The Children and Families Bill
The Children and Families Bill is a carry-over Bill from the 2012-13 Session. It was first introduced in the House of Commons on 4 February 2013 and was brought from the Commons to the Lords on 13 June. The Second Reading of the Bill in the House of Lords is scheduled for 2 July. In this Report we consider the significant human rights issues raised by the Bill
The Bill is a substantial measure providing for far-reaching reforms in a number of areas, including adoption and children in care (Part 1), family justice (Part 2), Special Educational Needs (Part 3), childminder agencies (Part 4), the Office of the Children's Commissioner (Part 5) and shared parental leave and pay and flexible working (Parts 6-8). Four parliamentary committees conducted pre-legislative scrutiny of different parts of the Bill which were published in draft. We carried out pre-legislative scrutiny of the draft clauses on the reform of the Office of the Children's Commissioner for England. The Government responded to each of the pre-legislative scrutiny Reports. In our scrutiny of the Bill we have taken into account all of the pre-legislative scrutiny Reports and the Government's responses to each of them.
Information provided to Parliament
We recommend to other Departments, as an example of best practice, the approach adopted in the Department's human rights memoranda in relation to this Bill, including analysis of the way in which protection for rights is strengthened by the provisions in the Bill. We note that we would be even more assisted by a single memorandum addressing all of the relevant human rights standards, setting out the Government's analysis in full rather than in summary, and made available to us on publication of the Bill or as soon thereafter as possible.
In our experience, Parliament would always be greatly assisted by the Children's Commissioner for England providing a children's rights impact assessment in relation to any Government Bill, or part of a Government Bill, which has significant implications for the rights of children; and we hope that the Commissioner will have sufficient resources to be able to assist Parliament regularly in this way. We also look to the Government to reassure Parliament that it will continue to conduct its own assessments of the impact of laws and policies on children's rights, in accordance with its undertaking to Parliament on 10 December 2010.
Adoption and looked after children (Part 1)
We welcome the Minister's reassurance that it is not the Government's intention that kinship carers should be overlooked as a consequence of the clause in the Bill concerning fostering for adoption. However, we share the concerns expressed by the Children's Commissioner and others that such may be the effect of the clause as the Bill is currently drafted. We therefore welcome the Minister's indication at Report Stage in the House of Commons that he is considering amending the clause. We recommend that clause 1 of the Bill be amended to make more explicit the Government's intention that a Fostering for Adoption placement is not intended to take priority over a placement with family and friends where that is the most appropriate placement available.
Clause 2 of the Bill repeals the requirement in the current law (s. 1(5) of the Adoption and Children Act 2002) that, when making decisions about the adoption of a child, local authorities must give due consideration to religious persuasion, racial origin and cultural and linguistic background. We are not satisfied that the Government has demonstrated by reference to evidence that this statutory provision which it proposes to repeal has been responsible for delays in the adoption process to the detriment of children from ethnic minority backgrounds. Also, in our view, removing from the legal framework any reference to "religious persuasion, racial origin and cultural and linguistic background" risks those considerations being regarded as no longer matters to which due regard must be paid, which would be incompatible with Article 20(3) UNCRC. We recommend that, instead of removing all reference to those considerations from the statute, they are instead added to the welfare checklist to which local authorities are required to have regard.
Clause 9 of the Bill requires every local authority in England to appoint an officer to discharge its duty to promote the educational achievement of looked after children. We welcome this as a positive step in the implementation of the UK's obligation to make practically effective the right to education of this group of particularly vulnerable children.
Family Justice (Part 2)
The Government has expressed concern that there is a public perception that courts are biased against one or other parent. Clause 11 of the Bill is in part intended to address this. However, we do not consider it to be an appropriate use of legislation to address public misperceptions about the way in which the courts operate, or to "reinforce messages". In our view, the appropriate way for the Government to address such public misperceptions is not to pass legislation which it accepts is legally unnecessary, but proactively to question the evidential basis for those misperceptions as and when they arise.
The Justice Committee, in its pre-legislative scrutiny Report, expressed significant concerns that a legislative presumption such as that in clause 11 of the Bill might detract from the principle that decisions must be made in the best interests of the child. In our view, the fact that the child's welfare is to be considered twice introduces considerable scope for uncertainty about the relationship between the paramountcy principle in s. 1(1) of the Children Act 1989 and the proposed presumption in new subsection (2A) that parental involvement will further the child's welfare. We recommend that the Bill be amended to remove this uncertainty by making the proposed new presumption expressly subject to the paramountcy principle.
Special Educational Needs (Part 3)
Part 3 of the Bill contains a number of provisions which, as the Government rightly states in its memorandum, enhances the UK's implementation of some of the relevant rights of children and young people protected by the UNCRC and the UN Disabilities Conventions, such as the extension of rights to Education Health and Care Plans to under 25 year olds; the duty to provide SEN information to children and young people; and the provision of direct rights of appeal for children and young people. We welcome these and other features of Part 3 of the Bill as positively human rights enhancing measures.
In our view, the commitment to increase access to mainstream schools and staff, being the subject of an international treaty obligation which the Government accepts, should be expressly stated in the "general principles" clause (clause 19) at the beginning of Part 3 of the Bill. We recommend that clause 19 be amended to include an additional "general principle" which requires local authorities to have regard to the need to continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff.
We also recommend that the final version of the SEN Code of Practice should include detailed examples of the reasonable steps that could be taken to prevent the admission of a child with SEN being incompatible with the efficient education of other children, and ask that the draft text of this addition to the Code be made available before the Bill reaches its Committee Stage in the Lords.
We welcome the Government's amendments to the Bill to impose a duty in relation to health care provision. We are not persuaded by the Minister's justification for not making similar provision in relation to social care provision in an EHC Plan, and we recommend that the Bill be amended to impose an equivalent duty in relation to the social care component of the EHC Plan. We are also concerned that the absence of a unified appeals process against the contents of an EHC Plan will detract significantly from the practical effectiveness of the rights of children. We recommend that the Bill be amended to ensure that there is a single avenue of redress in relation to all the provisions in an EHC plan.
We consider it to be a seriously retrograde step for the Bill to deprive detained children and young people of all the improvements to the provision for special educational needs that the Bill will bring about. We recommend that the Ministry of Justice makes rapid progress on its proposals to use EHC Plans to support children and young people in custody so that clause 70 of the Bill can be deleted.
The Children's Commissioner (Part 5)
We welcome the reforms to the Office of the Children's Commissioner as significant human rights enhancing measures, and we welcome the significant changes made by the Government in response to our recommendations in relation to the draft clauses.
We remain of the view expressed in our earlier Report that merely requiring the Commissioner to "have regard to" the UNCRC in considering what constitutes the rights and interests of children is a much weaker formulation than the Dunford Report envisaged. In our view the Children's Commissioner should be required to "promote and protect" the rights of children in the UNCRC. We therefore recommend that clause 79 of the Bill should be amended so that new clause 2A(1) of the Children Act 2004 defines the rights of children, for the purposes of defining the Commissioner's primary function in s. 2(1), to include "the rights of children in the UNCRC."
We recommend that all of the changes which have been made to the Framework Agreement between the EHRC and DCMS in order to safeguard the EHRC's accreditation as an "A" status national human rights institution, also be made to the Framework Agreement between the Office of the Children's Commissioner and the Department for Education, and we ask for the modified Agreement, or a draft, to be made available before the Bill reaches its Committee stage in the Lords.
We welcome the Government's indication that the forthcoming periodic review of the UK's record under the UNCRC will provide an opportunity for raising parliamentarians' awareness of children's rights, and we look forward to the Government's proactive engagement with Parliament in advance of that review and in time to enable Parliament to influence the Government's submission.
Statutory rights to shared parental leave and pay (Part 6)
We are disappointed that the Bill does not make the more ambitious provision for shared parental leave reserved for the father that was foreshadowed in the Modern Workplaces Consultation. We recommend that the Government keep the take-up of parental leave by fathers under annual review. We also recommend that the Government ascertain and make publicly available its best estimate of the cost to employers, and particularly small businesses, of introducing 4 weeks of paid paternity leave reserved for the father on a "use it or lose it" basis.
The Energy Bill
The Energy Bill is a carry-over Bill from the 2012-13 Session. It was first introduced in the House of Commons on 29 November 2012 and was brought from the Commons to the Lords on 5 June 2013. The Committee Stage of the Bill in the House of Lords is scheduled for 2 July. In this Report, we comment on two specific human rights issues raised in our scrutiny of the Bill.
Proposed use of secondary legislation in relation to information powers
The Bill contains broad powers to make secondary legislation allowing the Secretary of State to obtain and share information. The Government's human rights memorandum said that safeguards in relation to the use of these powers would be set out in secondary legislation. We note the information provided by the Government in relation to the purposes for which information may be required and the parties that are likely to be required to provide information. We consider that the Government's intentions should be clarified further on the face of the Bill and we recommend that the Government considers whether more detailed safeguards could be included within the scope of the powers to obtain and disclose information, for example, in relation to information about individual consumers.
Capacity incentives and the right of appeal
The Bill contains provisions which enable the Secretary of State to establish through secondary legislation a scheme called the "capacity market. The capacity market will be administered by a "systems operator", designated by the Secretary of State, who will have the power to impose financial penalties called "capacity incentives" on energy providers that fail to deliver electricity in the circumstances defined in secondary legislation. The Bill does not contain a provision to enable an energy provider to appeal the imposition of the capacity incentive, particularly on grounds of liability or the amount to be paid. While we welcome the Government's intention to make provision in secondary legislation for a right of appeal against a decision to impose a capacity incentive payment, we recommend that this is expressly provided for on the face of the Bill.