Written Evidence
Letter and Government Response to the Chair of
the Committee from Baroness Morgan, Parliamentary Under Secretary
of State for Children, Young People and Families, dated 11 February
2010
I attach the Government's response to the recommendations
in the Joint Committee on Human Rights' (JCHR) report, Children's
Rights, published on 20 November 2009.
Since my last evidence to the JCHR on 24 March 2009,
I am pleased to say that the Government is making good progress
in its response to the UN Committee on the Rights of Child's Concluding
Observations.
I mentioned at the Oral Hearing with the JCHR that
I plan to meet with my ministerial colleagues from the Devolved
Administration to discuss how we work together to take forward
the UN Committee's Concluding Observations and I am delighted
that our meeting resulted in a firm commitment to do this and
led to the publication of a UK-wide commitment document, Working
Together Achieving More, which was published on 20 November
2009, the anniversary of UNCRC. It was launched at an event to
mark the occasion at Lancaster House in London for children and
young people. It sets out how the UK Government and the devolved
administrations will collaboratively to address the Concluding
Observations and includes areas of common interest where the four
nations will address jointly.
The Government's UNCRC: priorities for action
also published on 20 November 2009, outlines the progress
made since 2008 alongside priorities for further action to address
them. We plan to review the document annually and report on our
progress. Similar plans have been published in the devolved administrations.
The DCSF is currently undertaking a mapping exercise
on English legislations against the UNCRC articles in response
to the JCHR recommendation where it asked for information on 'the
extent to which the UNCRC rights are or are not already protected
by UK law'. We are scheduled to complete the exercise in early
March and will send the JCHR a copy of the completed document
then.
Finally, I want to assure the committee that the
Government remain fully committed to the implementation of the
UNCRC and will continue the work with our key stakeholders including
the four Children Commissioners and children and young people
to make children's rights a reality in the UK.
Annex: Government Response to the Committee's
twenty-fifth Report of Session 2008-09
The Select Committee's recommendations are in bold
text.
The Government's response is in plain text.
Where recommendations relate to very similar issues
they have been grouped and answered together.
Implementation of the UNCRC
1. We recommend that the UK's next report to the
UN Committee should again focus on addressing the UN Committee's
most recent Concluding Observations, but with clearer links to
future plans (and how their success can be assessed) as well as
to the work of the devolved administrations and local government.
2. We recommend that the UK Government devise
a comprehensive and detailed plan for implementation of the UN
Committee's recommendations across the UK. This should be completed
in conjunction with the devolved administrations and the Children's
Commissioners, and be subject to widespread consultation. We
recommend that the Government publishes annual reports in order
to monitor progress on implementation more regularly than is required
by the UN monitoring process. (Paragraph 19).
The UK Government is responsible for co-ordinating
the implementation of the UNCRC across the UK and works closely
with the devolved administration to implement the UNCRC.
The Children's Plan published in 2007 sets out the
Government's ambitions to improve the lives of all children and
young people and is underpinned by the UNCRC. Following the publication
of the UN Committee's Concluding Observations in October 2008,
the Government set out its priorities for addressing the UN Committee's
Concluding Observations in the annex to the Children's Plan 'One
Year On' (published in December 2008). The Children's plan 'Two
Year On' published in December 2009, outlines the Government's
progress on its objectives for children and young people and families
and set out its next steps to work towards a better future for
every child and young person.
'Working together, achieving more' published
on 20 November 2009, set out how the UK Government and the devolved
administrations will work together to address the UN Committee's
Concluding Observations including areas of common interest where
the four nations will address jointly.
The Government's 'UNCRC: Priorities for
action' sets out the progress made since 2008 alongside its
priorities for further action to address them. The Government
will work in partnership with NGOs, delivery partners and children
and young people to drive progress and will report progress on
all of the priority areas set out in this document by the end
of 2010 and review these annually.
Similar plans have been published by the devolved
administrations; Wales published UNCRC: 'Getting it
right'; Scotland published, UNCRC: 'Do the right
thing'; and Northern Ireland is developing additional actions
for inclusion in its existing children young people's strategy
action plan.
3. We recommend that further information be given
by the Government about the extent to which the UNCRC rights are
or are not already protected by UK law. (Paragraph 28).
The UK Government takes its commitment to comply
with the obligation under the UNCRC very seriously. It meets
its obligations under the UNCRC through a combination of legislation,
policy initiatives and guidance. However, the Government continues
to keep under review the mechanism for the protection of children's
rights in the UK.
The Department for Children
Schools and Families is currently undertaking
a mapping exercise of English legislation against the UNCRC articles;
this involves working with officials across Whitehall.
We are scheduled to complete the document in early March and will
send a copy to the JCHR when it is completed.
4. We reiterate our recommendation on the merits
of including children's rights within any Bill of Rights for the
UK. We are pleased to note that the Government is open to the
possibility of their special protection, but are disappointed
that this does not extend to creating directly enforceable rights
or using the Bill of Rights to incorporate the UNCRC. We urge
the Government to ensure that it consults widely on this question
to ascertain how many of those working closely with children share
the Government's view that it would make no practical difference
to the lives of children. (Paragraph 30).
As recommended by the UN Committee on the Rights
of the Child, the 2009 Green Paper, Rights and responsibilities,
prioritised children's rights and said that a future Bill
of Rights and Responsibilities could contain a right for children
to achieve wellbeing, whatever their background or circumstances.
The Green Paper notes that any provision on a right
to achieve wellbeing could be based on the broad aspirations such
as those captured in the five Every Child Matters outcomes
and other policy schemes in different parts of the United Kingdom,
which are in turn underpinned by the general principles in the
UN Convention on the Rights of the Child. These goals could
form the basis of provisions in a future Bill of Rights and Responsibilities,
articulating principles to guide public authorities and lawmakers
when making policy and legislative decisions concerning children,
and by the courts when interpreting legislation and reviewing
executive and administrative action relating to child wellbeing.
While there will be no legislation in the current Parliament,
the Government believes that this particular subject should continue
to occupy a central place in relation to the debate
on any future Bill of Rights and Responsibilities.
We are currently consulting on the Green Paper. Through
the office of the Children's Rights Director, children and young
people were able to contribute their views on the consultation.
5. We do not understand why the Secretary of State
is content to draw up his own Children's Plan with regard to the
principles and Articles of the UNCRC, but is not prepared to require
the authorities drawing up local Children's Plans to do the same.
We ask the Secretary of State to reconsider and to ask the relevant
local authorities to draw up their plans with due regard to the
need to implement the UNCRC and the recommendations of the UN
Committee (Paragraph 31).
The Government have included in draft statutory guidance
as part of the Apprenticeship, Skills, Children and Learning Act
2009, an expectation that the preparation and development of the
local area's Children and Young People's Plan by the Children's
Trust Board will be consistent with the general principles of
UNCRC. These plans will set out how the Children's Trust Board
partners will work together to improve children's wellbeing through
the services they provide in a local area. The draft guidance
is currently out for consultation and guidance will be published
in spring 2010.
Attitudes towards children and discrimination
6. We were pleased to hear the Minister's commitment
to do more to address negative, damaging and unfounded stereotyping
of children and young people within society. Innovative and proactive
solutions are required to address this problem, which has the
potential to do real harm to the status and aspirations of children
living in the UK, who have much to contribute to society. Such
solutions should be timely, well targeted and funded. We recommend
that the Government bring forward proposals to deal with this
issue and look forward to receiving the evaluation of the Government's
communications campaign in due course. (Paragraph 38).
The Government is working with key stakeholders including
the four Children's Commissioners to identify how best to address
negative portrayal of children by the media. A targeted communications
strategy is being considered which aims to rebalance the public
narrative about young people by actively promoting good news stories
on a local level. This will help improve adults' perception and
secure greater confidence by young people that their contribution
and achievements are recognised.
Key groups from within the youth sector are currently
working alongside media organisations to develop plans for a children
and youth media centre. A feasibility study is being undertaken
involving 11 MILLION, into the development of the centre, which
would put journalists in touch with children and young people
and vice versa, thereby ensuring that more children and young
people's views are reported in the mainstream media. By creating
a media centre which facilitates contact between journalists and
young people, it is hoped that young people will feel more engaged
with the media and have the opportunity to voice their opinions
on the issues which effect them - leading to a more balanced and
positive representation of young people.
The UN Committee and the JCHR's concerns about intolerance
of children and young people and their negative portrayal in the
media are being addressed through Aiming High for Young People.
At the forefront of these measures is the development of a national
youth week, Shine week. The week comprises national and local
events to celebrate the talents and achievements of all young
people. This year, Shine week culminated with young people from
all over the country taking over the House of Lords to debate
the issues most important to them, including their portrayal in
the media. Shine Week 2010 will take place from 12 to 16 July.
Over £6 million is being invested between 2009
and 2011 in the development of The Youth of Today, a national
body for youth leadership to offer a range of opportunities to
young people, such as shadowing Ministers and Council leaders.
It will also run a youth-led campaign to celebrate the achievements
of young people, encouraging society to welcome them as leaders
within their communities.
The Prime Minister announced in April 2009 a new
programme to support opportunities for young people aged 14-16:
pilots in five local authorities will look at expanding the number
of community service opportunities for this age group and increasing
take-up. Our long-term ambition is that every young person should
give at least 50 hours of service to their community in their
teenage years. The Government has appointed Dawn Butler MP as
Minister for Young Citizens and Youth Engagement. One of the priorities
of this new ministerial portfolio will be to seek ways to help
increase young people's participation in their local communities
as well as in local and national politics.
We are happy to keep the Committee informed of progress
from this range of activity to address negative portrayal of young
people.
7. We recommend that the Equality Bill be amended
to extend protection from age discrimination to people regardless
of their age in relation to the provision of goods, facilities
and services, except where discrimination on the grounds of age
can be justified. (Paragraph 45)
The Government puts great value on the human rights
and the worth of our children. Through the Equality Bill, which
we anticipate will be enacted before the summer of 2010; we will
bring together and strengthen existing legislation on discrimination.
Children will be protected in the same way as adults against discrimination
on grounds of their sex, race, disability, religion or belief,
or sexual orientation.
Age discrimination provisions do not extend to the
under 18s because it is almost always appropriate to treat children
of different ages in a way which is appropriate to their particular
stage of development, abilities, capabilities and level of responsibility.
Children of different ages have different needs,
which should be reflected by the support and services they receive.
Many services provided for young people are organised on the
basis of age and some services are exclusively targeted at, or
give priority to young people. We would wish to preserve such
services that could be under threat if a prohibition on age discrimination
extended to under 18s, since adults, or children of any age, could
claim discrimination for not receiving the same level of service.
For example, if a local council offered certain recreational
facilities for children of specific ages, which were not accessible
to adults or children of other ages. We have carefully considered
this matter as part of the Equality Bill, including looking closely
at any evidence presented on age discrimination in relation to
young people.
The JCHR suggests that legislation which prohibited
age discrimination would not put age-appropriate services at risk
if it allowed a defence of justification for acts of age discrimination.
However the legal test of objective justification is a high one,
and would potentially require the actual age limits set in any
case to be justified as well as the general principle of age-related
provision. Children just above or just below any age limit might
argue that they were suffering unfair discrimination by exclusion.
It would be very hard for service providers to be sure what the
outcome of any legal challenge might be, and experience of the
Employment Equality (Age) Regulations 2006 indicates that there
is a risk of service providers deciding not to provide age-related
services rather than take any risk of legal challenge.
Children in the criminal justice system
8. Whilst we welcome the Government's commitment
to reduce the number of first time entrants to the juvenile justice
system, this conflicts with the continuing expansion of the range
of offences which apply to children. For the Government's goal
to be achieved, it must be coupled with action across Government,
particularly the Home Office, to refrain from creating additional
offences which lead to the greater likelihood of children being
criminalised. In addition, offences on the statute book which
may be committed by children should be reviewed with a view to
repealing those that are not necessary, such as those that have
never been used or have never been the subject of a prosecution.
(Paragraph 51)
9. We would like to see a real reduction in the
numbers of children being detained in the UK each year. There
is a lack of clarity about the trends in the incidence of child
detention, both on remand and sentenced. We are also concerned
that some very vulnerable children are significantly more likely
to be detained than others. We urge the Government to comply fully
with its obligations under the Convention, in particular to ensure
that custody is only used as a measure of last resort and to address
the reasons for the over-representation of certain groups of children
in detention. (Paragraph 77)
The Government's overriding ambition is to prevent
children and young people getting into trouble with the law in
the first place. A range of early intervention measures to prevent
children who are at risk of coming into conflict with the law
is set out in the Government's Youth Crime Action Plan (YCAP),
published in July 2008. This is backed by £100m of new funding
and sets out a triple track approach, encompassing better prevention
to tackle problems before they become serious or entrenched; more
non-negotiable support to address the underlying causes of poor
behaviour; and tough enforcement where behaviour is unacceptable.
Specific work under the plan includes removing young people who
are at risk, from the streets at night and taking them to a place
of safety with support services on hand and after-school patrols
to tackle anti-social behaviour, disorder and more serious offending
(including knife crime) at school at closing time and on problematic
bus routes.
Current trends clearly indicate a sharp decrease
in the number of young people aged 10-17 entering the criminal
justice system, dropping from 94,481 in 2007/8 to 74,033 in 2008/09,
a decrease of 21.6% Re-offending rates are also decreasing - frequency
of juvenile re-offending fell by 23.6% between 2000 and 2007 (from
151.4 offences per 100 offenders committed within one year, to
115.7 offences). The number of under- 18s in the custody population
is decreasing: in September 2009, the total number was 14 per
cent lower than at the same point in 2008 and 19 per cent lower
than the peak in 2002.
An accurate trend in the number of young people being
remanded in custody is less easily identifiable. The Youth Justice
Board provides two data sources: secure estate data which counts
the average number of young people who are in custodial remand
at any one time; and, YJB workload data which counts the number
of remand episodes imposed by the courts.
The secure estate data for 2007/08 show a 41% increase
since 2000/01 in the average number of young people on remand
in custody. The Workload data show that the number of remand
episodes handed down by the courts has fallen by 10% since 2002
demonstrating that there have been fewer repeat remand decisions
over this period. The two data sets provide different remand
measures and cannot easily be compared. The Government is committed
to reducing the number of young people in custody, remanded and
sentenced, and is looking at remand data as well as examining
a number of options in relation to reducing the use of remand.
Young people in the youth justice system are often
among the most troubled in the country; from chaotic backgrounds
and with complex needs. The Government has taken a number of steps
to ensure that young people are given the right support to address
any needs they have upon entering the youth justice system including
mental health issues, drugs problems or learning difficulties.
The Government is also committed to promoting the
use of non-custodial sentences. In the Criminal Justice and Immigration
Act 2008, the Government legislated for alternatives to custody
for under-18s. The Youth Rehabilitation Order (YRO) was introduced
on 30 November 2009 (for offences committed from that date) and
provides two specific alternatives to custody. It will combine
nine existing sentences into one enhanced, generic sentence and
will be the standard community sentence used for the majority
of young offenders.
Legislation came into effect alongside the YRO that
requires courts to consider making a YRO (with an alternative
to custody) before they can make a custodial sentence. If they
decide to make a custodial sentence, they must explain why a YRO
is not appropriate. In addition, the Sentencing Guidelines Council
has published over-arching principles of sentencing for young
people. We believe this will provide courts with a significant
tool to help them achieve consistency in sentencing.
10. The Government should review and explain why
such a disproportionate number of children who are looked-after,
Gypsies and Travellers or have autism, are present within the
criminal justice system, and why existing strategies appear to
be failing. Such children, who are already likely to have experienced
significant disadvantage and even discrimination in their early
lives, require specific and targeted measures and support, outside
of the criminal justice system. (Paragraph 57)
We do not have exact figures on the representation
of looked after children, traveller children and children with
autism in the criminal justice system.
To consider the specific needs of all children and
young people in contact with the youth justice system, including
those with mental health and learning difficulties, Healthy
Children, Safer Communities -
a strategy to promote the health and wellbeing needs of children
and young people in contact with the youth justice system, was
published on 8 December 2009. This strategy looks across the entire
youth justice pathway to see where we can intervene earlier, faster
and more effectively to meet the health and wellbeing needs of
vulnerable young people. This will contribute to achieving better
health outcomes and to reducing offending and reoffending.
We recognise the need to take into account the full
range of factors that may influence why a young person becomes
an offender.
Youth Offending Teams (YOT) are required to examine
the young person's background, and report on their education,
needs, understanding, and emotional understanding.
Courts are advised by reports made to them by YOT
and the new sentencing guideline (published 20 November 2009)
provides detailed guidance to courts on the factors that should
be considered when sentencing an under-18. It is hoped that
the availability of this guideline will help courts achieve greater
consistency.
The Youth Restorative Disposal (YRD) is an innovative
new summary being piloted in Avon and Somerset; Cumbria;
Greater Manchester; Lancashire; Metropolitan; Norfolk; North Wales;
and Nottinghamshire. The key aim of the YRD is to reduce
the number of first-time entrants into the Criminal Justice System.
It holds to account and challenges inappropriate behaviour and
minor criminal offending using restorative justice principles.
The YRD also enables earlier identification of young people by
referring all offenders to the appropriate YOT, thus providing
a new opportunity to reintegrate young people by identifying early
risk factors and providing support, particularly for the vulnerable
groups in society.
Placing YOT officers in police stations at the point
of arrest (triage) is being piloted across 69 Youth Crime Action
Plan areas. The aim of triage is to assess young people
at the earliest stage in order to deliver swift and appropriate
intervention to prevent escalation of offending through the criminal
justice system. The early assessment also allows for joint
decision making between the police and YOTs to divert young people
who have committed low level offences out of the criminal justice
system by offering, as a minimum, a restorative justice intervention.
11. We were pleased to hear the Minister's comments
in oral evidence that as children's Minister she would try to
safeguard and protect children, including those involved in prostitution.
However, her subsequent written response, which reiterates the
Government's line on why children involved in prostitution should
continue to be criminalised, directly contradicts her oral evidence.
This, as we have stated in previous Reports, flies in the face
of international standards and the strong observations of the
UN Committee; and also breaches the principle that victims of
crime should not be criminalised. (Paragraph 60)
New guidance, Safeguarding children and young people
from sexual exploitation, was published in June 2009. This guidance
should inform procedures drawn up by Local Safeguarding Children
Boards to ensure that local agencies work effectively to address
this type of abuse.
he guidance provides information about different
forms of sexual exploitation to help practitioners identify those
at risk. It sets out the roles and responsibilities of different
organisations involved in safeguarding and promoting the welfare
of children; identify action that can be taken to prevent and
reduce sexual exploitation; and provide advice on how to manage
individual cases; and what needs to be done to identify and prosecute
perpetrators.
We have made clear in Parliament during the recent
Policing and Crime Bill that children found loitering or soliciting
for the purposes of prostitution are victims and should be treated
as such, and that criminal justice intervention should only be
used in exceptional circumstances. But we also made clear that
there are important reasons for maintaining the current law and
allowing criminal justice intervention where it is the last resort
and may be the most effective way of protecting a child from prostitution.
12. We are not persuaded by the Minister's response
[on the age of criminal responsibility], which goes against the
strong recommendations of the UN Committee and practice in comparable
states. We fail to understand why criminal penalties are necessary
to ensure that other services such as family intervention programmes
are made available. Whilst we do not underestimate the effects
on communities of the offending of some very young children, we
do not believe that the UK's current response is consistent with
its international obligations to children. Indeed, we consider
that resort to the criminal law for very young children can be
detrimental to those communities and counter-productive. We endorse
the views of witnesses who advocate a welfare-based and child-rights
oriented approach. This has the merit not only of being consistent
with the UN Convention, but also of bringing about early and positive
change in children's lives to prevent them from entering the criminal
justice system in the first place. (Paragraph 66)
We know that many countries have a higher minimum
age of criminal responsibility, but each country must make a judgement
based on its own circumstances. We believe that children in England
are old enough to differentiate between bad behaviour and serious
wrong doing at age 10.
However, we are keen to ensure that children and
young people are not prosecuted whenever an alternative can be
found. Local multi-agency Youth Offending Teams include social
services and health professionals who can refer the child on to
other statutory services for further investigation and support
if appropriate. For example, this can include child welfare
departments or Child and Adolescent Mental Health Services. In
addition there are civil alternatives for intervening in cases
of anti-social behaviour such as Acceptable Behaviour Contracts
and Anti-Social Behaviour Orders.
Criminal penalties are not a requirement for
accessing Family Intervention Projects (FIPs). FIPs were originally
set up to target families involved in persistent anti-social behaviour
who are causing disproportionate problems in their communities
and are at risk of losing their homes. The Youth Crime FIPs, which
are funded in every local authority, target families experiencing
multiple problems known to be linked to future risk of offending
- these are often the same risk factors as those that cause a
range of poor outcomes for children and young people including
poor attainment and behavioural problems, mental ill health, domestic
violence or having a parent in prison. There are pilot local authorities
who are also receiving funding to test the family intervention
model with families who are workless and who have significant
barriers to work. Local authorities decide the referral
routes for all the projects and this can involve a range of agencies,
and the service should complement the existing local authority
service structures. Due to the complex needs of the families and
young people that are supported by family intervention projects,
a criminal justice system enforcement action may be place, but
is not a condition of accessing the service.
We are also expanding ways to divert young people
away from the criminal justice system where this is appropriate.
These include liaison and diversion schemes in police custody
suites such as the "triage" scheme and also restorative
justice interventions like the Youth Restorative Disposal. Initiatives
such as these are possible because the criminal offence is recognised
and acted upon but they do not result in a criminal record for
the young person and are shown to have a high rate of satisfaction
for the victim. By using Restorative Justice approaches, and these
are embedded and being expanded in the youth justice system, we
can give a voice to victims and educate the young person about
the impact of their offending. This allows the victim, where they
wish to be involved, and the young person to move on with their
lives without further disturbance.
The success of initiatives such as this and
other prevention schemes is supported by a decrease of 21% in
the rate of young people receiving their first reprimand, warning
or conviction from 2007-08 to 2008-09.
However, we can't avoid the fact that when
a young person offends they have done something wrong and this
may well have had a direct impact on a victim. It would be wrong
to ignore that and it would lower community confidence in the
justice system if we did so.
13. We are disappointed to hear of continuing
breaches of Article 37 UNCRC, despite the Government's purported
intention fully to comply with the Convention, and urge the Government
to do all that is required, as a matter of urgency, to ensure
that it and the devolved administrations are able fully to meet
the UK's international obligations. (Paragraph 83)
Article 37(c) provides that children who are in custody
should not mix with adult prisoners unless mixing is in the best
interests of the child. (For example where there is an urgent
need to evacuate children and young people from a secure estate
for their safety either because of a fire or riot.).
When the UK ratified the UNCRC in 1991, there was
no separate under-18 secure estate so a reservation was made against
this article.
Since then, we have achieved major changes in the
secure estate for children and young people. We established a
discrete secure estate for boys under 18 in 2000 and for girls
under 18 in 2006. Custodial establishments in England and Wales
are now able to comply with the terms of Article 37(c). As a result,
with the agreement of Scotland and Northern Ireland, we were able
to withdraw the reservation in November 2008.
The Northern Ireland Office has made legislative
and operational changes to ensure that Northern Ireland complies
with Article 37(c).
In Northern Ireland, girls under 18 requiring custody
are no longer held with female adults, but are accommodated at
Woodlands Juvenile Justice Centre which is an under-18 establishment.
A small number of 17 year old boys are held at Hydebank Wood
Young Offenders Centre, but this is a split site establishment
with two separate, dedicated landings for under-18s, a specific
juvenile regime and tailored education provision. Due to the
nature of this specialist provision within the Young Offenders
Centre, the Northern Ireland Office is content that arrangements
for 17 year old boys provide sufficient separation from the young
adult males accommodated on the same site to meet Article
37 obligations.
In order to better meet the UNCRC and in particular
Article 37(c), the Scottish Prison Service (SPS) is developing
its strategy for 16 and 17 year olds in custody that will ensure
young people receive individualised age and stage appropriate
care within a secure and fair environment.
In Scotland, the recent opening of Blair House
at HM Young Offenders Institution Polmont improves compliance
with the UNCRC. It provides complete separation of 16 and
17 year old young men in a centralised facility which offers a
pragmatic approach to improving compliance. The SPS is further
working to improve compliance in relation to 16 and 17 year old
young women and to developing sustainable, long-term solutions
in the best interests of the child.
14.
We reiterate our strong concerns that pain compliance is still
used as a tactic against young people in detention, and used disproportionately
against vulnerable girls. We are particularly concerned that this
remains the case, even though the independent review recognised
that the use of pain compliance techniques would be irreconcilable
with the UN Convention. We find this situation to be alarming
and to go against the Government's espoused commitment to the
best interests of the child. The Minister failed to persuade us
that such techniques are necessary or consistent with the Convention.
We reiterate our previous conclusions that techniques which rely
on the use of pain are incompatible with the UNCRC. (Paragraph
94)
The Youth Justice Board's code of practice, Managing
the Behaviour of Children and Young People in the Secure Estate
states that restrictive physical interventions must only be used
as a last resort, when there is no alternative available or other
options have been exhausted. They must not be used as a punishment,
or merely to secure compliance with staff instructions.
The Independent Review of Restraint was published
in December 2008, alongside a Government response.
Work is now underway to implement the 58
recommendations. £5 million of additional funding has been
made available for the period 2009-11 to fund improvements in
the secure estate for children and young people. This includes
an accelerated programme of training for staff in the skills they
need to understand and work with young people. The Youth Justice
Board has agreed a package of funding to ensure that Secure Training
Centres and privately owned young offender institutions have CCTV
in common areas, which will also be used to monitor the use of
restraint. In accordance with a key recommendation in the Independent
Review of Restraint, we are establishing the Restraint Accreditation
Board; a panel of medical experts who from 2010 will assess the
safety of, and accredit, all restraint techniques to be used in
secure training centres and young offender institutions.
The Government does not accept that there is any
breach of the UN Convention. The rights of the child include rights
of children in custody to be protected from assault by other detainees:
giving effect to that right may sometimes require use of pain-compliant
techniques. Restraint is not used solely to prevent a young person
from harming others: it is often necessary to restrain a young
person to prevent self-harm. Girls in custody are significantly
more likely to try to harm themselves than boys.
The use of a pain-compliant technique causes
temporary discomfort to prevent a potentially much greater harm
to the young person and/or to others. The law allows any reasonable
use of force for that purpose.
15. Anti-social behaviour is an issue which rightly
causes widespread concern within the UK. We do not underestimate
the extent to which anti-social behaviour, by children or adults,
can fundamentally blight the lives of individuals and communities.
We commend the Government's commitment to tackling this issue.
Indeed, human rights law may require it where the effect of the
anti-social behaviour is to interfere with the rights of others
to respect for their home or not to be discriminated against.
We question, however, the degree to which anti-social behaviour
orders (ASBOs) hasten children's entry into the criminal justice
system, before other strategies have been tried. (Paragraph 105)
We are clear that custody should be a last resort
for young people who breach their ASBOs. This is recorded in
joint practitioner guidance[1].
A study by the Youth Justice Board in December 2004 concluded
that the use of ASBOs was not bringing a whole new group of young
people into custody. The study identified the majority of young
people entering custody as a result of breaching an ASBO as 'prolific
offenders''. In the study, 43 young people who received custody
for breach of an ASBO had a total of 1779 offences between them.
Further research by the YJB published in November 2006 confirms
this finding.
The Government is committed to diverting young people
from crime and anti-social behaviour. Last year we launched the
Youth Crime Action Plan, a cross-government programme of action
to tackle youth crime and anti-social behaviour and reduce re-offending.
It set out a triple track approach of enforcement where behaviour
is unacceptable, non-negotiable support and challenge to children
and families where it is needed and better and earlier prevention.
This builds on major progress we have made in the last decade
in tackling youth offending. Backed by £100m of new investment
it has led to significant action over the past year and a half,
which has made a real difference to young people, families and
communities. The number of young people entering the criminal
justice system for the first time is falling. The number in England
fell from 94,481 in 2007-08 to 74,033 in 2008-09 - a 21.6% decrease.
The Criminal Justice System has a role to play in
protecting children from crime and anti-social behaviour. Enforcement
actions, such as ASBOs, should not therefore be seen solely in
terms of their impact on the small minority of young people who
persistently engage in anti-social behaviour. They should also
be seen as helping protect young victims.
However when Anti-social Behaviour Orders are used
it is important that young people and their families receive the
support they need to address the underlying causes of their behaviour.
Therefore we have increased the availability of Individual Support
Orders (ISO) alongside Anti-social Behaviour Orders on conviction
and enabled local agencies to apply to the court to extend the
period of time of an ISO. Challenge and Support Projects being
delivered in 52 areas of the country take exactly this approach,
that every time a young person receives an enforcement measure
for their behaviour, they also receive support to address the
causes including through the use of an ISO where appropriate.
As part of the Crime and Security Bill, the Government
is currently legislating for mandatory parenting orders on breach
of an ASBO by 10 to 15 year olds and for a mandatory parenting
needs assessment to be carried out when agencies are considering
making an ASBO.
Asylum-seeking, refugee and trafficked children
16. We are surprised that the UK does not consider
that any changes are required in the light of the removal of the
reservation to Article 22. At the very least, we would expect
that training and policy papers would need to be updated in order
to ensure that decision makers have access to correct and authoritative
information as to the current legal requirements. We recommend
that the Government justify its argument that the withdrawal of
the reservation to Article 22 of the UNCRC does not require any
change to current practice or policy in this area. (Paragraph
113)
The UK Government entered a reservation to ensure
that the UK was able to apply its own legislation governing the
entry into, the stay in and the departure from the UK of persons
subject to immigration control. Although already broadly compliant
with the Convention, withdrawing the reservation was made possible
largely because of the way we have transformed our child protection
arrangements since the reservation was made in 1991.
UK domestic law already represented a well-developed
framework based on the paramount importance of the welfare of
the child and had high standards in relation to the standards
of care and treatment available to children in the UK, including
asylum-seeking children and other children present in the UK in
breach of the Immigration Rules. But to further strengthen our
domestic law arrangements, the Government introduced a new duty
in the Borders, Immigration and Citizenship Act 2009 to safeguard
and promote the welfare of children, which replaced a Code of
Practice on keeping children safe from harm.
No substantive changes in legislation or procedure
were deemed necessary simply as a result of the withdrawal of
the reservation because in practice we judged that we were already
compliant with the Convention. But statutory guidance has been
updated to reflect the new safeguarding duty and reinforce the
duty UK Border Agency (UKBA) has to protect children (Please see
response to paragraph 19)
17. We welcome the Government's commitment to
finding alternatives to detention of asylum-seeking families.
However, the evidence we have heard leads us to believe that realistic
alternatives have not yet been properly set up, tested or evaluated.
We urge the Government to evaluate and learn the lessons of the
Millbank Pilot and apply them to future projects, including the
pilot in Glasgow. In particular, we agree with witnesses who suggest
that alternatives to detention will only be effective if they
are commenced sufficiently early and accompanied by good communication
with families so as to encourage them to engage with the authorities.
(Paragraph 122).
The UK Border Agency ran a pilot for 11 months from
November 2007 at Millbank in Ashford, Kent, in conjunction with
Migrant Helpline. This was aimed at refused asylum seekers with
children who had no legal right to remain in the UK. (Migrant
Helpline is a registered charity with extensive experience of
dealing with asylum seekers.) The pilot was an attempt to find
alternative ways of removing children and families without the
need to detain them.
The pilot was less successful than we had hoped,
as the project did not successfully promote the anticipated increase
in Assisted Voluntary Returns, with only one family choosing to
take that option. The primary reasons for this were the very
low number of families referred to the project and further legal
representations by the families that were selected.
A family return project is currently being piloted
in Glasgow (Alternative to Detention). It is being run by Glasgow
City Council in partnership with UK Border Agency and the Scottish
Government. The main objective is to reduce the number of asylum
seeker families with children that are detained by helping those
not granted refugee status or humanitarian protection by the courts
to return voluntarily. The project which was established in July
2009 is at its infancy and we wait to see the outcome of the pilot.
UKBA has sought to learn the lessons from the Millbank
pilot which is being taken forward in the Glasgow project. The
project is led by Glasgow City Council and involves, the Scottish
Government, International Organisation for Migration and Scottish
Refugee Council. An evaluation contract has been awarded and will
continue throughout the life of the project.
18. We are disappointed that, more than two years
after our Report on the Treatment of Asylum Seekers, age-disputed
children continue to be poorly treated and to experience the problems
we previously identified. We reiterate our previous recommendations
that x-rays and other medical assessment methods should not be
relied upon to determine age, given the margin of error. The process
for dealing with age disputes should be reviewed with a view to
ensuring that no age-disputed asylum seeker is detained or removed
unless and until an integrated age assessment has been undertaken.
(Paragraph 124)
We do not agree with the Joint Committee on Human
Rights' claim that age-disputed individuals are poorly treated.
Those who cannot prove their age but who claim to be children
(and where this claim may be credible) are given the benefit of
the doubt and treated as children, unless and until a local authority
conducts a full age assessment in compliance with the guidelines
in the Merton case which concludes that they are aged 18 or over.
Where individuals' appearance and/or demeanour very
strongly suggest that they are significantly over the age of 18,
they are considered to be adults, since to give the benefit of
the doubt in these cases (i.e. to treat them as age-disputed)
would entail grown adults and children being placed in the same
accommodation, which would be a breach of other standards that
exist around the care of children who are placed in accommodation.
On x-rays and other medical assessment methods of
age determination, we have not yet commissioned these, though
we do not share the Committee's view that there is such a margin
of error in these methods that it rules out their utility.
Other than in exceptional circumstances, we do not
detain individuals who claim to be children, unless their appearance
and/or demeanour very strongly suggest that they are significantly
over the age of 18. Exceptions would include where the individual
had already been assessed as an adult in a Merton compliant process;
where they held credible documentation showing them to be adult;
or where we accepted that the individual was, or could be, a child,
but were waiting for the local authority's children's services
to collect them. In these latter circumstances, detention
is for a brief period only, to ensure the child's safety.
In the event that an individual claims to be an unaccompanied
child after being detained, they will be age-assessed by the local
authority. In the event that a Merton compliant age assessment
concludes that they are below the age of 18, they are released
into the care of that local authority immediately.
We would not remove an individual from the UK where
previously there had been doubts about their age, unless we were
satisfied as to whether they were a child or an adult.
19. We welcome the steps taken by the Government
in adopting a new Code of Practice and statutory duty which have
the potential to provide greater protection to the human rights
of child asylum seekers. We urge the Government to ensure that
all staff are appropriately trained on their new responsibilities,
that robust mechanisms are put in place to monitor and ensure
compliance with the duties and that accessible information is
provided to those seeking asylum on how they can expect to be
treated by the UK Border Agency in the light of these responsibilities.
We will continue to monitor developments in this area. (Paragraph
132).
On 2 November 2009 section 55 of the Borders, Citizenship
and Immigration Act 2009 came into force. This places a duty
on the Secretary of State to make arrangements for ensuring that
immigration, asylum and nationality functions are discharged having
regard to the need to safeguard and promote the welfare of children
who are in the UK.
The duty is intended to have the same effect as section
11 of the Children Act 2004 which places a similar duty on public
bodies in England (section 55 applies to the activities of the
UK Border Agency throughout the UK). It thus places the Border
Agency on the same footing as those bodies and to improve inter-agency
working.
The duty is supported by statutory guidance issued
to the Agency jointly by Ministers from the Home Office and the
Department for Children, Schools and Families, and an extensive
staff training programme.
Children and armed conflict
20. We note the UN Committee's extensive set of
recommendations to the UK on compliance with the Optional Protocol
to the Convention on the Rights of the Child on Children in Armed
Conflict. We recommend that the UK adopt a plan of action for
implementing the Optional Protocol, including these recommendations,
fully in the UK, together with a clear timetable for doing so.
(Paragraph 143)
We are considering the recommendations to the UK
on compliance with the Optional Protocol. We set out our position
on the various elements of the UNCRC in written and oral evidence
in 2007 and in 2008, and our position remains as stated then.
We continue to ensure that we safeguard the welfare and interests
of our young service personnel in line with the key tenets of
the UNCRC. We are not complacent; we remain vigilant on this important
issue.
In terms of training, publication and promotion of
the Optional Protocol, all members of the armed forces receive
training on the Law of Armed Conflict (LOAC) shortly after joining
and regularly throughout their careers. The UK armed forces do
not routinely train all personnel on the Optional Protocol specifically,
but personnel involved in handling prisoners of war, internees
and detainees receive training which addresses the handling of
juveniles and children. The Ministry of Defence are examining
what more can be done to promote the Optional Protocol.
1 http://www.crimereduction.homeoffice.gov.uk/antisocialbehaviour/antisocialbehaviour55.pdf
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