Legislative Scrutiny: Children and Families Bill; Energy Bill - Human Rights Joint Committee Contents


1  Children and Families Bill

Background

1. The Children and Families Bill[1] was brought to the Lords from the Commons on 12 June 2013. It is a carry-over Bill from the 2012-13 Session. It was first introduced in the House of Commons on 4 February 2013.[2] The Bill received its Second Reading in the House of Commons on 25 February, and completed its Committee Stage on 23 April.[3] Following the Queen's Speech it was reintroduced in the Commons on 9 May[4] and completed its Report and Third Reading on 11 June. The Second Reading of the Bill in the House of Lords is scheduled for 2 July. Lord Nash has certified that, in his view, the Bill is compatible with Convention rights.

2. The Bill is a substantial measure providing for far-reaching reforms in a number of areas, including adoption and children in care (Part 1), family justice (Part 2), Special Educational Needs (Part 3), childminder agencies (Part 4), the Office of the Children's Commissioner (Part 5) and shared parental leave and pay and flexible working (Parts 6-8).

3. Four parliamentary committees conducted pre-legislative scrutiny of different parts of the Bill which were published in draft. The House of Lords Select Committee on Adoption Legislation scrutinised the draft clauses on adoption. The Commons Justice Committee scrutinised the draft family justice clauses. The Commons Education Committee scrutinised the draft special educational needs provisions. We carried out pre-legislative scrutiny of the draft clauses on the reform of the Office of the Children's Commissioner for England.[5] The Government responded to each of the pre-legislative scrutiny Reports.[6] In our scrutiny of the Bill we have taken into account all of the pre-legislative scrutiny Reports and the Government's responses to each of them.

4. We wrote to the Minister of State for Children and Families on 13 and 26 March asking a number of specific questions about the human rights implications of certain aspects of Parts 1, 2, 3, 5 and 6 of the Bill.[7] The Minister responded to the Committee's questions by letter dated 15 April 2013.[8]

5. We received representations about the human rights compatibility of different aspects of the Bill from Carers UK, Scope[9] and the Children's Commissioner. We were also sent more general briefings on parts of the Bill by the Kinship Care Alliance and members of the Association of Professors of Social Work. We held an informal meeting with Scope on 5 June 2013. We are grateful to all those who have assisted us in our scrutiny of the Bill. We have taken all the evidence we have received into account, and we refer to it in this Report where relevant to recommendations we make.

6. We also wrote to Carers UK on 27 March 2013[10] and received a further submission dated 15 April 2013. Carers UK are concerned about the lack of legal protection for the rights of carers of disabled children, usually their parents or other members of their families, compared to other carers. This is an understandable concern but in our view it is better taken up in the context of the Care Bill that is currently before the House of Lords. We intend to return to the issue in our scrutiny of that Bill.

Information provided by the Department

7. In our pre-legislative scrutiny Report on the draft clauses on the Children's Commissioner, we were critical of the brevity of the Minister's response to many of our detailed questions about the draft clauses and expressed the hope that the Government's response to our Report would include answers to the questions which had not received a response from the Department.[11] The Government provided a detailed and very constructive response to all of the pre-legislative scrutiny Reports on the legislation that was published in draft, including our own Report on the draft clauses concerning the Children's Commissioner.

8. The Government also provided a memorandum in which it summarises its consideration of the Bill in light of both the European Convention on Human Rights ("ECHR") and the UN Convention on the Rights of the Child ("UNCRC").[12] We are grateful to have received such a memorandum shortly after the Bill's publication, which is in line with the best practice that we encourage Departments to adopt. However, the summary, although useful, was not as full as previous human rights memoranda provided by the same Department. The memorandum also did not consider the provisions on Special Educational Needs in Part 3 of the Bill in light of the relevant provisions in the UN Convention on the Rights of Persons with Disabilities ("UNCRPD"), which is clearly relevant. We therefore requested a supplementary memorandum on that subject, which the Government duly provided with its letter of 15 April.

9. Although we were disappointed by the Department's engagement with our pre-legislative scrutiny of the draft clauses on the Children's Commissioner, we commend the Department on its constructive engagement with us during our scrutiny of the Bill itself. We have received prompt and full responses to our questions and are grateful to have received memoranda specifically addressing the Bill's compatibility with the European Convention on Human Rights, the UN Convention on the Rights of the Child and the UN Disabilities Convention. We particularly commend the Department for including in its memoranda the Government's analysis of the positive ways in which the Bill's provisions would strengthen implementation of the rights set out in those human rights treaties. This is an important function of human rights memoranda but is often overlooked by Departments, which have tended to adopt a wholly negative approach to analysing the human rights implications of Bills, in terms of whether they interfere with rather than promote particular rights.

10. We recommend to other Departments, as an example of best practice, the approach adopted in the Department's human rights memoranda in relation to this Bill, which includes analysis of both possible interferences with rights and ways in which protection for rights is strengthened by the provisions in the Bill. We would point out, for future reference, that we would be even more assisted by a single memorandum addressing all of the relevant human rights standards, setting out the Government's analysis in full rather than in summary, and made available to us on publication of the Bill or as soon thereafter as possible.

Child Rights Impact Assessment by the Children's Commissioner

11. We have also been assisted by the "Child Rights Impact Assessment" of Parts 1 to 3 of the Bill which has been carried out by the Office of the Children's Commissioner. The Commissioner's impact assessment is through and detailed and grounded in all the relevant international standards, particularly those contained in the UN Convention on the Rights of the Child.

12. We welcome the provision in the Bill which makes clear that the Children's Commissioner has the power to carry out and publish such "children's rights impact assessments" in relation to both Government policy proposals and legislation.[13] The Bill rightly leaves it to the Commissioner to decide whether to carry out such an impact assessment and in relation to which issues. The Government is also right to leave it to the Commissioner to decide when to carry out such an assessment. In our experience, Parliament would always be greatly assisted by the Commissioner providing a children's rights impact assessment in relation to any Government Bill, or part of a Government Bill, which has significant implications for the rights of children and we hope that the Commissioner will have sufficient resources to be able to assist Parliament regularly in this way. Sometimes such an impact assessment would be useful at the earlier, pre-legislative stage, such as where the Government consults on a proposal which will clearly have a significant impact on children, or at the later, post-legislative stage, where legislation has been passed which clearly has significant implications for children. We also look to the Government to reassure Parliament that it will continue to conduct its own assessments of the impact of laws and policies on children's rights, in accordance with its undertaking to Parliament on 10 December 2010, and will not leave it to the Office of the Children's Commissioner to do so.

Adoption and looked after children (Part 1)

(A) 'FOSTERING FOR ADOPTION' PLACEMENTS

13. The central objective of some of the provisions in Part 1 is to reduce unnecessary delay before a permanent placement is found which is in the child's best interests. We welcome measures which will speed up the adoption process because they clearly have the potential to enhance the protection of children's rights, in particular the important rights in Articles 7, 9, 12, 20 and 21 of the UNCRC. We asked the Government some questions, however, about the extent to which pursuit of this objective has implications for other, competing rights, and in particular the right of the child to be looked after by their birth family, and the birth family's corresponding right to respect for their family life, other than where an alternative is necessary as a last resort.

14. Compared to the draft clauses published for pre-legislative scrutiny, the Bill has widened the application of the "early permanence" principle, by bringing forward the point at which the duty on local authorities to consider a "fostering for adoption" placement applies to the point at which the local authority is considering adoption for the child.[14] This is significantly earlier than the point recommended by the House of Lords Select Committee on Adoption in its pre-legislative scrutiny Report on the draft clauses, which recommended that the duty should be triggered at the later point when the local authority is preparing the child's "permanence report." The effect of this change is that the duty could apply, in the Government's own words, "in the first week the child is in care" or "even before the child is born".

15. Concerns have been expressed, by the Kinship Care Alliance, members of the Association of Professors of Social Work and the Children's Commissioner, for example, that this gives rise to a risk of disproportionate interference with the child's right to respect for their family life, because it may lead to their being adopted before all other placement options have been exhausted, including placements which would preserve the child's contact with their birth families. According to the Kinship Care Alliance and the Children's Commissioner, in some cases it may effectively pre-empt a meaningful judicial determination, because the attachments which have been formed with the non-birth family make the outcome of the court's determination inevitable, and therefore be in breach of the requirements of due process contained in the relevant international standards, including the right to a fair hearing in Article 6(1) ECHR.

16. We therefore asked the Government whether the trigger for the duty in clause 1 of the Bill is now so early in the process as to be incompatible with both the child's and his or her family's right to respect for their family life in Article 8 ECHR and, in some cases, to pre-empt the right to a judicial determination of whether the child should be adopted. We also asked the Government what consideration it has given to the United Nations Guidelines on the Alternative Care of Children (2009) when drawing up Part 1 of the Bill. The UN Guidelines are intended to enhance the implementation of the UNCRC in relation to the protection and well-being of children who are deprived of parental care. One of the objectives of the relevant international standards is to ensure that children are only placed in alternative care as a last resort.

17. The Government's response, both in its letter to us and the Minister's response to the same concerns raised in Public Bill Committee,[15] has been to offer reassurance that the policy intention is not to give priority to 'Fostering for Adoption' over other forms of permanent placement, but rather to give children for whom the local authority is considering adoption the opportunity to move in with their potential adoptive family earlier if it is determined that such a placement is the most appropriate one for that child. The new duty on local authorities to consider a fostering for adoption placement, the Government says, does not discharge them from their other duties. It remains the case that the first decision the local authority must make is whether the child can live with his or her birth parents. If that is not reasonably practicable and consistent with the child's welfare, the local authority must place the child in the most appropriate placement available.

18. The Government accepts that the new duty on local authorities provided for by clause 1 of the Bill disapplies the current duty to give preference to placements with family and friends when Fostering for Adoption is being considered. Where adoption is not the place for the child, the current law in the Children Act 1989 assumes that if the child cannot be with parents, the next best thing would be a placement with the wider birth family (or a connected person). But the Government says that where adoption is likely to be the outcome for the child, it can no longer be assumed that the best thing is for the child to stay with the wider birth family. This, it says, is why the local authority will no longer be required to give preference to kinship placements when it is required to consider a Fostering for Adoption placement.

19. Nor, in the Government's view, is there anything in clause 1 of the Bill which means that Fostering for Adoption may lead to adoption without prior judicial determination. Nothing in the Bill makes any changes to the law in relation to the making of placement orders or adoption orders, and those cases will still have to go through the courts. It will remain the case that a child cannot be placed for adoption unless the birth parents give their consent, or the court has made a placement order. Birth parents will still have the right to be heard, and to free legal representation, throughout those proceedings.

20. The Government therefore considers that the framework for decision-making which is contained in the amended s. 22C of the Children Act 1989 is compatible with both the UNCRC and the UN Guidelines, because it continues to stress the importance of ensuring that children continue to live with their birth family, and of attempting rehabilitation with that family before adoption.

21. In Public Bill Committee the amendments to clause 1 which were animated by similar concerns to those underlying our questions were withdrawn on the basis of the Minister's assurances that it will still be a requirement that preference is given to arrangements with the birth family and kinship care arrangements, but the proposer of the amendments remained unconvinced about the reasons for not making this clearer on the face of the Bill and remained concerned about the risk of real confusion arising from the way in which the clause is currently drafted.[16]

22. We welcome the Minister's reassurance that it is not the Government's intention that kinship carers should be overlooked as a consequence of the clause in the Bill concerning fostering for adoption. However, we share the concerns expressed by the Children's Commissioner and others that, whether or not this is the intention, it may be the effect of the clause as the Bill is currently drafted. We therefore welcome the Minister's indication at Report Stage in the House of Commons that he is considering amending the clause to be clearer that local authorities must first consider placing a child with relatives and friends before they consider a "fostering for adoption" placement.[17] We recommend that clause 1 of the Bill be amended to make more explicit the Government's intention that a Fostering for Adoption placement is not intended to take priority over a placement with family and friends where that is the most appropriate placement available.

(B) REQUIREMENT TO GIVE DUE REGARD TO CHILD'S ETHNIC, RELIGIOUS, CULTURAL AND LINGUISTIC BACKGROUND

23. Clause 2 of the Bill repeals the requirement in the current law (s. 1(5) of the Adoption and Children Act 2002) that, when making decisions about the adoption of a child, local authorities must give due consideration to religious persuasion, racial origin and cultural and linguistic background. The provision being repealed gives statutory effect to the obligation in Article 20(3) UNCRC, that "when considering solutions, due regard shall be paid [...] to the child's ethnic, religious, cultural and linguistic background." The Government's rationale for the repeal is that the practical effect of the provision has been that black and minority ethnic children have been left waiting in care longer than necessary while social workers "wait for the perfect or partial ethnic match".

24. In view of the significance of repealing a statutory provision which gives direct effect to a requirement in an important human rights treaty, we have subjected to very careful scrutiny the evidential basis for the Government's claim that the statutory provision in question has caused delays in the adoption of black and minority ethnic children. We note that a 2012 Ofsted report, Right on time: exploring delays in adoption (April 2012), found little evidence of delay caused by an unrealistic search for a perfect match. We therefore asked the Government to explain the basis on which it had discounted Ofsted's findings that there is little evidence that the statutory requirement in s. 1(5) of the Adoption and Children Act 2002 contributes to delays in adoption.

25. The Government's response is that it has considered carefully the Ofsted report, but it was based on a survey of just nine local authorities and those local authorities had so few black children that it is not possible to draw any meaningful conclusions from the report on this question. The Government says that it does know, however, from data collected by the Department for Education, that black children take a year longer to be adopted than all other ethnic groups of children. We accept that the data does show that black or black British children do take around a year longer to be adopted after entering care than children of other ethnicities and we agree that the significantly greater delay experienced by black children in care is a matter of profound concern. We agree that remedying this discrimination should be an urgent priority for all involved in the adoption process.

26. There is no evidence, however, that the statutory requirement in s. 1(5) of the Adoption and Children Act 2002, to give due consideration to religious persuasion, racial origin and cultural and linguistic background, is responsible for the greater delay experienced by black children. The only evidence relied on by the Government to justify its proposed repeal of the statutory requirement is the data collated by the Department for Education from local authorities.[18] That data, which includes a breakdown of the timescales for children waiting to be adopted by ethnicity between 2008-2011, in fact shows that there are differences between different ethnic groups: Asian or Asian British children, for example, on average take less time to be adopted than white children.

27. In our view, the evidence relied on by the Government therefore not only fails to support but positively undermines its justification for repealing the statutory requirement. If the Government's explanation were correct, we would have expected the data to show that children from all minority ethnic groups experience longer delays in adoption than white children, but this is clearly not the case. The data cannot be relied upon to demonstrate any causal link between the statutory requirement that the Government wishes to repeal and the unacceptable delay in adoption experienced by black children.

28. We are therefore not satisfied that the Government has demonstrated by reference to evidence that the statutory provision it proposes to repeal has been responsible for delays in the adoption process to the detriment of children from ethnic minority backgrounds.

29. The House of Lords Select Committee on Adoption Legislation was concerned that the repeal of this requirement would risk the child's ethnicity not being taken into account. To meet this concern, it recommended that "religious persuasion, racial origin and cultural and linguistic background" be added to the welfare checklist that local authorities are required to have regard to in s. 1(4) of the 2002 Act. The Government, however, has rejected this recommendation. It says that placing a specific reference in s. 1(4) would "continue to create the impression that these issues are of more importance than the child's other needs that are covered by the welfare checklist." In the Government's view, the existing requirement in s. 1(4), to have regard to "the child's background and any of the child's characteristics which the court or agency considers relevant", is sufficient.

30. We are concerned that the effect of repealing altogether the requirement to have due regard to these considerations will be to give the impression that there is no longer a requirement to pay them due regard. We asked whether, following the proposed repeal, it will still be a legal requirement that due regard shall be paid to the child's ethnic, religious, cultural and linguistic background when making decisions about adoption and, if not, how the proposed repeal is compatible with the requirement in Article 20(3) UNCRC.

31. The Government says that the effect of clause 2 is to put a child's ethnicity, religious, cultural and linguistic background on the same footing as the child's other needs, background and characteristics. The Government's concern is that as the law currently stands this consideration is given too much weight in the overall process of deciding what is in the child's best interests, having regard to the child's background and any of the child's characteristics which the court or agency considers relevant. The Government's intention is not that these particular characteristics should not be relevant considerations, but that they should not be accorded disproportionate weight compared to other considerations to be taken into account. The Government intends to amend statutory adoption guidance to make clear the appropriate consideration of a child's and prospective adopter's ethnicity, religious, cultural and linguistic background.

32. Even if there were evidence showing that the "due regard" requirement in s. 1(5) of the 2002 Act has led to disproportionate weight being given to a child's ethnic background, we fail to see why it would be necessary to remove from the legal framework all reference to "religious persuasion, racial origin and cultural and linguistic background." We do not follow the logic in the Government's argument that including those considerations in the welfare checklist would still lead to them being accorded disproportionate weight. If the Government accepts, as it does, that they are still relevant considerations, its intention would be achieved by including them in the welfare checklist in s. 1(4) alongside other relevant considerations that are to be taken into account in the overall decision-making process.

33. In our view, removing from the legal framework any reference to "religious persuasion, racial origin and cultural and linguistic background" risks those considerations being regarded as no longer matters to which due regard must be paid, which would be incompatible with Article 20(3) UNCRC. We recommend that instead of removing all reference to those considerations from the statute, they are instead added to the welfare checklist to which local authorities are required to have regard in s. 1(4) of the Adoption and Children Act 2002, as recommended by the House of Lords Select Committee on Adoption Legislation.

(C) PROMOTION OF EDUCATIONAL ACHIEVEMENT OF LOOKED AFTER CHILDREN

34. Clause 9 of the Bill requires every local authority in England to appoint an officer to discharge its duty to promote the educational achievement of looked after children.

35. We welcome this as a positive step in the implementation of the UK's obligation to make practically effective the right to education of this group of particularly vulnerable children.

Family Justice (Part 2)

36. One of the main objects of Part 2 of the Bill is to reduce unnecessary delays in the family justice system and refocus decision-making on the best interests of the child. We welcome these measures in principle as potentially human rights enhancing measures. As the Government's human rights memorandum points out, to the extent that the provisions in Part 2 of the Bill achieve these objectives they strengthen the UK's implementation of Articles 3, 9 and 12 of the UNCRC and also potentially strengthen the law's protection for the rights of children to effective access to court under Article 6 ECHR and to respect for their private and family life under Article 8 ECHR.

PRESUMPTION ABOUT INVOLVEMENT OF BOTH PARENTS

37. We asked the Government, however, about the implications of the proposed presumption in clause 11 of the Bill that the involvement of both parents will further the child's welfare. Clause 11 requires the court, in making certain decisions concerning children (such as contact orders and residence orders), to presume that a child's welfare will be furthered by the involvement of each of the child's parents in his or her life, unless it can be shown that such involvement would not in fact further the child's welfare.[19] The parental involvement presumption only applies if the parent can be involved in the child's life in a way that does not put the child at risk of suffering harm, and a parent is to be presumed as someone whose involvement will not give rise to a risk of harm to the child unless the court has evidence before it that involvement of that parent would give rise to such a risk, whatever the form of the involvement.

38. Article 18(1) UNCRC requires States to "use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child". If evidence exists suggesting that current UK law affords inadequate recognition for this principle of shared parenting, clause 11 of the Bill could be seen as a step towards greater recognition of the principle of shared responsibility. We therefore asked the Government about the evidence on which it relies to demonstrate that under the current law the courts do not give sufficient weight to the importance of parenting by both parents when deciding what is in the child's best interests.

39. The Government's response is that there is "no evidence" that the courts are biased towards either parent. There is, however, in the Government's view, a public perception that this is the case, and therefore a risk that children are losing contact with parents because of a misconception about the way in which courts operate. One of the main aims of the amendment in clause 11 is said to be to address this public perception and help restore confidence in the family courts. The change will also, the Minister says, "reinforce wider messages about the importance of both parents in a child's life."

40. We do not consider it to be an appropriate use of legislation to address public misperceptions about the way in which the courts operate, or to "reinforce messages". In our view, the appropriate way for the Government to address such public misperceptions is not to pass legislation which it accepts is legally unnecessary, but proactively to question the evidential basis for those misperceptions as and when they arise.

41. Article 3(1) UNCRC requires that in all actions concerning children, including by courts of law and legislative bodies, "the best interests of the child shall be a primary consideration." Section 1(1) of the Children Act 1989 provides that "the child's welfare shall be the court's paramount consideration" when the court determines any question with respect to the upbringing of a child. The Justice Committee, in its pre-legislative scrutiny Report on the draft clauses, expressed significant concerns that a legislative presumption such as that in clause 11 of the Bill might detract from the principle that decisions must be made in the best interests of the child ("the paramountcy principle").

42. In its reply to the Justice Committee's Report on the draft clauses, the Government stated that its intention is that courts will continue to be subject to the overriding duty in s. 1(1) Children Act 1989 that the child's welfare shall be their paramount consideration whenever determining any question with respect to the upbringing of a child. We have considered carefully whether the Government's intention is achieved by the Bill as drafted, or whether there is scope for uncertainty about the relationship between the paramountcy principle in s. 1(1) of the Children Act and the proposed new presumption in favour of parental involvement in clause 11 of the Bill. We asked the Government what provision in the Children Act or in the Bill as drafted makes clear that the proposed presumption of parental involvement is subject to the overriding consideration that the welfare of the child is paramount, and whether the Government would consider amending the Bill to make the proposed new presumption expressly subject to the paramountcy principle.

43. The Government's response is that nothing in the Bill affects the paramountcy principle stated in s. 1(1) of the Children Act 1989, that "the child's welfare shall be the court's paramount consideration", which still applies, and an amendment to the Bill is therefore unnecessary. In the Government's view, nothing in the parental involvement presumption is inconsistent with the paramountcy principle.

44. The Government response to the Justice Committee states (at para. 59) that "the child's welfare is the overriding consideration, both within the presumption itself, and in the overall decision making process." As the Bill is drafted, the amended Children Act will therefore require the court to consider the welfare of the child twice: first, when deciding whether the presumption of parental involvement is rebutted, and then again when the presumption itself is to be treated as a consideration to be weighed in the overall balance when the court is deciding what order to make.

45. In our view, the fact that the child's welfare is to be considered twice introduces considerable scope for uncertainty about the relationship between the paramountcy principle in s. 1(1) of the Children Act 1989 and the proposed presumption in new subsection (2A) that parental involvement will further the child's welfare. We recommend that the Bill be amended to remove this uncertainty by making the proposed new presumption expressly subject to the paramountcy principle. The following amendment to the Bill would give effect to this recommendation:

Clause 11, page 10, line 16, before 'A court' insert 'subject to subsection (1) above,'

Special Educational Needs (Part 3)

46. Part 3 of the Bill, concerning Special Educational Needs, engages a number of human rights standards contained in a variety of sources, in particular Articles 23, 28 and 29 UNCRC concerning the rights of disabled children and Articles 4 and 24 UNCRDP concerning the right to inclusive education and the obligation accepted by the UK to take steps to bring that about.

47. Relevant guidance on the application of these standards in this particular context can also be found in:

  • the report of the UN Special Rapporteur on the right to education, specifically on the right of persons with disabilities to inclusive education: The right to education of persons with disabilities, A/HRC/4/29 (19 February 2007)
  • UNESCO's Guidelines for Inclusion: Ensuring access to education for all (2005)
  • the Salamanca Statement and Framework for Action on Special Needs Education adopted in 1994 by the World Conference on Special Needs Education: Access and Quality

48. This part of the Bill contains a number of provisions which, as the Government rightly states in its memorandum, enhances the UK's implementation of some of the relevant rights of children and young people protected by these Conventions including the following:

  • the recognition in the "general principles" clause (clause 19) of the importance of informing, consulting and supporting children and young people to facilitate their meaningful participation in decisions concerning their special educational needs;
  • the extension of rights to Education Health and Care Plans to under 25 year olds;
  • the requirement that Academies comply with the new SEN framework (this directly meets a concern expressed by the Committee's predecessor about academies being outside the scope of the SEN legal framework);[20]
  • the duty to provide SEN information to children and young people;
  • the provisions designed to ease the transition from children to adult services;
  • the explicit reference to provision to assist in preparation for "independent living" in clause 30; and
  • the provision of direct rights of appeal for children and young people.

49. We welcome these features of Part 3 of the Bill as positive human rights enhancing measures.

(A) PROGRESSIVE REALISATION OF THE RIGHT TO INCLUSIVE EDUCATION

50. The UN Disabilities Convention includes in Article 24 what is commonly described as "a right to inclusive education" for people with disabilities. States recognise the right of people with disabilities to education and undertake "to ensure an inclusive education system at all levels".[21] In realising this right, States are required to ensure that "persons with disabilities can access an inclusive [...] primary education and secondary education on an equal basis with others in the communities in which they live."[22] One of the general principles of the Disabilities Convention is "full and effective participation and inclusion in society".[23] One of the general obligations undertaken by the States under the Convention is to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the Convention.[24] In relation to the right to education in Article 24, the States are also under an obligation to take measures to achieve the progressive realisation of the right.[25]

51. When the UK ratified the Disabilities Convention, it entered a reservation and interpretive declaration to the right to inclusive education in Article 24, but the terms of its declaration made clear that the UK accepted the obligation of progressive realisation of the right to inclusive education:

    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 and which have the capacity to meet the needs of disabled children. The General Educational System in the UK includes mainstream and special schools, which the UK Government understands is allowed under the Convention.

52. Clause 33 of the Bill retains the current statutory presumption, in s. 316 of the Education Act 1996, in favour of education in a mainstream setting, unless that is incompatible with the wishes of the child's parent or the young person, or the provision of efficient education for others,[26] and there are no reasonable steps that could be taken to prevent the incompatibility with the efficient education of others.[27]

53. The provision being re-enacted in clause 33 of the Bill has been the subject of considerable litigation before the Special Educational Needs and Disability Tribunal, and on appeal to the Upper Tribunal, in which the issue has been whether schools have done enough before refusing a placement to a child with special educational needs on the basis that it would be incompatible with the provision of efficient education for others.[28] The frequency of such litigation about the presumption in favour of mainstream education suggests that the current state of the law and guidance leaves considerable scope for uncertainty in practice about the circumstances in which a child with SEN whose parents wish them to be educated in a mainstream school can be denied such a place and educated instead in a special school. If scope for such uncertainty exists, the UK's obligation under Article 24 UNCRPD, to take steps to increase access to mainstream education for people with disabilities, might require the Government to remove the uncertainty by clarifying the law and/or the relevant guidance.

54. We therefore asked the Government whether it has considered whether the Bill's retention of the current wording of the statutory presumption in favour of education in a mainstream setting is compatible with the obligation which the Government has accepted under Articles 4 and 24 UNCRPD, to continue to develop an inclusive system where children with disabilities have increasing access to mainstream schools.

55. The Government replied that it had considered that question, and believes that the provisions in the Bill are compatible with the UNCRPD. However, the Government accepted in its response that the current guidance on the statutory provisions on inclusion, which are contained in a DfE guidance document called Inclusive Schooling, is not well known. The Minister therefore said that he proposes to include guidance on the inclusion provisions, including those requiring reasonable steps to be taken to prevent a child's placement in a mainstream setting being incompatible with the efficient education of others, in the new SEN Code of Practice, which, the Minister says, is seen as the authoritative source of advice and guidance in this important area.

56. A draft of the proposed SEN Code of Practice has been published by the Government to assist Parliament's scrutiny of the Bill. It does not, however, yet contain any guidance on the inclusion provisions in clause 33 of the Bill. The guidance that it does provide on inclusion, at para. 5.3, merely paraphrases the relevant provisions of the legislation. The Inclusive Schooling guidance, by comparison, contains many detailed examples of the sorts of steps that a school or local authority could reasonably take to prevent a child's placement in a mainstream setting being incompatible with the efficient education of others. That guidance, however, as the Government acknowledges, is not well known.

57. This issue of exactly how strong is the existing presumption in favour of inclusion was debated in Public Bill Committee.[29] A probing amendment to the clause re-enacting the presumption in favour of inclusion (clause 33) sought to look again at the grounds on which it can be argued that children should not be educated in mainstream schools, and the amount of latitude left to schools to refuse to admit local children. The issue was raised because of concerns that some schools are still reluctant to admit children with special educational needs and can rely on "the efficient education of others" to refuse a placement that they would find merely inconvenient.[30] The concern is that, as the law stands, mainstream schools might prefer to take the easier option,[31] and find excuses to avoid taking a child with special educational needs,[32] which would work against inclusion.

58. Responding to this concern, the Minister sought to reassure the Public Bill Committee on the basis that the provisions in subsections (3) and (4) of clause 33 "guard against the condition of efficient education being used indiscriminately by making it clear that a local authority, not a school, may only rely on it if there are no reasonable steps that can be taken to prevent the placement of the child or young person being incompatible with efficient education of others."[33] It is the local authority, not the school, he said, which makes the decision about whether the exception to the presumption applies. On that basis, that the "efficient education for others" exception is for use only by the local authority rather than individual schools, the amendment was withdrawn.

59. We note, however, that clause 33(5) of the Bill expressly envisages that mainstream schools themselves may rely on the "efficient education for others" exception if they can show that there are no reasonable steps that they or the local authority could take to prevent the interference with others' education. While strictly speaking the decision is taken by the local authority, a school's view that admitting a child will be incompatible with the efficient education of other children in the school is likely to carry significant weight.

60. We also asked the Government whether it would consider including in the "general principles" clause in this Part of the Bill (clause 19), as a matter to which local authorities must have particular regard when exercising their powers and duties in relation to the special educational needs of children and young people, the obligation to take steps to ensure that persons with disabilities have increasing access to mainstream schools (an obligation which, the Government accepts, exists under Articles 4 and 24 of the UN Convention on the Rights of Persons with Disabilities, subject to the UK's reservation and interpretive declaration to that Article).

61. The Government replied that while it takes its commitments under UNCRPD very seriously, it does not believe that it is necessary to include increasing access to mainstream provision in the general principles in clause 19. It points to the Bill's retention of the statutory presumption in favour of education in a mainstream setting, the Government's wide ranging programme of practical measures to build the capacity of teachers in mainstream schools to support children with SEN (such as training for SENCOs, training resources for teachers and other staff), and the duties on schools and local authorities under the Equality Act 2010 to increase the access of disabled children to school premises, the curriculum and information.

62. As the Bill currently stands, "inclusion" is not referred to anywhere on the face of the legislation. The Minister told the Public Bill Committee that this is deliberate because the Government wants to move away from what Mr. Buckland MP described in Committee as "the rather sterile binary debate about inclusion versus specialism."[34] The draft SEN Code of Practice, however, refers, at para. 5.3 to the statutory presumption in favour of education in a mainstream setting as "the general principle of inclusion."

63. In our view, the commitment to increase access to mainstream schools and staff, being the subject of an international treaty obligation which the Government accepts, should be expressly stated in the "general principles" clause (clause 19) at the beginning of Part 3 of the Bill.

64. We consider that a form of words could be found for giving expression to such a general principle which avoids the crude binary distinction between inclusion and specialism which the Government seeks to avoid and instead reflects the more nuanced, synthesising approach which the Government wishes to encourage, such as where mainstream schools have specialist units on site, or where children at specialist schools access local mainstream schools.

65. We recommend that clause 19 be amended to include an additional "general principle" which follows closely the language of the UK's interpretive declaration to Article 24 of the UN Disabilities Convention, requiring local authorities to have regard to "the need to continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children." The following amendment to the Bill would give effect to this recommendation:

    Clause 19, page 18, line 31, insert '(e) the need to continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children.'

66. Under Article 4(1)(a) of the Disabilities Convention the UK has undertaken to adopt all appropriate legislative measures for the implementation of the rights recognised in the Convention. The inclusion of such a general principle on the face of the Bill would in our view be an appropriate legislative measure for the implementation of the right to inclusive education in Article 24 of the Convention.

67. We also recommend that the final version of the SEN Code of Practice should include detailed examples of the reasonable steps that could be taken to prevent the admission of a child with SEN being incompatible with the efficient education of other children, such as those contained in the Inclusive Schooling Guidance, and ask that the draft text of this addition to the Code be made available before the Bill reaches its Committee Stage in the Lords.

(B) PARTICIPATION OF DISABLED CHILDREN IN THE LIFE OF THEIR LOCAL COMMUNITY

68. Scope advocates a much more far-reaching amendment to the Bill, which would address its concern that the parents and families of disabled children do not have access to inclusive services in their local communities, not just in terms of education but in terms of other services too, including health and social care. In its view, existing equalities legislation is failing to promote inclusive and accessible local services for disabled children and their families.

69. We share Scope's concerns and we support the amendment it has proposed which would impose a duty on local authorities and NHS bodies "to promote and secure inclusive and accessible education, health and social care provision."

(C) ENFORCEABLE RIGHTS TO SOCIAL CARE AS WELL AS HEALTH AND EDUCATION

70. The Government's human rights memorandum states that the requirement in the Bill that local authorities publish on their website the "local offer" of the services and provision which are normally available for children and young people with SEN (clause 30) is "consistent with Article 23(3) UNCRC". That Article, however, requires that assistance provided to meet the special needs of a disabled child shall be designed to ensure that the disabled child has effective access to and receives those services (emphasis added).

71. The Bill as published only imposed a duty to provide education services; there were no enforceable duties to provide health or care services. However, the Government introduced amendments to the Bill so that there will now be a duty on Clinical Commissioning Groups to arrange the healthcare provision set out in EHC Plans. The Government, however, does not consider it necessary to make any similar provision in relation to the social care element of EHC Plans, believing that sufficient legal protections already exist in relation to such provision, which can be challenged through local authority complaints processes and through judicial review. We share the concerns that were expressed in the Public Bill Committee and at Report Stage[35] in the House of Commons, that the failure to provide in this Bill for a specific duty in relation to the social care element of EHC Plans, alongside the duties in relation to health and education, poses a risk to the holistic approach which the Bill seeks to promote, by encouraging the continuation of a wholly separate approach to social care assessment and provision.

72. We welcome the Government's amendments to the Bill to impose a duty in relation to health care provision, which constitute a significant enhancement of the practical effectiveness of the rights of children with an EHC Plan. We are not persuaded by the Minister's justification for not making similar provision in relation to social care provision in an EHC Plan, and we recommend that the Bill be amended to impose an equivalent duty in relation to the social care component of the EHC Plan.

(D) DIRECT RIGHTS OF APPEAL

73. We welcome in principle the Bill's provision for children to appeal directly in relation to their special educational needs and to bring disability discrimination claims against schools to the First Tier Tribunal. Under the current law only the child's parents have the right to bring such appeals or make such claims. The Bill's provision, as the Government's human rights memorandum correctly points out, directly addresses a concern expressed by the UN Committee on the Rights of the Child in its 2008 Concluding Observations on the UK, about the limited participation of children in SEN appeals. Providing a direct right of appeal for children strengthens the UK's implementation of Article 12 UNCRC, particularly for Looked After Children, whose legal "parent" is the very body against whom such appeals are made.

74. The direct right of appeal is only available, however, to the first tier special educational needs and disability tribunal in relation to the education component of the EHC Plan. This gives rise to the prospect of "a complex and bureaucratic system in which challenges to the health and social care aspects of provision have to be conducted simultaneously through different tribunals, procedures and processes."[36] In the Public Bill Committee, the Government resisted an amendment the purpose of which was to make the right of appeal more effective by ensuring that the First Tier Tribunal has jurisdiction to deal with legal challenges to the health and social care components as well. The Government says that it is unnecessary to extend the powers of the tribunal in view of the existing complaints procedures and opportunities for judicial review which already exist in relation to health and social care.

75. We are concerned that the absence of a unified appeals process against the contents of an EHC Plan will detract significantly from the practical effectiveness of the rights of children which are otherwise being enhanced by the more integrated approach to education, health and social care which the Bill promotes. We recommend that the Bill be amended to ensure that there is a single avenue of redress in relation to all the provisions in an EHC plan.

(E) DETAINED CHILDREN AND YOUNG PEOPLE

76. Clause 70 of the Bill provides that none of the changes to the SEN regime apply to detained children and young people.

77. This Committee and its predecessors have long been concerned about education for detained young offenders. In the last Parliament our predecessor Committee welcomed the provision that was made in the Apprenticeships, Skills, Children and Learning Bill for a statutory right to education for all children deprived of their liberty, which gave effect to a 2008 recommendation by the UN Committee on the Rights of the Child.[37]

78. It was concerned, however, about the extent to which the law ensured equal access to special needs for provision for children in detention. It accepted that it is not necessarily practical for all of the duties imposed on Local Education Authorities in the Education Acts to apply to the education and training of detained children, because of the constraints imposed by custody and the length of time for which children are usually detained. It welcomed the Government's amendments to that Bill, in response to the Committee's concerns, which significantly strengthened the legal framework for the meeting of the special educational needs of this group of children and young people amongst whom such special needs are particularly prevalent.[38]

79. We consider it to be a seriously retrograde step for the Bill to deprive detained children and young people of all the improvements to the provision for special educational needs that the Bill will bring about. We recommend that the Ministry of Justice makes rapid progress on its proposals to use EHC Plans to support children and young people in custody so that clause 70 of the Bill can be deleted.

The Children's Commissioner (Part 5)

80. In our Report on the draft clauses reforming the Office of the Children's Commissioner, we welcomed the proposed reforms as constituting a significant human rights enhancing measure "with the potential to transform the Office of Children's Commissioner into a national human rights institution capable of becoming an international example of best practice if sufficiently resourced."[39] In our view, the reforms directly address many of the concerns expressed by our predecessor Committee when the Office was established in 2004 which led that Committee to doubt the ability of the Commissioner to operate as a national human rights institution of the sort expected by international standards. However, we continued to have some concerns, and in our Report on the draft clauses we identified some possible ways of improving the draft legislation in the light of international standards and best practice.

81. We welcome the fact that in its response to our Report on the draft clauses the Government responded positively to a number of our recommendations, and made a number of changes to the draft clauses before the Bill was introduced. In particular, we welcome the following significant changes which the Government agreed to make to the Bill in response to our recommendations:

  • Expressly including "monitoring the implementation in England of the UNCRC" in the list of the Commissioner's specific functions;
  • Making clear on the face of the Bill that all references to the UNCRC include the Optional Protocols that have been ratified by the UK;
  • Strengthening the formulation of some of the Commissioner's specific powers in light of the changes to the Commissioner's primary function;
  • Expressly including a power to "investigate" any matter relating to the rights or interests of children;
  • Expressly including a power to bring any matter to the attention of either House of Parliament, to increase parliamentary engagement and co-operation
  • Extending the provisions that relate to the Commissioner's ability to request information, and the requirements on public bodies to respond to the Commissioner's recommendations, so that they apply to private providers delivering contracted-out services.
  • Leaving out of the Bill the provision that would have allowed the Commissioner to delegate the exercise of functions to the devolved Commissioners.

82. We also welcome other aspects of the Government's response which are not reflected in changes to the clauses, such as:

  • the Government's confirmation that the legislation gives the Commissioner the powers to undertake the key activities that would be expected of a national human rights institution;
  • confirmation that the Government considers that the Commissioner will continue to have a sufficient interest in relation to any matters before the courts which relate to children's rights;
  • agreement that the Office of the Children's Commissioner should have its own premises; and
  • confirmation that responding to any requests for advice from the Secretary of State would be at the discretion of the Commissioner.

83. In this Report we focus solely on those issues where we are not satisfied with the Government's response to our Report.

(A) "HAVE REGARD TO" OR "PROMOTE AND PROTECT" THE RIGHTS IN THE UNCRC?

84. In our Report on the draft clauses, we recommended that, in order to give effect to the recommendation of the Dunford Review and the Government's own intention that the reformed Children's Commissioner should have a rights-based remit grounded in the UNCRC, the Bill should expressly define "the rights of children in England" to include the rights in the UNCRC for the purposes of defining the Commissioner's primary function, and we recommended an amendment to the draft clauses which would have that effect.[40]

85. The Government's response to our Report said that defining children's rights expressly by reference to the UNCRC "would not be appropriate [...] given that the UNCRC has not been directly incorporated into UK law."[41] We had anticipated this objection in our Report and had proposed a carefully formulated amendment which would merely refer to the rights in the UNCRC for the very specific purpose of defining the Commissioner's primary function, which would clearly not amount to incorporation of the UNCRC.[42] However, the Government did not respond to this specific recommendation in its response to our Report. We therefore wrote to the Minister asking for a response to this specific recommendation on this important question.[43]

86. The Minister in his reply agreed with us that defining children's rights in the way we suggested, specifically in relation to the Commissioner's primary function, would not amount to its incorporation into domestic law.[44] However, he continued to believe that requiring the Children's Commissioner to "have regard to" the UNCRC when determining what constitutes children's rights is the more appropriate approach, for two reasons. First, the UNCRC contains a broad mix of rights and aspirations, rather than a more classic formulation of rights such as those in the ECHR. Second, some UNCRC Articles do not refer to children's rights but rather, for example, to parental rights, or the State's responsibility to create an environment in which children's rights can be realised. He thought it would be inappropriate to imply that the UNCRC affords children a specifically defined set of rights, or to place an obligation on the Children's Commissioner to construct a right where one might not exist.

87. We have considered carefully the Minister's reasons for continuing to prefer to use the language of "having regard to" UNCRC rights, rather than to define "children's rights" in the Bill to include the UNCRC, but we are not persuaded by his arguments. It is a matter of common consensus that the UNCRC contains some very important children's rights. The fact that some of its provisions are couched in aspirational terms, or impose responsibilities and obligations on the State, does not detract from this fact. In our view the Commissioner should be entrusted to interpret the UNCRC and to take a sensible and properly advised approach about the children's rights that it protects.

88. We remain of the view that merely requiring the Commissioner to "have regard to" the UNCRC in considering what constitutes the rights and interests of children is a much weaker formulation than the Dunford Report envisaged. "Have regard to" is essentially a procedural requirement. To "promote and protect" children's rights is a much more substantive requirement. The Dunford Report recommended that the new role of the Children's Commissioner should include "promoting and protecting the rights of children under the UNCRC".[45] In our view the Children's Commissioner should be required to "promote and protect" the rights of children in the UNCRC, rather than merely "have regard" to them.

89. We recommend that clause 79 of the Bill should be amended so that new clause 2A(1) of the Children Act 2004 defines the rights of children, for the purposes of defining the Commissioner's primary function in s. 2(1), to include "the rights of children in the UNCRC." The following amendment to the Bill would give effect to this recommendation:

    Clause 79, page 53, line 2, leave out subsection (1) and insert '(1) For the purposes of s. 2(1) above the rights of children include the rights in the United Nations Convention on the Rights of the Child.'

(B) INDEPENDENCE

90. As we pointed out in our Report on the draft clauses reforming the Office of the Children's Commissioner, the Bill goes a long way towards addressing the perception that the Children's Commissioner is not sufficiently independent from Government to satisfy the requirements contained in the international standards, including the UN Convention on the Rights of the Child and the Paris Principles. The removal of the requirement that the Children's Commissioner consult the Secretary of State before holding an inquiry, and the repeal of the Secretary of State's power to direct the Children's Commissioner to hold an inquiry, for example, represent a welcome strengthening of the Commissioner's independence from Government.

The NDPB model and Framework Agreement

91. We expressed some concerns, however, as to whether the "Non-Departmental Public Body" ("NDPB") model is appropriate for national human rights institutions such as the Children's Commissioner, because the degree of financial control exerted by the Government through the Framework Agreement can give rise in practice to real inconsistencies with the requirement in the Paris Principles that National Human Rights Institutions should not be subject to financial control which might affect their independence.[46] We accepted the need for financial control and accountability, but pointed out that other models of financial control are available, such as the parliamentary model exemplified by the Scottish Children's Commissioner, which might be more compatible with the Commissioner's independence, and we recommended that the Government think again about the appropriateness of the NDPB model for human rights institutions such as the Children's Commissioner. We also asked that the proposed new Framework Agreement between the reformed Office of the Children's Commissioner and the Department for Education be made available in draft as soon as possible to enable it to be scrutinised for compatibility with the Paris Principles requirement of effective independence from executive control.

92. The Government, in both its response to our Report on the draft clauses and its response to our letter on the Bill, said that it had looked at the alternative options but was not persuaded that a different model from the NDPB model would be appropriate.[47] It points to many other public bodies which are required to be independent from Government but operate effectively under the NDPB model, including the EHRC.[48] It also points to the benefit of the Commissioner having a sponsorship link with a Government department, which facilitates liaison with other parts of Government, which may be lost or reduced under a parliamentary model. The Government acknowledges that there are some constraints on the Children's Commissioner as a result of it being an NDPB, but says that "these constraints have not been imposed on OCC in particular in an attempt to curb its independence."[49] Rather, they are measures applied to NDPBs in light of the pressure on all public funds as a result of the prevailing economic conditions.

93. We accept that the constraints imposed on the Children's Commissioner in the Framework Agreement are not intended to curb its independence. However, since for bodies such as National Human Rights Institutions the appearance of independence is as important as actual independence, it is the perceived effect of the financial controls, rather than their intention, which is important. This is why the real test of the Commissioner's independence lies in the practical operation of the Framework Agreement.

94. In the Government's Response to our Report, the Minister promised to ask his officials to review the Framework Agreement in light of the legislative proposals in the Bill and our comments and to make a copy of the resulting document available for scrutiny.[50] No new Framework Agreement has in fact been made available but the Government did give to the Public Bill Committee a Note explaining how the Department thinks the existing Framework Agreement (dated 1 April 2012) will need to be amended when the reforms in the Bill come into effect. Most of the existing agreement is based on a standard Treasury template for all NDPBs, including the standard Cabinet Office efficiency controls which constrain expenditure on matters such as appointments, marketing and communications. Exemptions from such controls can be sought and, according to the Government's Note, the DfE will continue to support OCC in gaining exemptions where it is felt that the efficiency controls constrain the Commissioner in the effective exercise of her functions.

95. We note that the Equality and Human Rights Commission has recently agreed a new Framework Document with the Department of Culture, Media and Sport, dated 1 April 2013, in order to address concerns about the Commission's independence which might have imperilled its "A"-rated status as a National Human Rights Institution. According to the Minister, the new Framework Document "protects the EHRC's independence necessary to enable it properly to fulfil its statutory functions, and ensure it is accountable for its performance and its use of public funds."[51] The new Framework Document differs from the earlier Framework Agreement in significant respects which strengthen the Commission's independence. For example, the EHRC's Chief Executive can authorise all non-contentious external recruitment, whereas before the EHRC was required to seek approval from DCMS for all recruitment outside the civil service/public sector. The Framework Agreement between the Children's Commissioner and the Department for Education, however, has not been modified in the same way.

96. We recommend that all of the changes which have been made to the Framework Agreement between the EHRC and DCMS in order to safeguard the EHRC's accreditation as an "A" status national human rights institution, also be made to the Framework Agreement between the Office of the Children's Commissioner and the Department for Education, and we ask for the modified Agreement, or a draft, to be made available before the Bill reaches its Committee stage in the Lords.

Website

97. In our Report on the draft clauses we recommended that the Children's Commissioner's website be hosted outside of the '.gov.uk' domain and that consideration be given to including the word 'independent' in the Commissioner's web address.[52] The Minister reassured us in his response that he appreciated the importance of this matter and that his officials were liaising with officials in the Cabinet Office on issues relating to the Commissioner's website.[53]

98. We were therefore disappointed to hear from the Commissioner, in her letter dated 14 March 2013, that the question of retaining the OCC's independent and directly accessible website has yet to be resolved and that the Office of the Children's Commissioner is unable to update, or improve, their website, because this is an area—communications—on which the Commissioner is not permitted to make independent decisions about expenditure

99. As the Government has acknowledged, the Commissioner's website is a very important way of maintaining a clear sense of the Office's independence from Government and its ability to fulfil its remit, and we urge that all the ongoing issues with the website be swiftly resolved.

(C) TITLE

100. In our Report on the draft clauses, we recommended that the title of the Commissioner be changed to include "young people" as well as "children", both in order to encourage older teenagers to consider the Commissioner of relevance to them, and to reflect the fact that the commissioner will have functions in relation to certain 18-24 year olds.[54]

101. The Government in its response to our Report said that it was not persuaded that there are "compelling arguments" for making the change, but the response did not address our point, which we consider to be important, that the Commissioner will in future have functions in relation to a group of particularly vulnerable 18-24 year olds (young people receiving care leaving support from a local authority under the Children Act), and such young people are unlikely to be encouraged to seek advice or assistance from the Children's Commissioner by a statutory framework that says, in terms, that they will be "treated as a child."[55]

102. We therefore asked the Government for a response to this specific point.[56] The Minister acknowledged that this is "a slight anomaly", and he also recognised that some under-18s are likely to associate more closely with the Commissioner if the term "young people" is reflected in the title. However, the group of 18-24 year olds for whom the Commissioner will be responsible are likely to represent only a small part of the Commissioner's role, and the Minister felt that "it is often helpful to reinforce the message that some vulnerable young people are still children and need to be treated as such, rather than to emphasise their maturity."

103. The Government therefore believes that the arguments for keeping the present title outweigh those for changing it, but pointed out that the title which is used in the legislation "does not rule out the possibility of a Children's Commissioner calling him/herself by a different title if he/she felt that appropriate."

(D) ANNUAL DEBATE IN PARLIAMENT

104. In the Minister's response to our Report on the draft clauses he said that he was "not opposed" to the idea of an annual debate in Parliament on children's rights, but that it was not in his gift. We asked whether, subject to the usual caveats about the parliamentary business managers having the ultimate decision, the Government agrees in principle that it would desirable for there to be an annual debate in Parliament about the state of children's rights in the UK, in Government time.

105. The Minister had "mixed views" about such an annual debate. He thought it would be unusual to make it an annual event, since the only such debates since 2010 had been in relation to the Budget and the Queen's Speech. However, he could see advantages in parliamentarians becoming more aware of the issues and being able to question how well the UNCRC is being implemented. He considered that the forthcoming periodic review of the UK's record under UNCRC would provide an opportunity for raising such parliamentary awareness.

106. We welcome the Government's indication that the forthcoming periodic review of the UK's record under the UNCRC will provide an opportunity for raising parliamentarians' awareness of children's rights, and we look forward to the Government's proactive engagement with Parliament in advance of that review and in time to enable Parliament to influence the Government's submission.

Statutory rights to shared parental leave and pay (Part 6)

107. Changes in the Bill to parental leave and pay which enable both parents to share parenting responsibilities and balance work and family commitments represent progress towards the implementation of the obligation in Article 18(1) UNCRC, to take steps to ensure recognition of the principle of common responsibility for parenting. We welcome these changes in principle as human rights enhancing measures.

108. We asked, however, whether the provisions in the Bill go as far in implementing that obligation as the proposal contained in the Government's Modern Workplaces Consultation, which had proposed 4 weeks of paid shared parental leave reserved for each of the mother and the father on a "use it or lose it" basis. The Government's own impact assessment on shared parental leave and pay notes that "international evidence shows that fathers are more likely to share caring responsibilities if there is a specific portion of leave allocated to them."[57]

109. The Government in its response said that it had considered this option, but decided that the time was not right to introduce it now, given the weak state of the economy. It says that it will be keeping the take-up of shared parental leave by fathers under review, and if it proves low will consider extending paternity leave and pay at a later date to encourage greater take-up. It is taking the power in the Bill to do so by way of secondary legislation, including non-consecutive periods.[58]

110. We are disappointed that the Bill does not make the more ambitious provision for shared parental leave that was foreshadowed in the Modern Workplaces Consultation. All the international evidence of which we are aware suggests that this is the most effective way to encourage fathers to take up parental leave. We recommend that the Government keep the take-up of parental leave by fathers under annual review. We also recommend that the Government ascertain and make publicly available its best estimate of the cost to employers, and particularly small businesses, of introducing 4 weeks of paid paternity leave reserved for the father on a "use it or lose it" basis.


1   HL Bill 32. Back

2   HC Bill 131. Back

3   The House of Commons Library has published a Report on the Bill's Committee Stage, Research Paper 13/32 (31 May 2013) available at www.parliament.uk/briefing-papers/RP13-32  Back

4   HC Bill 5. Back

5   Sixth Report of Session 2012-13, Reform of the Office of the Children's Commissioner: draft legislation, HL Paper 83/HC 811 (hereafter "JCHR Report on draft clauses"). Back

6   Children and Families Bill 2013: Contextual Information and Responses to Pre-Legislative Scrutiny, Cm 8540 (February 2013) (hereafter "Government response to JCHR Report on draft clauses"). Back

7   Ev 2 and Ev 4. Back

8   Ev 5. Back

9   Available on our website http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/legislative-scrutiny-2013-14/children-and-families-bill1/ Back

10   Ev 6. Back

11   JCHR Report on draft clauses, above n. 5, paras 18-19. Back

12   Ev 1. Back

13   New s. 2(3)(d) Children Act 2004, inserted by clause 79 of the Bill. Back

14   Clause 1(3), inserting new s. 22C(9A) into the Children Act 1989. Back

15   PBC 12 March 2013 c158-c187. Back

16   PBC 12 March 2013 c. 187 (Lisa Nandy MP). Back

17   Edward Timpson MP, HC Deb 11 June 2013 c 267. Back

18   Published in the Adoption and Special Guardianship Data Pack in July 2012: http://www.education.gov.uk/childrenandyoungpeople/families/adoption/b0076713/datapack  Back

19   New s. 1(2A) Children Act 1989, inserted, by clause 11(2) of the Bill. Back

20   Ninth Report of 2005-06, Schools White Paper, HL Paper 113/HC 87. Back

21   Article 24(1) UNCRPD. Back

22   Article 24(2)(b) UNCRPD. Back

23   Article 3(c) UNCRPD. Back

24   Article 4(1)(a) UNCRPD. Back

25   Article 4(2) UNCRPD. Back

26   Clause 33(2)(b). Back

27   Clause 33(3)-(5). Back

28   See e.g. Bury Metropolitan Borough Council v SU [2010] UKUT 406 (AAC), [2011] ELR 14. Back

29   PBC 21 March 2013 c456-c468. Back

30   PBC 21 March 2013 c458 (Sharon Hodgson MP). Back

31   PBC 21 March 2013, c467 (Annette Brooke MP). Back

32   PBC 21 March 2013 c 461 (Robert Buckland MP). Back

33   PBC 21 March 2013 c 468 (Edward Timpson MP, Minister of State for Children and Families). Back

34   PBC 21 March 2013 c 462. Back

35   HC Deb 11 June 2013 c191. Back

36   Mr Robert Buckland MP, HC Deb 11 June 2013 c 192. Back

37   Fourteenth Report of Session 2008-09, Legislative Scrutiny: Welfare Reform Bill; Apprenticeships, Skills, Children and Learning Bill; Health Bill, HL Paper 78, HC 414, paras 2.7-2.14. Back

38   Ibid., paras 2.15-2.22. Back

39   JCHR Report on draft clauses, above n. 5, para. 20. Back

40   JCHR Report on draft clauses, above n. 5, paras 33-38. Back

41   Government response to JCHR Report on draft clauses, above n. 6, para. 3 (first bullet point). Back

42   JCHR Report on draft clauses, above n. 5, at para. 37. Back

43   Letter dated 13 March 2013 from the Chair to the Minister, Ev 2, Q8. Back

44   Letter dated 15 April from the Minister to the Chair, Ev 5, Annex B, para. 29. Back

45   Review of the Office of the Children's Commissioner (England), CM 7981 (December 2010), p. 61 (emphasis added). Back

46   JCHR Report on draft clauses, above n. 5, paras 115-121. Back

47   Government response to JCHR Report on draft clauses, above n. 5, para. 16. Back

48   Government Reply to JCHR letter on the Bill, Ev xx, para.s 33-34. Back

49   Government response to JCHR Report on draft clauses, above n. 6, para. 19. Back

50   Government response to JCHR Report on draft clauses, para. 20. Back

51   Letter dated 2 May 2013 from the Minister for Women and Equalities, Helen Grant MP, to the Chair of the Equality and Human Rights Commission, Baroness Onora O'Neill: http://www.equalityhumanrights.com/uploaded_files/aboutus/ehrc_framework_letter.pdf  Back

52   JCHR Report on draft clauses, above n. 5, paras 126-8. Back

53   Government response to JCHR Report on draft clauses, above n. 6, para. 22. Back

54   JCHR Report on draft clauses, above n. 5, paras 70-77. Back

55   JCHR Report on draft clauses, above n. 5, paras 75-76. Back

56   Letter dated 13 March 2013 from the Chair to the Minister, Ev 2, Q10. Back

57   Modern Workplaces: shared parental leave and pay impact assessment, February 2012, para. 33(ii), citing P. Moss, International Review of Leave Policies and Related Research 2011, Institute of Education, University of London. Back

58   Clause 95(3), amending s. 171ZE Social Security Contributions and Benefits Act 1992. Back


 
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