Joint Committee On Human Rights

Joint Committee On Human Rights Eighteenth Report

Introduction

1. On 12 May 2003 we published our report on The Case for a Children's Commissioner for England,[1] which was followed by our report on The UN Convention on the Rights of the Child, published on 24 June.[2]

2. The Government published its Green Paper on services for children, Every Child Matters on 8 September.[3] Later that month we received the Government's formal response to our report on the UNCRC, which is appended to this report.[4]

3. Without conducting a further inquiry it is not possible for us to evaluate to what extent the measures outlined in the Green Paper constitute compliance with the UN Convention on the Rights of the Child, or satisfactory responses to the concluding observations of the UN Committee on the Rights of the Child on the Government's second periodic report under the UNCRC,[5] on which our own recommendations were based. In this short preface to the Government's response we have focused on some selected issues that appear to us to be of particular significance.

The Government's Response

Progress for Children's Human Rights

4. We welcome the progressive aspects of the Government's response and the Green Paper. In particular, we are pleased to note the following developments—

Planned establishment of a children's commissioner for England

Increasing participation by children and young people

New full-time Minister for children and families

Training for civil servants on the UNCRC

Expansion of child and adolescent mental health services

Improving the education of children in care

Measures to tackle bullying

Continuing commitments to reduce child poverty

Measures towards eradicating female genital mutilation

Further protection against sexual exploitation.

A Children's Commissioner for England

5. The Green Paper proposes the establishment of a children's commissioner for Englandin the following terms—

To ensure children's and young people's voices are effectively heard, the Government intends to legislate at the earliest opportunity for the appointment of a statutory children's commissioner. The Commissioner would act as a children's champion independent of Government, and would speak for all children but especially the disadvantaged whose voices are too often drowned out. The Commissioner would advise Government and also engage with others, such as business and the media, whose decisions and actions affect children's lives.[6]

We warmly welcome this decision. The Government has accepted our recommendation for the—

… establishment of a children's commissioner who would be a champion for the children of England, independent from but working closely with central government and other agencies.[7]

6. The Government has said that legislation will be introduced at the "earliest opportunity". We will examine it when it is ready. We hope that the Government will take into account in the Bill or Draft Bill the ancillary recommendations that we made in our Ninth Report on the functions and powers of a children's commissioner. We also hope that it will use the models already in existence in Wales, Northern Ireland and Scotland as a guide to the powers and duties of their English counterpart.

Omissions

7. We are, however, disappointed by the Government's response in a number of other areas, which in our view hinders progress towards building a culture of respect for the human rights of children and displays insufficient compliance with obligations under the UNCRC. We mention briefly in this context—

the Government's insistence on maintaining the reservation in respect of nationality for "legal" reasons, which we continue to find unconvincing;

the inconsistency inherent in the declaration made by the UK on ratification of the optional protocol protecting armed forces recruits under 18 years of age from exposure to hostilities, which appears to us to be unnecessary if the commitment to take all reasonable steps to protect under-18s is effective; and

a lack of clarity for young people experimenting with consensual sexual activity, which is not remedied by the proposed legislation.

We also regret that the Green Paper does not include specific measures to ameliorate the difficulties encountered by traveller children. We have particular concerns in three other areas to which we devote the rest of this report.

Lack of a Children's Rights Framework

Putting the UNCRC at the heart of policy-making

8. In one significant respect, the Government's response speaks for itself. In our report we recommended that—

… the Government's overarching strategy for children and young people includes specific reference to the rights, principles and provisions of the Convention, and explains how these underpin its goals.[8]

The only substantive references to children's human rights in the Government's response are in relation to participation by young people on this issue (through seminars and the DfES website) and training for civil servants across Whitehall. The Government says that it believes that the latter will "contribute to a greater recognition of child rights by policy makers", but does not adopt this approach itself. The Government has failed to use a human rights framework to respond to our recommendations. There is insufficient recognition that issues like the age of criminal responsibility, conditions in custody or reasonable chastisement, engage the human rights of children.

9. Likewise the Green Paper, a substantial programme for improving services for children, neither refers to the UN Convention nor to the Government's obligations to implement its provisions. We regret that the Government has abandoned its commitment to publish an over-arching strategy for children with the UNCRC as its framework.

10. The Government's response to our recommendation was that the next periodic report to the UN Committee, in 2008, will include its strategy on implementing the CRC. We find this approach unsatisfactory. The Convention should not be regarded as relevant only to the UN reporting process. It must be part of every aspect of policy development.

11. In our report on The Case for a Human Rights Commission,[9] we found that "the development of a culture of respect for human rights is in danger of stalling" and that the Government "has a duty of leadership" in this regard. The Government needs to embrace this duty, as we recommended, by a more conspicuous recognition of its obligation to implement UNCRC rights in its domestic policy agenda.[10]

Child Impact Assessments

12. The Government says that it wants "to put children at the heart of our policies, and to organise services around their needs".[11] It points to many initiatives, either in place or proposed, which are designed to achieve this: greater participation by children and young people; training civil servants; and the establishment of a commissioner. The Government, however, has not replied to our recommendation about incorporating child impact assessments in the explanatory notes to Government Bills,[12] which we believe would be instrumental in achieving that goal. We note that parliamentary colleagues inquiring into how children can become the focal point of policies and inter-agency coordination have also recently recommended that consideration be given to "subjecting all policy initiatives and legislation to a child impact assessment".[13] We urge the Government to revisit this recommendation and either examine means of implementing it or produce reasons for rejecting it.

Children and the Criminal Justice System

Age of Criminal Responsibility

13. We recommended that the age of criminal responsibility be increased to 12 years.[14] The Government, however, says that it intends to—

… continue to operate a distinct youth justice system broadly on present lines, with a clear and visible response to offending behaviour from age 10 upwards. This is the right way to maintain and indeed improve public confidence in our response to youth crime …[15]

14. In its response, the Government refers to "convincing evidence" that early intervention does divert children from a life of crime and that the measures in place (Youth Offending Teams, contracts of reparation and programmes to tackle the causes of offending) constitute a "holistic approach" to youth crime. This response misses our point, which was that we agreed that early intervention is crucial, but that the criminal justice system is the wrong tool by which to give it effect. We are concerned that the involvement of the criminal justice agencies while a child is still in primary school inevitably invites a criminal label—both in terms of those who deal with the child and the child's own self-image—which is not easily shaken off. This cannot be in the best interests of the child as required by UNCRC Article 3, or of society as a whole.

Sentencing

15. The Government proposes a "single main sentencing purpose of preventing offending". Concern has been expressed as to whether this will undermine the court's statutory duty to have regard to the welfare of the child.[16] For persistent offenders, there is to be a new sentence called an Intensive Supervision or Detention Order (ISDO) combining custody with community supervision, but such sentences will also apply to 12-14 year olds who are not persistent offenders and who previously would not have received a custodial sentence.[17] We recommended that the goal of policy, in line with the UK's obligations under the CRC, should be to reduce the numbers of children in custody.[18] Neither these initiatives, nor the Government's assumption about the numbers of children in custody, suggest a strategy directed towards that goal. The Government is "aware" that—

… the Committee and the UNCRC want us to minimise the use of custody for juveniles (an objective the Government shares) but it is and will remain the case that a substantial number, probably between 2,000 and 3,000 at any one time, will need to be accommodated in conditions of safety and security.[19]

We are dismayed by the belief that holding over 2,000 children in custody at any one time is a necessity.

Children in the Custody of the Prison Service

Children who are in custody are not just children, they have also committed serious and/or persistent crimes against the community. The Government has to take responsibility on behalf of the community for protecting the public and punishing their offending, alongside tackling the social and behavioural factors which drive their offending and treating them appropriately for their age group.[21]

Notwithstanding the Government's programmes to reduce youth offending and improve opportunities for offenders on release, the reference to "punishment" suggests that it does not feel constrained by the requirements of UNCRC Articles 37 and 40.[22] This response also appears also to contradict its own proposed "main purpose" of sentencing children: that it is not "punishment" but "preventing offending." We note that the Government has not yet published updated reconviction rates for children leaving custody. It has been claimed that 27% of children commit a crime within one month of leaving secure training centres (the prisons for 12-14 year-olds). If the Government were able to demonstrate that this rate was falling, it would go a long way to providing convincing evidence of compliance with the CRC.

17. We are disturbed by the Government's statement in its response that "children in custody are not just children". Children in custody are still children. We recognise that, as offenders, children must take responsibility for their criminal actions. But the fact that they are children, with specific rights and needs, cannot be disregarded because of the offences that they have committed. Children in custody present multiple problems, both for society and for themselves, which is why we have recommended that the Prison Service is not the appropriate agency to have responsibility for them.

A Statutory Right to Education and SEN Support

18. The Government states that legislation to provide a statutory right to education and special needs support, which we recommended "as a matter of urgency," "would not be helpful". This is said to be in view of the rapid expansion of "learning and skills provision" and "SEN innovation" taking place in custodial institutions. We feel, on the contrary, that legislation, which we recommended, would underpin these welcome developments. We are bemused by the Government's reluctance to give them statutory effect. We again remind the Government of its obligation, under both the UNCRC and the Human Rights Act, to provide an equal right to education. It should not be reluctant to underpin that right by statute—it is not a right that should be portrayed as a discretionary gift.

Imposing Children Act responsibilities on the Prison Service

19. The Government has rejected our recommendation that, following a decision of the courts in respect of the application of the Children Act to children in custody, the Children Act should apply to the Prison Service.[23] The stated grounds are that the Prison Service has obligations under the Human Rights Act Section 6(1) and ECHR Article 8; and that to bring the Prison Service within the remit of the Children Act would "create confusion about the responsibilities of different bodies." We do not find this argument convincing since all public authorities have HRA responsibilities but the Children Act imposes a higher duty of care, which, if imposed on the Prison Service as well as local authority social services, would potentially give greater protection to vulnerable children in custody.

Reasonable Chastisement

20. It is anomalous that while the Green Paper's stated goal is to "keep children safe", the Government does not acknowledge, in the context of the law of assault, that children should have the same right as adults to respect for their human dignity and physical integrity and to equal protection under the law. The Government struggles to support the reasonable chastisement defence, which continues to be incompatible with its obligations under the Convention on the Rights of the Child.[24]

21. The Government reports in its response that the Attorney General has been keeping the use of the defence under review, and that his findings to date suggest that it is being "used properly". We would encourage the Government to publish both the findings of the Attorney General's review and the supporting data about the use of the defence in response to allegations of assault against children. When doing so, we would recommend that it spell-out what is meant by "properly" in this context. Otherwise, the Attorney General's conclusion is meaningless.

22. The Government says that it is "working to support parents in other ways of coping with discipline in the home" and that the "Green Paper addresses the issue of support for parents". In fact, the Green Paper does not suggest any constructive alternatives to corporal punishment for disciplining children.

Conclusion

23. We acknowledge and welcome the steps taken by the Government and the devolved institutions to improve respect for and protection of the rights of children in the UK. This protection will be enhanced when there are commissioners for children and young people operating effectively in all parts of the nation. The enhancement of a culture of respect for children's rights is a progressive goal. Although we have reservations about aspects of Government policy, legislation and administrative practice, the net effect of recent developments has been generally positive. We remain disappointed, however, at the apparent reluctance of the Government to be more explicit about basing what it does for and on behalf of children within the framework of the goals and guarantees set out in the UN Convention on the Rights of the Child.

1 Joint Committee on Human Rights, Ninth Report, Session 2002-03, The Case for a Children's Commissioner for England, HL 96, HC 666 Back

2 Joint Committee on Human Rights, Tenth Report, Session 2002-03, United Nations Convention on the Rights of the Child, HL 117, HC 81 Back

3 Accompanying the Green Paper were: Keeping Children Safe, a detailed response to the report of the inquiry into the death of Victoria Climbie and the report of the Joint Chief Inspectors on safeguarding children; Youth Justice - The Next Steps, containing proposals to reform the youth justice system and A Better Education for Children in Care, a report by the Social Exclusion Unit. Back

4 see pp x to y Back

5 Published on 4 October 2002 Back

6 Every Child Matters, para 5.50 Back

7 Ninth Report, op cit, Recommendation 9 Back

8 Tenth Report, op cit, para 19 Back

9 Joint Committee on Human Rights, Sixth Report, Session 2002-03, The Case for a Human Rights Commission, HL 67-I, HC 489-I Back

10 Tenth Report, op cit, Recommendation 6 Back