Joint Committee On Human Rights Eighteenth Report


Appendices

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).

and

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 researchers.

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).

and

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).

and

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 1997.

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 Paper.

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 children.

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 achieved.

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 further offending.

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 comparison.

All 10 and 11 year olds dealt with in 2001—the most recent year for which we have published statistics—were 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 1 December.

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 Order—enabling 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 be given.

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 community—so that its structure and restraints can be used as positively as possible to prepare for and manage effective resettlement.

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. These include:

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 measures, and

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 organisations.

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.

Prison Service

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 agencies.

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 this year.

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 is absent.

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 will be:

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 take on.

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 accommodation—which 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. (Paragraph 70)

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 our efforts.

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 in Iraq.

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 89)

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 performance.

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",[25] 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 1956).

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. (Paragraph 111)

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 difficult children.

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 1998 Back


 
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