Memorandum submitted by the Children's
Rights Alliance for England
ABOUT CRAE
1. CRAE seeks the full implementation of
the United Nations Convention on the Rights of the Child (UNCRC);
and coordinates the Young Equals campaign, which has made a separate
submission on the issue of age discrimination against children.
Please also refer to the Young Equals report: Making the case:
why children should be protected from age discrimination and how
it can be done (http://www.crae.org.uk/protecting/age-discrimination.html).
SOCIO-ECONOMIC INEQUALITIES
Please explain how, in practice, the proposed
new duty will enhance human rights for individuals.
Please explain why immigration measures are exempt
from the socio-economic duty.
2. CRAE welcomes the new duty on reducing
socio-economic inequalities, but notes its incompatibility with
provisions only recently set out in the Childcare Act 2006. "Desirability"
provides a much weaker commitment than requiring English local
authorities to "… reduce inequalities amongst young
children in their area".
3. CRAE finds it inexplicable as to why
immigration measures are exempt from the socio-economic duty.
This fails to promote the rights of all children without discrimination
(under Article 2 of the UNCRC); and goes against the intentions
of government policy elsewhere, as signified by the UK Government's
recent withdrawal of reservations under Article 22 of the
UNCRC (on refugee children).
EQUALITY: KEY CONCEPTS
DISCRIMINATION AGAINST
CARERS
Is the definition of direct discrimination in
Clause 13 sufficiently clear to ensure compliance with the
decision of the European Court of Justice in C—303/06, Coleman
v Attridge Law?
Why is discrimination on the basis of association
and perception not explicitly prohibited on the face of the Bill,
in order to provide greater clarity for employers and service
providers?
Was consideration given to including carer status
as a protected characteristic, or to giving carers a legal right
to seek reasonable accommodation? If so, why was it rejected?
4. CRAE is concerned about the lack of regard,
within the provisions of the Equality Bill, to the particular
needs of young carers. Without attention to the reasonable protection
of young carers from discrimination many will continue to (1)
have their needs subsumed within those of the adults they are
caring for, and be denied assessment for or entitlement to services
in their own right under Section 17 of the Children Act 1989 as
"children in need"; (2) be denied significant opportunities
for play and learning; and, (3) may lose out on essential developmental
aspects of their childhood. We would commend a recent Ofsted report:
"Supporting young carers: Identifying, assessing and meeting
the needs of young carers and their families" (June,
2009).
5. All under 18s should have protection
from age discrimination on the basis of association and perception,
which measures in Clause 26 would exclude them from.
6. Eliminating discrimination by association
is of particular relevance to young carers. In protecting the
rights of their parents, against less favourable treatment, the
child's own rights are more likely to be respected; including
their rights under Articles 8 of the Human Rights Act 1998 and
Articles 16 and 27 of UNCRC to family life, privacy
and adequate standards of living (as exemplified in the recent
Coleman v Attridge Law [2008] case).
MULTIPLE DISCRIMINATION
Does the Government accept that if multiple discrimination
is confined to two protected characteristics, some individuals
subject to other forms of multiple discrimination may be denied
legal protection against unfair and unequal treatment?
Why does the Government consider that it is unnecessary
to prohibit indirect discrimination or harassment which is based
on multiple grounds?
7. Children are not only discriminated against
on, for example, the typical equality grounds of gender, race,
disability and sexual orientation but they are also discriminated
against in British society for simply being children. That places
children highly in the category of people most likely to experience
multiple discrimination. The failure of government to include
children, in all aspects of its measures to provide for a more
equal society, only goes to exemplify the lack of worth that the
State seemingly places on the value of our children.
8. Either it is wholly right to discriminate
against people or it is not. Surely, there can never be a rational
argument for an Equality Bill seeming to justify exclusion from
protection against certain aspects or characteristics of discrimination.
AGE DISCRIMINATION
IN THE
PROVISION OF
SERVICES
What exceptions are intended to be introduced
in respect of age discrimination outside the workplace?
Why are children excluded from discrimination
on the grounds of age in the provision of services and the performance
of public functions?
Does the Government consider that this may prevent
children from enjoying full protection of the rights set out in
the UN Convention on the Rights of the Child? If not, why not?
9. CRAE believes that any exceptions should
be based solely on objective justification, which must be proportionate
and necessary.
10. Children should not be excluded from
discrimination on the grounds of age in the provision of services
and the performance of public functions. We have set out our detailed
evidence in the Young Equals report: Making the case: why children
should be protected from age discrimination and how it can be
done referred to in paragraph 1. This report highlights the
systemic nature of age discrimination against children in both
public and private spheres, including healthcare, child protection,
access to justice, public leisure facilities, shops and restaurants,
and public transport. Age discrimination against children is a
neglected problem, often unrecognised and often not taken seriously.
The evidence we have gathered comes from a wide range of sources;
including statutory inspectorates, regulatory bodies, government
research, children, parents and carers.
11. CRAE recognises that children require
protection against unfair age discrimination that should be provided
to them in the provision of goods, facilities and services. We
are not, however, arguing that they should be treated the same
as adults or, indeed, necessarily the same as children of differing
ages. Equality laws should not be about treating everyone the
same, but about treating everyone as having equal worth and value.
We are opposed to any treatment of children and young people,
including on grounds of age, that is unfair because it cannot
be objectively and rationally justified.
12. There has been much recent focus on
child protection arising from the Baby Peter case and the Lord
Laming report. However, one point CRAE would wish to emphasise,
in trying to encourage government to think again about the issue
of age discrimination as it impacts on children, is that child
protection services are disproportionately provided to children
in this country on the grounds of age, as too are a number of
other so-called "children's" services. That is not only
discriminatory, but it is potentially harmful to a significant
number of children, particularly older children.
13. Excluding children from discrimination
on the grounds of age in the provision of services and the performance
of public functions prevents children from exercising their rights
under UNCRC. The Government has yet again missed an important
opportunity to ensure that legislation affecting children in this
country is compliant with meeting our international obligations.
The measure of its miscalculation in this regard is that unfair
treatment for children not only impacts on children themselves,
but also, inevitably, on many parents and other adults responsible
for their welfare.
EDUCATION
RELIGIOUS WORSHIP
IN SCHOOLS
How is maintaining the legal requirement that
collective worship in schools must be of a broadly Christian character
consistent with the Government's commitment to "a plurality
of provision" and is this justifiable in view of the religious
diversity of the UK today?
Please provide a more detailed explanation of
why collective worship should continue to be exempt from the duty
not to discriminate on grounds of religion or belief?
14. In accordance with Articles 12 (right
to be heard) and 14 (freedom of thought) of UNCRC, children
with sufficient understanding to make an informed decision should
be able to opt in or opt out of collective religious worship in
schools. Currently the law only allows for sixth form students
to opt out of collective worship. However, children with sufficient
understanding may also wish to exercise the "opting out"
right or, alternatively to opt themselves into collective worship
following a previous withdrawal either by themselves or their
parents.
Why is it justifiable to exclude discrimination
on grounds of (1) pregnancy and maternity (2) age and (3) marriage
and civil partnership from the scope of the Bill's protections
in the field of education?
15. CRAE is concerned about these exclusions
and believes that these are bound to lead to the unequal treatment
of certain children in schools.
PUBLIC SECTOR EQUALITY DUTY
Please explain why each exception to the public
sector equality duty is necessary and proportionate.
16. The omission of the age element of the
public sector equality duty from children's homes may exacerbate
age restrictions that can conspire to unnecessarily separate siblings
in care and force children to leave settled children's home and
foster care placements.
17. The public sector duty will not prove
to be a burden to the many good schools and children's homes,
up and down the country, that are already fostering "good
relations". Its omission, however, will succeed in providing
solace to some of our poorest services.
18. The Equality Bill would benefit from
being subjected to a "compatibility test". Government
has introduced other legislation that would be conflicted by the
introduction of this. For example, the Childcare Act 2006 requires
local authorities to: "reduce inequalities between young
children in their area" whilst the Equality Bill expressly
excludes children from certain safeguards necessary to achieve
this.
19. In relation to children's homes, Government
is commendably trying to encourage greater stability in placements
for children in care and more placements with siblings in care
together. That could, however, be undermined if children's homes
remain exempt from applying protections against age discrimination.
Age is one of the main criteria upon which children's homes are
registered. In practice, this means that once a child becomes
"too old" to live in a particular children's home they
are required to move on.
20. Fostering good relations in children's
homes has been the bedrock upon which all guidance on "permissible
forms of control" and good behaviour management has been
based ever since the Community Homes Regulations 1972. Doing so,
therefore, is not a burden on children's homes, but a pre-requisite
to their meeting national minimum standards and regulations.
21. It is perhaps most difficult to justify
the exclusion of schools from the public sector equality duty
to foster good relations amongst people of all ages. Surely, if
there is one thing that we would wish to promote in schools it
is respect and tolerance for others and, as previously inferred,
it is hard to envisage how a school can possibly hope to function
without having regard to promoting good relations with, and amongst,
its pupils. Quite contrary to government concerns about this being
a burden on schools, promoting good relations is recognised widely
as prerequisite to managing them well. We would encourage government
to look seriously again at how a public sector equality duty applied
to schools could encourage children as citizens in their own right,
and also as aspiring adults, to grow up having regard for each
other, for others of different generations, as well as for others
of different backgrounds, in terms of their equal worth and value.
22. There is an inherent contradiction in
schools rightly being encouraged to address bullying whilst, at
the same time, being given a legal dispensation from having to
provide children entrusted to their care with equal protection
from discrimination, harassment and victimisation. Government
believes this problem can be addressed without recourse to legislation.
In respect of good schools we would have no reason to disagree.
However, it is beyond the powers of any government to guarantee
that only good schools will prevail, and it is therefore wrong
to deny children the protection that it takes for granted for
persons who are over the age of 18, including those who work in
schools.
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