3. Memorandum from the Family Education
Trust
For the past 30 years, Family Education Trust
has been conducting research into the causes and consequences
of family breakdown. By means of its publications, videos and
conferences, and through its media profile, the Trust seeks to
stimulate informed public debate on matters affecting the family,
based on reputable research findings.
As an independent research organisation, Family
Education Trust does not receive government funding and is financed
entirely by members' subscriptions and donations. It has no religious
or political affiliations.
In making this submission to the Joint Committee
on Human Rights, we are responding both to the concluding observations
of the United Nations Committee on the Rights of the Child in
response to the UK's second report and to the current inquiry
into whether there is a need for a Children's Commissioner in
England.
We are not persuaded that there is a need for
a Commissioner for Children in England. The assertion is frequently
made that Children need "a champion—a strong independent
voice to promote and protect their rights and to represent their
interests". In view of the appointment of a Children's Commissioner
in Wales, the publication of the Commissioner for Children and
Young People Bill in Scotland, and moves towards creating a similar
office in Northern Ireland, it is claimed that "England's
11.3 million Children are at risk of being left behind and let
down".[23]
Having followed the debates within both the
Northern Ireland Assembly and the Scottish Parliament, and studied
the oral and written evidence presented to the Joint Committee
on Human Rights in England, we are of the opinion that the "need"
is assumed rather than demonstrated. In all the submissions and
discussions we have read, there is a striking lack of evidence
for the claim that all Children need to have special mechanisms
to represent their interests.
Certainly some lobbyists have sought to present
a case in favour of establishing special mechanisms for Children,
but whether they have established a "need" is open to
debate. Peter Newell, who serves as co-ordinator of EPOCH (End
Physical Punishment of Children) and of the Children are Unbeatable
alliance, and as chairman of the Children's Rights Alliance for
England, has been particularly active in campaigning for a Children's
Commissioner. In 1991 he co-authored a pamphlet on the issue which
was published by the Calouste Gulbenkian Foundation (a revised
edition subsequently appeared in 2000). Since then he has been
involved in several "Commissions" which have recommended
the establishment of a Children's Commissioner, including the
Gulbenkian Foundation's Inquiry into Effective Government Structures
for Children. It is also worthy of note that each of three Private
Member's Bills to establish a Children's Rights Commissioner in
England, has been presented to Parliament by Hilton Dawson MP,
who in the 2001 debate acknowledged that the bill had been written
by Peter Newell.[24]
Mr Newell has constructed an argument and has
succeeded in persuading a number of prominent figures in the Childcare
industry to support his campaign, who have, in turn, managed to
attract the support of dozens of smaller groups. However, the
case itself is by no means proven.
In recent years, several international bodies
have backed the call for a Children's Commissioner. For example,
the LTN Committee on the Rights of the Child has commended the
establishment of such an office in various countries, and the
Council of Europe in its European Strategy for Children has proposed
the appointment of a Commissioner or ombudsman for Children.
In order to keep things in perspective, it should
be borne in mind that the UN Committee on the Rights of the Child
consists of just ten individuals drawn from states around the
world and has recently been criticised for adopting radical interpretations
of the UN Convention on the Rights of the Child in its pursuit
of an agenda contrary to traditional moral and social norms regarding
the family, marriage, motherhood and religion.[25]
Similar comments could be made about the Parliamentary Assembly
in the Council of Europe, and it is significant that while this
body issued a recommendation in favour of a Children's Commissioner
as long ago as 1996, the Committee of Ministers in the Council
of Europe has not taken it up. Then, with regard to the interest
of Children's organisations in this issue, given that almost without
exception they are in receipt of public funds, the possibility
should at least be considered that they may have a vested interest
in pursuing the Children's rights agenda in view of the vast additional
resources that would be required to fulfil its objectives.
Parents tend not to feature very prominently
in the thinking and public pronouncements of those demanding a
Children's Commissioner, and yet it is parents who spend more
time with their Children than anyone else, who care for them,
know their needs and show a daily practical interest in their
lives. When it is noted that, by and large, parents are not in
the vanguard of the campaign for a Children's Commissioner, it
becomes evident that support for the establishment of such an
office is by no means so widespread as it may at first appear.
We believe there are a number of reasons why
the establishment of a Children's Commissioner would not serve
the best interests of Children:
1. IT WOULD
UNDERMINE PARENTS
Parents are almost always the best people to
look after their children and most children in England live in
a family with one or both parents and other family members. The
family is the main place where children's needs are met.
However, the implication of those calling for
a Children's Commissioner appears to be that children need some
form of external enforcement mechanism to safeguard their rights.
It is assumed that because children cannot vote, have limited
social and economic power, are vulnerable, less likely to have
access to independent advice and advocacy, and are subject to
certain unique restrictions, that their voice often goes unheard.
However, in the vast majority of cases, children have parents
who are well able to represent their interests, and we find it
disturbing that the assumption is being made that a Commissioner
would fulfil this advocacy role more adequately than parents.
The argument that children need independent
statutory representation appears to rest on the false assumption
that parents and children have widely different interests. Some
organisations which claim to have the welfare of children at heart
are increasingly pursuing policies which lead to the removal of
children from the protective influence and authority of their
parents. This raises serious questions about the extent to which
they are acting in the best interests of those they claim to represent.
Meanwhile, at grassroots, parents are continuing
to protect, guide, care and provide for their children. They are
the unsung heroes, hidden from the public eye, but available to
their children 24 hours a day, seven days a week during their
most vulnerable and formative years. The overwhelming majority
of parents do far more to promote and protect the rights and interests
of their children than any statutory office will ever do. Most
children do not need a "champion" at all because they
already have one; indeed, many children have two champions, more
commonly known as a father and a mother. They live with them,
they are known personally to them, they are related to them, and
they are loved and cared for by them. Parents are far better placed
and equipped to represent the interests of their children than
any impersonal bureaucratic machine.
One strand in the case for a Children's Commissioner
is that children have participation rights and that a Commissioner
will empower them to take part in the democratic process. In his
oral evidence before the Joint Committee on Human Rights, Michael
Leadbetter, president of the Association of Directors of Social
Services, referred to "a legacy of `children must be seen
and not heard'" and expressed the view that the appointment
of a "powerful" Children's Rights Commissioner, "with
access to children" and "able to change guidance or
legislation" was a priority if the whole culture were to
be changed to one where children were both seen and heard.[26]
As far as we are aware, however, no one is denying that children
are capable of making rational decisions and should be encouraged
to develop their decision-making skills, but we would submit that
it is better that they should do so under the loving guidance
and protection of their parents rather than by order of an impersonal
state-funded office.
When considering the remit of the commissioner,
parents are again frequently by-passed. For example, the consultation
paper issued by the Northern Ireland Executive in 2001 contained
the following paragraph:
We recognise that as potential users and recipients
of the services of the Office of a Children's Commissioner, children
and young people are in effect the experts in respect of what
functions, role and powers a Commissioner should have. They are
the experts at being young and, most importantly, they can offer
solutions that adults would not necessarily think of.[27]
Similar sentiments overlooking the accumulated
wisdom of parents, gained over many years, have been expressed
in evidence submitted to the Joint Human Rights Committee during
its current inquiry. It has apparently forgotten that parents
have been young themselves and are in fact more "expert at
being young" than their children, not only because they have
had longer experience of youth than their children, but they also
have the benefit of hindsight and can look back and see situations
in a more objective light than they did at the time.
The claim is sometimes heard that children need
a Commissioner because they are a minority group who do not have
a vote, a union or a complaints system to make their voices heard
in the way that adults do. However, this is to overlook the fact
that children have parents who are well qualified to represent
the interests of their children. To suggest that they need a Commissioner
to speak up for them is an insult to parents. The family unit
is a far better context in which the majority of children will
be able to address any complaints and grievances than any union
or impersonal mechanism.
2. IT WOULD
THREATEN THE
AUTONOMY OF
THE FAMILY
UNIT
The suggestion is frequently made that in the
event of any conflict between the rights of children and the rights
of adults, the Commissioner would be obliged to give priority
to the rights of the child. This was clearly stated, for example,
in the Northern Ireland consultation document:
Where there is a conflict between the rights
of children and the rights of adults, the Commissioner could be
required to give priority to the rights of the child.[28]
On the reasonable assumption that parents are
included in the term "adults", this has far-reaching
implications for the autonomy of the family unit.
Family relationships are very personal and individual
matters, and each family is shaped and influenced by certain social,
cultural, religious and philosophical factors which are not common
to every other family. Values and standards will therefore differ
from family to family and this will be reflected in the way children
are brought up. We are therefore very wary of any approach which
could lead to an official body intervening in the family and siding
with the child against his or her parents in the name of "children's
rights".
As Charles Colson has put it:
[We should be] very cautious of recommendations
decreasing the role of parents and increasing the role of the
state in family life . . . Children's rights theory claims to
promote the welfare of children. But in reality it throws children
into the arms of state professionals—who may be filled with
big ideas but empty of the bonds of family love.[29]
In The Fight for the Family, Lynette
Burrows writes:
State intervention into family life is feared
and loathed by most children more than anything. They are more
troubled by the state interfering than they are reassured by the
protection offered. Children do not want rights, they want love
and protection and . . . the majority of them do not want social
workers or anyone else coming into their families and telling
their parents they are not behaving properly.[30]
We are concerned at the lack of attention devoted
to the family unit in discussions about a Children's Commissioner.
The emphasis on children as citizens of the state is so great
that there is a danger of forgetting that children are first and
foremost members of a family. It is not the role of the state,
but rather the responsibility of parents to enable children to
enjoy a happy, safe and secure childhood.
3. IT WOULD
THREATEN THE
UNIQUE CHARACTER
OF CHILDHOOD
While no one denies that "children are
people too", we are concerned that there are many in the
children's rights movement who seem to regard children as essentially
the same as adults. While children are people, they are not adult
people; they are not fully grown and fully-developed and mature.
They are dependent on their parents, not only for the provision
of their physical needs, but also for their moral training and
development. They therefore need the protection that their parents
are able to give.
There is a great danger in children's rights
philosophy that adults who have no family bonds and no long-term
personal commitment to a child may gain access to children without
the knowledge and consent of their parents. In this context there
is considerable risk of exploitation. We would consider the availability
of contraceptive advice and supplies to children and young people
under the age of consent and the pressure to override the wishes
of parents on the kind of sex education their children receive
at school as examples of this. It is precisely because children
are vulnerable to manipulation, ill-treatment or abuse by those
more powerful than themselves that they need the protection of
their parents.
In this connection, we were concerned to read
the oral evidence of the President of the Royal College of Pediatrics
and Child Health, Professor David Hall, in response to a question
about the provision of contraception to a 12-year-old girl involved
in a sexual relationship with a 22-year-old man. The questioner
explained:
The parents are livid and want the full force
of the law brought to bear on that situation. The child herself
appears to be consenting and maintaining the position that she
is capable of making her own decisions and the law of course says
that that relationship, if it is taking place, is statutory rape
which has a sentence of life imprisonment as a maximum. If the
child in that situation wants contraceptive advice and contraception,
how do you we deal with that terribly difficult situation?
Professor Hall responded:
The advice that GPs receive . . . would be that
as far as the young person herself is concerned you would have
to make a judgment as her doctor about the right course of action.
If your judgment was that she was making a mature and considered
decision in coming to consult you and was asking for contraceptive
advice, I think most doctors would provide that advice and treat
that in confidence. If their judgment was that this girl was being
manipulated and used then the terms used include "some secrets
are too big to keep". That might be the sort of language
you would use to someone you treat as a child. In the case you
describe I suspect most people would feel that as far as their
behaviour as a doctor was concerned, they would probably give
her the advice that she was requesting because they would consider
her very competent by the very act of having come to seek advice
on contraception and they would consider that was how she was
behaving. They would probably then ring their Medical Defence
Union and say, "Help, have I done the right thing?"
I think that is probably what most of them would do.[31]
In the name of "the rights of the child",
Professor Hall felt that the medical profession would generally
be prepared, in such circumstances, to set aside the protective
provisions of the legal age of consent to sexual intercourse and
the protective instincts of the child's parents. If Professor
Hall is correct in his assessment of current GP practice, it is
to be feared we have moved a long way from the judgment of the
law lords in Gillick v West Norfolk and Wisbech Area
Health Authority, when Lord Fraser ruled:
Nobody doubts, certainly I do not doubt, that
in the overwhelming majority of cases the best judges of a child's
welfare are his or her parents. Nor do I doubt that any important
medical treatment of a child under 16 would normally only be carried
out with the parents' approval. That is why it would and should
be most unusual for a doctor to advise a child without the knowledge
and consent of parents on contraceptive matters.[32]
We are concerned that the appointment of a children's
commissioner would exacerbate the tendency to promote the "sexual
rights" of the child to the detriment of parental authority.
This is certainly the direction in which children's rights campaigners
would like to see things move, and the United Nations Committee
on the Rights of the Child has indicated its support for such
a move. In its concluding observations on the United Kingdom,
published in October 2002, the Committee expressed concern that:
homosexual and transsexual young people do not
have access to the appropriate information, support and necessary
protection to enable them to live their sexual orientation.
The Committee recommended measures:
to reduce the rate of teenage pregnancies through,
inter alia, making health education part of the school
curricula, ensuring the inclusion of sex education to all
children and the availability of free protection measures; and
improving access to confidential and adolescent-sensitive advice
and information and other appropriate support (as recommended
by the independent Advisory Group on Teenage Pregnancy).
It further called on the Government to repeal
Section 28 of the Local Government Act 1986.[33]
Quite apart from the fact that the Committee
on the Rights of the Child has strayed considerably from the plain
meaning of the Convention in making these recommendations, it
shows scant regard for the moral and religious views of parents
on issues affecting their children's sex education and sexual
expression. The Committee has also accepted without question the
received wisdom on reducing the teenage pregnancy rate in the
United Kingdom. We are sending with this submission two of our
most recent reports which call into question the Govermnent's
teenage pregnancy strategy.[34]
Listening to children and giving full attention
to their feelings and concerns is by no means incompatible with
parents taking full responsibility for the way their children
are brought up. Neither is the recognition that parents must sometimes
make decisions on behalf of their children incompatible with a
recognition that children are often capable of making rational
decisions and should be encouraged to develop their decision-making
skills. Children develop at different rates and no two children
face exactly the same decisions. It is therefore not possible
to dictate at what age a child should be able to decide X or Y.
It is part of the responsibility of parents to allow their children
to make decisions under their own guidance and protection. This
is therefore a matter for parental discretion and not one where
the state or any Commissioner should dictate at what age a child
should be able to make certain decisions for himself or herself.
4. THERE ARE
GROUNDS TO
FEAR THAT
THE OFFICE
WOULD BE
USED AS
A VEHICLE
TO ADVANCE
A CAREFULLY-DEFINED
"CHILDREN'S
RIGHTS" AGENDA
One of the primary objectives in view in the
proposal for a Children's Commissioner is the promotion of "a
culture of children's rights" in which children will be more
aware of their rights.
However, we are not convinced that the creation
of a "rights culture" will serve the best interests
of children and families. "Rights-talk" invariably fosters
a feeling of "them" and "us" and, rather than
building bridges, has the effect of driving people further apart.
With particular reference to "children's rights", there
is a danger that the "generation gap" will grow even
larger than it is currently perceived to be. Certainly within
the home, any talk of "rights" will always lead to a
spirit of conflict between parents and children which will damage
relationships within the family. This is the case whether we are
thinking of "parent's rights" or "children's rights".
We believe the focus should rather be on the family as a whole,
and the responsibilities of parents towards their children and
children towards their parents.
Lynette Burrows argues that the "rights"
which are frequently claimed for children are little more than
the "desires" of some adults to exercise more power
over people's private lives:
The assertion of children's rights in their current
form is both bogus and inconsistent. They do not, for example,
propose to raise children to the level of adults where they would
be named, prosecuted and punished for violent and disorderly behaviour.
Neither are they proposing that children be allowed to choose
if they drink, smoke or attend school . . . In other words, we
are not talking about genuine children's rights at all. We are
talking about the right of some adults—and certainly not
ordinary parents—to decide what children shall and shall
not be allowed to do. Children themselves are just the means by
which they achieve their aims. Their effect, if not intentions,
is to reduce us all to the level of dependent children, waiting
to be told by Nanny State what rights we have left with which
to control our own lives and make decisions for the welfare of
our families.[35]
It is a matter of some concern that an agenda
of this sort has been pursued in other countries which have appointed
a Children's Commissioner or ombudsman. While direct intervention
in individual family homes generally falls outside the remit of
the office, in many cases the Children's Commissioner does have
the power to initiate legislation on children's issues which have
a direct bearing on family life. For example, in Norway the children's
ombudsman contributed to legislation prohibiting all forms of
physical punishment of children. In view of the fact that the
ombudsman used his influence to undermine parents and remove from
them the choice of how they reasonably discipline their children,
we derive little comfort from the assurance given in the Northern
Ireland consultation paper that: "The Ombudsman cannot consider
individual conflicts between a child and his or her guardian,
nor can he or she deal with the exercise of parental responsibility."[36]
In this connection we are also concerned that in his very first
annual report, the children's commissioner for Wales has declared
his own strong support for "the campaign to remove the defence
of reasonable chastisement from UK law" and committed his
office to continue campaigning to that end.[37]
There is no doubt that many of the individuals
and groups who support the appointment of a Children's Commissioner
see it as a vehicle to pursue a radical agenda which would see
a transference of authority and responsibility for children's
upbringing away from parents to the state.
5. THE REMIT
AND POWERS
OF A
CHILDREN'S
COMMISSIONER ARE
LIKELY TO
GROW INCREASINGLY
INTRUSIVE
We note that in Wales, for example, the first
Children's Commissioner took up his position in March 2001, with
responsibility towards children in the care system. However, immediately
after his appointment was announced, the UK government introduced
the Children's Commissioner for Wales Bill, extending the remit
and introducing new functions, giving the Commissioner powers
to "consider and make representations to the Assembly about
any matter affecting the rights or welfare of children in Wales",
whether in the care system or not.[38]
In his oral evidence before the Joint Committee
on Human Rights, Peter Newell of the Children's Rights Alliance
of England stated that while he welcomed the appointment of the
Children's Commissioner in Wales, he wanted to see the Commissioner's
powers further extended so that he would be able to investigate
and report freely on anything that affects children's rights,
including proceedings before the courts, and be empowered to have
legal powers to pursue those rights where necessary.[39]
Even more ominous were Mr Newell's remarks in
response to the question of whether a children's Commission could
concern itself with what happens to children in the privacy of
their families. He commented:
Clearly the Commissioner has to include within
their scope the realisation and recognition of children's rights
within the family. Human rights do not stop at the door of the
family home any more than they stop at the school gates. Whether
the Commissioner should have a right of access to the family home,
that seems to me something that within this country we are not
ready for and if we advocate it at this point it would probably
delay us having a Children's Commissioner for many more years.
I think it is absolutely clear that the Commissioner should have
a right of immediate access to anywhere where children are being
looked after by the state or by private bodies, so I would certainly
include foster care, including private foster care, in that. At
the moment my view is that it would be unhelpful to advocate a
direct right of access for the Commissioner to the family home.[40]
While Mr Newell regards it as impolitic to press
for a Commissioner with access to the family home "at this
point", that is certainly the goal on which he has set his
sights. As the children's rights agenda unfolds, little by little,
the authority and responsibilities of parents will be whittled
away and transferred to an unelected and unaccountable statutory
office with the power to impose a whole philosophy and pattern
of child-rearing on every home in the land.
CONCLUSION
We live in an age where children and childhood
are very easily sentimentalised. It is relatively easy to gain
support for any cause which claims to "do more for children".
Promises of more funding for children's health and education will
always be vote-winners, for example. Likewise, if the Government
announces that it is going to set up an office to reduce child
abuse, eliminate bullying, and give children a better start in
life, few will rise up to oppose it.
However, as we have attempted to show in this
submission, we fear that the creation of a Children's Commissioner
is undesirable because it:
— undermines the role and responsibilities
of parents, fails to respect the autonomy of the family unit;
— fails to recognise the unique character
of childhood;
— would undoubtedly be used as a vehicle
to advance a radical "children's rights" agenda; and
— the remit and powers of a Children's
Commissioner are likely to grow increasingly intrusive.
We would urge that in any consideration of issues
affecting children, that:
(a) due respect should be paid to the views
of parents as those who have the primary responsibility for the
care and nurture of their children, taking care to avoid the imposition
of any particular parenting philosophy and style;
(b) children should be viewed first and foremost
as members of a family, rather than independent citizens of the
state. We are concerned by the growing tendency amount public
policy-makers to divorce children from their parents in their
thinking.
Children are people with individual needs which
are most effectively met in a personal way within the family.
They should therefore not be viewed as subjects of the state in
isolation from the family. They need parents to guide, direct
and protect them. It is when society begins to lose sight of the
importance of parents and the family unit that children are at
risk of being treated as objects.
We therefore conclude that children do not need
a Commissioner. What they need more than anything else is a mother,
father and a loving home. If the Government is concerned about
promoting the best interests of children, the most positive thing
it can do is to promote stable family life, based on marriage,
and encourage children to value and respect their parents.
18 March 2003
23 The Case for a Children's Rights Commissioner
for England, Children's Rights Alliance for England, March
2003. Back
24
HC Deb (2000-01) 363, col 606. Back
25
Fagan, Patrick F, How UN Conventions on Women's and Children's
Rights Undermine Family, Religion and Sovereignty. Washington:
The Heritage Foundation, February 2001. Back
26
Joint Committee on Human Rights, Twenty-second Report of Session
2001-02, The Case for a Human Rights Commission: Interim Report,
EV23, 24. Back
27
Office of the First Minister and Deputy First Minister, Protecting
our Children's Rights: A Consultation Paper on A Commissioner
for Children for Northern Ireland, Belfast 2001, para 7.1.4. Back
28
ibid, para 3.4.3. Back
29
Charles Colson, A Dance with Deception, Word, 1993, p
79. Back
30
Lynette Burrows, The Fight for the Family, Oxford: Family
Education Trust, 1999, p 54. Back
31
Joint Committee on Human Rights, Twenty-second Report of Session
2001-02, The Case for a Human Rights Commission: Interim Report,
EV60. Back
32
Gillick v West Norfolk and Wisbech Area Health Authority
and another [1985] 3 All ER 402. Back
33
UN Committee on the Rights of the Child, Concluding Observations
of the Committee on the Rights of the Child: United Kingdom of
Great Britain and Northern Ireland, 4 October 2002, (CRC/C/15/Add.188.). Back
34
Why the Government's Teenage Pregnancy Strategy is destined
to fail, London: Family Education Trust, 2002. van Loon, J,
Deconstructing the Dutch Utopia: Sex education and teenage
pregnancy in the Netherlands, London: Family Education Trust,
2003. Back
35
ibid, p 174. Back
36
Office of the First Minister and Deputy First Minister, Protecting
our Children's Rights: A Consultation Paper on A Commissioner
for Children for Northern Ireland, Belfast 200 1, paras 6.3.3;
6.3.9. Back
37
Children's Commissioner for Wales, Report & Accounts 2001-2002,
p 20. Back
38
ibid p 3. Back
39
Joint Committee on Human Rights, Twenty-second Report of Session
2001-02, The Case for a Human Rights Commission: Interim Report. Back
40
ibid. Back
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