Children & Social Work Bill [Lords]

Written evidence submitted by Equality and Human Rights Commission (CSWB 11)

Response of the Equality and Human Rights Commission to the Public Bill Committee:

Summary

 

1. The Equality and Human Rights Commission (the Commission) is calling for a duty on public authorities in England to have due regard to the Convention on the Rights of the Child (CRC) when carrying out their functions in relation to children. This duty could be introduced through an amendment to the Children and Social Work Bill.

2. We know that such a duty could have a real and meaningful impact on children’s lives thanks to evidence on the implementation of similar duties in Scotland and Wales. This briefing sets out a summary of that evidence, which shows the practical difference these duties have made to the implementation of children’s rights in Scotland and Wales.

Current situation not adequate

 

3. The recent conclusions of the UN Committee on the Rights of the Child (UNCRC) identifies where the UK has failed, so far, to protect children’s human rights. It is clear that children’s rights need to be given greater attention in the decision-making of public bodies.

4. The UK Government has made a welcome commitment to give the CRC due consideration in the development of new policy and legislation, but this has not had the necessary impact. As a political commitment, there are no accountability mechanisms where it is breached. It is reflected in non-binding guidelines on "making legislation" but these recognise that "the Government and the [UN CRC] may at times disagree on what compliance with certain articles entails." [1] In practice, this commitment and guidance has not been widely and consistently applied. For example:

· impact assessments for the Welfare Reform and Work Act 2016 did not properly consider the impacts of proposed measures on the rights of children across the UK, particularly in relation to measurements of child poverty and a proposed further reduction to the household benefit cap; [2]

· the UK Government reiterated its decision not to make personal, social and health education a statutory part of the national curriculum in England, seemingly without regard for the children’s rights requirements in this respect; [3]

· the review of the youth justice system has not taken the opportunity to address the continued use of restraint and segregation of children and young people in custody in England and Wales. [4]

· there was no evidence that the Home Office systematically gave due consideration to the CRC when preparing the Modern Slavery Bill; [5]

· responses to a Freedom of Information request suggested that between April 2013 and August 2014, of all UK Government policies, only the Children and Families Act 2014 and the Modern Slavery Act 2015 had been the subject of a child rights impact assessment. [6]

· the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed from the scope of legal aid cases in a number of areas which may have a disproportionate impact on children’s access to justice, including most non-asylum immigration, education, and private family law cases. [7]

5. The judgment of the UK Supreme Court in SG demonstrates the value of a due regard duty in English law. [8] The Court was asked to consider whether the Secretary of State had met his obligations under Article 3 (1) of the CRC (""in all actions concerning children … the best interests of the child shall be a primary consideration") in his decision to implement the household benefit cap. Although serious concerns were raised as to whether he had met these obligations, the majority held that the best interests of the child did not have to be considered to determine the outcome of the case because the CRC had not been directly incorporated into UK law. If a due regard duty of the type we are proposing had been applicable to the decision in question, it would certainly have been appropriate for the Court to examine whether the Secretary of State had had due regard to the best interests of the child in deciding to implement the household benefit cap.

6. There are some good examples of where the UK Government has taken into account children’s rights in its decision-making. The Department for Education’s Children’s Rights Impact Assessment (CRIA) of the Children and Social Work Bill assessed different measures for policy intention, impacts on children, consultation with children, compliance with different CRC articles and relevant UN CRC recommendations. [9] Nevertheless, as will be seen below, the CRIA for this Bill did not go into the level of detail that would be expected under the Scottish and Welsh CRIA processes. For example, the assessment did not consider the numbers of children affected, whether specific groups of children would be likely to be disproportionately affected, nor did it set out supporting evidence to show how conclusions had been drawn with regard to projected impacts.

7. Other CRIAs conducted by the UK Government have not displayed a proper understanding of how children’s rights should be applied to the matter under consideration. For example, the impact assessments for the Welfare Reform and Work Bill (WRWB) set out the UK Government's position that "refocusing government action from tackling the symptoms of child poverty to tackling the root causes of poverty (worklessness, poor educational attainment)" would "make a real and lasting difference to children's lives", and was therefore in compliance with CRC Article 3 on the best interests of the child. [10] However, as the Commission has briefed the UK Parliament, this assessment conflates the present or potential interests of children in general with the best interests of particular children affected by proposed changes, and is therefore not a correct interpretation of Article 3. [11] For example, the impact assessments of the further reduction to the household benefit cap and the limitation of child tax credits to the first two children in a household failed to take account of the immediate likely impact of these measures on the interests of affected children to have access to adequate food, clothing, warmth and housing. [12]

General duties in Scotland and Wales

 

8. The Rights of Children and Young Persons (Wales) Measure 2011 (Wales Measure) places a duty on Welsh Ministers to have due regard to the requirements of the Convention on the Rights of the Child when exercising any of their functions. They must have due regard to the CRC when making decisions on legislation, formulation of new policy and making changes to existing policy. [13]

9. The Children and Young People (Scotland) Act 2014 (CYPSA) imposes a duty on Scottish Ministers to keep under consideration whether there are steps they could take which might further children's rights as set out in the CRC, and for public bodies to publish periodic reports on what steps they have taken in this regard. [14]

10. These duties are not as widely applicable as they might be, and there remain gaps in protection of rights under the CRC in Scotland and Wales. The Wales Measure applies to Welsh Ministers, but not to other public authorities. The CYPSA affords a wide discretion to Ministers in deciding which actions they should take to secure the implementation of the CRC.Nevertheless, as will be seen below, putting the CRC on a statutory footing in Scotland and Wales has made a practical difference to the implementation of children’s rights.

Driving a children’s rights approach in other legislation

 

The Social Services and Well-being (Wales) Act 2014 (SSWWA)

11. The SSWWA provides that a person exercising functions under the Act in relation to children with needs for care and support, child carers with needs for support or looked after and accommodated children, must have due regard to the CRC. [15] The Act references the Wales Measure directly, and extends the duty of due regard beyond Welsh Ministers to all people exercising functions under the Act. The Act covers a range of functions including assessing needs for care and support, meeting those needs, looked after and accommodated children, safeguarding, and social services.

12. The direct reference to the Wales Measure and the extension of the duty to other public officials shows the practical impact that the original Measure has had in terms of influencing the development of legislation which has the potential to directly affect the rights of children in practice.

The Housing (Wales) Act 2014

13. The Housing (Wales) Act 2014 (HWA) creates duties on local housing authorities in Wales, including duties to secure accommodation for applicants who are homeless or threatened with homelessness. The Welsh Government’s White Paper supporting the development of the HWA set a target to end family homelessness by 2019, and explained that the Welsh Government’s proposals contribute to the implementation of Articles 3, 6, 18 and 27 of the CRC, as "incorporated in Welsh law through the [Wales Measure]." [16]

14. An options paper written by a team of academics and based on the views of a broad range of stakeholders recommended that the Act should include an early intervention duty on local authorities to prevent people from becoming homeless. [17] The paper also recommended revising the intentionality test, which had set out that local authorities do not have a duty to secure accommodation for people who had intentionally become homeless. [18] The options paper suggested that consideration should be given by the Welsh Government to the Wales Measure, "which may require that children aged 16-17 years cannot be found intentionally homeless". [19] This led to the responsible Minister accepting the need to make provision for early intervention and to provide local housing authorities with the option to disregard intentionality. [20] These two changes are reflected in the HWA. [21]

15. The legislative scrutiny of the HWA took place after the Wales Measure was enacted but before it entered into effect. It is clear that the due regard duty in the Wales Measure had a decisive influence on the original Government proposals, on the team of researchers who put forward evidence on the Bill, and on the responsible Minister who agreed to an amendment to the Bill. As a result of the legislation, three local authorities in Wales were able to opt out of using the intentionality test where applicants for housing were 16 and 17 year olds.

Raising the minimum age of criminal responsibility

16. Following enactment of the CYPSA, the Scottish Government has established a process for officials to follow to ensure that they have due regard to the CRC when developing new legislation or policy. It has issued detailed guidance on Child Rights and Wellbeing Impact Assessments (CRWIA), framing these assessments as "an approach that can help officials fulfil both the existing obligations under the UN CRC and the new ministerial duties under the Children and Young People (Scotland) Act". [22]

17. In line with this guidance, the Scottish Government, in collaboration with the Children and Young People’s Commissioner, Scotland, Together – Scottish Alliance for Children’s Rights, and the Centre for Youth and Criminal Justice, co-produced a CRWIA on a policy measure to raise the minimum age of criminal responsibility from 8 to 12 years old. UN CRC has recommended that the minimum age of criminal responsibility be raised in accordance with international standards. [23] The CRWIA set out the key rights affected, international jurisprudence on the age of criminal responsibility, how the measure would affect wellbeing indicators set out in the guidance, and relevant evidence as to the impact on children of the current policy. It identifies less obvious child rights implications of the measures under consideration, such as the rights of child victims of crime, which will be affected by the proposal.

Embedding of child-rights processes and structures

 

18. The Wales Measure also places an obligation on Welsh Ministers to make a children’s scheme, which set out the arrangements they have made to comply with this general duty (The Wales Scheme). This was published by the Welsh Government in 2014. [24] The Wales Scheme sets out a number of processes which will enable the Welsh Government to strengthen compliance with the duty. These include:

· a programme of work to raise awareness and provide training for public officials;

· a process for the implementation of children’s rights impact assessments including a template which sets out how and when these should be undertaken; and

· reporting on the implementation of the duty every 2.5 years.

19. The Wales Measure and the Wales Scheme also led to the establishment of structures to drive implementation of the due regard duty. These include:

· The ‘Measure Implementation Team’, with clear responsibilities in relation to raising awareness, advising Ministers, monitoring uptake of training, and monitoring compliance with the duty.

· The children’s rights scheme implementation group, which contains representatives from all the Director General areas within the Welsh Government, and aims to champion children’s rights across the Welsh Government and advise the Measure Implementation Team.

20. The Wales Observatory on Human Rights of Children and Young People based at Swansea University conducted an evaluation of the Welsh Government’s procedure for conducting Child Rights Impact Assessments (CRIAs). [25] The evaluation by the Wales Observatory notes problems with the CRIAs, including the need to strengthen guidance on "identifying possible discriminatory impacts of a proposal and the need to consult with children and young people". [26] CRIAs were sometimes started too late in the legislative or policy process. [27] Finally, reviewing the outcomes of a proposal after implementation was highlighted as a key area to improve CRIAs.

21. However, the evaluation concluded that the CRIA procedure as set out in the Wales Scheme "embeds a number of core objectives of human rights impact assessment into relevant Welsh Government decision-making processes" and that some parts of the procedure "establish fit-for-purpose practices that help identify the impact of a legislative or policy proposal on children and children’s rights". [28] The Measure Implementation Team is cited as "an important reservoir of knowledge and awareness of children’s rights [the input of which] leads to improved CRIA analysis and outcomes". [29]

Conclusions

 

22. A due regard duty cannot guarantee full implementation of all of the rights under the CRC. However, evidence from Scotland and Wales suggests that putting the CRC on a statutory footing has made real differences to how legislation and policy is developed. In some areas, such as the development of legislation in Wales mentioned above, we can see changes in outcomes for children as a result of the introduction of such a duty.

23. Although the Scottish duty was enacted only recently, it is already possible to see that it has engendered detailed and sophisticated consideration of children’s rights in policy making. More participative policy-making processes, involving experts and civil society, have highlighted the less obvious child rights implications of policy proposals.

24. While there are ways in which implementation of the duty in Wales could be strengthened, it is clear that the existence of a formal process, with a basis in statute, has been important in driving the more systematic consideration of children’s rights in policy making in Wales. Without the Measure, the Welsh Government may have considered the impacts of legislation on the implementation of children’s rights where the legislation most obviously concerns children, such as the SSWWA, rather than for legislation which has more indirect effects on children, such as the HWA.

25. The introduction of a children’s rights due regard duty in English law would strengthen the processes through which children’s rights are considered in policy making, ensuring that relevant considerations, evidence and expertise are taken into account and that the CRC requirements are properly understood. Such a duty would also lead to structures which facilitate the prioritisation of children’s rights in policy making, by requiring appropriate measures to be put in place to ensure cross-Government collaboration, coordination and training to tackle cross-cutting child rights issues, such as child poverty. The Welsh child rights implementation group and training duties are good examples of this.

26. A statutory process would ensure that regard to children’s rights is had in the development of all bills and policies, not just those which strengthen or most obviously impact upon children’s rights. The duty would also provide an important accountability mechanism for when this does not happen.

Children and social work bill

27. The most immediate opportunity for introducing a children’s rights due regard duty is in the Children and Social Work Bill, and for this reason we have called on the UK Government to introduce a children’s rights duty in that Bill. The scope of that Bill means that any duty therein would only apply to the functions of public authorities exercise in relation to children in England.

28. Notwithstanding this, the Commission considers that a duty to have due regard to the CRC should apply to the development of all legislation passed by the UK Parliament and all UK public authority decisions which affect children, whether the policy is in a reserved or a devolved area. Without this, there will be gaps in protection for children’s rights in Scotland and Wales, where the legislation or policy in question relates to a non-devolved area. We will continue to press for this wider duty.

December 2016


[1] Cabinet Office, Guide to making legislation, July 2015, para 11.123, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/328408/Guide_to_Making_Legislation_July_2014.pdf

[2] EHRC, Updated submission to UN CRC in advance of the public examination of the UK’s implementation of the CRC, April 2016, pp. 15-20, available at: https://www.equalityhumanrights.com/en/file/18731/download?token=ZLbeCOT6 (Hereafter, EHRC, Updated Submission to UN CRC, April 2016)

[3] EHRC, Updated Submission to UN CRC, April 2016, pp. 33-34

[4] EHRC, Updated Submission to UN CRC, April 2016, pp. 37-41

[5] EHRC, Submission to UN CRC on UK's Compliance with the Optional Protocol on the sale of children, child prostitution and child pornography, April 2014, available at: http://www.equalityhumanrights.com/sites/default/files/uploads/Pdfs/uncrc-op_submission_28-04-14.pdf

[6] Requests submitted by the Children’s Rights Alliance for England to 11 UK Government departments. Children’s Rights Alliance for England, State of Children’s Rights 2014: General Measures of Implementation, 2014.

[7] EHRC, Submission to UN CRC on the UK’s implementation of the CRC, August 2015, pp. 11-17, available at: https://www.equalityhumanrights.com/en/file/4636/download?token=9fz57AIz (Hereafter, EHRC, Submission to UN CRC, August 2015)

[8] R (on the application of SG and others (previously JS and others)) (Appellants) v Secretary of State for Work and Pensions (Respondent), Judgment of 18 March 2015, available at: https://www.supremecourt.uk/decided-cases/docs/UKSC_2014_0079_Judgment.pdf

[9] Department for Education, Children and social work Bill, Impact assessments, May 2016, available at: http://www.parliament.uk/documents/impact-assessments/IA16-008.pdf

[10] Department for Work and Pensions (DWP), Memorandum to the Joint Committee on Human Rights: The Welfare Reform and Work Bill 2015, September 2015, https://www.gov.uk/government/publications/welfare-reform-and-work-bill-2015-human-rights-memorandum, para 76

[11] EHRC, Welfare Reform and Work Bill, Public Bill Committee: response to call for written evidence, October 2015, para 1.5. Available at: http://www.equalityhumanrights.com/legal-and-policy/our-legal-work/parliamentary-briefings/welfare-reform-and-work-bill-written-evidence-submission

[12] EHRC, Updated Submission to UN CRC, April 2016, pp. 15-20

[13] Section 1, Rights of Children and Young Persons (Wales) Measure 2011.

[14] The Children and Young People (Scotland) Act 2014 Sections 1 and 2, available at: http://www.legislation.gov.uk/asp/2014/8/contents/enacted

[15] Section 7(2)

[16] Welsh Government, Homes for Wales: a white paper for better lives and communities, 2012, para 7.55-7.57, available at: www.gov.wales/docs/desh/consultation/120521whitepaperen.pdf

[17] Dr Peter Mackie, Professor Suzanne Fitzpatrick, Tamsin Stirling, Dr Sarah Johnsen, Dr Simon Hoffman, Options for an improved homelessness legislative framework in Wales, March 2012, available at: http://www.senedd.assembly.wales/documents/s7353/options, section 2.3

[18] Options for an improved homelessness legislative framework in Wales, section 2.5

[19] P. 15

[20] National Assembly for Wales, Communities, Equality and Local Government Committee, 21/05/2014, Group 36, Homelessness: Intentionality, para 300

[21] See sections 66 and 78

[22] Scottish Government, When and how to best use the Child Rights and Wellbeing Impact Assessment: guidance for Scottish Government officials, June 2015, available at:

[23] UN CRC, Concluding Observations, July 2016, para. 78(a)

[24] Welsh Government, Children’s Rights Scheme 2014, available at http://gov.wales/docs/dsjlg/publications/cyp/140501-childrens-rights-scheme-2014-en.pdf

[25] Wales Observatory on Human Rights of Children and Young People, Evaluation of the Welsh Government’s Child Rights Impact Procedure under the Children’s Rights Scheme pursuant to the Rights of Children and Young Persons (Wales) Measure 2011. (Copy of executive summary available on request)

[26] Wales Observatory Evaluation of CRIAs, para 6

[27] Wales Observatory Evaluation of CRIAs, para 6 and 8

[28] Wales Observatory Evaluation of CRIAs, para 4

[29] Wales Observatory Evaluation of CRIAs, para 10

 

Prepared 14th December 2016