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
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 developedand
are now implementingfar-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
Q43you 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
Q51you 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:
YOUNG PEOPLE REMANDED IN CUSTODY OR TO SECURE
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.
Q62you 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
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.
Q65you 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.
Q69we 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.
Q86you 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
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.
Q93you 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
Q96We 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
Q116we wish to receive an analysis of the domestic legal
remedies available in relation to breach of each article of the
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 NonGovernment 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 Plana 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 plana
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
(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, howeversome of which are
very smalldo 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
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
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
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
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
CRC/C/OPAC/GBR/Q/1/Add.1 Question 7. Available on the UNCRC
web site (http://www2.ohchr.org/english/bodies/crc/index.htm). Back