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 changeinfluencing 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
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.
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.
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.
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.
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.
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
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,
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.
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
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
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.
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
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
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
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.
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 exploitationspecifically children who have been
made to work in cannabis factorieswho 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
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.
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
The appointment of a "National
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.
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".
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.
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.
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.
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
R (C) v Secretary of State for Justice  EWHC 171
(Admin), CO/6174/07. Back
Available at: http://www.justice.gov.uk/docs/restraint-review.pdf Back
Government's response to the report of the Parliamentary Joint
Committee on Human Rights on restraint, dated 17 July 2008. Back
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
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
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
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
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
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
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