Documents considered by the Committee on 27 April 2011 - European Scrutiny Committee Contents


1   An EU Agenda for the Rights of the Child


(32561)

7226/11

COM(11) 60

Commission Communication: An EU Agenda for the Rights of the Child

Legal base
Document originated15 February 2011
Deposited in Parliament21 March 2011
DepartmentEducation
Basis of considerationEM of 30 March 2011
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionRecommended for debate in European Committee C

Background

1.1  The United Nations Convention on the Rights of the Child 1989 ("the UNCRC") is the principal international instrument setting out the civil, political, economic, social and cultural rights which all children (any person under the age of 18) should enjoy. All EU Member States have ratified the Convention.

1.2  Member States and EU institutions jointly proclaimed the EU Charter of Fundamental Rights in 2000. Article 24 of the Charter refers specifically to children and provides:

  • "1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
  • "2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.
  • "3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests."

1.3  With the entry into force of the Lisbon Treaty, on 1 December 2009, the Charter became legally binding for EU institutions and for the Member States when implementing EU law. The Charter does not, however, extend the field of application of Union law beyond the powers of the Union or "establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties."[1]

1.4  The Lisbon Treaty also amended the Treaty on European Union ("TEU") to include, for the first time, an express reference to the rights of the child. Article 3(3) TEU sets out the objectives of Union action which include "protection of the rights of the child." Article 3(5) TEU further provides that the Union's external policies shall "contribute to...the protection of human rights, in particular the rights of the child."

1.5  The Treaty on the Functioning of the European Union ("TFEU") confers on the EU an express competence to combat trafficking in, and the sexual exploitation of, children.[2]

1.6  The Stockholm Programme, which sets out the European Council's priorities in the Area of Freedom, Security and Justice for the period 2010-14, includes a commitment to ensure that the rights of the child are "systematically and strategically taken into account" in all EU policies and to develop "an ambitious Union strategy on the rights of the child." The European Council invites the Commission to:

"identify measures, to which the Union can bring added value, in order to protect and promote the rights of the child. Children in particularly vulnerable situations should receive special attention, notably children that are victims of sexual exploitation and abuse as well as children that are victims of trafficking and unaccompanied minors in the context of Union migration policy."[3]

1.7  In addition, the Stockholm Programme says that the EU should continue to develop "criminal child abduction alert mechanisms, by promoting cooperation between national authorities and interoperability of systems", support safer use of the internet (including through the expansion of public-private partnerships in the financial sector to disrupt the transfer of money related to websites with child abuse content), and to enhance cooperation between Member States on the movement of child sex offenders who continue to present a threat.

The Commission Communication and the Government's response

1.8  The Communication proposes an EU Agenda for the Rights of the Child which is intended to reaffirm the strong commitment of EU institutions and Member States "to promoting, protecting and fulfilling the rights of the child in all relevant EU policies and to turn it into concrete results. In the future, EU policies that directly or indirectly affect children should be designed, implemented and monitored taking into account the principle of the best interests of the child."[4]

1.9  The Commission emphasis that a failure to invest sufficiently in policies affecting children "may have a profound impact on our societies." It says that many of the policy areas identified in the Communication will require "determined action by the Member States" but adds that "the Commission is ready to offer its support and cooperation."[5]

1.10  The Agenda is based on a broad-based consultation involving the public, young people aged between 15-17, and the European Forum on the Rights of the Child which brings together representatives of the Member States, the European Parliament, the Committee of the Regions, the Economic and Social Committee, the Council of Europe, UNICEF, national Ombudsmen and women responsible for children's rights, and civil society.

1.11  The Agenda is divided into two Parts, the first setting out general principles which are intended to ensure that action taken by the EU is "exemplary" in meeting the requirements of the EU Charter and the UNCRC, and the second proposing "concrete actions" in areas where the EU can bring "real added value."

General principles for EU action

1.12  The Commission proposes three general principles to underpin all EU action. These are:

  • making the rights of the child an integral part of the EU's fundamental rights policy — the Commission says that, when assessing whether draft EU legislative proposals are in conformity with the EU Charter, it will ensure that the best interests of the child are fully considered;
  • building the basis for evidence-based policy making — the Commission believes that there is insufficient officially-sourced data to monitor the impact of policies on the rights of the child and says that data collection should be improved to measure how the rights of the child are implemented, protected and promoted across the EU and to inform policy making; and
  • cooperation with stakeholders — the Commission says that it will support Member States' efforts through regular meetings of the European Forum for the Rights of the Child and by promoting the exchange of best practice, cooperation and communication between national authorities responsible for protecting and promoting the rights of the child.

Concrete action at EU level

1.13  The Commission proposes eleven concrete actions at EU level which are intended to make civil and criminal justice systems more child-friendly, protect particularly vulnerable children, ensure the rights of the child are given priority in the EU's external action, and increase children's awareness of their rights and opportunities to participate in decision making which affects them.

1.14  The Commission's reasons for believing that EU action is needed, and the concrete actions proposed, are summarised below, followed in each case by the Government's response as set out in the Explanatory Memorandum of the Minister for Children and Young People (Sarah Teather).

Child-friendly justice systems

1.15  The Commission says that children may become involved in justice systems as a result of their parents' divorce or a custody dispute; as witnesses to, or victims of, crime; as a defendant in criminal proceedings; or as a child asylum seeker. It believes that making justice systems more child-friendly "is an area of high practical relevance where the EU has, under the Treaties, competences to turn the rights of the child into reality by means of EU legislation."[6] The Commission proposes five actions in this area.

1.16  The Minister says that the Government "welcome[s] the overall proposals for child-friendly justice within the EU Agenda for the Rights of the Child, in so far as they are in conformity to the Stockholm Programme."[7] The Government's views on each of the proposed actions are set out below.

Action 1: a draft Directive in 2011 to raise the level of protection for vulnerable victims, including children

1.17  The Minister says that the Youth Justice and Criminal Evidence Act 1999 includes provision for special measures to assist vulnerable and intimated witnesses in giving evidence and includes a presumption, in the case of child witnesses, that their evidence will be given by means of video recorded statements and live links from outside the court room. She notes that the UK is bound by an existing 2001 Council Framework Decision on the standing of victims in criminal proceedings and expects the Commission to propose an amending Directive in May 2011 which will be subject to the UK's opt-in. She adds that, "in accordance with the Coalition Agreement, the Government has stated that it will approach forthcoming EU legislation in the area of criminal justice on a case by case basis, with a view to maximising our country's security, protecting Britain's civil liberties and preserving the integrity of our criminal justice system."

Action 2: a draft Directive in 2012 setting out special safeguards for vulnerable individuals, including children, who are suspected or accused of committing a criminal offence

1.18  The Minister notes that the draft Directive would be one of a series of measures included in a 2009 Council Resolution proposing a "Roadmap" to strengthen the procedural rights of those suspected or accused of a criminal offence.[8] It will also be subject to the UK's opt-in. She adds that the Scottish Government has already introduced special measures to support vulnerable witnesses giving evidence by means of the Vulnerable Witnesses (Scotland) Act 2004 and is considering possible improvements.

Action 3: revision, by 2013, of EU legislation on the recognition and enforcement of decisions on parental responsibility to ensure speedier recognition and enforcement of decisions, in the interest of the child, and the establishment of common minimum standards, where appropriate

1.19  The Minister notes that the UK is bound by the existing EU legislation (known as the "Brussels IIa" Regulation) and will participate in the Commission's proposed review of its operation which is expected to result in revised draft legislation in 2013. She says that the meaning of "parental responsibility" is wider under the Brussels IIa Regulation than under English law, and includes matters of residence and contact. She emphasises that securing speedier recognition and enforcement of decisions on residence and contact is therefore only desirable if it serves the best interests of the child.

Action 4: promoting the use of Council of Europe Guidelines on child-friendly justice and taking them into account in future EU legislative instruments in the field of civil and criminal justice

1.20  The Minister notes that the Guidelines are not legally binding and that "they are expressed so as to accommodate the systems of law and society of the 47 Member States of the Council of Europe." She says that the Government "will consider the effects of the Commission taking the Guidelines into account in future EU legal instruments when these are brought forward."[9]

Action 5: supporting and encouraging the development of training activities for judges and other professionals at EU level on the optimal participation of children in judicial systems

1.21  The Minister emphasises the importance of judicial independence in the UK, "where responsibility for judicial training lies with the independent senior judiciaries of each of the UK's different legal jurisdictions (England & Wales, Scotland, Northern Ireland and Gibraltar)." She says that any judicial training contemplated in the EU Agenda for the Rights of the Child must be coherent with, and avoid duplicating, the content of a Commission Communication on Judicial Training which is likely to be published in September 2011.

1.22  The Minister considers that "training on EU law and systems might be valuable to practitioners working in particularly sensitive areas of law, such as cases relating to cross border child abduction." However, "this training should be developed and led on within Member States to account for the specificities of each Member State's legal system" and "must be fully informed of and compatible with the United Kingdom's legal systems and traditions." She adds that "any training developed on the participation of children in judicial systems must take account of the needs of the child and the need to ensure that participation does not place the child at risk of harm or expose them to harm."[10]

Protecting vulnerable children

1.23  The Commission identifies categories of children which it considers to be particularly vulnerable. These include children at risk of poverty, children with a disability, child victims of sexual exploitation and trafficking, child asylum seekers, children who fail to complete their secondary education, Roma children, missing children, and children subject to cyber-bullying and grooming through their use of the internet. The Commission proposes four actions which are intended to empower and protect vulnerable children.

Action 6: supporting the exchange of best practices and improving the training of guardians, public authorities and other actors closely involved with unaccompanied children

1.24  The Minister says that the Government has no concerns with the action proposed as it is consistent with standard practice within the UK Border Agency. She adds that the Scottish Government continues to fund the Legal Services Agency, "a specialist legal team who are specifically trained and funded to advise and represent women and child victims of trafficking and asylum seeking children. They also fund the Scottish Guardianship Service to provide Guardians to unaccompanied children."[11]

Action 7: paying particular attention to children in the context of the EU Framework for National Roma Integration Strategies, including through the more efficient use of EU Structural Funds to promote Roma integration

1.25  The Minister notes that the Commission intends to publish a Communication on an EU Framework for National Roma Integration Strategies in April, at which point the Government will provide an Explanatory Memorandum setting out its views.

Action 8: strongly encouraging and providing support to all Member States to introduce and make operational the 116 000 hotline for missing children and the child alert mechanisms

1.26  The Minister describes the missing children hotline as an "important pan-European service" and says that the UK is working towards its full implementation.[12]

Action 9: supporting Member States and other stakeholders in strengthening prevention, empowerment and participation of children to make the most of online technologies and to counter cyber-bullying, exposure to harmful content, and other online risks through the Safer Internet programme and cooperation with industry through self-regulatory initiatives

1.27  The Minister says that the Government welcomes the Commission's approach to tackling cyber-bullying and draws attention to the work of the UK Council for Child Internet Safety in seeking to create a safer online environment for children, as well as the Scottish Government's Scottish Internet Safety Action Plan and national anti-bullying service (RespectMe).

The rights of the child in the EU's external action

1.28  The Commission says that the promotion and protection of the rights of the child should be given priority in the EU's external action, adding that "it is crucial for the EU to have a strong single voice in external matters when the rights of the child are concerned in relations with third countries to ensure swift and effective action where necessary."[13] The Communication highlights, in particular, the need to combat violence against children, child sex tourism, and child labour, and to safeguard the rights of children involved in or affected by armed conflict. The Commission says that respect for the rights of the child should form part of the EU's political dialogue with third countries and international organisations and that bilateral cooperation should place greater focus on programmes to support the rights of the child. The Commission proposes one action in this area:

Action 10: to continue implementing the 2007 EU Guidelines on the Protection and Promotion of the Rights of the Child that focus on combating all forms of violence against children; to evaluate the implementation of the Guidelines; and to implement the EU Guidelines on Children and Armed Conflicts based on the 2010 Revised Implementation Strategy

1.29  The Minister says that the Government endorses the EU's commitment to eliminate all forms of violence against children and welcomes the intention to implement the EU Guidelines on Children in Armed Conflict.

Raising awareness of children's rights and opportunities for participation in decision making

1.30  The Commission cites recent Eurobarometer surveys which indicate that 76% of children are not aware that they have rights; 79% do not know who to contact in case of need; and 88% would welcome more accessible information on children's rights. It proposes the following action:

Action 11: establishing a single entry point on EUROPA with information for children on the EU and on the rights of the child; the information should be accessible for different age groups and for parents and teachers; the Commission will invite other EU institutions to join its initiative

1.31  The Minister welcomes the Commission's proposal to set up a single entry point. She says that this will "support Member State's activities in raising awareness of children's rights across Europe, and enable children and adults including teachers to easily access information about children's rights." She adds that "UNICEF UK and Save the Children UK are launching the UK version of the web portal in May 2011."

Conclusion

1.32  We note that the inclusion of the rights of the child within Article 3 of the Treaty on European Union (TEU), which sets out the objectives of Union action, does not confer a general competence on the European Union or establish a specific legal base for the adoption of EU measures concerning children's rights. Article 3(6) of the TEU states clearly that "the Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties." The European Union can therefore only take action to promote and protect the rights of the child in those areas where it has the competence to act.

1.33  The Communication, at first sight, appears to propose a hotchpotch of measures rather than a comprehensive and coherent strategy. However, the scope and content of the proposed EU Agenda for the Rights of the Child necessarily reflect the limitations on EU action which the EU Treaties impose as well as Member States' principal responsibility, as signatories to the UN Convention on the Rights of the Child, for ensuring that the rights and principles it contains are respected.

1.34  We think that the general principles proposed by the Commission when developing policies or putting forward legislative proposals which may affect the rights of the child are appropriate. We agree that the fundamental rights check which the Commission applies to draft legislative proposals should take into account the best interests of the child; that there should be a solid evidence base to assess the impact of policies on the rights of the child; and that the Commission should support Member States' efforts by encouraging cooperation and the exchange of best practice.

1.35  We have concerns about some of the concrete actions proposed in the Communication, for example on criminal procedural rights,[14] although we recognise that those which contemplate action within the EU reflect priorities which are already contained in the Stockholm Programme and have been endorsed by the European Council. Many of the actions proposed have yet to be translated into policy documents or legislative proposals. Most will be subject to separate scrutiny, at which point we shall consider their content and the justification for EU action carefully.

1.36  We agree with the Minister that EU action to promote implementation of EU Guidelines on the Protection and Promotion of the Rights of the Child and on Children and Armed Conflicts in the EU's external relations is to be welcomed. We are, however, wary of the implications of the Commission's assertion that the EU should have "a strong single voice in external matters where the rights of the child are concerned." EU Member States are responsible, under international law, for fulfilment of the commitments contained in the UN Convention and so should remain the principal guardians of the rights of the child, with action at EU level supporting rather than supplanting the collective efforts of the Member States.

1.37  We think that the Communication raises important legal and political issues which the House should have an early opportunity to debate, so that the Government can take full account of its views before the Commission puts forward proposals to implement the concrete actions, particularly those concerning civil and criminal law. Accordingly, we recommend the Communication for debate in European Committee C.





1   Article 51(2) of the EU Charter. Back

2   See Articles 79(2)(d) and 83(1) TFEU.  Back

3   See para 2.3.2 of the Stockholm Programme, Council document 17024/09. Back

4   See the Introduction on p. 3 of the Communication.  Back

5   See the Conclusion on p. 15 of the Communication.  Back

6   See para 2.1 on p. 6 of the Communication. Back

7   See p. 5 of the Minister's Explanatory Memorandum.  Back

8   (30985) See HC 19-xxvii (2008-09), chapter 12 (14 October 2009) and HC 19-xxviii (2008-09), chapter 15 (21 October 2009). Back

9   See p. 5 of the Minister's Explanatory Memorandum. Back

10   See p. 5 of the Minister's Explanatory Memorandum.  Back

11   See p.6 of the Minister's Explanatory Memorandum.  Back

12   (32306); see HC 428-xiii (2010-11), chapter 9 (19 January 2011). Back

13   Para 2.3, p. 12 of the Communication.  Back

14   See (31834); HC 428-ii (2010-11), chapter 15 (15 September 2010) and HC 428-xvi (2010-11), chapter 11 (9 February 2011). Back


 
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