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
"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"
"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
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.
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.
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.
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
publicising and lobbying to get the problem
identifying measures that will address
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
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
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.
549 Section 1 Criminal Damage Act 1971. Back
See for example paras 8.54-8.59 of the UK governments response
2007 to the UNCRC report at http://www.everychildmatters.gov.uk/_files/0B51045676CEF239367221123B913E60.pdf Back