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