Appendix 1: Children Bill
1a. Letter from the Chair to Rt Hon Margaret
Hodge MP, Minister of State for Children, Young People and Families,
DfES
The Joint Committee on Human Rights is considering
how to report to each House on the Children Bill. Our starting-point
is of course the statement made under s.19(1)(a) of the Human
Rights Act 1998; but the Committee's remit extends to human rights
in a broad sense including, in particular in this case, the UN
Convention on the Rights of the Child ("the CRC"). In
light of the Committee's extensive work on that Convention and
related matters, it has decided in the case of this Bill to go
beyond its usual scrutiny of compliance questions and, in addition,
to consider the Bill in light of its earlier reports.[111]
In particular, it has decided to examine carefully the proposed
powers and functions of the Children's Commissioner, and the extent
to which the Bill gives effect to the UN Convention on the Rights
of the Child in UK law. It has now carried out an initial examination
of this Bill and would be grateful for your comments on the following
points.
PART 1 AND
SCHEDULE 1:THE
CHILDREN'S
COMMISSIONER
The provisions of Part 1 and Schedule 1 raise a number
of issues concerning the compatibility of the office which is
being created with the UK's obligations under the CRC.
(a) Use of the CRC as a framework
As currently framed, the scheme of Part 1 of the
Bill gives the CRC to the status of a permissible relevant consideration:
something to which, under clause 2(7), the Commissioner "may
have regard" in considering what constitutes the interests
of children. The CRC is only to "form the backdrop of the
Commissioner's work if he considers it appropriate"
(emphasis added).[112]
The Government prefers the new Commissioner to work
within a framework constituted by the five aspects of children's
well-being set out in clause 2(3)(a)-(e), which are the five outcomes
identified by children as being most important to them during
the consultation carried out on the Green Paper Every Child
Matters.[113]
In its Concluding Observations on the UK in October
2002, the UN Committee on the Rights of the Child expressed its
concern that the CRC had not been recognised as the appropriate
framework for the development of strategies at all levels of government
throughout the UK.[114]
In its Tenth Report, The UN Convention on the
Rights of the Child, the Committee stated its belief that
children will be better protected by incorporation of at least
some of the rights, principles and provisions of the CRC into
UK law.[115]
The evidence to us of all three children's commissioners
for the devolved jurisdictions of the UK was that using a rights
framework was crucial to the effectiveness of their work.[116]
The Commissioners' evidence also showed that the commonly held
fear about a rights framework, that it leads to a conflictual,
adversarial approach to the protection of children, which is not
always in their best interests, has in practice proved misplaced.[117]
On the first day of the Bill's Committee stage in
the Lords, the Government agreed to amend the Bill so that the
Commissioner "must" rather than "may" have
regard to the CRC.[118]
However, we remain concerned that the CRC will be fitted into
the framework constituted by the five identified outcomes, rather
than the other way round.
Question 1. In light
of the above, and in particular the important evidence of the
existing Commissioners speaking with the benefit of their practical
experience, why was the CRC not adopted from the outset as the
framework for the Children's Commissioner?
Question 2. What is the
outcome of the Government's reconsideration of that decision?
In particular, how will the outcomes listed in clause 2(3) relate
to the proposed duty to have regard to the CRC?
(b) Terms of the Commissioner's Mandate
The Committee is concerned that the Commissioner's
mandate falls short of the Government's obligations under the
CRC to establish independent national human rights institutions
to promote and monitor the implementation of children's rights.[119]
The functions of the Commissioner, in clause 2 of
the Bill, are expressed in very qualified terms. A general function
of "promoting awareness of the views and interests of children
in the UK" and of "encouraging", "advising"
and "considering or researching" appears much weaker
than a duty to promote, protect and monitor children's rights,
or to seek to ensure that legislation and the practice of public
authorities are CRC-compliant. The view of the existing Commissioners
was that the terms defining the new Commissioner's mandate were
too hedged about in contrast to the more straightforward duties
placed on the other Commissioners.[120]
The Committee is concerned that the Bill concentrates on the procedural
aspects—that is, promoting the views and interests of children
as something to be taken into account in the policy process at
the expense of a clearer championship role, as envisaged in our
report last year.[121]
Question 3. Why is the
Commissioner not placed under a duty to promote and safeguard
the rights and interests of children and young people?
Question 4. Why is the
Commissioner not placed under a duty to keep under review existing
law, policy and practice to ensure compliance with the CRC?
(c) The Commissioner's powers
The Committee is concerned that the Commissioner's
powers are insufficient and that the Commissioner also falls short
of the CRC requirements in its lack of independence from the Secretary
of State. The most significant omissions to which the existing
Commissioners drew attention in their evidence were:
- no power to review
law, policy or practice for CRC compatibility
- no power to conduct
investigations on its own initiative
- no power to require
information to be provided, other than as part of an inquiry directed
by the Secretary of State under clause 4(7)
- no power to consider
individual complaints even if satisfied that the case raises a
question of principle or policy affecting a large number of children
or is otherwise a matter of public importance
- no power to intervene
in litigation
- no power to make
recommendations
- no power to publish
reports other than through the Secretary of State.
Question 5. What is the
justification for not giving the Commissioner each of the above
powers?
PART 2: CHILDREN'S
SERVICES
Part 2 of the Bill makes provision for the better
integration, planning, commissioning and delivery of children's
services. Although this is not mentioned in the relevant part
of the Explanatory Notes, this part of the Bill engages the important
positive obligations owed to children under Articles 2, 3 and
8 ECHR, to take positive steps to protect their lives, to protect
them from inhuman and degrading treatment, and to protect their
physical integrity. It is clear that the lack of inter-agency
co-operation and proper co-ordination of the various agencies
with functions concerning children has been responsible for some
serious cases in which the State has failed to protect children
from risks to their lives or physical integrity.[122]
The human rights question raised by Part 2 of the
Bill is whether the duties imposed by those provisions are sufficient
to prevent that future breaches of the UK's positive obligations
under Articles 2 and 3. The Committee is concerned that the way
in which the duties in Part 2 are framed suffers from the same
weakness as the provisions in Part 1: in particular there is no
express direct duty on children's services authorities and other
key agencies to promote and safeguard the welfare of children,
as required by the CRC. For example, the duty to co-operate in
clause 6(4) is only a duty to co-operate in the making
of arrangements, not a duty to co-operate in the carrying out
of those arrangements once made. The wording of the duty in clause
7(1) is not phrased as a primary duty to ensure that authorities
discharge their functions in a way which safeguards and promotes
the welfare of children, and a secondary duty to make arrangements
for facilitating the performance of this duty.
Question 7. In the light
of these considerations, what is the justification for the wording
of the duties in clauses 6 and 7?
Clause 7(2)(b) of the Bill does not impose the duty
(to make arrangements etc.) directly on the contractor. This would
avoid the problem of relying on authorities to make provision
to ensure the performance of the underlying duty in their contracts
with third parties.[123]
Question 8. What is the
justification for not imposing the duty in clause 7(2)(b) of the
Bill directly on the contractor?
Finally in relation to Part 2, the list of "partners"
in clause 6(3) and the lists in clause 7(1) and 9(3) omit any
organisations working with the children of refugees and asylum
seekers. It appears from the Minister's speech at Second Reading
in the Lords that this is a deliberate omission, and that the
Government is relying on its reservation to the CRC, which we
have criticized on a number of occasions. However, the omission
of this particular group of children from the institutional arrangements
designed to fulfil the State's positive obligations to children
under Articles 2, 3 and 8 gives rise to the question of whether
this gives rise to unjustifiable discrimination in the enjoyment
of Convention rights. The recent criticism in the report of the
inquiry into the death of Toni-Ann Byfield, criticising the lack
of co-ordination between immigration agencies and other authorities
is relevant in this context.
Question 9. What is the
justification for excluding the children of refugees/asylum seekers
from the scope of the arrangements envisaged in Part 2 of the
Bill?
Question 10. Will consideration
be given to including NASS and the Immigration Service in those
lists, to ensure that children in immigration detention centres
are covered, and also those dealt with at port of entry?
CLAUSES 8 AND
23: INFORMATION SHARING
It is an important part of the State's positive obligation
to secure Convention rights to all those within its jurisdiction
that its laws facilitate the sharing of information about individuals
to the extent that this is necessary to protect their Convention
rights (including where necessary against interference by other
individuals). It is well established in the case-law of the Convention
that children are in a vulnerable position and that the authorities
are therefore under a duty to protect them against risks to their
life and against exposure to cruel, inhuman or degrading treatment.
A positive obligation to take preventive operational measures
to avert such risks will arise in circumstances where the authorities
knew or ought to have known of the existence of such real
and immediate risks to the child. States are therefore at risk
of being found to be in breach of their positive obligations to
protect children where the relevant authorities ought to have
known of the risks to the child and failed to take the necessary
measures which might reasonably have been expected to avert that
risk.
It follows that the positive obligations on the State
to take active steps to protect the lives of children under Article
2 ECHR, and to protect them from inhuman and degrading treatment
under Article 3 or serious risks to their physical integrity under
Article 8,[124]
referred to above, may require, in certain circumstances, the
sharing of information about the child, to the extent that it
is necessary to provide the requisite protection for the rights
at stake. Some provision in national law for information
sharing concerning children and young people is therefore required
by the positive obligations imposed by human rights law.
However, there is an important countervailing privacy
interest at stake: the sharing of any personal information is
an interference with Article 8 ECHR which requires justification.[125]
Children prima facie enjoy the benefit of the protection
in Article 8, even though obviously the younger or more vulnerable
the child the weightier is likely to be the justification for
any interference with that right under Article 8(2). But the less
vulnerable the child, and in particular the more mature they are,
the more is likely to be required by way of justification for
the interference.
The Explanatory Notes acknowledge that the creation
of databases containing personal details of all children may constitute
an interference with Article 8 rights, but asserts that the interference
is proportionate and justified under Article 8(2).[126]
No reasoning is offered to elaborate on this single sentence assertion
that the interference with Article 8 is proportionate. It is,
therefore, impossible for the Committee to make any judgment about
the proportionality of what will undoubtedly constitute an interference
with Article 8 rights in the absence of more detail about what
is proposed. Given the breadth of the authority it proposes to
confer on the Secretary of State to interfere with Article 8 rights,
the lack of any indication of the provision which will be made
in relation to a large number of crucial questions is problematic.
These questions include:
- What precisely
is the purpose of keeping the information in the proposed databases?
- Whose personal
information will be able to be included on the database?
- What kind of
information will be included on the database?
- What is included
in "information as to services provided to" a child
in clause 8(5)(a)? Is this confined to specialist services provided
to particularly vulnerable children, such as special educational
need provision or psychiatric intervention, or does it include
ordinary services such as health and education?
- What is meant
by the broad phrase "information as to activities carried
out in relation to" a child in clause 8(5)(a)?
- What is meant
by "any cause for concern" in relation to a child in
clause 8(5)(b)?
- How is it proposed
to confine the recording of a cause for concern to the mere existence
of such a cause for concern rather than its nature?
- In what circumstances
may or must information be disclosed to those compiling the database?
What will be the criteria determining when such disclosure is
permitted or required?
- In what circumstances
may or must information on the database be disclosed onwards?
What will be the criteria?
- To whom will
such disclosure be made?
- Who will be given
access to the database?
- What will be
the criteria for determining the level of access given to the
database?
- What sorts of
conditions will it be possible to impose on access to the database,
or the use of information on the database?
- How long will
data on the database be retained?
- To whom is it
proposed to delegate the Secretary of State's discretion as to
what may or must be done under the regulations (cl. 8(6)). Will
that person be regarded as a functional public authority for the
purposes of the Human Rights Act1998?
- What is the proposed
relationship between this legislation and the Data Protection
Principles in the Data Protection Act 1998?
The Explanatory Notes (para. 51) claim that clause
8 sets out "the principles that would govern information
sharing using the information databases", and that the regulations
will deal with "detailed operational requirements".
It appears to the Committee that, in fact, clause 8 contains very
few "principles" which would regulate the use of the
proposed databases. The key questions which must be asked in order
to assess for compatibility with Article 8 ECHR are left unanswered,
to be dealt with in the regulations.
The Committee in its reports has repeatedly stressed
the fundamental importance of the right to respect for private
life in Article 8 ECHR. Any interference with the right must be
strongly justified, and adequate procedural safeguards against
arbitrariness are essential. The Committee has also repeatedly
stressed the importance of these safeguards being contained in
the primary legislation in order for it to be possible to say
that the legislation is compatible with Convention rights. The
fact that the regulations must be made by affirmative resolution
procedure does not meet this point.[127]
Question 10. In light
of the serious interference with Article 8 rights which is envisaged,
what is the justification for not dealing with the details of
the proposed database in primary legislation?
Question 11. Is the Government
prepared to include in clause 8 provision covering each of the
matters identified above?
Question 12. Will the
databases be confined to those who are considered to be vulnerable
or at risk?
REASONABLE CHASTISEMENT
DEFENCE
The Bill does not contain any provision abolishing
the defence of reasonable chastisement. However, the Government
has indicated that it is prepared to give careful consideration
to any amendment brought forward on this issue and to consider
allowing a free vote at the relevant stage of the Bill.[128]
The Government's stated concern is that it does not want to interfere
with the right of parents to punish their children, and it has
said that it will not support any amendment which constitutes
a ban on smacking children.
In its Report on the UN Convention on the Rights
of the Child, the Committee concluded, after taking evidence on
the issue and careful consideration of the arguments, that the
failure to replace or repeal the defence of reasonable chastisement
was incompatible with the UK's obligations under the CRC.[129]
The Committee is also concerned that the failure
to remove the reasonable chastisement defence is in breach of
the UK's obligation under Article 46 ECHR to abide by final judgments
of the European Court of Human Rights. The decision in A v
UK gives rise to an obligation on the UK to adopt general
measures to prevent a repetition of the violation found in that
case. The Committee of Ministers has so far refused the UK Government's
requests to adopt a final resolution stating that it is satisfied
that the judgment has been complied with. The UK Government's
argument before the Committee of Ministers is that, following
the coming into force of the Human Rights Act 1998 and the Court
of Appeal's refinement of the reasonable chastisement defence
in light of the decision in A v UK in R v H, no
further general measures are required in order to comply with
the judgment. The Committee of Ministers has not accepted that
argument, and has asked at its most recent meeting (April 2004)
for an interim resolution to be drawn up, suggesting that it considers
it necessary for the UK to take some steps by way of changing
its domestic law in order to implement the judgment.
We have written to the DPP to ask if it is his view
that minor cases of smacking would not be prosecuted because it
would not satisfy the public interest test in the Code for Crown
Prosecutors, and intend to take evidence from him on this and
related matters on 19 June.
Question 13. What is
the justification for not including in the Bill a short provision
abolishing the common law defence of reasonable chastisement,
in the interests both of legal certainty and of complying with
the Strasbourg judgment in A v UK?
RESPONSE
The Committee would also be grateful for an indication
of what, if any, representations you have received in connection
with this Bill in relation to human rights issues, and to what
specific points those representations were directed.
In view of the progress of the Bill in the House
of Lords the Committee wishes to report your responses to the
above questions, and its conclusions on them, at as early a date
as possible. The Committee would therefore be grateful for a reply
by 27 May at the latest.
12 May 2004
1b. Letter from the Chair to Ken Macdonald QC,
Director of Public Prosecutions
In its Tenth Report of Session 2002-03, The UN
Convention on the Rights of the Child, the Joint Committee
on Human Rights concluded—
… that the time has come for the Government
to act upon the recommendations of the UN Committee on the Rights
of the Child concerning the corporal punishment of children and
the incompatibility of the defence of reasonable chastisement
with its obligations under the Convention. We do not accept that
the decision of the Government not to repeal or replace the defence
of reasonable chastisement is compatible with its obligations
under the Convention on the Rights of the Child. [Paragraph 111]
In reaching this conclusion, the Committee observed—
There is little ambiguity in Article 19 of the CRC,
which requires States Parties to "take all appropriate legislative,
administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or
abuse ... while in the care of parent(s), legal guardian(s) or
any other person who has the care of the child". On the
face of it, the retention of the defence of reasonable chastisement
is a breach of Article 19 (although there is room for debate over
the word "appropriate"). Its wholesale repeal could
have the virtue of greater clarity than the current law. It
would then be necessary to rely on current prosecution policy—the
evidential test and the public interest test—to ensure that
mild smacks of children, like minor assaults on adults, would
not be prosecuted. Careful prosecution guidelines would have to
ensure that there is a reasonable degree of legal certainty for
parents at the same time as providing greater protection for children.
[Paragraph 109, emphasis added]
The issue of the abolition of the defence is very
likely to resurface in connection with the Children Bill, which,
as you will probably be aware, is currently going through Parliament.
The Committee will be reporting on the Bill fairly shortly.
In this context, the Committee would welcome your
view on the words in italics in the quotation above. Would you,
in short, consider that public prosecutors would have any great
difficulty in applying such a policy were the current defence
to be abolished?
It would be very helpful to have your response as
soon as possible.
4 May 2004
1c. Letter from Martyn Jones MP, Chairman, Welsh
Affairs Committee, House of Commons
I am writing with regard to the Government's proposal
to establish a Children's Commissioner for England.
As you will be aware, the Children's Commissioner
for Wales was established under the Care Standards Act 2000, and
its remit extended under the Children's Commissioner for Wales
Act 2001. That remit covers all devolved matters, while reserved
matters remain the responsibility of Westminster. The Government
propose to include those reserved matters in the remit of a Children's
Commissioner for England.
In my Committee's report on the Empowerment of Children
and Young People in Wales, we considered the role of the Children's
Commissioner for Wales. The majority of our witnesses agreed that
the Commissioner's remit should be extended to include reserved
matters. We concluded that:
"The Children's Commissioner for Wales supports
Welsh children for the majority of their needs. It would make
little sense for him to relinquish that role to another Commissioner
once a child's needs crossed over into to a reserved matter. Such
a circumstance could run the risk of undermining any continuity
and trust that had been built up between that child and the Commissioner
for Wales. (Paragraph 103)
We conclude that the current limits on the remit
of the Children's Commissioner for Wales do not serve best Welsh
Children and Young People in the Youth Justice System. We recommend
that the powers of the Children's Commissioner for Wales be extended
to those Welsh children residing in the secure estate outside
of Wales. A suitable vehicle for enacting that change would be
the proposed legislation to establish a Children's Commissioner
for England. (Paragraph 104)
We further believe that the current representation
of young people in Wales with regard to reserved matters is inadequate.
However, we do not believe that the interests of children and
young people in Wales would be best served by conferring powers
over them, with regard to reserved matters, to a Children's Commissioner
for England. We recommend 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." (Paragraph 105)
The Government's response to that report rejected
these recommendations. It stated that:
"Although only one Commissioner will have responsibility
for non-devolved matters affecting children, we are clear that
the Children's Commissioner must work with the Devolved Commissioners
when considering matters that impact on children in the Devolved
Administrations. The Children Bill proposes a duty on the Children's
Commissioner to take the views and work of her UK counterparts
into account when looking at non-devolved issues. The intention
is that the Commissioner will be proactive in seeking the views
of the other UK Children's Commissioners in such circumstances.
The other UK Children's Commissioners will also be able to raise
issues and offer their views to the Commissioner on these matters,
which the Commissioner must then consider. Once appointed, we
would expect the Children's Commissioner to collaborate with the
other Commissioners to draw up detailed arrangements for effective
working on behalf of all UK children, for example through the
development of Memorandums of Understanding".
While the Government intends to place a duty on any
Children's Commissioner for England to take the views and work
of its UK counterparts into account when looking at non-devolved
issues, there is the implication that the Children's Commissioner
for England will take on the role of the senior Commissioner.
However, that Commissioner would not enjoy the same level of independence
from Government currently enjoyed by the Children's Commissioner
for Wales.
My Committee remains of the opinion that children
and young people in Wales would be best served by a Children's
Commissioner for Wales whose remit covered all aspects of their
lives. Passing children between Commissioners depending on the
specific matter in hand is not a satisfactory solution. Furthermore,
passing the case of a Welsh child to a Children's Commissioner
for England has the potential to undermine the cultural identity
of that child.
I understand that your Committee has already considered
the case for a Children's Commissioner for England. Should your
Committee revisit that inquiry or undertake scrutiny the Children
Bill, I would be grateful if you could include this issue in your
deliberations.
24 March 2004
1d. Letter from Lena Nyberg, President, European
Network of Ombudspersons for Children (ENOC), on the Children
Bill
I understand that your Committee will be reviewing
the legislation in the Children Bill establishing a Children's
Commissioner. I am aware that the Joint Committee last year recommended
establishment of an independent Commissioner able to safeguard
and promote the rights and best interests of children.
The European Network of Ombudspeople for Children
(ENOC) is open to "independent national or regional institutions
set up through legislation specifically to promote children's
rights and interests". At our 2001 annual meeting in Paris,
the Network unanimously adopted "ENOC's Standards for Independent
Children's Rights Institutions". These Standards incorporate
the Paris Principles (Principles relating to the Status of National
Human Rights Institutions, adopted by the UN General Assembly
in 1993) and use them as their foundation. While the preamble
to the Standards recognises that they are aspirational, that not
all member-institutions meet all of the Standards, they note:
"But its [ENOC's] members agree that parliaments and governments
should be encouraged to review the status of existing institutions
in the light of the Standards and to ensure that the design of
new institutions conforms with the Standards and with the Convention
on the Rights of the Child".
My attention has been drawn to the legislation in
Part 1 of the Bill. It appears to fall short of the relevant international
standards in a number of ways, among them:
No requirement to promote and protect the rights
of children;
Permission, but no obligation, to have regard to
the UN Convention on the Rights of the Child;
Government control of the formal investigatory powers
of the Commissioner;
Government power to impose conditions on funding.
Before admitting an institution to membership of
the Network, the legislation establishing it is reviewed by members.
From a quick consultation with member-institutions, it appears
that the legislation currently before your Parliament does not
meet the criteria for membership of the Network, nor its Standards.
We hope that, in the interests of children in England
and the effective promotion and protection of their rights, the
Joint Committee will urge the Government to ensure appropriate
independent functions and powers for the Commissioner.
29 March 2004
1e. Memorandum from Action on Rights for Children
on the Children Bill
The Children Bill currently before Parliament proposes
radical changes to the way in which children's services are delivered
in England and Wales. While we welcome in principle the intended
appointment of a Children's Commissioner for England, it is the
provisions of Part 2 that concern us.
Part 2 of the Bill proposes that confidential information
about children and families be shared and stored on a database
without their knowledge or consent. The Government appears to
be seeking something of a 'blank cheque' from Parliament by asking
that the Secretary of State be empowered to establish one or more
databases, and to define issues of data storage and access, by
Regulations and Guidance rather than by primary legislation.
The Green Paper, Every Child Matters, explained
in detail how the system would operate: every child would have
a central file, and a 'flag' would be placed upon it whenever
an agency had a 'concern'. If two agencies flagged a file, this
would be the trigger for sharing information in order to decide
whether further intervention was necessary.
Although 'concern' is not defined in the Bill, the
Government has made it clear that information-sharing should go
far beyond the situation in which it is currently permitted: where
a child is at risk of significant harm.[130]
It has so far been suggested that 'concerns' should, amongst others,
include: seeming upset at school, failure to achieve expected
levels at Key Stages, low birth-weight, or the mental health issues
of a family member. It would appear that 'concerns' do not have
to be backed by evidence.
Clauses 6 & 7 would
place a duty upon a wide range of agencies to cooperate with the
Children's Services Authority (CSA), including Primary Care Trusts,
Local Authorities, schools, and anyone providing services under
s114 Learning and Skills Act 2000—which includes private
companies. Clause 7 appears to refer to those to whom the
CSA may delegate its functions, which further widens the potential
number of people involved.
Clause 8 provides for
the establishment of databases for the purpose of sharing information.
Although the Government has said that it intends to establish
'local' databases containing only minimal information, the powers
that it is in fact seeking could allow the establishment of one
national database, and require that all agencies' files about
a child be held upon it.
We are alarmed that The Secretary of State could
be given such far-reaching powers without the detailed scrutiny
and agreement of Parliament.
Clause 8(7) purports to
overturn any Common Law presumption of patient or client confidentiality.
We fear that it could ultimately operate to abolish such confidentiality
altogether.
We are concerned that, if every aspect of a child's
life is potentially under Government scrutiny, this may in fact
constitute destruction of the essence of his/her right to a private
and family life, (Article 8 ECHR; Article 16 UNCRC)
Even if this is found not to be the case, the
provisions of Clause 8 entail such a significant loss of private
and family life that we cannot accept that they are a proportionate
response to child protection concerns.
The Government has deflected criticism of the provisions
of Part 2 of the Children Bill by asserting that the need for
child protection outweighs any considerations of privacy.
Figures indicate that in a population of 10.5 million
under-16s[131]
in England and Wales, 27,670 (0.26%) children are on child protection
registers.[132]
Even allowing that ten times that number of cases of abuse had
not yet come to light, the figures suggest that the overwhelming
majority of children are not suffering abuse. A major study published
by the NSPCC in 2000 would appear to confirm this.[133]
We cannot, in any case, see how the Bill's provisions
will do anything other than aggravate the current situation.
Widespread information sharing could compromise the
safety of all children. The greater the number of agencies involved,
the greater the risk of corrupt use or disclosure of children's
data.
Children already at risk of harm may be overlooked.
It is likely that those working with children will tend to flag
every minor concern rather than risk accusations of negligence.
The system will be constantly delivering alerts for trivial issues;
consequently, situations where intervention is urgently needed
will tend to be obscured.
There is currently a serious shortage of child protection
social workers, and many Local Authorities are already fully stretched
in coping with referrals. Increasing the potential workload to
include issues that are not related to children's safety may bring
the entire system to breaking point.
As caseloads increase, there is a real danger of
over-dependence on the computer system with an associated risk
that the duty of care will, in practice, be given to the machinery.
High levels of entries on the database increase the
likelihood of human error when inputting data, impairing the accuracy
of the records. As children and parents would not have the opportunity
to correct mistakes, inaccuracies could lead either to time-wasting,
unwarranted intervention, or to failure to identify a child at
risk of harm.
Government databases have a poor track record. Should
the database become overloaded and fail, children in urgent need
of protection may be missed entirely.
Children may be reluctant to seek help or advice
when they fear that their confidence will be breached.
Parents may be deterred from seeking advice from
GPs or other agencies for their own mental health or substance-abuse
problems at an early stage, instead delaying requests for help
until they are at crisis point. This could only aggravate problems
within the family and increase the possibility of harm to children.
24 March 2004
1f. Memorandum from the Mayor for London on the
Proposed powers of the Children's Commissioner for England in
the Children Bill
Mayor of London
1 .1 This evidence paper is submitted on behalf
of the Mayor of London. Under the 1999 Greater London Authority
Act, the Mayor has a range of specific powers and duties, and
a general power to do anything that will promote economic and
social development, and environmental improvement, in London.
1 .2 The Mayor's statutory responsibilities include
the preparation of strategies, plans and policies for London covering
transport, spatial development and planning, culture, ambient
noise, air quality, waste management, biodiversity and economic
development. The Mayor has also chosen to develop a range of other
policy initiatives, including on children and young people, childcare,
alcohol and drugs, rough sleepers, domestic violence and poverty.
1 .3 In January 2004, the Mayor published his
children and young people's strategy for London, Making London
Better for All Children and Young People. Since 2000, the
Greater London Authority (GLA) and functional bodies[134]
have taken forward work to better promote
children's interests and rights in relation to, for example, transport,
policing and spatial development policies.
Children Bill - Children's Commissioner
2.1 In his Parliamentary Briefing on the Children
Bill,[135]
the Mayor sought the incorporation of an independent Children's
Commissioner for England with a regional structure; strengthened
measures on private fostering; and law reform on physical punishment.
2.2 The Mayor stressed the importance of the
Children's Commissioner for England having clear statutory powers
and duties which are fully compliant with the Paris Principles
(UN principles adopted in 1993 for the development of independent
national human rights institutions).
2.3 The Children's Commissioner's role must extend
to monitoring, promoting and protecting children's rights in relation
to the development of policy and legislation at Westminster alongside
an appropriate regional structure to ensure the Commissioner is
able to protect the needs, rights and interests of all London's
children.
2.4 During the Parliamentary passage of the Children
Bill, the Mayor will be making the case for the establishment
of an Assistant Commissioner for London, or other appropriate
mechanisms, to ensure issues of particular concern for London's
children are taken up at a national level. This case is developed
below.
Rationale for Regional Structures
3.1 A main function of the Children's Commissioner
is proposed as "promoting awareness of the views and interests
of children" (Children Bill). In order to safeguard the interests
and rights of London's children and young people, the Commissioner
structures must address the size of London's child population
(1.62m under 18 years old), and their unique diversity and specific
issues.
3.2 On a population basis, London has two and
a half times the number of children and young people than Wales,
nearly three times the number in Scotland and one and a half times
the number in Northern Ireland, where there are Commissioners.
3.3 41% of London's children and young people
(aged under 18) belong to a black, Asian or minority ethnic group
(53% in Inner London), and between them they speak around 300
different languages. They continue to experience the highest levels
of poverty and inequality of any region in the UK—for example,
after housing costs, the child poverty rate in Inner London is
48%.[136]
London is also home to disproportionately high numbers of children
who are doubly disadvantaged by poverty and discrimination—including
refugees, homeless children and disabled children. The Mayor believes
that to reflect this diversity regional structures will be required
for the new Children's Commissioner office.
3.4 It is vital that the Children's Commissioner
for England operates within an understanding of the complexity
of established government structures in London, apprised of and
engaged at the local government level in health, social care and
education, and crucially with the roles of regional government
in, for example, planning, community safety, culture and transport
policies as they affect children. For example, children's opportunities
to play in green and open spaces are being addressed by the London
Plan[137]
and supplementary and best practice
guidance, while child community safety issues come within the
remit of the Metropolitan Police Authority (and Service), Transport
for London and the London Child Protection Committee.
3.5 Similarly, the Children's Commissioner will
need to work with well-established regional government and other
Londonwide structures. The GLA now has a strategic policy unit
for children, operating between local and central government tiers
and in liaison with key bodies such as the Association of London
Government and Government Office for London. Other, key pan-London
partnerships of statutory and voluntary agencies include the London
Health Commission, London Workforce Taskforce, and London Housing
Forum, as well as specialised groups—for example, in education,
the London Challenge team and London Schools Commissioner.
3.6 In addition, the region is a practical and
effective level for developing consultation mechanisms and engagement
with children and young people. Consultations conducted by the
Office of Children's Rights Commissioner for London[138]
highlighted that children particularly
identify with the neighbourhood and city-wide levels when raising
quality of life, safety and well being issues for them.
3.7 Finally, international precedents exist for
regional commissioner or ombudsmaninstitutions—
in Austria, Spain, Australia, Belgium and
the Russian Federation.
Second Reading Debate. House of Lords (30 March
2004)
4.1 Several Peers raised that "consideration
be given to an assistant commissioner for London and for other
regions or that appropriate mechanisms to ensure that the particular
concerns of, for example, London's children can be taken to a
national level" (Baroness Thornton), and for a commission
"with assistant commissioners in the regions matching devolution
and able to respond to local people and needs" (Baroness
Howarth of Breckland).[139]
4.2 The level of resources to be made available
for the Children's Commissioner for England was also raised in
debate. Concerns were expressed at the proposed budget given the
size of the English child population (of over eleven million),
which was compared with the higher budget per child in each of
the commissioner's offices in Wales, Scotland and Northern Ireland.[140]
Summary of recommendations
5.1 The Children Bill should include clear statutory
powers and duties for an independent Children's Commissioner for
England, fully compliant with the Paris Principles.
5.2 The Children Bill should be amended to include
provision of an Assistant Commissioner for London, or other appropriate
mechanisms, to ensure issues of particular concern for London's
children are taken up at a national level and the proper engagement
of regional government in improved outcomes for London's children.
14 April 2004
1g. Memorandum from The Children's Society on
the Children Bill
INTRODUCTION
The Children's Society believes the Children Bill
presents an historic opportunity to respond to the many systematic
failures to protect children's rights and welfare that have been
identified over the last fifteen years. There is much in the Bill
to be welcomed, however we believe it includes a range of provisions
which either raise concerns about children's rights, or require
strengthening or broadening if all children's rights are to be
respected and protected by the new legislation.
CHILDREN'S COMMISSIONER
The creation of a commissioner for children in England
is long-awaited, however our welcome for it is tempered with disappointment
at its:
Weak function, without reference to promoting children's
rights and welfare;
Weak connection to the United Nations Convention
on the Rights of the Child (UNCRC) ('may' have regard, compared
with 'must' or 'shall' in other UK Commissioners' legislation);
Weak requirements to involve children ('take reasonable
steps to involve' in carrying out their functions);
Investigatory powers that can only be exercised with
the permission of the Secretary of State, and the concomitant
lack of independence from government;
Non-existent powers to support children in legal
proceedings or to take cases on their behalf
Lack of required response to its reports and recommendations
from Government or any other bodies
The Joint Committee has itself been prominent among
the influential voices that have pushed for the creation of a
children's commissioner, and has made its own detailed examination
and reports. We are active members of the coordinating group for
the Children's Rights Alliance for England, who are submitting
to the Committee at greater length about the Bill's commissioner
provisions. Therefore we feel it unlikely that we need in this
briefing to repeat the same detailed evidence about the international
standards and expectations against which these provisions should
be assessed.
To have come so far as to face the real prospect
of all children in the UK having their own commissioner, only
to create a tangibly inferior children's champion for England
to those in the rest of the UK, would not only be a great disappointment
for children in England, it would create a constitutionally confusing
and unbalanced structure. The intended 'UK-wide representative
of children' to parliament would be in the paradoxical position,
under these provisions, of being substantially weaker than any
commissioner in the devolved nations, lacking the independence
from government the other commissioners each have in their own
jurisdictions. We believe substantial amendment is required
to make this Bill's Commissioner the strong, independent champion
that children in England were promised, and to enable him or her
to collaborate effectively with the other three children's commissioners
to ensure a UK-wide role is equally strong and independent for
all children.
SHARED OUTCOMES FOR CHILDREN (Clause 2(3), clause
6(2))
We welcome proposals in the Bill to create a statutory
framework of five outcomes for improving the well-being of children.
It is proposed that one of the functions of the Children's Commissioner
will be that of reporting on progress on the outcomes (clause
2(6)) and the outcomes are to be used as the framework for planning
and accountability for the new children's services authorities
(clause 6(2)). The critical question is how the outcomes will
be made meaningful as a means of monitoring and accounting for
activity.
We have serious concerns about how the outcomes will
be implemented across Government departments, in all policy and
legislation. It must be clear that optional or selective use of
the outcomes will put at risk the aims and potential value of
the outcomes framework. The use of the outcomes framework must
be binding right across Government structures. We draw attention
to the fact that the Bill is before the House of Lords at the
same time as the Asylum & Immigration (Treatment of Claimants
etc.) Bill, which proposes a number of measures that will adversely
affect refugee children
The Bill should be amended to create obligations
upon all parts of Government to attest to the fact that they have
assessed the impact of policy and legislation upon the outcomes
for children, and that measures will not act to their detriment.
The Bill needs to go further in embracing the UNCRC
as the clear and critical standard for how children should be
understood, respected and treated. As a signatory State to the
Convention for over ten years, it is time that the UK Government
made clear its commitment to making children's rights a reality,
by tying new policy and reform for children to their rights to
protection, provision and participation. By making explicit how
the five outcomes reflect our wider obligations to children's
rights under the Convention, by specifying the relevant Articles
of the Convention for each outcome, not only will our commitment
to the Convention be made more real, but also our progress in
implementing the UN Convention, and our reporting to the Committee
on the Rights of the Child, will be greatly enhanced.
CHILDREN'S VIEWS
The Green Paper spells out the Government's commitment
to ensuring that children's voices and experiences are heard and
that they are involved in the design and delivery of services.
This is something that has wide-spread support and is enshrined
in Article 12 of the UNCRC. However there is a distinct lack of
emphasis on ensuring that this is embedded within the children's
services structures proposed in the Bill. The only duty that the
Bill establishes to involve children and young people is placed
with the Children's Commissioner and even then it is a duty only
to "take reasonable steps to involve children". (clause
2(4)).
The law is currently inconsistent about listening
to children and a critical gap remains in relation to social services
assessments of children's needs under section 17 and in relation
to child abuse investigations under section 47. One of the key
problems highlighted by the Victoria Climbié Inquiry was
the lack of any focus on ensuring that she was spoken to or that
her views were sought and recorded.
Disabled children and young people are particularly
vulnerable to abuse and are more likely to be cared for away from
home. This increases their exposure to risks yet all too often
professionals undertaking assessments fail to communicate directly
with them.
We urge the Government to take the opportunity
that this Bill presents to create a new duty on local authorities
to actively seek the wishes and feelings of all children for whom
there are concerns. This would be consistent with obligations
under Article 12 of the UNCRC.
NEW DUTIES
The nature of the new duty
The new duty, under Clause 7 of the Bill is very
welcome, and particularly the inclusion of youth offending teams,
prisons and secure training centres. We believe this is a significant
step in the right direction to address the evidence of the failures
of our youth justice system to protect or promote the rights of
children under UN and European standards. The Children's Society
is concerned, however, that the nature of the duty created under
Clause 7 (2) is ambiguous, and insufficiently strong to guarantee
that the authorities subject to it could not continue to be able
to act in ways that are detrimental to a child's welfare or safety.
The duty to discharge functions 'having regard to
the need to safeguard and promote the welfare of children' is
in effect an administrative test, requiring a demonstrable point
in decision-making at which child safety and welfare were considered.
Our interest is in what kind of additional safeguard this new
duty would provide in practice for children in the care of, and/or
subject to the decisions of, the listed authorities. In theory
at least, the actions of authorities subject to this duty need
not change at all as a result of it, permitting them to put children's
safety and welfare needs second, in favour of carrying out their
primary functions. Where meeting children's needs would sit in
conflict with the carrying out of primary functions, the duty
does not appear to help in guiding decision-making. For example,
for prisons who have a primary 'functional' interest in maintaining
order and security among inmates, having regard for the child's
welfare may conflict with the need for consistency in the application
of the rules that are used to maintain that order. A recent example
of the current ambiguity is the case of a 17 year old male sentenced
to a Detention and Training Order who was twice placed on the
segregation unit of Warren Hill Young Offenders' Institution (YOI)
for periods of five days and four days respectively, despite earlier
in his sentence presenting a significant risk of self-harm and
para-suicidal behaviour.[141]
We believe that in order to be consistent with
Article 3 (best interests of the child) and Article 19 (right
to protection from any physical or mental harm) of the UN Convention
on the Rights of the Child, the new duty should, as a minimum,
require that no action or decision by an authority listed under
Clause 7 should be taken which would be detrimental to children's
safety or welfare. The Joint Committee
on Human Rights[142]
has recently recommended that an amendment be sought at the earliest
opportunity to The Children Act 1989 in order to place a statutory
duty to safeguard the welfare of children on the Prison Service.
It would be a missed opportunity if clause 7 did not provide the
full protection to children that is so desperately needed.
The Persons and bodies to whom the duty applies:
who's missing?
We believe the inclusion of youth offending teams
and governors of prisons and secure training centres is a long-awaited
positive response to criticism from the United Nations Committee
on the Rights of the Child, the Joint Committee on Human Rights[143]
successive reports from HM Inspector of Prisons and more recently
the Safeguarding Children[144]
report, which found that "the welfare needs of children
and young people who commit offences were not being adequately
addressed by those responsible for their welfare".
Similar concerns have also been raised in relation
to the treatment of children in immigration detention centres.
Reports by HM Inspectorate of Prisons on inspections of five immigration
removal centres in 2002 highlight the inappropriateness of detaining
children in this way. In Dungavel in Scotland, HMIP were accompanied
by HMIE who conducted a follow up visit in the summer of 2003.
HMIP said in their report on Dungavel:
We note HMIE's view that in general terms 'the positive
development of children was compromised by the secure nature of
the facility and the uncertainty surrounding the length of stay
… It is that the welfare and development of children is likely
to be compromised by detention, however humane the provisions,
and that this will increase the longer detention is maintained.
The Bill should be amended to include immigration
detention centres and others with responsibilities towards children
across the immigration service from ports through to support and
accommodation providers under the new duty in Clause 7.
In particular the regional office of the National Asylum Support
Service has an important role in providing services to children
and families in respect of the basic provision of housing and
subsistence and should also be included within this duty.
Reading across from Clause 7 to Clause 8, which
permits databases to be created containing personal identifying
information about all children, we believe that persons or bodies
establishing and operating such databases should also have a clear
safeguarding duty. In Every Child Matters:
the next steps the Government rightly makes clear that it
shall be a matter of utmost priority that databases should be
able to keep children's personal details safe from the dangers
of hacking and malfunction, and emphasises that any entering and
sharing of information through the database should only ever be
done with the aim of ensuring children's needs and interests are
met. Many respondents to the Government consultation highlighted
the risk that gaining access to a database of this kind could
become a target for adults with harmful intent towards children.
The implications of ensuring that a database operates not only
to guard, but to promote the safety of children are wide-ranging,
and include the necessity of ensuring that all people who work
on, or otherwise have access to the database are comprehensively
police checked through the Criminal Records Bureau. Many such
safeguards will properly be a matter for regulation and guidance,
however we believe it is vital that persons or bodies operating
a database under Clause 8 are given a strong safeguarding duty
as part of this Bill, reflecting their intended pivotal role within
multi-agency safeguarding activity. It may be that such a duty
should be incorporated into clause 8, however it would seem logical,
if the nature of the Clause 7 duty were to be strengthened as
we have argued, to simply include database operators under in
the list in Clause 7 (1).
INFORMATION SHARING (Clause 8)
The Children's Society recognises that sharing information
and records between agencies is an area of confusion, where different
working cultures often clash, and where gaps and barriers to effective
protection often lie. It is important, if not inevitable, that
new IT technologies should be explored for their potential in
aiding efficient, appropriate information sharing, not only to
make professional practice more consistent, but also to reduce
the frustrations for many children and families of repeatedly
telling their stories and being 'comprehensively assessed' by
multiple agencies.
The provisions of clause 8 do little themselves to
expand upon or explain how databases will operate, what information
they will store, how and to whom access will be permitted, and
what standards will be applied (eg. how long is a concern to be
logged on the system? What 'standard of proof' would apply to
logging concerns, such as drug misuse, in relation to family members?).
Without this detail, however, it is hard to judge whether the
permissions and requirements created for the operation of databases
are proportionate and necessary. We are concerned by Clause 8
(7), which places a requirement on database operators to obey
regulations on disclosure of information, 'notwithstanding any
rule of common law' that would otherwise prohibit disclosure.
We must assume that this provision is made in the Bill because
it is the intention that under regulation common law protection
for individuals' confidentiality is to be effectively altered
or by-passed.
Our particular concern is the possibility that the
threshold for disclosure of personal information to a third party
without the appropriate consent to do so will be lowered
from situations where the child is believed to be at risk of significant
harm, to include situations where sharing information may be beneficial,
but not essential to a child's safety and well-being. We are in
full agreement with the principle that information and early concerns
can and should be shared between agencies at an earlier stage
than crisis point, however this can usually and most appropriately
be done with the full knowledge and consent of the child/or parent.
Interference with common law standards of confidentiality
and consent to information sharing would clearly raise concerns
about children's and other family members' rights under Article
8 of the European Convention on Human Rights, and under Article
16 of the UN Convention on the Rights of the Child (both of which
assure the right to respect for privacy, family, home and correspondence).
Children and young people consistently say that confidentiality
is important to them in considering whether, and with whom, they
might share their problems. The Government's summary of responses
from children to the Green Paper reinforces this message. If changes
in aid of improving information sharing were to have the effect
of diminishing agencies' ability to offer a confidential service
(or indeed to keep confidential the fact of a service being accessed
by the child at all), then it may have the perverse effect of
deterring children from seeking preventative help and advice (such
as advice on safer sex and contraception), which could itself
create avoidable and substantial risks to their safety.
CHILD SAFETY ORDERS
Clause 48 of the Children Bill amends the Crime and
Disorder Act 1998, to remove the sanction of imposing a care order
on a child for breach of a child safety order, and replaces it
with the power to make a parenting order. This is, relatively
speaking, a positive amendment, as it was always a matter of great
concern that a care order should be used (or threatened) as a
punishment. It does raise, however, the likelihood of child safety
orders being more readily and widely used than they are currently.
One of the reasons for extremely low take-up of child safety orders
has been professionals' resistance to the inappropriate threat
of care orders being made as a means of enforcement. The likely
impact of amending the legislation in this way will be to encourage
more widespread use of child safety orders. We believe this
raises again the whole argument, rehearsed extensively but unsuccessfully
in 1998 (and therefore before the Joint Committee on Human Rights
was established), that the child safety order represents a de
facto reduction in the age of criminal responsibility.
The Joint Committee on Human Rights itself has recently
recommended review of the law on the age of criminal responsibility
on the grounds that it is too low at 10. The child safety order
permits the making of a court order, including restrictions and
requirements placed directly upon the child, for any child under
the age of ten (with no lower age limit) where—
the court is satisfied:
(a) that the child has committed an act which,
if he had been aged 10 or over, would have constituted an offence;
(b) that a child safety order is necessary
for the purpose of preventing the commission by the child of such
an act as is mentioned in para a) above;
(c) that the child has contravened a ban imposed
by a curfew notice; and
(d) that the child has acted in a manner that
caused or was likely to cause distress to one or more persons
not of the same household as himself.
While welcoming the change to the draconian sanction
of a care order, The Children's Society remains concerned about
the practice of drawing young children into court-ordered restrictions
for behaviour for which they cannot be held responsible in criminal
law, and for which only a civil standard of proof will be required
to make an order. A child whose problem behaviour is a cause for
concern certainly should receive interventions, for them individually
and for their family, that are designed to address problems and
improve behaviour. These can and should be provided under the
Children Act 1989, section 17, creating a duty upon local authorities
to provide services for children 'in need', and under section
47, if they are at risk of significant harm.
It should also be questioned whether it is appropriate
to sanction a breach of a child safety order by a child, by placing
an order upon the parent (Clause 48 (2)). This is particularly
open to question where the parent may, under the existing terms
of the child safety order, already be subject to a parenting order.
This raises the prospect that while a parent may be complying
with the terms of their parenting order in their own right (by
attending parenting sessions, counselling etc), they may nonetheless
face breach proceedings because of a repeat incident by their
child. Breach of their parenting order (whether the existing order
or one made in response the to child's breach of their order)
will be an offence itself, incurring a fine or community sentence.
While we would not argue for courts to sanction a child under
10 , as if they were criminally responsible for breaching
an order, neither are we comfortable with the idea that the sanction
should fall exclusively to the parent for the child's breach.
Many parents of young children with behavioural difficulties have
been seeking help for some time before any parenting order is
made, and have to work long and hard to develop parenting skills
and to address their own problems that may be contributing to
their child's misbehaviour. It may take some time, and may require
a wide range of issues within the family to be addressed by health,
social care and education services, before seeing the desired
improvement in the child's behaviour. The parent may be making
progress and yet still face a fine or community sentence as a
consequence of their child's continued bad behaviour being seen
as their failure. The prospect of a criminal punishment and record
for the parent being dependent on the child's behaviour may in
fact have the detrimental effect of worsening tension in the parent/child
relationship.
We believe that the difficulty in establishing an
appropriate means of sanctioning breach of a child safety order
arises from the fact that it is in essence inappropriate to place
a child under 10 under a court order of this kind. We are also
mindful of the questions raised by the Joint Committee on Human
Rights in its scrutiny of the Anti-Social Behaviour Bill (now
Act) 2003, in respect of parenting orders' engagement with families'
Article 8 rights.[145]
Considerations rested on the question of beneficial intention
and the welcome given by parents to support being offered. In
this case, however, the question of what the intention of making
a parenting order is, is complicated by the proposal that parenting
orders can be made both concurrently to support the child's order,
and as a sanction when the child's order doesn't work.
There must also be some concern about child safety
orders in the context of intentions to widen information sharing
and to establish shared electronic records about children. It
is to be assumed that if the government intends that information
such as low birth weight or a parent's depression should be shared
among professionals as a risk indictor, then an intervention as
serious as the making of a child safety order would certainly
be a matter that would be recorded and potentially known among
those professionals who come to work with the child. The child
safety order can only be imposed when criminal behaviour is alleged,
but the decision to make the order will not be subject to a criminal
standard of proof. The fact of being subject to a child safety
order will nonetheless imply guilt of criminal activity,
and may incur prejudicial reactions from other agencies and professionals,
for example, when secondary schools are considering whether to
admit the 10/11 year-old child as a new pupil. The presumption
of innocence until guilt is proven will be greatly blurred by
making a child safety order, which could leave children in a no-man's
land of not being a criminal but being considered to be
one. Child safety orders, regardless of the improving amendment
in this Bill, still raise concerns for children's Article 6 ECHR
rights to innocence until guilt is proven, and a fair adjudication
of their alleged wrongdoing.
The UN Committee on the Rights of the Child, in its
2002 report on the UK,[146]
urged us to "… review the new Orders introduced by
the Crime and Disorder Act 1989 and make them compatible with
the principles of the Convention". As the child safety
order was one of the new orders created by that Act, we believe
we should follow the Committee's recommendation, and more fundamentally
review the child safety order than merely to reform the permitted
penalty for its breach.
EQUAL PROTECTION FROM VIOLENCE FOR CHILDREN
One of the key barriers to ensuring greater protection
for children is that children are currently not given equal protection
in law from physical violence. The common law confirmed by statute
in the Children & Young Person's Act 1933, specifically states
that children can be physically assaulted if it can be shown that
it was in the pursuit of punishment of the child, or "reasonable
chastisement". The Joint Committee on Human Rights,[147]
in its tenth report , supported the need for change:
We have examined the case for retaining the defence,
but find the lack of respect it embodies for children's entitlement
to be free from physical assault to be unacceptable
We support the view that removing this defence would
send out a clear message that children are equal in law, would
make it easier for children to identify abusive behaviour towards
them and would set a clear standard for the care of children to
be supported by public education and support for parents. The
Children Bill, intended to reform and strengthen protection for
children, is the right legislation in which to enact such reform.
The Children's Society is a member of the Children
Are Unbeatable! Alliance which has been campaigning for a change
to the law since 1998.
26 March 2004
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