Joint Committee On Human Rights Tenth Report


6  CARE AND PROTECTION

Violence against Children

  76.  The UN Committee expressed concern in its Concluding Observations about what it described as "growing levels of child neglect".[131] It did not provide evidence of a deteriorating situation in this regard. The report of Lord Laming's inquiry into the death of Victoria Climbié, however, did draw attention to serious deficits in child protection services, and the Government is considering his recommendations. Its response should take into account the recommendations of the UN Committee as well.

  77.  In this context, it is worth recalling the words of the then Secretary of State for Health to the House of Commons when presenting Lord Laming's report—

    Time after time, Kouao [Victoria's murderer] was interviewed and spoken to. Her needs were assessed and she had frequent and continual meetings with social care staff and other staff in the caring professions. It is noticeable that at virtually no point did anyone bother to ask Victoria what was happening to her.[132]

Listening to children is not just about public consultation—it is about the everyday work of our public services as well. It can sometimes be a matter of life or death.

  78.  The UN Committee noted that crimes committed against children below the age of 16 years are not separately recorded.[133] The Minister for Children and Young People conceded—

    We certainly need to do more to capture statistics about young people as victims of crime ... although crimes are recorded by the police, whatever the age of the victim, they are not recorded by age … In time we will be able to do that but I have not got a deadline for it. The second problem we have is crime survey … where individuals are asked about their experience of crime. That … has only been 16 upwards. We are doing a one-off extension of that initially which will capture 10-15 year olds … and we should have the results next year.[134]

  79.  We welcome these developments, but we recommend that the Government systematically collect and analyse representative data on violence against children, including data collected from children themselves, which should seek to include: the age and sex of the child, the nature of the violence, by whom it was allegedly committed, whether a prosecution was initiated and if so what the outcome was.

  80.  Anticipating our discussion below of the defence of "reasonable chastisement", we note that records are simply not available to ascertain the extent to which the defence of reasonable chastisement has either been invoked in cases of severe physical assault on children or against charges relating to a "loving smack". In a debate in Westminster Hall on youth policy on 23 January 2003, the Minister for Health stated that the Attorney General was keeping the defence "under review".[135] In order to provide the evidence required to assess the strength of the arguments for and against retaining the defence of reasonable chastisement we recommend that statistics record whether the defence of reasonable chastisement was invoked in cases of violence against children brought to the courts.

The Reservation to the Convention relating to Immigration and Nationality

  81.  The UN Committee reiterated in its Concluding Observations its previous request that the Government review its reservation relating to Article 22 of the Convention with a view to withdrawing it.[136] It made a number of other recommendations relating to the treatment of children within the immigration and asylum system.[137] Article 22 of the Convention provides that—

    States Parties shall take appropriate measures to ensure that a child who is seeking refugee status—shall, whether unaccompanied or accompanied—receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights [under the Convention].

On ratification of the Convention, the Government entered the following reservation—

    The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under [UK] law to enter and remain in the UK, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.

  82.  Article 51.2 requires reservations to be compatible with the object and purpose of the Convention. The Government has argued that the reservation is necessary to preserve the integrity of the immigration laws, by making it clear—

    ... that nothing in the CRC is to be interpreted as creating further legal obligations in respect of those subject to immigration control or to allow entry to be gained to the United Kingdom simply in order to make use of rights under the CRC.[138]

In a report last Session on the Nationality, Immigration and Asylum Bill, we expressed our doubts that a reservation as wide as that which the United Kingdom maintains is necessary for those purposes, or that it is compatible with the object and purpose of the CRC.[139] The UN Committee echoed our doubts—

    ... the Committee remains concerned that the State party does not intend to withdraw its wide­ranging reservation on immigration and citizenship, which is against the object and purpose of the Convention.[140]

  83.  In its written response to the UN Committee the Government did not answer these criticisms directly but stated that the reservation—

    ... is justified in the interests of effective immigration control ... notwithstanding the Reservation, there are sufficient social and legal mechanisms in place to ensure that children receive a generous level of protection and care whilst they are in the UK.[141]

  84.  We probed the Government's grounds for continuing to insist on the necessity of the reservation in evidence with the Minister for Children and Young People. He told us—

    The feeling in layman's terms rather than legal terms is that if we did not have the reservation and were the Convention to be given perhaps greater weight in law or in court judgments than it has been given so far in the court cases you could end up with a position where an unaccompanied young asylum seeker who gets to this country is able to say under the Convention, "You should not be able to apply any asylum legislation to me because you are looking at me as a child under the Convention", and, further than that, because of the rights of the Convention for a child to be re­united with its parents their parents would also have the right to come to this country. The difficulty is to see how that would be compatible with running any type of asylum or immigration system at all. It is for the reason of the concern that at some point in the future the Convention could be interpreted that way that the Government has entered its reservation and has re­considered it within the last year and decided that the reservation should still stand.[142]

The Government's elucidation of its reasons for maintaining the reservation increases rather than diminishes our doubts about its validity. In a response to comments in one of our reports on the Nationality, Immigration and Asylum Bill,[143] we received a letter from the Home Office Minister, Lord Filkin, which argued—

    The UK acceded to the UNCRC on the basis of reservations, including the immigration and nationality reservation. This was necessary to preserve the integrity of immigration laws and procedures in the UK and because we did not want entry to be gained by those simply wishing to make use of UNCRC Rights and with no other justification to come to the UK ... However, this does not prevent the UK from having regard to the UNCRC in its care and treatment of children. Moreover, the basic human rights of children are protected under the Human Rights Act, which applies to all children in the UK without exception ... The Government remains of the opinion that the Reservation is justified in the interests of effective immigration control. The UK is not complacent and does take its international obligations seriously.[144]

The Government could simply qualify the reservation to make the primacy of its domestic law clear, if it really has this concern, though we note that the right to family reunion, in any event, is discretionary. In his letter, Lord Filkin also said—

    The UNCRC is not binding on the UK in so far as a matter falls within the reservation, and there is therefore no requirement to make the best interests of the child a primary consideration or to adhere to any other principles set out in it.[145]

This claim that the Convention can be entirely disapplied in relation to refugee and asylum seeking children is clearly incompatible with its object and purpose, and is inconsistent with the Government's own stated intentions. But it does point to what we perceive as the fundamental flaw in the reservation, which encourages us to support the recommendation of the UN Committee. Article 22 is widely drawn to ensure that while such children are in the UK they receive "appropriate protection and humanitarian assistance" in the enjoyment of CRC rights. The reservation appears to deny such protection to this vulnerable group of children when they particularly need it for the period that they are present in this jurisdiction. The protection is then, in the Government's argument, offered as an act of charity, rather than a right.

  85.  We do not find this justifiable. The UN Committee raised a number of concerns about the treatment of these children, which would appear to counter the Government's claims that they enjoy sufficient protection already. These included concerns about detention, dispersal and access to health care and education.[146] We have already reported on our concerns about the segregated education scheme introduced by the Nationality, Immigration and Asylum Act.

  86.  Evidence available from non­governmental organisations amplified these deprivations, many of which have subsisted since the Human Rights Act came into force. Save the Children noted—

    Too often, these vulnerable young people are placed in inappropriate accommodation—given only local authority vouchers for subsistence, and not even assigned a social worker to advise and support them. The Audit Commission found that more than half of unaccompanied minors aged over 16 and 12 per cent of those under 16 were living in bed and breakfast hostels and hotel annexes.[147]

The Children's Rights Alliance for England drew our attention to the scale of the problem—

    In 2001, 3,356 children claimed asylum in the UK with their families. In addition, 3,469 children aged 17 or under claimed asylum on their own ... At the end of 2000 there were over 5,000 unaccompanied minors living in England ... it is estimated that at any one time around 300 young asylum seekers are detained [in prison]...[148]

The Refugee Council alerted us to—

    ... growing evidence that a significant number of refugee children are trafficked into the UK prior to commencing an exploitative working relationship with a third party. It remains a challenge to instigate child protection procedures in such cases and we have yet to systematically develop procedures for supporting and protecting these children—the state still seems to have difficulty in perceiving trafficked children as victims rather than perpetrators of crime.[149]

and, in relation to the right to a fair hearing—

    An unaccompanied child who appeals against a refusal of asylum is liable to find themselves before an appeal hearing. The safeguards that would normally exist in other court settings for children, whether they are in family proceedings or a juvenile court are not in place in immigration appeal hearings.[150]

There is not necessarily a direct causal link between the reservation and discriminatory treatment and sexual exploitation of asylum seeking children. We are concerned, however, that the existence of the reservation could appear to legitimise unequal treatment of these vulnerable children both by central government and local service providers.

  87.  We remain unconvinced by the Government's defence of its position in relation to the reservation to the CRC relating to refugee children. We think that the fear of the CRC compelling the acceptance of children and their families without regard to their entitlement under the Refugee Convention is far­fetched. In any case, it seems to us that the reservation is far wider than necessary to protect against that risk—and it provides cover for a different range of deprivations. We recommend that the Government demonstrate its commitment to the equal treatment of all children by withdrawing the reservation to the Convention on the Rights of the Child relating to immigration and nationality.

Children and Armed Conflict

  88.  The UN Committee recommended that the UK ratify the Optional Protocol to the Convention on Children in Armed Conflict.[151] In its response the Government reaffirmed its commitment to the principles of the Protocol and indicated that the process of ratification was beginning. The relevant substantive provisions of the Protocol are—

    States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities ... States Parties shall raise the minimum age for the voluntary recruitment of persons into their national armed forces ... recognizing that under the Convention persons under the age of 18 years are entitled to special protection ... States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that: (a) such recruitment is genuinely voluntary; (b) such recruitment is carried out with the informed consent of the person's parents or legal guardians; (c) such persons are fully informed of the duties involved in such military service ...

We asked the Ministry of Defence for a memorandum on its implementation plans following ratification of the Protocol.[152] These were set out clearly, but we note the 'exceptional instances' cited in the UK's Declaration made on signing the Protocol—

    The United Kingdom will take all feasible measures to ensure that members of their Armed Forces who have not yet attained the age of 18 years old do not take a direct part in hostilities. However, the United Kingdom understands that Article 1 of the Protocol would not exclude the deployment of members of the Armed Forces under the age of 18 to take a direct part in hostilities where:

    —  there is a genuine military need to deploy their unit or ship to an area in which hostilities are taking place; and

    —  by reason of the nature and urgency of the situation:

  • it is not practicable to withdraw such persons before deployment, or
  • to do so would undermine the operational effectiveness of their ship or unit, and thereby put at risk the successful completion of the military mission and or the safety of other personnel.

Of these two conditions, only the second seems to us to be a compelling reason for allowing under 18s into combat zones, and we express the view that the words "not practicable" should be interpreted to mean "impossible". We welcome the Government's decision to ratify the Optional Protocol on Children in Armed Conflict, but are concerned at the extent to which the commitment to keep under­18s in the Armed Forces out of combat zones is undermined by the terms of the Declaration made on signature.[153]

Sexual Exploitation

  89.  Article 34 of the Convention obliges states to "take all appropriate measures to protect the child from all forms of sexual exploitation". There can be little doubt that the eradication of such activities should be a high priority for the law enforcement agencies. The UN Committee recommends that the Government should ensure that—

We asked the Minister for Children and Young People about the priority to be given to child protection in the first national policing plan to be made under the Police Reform Act. He assured us—

    It will certainly address the issue of child protection. The National Policing Plan is not that specific about detailed elements and strategies to tackle the whole range of different crimes. It has to be a manageable document, but certainly the issue of child protection and the responsibilities that the police have in that area will be included in the National Policing Plan.[155]

The plan was published on the following day. It contains a requirement that local plans address child protection issues, including co­ordination with other agencies and staff selection and training.[156] We would expect that its inclusion in the national policing plan will enable child protection to compete more successfully for resources within local policing budgets. We recommend that in its response to this report the Government set out its assessment of the extent to which this has happened, and how it intends to monitor the resources devoted to child protection in the future.

  90.  The UN Committee also recommends that the Government—

    ... review its legislation [so as] not to criminalise children who are sexually exploited ...[157]

Although the Government's White Paper on sexual offences addressed some connected issues in a positive spirit, it did not appear directly to address this point. As we noted recently in our Seventh Report,[158] there are circumstances in which the Sexual Offences Bill would criminalise consensual sexual touching between young people. In the context of our earlier discussion of children and the criminal justice system, we note that this is an example of the Government not only maintaining a relatively low age of criminal responsibility but also extending the contexts in which children may be defined as criminal. We would welcome information from the Government about its response to the UN Committee's recommendation, and its view of the circumstances in which it is proper to penalise children and young people for sexual activity more generally.

  91.  We are pleased to note, in connection with the UN Committee's recommendation that the UK ratify the Optional Protocol on the sale of children, child prostitution and child pornography,[159] that the Minister for Children and Young People stated on 24 October that—

    We intend to ratify the convention, and we will be in a position to do so when we have found a way to ensure that our laws cover internal child trafficking as well as the external trafficking that will soon be so covered.[160]

On 18 November the Minister for Children and Young People told us—

    ... we have [not] yet found the parliamentary opportunity to [close] some of the major gaps that were there in legislation and we are not fully able to comply but it is an important issue for us.[161]

We look forward to early legislative action and strongly support the signing and ratification of the Optional Protocol on the sale of children, child prostitution and child pornography by the UK.



131   See Annex 3, para 37. Back

132   HC Deb., 28 January 2003, c 744. Back

133   See Annex 3, para 37. Back

134   Q 99 Back

135   HC Deb., 23 January 2003, c 161WH. Back

136   See Annex 3, para 7. Back

137   Ibid., para 48. Back

138   Home Office memorandum, Seventeenth Report of the Joint Committee on Human Rights, Session 2001-02, Nationality, Immigration and Asylum Bill, HL Paper 132/HC 961, Ev 3, para 13. Back

139   Seventeenth Report of 2001-02, paras. 17, 46-51. Back

140   See Annex 3, para 6. Back

141   See Annex 4. Back

142   Q 117 Back

143   Seventeenth Report, Session 2001-02, Nationality, Immigration and Asylum Bill, HL Paper 132, HC 961, pp 18-19 paras 46-51; Twenty-third Report, Session 2001-02, Nationality, Immigration and Asylum Bill: Further Report, HL Paper 176, HC 1255, pp 12-13, paras 27-28. Back

144   Twenty-first Report, Session 2001-02, Scrutiny of Bills: Further Progress Report, HL Paper 159/HC 1141, Ev 2. Back

145   Twenty-first Report, Session 2001B02, Scrutiny of Bills: Further Progress Report, HL Paper 159/HC 1141, Ev 2. Back

146   See Annex 3, para 47. Back

147   Save the Children, Briefing November 2001. Back

148   Children's Rights Alliance for England, Ev 52-60. Back

149   Refugee Council Children's Section, Ev 68-69. Back

150   ibidBack

151   See Annex 3, para 52. Back

152   Ev 31-32. Back

153   We welcome, however, the Government's confirmation in March that no under-18s were then deployed to the conflict in Iraq (HC Deb., 5 March 2003, c 1054W). Back

154   See Annex 3, para 56. Back

155   Q 101 Back

156   The National Policing Plan 2003-2006, Home Office/TSO, November 2002, pp 17-18. Back

157   See Annex 3, para 56. Back

158   Seventh Report, Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 74/HC 547, p 14, para 40. Back

159   See Annex 3, para 60. Back

160   HC Deb., 24 October 2002, c 182WH. Back

161   Q 100 Back


 
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