Children's Rights - Human Rights Joint Committee Contents

Letter to the Chairman from Baroness Morgan of Drefelin, Parliamentary Under Secretary of State, Department for Children, Schools and Families

  Thank you for your letter of 2 April requesting further information from the Department on matters relating to children's rights.

  I was pleased to attend the JCHR hearing on 24 March and I hope we were able to convey the Government's commitment to the UNCRC and our ambitions to make children's rights a reality in the UK.

  We have made significant progress since ratification of the Convention on the Rights of the Child, as highlighted by the UN Committee during the hearing in Geneva. They welcomed the Government's progress in implementing the UNCRC and our ambitions to improve the lives of all children and young people. The lifting of the final two reservations relating to immigration and children in custody with adults is proof that the Government is delivering for all children, including the most vulnerable, such as asylum seeking children and children in custody.

  We have also received confirmation from the UN Secretary General on the ratification of the Optional Protocol on the sale of children, child prostitution and child pornography.

  However, I hope it was also clear when we met that I believe there is no room for complacency. We know there is more to be done to realise our ambitions for children and young people. All four nations in the United Kingdom have developed—and are now implementing—far-reaching, long-term strategies to deliver improved outcomes.

  Our ambitions for children as set out in the Children's Plan, along with our priorities for taking forward the UN committees Concluding Observations, will enable us to take huge strides in our goal to make this country the best place in the world for children and young people to grow up.

  I attached our response to your request for further information.


Q43—you offered more information on guidance relating to child prostitutes

  Q43 Response: As noted during the evidence hearing, this issue has arisen during the passage of the Policing and Crime Bill, and we have underlined our reasons for maintaining the current law in this context.

  The discussion at the JCHR hearing understandably focused on the child protection issues in favour of amending the current law. We are aware of the arguments in favour of amending the law so that it would no longer be possible to prosecute children for loitering and soliciting, however, there are also some powerful arguments for maintaining the status quo.

  We have made clear that children who have been forced or coerced into loitering and soliciting by traffickers or pimps should always be treated as victims. This is reflected in, and has been established as current practice, by guidance issued by the Department for Children, Schools and Families in 2000 on Safeguarding Children in Prostitution, which is in the process of being updated. Since the guidance was issued, the number of prosecutions and convictions of children for loitering and soliciting has fallen significantly, so that the criminal law is now used only in exceptional cases. In 2007, one child was convicted, and one was cautioned for this offence.

  It is primarily for these exceptional cases that the current law must be retained. These cases could involve prostitutes who, for whatever reason, have refused the support and protection of social services or voluntary organisations, and are persistently found soliciting on the streets. In these cases, criminal justice intervention is often the most appropriate way of ensuring that they can be removed from the street and any immediate danger, and may also offer them the prospect of court intervention that actually makes a difference.

  We want to ensure that the approach taken is one that ensures the best interests of all children involved in prostitution. The current approach achieves this and we are keen to guard against any adverse consequences that may arise through a change in the law which would prevent criminal justice intervention in the exceptional cases where it may be necessary to protect children who are victims. Together with colleagues from the Home Office and the Ministry of Justice, we are continuing to consider this matter fully and continue to keep the issue under review through regular engagement with relevant stakeholders, including Local safeguarding Children's Boards, ACPO, CPS and children's organisations.

Q51—you offered more information on recent trends in the number of children held on remand

  Response : It was suggested that the number of young people in custody on remand had increased by over 40 per cent over a seven year period. Data provided by the Youth Justice Board indicates that during the last seven years there was a 10 per cent decrease. Details are provided in the following table:


 2002 200320042005 200620072008

5638 551357215605 551253685102

  The collated data does not indicate how many young people remanded in custody or to secure conditions were acquitted or received a non-custodial sentence.

Q62—you offered more information on the financial implications for local authorities on extending the statutory duty to education to custodial establishments

  Q62 Response: The Apprenticeships, Skills, Children and Learning Bill currently before Parliament contains clauses to align education, as far as practicable, with the mainstream sector, including bringing young people in custody under the primary legislative regime.

  Local authorities will receive additional funding in order to exercise their new duty to secure suitable education and training for young people in juvenile custody in their area. Funding for education and training for children and young people in juvenile custody is currently directed through the Youth Justice Board, and upon implementation of the new duties, it will be re-routed through the new Young People Learning Agency, and on to Local Education Authorities with juvenile custodial establishments in their area. This will support their new responsibility to secure education for children and young people in custody. Therefore the implication for local authorities with juvenile custodial establishments in their area, is that they will have new duties to secure provision, and they will receive additional funding to achieve this.

Q65—you offered more information on the steps being taken to implement changes arising from the Government's withdrawal of the reservation to Article 37(c) of the UNCRC, given the evidence we have received that children are being held with adults in some institutions in Northern Ireland and Scotland

  Q65 Response: The decision to withdraw our reservation to article 37 (c) was taken by the UK Government following full consultation with Scotland and Northern Ireland.

  The Scottish Executive is fully committed to the UK Government's decision to remove its reservation to article 37 (c). However, the current situation in Scotland remains that there are circumstances where young people under-18 are held together with adults. The Scottish Prison Service is currently exploring ways in which it can take forward the development of separate accommodation for all under-18s in custody, and the Scottish Executive is also bringing forward legislation to ensure that under-16s cannot be remanded into prison custody.

  The Northern Ireland Office has taken steps to ensure that Northern Ireland is fully compliant with article 37 (c). The Criminal Justice Order 2008 allowed for all young women under the age of 18 to be accommodated at Woodland Juvenile Justice Centre which is an under-18 establishment. A small number of 17 year old boys are held at Hydebank Wood Young Offenders Centre which is a split site establishment with separate accommodation provided for under-18s and 18-21 year old men.

Q69—we would be grateful for your view on whether you agree with the independent review of the use of restraint in secure training centres that the use of pain compliance was "irreconcilable" with the UNCRC (pages 7-8 of the review)

  Q69 Response: The Government does not agree that the use of pain-compliant techniques in extreme circumstances is contrary to the UN Convention on the Rights of the Child. (It may be necessary to take action bring an incident under control quickly and safely to prevent potentially serious injury to the young person being restrained, to another trainee or to a member of staff.) The co-chairs of the independent Review of Restraint voiced an opinion to that effect, as an incidental comment on their recommendation that such techniques were necessary to keep young people and staff safe, and to protect them from physical harm as much as possible. The co-chairs had not, as far as we are aware, taken legal advice on this point. The Government's own view is that the co-chairs' recommendation is compatible with the provisions of the Convention.

Q86—you offered more information on the reasons why girls in custody were more likely than boys to self-harm

  Q86 Response: In the last quarter of 2008 (September-December), girls accounted for 7% of the under-18 custodial population but accounted for 48% of incidents of self-harm in custody.

  The prevalence of self-harm amongst girls reflects the evidence from non-custodial settings. A 2004 report for ChildLine, conducted by the Mental Health Foundation and the Camelot Foundation, showed that in 2003/04, ChildLine counselled 4,300 callers who reported self-harming behaviour of whom nine in ten were girls under the age of 18.

  The Government recognises that many young people who enter custody have a history of mental health needs, as well as a history of self harm. The Government has secured improvements in healthcare arrangements of young offenders including the provision of 24-hour health care and physical and mental health screening. The Government has also strengthened safeguarding arrangements in custody, including access to an independent advocacy services and better and safer physical environments.

  In March 2007, the Government produced a framework document for promoting mental health for young offenders. This framework was supported with an initial £15 million and a further £1.5 million in the financial year (2008-09). The framework is due to be evaluated towards the end of this year.

Staff in custodial establishments remains vigilant to ensure that a vulnerable population is not placed at risk through self-harm.

Q93—you offered to check whether asylum or immigration duties have been, or could be, delegated to BAA staff;

  Q93 Response: No immigration or asylum functions have been delegated to the British Airports Authority by the UK Border Agency. Obviously we work on their premises but they do not carry out any immigration or asylum functions on our behalf. If a case required detention at a port, the person in question would be transferred directly from the immigration officer to a UK Border Agency contractor without the BAA being involved.

  The new provisions in the Borders, Citizenship and Immigration Bill (clause 9) will enable the Director of Border Revenue to delegate customs revenue functions. The functions which are delegable in this way are administrative in nature. This is in keeping with the current arrangements under which HM Revenue and Customs use commercial contractors to store and dispose of seized alcohol and tobacco. In the future, we envisage that commercial contractors will carry out similar functions on behalf of the UK Border Agency. Where a function is delegated, the Director of Border Revenue must monitor the exercise of the function by the person to whom it is delegated, and the person must comply with the directions of the Director in exercising that function. In addition, the Children's Duty will apply to those persons exercising delegated functions.

Q96—We would be grateful to receive a copy of the review of the Millbank pilot or, if it is not yet available, an indication of when we might receive it

  Q96 Response: The report is still being finalised by the external consultant. We expect it to be publicly available in May and will forward a copy to the Committee as soon as it is.

Q116—we wish to receive an analysis of the domestic legal remedies available in relation to breach of each article of the UNCRC.

  Q116 Response: The question assumes that there is a direct legal remedy which could be relied upon in respect of any breach of the UNCRC. However, the UK meets its obligations under the UNCRC through a combination of legislation, policy initiatives and guidance which evolve as policy moves on in each jurisdiction in the UK. The UK's periodic reporting to the UN Committee reports to them regularly on developments. The Department will shortly be commissioning an updated high-level mapping of the legislation and policy that supports the UNCRC in England. This will be designed to reflect developments since the 2008 Report arising from the Children's Plan and other legislative and policy developments. We will be happy to share this overview with the Committee once it is available.

  Where UNCRC obligations are met through a particular legislative provision, any remedies provided for in relation to that legislation would apply. Over and above specific legal provision, decisions of public authorities may be challenged for any failure to comply with the Human Rights Act or by means of judicial review. And more broadly, rights under the UNCRC may be asserted through complaints mechanisms or through resort to figures such as the Local Government Ombudsmen. The Children's Commissioner for England does not have a casework function but it is part of his remit to consider the operation of complaints procedures. The Department is currently working with the Commissioner on this as part of 11 Million's business plan commitment to understand how complaints procedures work in practice for children and young people.

  Additional questions are as follows:

 (I)   What steps are you taking to awareness of the UNCRC in the UK?

  Response: The Government has done much to raise awareness of the UNCRC but does recognise that it has more to do to, and is addressing this in partnership with other organisations as part of its strategies to address the UN Committee's recommendations.

  The Government has funded a number of initiatives aimed at raising awareness of the UNCRC such as the development of a curriculum resource for teachers on the UNCRC to be used with key stage 3 pupils.

  The DCSF provides funding to UNICEF for their Rights Respecting Schools initiative. This programme aims to help provide children with a practical understanding of the personal meaning of their rights, and those of others, by relating the principles of the UNCRC closely to everyday behaviour in the classroom and school.

  Training related to human rights and the UNCRC is available for a wide range of professionals working with children.

  The Children's Workforce Development Council (CWDC)—who have a remit to ensure that those who work with children and young people have the best possible training, qualifications and support, covering about 500,000 workers, including early years and childcare, education welfare and social care for children and young people —and is taking measures to raise awareness of the convention.

  The CWDC has created a Common Core of skills which describes the UNCRC alongside legislation of which practitioners should take account. The Common Core is now being embedded in training across the children's workforce.

 (II)   Are you intending to establish a stakeholder's group to monitor progress in dealing with the CRC Committee's concluding observations, as exists in Scotland?

  Response: Each Devolved Administration will address the UN Committees Concluding Observations as appropriate to their national requirement. However, I am meeting with the Devolved Administration Ministers in early June to discuss a UK wide approach to addressing the Concluding Observations, and the possibility of devising a UK wide action plan.

  The Government is working closely and regularly consults with key stakeholders such as Non—Government Organisations, the Children's Commissioner and children and young people in taking forward the UN Committees Concluding Observations. We are maintaining the positive, collaborative approach with our stakeholders that helped our preparation for Geneva and will work with them to address our priorities as set out in the children's plan one year on. Through this mechanism the Government is held to account on how it is implementing the convention.

 (III)   How were the CRC Committee's recommendations prioritised, in order to arrive at the list in Annex A of "The Children's Plan—a Progress Report"?

  Response: The Children's Plan which set out the Government's ambitions for all children and young people is underpinned by the UN Convention on the Rights of the Child (UNCRC).

  At the hearing in Geneva, the committee welcomed the Children's Plan and its links to the UNCRC and making implementation of the Convention a reality on the ground.

  The Concluding Observations provide a helpful framework for further action by Government, building on measures already in place, to make children's rights under the Convention a reality.

  The Government carefully considered all the UN Committee's recommendations along with our long term ambitions for children and young people as set out in the children's plan and in consultation with key stakeholders, identified areas within the recommendations where more could be done to implement the convention further. This was the basis in which Annex A of the Children's plan—a progress report was devised.

  There remain areas where the UK Government and the UN Committee differ in views, such as the need for legal incorporation of the Convention into domestic law (which is not standard UK practice), the appropriateness of a legal ban on smacking children, the minimum age of criminal responsibility and the use of Anti Social Behaviour Orders (ASBOs).

 (IV)   In its response to the independent review of the use of restraint, the Government accepts in principle that any restrained young person should be seen by a registered nurse or medical practitioner within 30 minutes of an incident, but states that "any establishment will need to form a judgement whether it necessary to do so in particular cases" (rec 37, page 19). Can you explain why establishments should be able to continue using their discretion as to whether or not to require restrained young person's to be medically examined?

  Response: Due to the variations in size, different types of establishment have different levels of access to medical care. All secure training centres, for example, have on-site nursing cover. Secure children's homes, however—some of which are very small—do not have that level of cover and it would not be practicable to provide it. Without on-site nursing care, it is not possible to require routine examination within 30 minutes. The Government takes the view that establishments need to decide in each individual case whether the young person needs to be medically examined within 30 minutes.

 (V)   Similarly, why has the recommendation that "all injuries should be photographed" (rec 38, p19) not been fully accepted?

  The Government was doubtful of the purpose and value, or appropriateness for vulnerable young people, of photographing all injuries routinely.

 (VI)   Can you provide more detail of the work which is being done to prepare for ratification of the UNCRC Optional Protocol on the sale of children, child prostitution and child pornography?

  Response: The UK Government announced in September 2008 that it was ratifying the Optional Protocol Protocol on the sale of children, child prostitution and child pornography. Last November the UK Mission in Geneva wrote to the UN Secretary General requesting ratification of the Optional Protocol. The Government has received confirmation from the UN Secretary General that the Optional Protocol has been ratified with effect from 20 March 2009.

 (VII)   Why was the rule requiring those who join the armed forces at 16 to commit to a minimum of six years service, whilst those who join at 18 need only serve a minimum of four years, reinstated? And what steps have been taken to inform the CRC Committee that the rule has been reinstated, given that the Committee welcomed the lifting of the rule in its Concluding Observations on UK compliance with the Optional Protocol to the UNCRC on the involvement of children in armed conflict?

  Response: This question relates to the changes in minimum term of service introduced by the Army Terms of Service Regulations 2007, which came into effect on 1 January 2008.

  The changes were intended to reflect the Army's move to the Versatile Engagement. Under this engagement, soldiers no longer sign up for 22 years but for an initial engagement of 12 years. Prior to 1 January 2008, soldiers enlisting served a minimum commitment period of four years calculated from the "relevant date" which was "the date of attaining the age of 18 years or the date of attestation, whichever is the later". Therefore those that were under the age of 18 years in enlistment served a minimum commitment of four years from their 18th birthday. Unfortunately the 18th birthday element was omitted from the final version of the revised 2007 Regulations and this was not spotted until later in the year. Therefore, since 1 January 2008, soldiers enlisting will have served the minimum commitment on completion of four years' service irrespective of their age on enlistment, which was not the intention.

  Action was therefore taken by the Army in August 2008 to rectify this and ensure that the operational staffing levels of the Army were maintained: soldiers under the age of 18 years are not fully deployable on operations and the aim is to achieve a minimum of four years fully deployable service from each individual. Accordingly, the Army Terms of Service (Amendment etc.) Regulations 2008 came into effect on 6 August 2008 in order to reinstate the minimum commitment period that soldiers who enlist before attaining the age of 18 years must serve in the Regular Army before being able to transfer to the reserve.

  All Service personnel under 18 years of age who have completed 28 days service have a right of discharge within the first six months of service by giving not less than 14 days notice in writing to the Commanding Officer if they decide that the Armed Forces is not a career for them. In addition, Service personnel Under 18 years three months who have passed their statutory six month period for "discharge as of right", and have registered, before reaching their 18th birthday, clear "unhappiness" at their choice of career, can request permission to leave the Armed Forces. The changes to the Army Terms of Service Regulations 2007 in no way affects an under-18s ability to leave as of right before his/her 18th birthday, and those who joined before the mistake was corrected will be allowed to leave after four years service irrespective of their age at attestation.

  The Committee were informed that the rule had been reinstated both in the oral examination session on the Optional Protocol in September 2008 and in the written evidence[1] provided to the Committee ahead of the examination. No formal response to the Committee's observations is required and we have not made any informal approach at this stage as the Ministry of Defence, in consultation with Other Government Departments, is considering how best to take forward the recommendations made.

8 May 2009

1   CRC/C/OPAC/GBR/Q/1/Add.1 Question 7. Available on the UNCRC web site ( Back

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