Children's Rights - Human Rights Joint Committee Contents


Memorandum submitted by the Equality and Human Rights Commission

INTRODUCTION

  1.  The Equality and Human Rights Commission ("the Commission") is an independent statutory body established under the provisions of the Equality Act 2006 with powers to enforce equality legislation on age, disability, gender, race, religion or belief, sexual orientation and transgender status in Great Britain and a unique mandate to promote the understanding of the Human Rights Act in England and Wales with a limited jurisdiction for human rights issues in Scotland.[215] The Commission liaises with the Equality Commission for Northern Ireland which has the equivalent equality remit for that region.

2.  The Commission heralds a major shift in the way we tackle inequality and promote human rights in GB. The Commission works across all the grounds of equality—gender, gender identity, race, disability, age, sexual orientation, and religion—and much of the important work of the predecessor commissions (the CRE, EOC and DRC) has been taken on by the Commission and will continue to be developed in its work. The Commission's mandate applies to people of all ages.

3.  The Commission has a tripartite mandate of equality, human rights and good relations. The importance of fundamental rights is reflected in our strategic priorities and our vision.[216]

  4.  The Commission's duties in relation to human rights are:

    — to promote understanding of the importance of human rights;

    — to encourage good practice in relation to human rights; and

    — to encourage public authorities to comply with the Human Rights Act[217] (HRA).

EHRC'S HUMAN RIGHTS INQUIRY

  5.  In the first six months of its operation, the Commission launched a human rights inquiry.[218] The aims of this inquiry are to assess progress made in the 10 years since the enactment of the Human Rights Act towards the effectiveness and enjoyment of a culture of respect for human rights in GB and to consider how the current human rights framework might be developed to realise the Commission's vision of a society built on fairness and respect, confident in all aspects of its diversity. The Commission intends to publish the findings and recommendations of the inquiry in April 2009.

IMPLEMENTATION OF THE CONVENTION ON THE RIGHTS OF THE CHILD

  6.  Although the UK Government has ratified the UN Convention on the Rights of the Child it has not incorporated the Convention into domestic law. Consequently, the Convention is not directly enforceable in national courts and there can be no individual cause of action for breach of the Convention. However the Convention is increasingly being quoted in Human Rights Act judgments, so has persuasive authority in the courts.

7.  The guiding principle and bedrock of the Convention—that the best interests of the child shall be a primary consideration—is not implemented in all areas of policy and legislation. The Commission would like to see that this principle applies in all court proceedings, including criminal proceedings where a child is the defendant. We would also like to see this principle applying in immigration and asylum procedures.

  8.  Some of the rights contained in the Convention on the Rights of the Child have been implemented into domestic law by the incorporation of the European Convention on Human Rights (ECHR) in the Human Rights Act.

  9.  The Commission considers that it is possible to implement many of the rights set out in the Convention which have not yet been implemented into domestic law through the UK signing, ratifying and incorporating into domestic law, via the Human Rights Act 1998, Protocols 4, 7[219] and Optional Protocol 12[220] of the ECHR. The UK Government has undertaken since 1999 to sign and ratify Protocol 7, noting that the only obstacle to doing so is amending three discriminatory rules of matrimonial property law.[221] Those steps would help to bring the UK domestic law in line with the CRC. The Commission awaits the Government's consultation paper on a Bill of Rights for Britain and hopes that this process leads to a strengthening of the Human Rights Act over time, and the constitutional protection of all of the civil and political rights contained in all of the international human rights treaties.

  10.  Discrimination and social stigmatisation continue to be experienced by certain groups of children: Roma and Irish Travellers' children; migrant, asylum-seeking and refugee children; lesbian, bisexual, gay, and transgender children (LBGT); and children belonging to other minority groups.

  11.  The Commission recommends:

    — strengthening awareness-raising and other preventative activities against discrimination and, if necessary, taking affirmative action for the benefit of vulnerable groups;

    — investing considerable additional resources in order to ensure the right of all children to a truly inclusive education which ensures the full enjoyment to children from all disadvantaged, marginalized and school-distant groups and which teaches human rights, peace and tolerance in schools; and

    — the UK Government's proposal to introduce a Single Equality Bill should include the adoption of an integrated equality duty which has the flexibility to identify and meet the needs of harder to reach or neglected groups, including children.

Issues of particular interest

Children in detention (including the use of restraint and deaths in custody)

  12.  The Commission welcomes the outcome of the Court of Appeal case of R (on the application of C) v Secretary of State for Justice, which quashed the statutory instrument allowing the use of physical restraint to maintain good order and discipline in secure training centres. The Commission intervened with written submissions in the hearing, arguing that the Government failed in its statutory obligations to carry out a race equality impact assessment before introducing the new statutory instrument.

13.  The Commission welcomes the report from the Independent Review of Restraint in Juvenile Secure Settings, and in particular welcomes the recommendation that safe restraint techniques must be used which do not rely on pain compliance. We agree with the recommendation that force should only be used to prevent risk of harm, and that only approved restraint techniques should be used. We also support the recommendation that force and restraint should only be used in the context of an overall approach to behaviour management.

14.  The UK Government should amend the legislation on the use of physical restraint to make it explicitly clear that the use of physical restraint is not permissible for the purposes of good order and discipline in any setting where children are in custody.

  15.  There should be six monthly reports to Parliament on the number of restraint incidents broken down by the specific purposes for which restraint was necessary and ethnic origin of the detainee.

The practical impact of the withdrawal of the UK's reservations on immigration and children in custody with adults to the UN Convention on the Rights of the Child (UNCRC)

  16.  We welcome the withdrawal of the UK's reservation to Articles 22 and 37(c) of the UN CRC. We would like to see the Government going further, and would like to see the signing, ratification and incorporation into domestic law Protocol 4 to the European Convention on Human Rights through the Human Rights Act to prevent the frequent transfers of asylum-seeker children from one area to another.

17.  The Commission would also like to see Article 40 of the UN CRC put into full effect. In particular this means that children receive a fair hearing, taking into account their age and maturity, and that children who commit offences are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence that they have been sentenced for.

DISCRIMINATION AGAINST CHILDREN ON THE GROUNDS OF AGE OR DISABILITY

Age discrimination

  18.  The Commission's position in respect of age discrimination is that discrimination on the grounds of age should be unlawful if it is based on prejudice or stereotypes, or is not evidence based, justified and proportionate. Because discrimination on the grounds of age can sometimes be objectively justified, direct discrimination should not automatically be unlawful (in contrast to race, gender, etc, where direct discrimination can never be justified). The above two principles are the basis of both current domestic law and the existing EU Directive.

19.  The Commission therefore considers that age discrimination should be unlawful in the delivery of goods and services, as well as in employment and that age discrimination directed at children and young people should also be unlawful unless justified. The Commission will work towards the introduction of provisions in the Equality Bill to ensure that children and young people are protected against discrimination, with appropriate exemptions to meet the particular needs of different age groups.

Disabled children in specialist care

20.  We would like to see children in long term residential placements benefiting from the safeguards afforded to children with looked after status for example, monitoring and regular reviews of their care.

ASYLUM SEEKING/REFUGEE CHILDREN

  21.  There should be a duty to have regard to the child's best interests in the exercise of immigration and nationality functions. Detention of children as a last resort should be a statutory principle.

22.  The UK Government should collect and publish either annual or quarterly statistics on the number of children detained under Immigration Act powers.

  23.  Unaccompanied Asylum Seeker Children should have looked- after status and be entitled to remain in care or foster care until the age of 21 as other looked-after children.

  24.  The Commission would like to see the following:

    — detention of asylum-seeking and migrant children is always used as a measure of last resort and for the shortest appropriate period of time;

    — the appointment of guardians to unaccompanied asylum-seekers and migrant children; and

    — the return of unaccompanied asylum seeker children happens with adequate safeguards, including an independent assessment of the conditions upon return, including family environment.

  25.  The Government has refused to sign and ratify Protocol 4 to the ECHR; article 2 of Protocol 4 provides that everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence. The Commission urges the ratification and incorporation of Protocol 4 to prevent the forced transfers of asylum seeker families and their children from one area to another within Great Britain.

  26.  There is also a partial exemption to the public sector equality duty in relation to race and that is for immigration and nationality functions. In the exercise of immigration and nationality functions a public authority does not have to promote equality of opportunity. This provides weaker protection for children who are subject to immigration control, and to asylum-seeking children in particular Child trafficking victims (including ratification of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography).

  27.  The Commission welcomes the announcement that all necessary legislative and other measures have been taken to initiate the process of ratifying the Optional Protocol on the sale of children, child prostitution and child pornography.[222] We are aware of the Government's consideration that it first needs to introduce a range of new offences[223] to ensure that it is fully compliant with the Protocol and that this requires primary legislation. The Commission is of the view that the decision to ratify the Protocol ought not to rest on the prior adoption of statutory law, as these legislative changes can follow after the ratification of the Optional Protocol, and urge the adoption of this protocol at the earliest opportunity.

DISCRIMINATION AGAINST CHILDREN IN EDUCATION

Special Educational Needs Statements

  28.  The UK Government should act promptly to ensure that looked—after children with special educational needs (SEN) have an independent right to appeal decisions on support for their needs.

School exclusions and attainment levels

29.  The frequency and duration of temporary exclusions should be monitored more closely and there should be a review of the adequacy of the Pupil Referral Units.

30.  The strategies which have been adopted by the UK Government to tackle the high exclusion rate of black pupils should be extended to tackle the high rates of exclusion and low levels of attainment for Gypsy and Traveller children and other groups who are similarly affected eg looked—after children, children with SEN and asylum seekers.

Bullying and harassment

31.  The Government must ensure that its guidance for schools on how to respond to bullying behaviour and to victims of bullying focuses on all forms of discrimination and this should be supported by a comprehensive training programme for staff, and action on bullying should be monitored by inspection bodies.

32.  A proactive "whole school approach" is essential to tackle all forms of bullying. The proposed single equality duty will be crucial in ensuring that schools take the necessary steps to tackle problems such as homophobic bullying and bullying on religious grounds. This would build on the current equality duties requiring schools to tackle bullying on the grounds of gender, race and disability.

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 UNCRC

  33.  The Commission welcomes the Child Poverty Bill, as it will put a renewed emphasis on the Government's commitment to ending child poverty. A cross government approach is essential to achieving the 2020 target as success will depend on:

    — improving childcare provision, both pre-school and up to age 14, both its quality and quantity;

    — improving access to flexible working arrangements;

    — training and where necessary re-skilling people;

    — preparing people for work; and

    — providing support both as they prepare for work and also when they start back in employment.

  34.  A Child Poverty Act, once on the statute books, will place the issue of Child Poverty on the agenda for future governments and commit them to continuing to make progress towards the target of eradication of child poverty by 2020.

  35.  We also welcome the government proposals on Welfare Reform and the determination to offer the many sectors of workless people the support to get back to work. However work only becomes an effective route out of poverty if it is sustainable, sufficiently well paid, accessible for people who need to have some form of flexibility in their working arrangements (for caring responsibilities, reasonable adjustments, etc.) and there is available, affordable childcare. Many groups simply do not have access to these kind of jobs.

  36.  The EHRC has an important role to play in identifying who is at risk of poverty in its many forms, communicating to the public the multiple layers of disadvantage and their relationship to poverty, in order to move towards a more equal society.

CRIMINALISATION OF CHILDREN

Age of criminal responsibility

  37.  There should be an independent review of the effect of the abolition of the rebuttable presumption that a child aged 10 to 14 is incapable of committing an offence. The recent reports that Ministers are considering raising the age of criminal responsibility in Scotland is a welcome development and the Commission would like to see similar considerations taking place in England and Wales, following recommendations from the UN Committee.

ASBOs

38.  The "naming and shaming" of children who are prosecuted for breach of an ASBO is inconsistent with principles of the child's best interests, welfare and rehabilitation, and should cease.

39.  As part of their equality duties under the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Sex Discrimination Act 1975, local authorities and the police should ensure that they monitor the impact of their anti-social behaviour policy on racial and disabled groups and gender and collect data on the number of ASBOs served, broken down by ethnicity, disability, special educational needs and gender. This data should be included in Criminal Justice statistics placed in the public domain.

PARTICIPATION OF CHILDREN IN THE ARMED FORCES

  40.  The Commission welcomes the Government's ratification of the Optional Protocol on the Involvement of Children in Armed Conflict. The Commission does not consider that children and young people under the age of 18 should be recruited into the armed forces at all, and is keen to see all reservations to this protocol being dropped, and to establish when the protocol will be brought into full effect.

February 2009






215   The Commission has jurisdiction over human rights issues in Scotland where it relates to a power "reserved" to the Westminster parliament. In relation to powers "devolved" to the Scottish parliament, the Scottish Commission for Human Rights (SCHR) have jurisdiction. Back

216   Our vision is a society built on fairness and respect, where people are confident in all aspects of their diversity. Back

217   Section 9 of the Equality Act. Back

218   www.equalityhumanrights.com/en/projects/humanrightsinquiry/Pages/HumanrightsInquiry.aspx Back

219   Protocol 4 strengthens article 5 of the ECHR (right to liberty) and includes the right to liberty of movement and freedom to choose residence for everyone lawfully within the territory of a state. Protocol 7 provides procedural safeguards relating to the expulsion of aliens, ensures a right of appeal in criminal matters, provides for compensation for wrongful convictions, protects against an individual being tried or punished twice, and provides for equality between spouses. Back

220   Optional Protocol 12 provides a free-standing right to non-discrimination similar to article 26 of the ICCPR. Back

221   Review of International Human Rights Instruments (Amended), 27 October 1999. See also Department of Constitutional Affairs, International Human Rights Instruments: The UK's Position, Report on the outcome of an Inter-Departmental Review (2004), summarised in a press release of 22 July 2004: http://www.gnn.gov.uk/content/detail.asp?ReleaseID=124322&NewsAreaID=2&NavigatedFromSearch=True  Back

222   As stated in the Concluding Observations of the Committee on the Rights of the Child for the UK, CRC/C/GBR/CO/4. Back

223   The Government will need to criminalise the trafficking of people for the sake of exploiting their labour, transfer of organs and illegal adoptions. Back


 
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