UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 338-iiHOUSE OF LORDSHouse of COMMONSMINUTES OF EVIDENCETAKEN BEFOREJOINT COMMITTEE ON HUMAN RIGHTS
Children's Rights
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This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
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Transcribed by the Official Shorthand Writers to the Houses of Parliament: W B Gurney & Sons LLP, Hope House, Telephone Number: 020 7233 1935
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Oral Evidence
Taken before the Joint Human Rights Committee
on
Members present:
Mr Andrew Dismore, in the Chair
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Dubs, L Lester of Herne Hill, L Morris of Handsworth, L Onslow, E of Prashar, B |
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Memorandum submitted by Department for Children, Schools and Families
Examination of Witnesses
Witnesses: Baroness Morgan of Drefelin, a Member of the House of Lords, Parliamentary Under-Secretary of State, Department for Children, Schools and Families, and Ms Anne Jackson, Director, Child Wellbeing Group, Department for Children, Schools and Families, gave evidence.
Q34 Chairman: Good afternoon everybody. I am joined by Baroness Morgan of Drefelin, Parliamentary Under-Secretary of State for the Department for Children, Schools and Families, and Anne Jackson who is the Director, Child Wellbeing Group, Department for Children, Schools and Families, in our second evidence session on the issue of children's rights. Welcome to you both; do you want to make any opening statement or shall we get straight on.
Baroness Morgan of Drefelin: The advice I had was that the Committee were quite keen to get straight on with it so I am happy to do that.
Q35 Chairman: Very good, okay. Perhaps we
will start by asking you about UNCRC who found a "general climate of
intolerance and negative public attitudes towards children" in the
Baroness Morgan of Drefelin: Sadly we know, for example, when we look at the research that Barnardo's did recently codifying some of the attitudes of young people in our country that generally speaking attitudes can be very critical and negative about young people, and that is why as a government we are working extremely hard to change that perception. For example, one of the concluding observations from the UN Committee on the Rights of the Child, to whom obviously we went recently to make our five-year account of how we are working towards the Convention, was that we should be working more to raise awareness of a number of issues, one being the need to work to change the perceptions of young people, so as a department we are working with other departments and a number of different agencies to literally develop PR and communication campaigns which can change the perception of young people. We know that young people around the UK make a tremendously positive contribution to our society; we know that the vast majority of young people behave well at school, achieve, make great contributions as volunteers, and what we want to be able to do through things like a National Youth Week, by working with NGOs and young people's organisations is help to make that more widely understood. We feel very strongly that there is an awful lot more as a government that we could do.
Q36 Chairman: Some 70 per cent of press comment about young people is negative according to certain research. What can you do to try and change that?
Baroness Morgan of Drefelin: One of our proposals is to work together with youth organisations to create a National Youth Week. If I give an example around behaviour we know that the vast majority of young people behave very well, so we have been working with local media who are sometimes more receptive to positive stories about young people to get positive stories in the local media, but it is a real challenge and we are investing in a targeted PR and communications campaign to change that. It will be something that will be evaluated and I would have thought that the Committee would be interested to see how we do basically.
Q37 Earl of Onslow: The Government has said that it is not in favour of extending age discrimination to children under 18. How would extending age discrimination to cover the under-18s dilute existing protection, which is the reason given by the Government?
Baroness Morgan of Drefelin: If we think about a lot of policy that is designed to support young people, whether it is about providing age-appropriate education or looking, for example, at the child to adult ratios in the early years setting it is actually about providing age-appropriate services. If we were not able to do that then I cannot see that that would be a benefit and in the interests of children. I do not know if Anne wants to add anything.
Ms Jackson: That is essentially the reasoning because within a group of children and young people there are very different sorts of services and support that we want to give for children under-five and young people so that we are responsive to their needs as they grow up. We wanted to protect the ability to do that.
Earl of Onslow: I must say I completely agree with that; it is obvious that you do not provide the same sort of services to five-year olds as you do for 14-year olds.
Q38 Lord Dubs: Can I turn to the Laming Report? It is very clear that the professionals involved with child protection issues are under a duty to have regard to safeguard and promote the welfare of the children that they work with, and that has been accepted practice has it not? Does the Laming Report not show that there has been a real failure and that this whole duty has not been working?
Baroness Morgan of Drefelin: The Laming Report has made 58 recommendations for how the system of child safeguarding in this country can be further developed from that that was introduced following his original inquiry into the events surrounding the tragic death of Victoria Climbié. The main policy thrust that came out of that inquiry was the introduction of the Every Child Matters reforms. Importantly what Lord Laming's report has done is to make clear that that general direction of travel was correct and the right way to go, but there is an awful lot more that we need to do. That programme is a ten-year programme and we are halfway through that. He has made very specific recommendations about how local authorities and their partners should improve accountability through, for example, children's trusts and the role of local safeguarding children boards and so on, so there is an awful lot that he has had to say about the development of the social work profession as well which has given the Government - and of course as Government we have accepted every single one of his recommendations and taken urgent steps to put in place, for example, a national safeguarding delivery unit which is being headed up by Sir Roger Singleton. We are taking very significant steps now but we are also developing a detailed action plan which we will publish by the end of April, and what that will do is set out exactly how each one of those recommendations will be fulfilled. We are in no way complacent about the enormous amount of work that there is still to do to be absolutely clear that we are doing everything that we can to protect children in this country.
Q39 Lord Dubs: Can I just take the discussion one point further? In the National Health Service there have been some pilots of a "human rights" approach to service provision, which focuses on the rights of patients. Do you think there is scope for something similar for the child protection agencies?
Baroness Morgan of Drefelin: I do not know enough about those pilots. What I would say is that one of the things we are concerned about following on from the debate around the events in Doncaster and Haringey is this question of how we can make the debate around what is the most appropriate way to safeguard children in a community more open, and one of the proposals that we have made in reaction to Lord Laming's report is to look at including lay members onto the local safeguarding children boards. That we felt was a way of creating more openness and involvement in the community. I am not sure that that is necessarily answering your question.
Lord Dubs: Thank you.
Q40 Baroness
Prashar: I want to move on to the area of the
criminal justice system and ASBOs. ASBOs
are used against children much less frequently in
Baroness Morgan of Drefelin: Do I think we can learn from
Q41 Dr Harris: Do you think that a child prostitute is a victim or a criminal?
Baroness Morgan of Drefelin: A victim.
Q42 Dr Harris: Why is it that they are still considered criminals by our system?
Baroness Morgan of Drefelin: I would hope very much that they are not.
Q43 Dr Harris: The CRC has recommended the decriminalisation of under-18s involved in prostitution and this was suggested by the minister in the Home Office as something they would consider during the passage of the Criminal Justice and Immigration Act. Vernon Coaker gave the assurance that the Government would give further consideration to this matter. The Policing and Crime Bill going through at the moment has a prostitution section; the opportunity has not yet been taken to decriminalise under-18s but have you had any discussions with your colleagues in the Home Office, or have your officials, about whether the opportunity can be taken to comply with the CRC recommendation and meet the needs that you and I both share, given the exchange we have just had?
Baroness Morgan of Drefelin: I am not completely up to date on that. Within the safeguarding directorate in the department we are working with either the Home Office or the Ministry of Justice on the development of new guidance. Can I take the opportunity to come back to you on that in more detail?
Q44 Dr Harris: Of course, but I just want to explore it further - and I accept that you may not be up to speed on it. The issue is that obviously if it is still a criminal offence even if you do not prosecute - and there have been very few prosecutions of under-18s - it makes it easier for those controlling prostitutes to control them because they know that they can be told they are breaking the law, and obviously the more you criminalise these things the further you drive people engaged in it from the police and from protection, so there is a separate debate about whether it should be criminalised. The more you criminalise it the worse the situation for under-18s; do you accept that that is a problem?
Baroness Morgan of Drefelin: My concern would be to look at the issue and the question entirely from the perspective of the child and the safeguarding needs of that child, so that would be the prism through which I would look at the question.
Q45 Dr Harris: Do you agree with the argument that might be bounced in the tabloids I suppose that decriminalising under-18s in prostitution for example - but that is not the only example I guess - sends out a message that it is okay to be a prostitute as an under-18?
Baroness Morgan of Drefelin: I would find it hard to imagine the Government ever wanting to give a message which says it is okay to be a prostitute.
Q46 Dr Harris: My question was do you accept the argument that complying with the CRC recommendation that you should decriminalise victims in some way sends out a message that it is okay, that it is acceptable to be a prostitute because you are decriminalising the under-18s?
Ms Jackson: I want to suggest that there are one or two things to look at here. One is the issue of criminality and right or wrong around prostitution but the other thing, sitting alongside that, is the response that you make towards any young person found in that position and the need to focus on support for that young person in responding to the situation. The issue is about balancing those two things really.
Q47 Dr Harris: I accept that but I come back to my question. The Standing Committee on Youth Justice which consists of, among others, Barnardo's, the Children's Society, Children's Rights Alliance, Howard League, Justice, NACRO, National Youth Agency, NCB, NSPCC, The Prince's Trust, Prison Reform Trust and so on, all argue that child prostitutes should be decriminalised in order that they can be better accessed because they are victims of rape essentially. How can it be right to criminalise the victims of rape? My question is do you, as a minister, think it is sending a message if you decriminalise these victims that it is okay to be a prostitute. Do you accept that argument?
Baroness Morgan of Drefelin: I cannot accept that it would ever be okay for a child to be a prostitute, that is the first point. I certainly could not accept that it was the right thing to criminalise the victims of rape, so that would be the second point, and I would always want to ensure as a children's minister that we were working to safeguard and protect the child. Those would be the three approaches that I would bring to looking at how we would take forward any requests from any other government department to deal with these issues.
Chairman: Perhaps you would let us have a memorandum about where you are with the Home Office because obviously there is a good opportunity with the Bill presently before the House to hopefully make some progress on this issue. Lord Morris.
Q48 Lord Morris of Handsworth: Just sticking with the same theme, Minister, as you know the minimum age of prosecution in Scotland has been raised to 12; will this new age limit be extended to England and Wales?
Baroness Morgan of Drefelin: We have no plans to look at the age of criminal responsibility. It has been ten since 1963 and the approach that the Government takes is that having the age set at ten does two things: one, it gives us the opportunity to engage in early intervention and ensure that all the opportunities that have been recently set out through the youth crime action plan can come into play at an early age.
Q49 Lord Morris of Handsworth: I hear your response that there are no plans but in the light of that comment how is the Government's approach consistent with the basic interests of the child?
Baroness Morgan of Drefelin: Our approach is to ensure that where a child starts to display early signs of offending behaviour there is the opportunity through many early interventions to support that child, whether it is through either family intervention programmes or referral to other services to encourage them to learn different behaviour. That is the process, but also where young people do engage in a serious offence that is something that we recognise we have to take very seriously and address.
Q50 Lord Bowness: Minister, the Convention on the Rights of the Child has called on us to establish the principle that detention of children should only be a measure of last resort. We are told by various organisations that there are over 2600 children in custody as at the end of January of this year, which does not compare very well with other European countries. Can I ask you, did the Government accept the recommendation that custody for children should only be a matter of last resort and, if they do, why have we got 2600 or more currently in custody?
Baroness Morgan of Drefelin: As I understand it the number of young people in custody has actually peaked and is coming down. We would be very much of the view that we want to work to reduce the number of young people who are offending and where there is an opportunity to offer services and encourage those young people back into school, back into normal behaviour alongside their peers and their community; that would be something that we would want to do. Where a young person commits a serious offence, having already been through the system, possibly a referral order, possibly having already exhausted the out of court disposals that are available through the system, then as a last resort and also in order to balance the needs of the community it is right that there should be the option of a custodial sentence.
Q51 Lord Bowness: Thank you for that, Minister, but you are talking about sentences and we are actually also talking about custody. The number of children in custody on remand, we are advised, has increased by over 40 per cent in seven years and, what makes it even worse, is that the vast majority of those who are held on remand in custody are then acquitted or given a non-custodial sentence. What are we going to do to stop that manifestly unfortunate situation?
Baroness Morgan of Drefelin: I do not have the figures for young people on remand but it is regrettable if, as you say, those figures are increasing. I will happily look further at it and come back to you on that.
Q52 Earl of Onslow: Minister, I accept that you are not Justice Minister but during the passage of the last Criminal Justice Bill it came out that the United Kingdom has a hundred times greater percentage of children in custody than do the Fins, for instance, and it was obvious then - and it appears to be not getting any better - that this question of last resort is not being applied. We cannot have an increase of 41 per cent in seven years of children being locked up without something being seriously wrong. Is your department hammering on the doors of the Justice Department saying "Look, I am responsible for children and it is disgraceful that a large number of children should be looked at, and the moment they are locked up they are on the fast track to further criminality"? We know all of that; it is ridiculous to have our children locked up.
Baroness Morgan of Drefelin: Can I reassure you that the Department for Children, Schools and Families works very closely with other government departments to make sure that the interests of the child are promoted. The best example of that is the Youth Crime Action Plan which was published towards the end of last year, with significant investment, and what that plan is all about is prevention, support and making sure that young people are given the opportunity to make the most of what their communities have to offer them to play a full part in education and that we take all possible steps before we consider custody.
Q53 Earl of Onslow: Did it say too many children are going to prison?
Baroness Morgan of Drefelin: The aims are clear and that is to reduce offending; if we can succeed in reducing offending we help children achieve what we call our Every Child Matters outcomes, which are basically about living a full life and taking advantage of all the opportunities that our communities offer us, so yes we do not want children to be criminalised or imprisoned.
Q54 Lord Lester of Herne Hill: You have not answered the Earl of Onslow's question at all; the question is have you or your colleagues in your department sat down with the Ministry of Justice ministers and officials and said that the record at the moment is disgraceful; we are out of step with the rest of Europe, the figures are appalling, what can we do about it? That seems to me to be what we are really asking you, what have you actually done about it?
Baroness Morgan of Drefelin: We have produced the Youth Crime Action Plan in partnership with ---
Q55 Lord Lester of Herne Hill: Have you met with the Ministry of Justice and discussed the figures?
Baroness Morgan of Drefelin: I have not met with them.
Q56 Lord Lester of Herne Hill: Has anyone in your department or not?
Baroness Morgan of Drefelin: Beverley Hughes actually played a lead in developing that strategy so she works very closely with other government ministers on this matter.
Q57 Lord Bowness: Minister, just to digress slightly following the questions that have been asked, it is not really a question of strategies or trying to stop people offending, it is what do you do when somebody has offended or, in the case when they are on remand, is alleged to have offended. Is it not a case that really the resources are all in the wrong place? There is all this money being spent on keeping people in custody and not really adequate money being spent on alternative ways of dealing with the problem.
Baroness Morgan of Drefelin: I would disagree because we would see the continuum of investment from Sure Start Centres and Children's Centres through to family intervention projects, support to help parents deal with children when they are showing the earliest signs of offending, support with helping children back into school when they suffer exclusion which we know is an early indicator of potential future criminality, so there is a continuum and when you look at the investment that we have made in children's services you can see that we have a very strong commitment to ensuring that all children have the opportunity to thrive and do well, and that means making sure that they do not end up in custody.
Q58 Chairman: Dealing with the point that everybody has the opportunity perhaps you could just clear up one minor point: why do children in custody not have a statutory right to education?
Baroness Morgan of Drefelin: In fact we are through the Apprenticeships and Learning Bill, which is currently in the House of Commons, in effect creating a system ---
Ms Jackson: We are bringing children in the criminal justice system within the general bounds of education provision, so there will be responsibilities to ensure that those children access their education as do other children, including those with special educational needs.
Baroness Morgan of Drefelin: The point about that is it is a very important change because what it means is that local authorities who have responsibility for the provision of education in the community will have responsibility for the provision of education in the secure estate. What that will mean also is that for young people who are in custody the home local authority will have a responsibility to ensure that they are provided with a suitable education while they are in custody and also that when they leave custody their needs are properly catered for. That is a very important development and it is one where you can see the role of our department really making a difference.
Q59 Lord Morris of Handsworth: Will resource be allocated to this new duty that local authorities will have?
Baroness Morgan of Drefelin: Absolutely; we cannot expect local authorities to deliver education ---
Q60 Lord Morris of Handsworth: We are just seeking reassurance on the record, Minister; that is all.
Baroness Morgan of Drefelin: Yes. We invest really significantly in education and we would see investing in education in the secure estate as extremely important.
Q61 Lord Morris of Handsworth: I am talking about the additional resource for the additional responsibility that local authorities will have under the Bill when it goes through.
Baroness Morgan of Drefelin: Exactly how that will work I do not have to hand but I can assure you that we are very, very careful about putting new responsibilities on local authorities without providing additional resources.
Q62 Chairman: There will be an uplift in central government support to local authorities to meet the additional cost of educating children in custody.
Baroness Morgan of Drefelin: I am afraid I am not an expert on the way that local authority formulas work but I can certainly come back to the Committee on that.
Q63 Chairman: We would like a memorandum on that as well.
Baroness Morgan of Drefelin: We will be happy to do that.
Q64 Lord Bowness: Minister, last year - and you may want to write to the Chairman about this because I am not sure whether strictly speaking it is your department or not.
Baroness Morgan of Drefelin: I will give it a go though.
Q65 Lord
Bowness: I am sure you will. The UK has removed its reservation on the Convention
on the Rights of the Child which provides for adults and children to be
detained separately, and the Government has said, I understand, that this
"gives formal recognition to our achievement in setting up a discrete custodial
estate for young people" and your own memorandum referred to that as well. We have had evidence before the Committee
from certainly
Baroness Morgan of
Drefelin: We need to be clear about our role as
the state party co-ordinating our responses to the UN Convention, so we are
clear about what we deliver for
Q66 Lord Bowness: I should say Northern Ireland has said that "boys under the age of 18 in Northern Ireland continue to be held with adult males in prison service custody" so that is in conjunction with the question of girls being placed in adult detoxification wings in prison where there are no separate facilities. We have had specific evidence on that so if this could be covered I am sure the Chairman and the rest of the Committee would be very grateful.
Ms Jackson: I was just going to add that we would obviously consult with
Q67 Earl of Onslow: We now come to questions of restraint. It appears that the Government's response to the independent review concluded that "a degree of pain compliance may be necessary in exceptional circumstances" but recognised that this would be "irreconcilable" with the UN Convention on the Rights of the Child and would be unpopular with the Children's Commissioners, JCHR and others (pages 7-8 of the review report).
Baroness Morgan of Drefelin: I do not have the review to hand to see what that quote is but I have looked at the review, obviously, and we have accepted all the recommendations. We are working to implement them.
Q68 Chairman: Except one which is the key one, which is whether children could be restrained not for the purposes of preventing harm to themselves or others but using pain as part of the distraction technique, punching them on the nose.
Baroness Morgan of Drefelin: The independent review did conclude that in very particular and rare circumstances ---
Q69 Chairman: But they accepted that as irreconcilable with the UNCRC and also of course with our own Committee.
Baroness Morgan of Drefelin: I am not familiar with that exact quote I am afraid.
Q70 Earl of Onslow: This is a report of our Committee, this JCHR, and we made this quite clear, and what the Government has said is that it is not going to do anything about it. Why?
Baroness Morgan of Drefelin: Sorry, Chairman, I apologise, I thought you were talking about the independent report that the department commissioned and not your report.
Q71 Earl
of Onslow: We published a report in 2008 and
we concluded that it was contrary to the
Ms Jackson: That is the position. As you say, the nose distraction technique has been removed but the independent chairs of the review into restraint did conclude, reluctantly, that there were still going to be exceptional cases, particularly perhaps with older and potentially very disruptive young offenders, where distraction techniques involving so-called pain compliant methods would still be used. In accepting those the Government has been working with the secure estate to set up a new system of restraint for these secure training centres and in youth offender institutions.
Q72 Chairman: Do you accept that this is irreconcilable with the Convention obligations?
Baroness Morgan of Drefelin: I do not know that I can accept that because I think that what the review has recommended and this Government has taken on board ---
Q73 Chairman: But do you accept it as irreconcilable?
Baroness Morgan of Drefelin: Sorry, are you talking about the independent review?
Q74 Chairman: Yes.
Baroness Morgan of Drefelin: The use of pain distraction and the use of restraint should occur in very particular and clearly defined circumstances.
Ms Jackson: The review was not giving a legal position there but they did acknowledge the tension, which we all accept, but in terms of our response to the review we accepted the recommendations of the report that this was the best way forward in terms of the interests of the young people in those institutions.
Chairman: That is not the question; the question is do you accept that the position now is irreconcilable with the obligations of the Convention.
Lord Lester of Herne Hill: Could you explain to me what they are talking about? What do we mean by "nose distraction technique" and "a degree of pain compliance"? What is that about; what do they do to the children?
Q75 Chairman: Punch them on the nose.
Baroness Morgan of Drefelin: As I understand it is literally when the staff are involved in controlling a young person and, according to the material I have seen, in order to perhaps stop a young person from biting a member of staff or another young person then pain distraction is used.
Q76 Lord Lester of Herne Hill: What does pain distraction mean? I am sorry, these are euphemisms, what are we talking about, pain distraction?
Baroness Morgan of Drefelin: It means that a member of staff will inflict pain on the ---
Q77 Lord Lester of Herne Hill: They will assault a child inflicting some kind of injury as self defence, is that what you are talking about?
Baroness Morgan of Drefelin: I would not accept that they are intending to inflict an injury.
Q78 Lord Lester of Herne Hill: I am sorry to be so thick but I do not understand what "nose distraction technique" means and exactly what is the degree of force that is being used, with what intention and consequence?
Baroness Morgan of Drefelin: One of the findings from the independent review was that in order to create consistency across the secure estate and in order to answer exactly questions like that a new form of restraint should be developed that is accredited, that all staff should be trained and there should be a consistent application of these techniques across the secure estate. We have accepted the recommendations.
Lord Bowness: Chairman, can we just be clear because, like Lord Lester, I do not understand what nose distraction is. To be honest I thought we had got a typing error here and I thought we were talking about a noise distraction that people under a certain age can hear but those of us who are rather more past it cannot.
Chairman: The nose distraction technique is punching him on the nose.
Q79 Lord Bowness: It must be a little more subtle than that to have such a fancy title.
Baroness Morgan of Drefelin: The advice I received is that nose distraction is ---
Q80 Chairman: As you said, it has been abolished now.
Baroness Morgan of Drefelin: Yes, but just for the record the term is used to describe pressure on the base of the nose and the Government has accepted that this technique should be ended.
Q81 Lord Lester of Herne Hill: What is a degree of pain compliance about other than that? What is the degree of pain compliance that may be necessary in exceptional circumstances?
Baroness Morgan of Drefelin: I believe, Chairman, it is the use of wrist flexion.
Chairman: Bending the wrist back. Okay, let us move on.
Q82 Earl of Onslow: Minister, restraint was used on children around 14000 times in the 20 months between October 2006 and June 2008 in prisons, secure training centres and local authority secure children's homes. Can you be sure that it is always being used as a last resort? For your information, restraint is used disproportionately in STCs, 44 per cent of all injuries caused by restraint occur in STCs, girls comprising just seven per cent of children in custody account for 20 per cent of restraint injuries. These figures seem to me quite disturbing. Can you explain and elucidate for me?
Baroness Morgan of Drefelin: I like the noble Lord find it very concerning that we have the need for restraint within our secure estate and I am pleased that the Government has been able to accept the recommendations of the independent review because within those recommendations there is a clear recommendation that there should be a transformation of the training of the staff who work in these institutions and that there should be a very clear understanding of the behaviour management programme that staff should adopt. The first stage should always be de-escalation of the situation and there should always be a record of any intervention, and any restraint should also include a very clear period of reflection indeed for the individual and the staff so that there is always the opportunity for that young person to understand exactly what has happened and why it has happened, and that there should be proper record-keeping and evaluation.
Q83 Earl of Onslow: As you say that there is proper record-keeping, or at least that is what I understood you to say ---
Baroness Morgan of Drefelin: I am not sure that we are satisfied that there is comprehensive enough record-keeping.
Earl of Onslow: You are not satisfied with the record-keeping. Have you any evidence that the numbers are falling or are they rising or are they staying constant?
Q84 Chairman: It seems to me that if you are not satisfied about the record-keeping they would be higher rather than lower would they not?
Baroness Morgan of Drefelin: Yes, they could be.
Ms Jackson: A recent Parliamentary question gave some figures for the use of these techniques in secure training centres in the first three months of this year and identified that out of about 350 incidents it had been used six times, so that suggests that the incidence is indeed falling.
Q85 Earl of Onslow: As I alluded to in my previous question it does seem that the restraint is being used disproportionately on girls; can you explain to me why that is and does it not worry you?
Baroness Morgan of Drefelin: Of course I am concerned about that and the advice I have had is that restraint is used in a situation where staff are concerned about the safety of the individual and particularly self-harm is an issue amongst girls. I am advised that restraint is used in order to protect girls from self-harm on occasion and that that is an explanation for that statistic.
Q86 Earl of Onslow: Is the potential for self-harm among young ladies or girls of the same proportion as it is for restraint? I do not know the answer to this but how much more likely are young girls to self-harm compared to young men?
Baroness Morgan of Drefelin: I am afraid I cannot remember the figure but girls are much, much more likely to engage in self-harm than boys. I will come back to you on that because I have not got it to hand.
Chairman: Okay, another memorandum. Lord Dubs.
Q87 Lord Dubs: I appreciate that some of our questions relate to areas of your responsibility shared with other government departments and I understand the difficulty, but I want to turn to asylum-seeking and refugee children. What role does your department play in determining policy in this area?
Baroness Morgan of Drefelin: We have a number of roles.
First and foremost we view unaccompanied asylum-seeking children - and
there are around 8000 a year in
Q88 Lord Dubs: Thank you. What changes do you think are necessary to ensure that the UK Border Agency complies with its new duty of having regard to the need to safeguard and promote the welfare of children? What do you think they need to do to ensure that they actually meet the duty?
Baroness Morgan of Drefelin: What we know is that since they developed their code of practice there has been a real improvement in the promotion of the welfare of children in the immigration system and that is relatively recent, that code of practice. When the duty comes in, all being well - because it has not happened yet - that then will make it even more clear that under the Children Act it puts the UK Border Agency on a par with any other agency. Obviously the UK Border Agency is a UK-wide body and that is why we had to create that duty in that way.
Q89 Lord Dubs: I understand that. In your submission there are some expressions you use which are a little bit vague. You talk about the UK Border Agency "keeping a close eye on progress" and "being alert to the need for further improvements in practice". That can either mean you are doing a lot or it can mean you are not doing anything; they are rather vague expressions. Do you want to comment on that or is it too early in the day for that?
Ms Jackson: If I could just comment, a good deal of preparatory work has gone into the introduction of the code from January this year and what specifically it requires all UKBA staff to do is to keep children safe from harm by ensuring that immigration procedures are responsive to the needs of children and young people and identifying and being able to identify young people at risk of harm and then knowing who to refer on to if they identify such a young person. This code, as I say, is quite new so we will be looking to see what impact it has and then to strengthen it further in the light of the new duty.
Q90 Lord Dubs: That is a better response than the slightly vague terminology to which I referred. Can I ask one more question and it is really about the detention of children and families. There was a pilot in Kent, Millbank, which the Government put forward as being the answer to Yarl's Wood. Could you tell me something about where we have got to with that and what can we learn from that?
Baroness Morgan of Drefelin: I would say we were very disappointed with the results of that pilot. In truth we were hoping that it would provide a body of good practice that could help to promote further voluntary removal of families so that detention of children with families would not be as necessary to fulfil immigration policy. Through the pilot - I do not know whether there is going to be a formal report - we know that it was not very effective.
Q91 Lord Dubs: Thank you for that. It is very disappointing because there was so much concern about keeping children in Yarl's Wood - you will be familiar with all the arguments that have gone on - and here we have had one of your fellow ministers say you have got a new approach, we are going to try it out in Kent, and that may be the way to avoid children being detained, but now we find it does not seem to have worked and we do not actually know why. Is it possible we could have a report on that because a lot of us think that detaining children is normally unacceptable and if this was the way forward it is a pity it has failed.
Baroness Morgan of Drefelin: We are not giving up, that would be the right thing to point
out. There is going to be another pilot
in
Q92 Chairman: When you say "disappointed with the pilot" disappointed from what perspective, disappointed from the perspective of looking after the children well or disappointed from the perspective that you could not get them to go home voluntarily?
Baroness Morgan of Drefelin: Disappointed because the hope was that we could develop an approach which would further minimise the number of children who would be detained.
Q93 Lord Lester of Herne Hill: Could you clarify one thing for me? I see this imposition of a duty on the UK Border Agency but is it absolutely clear - and it may not be you but the Home Office would know the answer - that the British Airports Authority staff have not had delegated to them anything to do with asylum or immigration, so that the responsibility which you are placing on the Border Agency is theirs and theirs alone, or is there some grey area in which some of this discretionary policy could be exercised, not by the Border Agency but actually by BAA staff? That is an issue which is very important, obviously, in the context of the current Bill - does Ms Jackson or the Minister know the answer to my question?
Baroness Morgan of Drefelin: No. I would have no reason to believe that any part of this duty could be delegated to another authority, but I would want to check that.
Q94 Lord Lester of Herne Hill: Could you do it really quickly because we have this issue next week in the Lords.
Baroness Morgan of Drefelin: Certainly, I will do it very quickly.
Q95 Dr Harris: On this Millbank pilot you said you were disappointed; has it been evaluated and has that evaluation report been published, because it is not really a pilot unless you do both of those things, is it, it is just a secret experiment otherwise.
Baroness Morgan of Drefelin: We do not want to be secret about it at all. I do not know exactly how it is going to be reported.
Q96 Dr Harris: Have you seen a report which leads you to conclude the results are disappointing; if so when do you plan to publish it so that we can see where you are coming from?
Ms Jackson: The report is being looked at now by some independent
consultants. We had hoped it would be
ready a little bit before now but it is not yet, but obviously we will be very
happy to share that once it comes round.
The reason why we know it has been disappointing so far is because the throughput
of families has been very small and so inevitably that means that we have not
been able to test it out. The other
thing I would say is that we are going to be looking at the lessons from this
for the
Chairman: You will let us have a copy of the report on this pilot.
Q97 Dr
Harris: You cannot really start the new
pilot in
Ms Jackson: The
Dr Harris: I hope so.
Lord Lester of Herne Hill: Could I switch, please, to ask you a question about the interpretative declaration proposed to be made to the Disabilities Rights Convention? The Minister, Jonathan Shaw MP, explained that it was proposed to make an interpretative declaration that the UK general education system includes mainstream and special schools, and that would make it clear that special schools are considered part of the UK's general education system and that parents have the right to request a preference for a special school. He went on to say "A reservation is proposed to allow for circumstances where disabled children's needs may best be met through specialist provision, which may be some way for their home - so they will need to be educated outside their local community. This also maintains parental choice for schools outside the local community." I do not know whether the actual terms of the reservation and the interpretative declaration have been published?
Chairman: They have been circulated.
Q98 Lord Lester of Herne Hill: In that case I apologise for not having noted that, but the question is this: as you probably know the Human Rights Commission among others has raised the problem in their view that a reservation would contradict the Government's commitment to inclusive education, so the question is how you reconcile the Government's stated commitment to inclusive education for children with disabilities with the proposed reservation and interpretative declaration the UN Convention. How do you square the two?
Baroness Morgan of Drefelin: I will have a go, though I am not sure whether I will satisfy you. First and foremost we are looking at around about one per cent of all children with disabilities who are educated in special schools. The number of special schools has actually fallen but the percentage, the one per cent, has remained constant for some time. Therefore the vast majority of disabled children are educated in the mainstream and in their communities. We feel strongly that to offer the opportunity for a very, very small proportion of disabled children to attend a special school that might cater specifically for their particular needs when 99 per cent of others are in the mainstream is not undermining. All those children who attend a special school almost certainly, should they wish or should their parents wish, would be able to attend a mainstream school, so it is about making sure that we are providing the education facilities and services that suit most or all disabled children.
Q99 Lord Lester of Herne Hill: Is the language of the reservation, which I have not read, sufficiently tightly drawn to make it quite clear that it is only in that very tiny minority of cases that the Government would ever contemplate putting children into a special school in the way that is reserved here? I have not got the text, I do not know whether you have the text in front of you.
Baroness Morgan of Drefelin: I assume the text I have got is the same as the text that other people have received and it starts by stating that "The United Kingdom Government is committed to continuing to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff which have the capacity to meet the needs of disabled children" and it goes on from there. We have stated our commitment to an inclusive mainstream system of education but because we are of the view in Government that we cannot sign up to a Convention and just do our thing, we have to be clear, that is why we are including the interpretative declaration.
Q100 Dr Harris: On to ground you will be familiar with now; I want to ask you about the concept of giving competence, phrasal competence to, for example, girls who are mature enough and have the understanding to make their own decisions about access to contraception and abortion. Are you familiar with the concept?
Baroness Morgan of Drefelin: Possibly not as familiar as you are.
Q101 Dr Harris: After the Gillick case there was this provision whereby it was decided that a doctor can provide contraceptive advice to a girl, even if she is below the age of 16, without parental knowledge or consent if the child does not want to allow for that - you are with me Ms Jackson on this - as long as the doctor is of the view that there is sufficient capacity, maturity and understanding. That is established in law; is there any argument why the threshold should not be the same when it comes to children's rights to decide whether they want to pray in school?
Baroness Morgan of Drefelin: Obviously we have thought about this very carefully and it is a matter that comes up for debate from time to time. We had a debate about it in the Education and Skills Bill when it came through the Lords last time and I appreciate that people do have a view that the same argument should apply to participating in religious education.
Q102 Dr Harris: Or collective worship, both.
Baroness Morgan of Drefelin: I appreciate they are different. We have thought long and hard about it but we do feel that on balance it is not right that we should put schools in the position where they have to make those decisions and that we should continue with the position where parents can withdraw their children.
Q103 Dr Harris: Why is that, why do you not think schools should be put in the position to deal with the issue of compulsory prayer for girls when they are already in that position with regard to contraception advice confidentially from the school nurse. Why is it that you feel that, what is the justification for that position and the distinction between abortion and contraception on the one hand: 15-year olds allowed, not wanting to pray to a God they do not believe in: 15-year olds not allowed to opt out?
Baroness Morgan of Drefelin: It is a balance of the practical running of the school and the challenges that schools face. There are very strong reasons for maintaining the situation that we have.
Q104 Dr Harris: What are those strong reasons other than the practical issues that you claim apply to schools?
Baroness Morgan of Drefelin: They are very practical reasons.
Q105 Dr Harris: Which are?
Baroness Morgan of Drefelin: To ask teachers to make those kinds of judgments when, in fact, if the parents wish to withdraw their child up to the age of 16 from religious worship then they can do that without any problem.
Q106 Dr Harris: Where is it with human rights - because that is what we are talking about here, the right of someone not to be forced to pray to a God they do not believe in, or not to be allowed to pray to a God they do believe in when other people have that arranged for them in schools - where is it that practical considerations, even if I accept that this was a difficulty, should trump fundamental human rights? What other examples are there? It is convenient to restrain children, it is practical, but we do say that they should not be physically restrained. What is the justification in this case?
Baroness Morgan of Drefelin: What I would say - and I am not sure that I can satisfy you so perhaps I have to accept that - is that we do accept that parents bring up children in this country, not the Government and not schools and we would, up until this age, expect parents to be sensitive to the needs of their children but it is their responsibility up until 16.
Q107 Chairman: Can we move on to the UN Convention and the widespread calls for it
to be incorporated into
Baroness Morgan of Drefelin: I am not sure I would accept the word "fruitless".
Q108 Chairman: It is your word, a "fruitless task".
Baroness Morgan of Drefelin: Is it my word?
Q109 Chairman: It is Beverley Hughes' phrase.
Baroness Morgan of Drefelin: What I would say is that we are extremely committed to making the UN Convention on the Rights of the Child a reality and we do that through a number of different vehicles, whether it is through our own legislation, the Children Acts of 2004 and 1989, other Education Acts and other examples and through our policies like Every Child Matters, like Care Matters that I was talking about earlier on, so we do not see that we need to incorporate the Convention into law in order to honour the obligations.
Q110 Chairman: There are specific implementation plans for
Baroness Morgan of Drefelin: Do you mean the recommendations from the Committee?
Q111 Chairman: From the Convention on the Rights of the Child, including the observations.
Baroness Morgan of Drefelin: We have produced a document called Children's Plan:One Year On which is looking at progress with the Children's Plan and to be clear the Committee were extremely pleased with the Children's Plan and did recognise that we had made an enormous amount of progress, and they did give us very important feedback which we take very seriously. In our Children's Plan:One Year On document we have set out clearly how we will be taking forward the concluding observations, but taking account of the devolved administrations and as we are the co-ordinating state party I am meeting the ministers from the devolved administrations in early summer to discuss how we can produce a clear articulation of what the UK's response to the concluding recommendations should look like.
Q112 Chairman: One last question from me on the consultation paper on child poverty. This envisages placing a duty on local authorities to adopt a target for reducing child poverty in its area and a strategy for achieving that target. If a local authority failed to adopt a target or a strategy to achieve it, would that failure be subject to judicial review?
Baroness Morgan of Drefelin: I will have to defer to Anne.
Ms Jackson: The consultation paper invited views on a number of options for highlighting child poverty amongst local authorities and targets were one such option, a strategy and a local duty were others. We are just now looking at the responses to that consultation before ministers decide which way we go forward. In terms of an authority not doing its utmost to eradicate child poverty the main losers will be obviously the children themselves plus the impact across a whole range of things that the authority is going to try and achieve.
Q113 Chairman: But that is not what I asked you; I asked you would that failure to adopt a target or a strategy, whichever it happens to be, be judicially reviewable?
Ms Jackson: Ministers have not decided what response they are going to take in terms of local authority duties or strategies but, broadly, any obligation on local authorities or any failure to make progress would be subject to the same sort of range of performance monitoring and regulatory instruments as applies across the whole range of authorities' businesses.
Q114 Chairman: What about judicial review?
Ms Jackson: It depends on the way in which a duty or target comes out. At the minute targets are not susceptible to judicial review and local area agreements are not susceptible to judicial review.
Q115 Lord
Lester of Herne Hill: That is not
correct. If you look at the case of the Family Planning Association (
Ms Jackson: Apologies, I was talking about the local area agreements system.
Q116 Lord Lester of Herne Hill: I know, but I was going back to the earlier question about why they are not going to incorporate the Convention. We need chapter and verse as to why it is not necessary so can we be given chapter and verse, please, going through it article by article to show us that there are effective domestic legal remedies if that particular provision is breached because then we will understand the Government's position in saying it is fruitless to incorporate it in general. We need to have chapter and verse.
Baroness Morgan of Drefelin: We will do our best.
Chairman: Okay, you will do your best. Thank you very much, the evidence session stands adjourned.