police and Youth Offending Teams (YOT's) members are liable to be deemed "public authorities" and therefore subject to challenges under the Human Rights Act (HRA).

    Article 14: The overarching principle of non-discrimination

      14  The enjoyment of the rights and freedom set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

      Article 14 must always be read in conjunction with one or more of the Convention rights, though the connection with a substantive article (articles 2-12) can be a fairly loose one.

      Potential Violations

      • Discrimination against young offenders of 10 and 11 in England, Wales and Northern Ireland if Scotland, as planned, changes its age of criminal responsibility to 12 (though discrimination between a State's federated jurisdictions has not been recognised in some European Court cases).

      • Gender discrimination in sentencing and placement, particularly the placement of remanded 15 and 16 year-old males to prison service custody, as opposed to remanded girls of the same age who have looked-after status in secure accommodation.

      • Children sentenced to detention and training orders who do not have remand time taken into account, unlike others sentenced to custody.

      • Remanded children, who are treated in exactly the same way, or worse than, convicted children.

      • year-olds who are denied rights other children have under the Police and Criminal Evidence Act 1984 and remand legislation.

      • Discrimination against children because there are maximum six-month custodial sentences for adults versus the maximum two year sentence for equivalent offences for children; and the fact that the minimum custodial sentence for juveniles is four months whereas adults may be imprisoned for only a few days.

    Article 2: Right to life

      2.1  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

      2.2  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary;

      (a)  in defence of any person from unlawful violence;

      (b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained

      (c)  in action lawfully taken for the purpose of quelling a riot or insurrection

      The European Court has found that the state is not only obliged to refrain from taking life but should take appropriate steps to safeguard life. Where the state potentially bears responsibility for loss of life the events should be subject to an effective investigation which enables the facts to be known, particularly to the relatives of the victim.

      Potential Violations

      • Suicides of children in custody, particularly if there are grounds to suggest that the conditions of the placement significantly contributed to their actions (for example if young people were exposed to known bullying) or if there is an adequate investigation of the death. Failure of YOT's to identify such children as "vulnerable" could also amount to incompatibility with the Act, as could a failure to place vulnerable children in secure accommodation or at long distances from their family because of shortage of places. Failure by prison authorities to observe, counsel or treat suicidal children in custody could also be challenged.

    Article 3 (and 8): Protection from inhuman or degrading treatment

      3  No one shall be subjected to torture or to inhuman or degrading treatment or punishment

      The European Court and Commission have ruled that treatment or punishment that is only mildly degrading or inhuman will not be found to be a violation of article 3. The violation must reach a "minimum level of severity". This is partly because the Convention permits no justifications to excuse an Article 3 violation. No matter how dreadful the behaviour of the claimant nor how compelling the State's reasons for its actions, if a breach of article 3 is found then the Court must find against the State.

      However Article 8 should also be considered in relation to potential violations of Article 3, in that Article 8 protects individuals from less extreme forms of inhuman and degrading treatment. This is because Article 8 includes the provision that: "everyone has the right to respect to private...life", and the concept of privacy includes the "physical and moral integrity of the person"; an invasion of privacy may involve a degree of public humiliation, which is recognised as one element of "degrading". It should be noted that Article 8(2) does provide a list of reasons whereby States may be justified in not respecting the article's rights.

      As with Article 2, the state (and public authorities under the HRA) has an active obligation to prevent and deter inhuman or degrading treatment.

      Potential Violations

      • The treatment of young people in custody, including "civil" secure units, secure training centres and young offender institutions, for example those condemned by the Prison Inspectorate. The organisations Howard League for Penal Reform and The Children's Society are particularly involved in this issue.

      • Treatment of young people in police stations (for example where the local authority refuses to accept the transfer of a child detained under the Police and Criminal Evidence Act 1984) and in court proceedings, and the transportation of detained children in adult "meat wagons".

      • Placing juveniles with adults (particularly as this amounts to a breach of the UN Convention on the Rights of the Child).

      • Placement of small numbers of girls with large numbers of boys in mixed secure accommodation.

      • Placement of self-harming non-offending children in "penal" secure units, that is those with contracts with the Youth Justice Board.

      • Where "restorative justice" involves an element of public humiliation—for example organising young offenders into work teams with special uniforms.

      • Criminal penalties for child prostitution.

    Article 4: Forced labour

      4.1  No one shall be required to perform forced or compulsory labour

      4.2  For the purpose of this article the term "forced or compulsory labour" shall not include:

      (a)  any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

      (b)  any service of military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

      (c)  any service extracted in case of an emergency or calamity threatening the life or well-being of the community;

      (d)  any work or service which forms part of normal civic obligations.

      Potential Violations

      • Violations could be considered in relation to requirements in supervision orders, reparation orders, action plan orders, community service orders or combination orders. For example, there might be issues around the health and safety or number of hours younger children (10-13 year-olds) are made to work under reparation orders. However the constructive and educational nature of these penalties diminish the likelihood of a violation being found (although compulsory education is not specifically mentioned in the list of exemptions, one can be confident that any court would find that it was part of "normal civic obligations").

    Article 5: Arbitrary detention

      5.1  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

      (a)  the lawful detention of a person after conviction by a competent court;

      (b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

      (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

      (d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bring him before the competent legal authority;

      (e)  the lawful detention of persons for the prevention of spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

      (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken or with a view to deportation or extradition;

      5.2  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

      5.3  Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

      5.4  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

      5.5  Everyone who has been a victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

      Potential Violations

      • Where detention is indeterminate or for "preventive" reasons (unsound mind etc.) the Court has held that periodic reviews are required. The European Court ruling regarding the sentencing in the Bulger case (T v UK and V v UK 1999), and in other cases involving adults, raises the possibility of further challenges to indeterminate forms of sentencing where children and young people are concerned. The UK voluntary organisations Justice and Liberty are particularly involved in pursuing these issues.

      • The prescriptive list of reasons under 5(1) permitting deprivation of liberty begs questions about secure accommodation orders under section 25 of the Children Act since some of the grounds for the order—running away, prostitution, self-harm etc—appear not to be allowable reasons for deprivation of liberty. However, a Court of Appeal case in November 2000 held that section 25 in most cases would fall within Article 5(1)(d) because "educational supervision" could be interpreted widely as including a range of parental duties to benefit and protect the child. (Re K (a child) secure accommodation order: right to liberty, CA, 15.11.00). This still leaves in theory the possibility that a section 25 order would breach article 5(1), particularly if the deprivation of liberty could be shown to have had a detrimental effect on the young person.

      • Unnecessary delays in bringing remanded young people to trial.

      • 24-hour curfews of young people only allowed out if accompanied by a parent.

      • Some aspects of bail—for example, automatic refusal if the person is alleged to have committed an offence whilst on bail or the special "welfare ground" for refusing bail to children.

    Article 6: Right to a fair trial

      6.1  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

      6.2  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

      6.3  Everyone charged with a criminal offence has the following minimum rights;

      (a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

      (b)  to have adequate time and facilities for the preparation of his defence;

      (c)  to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

      (d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

      (e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

      Article 6 includes the minimum procedural rights of children caught up in the criminal justice system. "Criminal charge" includes arrests, prison discipline, extradition procedures. The right to silence is not explicitly set out in Article 6, but it is in the International Covenant on Civil and Political Rights (ratified by the UK) which the European Court takes into account.

      European Court rulings have suggested that the burden of proof of guilt under article 6.2 should be "beyond reasonable doubt". Anti-social behaviour orders could thus be subject to challenge. However, a UK court has now held that anti-social behaviour orders involve civil rather than criminal proceedings and so article 6(2)-(3) does not apply (R v Manchester Crown Court, Ex parte McCann and Others, QBD, The Times, 22 December 2000). The reasons for this judgement seem rather circular: because the due process rights of criminal proceedings were not present and because the order was not to punish but to protect others, the matter was deemed to be civil.

      Potential Violations

      • A young person who wrongly accepted a reprimand or final warning, for example because the charge was not correct, particularly if he or she had not been fully advised of the consequences of accepting the reprimand or warning or had been subjected to undue pressure to do so.

      • Where a child with limited understanding or a child whose first language is not English, does not fully understand the charge.

      • Procedures dealing with breaches or YOT-devised rehabilitation programmes in response to final warnings. These breaches may be reported to courts and affect sentencing, though there is no hearing to confirm the breach, or tribunal available to challenge the suitability of the programme.

      • The lack of provision for legal representation when panels determine the contents of a referral order and consider aggravating or mitigating features.

      • The committal of children to crown courts if that mode of trial is inappropriate to the understanding of the child (see article 6(3)(a)). Also remands of children from adult magistrates' courts when there is no youth court sitting or there is an adult co-accused (research suggests that disproportionately more children are remanded to custody from the adult court).

      • Children denied access to free legal assistance if their well-off parents refuse to pay legal fees.

    Article 7: No punishment without a legal offence

      7.1  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

      7.2  This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

      This article covers fundamental rights of those charged with criminal offences and is unlikely to be breached unless the defendant was not legally represented when convicted.

    Article 8:  Right to private and family life

      8.1  Everyone has the right to respect for his private and family life, his home and his correspondence.

      8.2  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

      Potential Violations

      • A QC's Opinion has advised that curfew orders which impose curfews on geographical areas rather than individuals are a potential breach of parents' rights under this article, as they are not "necessary". If the age for curfew orders is raised to 14 or over, children's own rights may be breached.

      • Challenges to mistreatment of young offenders in custody, interference with correspondence or unreasonable searching would also largely rely on this right, assuming that it does not meet the "severity" test for an Article 3 violation.

      • Placement of very young offenders at a distance from their families and friends.

      • the "naming and shaming" of young offenders could be challenged as a disproportionate interference with their rights to privacy.

      • Privacy issues also arise from the sharing of confidential information about children and their families amongst the various agencies involved in youth offending teams.

      • Requirements within parenting orders or child safety orders may also raise issues because the order is disproportionate to the violation of privacy or family life.

    Article 10:  Freedom of expression

      10.1  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises.

      10.2  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

      Potential Violations

      • Controls and censorship of correspondence in youth custody could be considered in relation to this article.

    Article 11: Freedom of association

      11.1  Everyone has the right of freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

      11.2  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

      Potential Violations

      • Unreasonably long incarceration in cells.

      • Curfewing of children within a geographical area, rather than in relation to the individual (see article 8).

    First Protocol Article 2: Education

      No one shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

      Potential Violations

      • The Education Act's disqualification of "persons detained under order of the courts" from educational rights under education law (section 562 of the 1996 Act), including all legal entitlements to special needs provision. This is also discrimination under Article 14.

    CHILD HEALTH AND CHILD PROTECTION

    Article 14—the overarching principle of non-discrimination

      14  The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

      Article 14 must always be read in conjunction with one or more of the Convention rights, though the connection with a substantive article (articles 2-12) can be a fairly loose one. So Article 14 should be applied to review the enjoyment of each right by all children affected by health issues and child protection. Varying enjoyment of rights by different groups of children, or between children and adults, may cause unjustifiable discrimination.

    Article 2: Right to life

      2.1  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a court following his conviction of a crime for which this penalty is provided by law.

      2.2  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary;

      (a)  in defence of any person from unlawful violence;

      (b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

      (c)  in action lawfully taken for the purpose of quelling a riot or insurrection;

    Health

      Obligation to protect life by law. In 1978, an application against the United Kingdom by an association representing parents whose children had died or suffered lasting or severe damage as a result of vaccination was declared inadmissible by the European Commission on Human Rights. But the Commission stated that the first sentence of the article imposes a broader obligation on the state than that contained in the second sentence. "The concept that `everyone's life shall be protected by law' enjoins the state not only to refrain from taking life `intentionally', but, further, to take appropriate steps to safeguard life" (Application 7154/75, Association X v UK, Decision July 12 1978).

      Commentators have suggested that the article covers both "intentional deprivation" and "careless endangering" of life.

      It is not clear that current UK health legislation provides a sufficient obligation to protect "by law" children's lives without discrimination (Article 2 and Article 14).

      The variation in availability of specialist treatment facilities for seriously ill babies and children in different regions plainly causes discrimination in protection of the right to life (for example, lack of specialist intensive care facilities and staff, including neonatal care, heart surgery, paediatric oncology units, as well as specialist treatment for rare disorders, etc). The European Court has generally resisted discrimination cases based on claims of discrimination between federated regions of a state.

      "Rationing" of certain forms of treatment and withdrawal of treatment from very premature or disabled babies could raise issues, as could discrimination inherent in such policies (reading Article 2 or 3 with Article 14).

      Failure to provide adequate protection of a suicidal patient in a health institution could constitute a breach (there is a current case at Strasbourg involving care of a suicidal prisoner: Keenan v UK; found admissible by Commission in 1998).

    Obligation to inform potential victims of health risks. Where State action poses a real threat to life there is an obligation to inform the potential victim of the threat. In a 1998 judgement the Court considered an application by a woman who had developed leukaemia as a child. She claimed that the failure of the State to warn her father of the possible risk to his children's health caused by his involvement in nuclear tests on Christmas Island in 1957 breached Article 2 (LCB v UK). The Court found no breach, but indicated that if at the time it had been thought that her father's exposure to radiation constituted a real risk, then the State would have been obliged to warn of it.

    Unborn children. In relation to abortion, the Commission has stated that Article 2 does not recognise the right to life of the unborn child as absolute, but it has left unresolved whether the unborn child enjoys any protection under Article 2, or enjoys protection subject to limitations. Reading Article 14 with Article 2, an issue could be raised by the fact that abortion is legal up to a later stage of pregnancy where the foetus is disabled. Abortion without the consent of a pregnant young woman and forced sterilisation of children could perhaps be challenged under Article 3 (inhuman or degrading treatment) or Article 8 (right to physical integrity, etc)—see below.

    Requirement for effective inquiry where State may bear responsibility for death. In another UK case declared inadmissible by the Commission, an unqualified nurse had been found responsible for deaths and serious injury of children in her care. The nurse was successfully prosecuted and a public inquiry was held, but parents argued that this was inadequate to satisfy Article 2. While rejecting the detailed legal procedures which the parents proposed, the Commission stated "where a State or its agents potentially bear responsibility for loss of life the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims"; there have been similar findings in relation to more recent cases concerning procedures to investigate child deaths.

    Child Protection

      In relation to child protection, issues may be raised under the Act where public authorities know that a child is at serious risk of death (or—under Article 3—at serious risk of torture or inhuman or degrading treatment or punishment; see below) and are not required/do not take appropriate action to protect. There has been no test yet of whether the duties in the Children Act 1989, Part V, on protection of children (including the local authority duty to investigate—section 47) amount to the protection of life by law required by Article 2. The arrangements for establishment and maintenance of child protection registers and area child protection committees are not at present set out in legislation, only in guidance, and there is no legal duty to act to protect children placed on a register. Studies in various regions have found many children on registers for long periods with no social worker assigned to the case.

      In its recent judgement in the case of Osman v UK (in which a teacher developed an obsessional relationship with a young boy, leading to harassment, various attacks on his home and a shooting incident in which the boy was injured and his father killed), the Court established that the obligation to protect life under Article 2 may involve an obligation to take preventative operational measures to protect an individual whose life is at risk from another. The obligation will arise where it is established that the authorities knew or ought to have known of the existence of a "real and immediate risk to the life of an identified individual... from the criminal acts of a third party and that they failed to take measures within the scope of their powers... which might have been expected to avoid that risk". The Court took particular note of the fact that the application concerned risk to the life of a child. It therefore seems particularly relevant to child protection situations.

      Over the years, various child abuse death inquiry reports have established that there was knowledge of a "real and immediate risk" to a child but that, for whatever reason, the various public authorities involved failed to take sufficient action to protect the child.

      As also noted above, the Commission has found that where the State or its agents potentially bear responsibility for death of a child, there is requirement for some form of public inquiry. Currently, there are the arrangements for inquests. There is also non-statutory guidance on case reviews following the death of a child where abuse or neglect are known or suspected to be a factor; this is set out in Part 8 of "Working Together", the recently revised inter-agency guidance on child protection (Department of Health). While inquests and criminal investigation and prosecution may identify the direct cause of death and pursue the perpetrator, it appears there is no statutory duty to investigate the roles of the various "public authorities" in relation to the Convention obligation to protect the child's life. The Human Rights Act may require the government to establish some statutory system of child death inquiries (a problem is the question of who can bring a case in effect on behalf of a dead child). Also relevant, there is a current shortage of paediatric pathologists.

    Article 3: Inhuman or degrading treatment or punishment.

      3  No one shall be subjected to torture or to inhuman or degrading treatment or punishment

    Health

      Forms of treatment including forced drugging and forced feeding, behavioural regimes and discipline including isolation, etc in health institutions including psychiatric units, regional secure units, mental nursing homes, etc, could breach this article. The Court has held that for Article 3 to be breached a particular level of severity of treatment/punishment must be reached. (Article 8, which includes protection of physical integrity, may allow claims relating to less severe punishment or treatment—see below). Treatment is degrading if it is such as to arouse in its victim feelings of fear, anguish and inferiority capable of humiliating or debasing them and possibly breaking their physical and moral resistance;"... it is sufficient if the victim is humiliated in his or her own eyes."

      The Court has established that medical necessity must be proved for treatment which would otherwise breach Article 3. Some studies have shown that children, including very young children, are not always offered appropriate pain relief.

      Issues may be raised over the growing use of ritalin and similar drugs to control behaviour, where there is no informed consent by the child.

    Child Protection

      In relation to child protection, as discussed under Article 2 above, issues may be raised if public authorities know that a child is at serious risk of torture or inhuman or degrading treatment or punishment and are not required/do not take appropriate action to protect the child. It has not been tested whether the rather weak duties in the Children Act 1989, Part V, on protection of children (including the local authority duty to investigate—section 47) amount to protection from and effective deterrence of torture and inhuman or degrading treatment and punishment as required by Article 3.

      Awaiting judgement: two important cases

          UK law in this area may soon be affected by two important cases, Z v UK and TP and KM v UK, currently awaiting judgement by the European Court. If the Court upholds the Commission's rulings, the implications for local authorities and other public authorities will be considerable:

          Z v UK concerns four children who were severely neglected and ill-treated for five years before being protected by Bedfordshire local authority taking care proceedings. The Official Solicitor took a negligence action on behalf of the children but the House of Lords decided that the authority enjoyed immunity on public policy grounds. However the European Commission unanimously found violations of article 3 and 6.

          TP and KM v UK, on the other hand, involved a child who was wrongly taken into care because the abuser named by the child in the investigation video was mistaken for the mother's boyfriend, though the child explicitly exonerated him, and the mother was not given access to the video for a year, when her new baby was threatened with care. The House of Lords dismissed the mother's claim for negligence on the grounds that the local and health authorities could not be held liable for the actions of the social worker and psychiatrist involved. The Commission, however, found violations of articles 9, 6 and 13.

          The President of the Family Court issued a practice direction on 24 July 2000, that if a question arose under the Human Rights Act in family proceedings, then authorities cited should consist of the original texts and be authoritative and complete reports; cases concerning declarations of incompatibility should be reserved to High Court judges; claims in respect of judicial acts should be heard and determined by High Court judges or county court circuit judges.

      The European Court found in a 1997 judgement (Aydin v Turkey) that the failure of authorities to carry out effective investigation into situations in which Article 3 has been breached may also breach Article 6 (because the ability of the individual to obtain redress through the civil courts may depend on proper investigation and collection of evidence, including medical evidence).

      Forced or repeated examinations of children and/or interrogations in the process of investigation and also insensitive treatment in civil and criminal court hearings could amount to inhuman or degrading treatment.

      Female genital mutilation is in general prohibited—but are current administrative and other procedures adequate to protect girls and young women from it? It has not been tested whether male circumcision (or any other traditional practices) amount to inhuman or degrading treatment; they are often carried out without consent for non-medical purposes on—generally—very young children (and often in unhygienic conditions and without anaesthesia).

      Article 8 (right to family and private life) and Article 9 (freedom of thought, conscience and religion) may also be relevant to these complex and highly sensitive issues.

      Reasonable chastisement: The continuing lack of protection of children from "reasonable chastisement" constitutes a potential breach of Article 3 and Article 8 (together with Article 14, in that there is discrimination in the protection afforded to children under the law on assault and that afforded to adults). The law is currently under review following the European Court's judgement in A v UK (September 1998), but so far the Government has proposed to limit rather than remove the defence of "reasonable chastisement". The case concerned the beating of a young boy by his stepfather; when prosecuted in a domestic court the stepfather used the "reasonable chastisement" defence successfully and was acquitted of assault. The boy applied to Strasbourg and the Court unanimously found a breach of Article 3 and ordered the UK Government to pay the boy £10,000 damages and legal costs.

      The Court found that children and other vulnerable individuals in particular are entitled to state protection in the form of effective deterrence against such serious breaches of personal integrity.

      In addition to parents and other informal carers in the family, childminders, nannies, workers in forms of day-care not defined as nursery education and those providing private foster-care all appear to retain the defence of "reasonable chastisement". The DfEE recently (December 2000) announced that its new National Standards for Day-Care in England will allow childminders to smack children (and smoke around them) with parental permission. In other forms of day-care, it is proposed that there should be guidance for inspection stating that physical punishment should not be used, rather than regulation. The defence of "reasonable chastisement" has only been explicitly removed from those working in schools and nursery education (section 131 School Standards and Framework Act 1998). Regulations applying to children's homes, to foster-care arranged by local authorities and voluntary organisations and to various other settings prohibit corporal punishment but it is not clear what effect these regulations have in relation to the common law defence.

    Article 4: Prohibition of slavery and forced labour

      4.1  No one shall be required to perform forced or compulsory labour

      4.2  For the purpose of this article the term "forced or compulsory labour" shall not include:

      (a)  any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

      (b)  any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

      (c)  any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

      (d)  any work or service which forms part of the normal civic obligations.

    Health

      Regimes for children in psychiatric institutions or private health institutions might conceivably include breaches of this Article.

    Article 5: Right to liberty and security

      5.1  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

      (a)  the lawful detention of a person after conviction by a competent court;

      (b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

      (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

      (d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

      (e)  the lawful detention of persons for the prevention of spreading of infectious diseases of persons of unsound mind, alcoholics or drug addicts or vagrants;

      (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken or with a view to deportation or extradition.

      5.2  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

      5.3  Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

      5.4  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

      5.5  Everyone who has been a victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

    Health

      The "informal" detention of children in mental health institutions with the consent of their parents appears to breach Article 5. Article 5(4) requires that everyone deprived of liberty must be entitled to take proceedings to challenge the detention speedily before a Court. But an unsatisfactory judgement of the Court in 1988 (Nielsen v Denmark) found detention of a boy in psychiatric hospital on the authority of his mother did not breach the Convention—this was largely on the grounds that the conditions in which he was held were found not to amount to "detention" for the purposes of Article 5 (the Commission had found a breach of Article 5). This issue should be carefully reviewed, remembering that the Convention is a "living instrument" to be interpreted in the light of present-day conditions.

      Other forms of deprivation of liberty—children tied to beds, etc—have occurred in mental health institutions, but would probably be challengeable under Article 3 rather than 5.

      The current review of the Mental Health Act needs to be carefully audited for compatibility from the perspective of children's human rights.

    Child Protection

      It appears there are arrangements for court challenge of the various forms of detention for child protection purposes but these should be looked at carefully from the child's perspective.

    Article 6: Right to a fair trial

      6.1  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

      6.2  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

      6.3  Everyone charged with a criminal offence has the following minimum rights:

      (a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

      (b)  to have adequate time and facilities for the preparation of his defence;

      (c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

      (d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

      (e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

    Health

      This article covers "determination of civil rights and responsibilities" as well as criminal charges. There does not appear to have been any clear interpretation as to whether rights to adequate health care are to be regarded as civil rights. Are there administrative procedures that determine whether a child gets treatment which could come within the ambit of Article 6?

    Child Protection

      See findings of the European Commission in the cases of Z and Others v the UK and KM and TP v UK, described under Article 3, above. The Commission found a breach of Article 6 in both cases, because the immunity of the local authority prevented a fair and public hearing of the applicants' civil rights and obligations.

      Are there other child protection procedures which from the child's perspective come within the ambit of Article 6? The Child's ability to challenge the various stages of investigation, etc has not yet been tested.

      An attempt to challenge time limitations on civil actions for sexual abuse in childhood failed in the European Court (the Commission had found a breach of Article 6 read with Article 14—Stubbings v UK). But the Court did suggest that rules on limitations of actions might have to be amended to make special provision for this group of claimants.

    Article 8: Right to respect for private and family life

      8.1  Everyone has the right to respect for his private and family life, his home and his correspondence.

      8.2  There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

    Health

      This article includes the right to respect for physical integrity. Thus forms of punishment and treatment in health institutions which do not reach the level of severity required to be judged "inhuman or degrading" in breach of Article 3 may breach this article.

      Breaches of privacy could include, for example, procedures relating to maintenance of and access to health records, other information passed to or from health agencies to other agencies or institutions, or interference with children's correspondence from/to health institutions. Breaches of confidentiality in children's relationship with health workers and child protection workers could raise issues.

      Other aspects of life in hospitals and other health institutions, including the physical environment and design, may breach children's privacy: for example, communal bathrooms, toilets without doors or locks, lack of private space/storage; also placement of adolescents in adult wards. Discrimination issues could be raised in relation to gender, to disability, requirements of religion, etc.

      Limits on parents' access to children in hospital and other health institutions, and on children's access to their parents in hospital, etc., could breach the child's rights to family life.

      Situations in which the State has intervened to provide medical treatment for a child whose parents have refused treatment have been tested under Article 8. The Article (and Article 2, with or without Article 14) will be relevant to situations in which children consent to or refuse treatment against their parents' wishes.

      Right to a healthy environment: The Court has found that the right to a healthy environment is an implicit part of the right to respect for private life and home (Lopez Ostra v Spain, 1994: the case concerned serious pollution from the legal installation and operation of a treatment plant near to the applicant's—a mother with two children—home).

    Child Protection

      There have been a number of applications to Strasbourg on behalf of parents alleging that child protection interventions have breached their and/or their children's rights to family and private life. In the case of KM and TP v UK, currently before the Court (see Article 3 above), the Commission found that both applicants' rights to family life under Article 8 had been violated.

      Unnecessary separation and limits on access of children to their parents could breach the child's rights under Article 8, including removal of the child rather than the perpetrator of violence from the family home, and situations in which the alternative of providing appropriate support to the family has not been pursued.

      The registration of children on the sex offender register could possibly be challenged under this Article.

    Article 9: Freedom of thought, conscience and religion

      9.1  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

      9.2  Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

      Respect for the child's religious beliefs in relation to treatment and to regimes and conditions within health institutions could raise issues.

    Article 10: Freedom of expression

      10.1  Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises.

      10.2  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

      Restrictions imposed on children who are in-patients in health institutions could raise issues.

    Article 11: Freedom of assembly and association

      11.1  Everyone has the right of freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

      11.2  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the right and freedom of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

      As with students' rights in schools, there could perhaps be breaches of this Article for children in health institutions.

    First Protocol Article 1: Protection of property

      Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

      The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

      Restrictions or interference with children's "peaceful enjoyment of possessions" in health institutions which are not justified under the terms of the Article, including by confiscation, could constitute a breach.

    First Protocol Article 2: Right to education

      No one shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

      The first sentence asserts that "No person shall be denied the right to education". Currently, children in detention, including those in penal system, secure accommodation, and detained by court order in mental health institutions, are excluded from any statutory right to education (see related briefings on education and juvenile justice). Most children in mental health institutions are not compulsorily detained but are there as "informal" patients with the consent of their parents. As such it appears they are not excluded by law from a right to education—but their right to education may not be adequately protected.

      The UK has entered a reservation to this provision: ". . . in view of certain provisions of the Education Acts in force in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure".


 
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