Appendix 1: Memorandum from the
Department for Education and Skills
General. Procedural and Structural Issues
1. We recommend that the UK's next periodic
report under the UNCRC should be prepared with much fuller involvement
of children and young people should be structured to show-
the general principles of Government policy and
action in the UK related to each of the Articles of the Convention;
a report on the activities relating to children's
rights issues, separately, of each central government department
together with relevant NDPBs and inspectorates related to each
department, and each of the devolved administrations, and some
effort to capture related activities at local government level;
a specific response to each of the recommendations
in the UN Committee's previous Concluding Observations; and
a plan of strategic action in relation to children's
rights for the coming five years, indicating measures of success
against which implementation can be judged. (Paragraph 13).
2. We recommend that the UK's next periodic
report under the UNCRC should be prepared with much fuller involvement
of children and young people. (Paragraph 15).
The UN's Reporting Guidelines for the Convention
on the Rights of the Child require that reports are structured
on a thematic basis under specified headings, not on an article-by-article
basis, nor according to the activities of each Government Department.
Given that the UN Committee criticised the UK for not following
the Reporting Guidelines in its 2nd periodic report of 1999, the
Government will ensure that the Reporting Guidelines are followed
for the 3rd and 4th periodic reports due in 2008. This will mean
that we will need to adopt the thematic approach prescribed by
the UN rather than the approach advocated by the Joint Committee.
The Reporting Guidelines ask for the inclusion of
information on the follow-up to the Committee's Concluding Observations,
and we will be including this information.
The Reporting Guidelines do not require the inclusion
of a plan of strategic action, but do ask under the General Measures
of Implementation heading for the inclusion of information on
national children's strategies where they exist and on Government
mechanisms for co-ordinating the UNCRC. In the recent Green Paper
"Every Child Matters", we have set out a framework and
outcomes for children in England, which we are consulting on publicly.
We will include information on the development of this framework,
and on the children's frameworks and strategies in the Devolved
Administrations, in the UK's 2008 report.
In his evidence to the Joint Committee, John Denham
provided information about the strategy that we are developing
to strengthen co-ordination of the UNCRC across the UK. The Department
for Education and Skills are working with the Devolved Administrations,
other Whitehall Departments, NGOs and children themselves to develop
this strategy. Information about this development will also be
included in the UK's 2008 report.
Greater involvement of children in the work of Government
is a priority for us, and we agree that there should be much greater
input from children into the next report to the UN Committee.
With help from our existing strong relationships with children's
organisations, we have already started this dialogue - for example,
through a series of seminars on child rights issues in which young
people were involved; through a consultation for young people
on child rights hosted on the DfES website earlier this year;
and through the development of a Government child rights website
for children and young people which we hope to launch in 2004.
3. We recommend that objective data on progress
towards the elimination of child poverty should be included in
the next periodic report. (Paragraph 16).
The Government has a Public Service Agreement (PSA)
target to reduce by a quarter the number of children in low income
households by 2004-05, as a contribution towards the broader target
of halving child poverty by 2010 and eradicating it by 2020. Low
income is defined as less than 60% of the median. The data source
used by the Government to measure progress against the 2004-05
target is the Households Below Average Income data produced by
the Department for Work and Pensions (DWP) according to rules
set out by the Office for National Statistics and audited by independent
DWP also produce a series of indicators in its annual
report on poverty and social exclusion. These indicators cover
employment, housing and health and education outcomes. A number
of these indicators relate specifically to outcomes for children.
These indictors for children provide additional information
on the success of the Government's strategies to tackle child
poverty. The fourth annual report published in September 2002,
is available on DWP's website http://www.dwp.gov.uk/. The fifth
annual report will be published in September 2003. DWP also plan
to make these indicators available on their website and update
them as new data becomes available.
For the longer-term goal of halving and eradicating
child poverty, the Government is committed to finding a measure
of child poverty that helps target policies most effectively and
enables the public to hold the Government to account. Relative
income will play a key part in any long-term measure of poverty.
The long-term measure will be announced by the end of 2003.
The existing functional breakdown used for Government
spending is based upon historical statistical precedents. Government
statisticians are also considering implementing a new functional
spending classification based on the UN classification of the
Function of Government (COFOG). However neither of these functional
breakdowns distinguishes children as a distinct category, although
they do include a number of child specific areas. For example,
education and family benefits within social protection. COFOG
is an extremely well defined classification and internationally
comparable. If it is possible to draw information on spending
on children within this basis then we will be happy to do so.
4. We recommend that the Government's forthcoming
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. (Paragraph 19).
The Government is no longer producing the overarching
strategy for children and young people mentioned in this recommendation.
The Green Paper, "Every Child Matters" published on
8 September 2003 covers many of the issues that the strategy would
have addressed, and reflects much of the work that had gone into
the development of the strategy. The Government is currently consulting
on the proposals in that Green Paper.
5. We do not accept that the goal of incorporation
of the Convention into UK law is unrealisable. We believe the
Government should be careful not to dismiss all the provisions
of the Convention on the Rights of the Child as purely "aspirational",
and that children will be better protected by incorporation of
at least some of the rights, principles and provisions of the
Convention into UK law. (Paragraph 22).
6. We recommend, particularly in relation
to policy-making, that Government demonstrate more conspicuously
recognition of its obligation to implement the rights under the
Convention. (paragraph 25).
7. We recommend that the Government consider
incorporating child impact assessments in the explanatory notes
to Government Bills. (Paragraph 27).
The promotion and protection of children and their
interests through legislation, policy and effective service
delivery - is a priority for this Government, as is the greater
involvement of children in Government decision-making.
The UN Committee, in its examination in 2002 of the
UK's implementation of the UN Convention, has welcomed a wide
range of UK legislation, including The Children (Leaving Care)
Act 2000, the Homelessness Act 2000 and the Sex Offenders Act
We are committed to involving children, their parents/carers
and children's organisations in the development of policy, legislation
and services and have laid down, in November 2001, Core Principles
for the Involvement of Children and Young People in Government
decision-making. These Core Principles set out a common framework
within which Government Departments must work to involve children
from the outset right through to implementation and evaluation.
We believe that this direct involvement of children and their
representatives is an effective way to ensure that the best interests
of children are taken into account.
As part of the Core Principles strategy, Departments
across Whitehall have developed annual action plans setting out
how they will involve children. Examples of where Departments
have involved children and children's organisations include:
HM Treasury development of legislation
around the Child Trust Fund;
Department of Health development of
the Adoption and Children Act;
Department for Education and Skills
4,000 children contributed to the Consultation Paper on an improved
14-19 phase of education and training.
Copies of the Departmental Action Plans showing the
full extent of children's involvement are available at www.cypu.gov.uk/corporate/publications.cfm
The Government has already involved children's organisations
in the development of the Green Paper "Every Child Matters"
and we are organising 50 events with children aged 8-18 years
during the public consultation period. The views of children will
inform the development of policies and legislation from the Green
Civil servants across Whitehall are, under the Core
Principles strategy, receiving training and awareness-raising
in participation issues and child rights, including information
on the UNCRC. In addition, the Department for Education and Skills
is developing a CRC training package for civil servants which
is currently being piloted before being rolled out across Whitehall.
We believe that this will contribute to a greater recognition
of child rights by policy makers and that this, coupled with children's
direct involvement, will result in legislation and policy that
most effectively protects the child's best interests.
In addition, we have announced our intention to establish
a Children's Commissioner for England to act as an independent
children's champion. One of the Commissioner's key functions will
be to develop effective ways to draw on children's views and make
sure that they are fed into policy making. The Commissioner will
also test the success of policies in terms of their impact on
The Government notes the Joint Committee's intention
to examine further the possibilities for incorporating the CRC
and other unincorporated human rights instruments and we look
forward to seeing practical suggestions for how this might be
Children and the Criminal Justice System
8. We recommend that the age of criminal responsibility
be increased to 12 years. (Paragraph 38).
The Government knows from the 2003 self-reporting
Youth Lifestyles Survey that offending careers can start very
early. One in eight offenders claimed to have committed their
first offence when they were 7 or younger. And the key watershed
age for starting to offend was between 11 and 13, with 38% of
mainstream and 41% of excluded offenders reporting this as the
age they first committed an offence. We have invested a lot of
time and effort in preventative work, but for cases where this
does not succeed we believe that intervention in the early teens
through the criminal justice system is very important to reducing
There is convincing evidence that intervening with
young people early through the criminal justice system does divert
them from a life of crime and improve their life chances. The
most recent national statistics on reoffending, published by the
Home Office in February 2003, show a 22.5% reduction in reconviction
rates for young offenders dealt with in 2001 compared with 1997.
These figures cover juveniles subject to reprimands, final warnings
and all non-custodial sentences; custodial figures are due later
this year. The improvements were greatest for younger juveniles.
For 11 year boys it was 37.8% and for girls 66.1%. For 10 year
old boys it was 16.7%; there were too few girls to make a reliable
All 10 and 11 year olds dealt with in 2001the
most recent year for which we have published statisticswere
dealt with in the community; none were sent to custody. Most were
given a police reprimand or final warning (6,401) with only 926
receiving a court sentence. Most final warnings (around 70%) included
interventions to tackle the risk of further offending.
As to court sentences, the standard one for first
time offenders pleading guilty is the referral order. Once convicted
the young person goes to a community panel, who agree a contract
of reparation and a programme to tackle the underlying causes
of the offending, such as help with education deficits and courses
to help the young person cope with peer pressure, improve social
skills and develop victim empathy.
More specialist interventions are also available
such as drug and alcohol awareness programmes. Mentors are often
also available and young people can be given help to make more
constructive use of their leisure time.
Dealing with offending through the criminal justice
system does not mean we ignore age and vulnerability. We take
a holistic approach with young offenders. The local multi-agency
Youth Offending Teams include social services professionals who
can identify needs which cannot be met by the criminal justice
system alone, and refer to child welfare departments for further
investigation and support if appropriate. Given the need for an
effective response to crime, we think such work is best done in
support of rather than in place of youth justice.
9. We urge the Government to re-examine, with
renewed urgency, sentencing policy and practice (and in particular
the use of detention and training orders) and alternatives to
custodial sentences, with the specific aim of reducing the number
of young people entering custody and with a commitment to implementing
Articles 37(b) and 40(4) of the Convention to the fullest extent
possible. (Paragraph 41).
The Government has now issued consultation proposals
on how it would like to develop its youth justice reforms further,
in its youth justice companion document to the Children Green
Paper, published on 8 September. We have invited responses by
While the Government continues to believe that custody
has to remain an option for the most serious and persistent youth
offending, it has put forward a number of proposals designed to
maximise the use of community interventions. The reprimands and
final warnings scheme is proving much more effective than the
previous police cautions at tackling early offending after the
age of 10. We have sought views on how it might be extended in
a way which still maintains public confidence in the response
to youth offending. In the important area of bail and remands,
we have made clear that we want to use supervised bail wherever
possible with young offenders. Building on the Intensive Supervision
and Surveillance Programme, which is already providing a high
quality alternative to remand in custody, we have now also proposed
strengthening the bail criteria by requiring courts to consider
and rejected bail options before remanding a juvenile in custody;
and set out our aim to encourage the development of alternatives
such as expansion of remand fostering and community bail hostels
for young people in major cities.
The Government also proposes to improve the main
juvenile community sentences, simplifying them by replacing 9
specialist sentences with an expanded Action Plan Order, usable
on successive occasions and providing a very full menu of specific
interventions. Fostering would be used for young people involved
in serious or persistent offending which was directly related
to their family environment. The current Anti-Social Behaviour
Bill provides for this to be developed within the present Supervision
Orderenabling a court to require a young offender to live
with a foster parent for up to 12 months or in exceptional cases
18 months. Foster carers would be especially trained and receive
support, and the young person would undertake structured day time
activities including education and therapeutic support would also
For offending which persists or reaches more serious
levels, we are proposing a new Intensive Supervision or Detention
Order which would include Intensive Supervision and Surveillance
Programmes as an option alongside custody. Intensive supervision
and surveillance would be the first option for courts, and custody
would be available as a second option only where the offences
were so serious that only a physical restriction of liberty could
be justified. Where detention remains necessary, we are proposing
steps to narrow the present artificial gap between custody and
the communityso that its structure and restraints can be
used as positively as possible to prepare for and manage effective
10. We share the concern of the UN Committee
that rehabilitative opportunities in young offender institutions
are inadequate to meet the requirements of Article 40.1 of the
CRC. We recommend that the Government initiate a review of the
range of rehabilitative opportunities available to those in young
offender institutions. (Paragraph 45).
The Prison Service and Youth Justice Board (YJB)
have established a five-year Partnership Agreement designed to
improve rehabilitative work in establishments, including good
quality education and training provision while in custody. The
YJB's National Specification for Learning and Skills, published
in early 2002, focuses on improving numeracy and literacy; ensuring
continuity of mainstream educational placements; reintegration
into full time education, training or employment; increasing employability
through practical and vocational activities; addressing offending
behaviour; and learning how to learn.
Where young people have to be held in custody we
recognise the need to maintain good links with their home area.
Under the Detention and Training Order, training and resettlement
plans are drawn up and monitored jointly between the Youth Offending
Team supervising officer and the establishment. This is designed
to ensure that the time in custody and the period under supervision
in the community are treated as a single training and rehabilitation
programme, with opportunities to continue in the community educational
and other progress which has been made in custody.
We also aim to hold young offenders near to their
home areas, though population pressures in certain areas of the
country have not always made this easy to achieve. The target
is to ensure that by March 2004 90% of sentenced and remanded
juveniles are held within 50 miles of home.
In the youth justice companion document to the Children
Green Paper, published on 8 September, we have proposed further
improvements to custody where it is necessary for young people.
Incorporating within the community supervision part
of the sentence the full range of intervention options available
under the expanded Action Plan Order
Making fuller use of open and semi-secure conditions
Greater use of temporary release, supported by electronic
monitoring for training and resettlement purposes
Considering further development of child protection
Considering developing new-style custodial units
nearer to major population centres. We have suggested that these
might, for example, be relatively small, have limited internal
security, a strong education, training and resettlement focus
and be provided by a range of public, private and voluntary sector
11. We recommend that the Government, in its response
to this report, set out the achievements of the safer custody
strategy in reducing suicide and self harm amongst juveniles in
detention, and its strategy for the further elimination of these
incidents. (Paragraph 49).
Over the past few years juvenile suicides in custody
have averaged 2 to 3 a year: 2 in 1999, 3 in 2000, 3 in 2001 and
2 in 2002. This is out of an average population of 3000. Every
death of a young person is a tragedy, but it has to be recognised
that young people who come into custody often have had troubled
lives. Every effort is made to minimise the risks of their harming
themselves in custody. The Prison Service and Youth Justice Board
are taking a wide range of steps, as set out below.
Child protection measures form an integral part of
the regimes. They include the reception process (incorporating
a comprehensive vulnerability assessment) the induction process;
Personal Officer work; anti-bullying strategies; and suicide and
self-harm prevention policy. Each juvenile establishment has appointed
a Child Protection Coordinator and established a Child Protection
Committee. Some committees have representation from the local
Area Child Protection Committee (ACPC), police and other relevant
The Service is also reviewing suicide and self-harm
policies and the use of segregation and separation. Advocacy services
are to be introduced in all juvenile establishments from later
Youth Justice Board
The Board has also taken a number of key steps. In
particular, it has spent £1 million to provide 30 safer cells
in Brinsford, Feltham, New Hall and Wetherby. The improved design
minimises opportunity for injury and removes ligature points.
It has also funded 24 hour health care in all establishments which
take young people straight from court. "First night packs"
are now provided for all young people entering custody. These
contain phone cards, toiletries, reading material and pen and
paper, sweets and a drink.
All secure facilities have written protocols on how
to deal with alcohol and drug withdrawal by young people coming
into custody, and measures have been taken to improve the transmission
of information from Youth Offending Teams (YOTs) to secure establishments
and to ensure the safety of the young person if vital information
The YJB have also commissioned a comprehensive review
of child safeguarding arrangements in YOls, carried out by Prison
Service and YJB staff. This will examine, in every establishment
in the country holding children, measures to address self-harm
and suicide, bullying and peer abuse, harm from adults and historic
child abuse, as well as monitoring, training and management arrangements.
12. The level of physical assault and the degree
of physical restraint experienced by children in detention in
our view still represent unacceptable contraventions of UNCRC
Articles 3,6,19 and 37. These statistics do not provide reassurance
that the Prison Service is implementing fully its responsibilities
to respect the rights of children in custody. (Paragraph 52).
To support juveniles at risk of assault from others
the YJB are commissioning advocacy services to work in the Prison
Service estate, complementing those already operated in STCs and
LASCHs. 30% of the secure estate will be covered by March 2004
and the whole estate by March 2005. This will reinforce the wide
range of measures to support vulnerable trainees already described
in the response to Recommendation 11 above: full regimes including
rigorous individual assessments and reviews; reception processes
with vulnerability assessments, induction and personal officer
scheme, anti-bullying strategies and interdepartmental work on
Child Protection and safeguards.
Physical restraint has to be used in limited circumstances
with children and young people in custody. Where other methods
have been tried and do not work, it may be needed to prevent trainees
from harming others or themselves, damaging property, escaping
or provoking other people to do such things.
The Youth Justice Board, which purchases secure places,
has commissioned a report this summer from the National Children's
Bureau. It shows that a range of physical restraint methods is
used across the juvenile estate. Prison Service establishments
use Control and Restraint, Secure Training Centres use Physical
Control in Care and Local Authority Secure Children's Homes several
different methods adopted by the local authorities who run them.
The differences reflect the varying ages, sizes and strengths
of the children and young people detained there, varying staff
ratios and establishments' ability or otherwise to call on external
help in difficult situations. However all juvenile establishments
operate to common basic principles: physical restraint is to be
used only as a last resort; minimum force must be used; it must
be used for the shortest possible duration; and restraint must
not be used as a punishment.
The YJB has now considered the report and concluded
that a single system would not properly reflect the differences
between the young people in the establishments and between the
establishments themselves. However they have recognised the need
for greater overall consistency. A Code of Practice will now be
drawn up to which all local methods will have to conform. This
will develop in more detail, and support with clearer procedures,
the basic principles underlying the various systems. The key requirements
Not relying on pain to secure compliance
Making any individual use of force subject to assessment
of the risks to trainees, the establishment or security
Debriefing exercises with any child who has been
subject to restraint
Rigorous monitoring of the use of restraint, and
Restraint methods to be used only by trained staff.
13. We recommend the amendment of the Children
Act at an early opportunity, to place a duty on the Prison Service,
as well as on local authorities, to apply the Children Act to
children in detention on a statutory footing. Measures must also
be taken to make a reality of the obligation which has now been
placed on social services. (Paragraph 55).
In his November 2002 judgement, Mr Justice Munby
ruled that with the exception of one sentence, the policy set
out in Prison Service Order 4950 ("Regimes for Under 18 Year
Olds") complies with domestic law, in particular with the
Children Act 1989, and more than adequately meets the Prison Service's
obligations under human rights law. The finding of non-compliance
was to the effect that the Children Act duties of local authorities
do continue to apply where juveniles are in Prison Service custody,
subject to the necessary requirements of that custody.
The Home Office, Department for Education and Skills
(now responsible for children's social services policy), Prison
Service and Youth Justice Board are working together to see what
practical steps can now be taken to ensure that local authorities
are able more effectively to discharge their Children Act duties
towards juveniles in Prison Service custody.
In the Prison Service, puffing Children Act obligations
on Prison Service governors would create confusion about the responsibilities
of different bodies. The Prison Service's legal obligations are
already clear. The Munby judgement confirmed that the Service
already has a legal obligation to safeguard the well-being of
children it its care by virtue of Section 6(1) of the Human Rights
Act and the ECHR Article 8.
To support this, other agencies are given the access
to establishments they need to discharge their functions. Prison
Service Order 4950 requires Governors to "ensure that staff
of all agencies and services whose duties involve them in working
in, with or for the young people in [their] care are enabled to
discharge those duties effectively with the support and assistance
of the establishment staff".
The Government has made in a commitment within the
Green Paper to issue a revised Prison Service Order 4950 Regimes
for Prisoners Under 18 Years Old. In addition, a revision of the
Children Act 1989 guidance will include two volumes of core guidance
accompanied by additional supplementaries. The core guidance to
organisations will cover responsibilities towards children in
custody and Youth Offending Institutions.
Moreover a substantial range of practical steps are
being taken by the Prison Service, YJB and Department for Education
and Skills to promote safer custody and better care for young
people in Prison Service accommodation.
14. We recommend that, as a matter of urgency,
the Government bring forward legislative proposals to provide
children in custody with a statutory right to education and access
to special needs provision equal to that enjoyed by all other
children. (Paragraph 59).
At present we do not consider it helpful to extend
the requirements of the statutory framework for SEN to children
in custody. We will, however, continue to monitor carefully the
valuable and rapid developments being undertaken to support, improve
and expand the education for all children in custody, including
those with special educational needs, and review whether there
is a need for further changes in the light of their impact. The
Offenders Learning and Skills Unit has two team members allocated
to monitoring and developing this work.
The overall reasons for this approach are that we
believe that legislation would not be helpful during a time of
rapid expansion, development and improvement of learning and skills
provision in young offender institutions, and at a time of much
recent and current SEN innovation additional SEN legislation would
not be helpful.
The planned developments for learning and skills
provision for trainees in custodial settings, arising from the
National Specification for Learning and Skills (explained below)
are being carefully planned and monitored.
15. We recommend that the Government reinforce
its efforts to ensure there are sufficient suitable places under
local authority care to allow the removal of all girls under 17
from prison custody into local authority secure accommodation
by the end of 2003, and so enable the reservation relating to
Article 37(c) of the Convention to be withdrawn. (Paragraph 62).
The Youth Justice Board has undertaken to remove
all girls aged under 17 from Prison Service accommodation by the
end of 2003. This will fulfil the commitment to remove all 15
and 16 year old girls that was made by the then Home Secretary
in March 1999. However to dispense with the Reservation it would
also be necessary to remove all 17 year olds from accommodation
where they could mix with adults. The Convention covers all juveniles.
We are currently looking at what further steps might
be taken to provide for a full or fuller separation of juvenile
girls from older female offenders. There are many issues to consider,
which cannot be resolved by focusing simply on age limits. What
should happen, for example, when a juvenile offender reaches the
age of 18 while in custody? Should they be moved at once to other
accommodation to ensure that juveniles are kept absolutely separate
from those who reach the age of 18 during their sentence? How
would that affect the continuity of their training programme and
sentence planning, through care and resettlement links with the
YOT supervising officer? These questions are particularly acute
when the release date is very soon after the offender's 18th birthday.
More generally, the level of maturity of individual
juveniles does not necessarily match their ages. Focusing exclusively
on age limits can undervalue the efforts the YJB and the Prison
Service make to identify and provide for individuals' particular
needs. Priority is rightly given to addressing the needs of vulnerable
offenders, whether girls or boys.
The fact that there are many fewer juvenile girls
in custody than boys creates practical problems in devising satisfactory
arrangements for accommodating them. The aim of keeping them as
close as possible to their families is in tension with the need
to have groups of a reasonable size so as to provide a viable
regime for the purposes of education and association. These are
difficult issues. We shall be considering them with great care
so as to find the best way forward.
16. We recommend that the Government revisit the
idea of completely separating the organisation responsible for
the custody of offenders under the age of 18 from the Prison Service.
These young people should be looked after by a group of people
whose outlook is firmly grounded in a culture of respect for children's
human rights, devoted to rehabilitation and care. (Paragraph 65).
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.
We are 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. This is a large and challenging task, requiring
significant long-term investment and skills, which needs to be
managed at national level and which neither the local authority
care system nor the non-government sector have the capacity to
But while the system does need to be managed centrally
we do want to see a range of local providers. The Youth Justice
Board, which is responsible for purchasing and commissioning juvenile
secure accommodation, will continue to look for ways of extending
the diversity of providers. Whilst we recognise that the younger
and more vulnerable a juvenile is the greater the case for dealing
with them in small child-oriented establishments, we do not accept
that the Prison Service is an unsuitable organisation to run establishments
for juveniles. The great majority of juveniles in the care of
the Prison Service are in juvenile-only accommodationwhich
operates to standards and with staff numbers and training suit
the needs of juveniles.
Substantial improvements have been made in Prison
Service custody for juveniles over the past few years, and the
current quality of provision needs to be recognised. These include:
The creation in April 2000 of a distinct estate for
boys and the spending of £50m over 3 years on improved accommodation
regimes and care;
Child protection and safeguard measures including
new Coordinators and Committees, an HO team to develop policy
and hold conferences focusing on good practice and strategies
to tackle bullying, suicide and self harm;
Education and training now at 15 hours a week, with
a future target of 30, supported by new specialist staff in establishments;
A range of further work on better information to
trainees, reviewing segregation and restraint, health, substance
misuse, voluntary sector partnership, enhanced thinking skills
and a planned sex offender treatment programme.
Recent inspection reports (Werrington (March 2002),
Warren Hill (November 2002) and Onley (January 2003)) testify
to the improvements on the ground. The Government is nevertheless
anxious to improve further its interventions for juvenile offenders,
including custody where it is necessary. The Children Green Paper
published on 8 September is accompanied by a youth justice companion
document which invites views on a range of proposals for improvement
over the next few years. The paper's proposals include in particular
how to strengthen bail as an alternative to remand in custody;
by strengthening the presumption in favour of bail and by developing
further good quality alternatives to custody. These include bail
fostering and the development of fostering within community sentences
(detailed in the answer to Recommendation 9) and community bail
hostels in major cities.
The paper also proposes strengthening the education,
training and employment content of the community supervision part
of custodial sentences, greater use of open and semi-secure placements,
development of a wider range of establishments including with
a greater educational focus and developmental temporary release
supported by electronic monitoring.
Care and Protection
17. We stress the need for the Government to invest
more energy into culturally sensitive, educative approaches for
the eradication of the practice of female genital mutilation.
Government policy is for the eradication of the practice
through education of practising communities A key element is keeping
relevant health professionals aware of the issues and informed
as to what to do when they encounter it. We are working with the
practising communities in England to educate them about the health
hazards that FGM poses for girls and women and to persuade them
to abandon the practice. We are supported in our stand against
FGM by the major bodies in the medical profession who have issued
guidance or position statements on FGM.
The Government provides support through the General
Section 64 Grants scheme to a voluntary organisation, FORWARD
. Through FORWARD we support a number of initiatives to meet the
needs of women and girls affected with FGM. FORWARD have the expertise
and knowledge to work closely with the communities most affected.
In 2003-04 we are giving FORWARD a total of £90,000. Part
of this money is being used to fund a Positive Partnerships
with communities project
The Private Members Bill that will restate and amend
the law relating to FGM has successfully completed its passage
through the House of Commons. Its second reading in the House
of Lords is scheduled for the 12th September. We hope to get Royal
Assent for the Bill by the end of October. We will then consider
what, if any, further work is needed and where we need to concentrate
18. We recommend that the Government systematically
collect and analyse representative data on violence against children,
including data collected from the 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. (Paragraph 79).
The Government collects from social services departments
statistics on the number of referrals of children to social services,
initial and core assessments of children referred, and the number
of enquiries carried out because a child is suspected to have
suffered, or be at risk of suffering significant harm. It also
receives information about the number of enquiries that lead to
child protection conferences, and the number of conferences that
lead to a child being considered in ongoing need of safeguarding,
and so being placed on the child protection register (le. number
of children registered). Children may be registered under any
one of four categories of abuse: neglect, physical abuse, sexual
abuse, and emotional abuse.
The Government also collects information about children
looked after by local authorities, including the 'category of
need': the reason why the child is looked after. The possible
categories include "abuse or neglect".
Crime statistics do include offences against children,
but not in such a way as to allow the identification of individual
victims. However, the 1992 British Crime Survey, and the 1998/9
Youth Lifestyle Survey, did collect information on the nature
and extent of victimisation of young people aged 12-15. A new
Crime and Justice Survey has been collecting further data in 2003
and is expected to report its findings during the course of 2004.
The "victimisation module" of this latest survey considered
about 2,700 persons aged 10-17, selected on a random basis from
all parts of the country and income groups. It is currently envisaged
that this will become an annual exercise.
19. We recommend that statistics record whether
the defence of reasonable chastisement was invoked in cases of
violence against children brought to the courts. (Paragraph 80).
The Government agrees that more detailed understanding
of the use of the reasonable chastisement defence would be helpful
in the Attorney General's reviews. Responsibility for data collection
procedures would fall between the DCA, the Home Office, the CF'S
and the Attorney General's office and officials have started to
consider the complex practicalities of how this might be done.
Although the Government agrees with the idea in principle, it
will need to examine whether the costs of putting such a data
collection in place would outweigh the policy benefits.
20. 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. (Paragraph 87)
The points raised by the Committee have been fully
considered and in the light of legal advice The Government has
decided to retain the Reservation as it stands. Many of the points
raised by the Committee have been raised previously and the Committee
was aware of our responses.
The Joint Committee emphasised three issues the Government
feels it necessary to refute. These are:
(a) the segregated education scheme. Legal
advice is that the provision of education may vary in accordance
with the needs of the community, provided that the standard of
education does not result in a significant educational disadvantage.
We believe the standard provided is considered to be of an acceptably
high level so as not to infringe the right to education.
(b) the trafficking of children. We believe
that the UK does have child protection procedures in place for
the protection of such children and that these children are not
treated as perpetrators of crime but as victims of it. The Home
Office has recently published the "Trafficking Toolkit"
providing guidance for immigration and police officers on how
to recognise a victim of trafficking and what to do if such a
victim is encountered.
(c) the right to a fair hearing. Children
do have access to and a right to a representative throughout the
asylum application and appeals process and they are not required
to give evidence at an appeal.
The Government will continue to keep the Reservation
in respect of Immigration and Nationality matters under review.
21. 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 under 18s in the
Armed Forces out of combat zones is undermined by the terms of
the Declaration made on signature. (Paragraph 88).
The UK ratified the Optional Protocol to the United
Nations Convention on the Rights of the Child on the involvement
of children in armed conflict on 24 June 2003 and in so doing
reaffirmed the Declaration made on signature. This Declaration
is a statement of our understanding of the operation in unusual
and unforeseeable circumstances of Article 1 of the Protocol about
the requirement for States to 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.
It in no way undermines our commitment to the Protocol. As explained
in the Explanatory Memorandum that was laid before Parliament
in February 2003 and which completed its sitting period without
raising debate, we already do all that we reasonably can to prevent
the deployment of under 18s into situations in which there is
a genuine risk of them becoming directly involved in hostilities.
All three Services have procedures in place to review
the deployment of each and every individual under the age of 18
in circumstances when there is deemed to be a greater than low
risk of their direct involvement in hostilities. In such oases
the default option is for them to be removed from their units
unless the very rare, exceptional and unpredictable circumstances
described by the declaration pertain. That is in addition to the
Army's decision to cease the routine deployment of under 18s outside
the UK other than for peacekeeping operations in which there are
no hostile forces involved. Furthermore, there are relatively
few under 18s on the trained strength, we do not deploy them in
aircraft and, in line with UN policy, we do not deploy them on
UN peacekeeping operations. None were deployed in recent operations
It is only in the exceptional circumstances that
may be forced upon us in fast developing crises that it may not
be practicable or possible to prevent the direct involvement of
under 18s in hostilities. The purpose of the Declaration is simply
to cover such rare occurrences and is not a signal of intent to
deploy under 18s contrary to the spirit and terms of the Protocol.
22. We recommend that in its response to this
report the Government set out its assessment of the extent to
which its inclusion in the national policing plan has affected
the resources devoted to child protection, and how it intends
to monitor the resources devoted to this area in the future. (Paragraph
Earlier this year the Government asked all police
forces to carry out a self-audit of child protection provisions
in response to Lord Laming's report on the Victoria CIimbié
Inquiry, published in January 2003.
Her Majesty's Inspectorate of Constabulary (HMIC)
were subsequently commissioned to undertake an assessment of the
responses submitted by forces. A report of HMIC's findings is
expected to be published in the autumn.
There is currently no specific mechanism by which
to monitor resources devoted to child protection. HMIG do not
routinely monitor allocation of resources other than in the context
of force inspections or thematic inspections where the question
of resourcing and capacity are specifically relevant to the matter
that they are scrutinising.
We are working, through development of the Police
Performance Assessment Framework programme which includes activity
based costing, to get a more detailed and robust view of how resources
are distributed force by force and to associate resource use with
23. We would welcome information from the Government's
responses to the UN committee's recommendations that legislation
be reviewed to ensure children who are sexually exploited are
not criminalised, and its view of the circumstances in which it
is proper to penalise children and young people for sexual activity
more generally. (Paragraph 90)
The Sexual Offences Bill, which is currently subject
to UK Parliamentary process, includes a range of offences specifically
designed to protect children from sexual abuse and exploitation.
No criminal responsibility will rest with a child who is the victim
of sexual crime. Where a child commits a sexual crime, full account
will be taken of his age and all other relevant circumstances
before deciding whether prosecution is in the public interest.
Where children engage in genuinely mutually agreed,
non-exploitative sexual activity that is only unlawful because
one or both of the participants are below the legal age of consent,
we are planning to introduce additional safeguards to ensure that
they are not prosecuted. The type of factors to be taken into
account when deciding whether a child should be prosecuted will
include the relevant ages of the parties; the emotional maturity
of the parties and whether they entered into a sexual relationship
willingly; any coercion or corruption by a person; and the relationship
between the parties and whether there was any existence of a duty
of care or breach of trust. The decision on whether children under
18 should be charged with child sex offences will be reserved
for Crown Prosecutors, rather than the police.
We maintain that the age of consent for all sexual
activity remains at 16. We consider that children under the age
of 16 have the right to be protected from all forms of exploitative
sexual activity and that the most effective way to deliver this
protection is to prohibit all sexual activity with children of
that age, regardless of ostensible consent. The age of consent
recognises that all sexual activity below the age of 16 has the
potential to cause physical or emotional distress to that person.
The review of sexual offences, Setting the Boundaries,
considered the question of whether an age of consent should be
retained and, if so, at what age it should be set and concluded
that it should remain at 16 because "it was well established,
well understood and well supported."
Further, Home Office funded report, "Sex offending
against children: Understanding the Risk",
estimated that "adolescent sex offenders probably account
for up to a third of all sex crime. Although many will offend
against children, this is often secondary to the fact that the
ages of their victims will be similar to their own". The
author, a Professor of Forensic Psychiatry at the University of
Newcastle, is an acknowledged expert in this field. The figure
of one third is an estimate but one arrived at after considering
a number of studies both in the UK and in the US. It cannot therefore
be assumed that children of similar age pose no danger to each
other and it is important to have criminal offences in place to
protect the under 16s from sexual exploitation by other children
and young people.
Where children do commit sexual offences and prosecution
is merited, we recognise that they may also be suffering, or at
risk of, significant harm and in need of protection themselves.
We are taking steps to ensure a co-ordinated approach on the part
of youth justice, child welfare, education and health agencies,
when deciding how to respond to these children. Children sentenced
to detention for sexual crimes will be entitled to take part in
sex offender treatment programmes in the same way as any adult
and it is recognised that children are more likely to be open
to treatment and rehabilitation than adults.
Those under 18 who are involved with prostitution
can still be prosecuted but they would only be prosecuted in exceptional
circumstances, for example where their offending is persistent
or aggravated (e.g. by theft or assault), and where they repeatedly
refuse offers of assistance to exit prostitution. The statistics
show that prosecution is used extremely rarely. In 2000-2001,
2 girls under 16 were cautioned in England and Wales and four
were prosecuted for loitering and soliciting for the purposes
of prostitution (s 1 of Street Offences Act 1959). In the same
period, no boys under 16 were cautioned, proceeded against or
found guilty of solicitation by men (s 32 of Sexual Offences Act
The Government acknowledges that it is a tragedy
for any child to become involved in prostitution and that children
involved in prostitution are primarily victims of abuse and adults
who take advantage of them, whether by exploiting them as pimps
or by buying sexual services from them. Home Office and Department
of Health guidance issued in May 2000 and September 2001 advised
that those under 18 who engage in prostitution are almost invariably
victims and must be treated as such and that wherever possible
criminal justice action should be pursued against those who abuse
children through prostitution or seek to exploit them as prostitutes.
We are also in the process of scoping the issues
for a review of prostitution and will be publishing a paper later
this year. The paper will be the basis for a sensible debate about
what we should do about prostitution in the 21st century. It will
look at the law but also at the social exclusion issues which
lead men and women (and children) into prostitution. The paper
will also address the links between prostitution and drugs and
other forms of organised crime, and the impact of prostitution
on local communities.
24. 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. (Paragraph 91)
The UK intends to ratify the optional protocol at
the earliest opportunity. We need to introduce a range of new
offences to ensure that we are fully compliant with the instrument
before we can ratify it, several of which, relating to trafficking
for the purposes of sexual exploitation and the sexual exploitation
of children are included in the Sexual Offences Bill currently
before Parliament. The optional protocol however also requires
the criminalisation of behaviour which does not fall within the
scope of the Sexual Offences Bill such as trafficking people for
the sake of exploiting their labour, transfer of organs and illegal
adoptions. These measures will require primary legislation. It
is not therefore possible to say when we will be in a position
to ratify the instrument.
Civil Rights and Freedoms
25. We conclude that the time has come for the
Government to act upon the recommendations of the UN Committee
on the Rights of the Child concerning the corporal punishment
of children and the incompatibility of the defence of reasonable
chastisement with its obligations under the Convention. We do
not accept that the decision of the Government not to repeal or
replace the defence of reasonable chastisement is compatible with
its obligations under the Convention on the Rights of the Child.
However the Government believes that it is vitally
important that children are protected with adequate safeguards
from violence and also believes that the current legal framework
provides this protection. The kind of punishment that results
in injury is clearly not reasonable chastisement, and as such
Is already against the law.
The Government's position is that smacking is a matter
for individual parents to decide. The Government's public consultation
in 2000 showed that around 70% of members of the public who responded
were in favour of keeping the status quo regarding the physical
punishment of children by parents.
Since October 2000, the Courts have been obliged
to take note of the outcome in the European Court of Human Rights
of the A v UK case. This means that certain factors must be taken
into account by the Courts when considering whether a punishment
may be described as reasonable chastisement. These factors include
the nature and duration of punishment, its physical and mental
effects and the state of health and age of the child.
The Government has asked the Attorney General to
keep the use of the reasonable chastisement defence under review
to ensure that the legislation, including the Human Rights Act
1998, serves to provide children with adequate safeguards from
violence that should never be capable of being justified as chastisement.
His findings to date suggest that this defence is being used properly.
The Government has asked him to continue this process of review.
The Government is working to support parents in other
ways of coping with discipline in the home. The Green Paper addresses
the issue of support for parents, while we continue to support
organisations such as the National Family and Parenting Institute,
and Parentline Plus, in providing practical help for parents with
23 September 2003
Appendix 2: Letter from Jakob
Egbert Doek, Chairperson, UN Committee on the Rights of the Child
On behalf of the United Nations Committee on the
Rights of the Child I would like to convey to you the Committee's
high appreciation for the attention the Joint Committee on Human
Rights of the House of Lords and House of Commons has given to
the United Nations Convention on the Rights of the Child (CRC).
The fact that the Joint Committee did this by way of a follow-up
to the CRC Committee's recent (4 October 2001) concluding observations
resulting from the review of the second periodic report of the
UK Government is particularly welcome.
It is the Committee's opinion that a parliamentary
follow-up as provided by your Joint Committee is a crucial element
in furthering the implementation of the United Nations Convention
on the Rights of the Child. Yet your Committee's work is exceptional.
We hope that it will become an example of excellent practice to
be followed by all parliaments of States parties to the Convention
on the Rights of the Child. One of your committee's earlier recommendations
(Ninth Report of the same session) to establish a children's commissioner
in England will soon be given proper effect (as far as we are
informed). The Committee on the Rights of the Child is very pleased
with your conclusions and recommendations and expresses the hope
that they with be met with a positive response from your Government.
The Committee is looking forward to the next periodic report of
the United Kingdom.
24 September 2003
25 Sex Offending against Children: Understanding the
Risk, Don Grubin, Police Research Series Paper 99, Home Office