Memorandum submitted by The Children's
1.1 It is The Children's Society's aspiration
that children should have the status in law of being citizens
of equal value and personal dignity to all others, protected from
negative discrimination and less favourable treatment. We believe
that the UN Convention on the Rights of Child (UNCRC) embodies
the legal and practical standards that would make real this aspiration
and that it should be made directly enforceable in domestic legislation
and courts. We welcome the concluding observations of the United
Nations committee on the rights of the child (CRC) published on
3 October 2008, and urge this Committee to question the Government
on its proposed timetable for meeting the CRC's recommendations.
1.2 The Children's Society is a member of a number
of representative bodies who have made separate submissions to
this Inquiry, namely the Refugee Children's Consortium, the Standing
Committee for Youth Justice and Young Equals. We wholly endorse
the contents of these submissions and would refer the Committee
to them for fuller treatment of a number of the issues raised
2. CHILDREN IN
2.1 The CRC's concluding observations noted
that, in relation to children in trouble with the law "the
number of children deprived of liberty is high, which indicates
that detention is not always applied as a measure of last resort;
the number of children on remand is high".
It recommended that "the State party develop a broad range
of alternative measures to detention for children in conflict
with the law and establish the principle that detention should
be used as a measure of last resort and for the shortest period
of time as a statutory principle".
2.2 The current numbers of children held in custody
in England are too high. The Government's recent Youth Crime Action
Plan (YCAP) referred to "the small number of young people
who do end up in custody".
We strongly refute this assertion. As at July 2008, 2,938 children
were detained in the juvenile secure estate, this is not a small
number and compares unfavourably to the majority of European countries.
Therefore we are very disappointed that the YCAP does not contain
a stronger commitment by Government to reducing custodial numbers.
We believe that the existing sentencing framework militates against
such a reduction and must be re-evaluated in order to give credence
to the Government's claim that it wants to see custody for children
used only as a measure of last resort.
2.3 The report of the joint independent
review of restraint of children in custody was published in December
2008. The Children's Society was disappointed that the Government's
response, published at the same time, failed to address the serious
human rights breaches identified in 2008 by your committee
and highlighted again in the UNCRC's concluding observations.
2.4 Children in families continue to be
detained in Immigration Removal Centres (IRCs) for significant
lengths of time with no judicial oversight, contrary to both article
37 of the CRC and the Government's own policy. In the light of
the damning reports about the failure to protect children and
safeguard their welfare and subsequent recommendations of Her
Majesty's Inspectorate of Prisons (HMIP)
we continue to press the Government to bring an immediate end
to the detention of children and their families.
2.5 We are equally concerned to see an end
to the practice of separating families by detaining the parent(s)
without their children. The Government views this as preferential
to detaining children
but we believe it to be in contravention of article 9 of the CRC,
highly damaging to the family and in some cases a risk to the
child. We are unconvinced by the Government's position that this
practice is consistent with Article 8 of the ECHR.
3. THE PRACTICAL
3.1 We strongly welcome the Government's
decision to withdraw the immigration reservation to the UNCRC
but we share, with other members of the Refugee Children's Consortium
serious concern to learn that according to Phil Woolas "no
additional changes to legislation, guidance or practice are currently
The withdrawal of the reservation demands a root and branch review
of the way that the asylum system treats children and young people
to ensure that the decision-making through out the asylum process
fully evaluates and acts upon their best interests.
3.2 While we welcome the withdrawal of the UK's
reservation to article 37 and the Government's stated policy intention
never to accommodate children in prison custody with adults, we
remain concerned that the Government continues to incarcerate
children in YOIs that are part of a prison service estate which
is designed for adults (and who are 96% of its clientele). This
constitutes a breach of article 40 (3) that requires detention
facilities to be "specifically applicable to children".
Children who are locked up most only ever be held as a measure
of last-resort in appropriate, child-centred accommodation.
3.3 In light of the withdrawal of the reservation
to article 37 the current situation in which age disputed young
people are frequently uncovered in immigration detention with
adults, is particularly incongruous. Of 165 age dispute cases
dealt with at Oakington by the Refugee Council in 2005, 89(53.9%)
turned out to be children. In other periods that figure has been
found to be as high as 72%. We urge the Committee to investigate
why age disputed young people are still detained, why these cases
are not recorded (either upon entry or if they come to light while
a young person is being held) and why there is no set process
for dealing with an allegation that a child is held in detention
as an adult.
4.1 We call on the Committee to urge the
Government to urgently ratify the UN Convention on the Rights
of Persons with Disabilities without reservations.
4.2 There is significant evidence that disabled
children and young people continue to face high levels of discrimination
both on an individual and institutional level:
4.2.1 Disabled Children and still not being
heard and taken seriously, in accordance with their rights under
article of the UNCRC. Despite an increasing focus on children's
participation, disabled children are much less likely than non-disabled
children to participate at any level, particularly those with
complex needs or communication impairments.
4.2.2 Disabled children are overrepresented
amongst the child population in the looked after system and those
living in institutions on a long-term basis.
4.2.3 A very high proportion of children
involved in anti-social behaviour proceedings have learning difficulties
and mental health problems. This seriously calls into question
the treatment of disabled children in this context.
4.2.4 Disabled children require services
from both universal and specialist health services. Despite their
crucial importance however, families using our services frequently
report that universal health services are inaccessible. Families
also experience a postcode lottery in accessing specialist health
services. An investigation by the Disability Rights Commission
revealed "an inadequate response from the health service
to the major physical health inequalities experienced by some
of the most socially excluded citizens: those with learning disabilities
and/or mental health problems". This included disabled
children and young people.
4.2.5 Disabled children experience a lack
of access to accessible information. For examples the Government
failed to produce consultations, including Youth Matters,
and the Welfare Reform Green Paper, in an accessible format, despite
guidance stating that it is good practice to do so.
4.2.6 The Disability Equality Duty [Disability
Discrimination Act 2005] requires schools to involve disabled
pupils in the development and review of their disability equality
scheme. Evidence from The Children's Society practice suggests
disabled pupils are rarely involved or even know about their school's
disability equality scheme.
4.3 The Children's Society is very concerned
about the issue of age discrimination against children and young
people. We are committed to children's equality with adults and
recognise the many ways in which children can be discriminated
against both in law and in everyday lived experiences. While there
are many laws that have made provision for children's rights and
protection as individuals in some areas, in others continued and
overt discrimination exists, for example in not assuring equal
legal protection from assault for children as that provided for
4.4 We are members of the Young Equals coalition
that is campaigning to stop children being treated less favourably
on grounds of age. The coalition seeks legal protection for children
and young people from unfair age discrimination in the provision
of goods, services and facilities in the proposed Equality Bill
and for education and children's services to be included in the
integrated equality duty.
5. ASYLUM SEEKING
5.1 Some progress has been made towards
improving the treatment of asylum seeking and refugee children
since this Committee's Inquiry into the Treatment of Asylum-Seekers
in 2006, including the publication of the Code of Practice under
section 21 of the UK Borders Act 2007, the Government's subsequent
commitment to introduce a duty equivalent to section 11 of the
Children Act 2004 in the Borders, Citizenship and Immigration
Bill currently before Parliament and the removal of the UK's immigration
reservation to the UNCRC. However it remains to be seen whether
these very welcome statements of intent will be translated into
concrete improvements in the lives of these children. The current
reality for whom is that their best interests continue to be subjugated
to the requirements of immigration control.
5.2 Within this context, The Children's Society
is particularly alarmed to find itself supporting increasing numbers
of destitute children with families, age disputed young people
and unaccompanied minors who become 18.
Child destitution is neither necessary, proportionate nor humane
and is inconsistent with Article 8 of the ECHR. Moreover we fear
that this already desperate situation could be made even worse
under the proposals currently being developed for reform of the
support regime. These could include powers to remove support from
unaccompanied children as they approach 18 and from families at
any stage in the process if they are deemed to be non-compliant.
5.3 We also remain strongly opposed to section
9 of the Asylum & Immigration (Treatment of Claimants, etc)
Act 2004 and urge the Committee to press Government to exercise
its power under section 44 of the Immigration, Asylum and Nationality
Act 2006 to repeal it.
6. CHILD TRAFFICKING
6.1 We continue to be very concerned about
the difficulty of obtaining immigration status for trafficked
children. A discovery that a child has been trafficked can cause
their asylum claim to fail because of the limitations of the 1951
Refugee Convention and the way it is interpreted. This creates
a barrier to successful prosecutions as there is no guarantee
of security for the child, and so we are unable to reassure them
about the consequences of giving evidence. There is also a human
cost, as it makes already frightened children more afraid and
leaves them in limbo with no certainty about the future.
6.2 An amendment is required to the legal definition
of trafficking as set out in section 4 of the Asylum and Immigration
(Treatment of Claimants etc) Act 2004 because the current narrow
definition does not adequately cover all forms of exploitation.
It does not include all those subject to abuse of power or in
a position of vulnerability, or where "requests or inducements"
have been made via a third party for example babies and very small
children who are trafficked by an adult. There is now evidence
that this loophole is preventing successful prosecutions.
The Policing and Crime Bill and the Borders, Immigration and Citizenship
Bill that are both before the UK parliament, provide an opportunity
to amend the definition.
6.3 The CRC recommended that "The
State party should always consider, both in legislation and in
practice, child victims of these criminal practices, including
child prostitution, exclusively as victims in need of recovery
and reintegration and not as offenders".
In order to implement this recommendation we urge the Government
amend clause 15 of the Policing and Crime Bill currently before
Parliament to abolish the power to prosecute of a child over the
age of 10 for offences under section 1 Street Offences Act 1959.
7.1 We have seen no progress in relation
to the difficulties refugee children face accessing and participating
fully in education because of the demands of the immigration and
asylum support processes. Article 22 of the 1951 Convention sets
out that refugees should have the same access to elementary education
and remission of fees, but it is in practice difficult for them
to achieve this. For example we are aware from our practice that
some young people who arrive in the UK at the ages of 14 or 15
are placed into pupil referral units or sixth form colleges rather
than mainstream school. For as long as this group of children
remain without any link to the DCSF it is difficult to see how
policies and practices in education will not ignore, or discriminate
7.2 Disabled children are 13 times more likely
to be excluded from school. Official figures show that in 2005-06,
39 in every 10,000 pupils with a statement of SEN were permanently
excluded. The figure for pupils with SEN but without a statement
is 43 and for those with no SEN only five. Beyond these figures
lies a significant number of further exclusions as are pupils
are "informally" or "unofficially" excluded
7.3 Many Traveller and Gypsy children live
on the side of the road in constant fear of evictions, caused
by a shortage of Traveller sites and an urgent need for approximately
4,500 transit and residential pitches.
This has an impact on these children's education as they are unable
to access school places and face prolonged interruptions to their
education. Traveller children in The Children's Society projects
frequently report experiencing bullying and other forms of discrimination
8. CHILD POVERTY
8.1 We welcome the Government's commitment
to enshrine the 2020 commitment to eradicate child poverty in
legislation during the 2009 session of Parliament. The Children's
Society believes that this promise is intrinsic to securing the
conditions for good childhoods for all and putting the target
into legislation provides a vehicle for ensuring the necessary
policies and mechanisms are in place to keep it.
8.2 The Children's Society is a founding member
of the Campaign to End Child Poverty and endorses the coalition's
Statement of Principles on legislating for the eradication of
child poverty by 2020 that is appended to this submission.
8.3 It is vital that the asylum-seeking
children are counted for the purposes of the child poverty measure.
They are not currently and as a result they have been excluded
from efforts to raise children's standard of living.
9.1 The most significant factor contributing
to the criminalisation of children and young people is the low
age of criminal responsibility. The CRC recommended that this
should be raised substantially.
Such a move would immediately divert large numbers of younger
children from the criminal justice process and release resources
that could be invested into more effective, informal, responses
to their behaviour.
9.2 Additionally a number of specific Government
policies have contributed to "net-widening" which has
increased levels of criminalisation of young people in recent
years, some examples of which are given below:
9.2.1 The framing of sex offences legislation
in the Sexual Offences Act 2003 means that, for example, two children
aged 12 who engage in sexual touching by mutual consent (however
legally invalid that consent may be), are both automatically committing
a criminal offence. Hence the child who is considered absolutely
incompetent to consent to sexual activity, is at the same
time held in law to be absolutely competent to face prosecution
for the same activity. The absence of the presumption of doli
incapax, repealed in 1998, only makes this anomaly more stark.
9.2.2 Clause 29 of the Policing and Crime
Bill introduces a new offence of persistently possessing alcohol
in a public place. Under 18s can be prosecuted for this offence
if they are caught with alcohol in a public place three times
within a 12-month period. The maximum punishment is a level two
fine (currently £500). If enacted this will criminalise children
by the creation of an offence that does not even have a functional
analogy in the case of an adult. We do not agree that this new
offence is either necessary or helpful. For young people who are
drinking at harmful levels and getting into trouble, the most
effective method of supporting them will be through voluntary
access to education and treatment, rather than drawing them into
the criminal justice system.
9.3 Finally we repeat our longstanding call
for reform to the youth justice system to put children's welfare
concerns at its centre. This should be based on the principle
of treating children in trouble with the law as children first
and foremost. The majority have experienced/are experiencing chaotic
and damaging childhoods that require support by mainstream or
specialist services. Addressing these needs rather than simply
punishing a child's problematic behaviour is best for the child
and for society as a whole.
162 Op cit footnote 1 Para 77 (c) and (d). Back
Committee on the Rights of the Child, Forty-ninth session, Concluding
observations UK and Northern Ireland (CRC/C/GBR/CO/4) 20 October
HM Government (2008) Youth Crime Action Plan 2008, para 4.1. Back
Figure taken from YJB website http://www.yjb.gov.uk/en-gb/yjs/Custody/CustodyFigures/ Back
Parliamentary Joint Committee on Human Rights, Session 2007-08,
Eleventh Report: Use of restraint in secure training centres,
7 March 2008 (HL 65/HC 378). Back
Committee on the Rights of the Child, Forty-ninth session, Concluding
observations UK and Northern Ireland (CRC/C/GBR/CO/4) 20 October
Recent inspections took place on the following dates: Tinsley
House full announced inspection (10-14/03/08) published 27/08/08;
Yarl's Wood full announced inspection (04-08/02/08) published
Border and Immigration Agency Code of Practice for Keeping Children
Safe from Harm Consultation-Pro Forma for Responses, 25 April
Hansard, 24 November 2008. Back
Franklin, A and Sloper, P. (2007) Participation of disabled children
and young people in decision-making relating to social care, York,
Social Policy Research Unit. Back
[see CRAE UNCRC report p 11 and 19]. Back
See British Institute of Brain Injured Children November 2005
campaign update Ain't misbehavin'. Young people with learning
and communication difficulties and anti-social behaviour. BIBIC
has carried out research on the prevalence of disabled children
being issued with ASBOs. Over a third of youth offending teams
took part in the research: 35% of these said children with a diagnosed
mental health disorder or an accepted learning disability had
been given an ASBO. The organisation is concerned that "children
are in danger of being penalised for their disabilities and that
they are likely to be marginalised further by this action",
Research by Squires, P. (2005) New Labour and the Politics of
Anti-social Behaviour, Critical Social Policy, 26 (1), pp 144-168
also found that half of anti-social behaviour cases involved children
with clinically diagnosed ADHD, in addition to other cases where
children had learning difficulties. Back
See for example, Living on the Edge of Despair, The Children's
Society 2008. Back
On 16 May 2008 Peace Sandberg was jailed for 26 months at Isleworth
Crown Court after being found guilty of facilitating illegal entry
into the UK. The illegal entry in question was that of a baby
believed to have been purchased in Nigeria, allegedly so that
Ms Sandberg could claim to qualify for priority housing in the
UK. Ms Sandberg was not prosecuted for trafficking because it
was concluded that the definition of trafficking in section 4
of the Asylum and Immigration (Treatment of Claimants, etc) Act
2004 was inadequate to cover the circumstances in this case. Back
Committee on the Rights of the Child (2008) Consideration of reports
submitted by states parties under article 44 of the Convention.
Concluding observations: United Kingdom of Great Britain and Northern
Ireland. para 74 http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf
DfES (2007) Statistical First Release: Permanent and Fixed Period
exclusions from schools and exclusion appeals in England, 2005-06. Back
Pat Niner, The provision and condition of local authority sites
in England, 2002. Back
UN committee on the rights of the child, 49th session, Concluding
Observations on the United Kingdom of Great Britain and Northern
Ireland, 3 October 2008 (CRC/C/GBR/CO/4). Back