Children's Rights - Human Rights Joint Committee Contents


Memorandum submitted by the National Society for the Prevention of Cruelty to Children

  The National Society for the Prevention of Cruelty to Children (NSPCC) is the UK's leading charity specialising in child protection and the prevention of cruelty to children. The NSPCC's purpose is to end cruelty to children. We seek to achieve cultural, social and political change—influencing legislation, policy, practice, attitudes and behaviours for the benefit of children and young people. This is achieved through a combination of service provision, lobbying, campaigning and public education.

The NSPCC exists to end cruelty to children through a range of activities which aim to:

    —  help children who have suffered abuse overcome the effects of such harm;

    —  prevent children from suffering abuse;

    —  prevent children from suffering significant harm as a result of ill-treatment;

    —  help children who are at risk of such harm; and

    —  protect children from further harm.

  We have teams and projects throughout England, Wales and Northern Ireland. Their work includes:

    —  Providing telephone support for C&YP via ChildLine.

    —  Providing telephone support for adults concerned about the welfare of a child

    —  Providing support for vulnerable children, young people and their families to help keep these C&YP safe and well cared for

    —  Providing services for children, young people who need help to overcome the impact of abuse.

CHILDREN'S HUMAN RIGHTS

  The NSPCC seeks to promote children's human rights in our direct services and public influencing activities. We consider that the UK Government has made some progress in accepting the need to embrace a culture of respect for children's rights but there is still a very long way to go; for example Article three of the United Nations Convention on the Rights of the Child (UNCRC), the right for the child's best interests to be given primary consideration, is not well established in English law and practice. The UK Government has an obligation to implement the UNCRC in full; we consider that this should include incorporating the convention into domestic law and making provisions for the convention rights to be enforced through the courts. The NSPCC shares the concerns expressed by the UN Committee on the Rights of the Child about the lack of systematic awareness of the Convention among children, parents and professionals who work with children.[405]

All children should be protected from abuse or maltreatment, in accordance with Article 19 of the UNCRC. When children experience abuse they should have access to therapeutic interventions to help them to overcome its effects and move forward with their lives. In 2008, the UN Committee on the Rights of the Child recommended that the UK Government should provide access to adequate services for recovery, counselling and reintegration for children who experience abuse and maltreatment.[406] The NSPCC is aware of significant problems in the availability of therapeutic services for abuse recovery including low availability of services for children and young people; a lack of specialist services and where specialist services are provided it is often when a child or young person is showing more severe symptoms of mental health and behaviour problems. Children living in rural areas and young people from ethnic minority backgrounds find that services are even less accessible.

  In this submission we focus on our experience of providing services to children in detention, children seeking asylum and children who have been trafficked into the UK and whose rights to protection are therefore being breached. In our experience, these are some of the most vulnerable children in our society, many of whom experience abuse and maltreatment. They are often "invisible" to mainstream services and wider society, but we all share a responsibility to safeguard and promote the protection and rights of these children. We also highlight the need to give children equal protection from assault.

CHILDREN IN DETENTION

  It is an established principle in the UNCRC that children in youth justice settings should always be treated as children first and that the best interests of the child should be paramount in all decisions that affect children in these settings. The UN Committee on the CRC concluding observations' establishes the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle.[407] The NSPCC considers that most children in custody do not need to be locked up to protect others from serious harm. Ministry of Justice data[408] shows that the number of juveniles sentenced has risen by 4% since 2006 and by 23% since 1997 and there has been a 56% rise in the number of female juveniles sentenced between 1997 and 2007. The NSPCC recommends that the resources that are currently put into locking up low-risk children should be diverted into community-based initiatives; the use of prison accommodation for young people should be gradually phased out and the Government should adopt a child welfare and children's rights approach to youth justice, instead of the punitive approach that it currently uses.

The NSPCC is working in partnership with the Children's Rights Alliance for England (CRAE) and INQUEST to call for a ban on the use of painful restraint techniques on children in secure settings. In July 2008 we contributed to the Court of Appeal case RC v Secretary of State for Justice,[409] and we have been campaigning to raise awareness of the issue with the public and parliamentarians. We were extremely disappointed that the Review of Restraint in Juvenile Secure Settings concluded that in certain "exceptional circumstances" there is still a place for pain-compliant restraint.[410] The NSPCC considers that restraint should only be permissible where necessary to prevent significant personal injury to the child or another person; this should always be a measure of last resort and for transparent, narrowly defined purposes which should be set out in regulation. The Government has now committed to revising the entire system governing the use of pain restraint however; we remain concerned that the Government's response has failed to acknowledge the importance of safeguarding children's human rights.[411] A new system of restraint must include essential safeguards to ensure that children's safety, their human rights and their physical and emotional wellbeing are upheld. In particular the NSPCC is calling on the Government to:

    —  End the use of pain restraint or distraction techniques across the entire secure estate and implement an explicit legal prohibition of corporal punishment of children in the secure estate.

    —  Accept the Appeal Court's finding that the amendment rules breach children's human rights, and prohibit restraint for the purpose of maintaining good order and discipline and ensure when reviewing legislation and guidance that this is upheld.

    —  Introduce clear and consistent minimum standards, guidance and training across the entire secure estate. The Government needs to establish a culture where de-escalation techniques are used and staff feel confident and equipped to use discussion and negotiation to deflect conflict.

    —  Establish an Article 3 public inquiry into the unlawful use of restraint on children.

    —  Establish rigorous monitoring of restraint to ensure it is not used unnecessarily and publish these findings for independent scrutiny.

    —  Ensure that all children who have been restrained are able to access the appropriate support including therapeutic interventions and advocacy services if necessary. The Government must also ensure that there is independent monitoring of the treatment of all children in custody.

CHILDREN WHO ARE ASYLUM SEEKERS OR REFUGEES

  In line with their status in the CRC, refugee and asylum-seeking children are children first and foremost. The asylum process should not in any way compromise or militate against their proper care, protection and development. We have direct experience of working with asylum-seeking and separated children in our young people's centres, advocacy projects and therapeutic services.

The NSPCC publicly commended the Government for its decision to remove the immigration reservation to Article 22 of the UNCRC. We regard this as an important step towards rectifying some longstanding violations of children's rights. As the Government announced the withdrawal of the immigration reservation only in September 2008 it is too early to asses fully the practical implications of this decision The NSPCC recommends that the Government should introduce the following measures to safeguard and promote the welfare of children seeking asylum:

    —  The asylum system should be reviewed and a child-rights approach should be developed to ensure that asylum-seeking or separated children receive the help and support they need to make their application, and recover from the trauma they have experienced.

    —  All separated children[412] should have access to an independent guardian who can provide support through the asylum screening process.

    —  Asylum seeking children should never be detained for the purposes of immigration control. Detention, even for a short time is damaging to their physical and emotional health

    —  Families should not be split for the purposes of immigration control. This includes separating families by detaining certain family members or by forcing families to return separately.

    —  Asylum seeking children should be afforded the same rights and protection as other children. Currently they are the only group of children the DCSF is not responsible for, this should be amended immediately.

    —  A specialist support system is needed, including better access to culturally sensitive counselling services, especially for those children who may have experienced torture, political violence and other forms of persecution.

    —  Asylum seeking children should not be forcibly returned to their country of origin. All decisions about whether to return a child should be based on the principle of best interests.

    —  Refugee families should receive the same level of income support as other families so that they have the same ability to provide for their children's needs.

CHILD TRAFFICKING

  The NSPCC has considerable expertise and knowledge of trafficking which comes both from direct services and policy influencing. Our Sexual Exploitation Service (SES) based in East London works with children who have been sexually exploited and are separated from their families and "unaccompanied" children who have been trafficked. We also run the Child Trafficking Advice and Information Line (CTAIL), which helps immigration officers, the police, social workers, and others working or volunteering with children to identify and protect victims of trafficking. The service is funded by the Home Office and Comic Relief, and runs in partnership with the Child Exploitation and Online Protection Centre (CEOP) and End Child Prostitution, Child Pornography and the Trafficking of Children for Sexual Purposes (ECPAT UK).

We are concerned that there is a lack of awareness and identification of trafficked children and a lack of support and care available to them. In general we have found that without specific advocacy children who have been trafficked do not trigger an appropriate child protection response. We consider that there is an urgent need to improve the immediate response to children who are identified as having potentially been trafficked to stop such high numbers of these children going missing. We are also concerned that the long-term recovery of those children who have been identified is marred by an unsympathetic and punitive asylum process which discounts much of their evidence of trafficking. We have supported a number of trafficked children who have needed to claim asylum in order to remain in the UK and who have had their claims rejected.

  Since our last submission to the Joint Committee on Human Rights in 2006, we remain concerned that a focus on immigration control continues to take precedence over concerns about the welfare of trafficked children and a child protection and child rights-based response to their situation. In this respect we have so far been disappointed by the Government's approach to implementing the Council of Europe Convention on Action against Trafficking in Human Beings, which has been a very narrow and legalistic application of the Convention that we do not consider to be in keeping with the victim-centred spirit and purpose of the Convention itself. There exist a number of special protection measures recommended in the Convention that the Government has so far failed to deliver including offering children the benefit of the doubt in age assessments or implementing elements of best practice such as guardianship and the appointment of a "National Rapporteur".

  The NSPCC is concerned that trafficked children maybe inappropriately criminalised. We are aware of problems with children who have been trafficked into the country for the purpose of labour exploitation—specifically children who have been made to work in cannabis factories—who are then prosecuted for drugs crimes rather than the local police and Crown Prosecution Service (CPS) understanding or acknowledging that they have been exploited. The NSPCC considers that this situation is unacceptable and that children exploited for labour are in need of protection and must not be prosecuted. In our view there is an urgent need to develop a clear protocol, agreed between the police and the CPS, for ensuring that such children are not subject to criminal prosecution.

  The NSPCC recommends:

    —  The appointment of an independent guardian or advocate for any child who may have been trafficked as soon as possible in order to provide emotional, practical and legal support to the child.

    —  Full care status for trafficked children and the development of specific specialist services for child victims (including access to safe accommodation).

    —   The introduction of a system of renewable residence permits for children who have trafficked which also allow them sufficient time to recover before having to make an asylum claim.[413]

    —  Children have great difficulty establishing claims for asylum under the 1951 Refugee Convention and as such if a child has been trafficked or experienced other child-specific forms of persecution they should be given leave to remain. It may be appropriate to return a child to their country of origin, but this should only be in cases where the return is the child's "best interests".[414]

    —  The appointment of a "National Rapporteur"[415] to act as a central point of data collection for information about trafficked children and to provide independent scrutiny and review of progress on child trafficking

    —  That the UK Government should fully implement the Council of Europe's Convention on Action Against Trafficking in Human Beings in the spirit it is intended and in doing so provide specific funding for specialist protection measures for child victims.

EQUAL PROTECTION

  The NSPCC would urge the committee to consider the need to give children equal protection from assault as part of this inquiry into children's rights as this issue represents a significant children's right violation which the Government has consistently failed to address. Section 58 of the Children Act 2004 provides parents who are charged with common assault against children with a legal defence of "reasonable punishment". This defence is in breach of children's human rights, as established under the UNCRC and the European Social Charter. In 2008, the UN committee on the Rights of the Child repeated its recommendation that the UK Government should, "as a matter of urgency prohibit all corporal punishment in the family including through the repeal of all legal defences".[416]

Since the JCHR last considered this issue in 2004, new prosecution guidance issued by the Sentencing Guidelines Council in 2008 means that in practical terms the law is now similar to the situation before the enactment of the Children Act 2004. This is because courts will now consider the principle of `reasonable punishment' when a parent is prosecuted for assault occasioning actual bodily harm, even though the legal defence is no longer available for this charge.[417] We consider that law reform is necessary, not only to fulfil children's human rights, but also to reduce violence against children; improve the effectiveness of our child protection arrangements and to provide a clear foundation for the promotion of positive discipline, as we set out in our submission of evidence to the Government's review of the effects of Section 58 in August 2007.[418] We urge the Joint Committee on Human Rights strongly to recommend that the Government should remove the "reasonable punishment" defence from section 58 of the Children Act 2004.

February 2009






405   United Nations Committee on the Rights of the Child, concluding observations: United Kingdom of Great Britain and Northern Ireland available at: http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf Back

406   IbidBack

407   IbidBack

408   http://www.justice.gov.uk/docs/sentencing-statistics-2007.pdf Back

409   R (C) v Secretary of State for Justice [2008] EWHC 171 (Admin), CO/6174/07. Back

410   Available at: http://www.justice.gov.uk/docs/restraint-review.pdf Back

411   Government's response to the report of the Parliamentary Joint Committee on Human Rights on restraint, dated 17 July 2008. Back

412   Separated children are children under 18 years of age who are outside their country of origin and separated from both parents or their previous legal/customary primary caregiver. Some children are totally alone while others may be living with extended family members. All such children are separated children and entitled to international protection under a broad range of international and regional instruments. Back

413   The Joint Committee on Human Rights recommended in its 2006 report that trafficked children be given an automatic right of residence and that this should not be conditional on their willingness to give evidence in criminal proceedings against their traffickers. Back

414   Leave to remain in the UK for Children who are the victims of trafficking should not be conditional on their willingness to testify against their traffickers. Back

415   The appointment of a National Rapporteur or other comparable mechanism was a recommendation of the European Commission's Experts Group on Child Trafficking in Human Being and the Council of Europe Convention on Action in Human Beings which the UK Government has now ratified. It would comprise of an independent institution that collects data and makes recommendations on the development of policy. Back

416   United Nations Committee on the Rights of the Child, concluding observations: United Kingdom of Great Britain and Northern Ireland available at: http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf Back

417   Sentencing Guidelines Council, (2008) Assault on children and cruelty to a child Definitive Guidelines, available at: http://www.sentencing-guidelines.gov.uk/docs/Overarching principles assaults on children and cruelty to a child.pdf Back

418   See NSPCC response to the DCSF Review of Section 58 of the Children Act 2004, available at: http://www.nspcc.org.uk/Inform/policyandpublicaffairs/Consultations/2007/s58_wdf49990.pdf Back


 
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