Children and Famlies Bill

Memorandum submitted by the British Humanist Association (CF 02)

About the British Humanist Association

1. The British Humanist Association (BHA) is the national charity working on behalf of non-religious people who seek to live ethical and fulfilling lives on the basis of reason and humanity. It is the largest organisation in the UK campaigning for an end to religious privilege and to discrimination based on religion or belief, and for a secular state.

2. The BHA has a long history of contributing towards and improving state education. We provide materials and advice to parents, governors, students, teachers and academics. We also work closely with others on wider equalities issues in a range of forums. The BHA is a member of the National Children’s Bureau Sex Education Forum (SEF), the Children’s Rights Alliance for England (CRAE), Rights of the Child UK (ROCK) and the Religious Education Council for England and Wales.

Summary of response

3. We welcome the proposed changes around the Children’s Commissioner, in particular its proposed role in ‘monitor[ing] the implementation in England of the United Nations Convention on the Rights of the Child’. However, we believe the changes need to go further, and that the Convention should be incorporated directly into UK law.

4. We have particular concern around opt-out rights for young people in RE, sex education and Collective Worship. Currently, parents have opt out rights over their children in these areas of school up to either sixth form age or the end of school, which we believe is likely to constitute a breach of the European Convention on Human Rights. We think this Bill represents a suitable opportunity for a change in the law to rectify this.

Part 5: The Children’s Commissioner

5. We welcome part 5 of the Bill, and its proposals to both strengthen the role of the Children’s Commissioner, and increase its independence from the Government. In particular, we are very pleased to see the Children’s Commissioner’s role refocused to be about ‘promoting and protecting the rights of children in England’, and the fact that this role includes ‘monitor[ing] the implementation in England of the United Nations Convention on the Rights of the Child’. We also agree with the Joint Committee on Human Rights’ (JCHR’s) conclusion that ‘the proposed reforms constitute a very significant development 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 well-resourced.’ [1]

6. However, we believe the changes need to go further. We are strong supporters of children’s rights, and believe that the UN Convention on the Rights of the Child should be incorporated directly into UK statute, in order that the UK Government and other bodies begin to take children’s rights as seriously as we hope the Children’s Commissioner now will. We endorse ROCK’s response on this and related matters to the JCHR’s pre-legislative scrutiny of the relevant clauses of the Bill. [2]

7. We also regret the exclusion from the Bill of any reference to the Commissioner having to ‘have regard to any other relevant international standards concerning the rights of children which have been accepted by the UK Government, whether legally binding or not’ – as was recommended by the JCHR.

8. We also have a number of areas of particular concern where we do believe current UK legislation may clash with the UNCRC. We set many of these out in some detail in our 2010 contribution to CRAE’s State of children’s rights in England. [3] We have particular concern around opt-out rights for young people which we will now discuss in more depth.

Opt out rights for young people from RE, sex education and Collective Worship

9. The BHA is concerned that parents have opt out rights over mature young people at school in Religious Education (RE), Collective Worship and sex education. We believe that the current system is incompatible with the European Convention on Human Rights and related case law, which we think has established that such rights should transfer to young people once they are intelligent enough to make their own decisions on the matter. This is particularly important, given that surveys show that between half [4] and two-thirds [5] of young people are not religious – a higher proportion than in the population as a whole.

10. UK law currently allows parents whose children attend state-funded schools to opt their children out of RE, sex education (provided outside of Science) and Collective Worship up until the child leaves school, in the case of RE and sex education, or the end of compulsory school age, in the case of Collective Worship. Pupils of sixth-form age are allowed to opt themselves out of Collective Worship. [6]

11. Parents and pupils have no rights of withdrawal from any aspect of school life at private schools. For parents, this is because they can withdraw their children from the school entirely. Pupils, however, have no such option, so an 18 year old at a private school could be compelled to attend Collective Worship, in addition to confessional Religious Education, and be punished if they refuse.

12. These statutory arrangements seem to the BHA to represent a collection of breaches of young people’s legal right to freedom of thought, conscience and religion, as established under article 9 of the European Convention on Human Rights.

13. Parents have a competing right to have their children educated in line with their own religious or philosophical convictions, established through article 2 of protocol 1 of the Convention. However, following the Gillick competence principles, a child’s right to determine their own religion or belief (and hence whether or not they wish to be opted out) overrides their parents’ rights over them (and hence the same) once the child obtains sufficient understanding and intelligence to be mature enough to make up their own mind on the matter.

14. The age at which a child will reach such maturity will vary from child to child; however, it is certain that almost all have done so long before the age of 16. Therefore, the age of opt out needs to be lowered – if there is to be a firm age at all, which the BHA does not believe there should be.

15. This argument has been repeatedly endorsed by the Joint Committee on Human Rights (JCHR), for example in reports in 2006, [7] 2008 [8] and 2010. [9]

16. The previous Government also recognised this argument in 2006 and 2007 when it gave sixth form pupils the power to opt themselves out of Collective Worship. It said that ‘there is a duty rather than power’ to give pupils this right. [10] However, it seemingly contradicted itself when it refused to give similar rights to pupils in other subjects, or consider pupils under the age of sixteen.

17. In 2010 as part of the Children, Schools and Families Bill the Government went further and proposed to give pupils opt out rights in sex education from the age of 15. When the JCHR asked why this firm age limit was decided upon, the Government replied that it considered using Gillick criteria ‘not … in practice, particularly workable.’ The JCHR did not agree with this, noting in its report that ‘In practice, teachers and schools frequently have to make individualised assessments about the children in their care, including about their capacity’, before recommending ‘that clause 14 of the Bill be amended in a way which leaves 15 as the presumptive age of Gillick or Fraser competence for these purposes but which provides for an exception from the parental right to withdraw where a child under the age of 15 is of sufficient maturity and understanding to reach their own decisions on sex and relationships education.’

18. However, the reforms to Personal, Social, Health and Economic (PSHE) education in that Bill were ultimately scrapped, because the Bill was not passed before the 2010 wash-up, and then-Shadow Secretary of State for Children, Schools and Families Michael Gove wanted the opt-out age to be 15 and not 16. Secretary of State Ed Balls wrote to Mr Gove, saying:

As I explained yesterday, your insistence that parents should have a right to withdraw their children until they reach the age of 16 – the age at which they are in many respects considered adults – makes it impossible for us to proceed. Both British and European case law do not support an opt-out up to the age of 16.  As I explained when we discussed yesterday, that amendment would have meant that the bill would not have been compliant with the ECHR.  Your insistence that the age limit must be increased to 16 would have made the entire bill non-compliant with UK and European law and, therefore, our lawyers advised me that, as Secretary of State, I had no choice but to remove all the PSHE provisions. [11]

19. We think the JCHR, in its 2010 report, got the balance right and that young people in all schools should have the right to self determination of withdrawal in RE, Collective Worship and sex education from the age of 15, with Gillick competences being applied to younger pupils.16 is too old to presume that pupils are not competent in these matters, but at the same time, there does need to be scope for younger (potentially much younger) pupils being able to make their own minds up, if they are of sufficient maturity, or else the legislation would not be compatible with case law.

20. At the same time, we recognise the fact that the previous Government’s 2010 legal advice was that pupils should gain withdrawal rights at 15, and therefore it was compelled to legislate to this effect. We are confused that the current Government does not consider itself to be under the same compulsion.

21. We believe that the Children and Families Bill, looking as it is at children’s rights, represents a suitable opportunity for the law to be amended in these areas to recognise young people’s rights to freedom of conscience, religion or belief in being able to determine whether to withdraw themselves from Collective Worship, RE and sex education.

February 2013


[1] Joint Committee on Human Rights, ‘Reform of the Office of the Children’s Commissioner: draft legislation’, Sixth Report of Session 2012–13, 4 December 2012: http://www.publications.parliament.uk/pa/jt201213/jtselect/jtrights/83/83.pdf

[2] Joint Committee on Human Rights inquiry into ‘The role and independence of the Office of the

[2] Children’s Commissioner for England’ – Written Evidence, 4 December 2012: http://www.parliament.uk/documents/joint-committees/human-rights/Children's_Commissioner_Written_Evidence_5.pdf

[3] British Humanist Association contribution to the Children’s Rights Alliance for England’s (CRAE) State of children’s rights in England report, July 2010: http://humanism.org.uk/wp-content/uploads/BHAcontributiontoCRAEStateofchildrensrightsinEngland.pdf

[4] Christine Farmer, ‘2003 Home Office Citizenship Survey: Top-level findings from the Children’s and Young People’s Survey’ (Home Office and Department for Education and Skills, 2005), p. 37: http://www.communities.gov.uk/documents/communities/pdf/452490.pdf

[5] Alison Park, Miranda Phillips and Mark Johnson, ‘Young People in Britain: The Attitudes and Experiences of 12 to 19 Year Olds’ (Department for Education and Skills, 2004), pp. 10-11: https://www.education.gov.uk/publications/eOrderingDownload/RR564.pdf.pdf

[6] With regards to RE and Collective Worship: For community, foundation and voluntary schools, see section 71(1) of the School Standards and Framework Act 1998, as amended by section 55(2) of the Education and Inspections Act 2006. For community special and foundation special schools, see section 55(8) of the Education and Inspections Act 2006. For non-maintained special schools, see section 143(2) of the Education and Skills Act 2008. For Academies and Free Schools, see the model funding agreements. With regards to sex education: For maintained schools, see section 405 of the Education Act 1996. For non-maintained special schools, see paragraph 25 of the schedule of The Education (Non-Maintained Special Schools) (England) Regulations 2011 . For Academies and Free Schools, see the model funding agreements.

[7] Joint Committee on Human Rights, Twenty-fifth Report of Session 2005-06 – Legislative Scrutiny: Thirteenth Progress Report , paragraphs 2.1-2.6, 1 August 2006: http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/241/241.pdf

[8] Joint Committee on Human Rights, Nineteenth Report of Session 2007-08 – Legislative Scrutiny: Education and Skills Bill , paragraphs 1.40-1.45, 13 May 2008: http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/107/107.pdf

[9] Joint Committee on Human Rights, Eighth Report of Session 2009-10 – Legislative Scrutiny: Children, Schools and Families Bill; other Bills , paragraphs 1.30-1.40, 19 February 2010: http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/57/57.pdf

[10] Explanatory Memorandum to The Education (Special Educational Needs) (England) (Consolidation) (Amendment) Regulations 2007: http://www.legislation.gov.uk/uksi/2007/1860/pdfs/uksiem_20071860_en.pdf

[11] Ed Balls’ letter to Michael Gove, 7 April 2010: http://www.cosmodaddy.com/2010/04/07/tories-oppose-statutory-sex-education/

Prepared 6th March 2013