Children's Rights - Human Rights Joint Committee Contents


Memorandum submitted by the Department for Children, Schools and Families

1. INTRODUCTION AND UNCRC

  The Government is fully committed to the United Nations Convention on the Rights of the Child (UNCRC). Our ambitions to improve the lives of all children and young people have been clearly set out in the Children's Plan and this is underpinned by the General Principles of the UNCRC.

September 2008 saw the completion of the UK's reporting year on the implementation of the Convention, culminating with an oral hearing in Geneva. The UN Committee on the Rights of the Child issued the Government with their "Concluding Observations" in October 2008.

The UN Committee welcomed the Government's progress in implementing the Convention and our unwavering ambition to improve the lives of all children and young people. They specifically welcomed the Children's Plan and its links to the UNCRC, making implementation of the Convention a reality on the ground.

  The Government withdrew the remaining Reservations to the UNCRC against article 22 (refugee children) and article 37c (children in custody with adults). The lifting of these reservations is further proof that the Government is delivering on its mission to improve the lives of all children, including the most vulnerable, such as asylum seeking children and children in custody.

  The UN Committee's 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.

  As State party, the UK Government remains responsible for overall coordination of the UNCRC across the UK.

  In December 2008, we published an update to the Children's Plan which sets out England's priorities for taking forward the UN Committee's recommendations. Each Devolved Administration will address the UN Committee's recommendations as appropriate to their national requirements.

  The Government will continue the "four nations" approach taken throughout the reporting process and will continue to hold regular dialogues with officials across the UK.

  In taking forward the UN Committee's Concluding Observations we will continue to build on our strong links and partnerships with Non-Government Organisations (NGOs), the Children's Commissioners and in particular children and young people.

  The paragraphs below provide the Government's response to the JCHR select committee's call for evidence.

2. CHILDREN IN CONFLICT WITH THE LAWThe Select Committee has asked for: The practical impact of the withdrawal of the reservation against Article 37c; what the Government is doing on the treatment of children in detention; the use of restraint; death in custody and criminalisation of children.

 (a) Impact of removing the reservation against article 37c

  Removing the reservation gives formal recognition to our achievement in setting up a discrete custodial estate for young people under 18, in which they are not mixing with older offenders.

Specialist training in working with young people is being extended to cover all custodial staff working in young offender institutions for under-18s.

 (b) Children in detention

  The Government has made it very clear that custody for young people under 18 should be the last resort. Custody will be used when other interventions would not adequately protect the public from harm or where they have not worked. Courts are required by law to consider all possible alternatives before passing a custodial sentence. In the vast majority of cases, young people can be more effectively dealt with in the community under proper supervision where they can remain in key services such as education and health. However, there are serious and persistent offenders for whom community alternatives either have already failed (often repeatedly failed) or are not realistic because of the seriousness of the offence. Deciding what sentence is appropriate in the circumstances of the individual case is, and should remain, a matter for the courts.

In the Youth Crime Action Plan, the Government is committed to a set of principles in relation to custody for young people. They include:

    — promoting the positive development of young people in custody and ensuring that their local authority is involved. In particular, we will address under-achievement in education and the development of relevant skills and qualifications.

 (c) Use of restraint

  The behaviour of some young people in custody is extremely challenging and can put the safety of other young people and of staff at serious risk. However, the relevant legislation and the Youth Justice Board's code of practice Managing Children and Young People's Behaviour in the Secure Estate make it clear that physical restraint is only to be used as a last resort, where all other options have not succeeded or could not succeed. Following the inquests into the deaths in custody of Gareth Myatt and Adam Rickwood (both in 2004), the Government commissioned an independent review of use of restraint in juvenile secure settings. The review,[183] together with the Government's response,[184] was published on 15 December 2008. The review looked in depth at the range of issues relating to use of restraint, particularly the question of safety. It recommended substantial changes in relation to the systems approved for use in young offender institutions and secure training centres. It also recommended that all systems used in the under-18 secure estate should be accredited and proposed significant improvements relating to training, monitoring, inspection and reporting. The Government accepted almost all of the review's recommendations. We are now pressing ahead with the implementation of these recommendations.

 (d) Criminalisation of children

The Government does not want to see the unnecessary criminalisation of children and has taken significant steps, notably through the Youth Crime Action Plan,[185] to both prevent children and young people falling into crime and, where they do display the early signs, to ensure that there are sufficient opportunities to avoid formally entering the criminal justice system. In 2007-08, in England, 10,000 fewer young people entered the criminal justice system for the first time compared to the previous year. The Government's goal is to reduce the number of first-time entrants to the criminal justice system aged 10-17 by one fifth from current levels by 2020.

 (e) Death in custody

The Prisons and Probation Ombudsman automatically investigates the deaths of children in custody and has a duty to carry out an independent investigation into the circumstances surrounding deaths in accordance with Article 3 of E European Charter of Human Rights. The Ombudsman's reports also focus on learning the lessons to help prevent deaths in custody in future. An inquest is held into the death of every young person in custody. Inquests are wholly independent and have a jury which must take into account the evidence presented and come to a conclusion about the probable cause of death. All inquests are compliant with Article 2 of the European Charter of Human Rights.

Following the recommendations made by the coroners investigating two deaths in 2004, the Government published an Action Plan addressing each of the recommendations in turn and setting out work under way to address the recommendations. The latest update to the Action Plan was published in December 2008.[186]

3. REFUGEE AND ASYLUM SEEKING CHILDRENThe Select Committee ask for evidence on: practical impact of the removal of the reservation against article 22; the treatment of Asylum seeking children (with particular interest in the balance of child wellbeing versus deportation).

 (a) Children in the immigration system

  The UK Border Agency (UKBA) is committed to dealing sensitively with children. It has introduced a statutory Code of Practice for Keeping Children Safe from Harm[187] that requires UKBA staff and contractors to be responsive to children's needs in the immigration process. In particular, it requires them to be vigilant for any indications that children might be at risk of harm and to make appropriate referrals to a relevant statutory child protection body. The Code also requires UKBA staff to be trained in specific children's issues. The Government has also decided that the Agency should be subject to a duty to have regard to the need to safeguard and promote the welfare of children, equivalent to that in section 11 of the Children Act 2004. The Borders, Citizenship and Immigration Bill currently before Parliament includes a clause to achieve this.

 (b) Reservation against article 22 (immigration)

On 21 September 2008, following public consultation, the Government announced its intention to remove its general reservation relating to immigration on the UN Convention on the Rights of the Child (UNCRC). The reservation was formally lifted on 18 November 2008. Withdrawing the reservation was made possible largely because of the way UKBA has transformed child protection arrangements since 1991. The UKBA are keeping a close eye on progress and being alert to the need for further improvements in practice.

 (c) Children in detention

Children are detained only where necessary and for as short a period as possible. Children are usually detained under Immigration Act powers only where this is necessary to effect the removal of their family. Unaccompanied children may be detained in the following limited circumstances:

    — very exceptionally, overnight whilst alternative arrangements are made for their care;

    — on the day of a planned removal, to facilitate their safe and supervised escort between their place of residence and the port; and

    — in exceptional circumstances where it can be shown that an ex-foreign national prisoner aged under 18 poses a serious risk to the public and a decision to deport or remove him/her has been taken.

  Where the detention of families with children is prolonged, this is often because their parents frustrate the removal process. The Courts have held that continued detention in such circumstances remains lawful.

 (d) Use of force (restraint)

  It is sometimes necessary to use force to effect the removal from the UK of failed asylum seekers, illegal immigrants and foreign national prisoners. Where children are involved, UKBA uses force only where there is an imminent threat or harm to an individual or to property. It is used only as a last resort when all other avenues of compliance with removal have been exhausted and it must be justified, necessary and proportionate to the situation. Where approval is given to use force on a child, it is carried out using approved Physical Protection in Care techniques; only rarely in very disruptive cases will the use of restraints be appropriate.

The use of force on children in detention is extremely rare and would be considered only for the safety or protection from harm of the child.

 (e) Asylum seeking children

  The complex welfare issues of unaccompanied asylum seeking children are of paramount importance. Such children and young people are not returned to countries unless the family has been satisfactorily traced or acceptable reception and care arrangements are in place. This applies even where unaccompanied asylum seeking children have been found not to need international protection.

In these circumstances discretionary leave may be granted until they reach the age of 17½. Young people have the chance to make a fresh application for permission to stay in the country after this point, or leave the UK. Anyone making a further application to stay on the basis that they are at risk of persecution will need to demonstrate a well founded fear of persecution.

4. DISCRIMINATION AGAINST CHILDREN IN EDUCATIONThe Select Committee has asked for evidence on : discrimination against children on the grounds of age or disability (in relation to the Equality bill); discrimination against children in education (access by vulnerable groups, child participation, complaints, bullying exclusions and segregation).

 (a) Discrimination on the grounds of age or disability

  School children already benefit from protection against discrimination on grounds of disability under the Disability Discrimination Act (DDA) and this protection will not be diluted in the new equality bill.

The age provisions in the proposed Equality Bill will not extend to the under 18s. Extending age legislation to children could have unintended effect of diluting protection that are in place rather than enhancing it.

  A Child's age is closely related to its needs and development and therefore children need to be treated differently as they grow and develop, services for children are tailored in an age-appropriate way and schools are organised according to age. However, pupil will still be well-protected under all the other equality strands such as (disability, ethnicity, gender, religion or belief, gender identity and sexual orientation/identity) and under the general duties of care that schools have to provide.

 (b) Access to education by vulnerable groups

  The Government's aim is a society where all children and young people achieve their full potential and where the momentum of success, enjoyment and learning continues into their adult lives regardless of their social class, ethnicity, gender or ability.

Narrowing attainment gaps between advantaged and disadvantaged groups of pupils remains a top priority for the Government. There is evidence that the gap is narrowing for pupils eligible for free school meals, and for most ethnic groups; sustained rise for black pupils particularly welcome.

  However we recognise that there is still more work to be done. The Government places a particular emphasis on support for those groups most at risk of underachieving such as Gypsy, Roma and Traveller pupils.

  Personalisation and focus on individual progress will further narrow remaining gaps. Strong performance in primary years bodes well for future.

 (c) Children with disability

  The Government is committed to continuing to develop an inclusive education system, whilst recognising both that the general education system in the UK includes a range of provision, including mainstream and special schools, and that some children's needs are best met by specialist provision, which, particularly for those in rural areas, can be some distance from their home. Nor does the Government want to reduce parental choice if such specialist provision was no longer available. So, while mainstream schools can and do work collaboratively with local authorities' support services and special schools, in order to ensure that the wide spectrum of special needs are met, we are seeking an interpretive declaration/reservation to Article 24 of the UN Convention of Rights of People with Disabilities Convention. Following representations we are considering how these concerns should be expressed to best reflect the Government's commitment to inclusion of disabled people.

Aiming High for Disabled Children is the government's transformation programme for disabled children and young people jointly delivered by DCSF and DH. The Government is investing £340 million of revenue funding to improve services such as Short Breaks (£280 million), Transition support for disabled young people (£19 million) and Accessible childcare (£35 million).

  In addition, Aiming High will provide whole system improvements through national expectation setting, performance management and user involvement. These include establishing Core offer standards (building on existing NSF Standard 8) and measuring parental experience of services for disabled children through a disability indicator.

 (d) Child participation

  The Government is committed to engaging the views of children and young people in developing policy. The development of the Play Strategy is a prime example, being based on over 9000 consultation responses from children and young people including disabled children.

The DCSF's Children and Youth Board (CYB) was established as part of the Every Child Matters programme, where a commitment was made to ensuring the participation of children and young people in shaping the services that affect their lives. The Board is made up of 25 Children and Young people aged 8-18 representing a wide range of backgrounds across the Country. The CYB work directly with Ministers and officials on policy development.

  Since its establishment in 2004 the CYB has been instrumental in shaping the DCSF thinking and designing of services for children. The Board has been involved in a range of policy areas including the Teenage Pregnancy Strategy, Youth Matters, Guidance for schools on Disability Discrimination Act 2005, improving school behaviour and the Children's Plan. They also played an important role in the recruitment of the first Children's Commissioner for England. The Children and Youth Board provide an important channel through which the Department seeks young people's views on policies and provides the opportunity to better tailor and implement policy to the needs of children and young people themselves.

  The Government encourages schools to involve pupils in decisions on issues which affect them.

  In March 2008, the Government updated Working Together: Listening to the voices of children and young people guidance[188] which promotes the participation of children and young people in decision-making in schools and provides advice on the principles and effective practice that support such involvement.

  On 17 November 2008, the Government introduced a duty on governing bodies of maintained schools to consider pupils' views on matters, which affect them. Schools will have to consult their pupils on a core set of policies which will be set out in regulations; however they are not restricted to these areas and can consult pupils on any matters they choose that are not prescribed in the regulations. There will be a full consultation during Spring 2009 on the matters on which school must consult and which will be prescribed in regulations. The new duty will come into force from September 2010.

 (e) Complaints

  We will be consulting in the Spring on the broad principle of giving children and young people the right to appeal decisions on exclusions and special educational needs (SEN) assessments and statements. We have already, through the Education and Skills Act (2008), given young peopled from 16 onwards the right to appeal decisions on admissions. The consultation will consider what, if any, additional support is needed to help children and young people through the appeals process. We have recently consulted on giving parents and young people the right to apply to the new complaints service.

 (f) Exclusions

Our focus is on preventing bad behaviour from degenerating to the point where exclusion—and particularly permanent exclusion—is necessary. We asked Sir Alan Steer to review the progress made in improving behaviour in recent years and to look at what more might be done, including increasing the effectiveness of behaviour and attendance partnerships.

Sir Alan produced an initial report in March 2008[189] which recommended involving all schools in partnerships for improving behaviour and tackling persistent absence—98% of secondary schools are reported to be working this way. He reiterated his findings in his more recent report and identified key characteristics of effective behaviour partnerships. We are taking this forward through legislation in the Apprenticeships, Skills, Children and Learning Bill, which has just (4 Feb 2009) been introduced to Parliament. The legislation will require all secondary schools to cooperate in these partnerships.

  We are working with local authorities and schools to encourage a collaborative approach to managing support and provision for pupils at risk of exclusion and those already excluded and to promote the use of preventive strategies to reduce the need for exclusion. Nearly all secondary schools are now working together in local partnerships to improve behaviour and tackle persistent absence.

  We plan to undertake a consultation in Spring 2009 on giving pupils under 18 a right of appeal following their permanent exclusion from school.

  In May 2008, we published the White Paper, "Back on Track", setting out our proposals for transforming the quality of alternative education provision. Central to the "Back on Track" strategy is a focus on early intervention, stronger accountability and increased and better partnership working between all involved—local authorities, maintained schools, special schools, pupil referral units and voluntary/private sector providers. The White Paper emphasised that we want schools and local authorities to make more, and better, use of alternative provision as a form of early intervention to address behavioural problems.

 (g) Bullying

  The Government has sent a strong message to all that bullying is not acceptable in our schools, making it clear that all forms of bullying, including those motivated by prejudice, must not be tolerated and should always incur disciplinary sanctions. Providing a safe and happy learning environment is integral to achieving the wider objectives of school improvement: raising attainment, improving school attendance; promoting equality and diversity; and ensuring the welfare of all members of the school community. Since 1999 all schools have had a legal duty to have measures in place to prevent all forms of bullying in schools. Staff have new powers also to regulate the conduct of pupils when they are outside the school premises.

We have published a comprehensive suite of guidance, Safe to Learn[190] embedding anti-bullying work in schools, which provides schools with advice on how to prevent and tackle all forms of bullying including prejudice-driven bullying and cyberbullying.

  We also published tailored guidance on how to prevent and tackle the bullying of children with SEN and disabilities in schools in May 2008, and this forms part of our "Safe to Learn" suite of guidance. It provides schools with advice on their statutory obligations in respect of children with SEN and disabilities, and outlines a range of strategies and approaches to tackling this form of bullying.

  The Anti-Bullying Alliance and National Strategies are working with Local Authorities and schools to ensure the guidance is effectively implemented in schools, and to provide challenge and support, where necessary.

 (h) Community Cohesion

  In England, the Children's Plan (section 3.96) sets out our aim to achieve a situation where children understand others, value diversity, apply and defend human rights; fulfil their potential and succeed at the highest level possible, with no barriers to access and participation in learning and to wider activities, and no variation between outcomes for different groups; and have real and positive relationships with people from different backgrounds, and feel part of a community, at a local, national and international level.

There is a duty on maintained schools to promote community cohesion which came into effect in September 2007, and which Ofsted have inspected since September 2008. We have published Guidance[191] (in July 2007) and also produced an online resource pack[192] for schools (in May 2008). We are working to encourage local authorities to consider schools and youth services as an integral part of their community cohesion strategies.

5. VICTIMS OF CHILD TRAFFICKINGThe Select Committee has asked for evidence on: child trafficking victims including ratification of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography ( what changes are needed and what is required).

 (a) Child trafficking

  Responsibility for the care, protection and accommodation of child trafficking victims falls within the designated responsibilities of local authorities. Separated and vulnerable children from abroad enjoy exactly the same entitlements as all UK born or resident children.

In July last year we published our revised National Action Plan on Human Trafficking and we ratified the Council of Europe Convention on Action Against Trafficking in Human Beings in December. Both strengthen our existing identification and protection arrangements for child victims of trafficking.

 (b) UNCRC Optional Protocol on the sale of children, child prostitution and child pornography

  The UK Government signed the Optional Protocol in 2001. It has strengthened the law, developed a range of practical measures to assist law enforcement agencies, children's services and other organisations, and strengthened mechanisms for international cooperation. The UK is currently taking the necessary formal steps to complete the process of ratifying the Optional Protocol.

6. CHILD POVERTYThe Select Committee ask for evidence on how best to enshrine in law the Government's goal of eradicating child poverty by 2020, in view of the right of every child to an adequate standard of living under article 27.

  Significant progress has already been made: between 1998/99 and 2006/07, some 600,000 children have been lifted out of relative poverty and the number of children living in absolute poverty has halved from 3.4 million to 1.7 million children (HBAI 2005-06). We estimate that had the Government done nothing and simply uprated the 1997 tax and benefit system in line with prices, around 2 million more children would be likely to live in poverty today. In addition, Government measures over the past two years will result in lifting around a further 500,000 children out of relative poverty.

  In 2008 the Government stated its intention to introduce legislation to enshrine in law our pledge to eradicate child poverty. This will reinforce the 2020 commitment to eradicate child poverty and help to ensure that we stay on course and take action now to tackle the causes as well as the consequences of poverty. Legislation will set out a clear definition of success and create an accountability framework to drive and accelerate progress at national and local level. We are currently consulting with stakeholders on how legislation can best drive the action needed, with a Bill to be introduced in Spring this year. Current proposals include the nature and level of targets, a duty to set a strategy, a duty to report annually on progress, and the establishment of an expert commission to feed into the strategy.

7. PARTICIPATION OF CHILDREN IN THE ARMED FORCES

  As the Government made clear in its interpretive declaration on the Optional Protocol on the Involvement of Children in Armed Conflict, the minimum age of entry into the UK Armed Forces remains at 16 and recruitment is totally voluntary. No applicant under 18 years of age may join the Armed Forces unless the application is accompanied by the formal written consent of his/her parent or guardian.

We recognise the importance of providing special treatment for young people under the age of 18 serving in the Armed Forces and our policy is not to deploy under-18s on operations and we have introduced administrative guidelines and procedures to ensure they are withdrawn from their units before they are deployed to hostilities. We believe that our policies on under-18s are robust and compliant with national and international law. Naturally, we will continue to keep them under review.

  In financial 2007-08 a total of 5,980 under-18s were recruited into the Armed Forces (Royal Navy 830; Army 4,750; Royal Air Force 400), which represents approximately 28% of the total intake.

February 2009





183   Independent Review of Restraint in Juvenile Secure Settings Peter Smallridge and Andrew Williamson, December 2008. Back

184   The Government's Response to the Report by Peter Smallridge and Andrew Williamson of a Review of the Use of Restraint in Juvenile Secure Settings; December 2008, Cm 7501. Back

185   H M Government Youth Crime Action Plan 2008, July 2008. Back

186   The Government's response to Coroners' recommendations following the inquests of Gareth Myatt and Adam Rickwood, December 2008. Back

187   UK Border Agency Code of Practice for Keeping Children Safe from Harm, issued under Section 21 of the UK Borders Act 2007, UKBA, December 2008. Back

188   DCSF(2008) Working Together: Listening to the voices of children and young people http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf  Back

189   http://www.dcsf.gov.uk/behaviourandattendance/uploads/Steer%20interim%20260308FINAL.pdf Back

190   http://www.teachernet.gov.uk/wholeschool/behaviour/tacklingbullying/safetolearn/ Back

191   http://www.teachernet.gov.uk/wholeschool/Communitycohesion/Community_Cohesion_Guidance/ Back

192   http://www.teachernet.gov.uk/wholeschool/Communitycohesion/communitycohesionresourcepack/ Back


 
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