Children's Rights - Human Rights Joint Committee Contents

Memorandum submitted by the Adolescent and Children's Trust (TACT) & Children Law UK


  1.  The Adolescent and Children's Trust (TACT) and Children Law UK (CLUK) welcomes the opportunity to respond to the Joint Committee on Human Rights call for evidence into children's rights. TACT and CLUK merged in 2007 so for the sake of simplicity the organisation will be referred to as TACT throughout the response.

  2.  In this response we will focus specifically on two areas of particular relevance to children and young people in care. These are a) involvement in court processes and b) education. As well as the relevance of the United Nations Convention on the Rights of the Child (UNCRC), in broad human rights terms there is a particular interplay between these issues and Article 8 (the Right to Respect for Privacy and Family Life) and Article 2 of the First Protocol (the Right to an Education) of the European Convention on Human Rights as incorporated by the Human Rights Act 1998 (HRA).


  3.  The will always be a potential conflict between the familial right to privacy and the state's positive obligation to ensure than children are safe from abuse. As well as Article 8 HRA, family rights (including the parents qualified right to live with and bring up their own children, and for the children to live with their parents) are contained in UNCRC articles 7, 8 and 9. Children's rights to generally have their welfare promoted and in particular to not be abused by their parents, are set out in UNCRC articles 9 and 19.

  4.  The state's basic approach to resolving conflict is to allow intervention when children are suffering or likely to suffer "significant harm", and sometimes take the child into care. This threshold is set out in the Children Act 1989, sections 31 and 47. The proper operation of this threshold can prove difficult, and is frequently the subject of controversy. Public opinion varies greatly depending on circumstance. For example, after tragic events such as the deaths of Victoria Climbie and Baby P there is strong pressure on Local Authorities to increase the number of care applications. Over a period of time opinions tend to move in the opposite direction as concerns are expressed that too many children are being taken into care. The state will get it wrong on occasion. This is unfortunately inevitable when dealing with such complex and difficult decisions. The critical question is, what are the steps that may be taken to minimise the risks of getting it wrong, and to put things right when they do go wrong?

  5.  From the child's point of view, it is important that all measures are taken to ensure that his/her voice is heard as effectively as possible in all decision making arenas, particularly court proceedings, child protection conferences, and looked after children reviews. This "hearing of the child's voice" is explicitly referred to in UNCRC article 12, which requires that

    "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child"

and that

    "For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law."

  6.  TACT believes that this means children who are looked after by the state should have a statutory right to advocacy services. We do not suggest this must be a legal advocate working in the court (although of course that is necessary in any court proceedings), but a trained person skilled and experienced in listening to children and either helping to empower them to express their views effectively, or expressing the child's view for them in any forum, but particularly looked after children reviews.

  7.  Section 16 of The Children and Young Persons Act 2008 confers a statutory right to "independent visitors" for certain categories of children to be prescribed in regulations. Independent visitors are to "advise and assist and befriend", but not to advocate. This measure, while doubtless desirable, does not go far enough. All looked after children need a statutory right to the services of a trained advocate to assist them in making their views heard effectively in all decisions relating to their care and plans for their future care.


  8.  UNCRC article 40.3.b requires that children in trouble with the law should have measures for dealing with them "without resorting to judicial proceedings". In other words, children should not be unnecessarily criminalised.

  9.  This requirement should particularly apply to children who are cared for by the state. However, there is significant evidence that children in care are often unnecessarily criminalised. They can be accelerated into and through the criminal justice system for behaviour that in other circumstances would be dealt with by the family. This is particularly true of children in residential care. There is considerable anecdotal evidence suggesting that children in residential care are more likely to be prosecuted for acts of minor criminality that would be disposed of differently if the child were not in local authority care. Criminal damage is a good example of how such situations might arise. The offence is committed if a person intentionally or recklessly damages property belonging to another.[549] If a child or young person in a residential home damages property they may well be treated very differently than a child who damages property belonging to their parents. In the latter case punishment is unlikely to involve the exercise of any criminal sanction.

  10.  It is well known that there is a significant correlation between looked after children and children who offend. For example:

    — About 40 per cent of children in custody have been in care

    — Looked after children are more than three times as likely as other children to be cautioned for or convicted of an offence

    — About 25 per cent of adult prisoners were in care as children

This does not mean that "care causes crime" The correlation is likely to be explained by underlying factors common both to looked after children, and children who offend. It is also important to remember that over 90 per cent of children in care will never have a criminal conviction. Acknowledging there is a connection between care and crime does not mean that the two are inextricably linked.

  11.  Looked after children will often carry with them an enormous baggage of disadvantage, including abusive experiences suffered prior to becoming looked after care. They are often vulnerable and may be emotionally scarred as a consequence of their experience. As a matter of principle therefore care should be viewed as a buffer against criminalisation, not an accelerant. By this we mean that particular caution should be exercised before involving children in care to the criminal process. The standard test for deciding whether a person should be prosecuted has two limbs. The first is that the Crown Prosecution Service believes there is a "reasonable prospect of conviction". The second is that the prosecution must be in the public interest. We accept there will be many occasions where it is clearly in the public interest to prosecute a young person who is in care. However, we would also maintain that greater emphasis should be placed on public interest considerations before involving children in care in the criminal justice system.

  12.  We would also draw attention to the fact that, at 10 (England and Wales) and eight (Scotland) the age of criminal responsibility in the UK remains much lower than most other nations. This fact is regularly referred to by the United Nations Committee on the Rights of the Child although the Government shows little inclination to look at this issue.[550] We appreciate there is currently little political will for raising the age of criminal responsibility but are concerned that a failure to address this issue means that vulnerable children in care will continue to be excessively criminalised. We would add that the proliferation of legislation criminalising the breach of civil orders, typified by the Anti Social Behaviour Order, also serves to accelerate children in care into the criminal justice system.

  13.  TACT is conducting a project to reduce or eliminate the unnecessary criminalisation of looked after children. This objective will be achieved by

    — analysing the size and nature of the problem

    — publicising and lobbying to get the problem recognised

    — identifying measures that will address the problem

    — taking steps to influence practice, both by influencing those who directly provide care services, but also by seeking to influence policy and protocols in various key agencies

We are seeking to commission major research to help us to better understand the complex processes which contribute to unnecessary criminalisation and we will subsequently generate practical policy recommendations to address the issue. We are attaching an executive summary of this proposed research with this response.


  14.  Children in care perform poorly at school compared to their peers with a more conventional home-life. As well as achieving fewer GCSE's and A Levels they are also far less likely to go on to further and higher education.

  15.  It is estimated that between one-third and half of all children have to change school if moving into foster care or between foster care placements. Where children do stay at the same school, they may have to travel some distance. This can mean using specially provided transport, which could mark them out as different from their classmates. They may find it difficult to adapt to a new curriculum. They might miss essential work or repeat lessons from other schools. For children already exposed to the often traumatic experiences of going into care this can make academic achievement difficult.

  16.  Children in care may also experience discrimination and stigma for "being different" and are more likely to be bullied. They will also face the challenge of getting to know new teachers, making new friends and facing questions from other children about why they are no longer with their own family.

  17.  Last year TACT commissioned research to look at the views and aspirations of children in care. This research found that the children involved placed a premium on being "treated normally" and wanted to be able to do things that were commonplace for their peers. The children were asked a series of questions regarding their experience of school and asked to comment on their involvement. Most of the children were positive about their own perception of their attainment and attendance, but were less positive about the social side of school. For example, many children thought they did less well when is came to "being accepted" or "settling in". We are attaching an executive summary of this report as an attachment to this submission.

  18.  In terms of access to education, high numbers of teenagers in foster care are excluded from school, either temporarily or permanently, or have attendance problems. Some of these children may never take part in mainstream schooling again. Over 70 per cent of children in care are there because they have been abused or neglected. There needs to be recognition from schools that a disproportionate number of young people in care are coping with serious emotional trauma. Schools should adopt strategies to promote welfare and support young people in care where they might otherwise use punishments, suspensions and exclusion.

  19.  All children should be encouraged to take part in school activities. Children in care would particularly benefit from involvement in extra curricular activities, which can build confidence and self esteem. However, it may be necessary to work with schools to ensure that activities are accessible to foster children and fees and subscriptions etc are waived for foster carers. Permissions are a particular barrier to the involvement of children in care in school activities. Schools, Social Workers and Foster Carers all have to be aware of who is the person who may give permission for a child to undertake an activity. Where Social Workers are the permission givers, they must have the capacity to respond quickly to such requests. This can prove difficult to obtain for logistical reasons or due to a (perhaps understandable) tendency to risk aversion. These problems could be addressed by creating a presumption that the foster carer is the principle permission giver rather than the social worker. This is both appropriate and sensible. If foster carers are considered responsible enough to place frequently vulnerable children in their care, then it does not seen unreasonable to extend that responsibility to decisions about school extra curricular activity. There have already been moves towards allowing carers to make decisions in some areas such as overnight visits. We would argue that this approach should be encouraged and extended so that social workers are not able to easily override decisions made by carers about the child's activities. As mentioned earlier, TACT's research concluded that children in care's principal desire is to be treated like their peers. Allowing carers to make routine decisions about a child's activities would go a long way towards achieving this.

  20.  We would go further and argue that the same principle should apply to orders made under Section 20 of the Children Act 1989. Under Section 20 orders, children can be "accommodated" with the consent of those with parental responsibility. The child can be removed at any time by those with parental responsibility. However, while they are being accommodated by a carer, there should be a presumption that the carer can make decisions relating to, for example, school extra curricular activities.

February 2009

549   Section 1 Criminal Damage Act 1971. Back

550   See for example paras 8.54-8.59 of the UK governments response 2007 to the UNCRC report at Back

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