Children's Rights - Human Rights Joint Committee Contents

Memorandum submitted by the Office of the Children's Rights Director for England (OCRD)


  The post of Children's Rights Director for England was created in 2002. It was then hosted by the National Care Standards Commission, became subsequently hosted in 2004 by the Commission for Social Care Inspection, and since 1 April 2007 has been based in the Office for Standards in Education, Children's Services and Skills (Ofsted). The post is required under section 120 of the Education and Inspections Act 2006, with its statutory functions determined by the Office for Standards in Education, Children's Services and Skills (Children's Rights Director) Regulations 2007.

The main statutory functions of the Children's Rights Director are:

    — To ascertain, advise and report on the views of children (and where appropriate their parents) about services for children living away from home, receiving children's social care services, or leaving care.

    — To advise and assist Her Majesty's Chief Inspector (Ofsted) on children's rights and welfare.

    — To raise matters of policy or individual children's issues that the Children's Rights Director considers significant.

  Consultation topics are determined by the Children's Rights Director, from issues raised by children themselves, or raised through the inspection work of the current host inspectorate, and (increasingly) at the invitation of Department for Children, Schools and Family (DCSF) officials and Ministers to provide an independent children's voices input to policy developments. A recent, and most relevant, example has been consultation with children to feed into the Government's submission to the United Nations Committee, for the purposes of this 3rd and 4th consideration of the UK.

  Office of the Children's Rights Director consultation work has resulted in a series of "Children's Views" reports (41 to date) which are circulated to all the children who took part, to councils with children's social care responsibilities, to Ministers and opposition spokespersons, to DCSF officials, to the UK Children's Commissioners, and to a list of children's organisations and interested individuals and policymakers. All Children's Rights Director reports are published, both as hard copy and pdf versions, the latter of which are posted on our website at:

  Whilst I would recommend all of these reports to the Committee I attach here some that may be of particular relevance to the enquiry:

    Children on Bullying; Children's Views on Restraint; Looked after in England; Policies by Children; Rights and Responsibilities; Young Carers and Children's Care Monitor 2008.

  In this submission, I have focused specifically on the areas highlighted in the 2008 concluding observations of the UN Committee of the UK Report on the compliance with the UN Convention on the Rights of the Child. The following comments relate to children living away from home, receiving children's social care services or young people leaving care and sets out the areas of interest as requested by the Enquiry. This submission is made in my capacity as Children's Rights Director, representing the views and issues raised from children and young people. It is not therefore being made on behalf of Ofsted.


  It is recognised that there are many areas in which there has been progress in taking forward children's rights. Much of the legislation now, and being brought into place, and the rich infrastructure of children's rights and advocacy services, signal a healthier regard for children's rights and welfare. It is widely acknowledged that children in England are listened to in many more aspects of their lives than at any time in the past, and that there is now better legislation and policy guidance in place to encourage and support this.

The issue is less now that Children's Rights need reflecting in legislation but what is in legislation needs to be reliably delivered to each individual child.


  Whilst much of the main attention will rightly concern the increasing numbers of children in detention (for reasons of criminal justice, asylum or mental health), there are other children at risk of being arbitrarily and unlawfully deprived of their liberty, whilst in residential care and education, other than by the State.

There is Ministerial and Chief Inspector level support in trying to outlaw practices, mainly in some children's homes and residential special schools, which in effect are restricting the liberty of children entrusted to their care. One area where there is a noticeable silence in terms of government guidance is where this relates to some children with severe disabilities. Whilst the law applies equally to all children I have had a number of individual cases raised by concerned carers where the right to safety and the young person's welfare needs have required some restriction of liberty on a regular basis and this has been in conflict with the legal position. This is an area in which both the law, and the application of it, could be strengthened further in the interests of children's rights.

  I reported in Children's Views on Restraint: The views of children and young people in residential homes and residential special schools, [December 2004] that whilst accepting that they sometimes needed to be restrained, children and young people have expressed concerns that restraint is sometimes used as a punishment or to get them to comply with something, rather than to avoid likely injury to someone or serious damage to property. Many also reported that sometimes they are hurt during restraint. Most often this is when they are restrained by staff that are not sufficiently trained or experienced enough to know how to physically restrain children safely.

  In addition to the recent deaths in secure training centres, following physical restraint, there are many other less well-reported cases of children sustaining serious injury whilst being restrained, which are not confined to custodial settings.

  Staff looking after children, in any setting where challenging behaviour is likely, should be trained and skilled in "de-escalating" situations before restraint becomes necessary, in when restraint can and cannot be used, in how to use restraint without causing pain either deliberately or accidentally, in how to use restraint without risk of injury to the child, and in the likely outcomes of restraint for children who are restrained. With the exception of what should not be done there has been no DoH/DCSF guidance given for good practice in restraint techniques across children's settings and whilst each child and setting is unique this leaves the potential for at best inconsistency across the UK and at worst dangerous practice developing. There should be mandatory guidance on training and Local Safeguarding Boards need to have this area of practice firmly on their agenda. Following the Ministry of Justice Review in 2007-08, I would suggest that the Prison Service, who are predominantly focused on adults needs, are not best placed to lead on the development of a single framework for restraint across children's settings, including secure settings.


Asylum Seeking Children and Care Leavers

  Young people have raised with us their concern at inconsistencies in provision of leaving care assistance to unaccompanied asylum seeking children. In certain parts of England, evidence from our casework would indicate that some councils seemingly operate a two-tier service; one for indigenous care leavers and another for "asylum-seeking" care leavers. One call for advice I received was from an asylum seeking young person living in a children's home. He had been there for over three years and was shortly to be leaving care. Given the inordinate time processing his application for residence, not received to date, and no birth certificate, the young person was left in a state of high anxiety about whether he would be given support after his 18th birthday in gaining accommodation and/or work.

Other evidence from individual casework tends to indicate that many of these children, who subsequently become "looked after" by local councils, are treated as asylum-seekers first and children in care second. Consequently, the needs of immigration policy are often put ahead of the welfare of children. From a children's rights perspective, it is rather perverse that this group of children and young people should ever face the risk of being deported. After all, in law, their parent happens to be the State itself and that fact alone should confer upon such children special rights to protection and safekeeping.

An additional issue raised by many in care and by care leavers has been that of prejudice against those with a history in care ("careism"). In applying for work and in seeking accommodation, many young people had a clear sense that they could be discriminated against simply for being from care. For example one young woman had her university place withdrawn before starting her degree course because the local authority could not guarantee the funding it had promised. Another young person had a job offer withdrawn once the employer became aware she'd been in care. Statistical evidence shows that Looked After Children are more prone to school exclusion, admission refusal and to significant periods of being without a school to go to. These children are also discriminated against by having no independent parent to challenge exclusions of admission refusals, as the Local Authority itself is acting in the place of the parent.

  It would greatly promote rights for children in care, as well as those leaving it, if it were made unlawful for anyone to discriminate against them on the grounds of their care status.

Young Carers

  This is a group of children for whom their rights are often neglected. In my report following consultation with young carers in 2006 we identified that for many, being a young carer meant being unable to do the things other children do. Young carers told us about some of the tasks they do and how being a young carer affected them. They told us about risks they faced and what they thought adults working with young carers should be taught. They gave examples of how they face "nasty and hurtful" comments from other children about their parents' disabilities and that they have to cope with the reactions and prejudice of the public.

Young carers uniquely risk missing out on welfare and educational needs as they fall between adult and children's services. They are often seen as a resource to the former and as children in need by the latter.

  There is a need for robust support systems within which they can have relief from their caring duties and where they are appreciated with the education system. They requested training to help them with issues such as lifting and medication and understanding from their teachers that if may affect some of their work or attendance.


  In my report Children on Bullying: A Children's Views Report by the Children's Rights Director for England [January 2008] (319 children and young people) two thirds of children in care or living away from home say that bullying is getting worse and that it is a bigger issue than it used to be.

Most children and young people told us that bullying happened mostly whilst at school, with some happening whilst going "to and from school". For some children living away from home these figures did not stand up, and many spoke of bullying being a regular occurrence, especially in children's homes and foster care. 21% of children in care are bullied simply because they are in care.

  Children and young people are seeing a growth in electronic means of bullying people and identified "cyber-bullying" and bullying by mobile phone calls and messages as new forms of bullying. Around 40% had some experience of being bullied in this way.

  My full report includes fuller details, including suggested strategies from the young people for dealing with bullying. Please see attached for details.

  In my 2008 annual monitoring report over 900 children and young people who are living away from home or who are getting help from social care services told us how it was for them by giving us their views on the issues they told us were really important to their lives, including bullying. It was clear that there is most bullying in residential special schools, where over half the children report being bullied often or always. Care leavers and those in foster care reported the least bullying.


  In the consultations I have undertaken with children and young people two common themes have arisen relating to disability. One is the definition of disability. We asked children in care to self-report on whether they had a disability and found this to consistently reveal that they identified having emotional and behavioural difficulties as a disability as much as with having a leaning and/or physical disability.

Secondly in case work and consultation we've seen very clearly that children with communication difficulties very frequently miss out in consultations, decision making and involvement in policy development. A number of children with disabilities have said to me that they feel competent to communicate with the use of computers but that the professionals who consult or inspect them are not competent in using or understanding this. There is a significant need to further the skills of professionals to counteract this communication deficit and to improve the level of real participation and rights of children with disabilities.

  Also see previous section above on bullying where I set out the findings that children with disabilities are more likely to be bullied than any other group of children.


  Identifying trafficked children's rights and needs solely in the context of their protection (under Section 47 of the Children Act 1989) is too narrow. There should be a general presumption that all trafficked children are "children in need", as defined by Section 17 of the Children Act 1989 and, notwithstanding their nationality and immigration status, entitled to receive services appropriate to meeting those needs. This will ensure their wider needs for welfare needs will be taken into account. Some will, additionally, be assessed as requiring "accommodation" (Section 20 of the Children Act 1989). However, the vulnerability of many trafficked children is exacerbated by their lack of status. In the context of individual children's welfare, and our obligations under the United Nations Convention on the Rights of the Child, it should not be possible for there to be any child currently residing in the UK for whom there is no responsible person or authority identified as having "parental responsibility" for them. In many instances, that "responsible person" should rightly be the local authority.


  It is estimated that a disproportionate 46% of children who are in prison are or were in care. It is widely documented that looked-after children who enter prison often miss out on the support and care planning services they are entitled to, and as a result their long-term outcomes are very poor.

This merits review and these children should be viewed first and foremost as children in need themselves with their safety and welfare needs being the primary concern.


  By far the largest single category of advice my team is asked for is about children who are being moved by their placing authority, often against their own wishes and due to their authority changing policy and/or due to a shortage of financial resources. This is a concerning trend and the evidence so far shows that these moves are not always in the child's best interests. The stability of the child's placement, given that we know stability results in improved outcomes, is essential and I will be monitoring this trend from a strategic viewpoint in order to take up with DCSF and Ministers should there be a need to do so.


  Linked to the above section there is evidence from individual case work that children are moved without their views being taken into account and against their expressed wishes, given at care planning and review meetings and even to local Children's Rights Officers.

Another issue raised by children is that of the action that they can take if their local council is, in their view, failing to make an appropriate care plan, failing to keep to this, or failing to safeguard and promote their rights or welfare. Children also make little use of complaints procedures which take complaints back to their local council. Children and young people have told us that they find such procedures inaccessible and unlikely to produce a timely redress where their complaint relates to the actions or decisions of the same organisation that is dealing with the complaint.

  Views are now frequently sought of children but the views of those who don't want to join consultative groups are often overlooked. There is also a need to find some way to give due weight to views of children of different ages and levels of understanding in making different types of decisions. I have consulted with children on the criteria for assessing a child's understanding of a particular issue and this has been used in Government guidance (Decisions on Sharing Information). Interestingly the young people identified similar criteria in assessing this as in the Gillick competence.

February 2009

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