Children and Families Bill

Memorandum submitted by Children’s Commissioner for Wales (CCfW) (CF 120)

1 Submission by the Children’s Commissioner for Wales (CCfW)

1.1 The Children's Commissioner for Wales is an independent children’s rights institution established in 2001. The Commissioner’s principal aim is to safeguard and promote the rights and welfare of children. [1] In exercising his functions, the Commissioner must have regard to the United Nations Convention on the Rights of the Child (UNCRC). [2] The Commissioner’s remit covers all areas of the devolved powers of the National Assembly for Wales insofar as they affect children’s rights and welfare and they may also make representations to the Welsh Ministers about any matter affecting the rights and welfare of children in Wales . [3]

1.2 The UNCRC is an international human rights treaty that applies to all children and young people up to the age of 18. It is the most widely ratified international human rights instrument and gives children and young people a wide range of civil, political, economic, social and cultural rights which State Parties to the Convention are expected to implement. In 2004, the Welsh Assembly Government adopted the UNCRC as the basis of all policy making for children and young people and in 2011, Welsh Government passed the Rights of Children and Young Persons (Wales) Measure. [1]

2 Summary:

2.1 Part 5 of the Children and Families Bill relates to the reform of the Children’s Commissioner ( England ) and has the potential to address a key issue for children and young people in Wales .

2.2 On the grounds of broad mandate and clarity, the current legislative framework in relation to UK Children’s Commissioners is deficient and does not serve well the children and young people across the UK in particular situations

2.3 This submission seeks to inform Members of the current difficulties and suggests that addressing the inherent weaknesses of the status quo would not require an ‘opening up’ of the devolution settlement and needing to devolve more powers to Wales .

2.4 Section 1 of the submission deals with the issue of devolved and non-devolved matters, in particular the difficulty in determining whether a matter is within the remit of the CCfW or not.

2.5 Section 2 considers the definition of ‘children in England’ and the cross-border issues that arise, which are not clarified in the Children and Families Bill.

2.6 Section 3 looks at the inconsistencies between the protection offered to persons aged over 18 in Wales, depending upon whether those persons are being considered in relation to a devolved matter or a non-devolved matter.

2.7 An additional point worthy of attention from the outset is the issue of changing the title of the post. The need for change from the title of the ‘Children’s Commissioner’ has not been sufficiently addressed within the Bill despite numerous representations. The title should be amended to the ‘Children’s Commissioner for England ’. Not amending the title would perpetuate the confusion and misinformation caused to children and young people and the public at large.

3 Introduction and context:

3.1 The CCfW is looking to obtain the power to enable him to act on all matters which relate to or affect children in Wales .

3.2 We see no reason why the CCfW should not be given broad powers to deal with all matters relating to children in Wales. This would not necessarily involve devolving further legislative or executive powers to Wales. In fact it is difficult to understand why the CCfW’s functions need to be linked only to relevant devolved matters at all. The role of the CCfW is to serve the interests of children in Wales. This is separate from the issue of what legislative and executive powers are devolved to the National Assembly for Wales and Welsh Ministers.

 

3.3 The UK Commissioners made the following recommendation to the UN Committee on the Rights of the Child in 2008:

3.4 "The UK Government and devolved administrations should allow each of the Commissioners in the UK to exercise their functions with respect to the children in their own country, regardless of the subject matter. In this regard, the mandates of the Welsh and Northern Ireland Commissioner should be extended to cover all public authorities, including UK-wide public authorities." [1]

3.5 As part of the review, Professor Dunford recommended that:

"children’s commissioners should be responsible for the interests of children and young people who normally reside in their countries. If possible, this principle should be enshrined in law." [2]

3.6 The UK Government accepted the recommendation and stated that they understood "the difficulties that the current position presents for the Children’s Commissioners in the devolved administrations". [3]

3.7 The UK Government did seek to address the issue in the draft legislation but the suggested model of delegated power was opposed by all UK Children’s Commissioners.

3.8 The issue remains unresolved. It is important to stress that the advocating of the removal of provisions in relations to the other UK Commissioners in the original draft legislation was not an acceptance that the status quo is acceptable, rather that the proposal put forward by the UK Government was not acceptable.

3.9 The Welsh Affairs Committee was clear when it scrutinised the original legislations which established the Children’s Commissioner for England. The issues it raised in 2004 are relevant today. [4] The Committee recommended that "the Government include in any Bill to establish a Children’s Commissioner for England , Clauses to extend the powers of the Children’s Commissioner for Wales to cover all non-devolved areas of policy for children and young people in Wales ." [5]

4 Relevant devolved matters

4.1 The Children and Families Bill does not address a fundamental problem with the way that children’s rights are protected in Wales, namely that CCfW powers are linked and limited to certain matters only which reflect the responsibilities of Welsh Ministers and certain Welsh public bodies. This is an opportunity missed.

4.2 The way in which the CCfW’s functions are linked and limited to certain matters is complex. In brief, the CCfW’s authority is confined to:

§ reviewing the functions of the Welsh Ministers and certain Welsh public bodies specified in Schedule 2A to the Care Standards Act 2000 (section 72B of the 2000 Act);

§ reviewing and monitoring the arrangements which certain Welsh public bodies specified in Schedule 2B to the 2000 Act and providers of regulated children’s services in Wales have in place to do certain things (section 73 of the 2000 Act);

§ examining cases of particular children: (i) receiving regulated children’s services; (ii) receiving services from Schedule 2B bodies; or (iii) who are ordinarily resident in Wales and affected by any function of the Welsh Ministers or a Schedule 2A body (Regulation 5 of the Children’s Commissioner for Wales Regulations 2001 (the Regulations);

§ providing assistance in relation to proceedings concerned with a person specified in Schedule 2B (Regulation 10 of the Regulations).

(In the context of this note we shall call these "relevant devolved matters", and other matters "non-devolved matters".

4.3 Under section 78 of the 2000 Act, the CCfW’s functions only apply to a child:

§ who is ordinarily resident in Wales;

§ to, or in respect of whom services are provided in Wales by, or on behalf of or under arrangements with, a person mentioned in Schedule 2B;

§ to or in respect of whom regulated children’s services in Wales are provided.

4.4 Because the remit is so complex and detailed, this can cause confusion and uncertainty.

4.5 Example: the CCfW receives a complaint from a child in Wales relating to a broadcasting performance on television. It is widely assumed that broadcasting is a non-devolved matter and that the CCfW has no authority to act. However, under section 37 of the Children and Young Persons Act 1963, local authorities (including local authorities in Wales) have functions of granting licences for persons under 16 to take part in public performances. Therefore, if the child’s complaint related to such a licence the matter would be within the CCfW’s remit.

4.6 A further example can be seen in immigration, another field in which it is widely assumed that the CCfW has no authority to act. Under section 118 of the Immigration and Asylum Act 1999, housing authorities must ensure that tenancies of housing accommodation are not granted to persons (including children) subject to immigration controls unless those persons are of a class specified in an order made by the Secretary of State. However, in relation to Wales these powers have been exercised by the Welsh Ministers [1] . Therefore, the CCfW does have some authority to act in relation to immigration matters, also.

4.7 These are just two examples chosen at random to demonstrate how difficult it is for the CCfW and the Children’s Commissioner (CC) to decide who has authority to act in relation to children in Wales. It will not always be clear from the original complaint where the problem lies – and the children making such complaints should not be expected to provide answers. In some cases, both relevant devolved matters and non-devolved matters will be engaged. Ultimately, the CCW is likely to need regular legal advice on a case by case basis in order to decide whether he has authority to act or not.

4.8 We see no reason why the CCfW should not be given broad powers to deal with all matters relating to children in Wales. This would not necessarily involve devolving further legislative or executive powers to Wales. In fact it is difficult to understand why the CCfW’s functions need to be linked only to relevant devolved matters at all. The role of the CCfW is to serve the interests of children in Wales. This is separate from the issue of what legislative and executive powers are devolved to the National Assembly for Wales and Welsh Ministers.

4.9 Giving the CCfW authority to deal with all matters relating to Wales would provide a single point of contact for children in Wales and a single commissioner to deal with safeguarding and promoting their rights and welfare. This would allow the CCfW to be more effective in promoting children’s rights and raising awareness of his office, thus helping the UK Government achieve its aim ‘to make the UK the most child-friendly country in Europe’. [1]

4.10 As stated in the Dunford Report, ‘The issue of children’s rights is emotive and complex’. [1] The multi-layered arrangement in place as well as the proposed arrangement of delegation (see paragraph 4 below) cannot be as effective a way of dealing with such emotive and complex issues as giving the CCfW a remit which covers all aspects of children’s rights. The current arrangement is also inconsistent with the Paris Principles, in particular the importance of having clarity regarding the remit of institutions.

4.11 We would recommend that the CCfW be given authority to act in relation to all matters affecting children in Wales ("plenary remit"). Further consideration would then need to be given to any additional reporting arrangements that may be required if the CCfW did have authority to act in non-devolved matters, though the CCfW already has some duties to send reports to the Houses of Parliament. [1]

4.12 This presents an ideal opportunity to implement the recommendations of the Dunford Report which states that ‘…the commissioners for devolved administrations should have a comparable remit for children and young people who are residents of their countries, including non-devolved issues [1]

5 Children in England

5.1 The CC has functions relating to ‘children in England’. There is no definition of ‘children in England’ but there is a conundrum as to whether, and to what extent, it can include children already within the remit of the CCfW. [1] Logic suggests that a child could not be both a child in England and a child within the CCfW’s remit, but that is not clear cut. For example, if a child living in England is receiving services from a Schedule 2B [2] body (which by definition is a Welsh public body) then the legislation empowering the CCfW applies to that child. Is that child also to be regarded as a child in England? Similarly, is a child who resides in Wales, goes to school in Wales and who goes on a school trip to England a child in England to the extent that the child is receiving services from the school? If the child receives services from a non-Schedule 2B body while in England, then the child will be a child in England. So if something happens on the school trip which means that the child needs medical treatment in England, the child may be at the same time within the remit of both the CC and the CCfW.

5.2 There are other examples of potential confusion and regardless of whether there is a move to a plenary remit, such cross-border issues should be clarified. One way of doing this would be to include a simple definition of children in England, and that definition should not encroach upon children to the extent that they are within the remit of the CCfW. Even this, however, would not fully deal with the asymmetry inherent in the current system.

6 Persons aged 18 – 25

6.1 There are questions regarding inconsistency of definitions and the differing remit of the Commissioners in England and Wales in relation to those over the age of 18. This has the potential to cause yet another layer of uncertainty and could directly affects the outcome for persons over 18 in Wales.

6.2 We can envisage, for instance confusion as to whether or not the rights of a Welsh 18 year old with a learning disability may or may not be promoted / protected / safeguarded by either commissioner if the matter relates to a relevant devolved matter. This inconsistency should be addressed.

7 Conclusion

7.1 The current legislative regime governing the CCfW makes it very difficult for the CCfW to operate in a smooth and effective manner.

7.2 Giving the CCfW authority to deal with all matters, devolved or otherwise, that relate to children in Wales would remove that uncertainty and allow the CCW to safeguard and promote the rights and welfare of children in Wales in an effective manner.

April 2013


[1] Section 72A Care Standards Act 2000

[2] Regulation 22 Children’s Commissioner for Wales Regulations 2001

[3] Section 75A (1) Care Standards Act 2000

[1] http://www.assemblywales.org/bus-home/bus-legislation/bus-leg-measures/business-legislationmeasuresrightsofchildren. htm

[1] https://www.childcomwales.org.uk/uploads/publications/61.pdf

[2] https://www.education.gov.uk/publications/standard/publicationdetail/page1/CM%207981

[3] http://media.education.gov.uk/assets/files/pdf/w/office%20of%20the%20childrens%20commissioner%20%20%20written%20ministerial%20statement.pdf

[4] http://www.publications.p a rliament.uk/pa/cm200304/cmselect/cmwelaf/538/538.pdf

[5] ibid

[1] Persons Subject to Immigration Control (Housing Authority Accommodation) (Wales) Order 2000

[1] Foreword to the Draft Legislation

[1] Dunford Report, page 22.

[1] See Regulations 13 and 15 of the Regulations

[1] Dunford Report, page 42

[1] As defined in section 78 of the 2000 Act

[2] A Schedule 2B body under the 2000 Act

Prepared 26th April 2013