1 Children and Families Bill
Background
1. The Children and Families Bill[1]
was brought to the Lords from the Commons on 12 June 2013. It
is a carry-over Bill from the 2012-13 Session. It was first introduced
in the House of Commons on 4 February 2013.[2]
The Bill received its Second Reading in the House of Commons on
25 February, and completed its Committee Stage on 23 April.[3]
Following the Queen's Speech it was reintroduced in the Commons
on 9 May[4] and completed
its Report and Third Reading on 11 June. The Second Reading of
the Bill in the House of Lords is scheduled for 2 July. Lord
Nash has certified that, in his view, the Bill is compatible with
Convention rights.
2. 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).
3. Four parliamentary committees conducted pre-legislative
scrutiny of different parts of the Bill which were published in
draft. The House of Lords Select Committee on Adoption Legislation
scrutinised the draft clauses on adoption. The Commons Justice
Committee scrutinised the draft family justice clauses. The Commons
Education Committee scrutinised the draft special educational
needs provisions. We carried out pre-legislative scrutiny of the
draft clauses on the reform of the Office of the Children's Commissioner
for England.[5] The Government
responded to each of the pre-legislative scrutiny Reports.[6]
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.
4. We wrote to the Minister of State for Children
and Families on 13 and 26 March asking a number of specific questions
about the human rights implications of certain aspects of Parts
1, 2, 3, 5 and 6 of the Bill.[7]
The Minister responded to the Committee's questions by letter
dated 15 April 2013.[8]
5. We received representations about the human rights
compatibility of different aspects of the Bill from Carers UK,
Scope[9] and the Children's
Commissioner. We were also sent more general briefings on parts
of the Bill by the Kinship Care Alliance and members of the Association
of Professors of Social Work. We held an informal meeting with
Scope on 5 June 2013. We are grateful to all those who have assisted
us in our scrutiny of the Bill. We have taken all the evidence
we have received into account, and we refer to it in this Report
where relevant to recommendations we make.
6. We also wrote to Carers UK on 27 March 2013[10]
and received a further submission dated 15 April 2013. Carers
UK are concerned about the lack of legal protection for the rights
of carers of disabled children, usually their parents or other
members of their families, compared to other carers. This is
an understandable concern but in our view it is better taken up
in the context of the Care Bill that is currently before the House
of Lords. We intend to return to the issue in our scrutiny of
that Bill.
Information provided by the Department
7. In our pre-legislative scrutiny Report on the
draft clauses on the Children's Commissioner, we were critical
of the brevity of the Minister's response to many of our detailed
questions about the draft clauses and expressed the hope that
the Government's response to our Report would include answers
to the questions which had not received a response from the Department.[11]
The Government provided a detailed and very constructive response
to all of the pre-legislative scrutiny Reports on the legislation
that was published in draft, including our own Report on the draft
clauses concerning the Children's Commissioner.
8. The Government also provided a memorandum in which
it summarises its consideration of the Bill in light of both the
European Convention on Human Rights ("ECHR") and the
UN Convention on the Rights of the Child ("UNCRC").[12]
We are grateful to have received such a memorandum shortly after
the Bill's publication, which is in line with the best practice
that we encourage Departments to adopt. However, the summary,
although useful, was not as full as previous human rights memoranda
provided by the same Department. The memorandum also did not
consider the provisions on Special Educational Needs in Part 3
of the Bill in light of the relevant provisions in the UN Convention
on the Rights of Persons with Disabilities ("UNCRPD"),
which is clearly relevant. We therefore requested a supplementary
memorandum on that subject, which the Government duly provided
with its letter of 15 April.
9. Although we were disappointed by the Department's
engagement with our pre-legislative scrutiny of the draft clauses
on the Children's Commissioner, we commend the Department on its
constructive engagement with us during our scrutiny of the Bill
itself. We have received prompt and full responses to our questions
and are grateful to have received memoranda specifically addressing
the Bill's compatibility with the European Convention on Human
Rights, the UN Convention on the Rights of the Child and the UN
Disabilities Convention. We particularly commend the Department
for including in its memoranda the Government's analysis of the
positive ways in which the Bill's provisions would strengthen
implementation of the rights set out in those human rights treaties.
This is an important function of human rights memoranda but is
often overlooked by Departments, which have tended to adopt a
wholly negative approach to analysing the human rights implications
of Bills, in terms of whether they interfere with rather than
promote particular rights.
10. 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, which includes analysis
of both possible interferences with rights and ways in which protection
for rights is strengthened by the provisions in the Bill. We
would point out, for future reference, 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.
Child Rights Impact Assessment
by the Children's Commissioner
11. We have also been assisted by the "Child
Rights Impact Assessment" of Parts 1 to 3 of the Bill which
has been carried out by the Office of the Children's Commissioner.
The Commissioner's impact assessment is through and detailed
and grounded in all the relevant international standards, particularly
those contained in the UN Convention on the Rights of the Child.
12. We welcome the provision in the Bill which makes
clear that the Children's Commissioner has the power to carry
out and publish such "children's rights impact assessments"
in relation to both Government policy proposals and legislation.[13]
The Bill rightly leaves it to the Commissioner to decide
whether to carry out such an impact assessment and in relation
to which issues. The Government is also right to leave it to
the Commissioner to decide when to carry out such an assessment.
In our experience, Parliament would always be greatly assisted
by the Commissioner 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. Sometimes
such an impact assessment would be useful at the earlier, pre-legislative
stage, such as where the Government consults on a proposal which
will clearly have a significant impact on children, or at the
later, post-legislative stage, where legislation has been passed
which clearly has significant implications for children. 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, and will not leave it to the Office of the
Children's Commissioner to do so.
Adoption and looked after children
(Part 1)
(A) 'FOSTERING FOR ADOPTION' PLACEMENTS
13. The central objective of some of the provisions
in Part 1 is to reduce unnecessary delay before a permanent placement
is found which is in the child's best interests. We welcome measures
which will speed up the adoption process because they clearly
have the potential to enhance the protection of children's rights,
in particular the important rights in Articles 7, 9, 12, 20 and
21 of the UNCRC. We asked the Government some questions, however,
about the extent to which pursuit of this objective has implications
for other, competing rights, and in particular the right of the
child to be looked after by their birth family, and the birth
family's corresponding right to respect for their family life,
other than where an alternative is necessary as a last resort.
14. Compared to the draft clauses published for pre-legislative
scrutiny, the Bill has widened the application of the "early
permanence" principle, by bringing forward the point at which
the duty on local authorities to consider a "fostering for
adoption" placement applies to the point at which the local
authority is considering adoption for the child.[14]
This is significantly earlier than the point recommended by the
House of Lords Select Committee on Adoption in its pre-legislative
scrutiny Report on the draft clauses, which recommended that the
duty should be triggered at the later point when the local authority
is preparing the child's "permanence report." The effect
of this change is that the duty could apply, in the Government's
own words, "in the first week the child is in care"
or "even before the child is born".
15. Concerns have been expressed, by the Kinship
Care Alliance, members of the Association of Professors of Social
Work and the Children's Commissioner, for example, that this gives
rise to a risk of disproportionate interference with the child's
right to respect for their family life, because it may lead to
their being adopted before all other placement options have been
exhausted, including placements which would preserve the child's
contact with their birth families. According to the Kinship Care
Alliance and the Children's Commissioner, in some cases it may
effectively pre-empt a meaningful judicial determination, because
the attachments which have been formed with the non-birth family
make the outcome of the court's determination inevitable, and
therefore be in breach of the requirements of due process contained
in the relevant international standards, including the right to
a fair hearing in Article 6(1) ECHR.
16. We therefore asked the Government whether the
trigger for the duty in clause 1 of the Bill is now so early in
the process as to be incompatible with both the child's and his
or her family's right to respect for their family life in Article
8 ECHR and, in some cases, to pre-empt the right to a judicial
determination of whether the child should be adopted. We also
asked the Government what consideration it has given to the United
Nations Guidelines on the Alternative Care of Children (2009)
when drawing up Part 1 of the Bill. The UN Guidelines are intended
to enhance the implementation of the UNCRC in relation to the
protection and well-being of children who are deprived of parental
care. One of the objectives of the relevant international standards
is to ensure that children are only placed in alternative care
as a last resort.
17. The Government's response, both in its letter
to us and the Minister's response to the same concerns raised
in Public Bill Committee,[15]
has been to offer reassurance that the policy intention is not
to give priority to 'Fostering for Adoption' over other forms
of permanent placement, but rather to give children for whom the
local authority is considering adoption the opportunity to move
in with their potential adoptive family earlier if it is determined
that such a placement is the most appropriate one for that child.
The new duty on local authorities to consider a fostering for
adoption placement, the Government says, does not discharge them
from their other duties. It remains the case that the first decision
the local authority must make is whether the child can live with
his or her birth parents. If that is not reasonably practicable
and consistent with the child's welfare, the local authority must
place the child in the most appropriate placement available.
18. The Government accepts that the new duty on local
authorities provided for by clause 1 of the Bill disapplies the
current duty to give preference to placements with family and
friends when Fostering for Adoption is being considered. Where
adoption is not the place for the child, the current law in the
Children Act 1989 assumes that if the child cannot be with parents,
the next best thing would be a placement with the wider birth
family (or a connected person). But the Government says that
where adoption is likely to be the outcome for the child, it can
no longer be assumed that the best thing is for the child to stay
with the wider birth family. This, it says, is why the local
authority will no longer be required to give preference to kinship
placements when it is required to consider a Fostering for Adoption
placement.
19. Nor, in the Government's view, is there anything
in clause 1 of the Bill which means that Fostering for Adoption
may lead to adoption without prior judicial determination. Nothing
in the Bill makes any changes to the law in relation to the making
of placement orders or adoption orders, and those cases will still
have to go through the courts. It will remain the case that a
child cannot be placed for adoption unless the birth parents give
their consent, or the court has made a placement order. Birth
parents will still have the right to be heard, and to free legal
representation, throughout those proceedings.
20. The Government therefore considers that the framework
for decision-making which is contained in the amended s. 22C of
the Children Act 1989 is compatible with both the UNCRC and the
UN Guidelines, because it continues to stress the importance of
ensuring that children continue to live with their birth family,
and of attempting rehabilitation with that family before adoption.
21. In Public Bill Committee the amendments to clause
1 which were animated by similar concerns to those underlying
our questions were withdrawn on the basis of the Minister's assurances
that it will still be a requirement that preference is given to
arrangements with the birth family and kinship care arrangements,
but the proposer of the amendments remained unconvinced about
the reasons for not making this clearer on the face of the Bill
and remained concerned about the risk of real confusion arising
from the way in which the clause is currently drafted.[16]
22. 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, whether or not
this is the intention, it 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 to be clearer that local authorities
must first consider placing a child with relatives and friends
before they consider a "fostering for adoption" placement.[17]
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.
(B) REQUIREMENT TO GIVE DUE REGARD
TO CHILD'S ETHNIC, RELIGIOUS, CULTURAL AND LINGUISTIC BACKGROUND
23. 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. The provision
being repealed gives statutory effect to the obligation in Article
20(3) UNCRC, that "when considering solutions, due regard
shall be paid [...] to the child's ethnic, religious, cultural
and linguistic background." The Government's rationale for
the repeal is that the practical effect of the provision has been
that black and minority ethnic children have been left waiting
in care longer than necessary while social workers "wait
for the perfect or partial ethnic match".
24. In view of the significance of repealing a statutory
provision which gives direct effect to a requirement in an important
human rights treaty, we have subjected to very careful scrutiny
the evidential basis for the Government's claim that the statutory
provision in question has caused delays in the adoption of black
and minority ethnic children. We note that a 2012 Ofsted report,
Right on time: exploring delays in adoption (April 2012), found
little evidence of delay caused by an unrealistic search for a
perfect match. We therefore asked the Government to explain the
basis on which it had discounted Ofsted's findings that there
is little evidence that the statutory requirement in s. 1(5) of
the Adoption and Children Act 2002 contributes to delays in adoption.
25. The Government's response is that it has considered
carefully the Ofsted report, but it was based on a survey of just
nine local authorities and those local authorities had so few
black children that it is not possible to draw any meaningful
conclusions from the report on this question. The Government
says that it does know, however, from data collected by the Department
for Education, that black children take a year longer to be adopted
than all other ethnic groups of children. We accept that the
data does show that black or black British children do take around
a year longer to be adopted after entering care than children
of other ethnicities and we agree that the significantly greater
delay experienced by black children in care is a matter of profound
concern. We agree that remedying this discrimination should be
an urgent priority for all involved in the adoption process.
26. There is no evidence, however, that the statutory
requirement in s. 1(5) of the Adoption and Children Act 2002,
to give due consideration to religious persuasion, racial origin
and cultural and linguistic background, is responsible for the
greater delay experienced by black children. The only evidence
relied on by the Government to justify its proposed repeal of
the statutory requirement is the data collated by the Department
for Education from local authorities.[18]
That data, which includes a breakdown of the timescales for children
waiting to be adopted by ethnicity between 2008-2011, in fact
shows that there are differences between different ethnic groups:
Asian or Asian British children, for example, on average take
less time to be adopted than white children.
27. In our view, the evidence relied on by the Government
therefore not only fails to support but positively undermines
its justification for repealing the statutory requirement. If
the Government's explanation were correct, we would have expected
the data to show that children from all minority ethnic groups
experience longer delays in adoption than white children, but
this is clearly not the case. The data cannot be relied upon
to demonstrate any causal link between the statutory requirement
that the Government wishes to repeal and the unacceptable delay
in adoption experienced by black children.
28. We are therefore not satisfied that the Government
has demonstrated by reference to evidence that the statutory provision
it proposes to repeal has been responsible for delays in the adoption
process to the detriment of children from ethnic minority backgrounds.
29. The House of Lords Select Committee on Adoption
Legislation was concerned that the repeal of this requirement
would risk the child's ethnicity not being taken into account.
To meet this concern, it recommended that "religious persuasion,
racial origin and cultural and linguistic background" be
added to the welfare checklist that local authorities are required
to have regard to in s. 1(4) of the 2002 Act. The Government,
however, has rejected this recommendation. It says that placing
a specific reference in s. 1(4) would "continue to create
the impression that these issues are of more importance than the
child's other needs that are covered by the welfare checklist."
In the Government's view, the existing requirement in s. 1(4),
to have regard to "the child's background and any of the
child's characteristics which the court or agency considers relevant",
is sufficient.
30. We are concerned that the effect of repealing
altogether the requirement to have due regard to these considerations
will be to give the impression that there is no longer a requirement
to pay them due regard. We asked whether, following the proposed
repeal, it will still be a legal requirement that due regard shall
be paid to the child's ethnic, religious, cultural and linguistic
background when making decisions about adoption and, if not, how
the proposed repeal is compatible with the requirement in Article
20(3) UNCRC.
31. The Government says that the effect of clause
2 is to put a child's ethnicity, religious, cultural and linguistic
background on the same footing as the child's other needs, background
and characteristics. The Government's concern is that as the
law currently stands this consideration is given too much weight
in the overall process of deciding what is in the child's best
interests, having regard to the child's background and any of
the child's characteristics which the court or agency considers
relevant. The Government's intention is not that these particular
characteristics should not be relevant considerations, but that
they should not be accorded disproportionate weight compared to
other considerations to be taken into account. The Government
intends to amend statutory adoption guidance to make clear the
appropriate consideration of a child's and prospective adopter's
ethnicity, religious, cultural and linguistic background.
32. Even if there were evidence showing that the
"due regard" requirement in s. 1(5) of the 2002 Act
has led to disproportionate weight being given to a child's ethnic
background, we fail to see why it would be necessary to remove
from the legal framework all reference to "religious persuasion,
racial origin and cultural and linguistic background." We
do not follow the logic in the Government's argument that including
those considerations in the welfare checklist would still lead
to them being accorded disproportionate weight. If the Government
accepts, as it does, that they are still relevant considerations,
its intention would be achieved by including them in the welfare
checklist in s. 1(4) alongside other relevant considerations that
are to be taken into account in the overall decision-making process.
33. 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 in s. 1(4)
of the Adoption and Children Act 2002, as recommended by the House
of Lords Select Committee on Adoption Legislation.
(C) PROMOTION OF EDUCATIONAL ACHIEVEMENT
OF LOOKED AFTER CHILDREN
34. 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.
35. 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)
36. One of the main objects of Part 2 of the Bill
is to reduce unnecessary delays in the family justice system and
refocus decision-making on the best interests of the child. We
welcome these measures in principle as potentially human rights
enhancing measures. As the Government's human rights memorandum
points out, to the extent that the provisions in Part 2 of the
Bill achieve these objectives they strengthen the UK's implementation
of Articles 3, 9 and 12 of the UNCRC and also potentially strengthen
the law's protection for the rights of children to effective access
to court under Article 6 ECHR and to respect for their private
and family life under Article 8 ECHR.
PRESUMPTION ABOUT INVOLVEMENT OF
BOTH PARENTS
37. We asked the Government, however, about the implications
of the proposed presumption in clause 11 of the Bill that the
involvement of both parents will further the child's welfare.
Clause 11 requires the court, in making certain decisions concerning
children (such as contact orders and residence orders), to presume
that a child's welfare will be furthered by the involvement of
each of the child's parents in his or her life, unless it can
be shown that such involvement would not in fact further the child's
welfare.[19] The parental
involvement presumption only applies if the parent can be involved
in the child's life in a way that does not put the child at risk
of suffering harm, and a parent is to be presumed as someone whose
involvement will not give rise to a risk of harm to the child
unless the court has evidence before it that involvement of that
parent would give rise to such a risk, whatever the form of the
involvement.
38. Article 18(1) UNCRC requires States to "use
their best efforts to ensure recognition of the principle that
both parents have common responsibilities for the upbringing and
development of the child". If evidence exists suggesting
that current UK law affords inadequate recognition for this principle
of shared parenting, clause 11 of the Bill could be seen as a
step towards greater recognition of the principle of shared responsibility.
We therefore asked the Government about the evidence on which
it relies to demonstrate that under the current law the courts
do not give sufficient weight to the importance of parenting by
both parents when deciding what is in the child's best interests.
39. The Government's response is that there is "no
evidence" that the courts are biased towards either parent.
There is, however, in the Government's view, a public perception
that this is the case, and therefore a risk that children are
losing contact with parents because of a misconception about the
way in which courts operate. One of the main aims of the amendment
in clause 11 is said to be to address this public perception and
help restore confidence in the family courts. The change will
also, the Minister says, "reinforce wider messages about
the importance of both parents in a child's life."
40. 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.
41. Article 3(1) UNCRC requires that in all actions
concerning children, including by courts of law and legislative
bodies, "the best interests of the child shall be a primary
consideration." Section 1(1) of the Children Act 1989 provides
that "the child's welfare shall be the court's paramount
consideration" when the court determines any question with
respect to the upbringing of a child. The Justice Committee,
in its pre-legislative scrutiny Report on the draft clauses, 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 ("the
paramountcy principle").
42. In its reply to the Justice Committee's Report
on the draft clauses, the Government stated that its intention
is that courts will continue to be subject to the overriding duty
in s. 1(1) Children Act 1989 that the child's welfare shall be
their paramount consideration whenever determining any question
with respect to the upbringing of a child. We have considered
carefully whether the Government's intention is achieved by the
Bill as drafted, or whether there is scope for uncertainty about
the relationship between the paramountcy principle in s. 1(1)
of the Children Act and the proposed new presumption in favour
of parental involvement in clause 11 of the Bill. We asked the
Government what provision in the Children Act or in the Bill as
drafted makes clear that the proposed presumption of parental
involvement is subject to the overriding consideration that the
welfare of the child is paramount, and whether the Government
would consider amending the Bill to make the proposed new presumption
expressly subject to the paramountcy principle.
43. The Government's response is that nothing in
the Bill affects the paramountcy principle stated in s. 1(1) of
the Children Act 1989, that "the child's welfare shall be
the court's paramount consideration", which still applies,
and an amendment to the Bill is therefore unnecessary. In the
Government's view, nothing in the parental involvement presumption
is inconsistent with the paramountcy principle.
44. The Government response to the Justice Committee
states (at para. 59) that "the child's welfare is the overriding
consideration, both within the presumption itself, and in the
overall decision making process." As the Bill is drafted,
the amended Children Act will therefore require the court to consider
the welfare of the child twice: first, when deciding whether the
presumption of parental involvement is rebutted, and then again
when the presumption itself is to be treated as a consideration
to be weighed in the overall balance when the court is deciding
what order to make.
45. 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. The following amendment
to the Bill would give effect to this recommendation:
Clause 11, page 10, line 16, before 'A court' insert
'subject to subsection (1) above,'
Special Educational Needs (Part
3)
46. Part 3 of the Bill, concerning Special Educational
Needs, engages a number of human rights standards contained in
a variety of sources, in particular Articles 23, 28 and 29 UNCRC
concerning the rights of disabled children and Articles 4 and
24 UNCRDP concerning the right to inclusive education and the
obligation accepted by the UK to take steps to bring that about.
47. Relevant guidance on the application of these
standards in this particular context can also be found in:
- the report of the UN Special
Rapporteur on the right to education, specifically on the right
of persons with disabilities to inclusive education: The right
to education of persons with disabilities, A/HRC/4/29 (19
February 2007)
- UNESCO's Guidelines for Inclusion: Ensuring
access to education for all (2005)
- the Salamanca Statement and Framework for Action
on Special Needs Education adopted in 1994 by the World Conference
on Special Needs Education: Access and Quality
48. This part 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 these Conventions
including the following:
- the recognition in the "general
principles" clause (clause 19) of the importance of informing,
consulting and supporting children and young people to facilitate
their meaningful participation in decisions concerning their special
educational needs;
- the extension of rights to Education Health and
Care Plans to under 25 year olds;
- the requirement that Academies comply with the
new SEN framework (this directly meets a concern expressed by
the Committee's predecessor about academies being outside the
scope of the SEN legal framework);[20]
- the duty to provide SEN information to children
and young people;
- the provisions designed to ease the transition
from children to adult services;
- the explicit reference to provision to assist
in preparation for "independent living" in clause 30;
and
- the provision of direct rights of appeal for
children and young people.
49. We welcome these features of Part 3 of the
Bill as positive human rights enhancing measures.
(A) PROGRESSIVE REALISATION OF THE
RIGHT TO INCLUSIVE EDUCATION
50. The UN Disabilities Convention includes in Article
24 what is commonly described as "a right to inclusive education"
for people with disabilities. States recognise the right of people
with disabilities to education and undertake "to ensure an
inclusive education system at all levels".[21]
In realising this right, States are required to ensure that "persons
with disabilities can access an inclusive [...] primary education
and secondary education on an equal basis with others in the communities
in which they live."[22]
One of the general principles of the Disabilities Convention is
"full and effective participation and inclusion in society".[23]
One of the general obligations undertaken by the States
under the Convention is to adopt all appropriate legislative,
administrative and other measures for the implementation of the
rights recognised in the Convention.[24]
In relation to the right to education in Article 24, the States
are also under an obligation to take measures to achieve the progressive
realisation of the right.[25]
51. When the UK ratified the Disabilities Convention,
it entered a reservation and interpretive declaration to the right
to inclusive education in Article 24, but the terms of its declaration
made clear that the UK accepted the obligation of progressive
realisation of the right to inclusive education:
The United Kingdom Government is committed to
continuing to develop an inclusive system where parents of disabled
children have increasing access to mainstream schools and staff
and which have the capacity to meet the needs of disabled children.
The General Educational System in the UK includes mainstream and
special schools, which the UK Government understands is allowed
under the Convention.
52. Clause 33 of the Bill retains the current statutory
presumption, in s. 316 of the Education Act 1996, in favour of
education in a mainstream setting, unless that is incompatible
with the wishes of the child's parent or the young person, or
the provision of efficient education for others,[26]
and there are no reasonable steps that could be taken to prevent
the incompatibility with the efficient education of others.[27]
53. The provision being re-enacted in clause 33 of
the Bill has been the subject of considerable litigation before
the Special Educational Needs and Disability Tribunal, and on
appeal to the Upper Tribunal, in which the issue has been whether
schools have done enough before refusing a placement to a child
with special educational needs on the basis that it would be incompatible
with the provision of efficient education for others.[28]
The frequency of such litigation about the presumption in favour
of mainstream education suggests that the current state of the
law and guidance leaves considerable scope for uncertainty in
practice about the circumstances in which a child with SEN whose
parents wish them to be educated in a mainstream school can be
denied such a place and educated instead in a special school.
If scope for such uncertainty exists, the UK's obligation under
Article 24 UNCRPD, to take steps to increase access to mainstream
education for people with disabilities, might require the Government
to remove the uncertainty by clarifying the law and/or the relevant
guidance.
54. We therefore asked the Government whether it
has considered whether the Bill's retention of the current wording
of the statutory presumption in favour of education in a mainstream
setting is compatible with the obligation which the Government
has accepted under Articles 4 and 24 UNCRPD, to continue to develop
an inclusive system where children with disabilities have increasing
access to mainstream schools.
55. The Government replied that it had considered
that question, and believes that the provisions in the Bill are
compatible with the UNCRPD. However, the Government accepted
in its response that the current guidance on the statutory provisions
on inclusion, which are contained in a DfE guidance document called
Inclusive Schooling, is not well known. The Minister therefore
said that he proposes to include guidance on the inclusion provisions,
including those requiring reasonable steps to be taken to prevent
a child's placement in a mainstream setting being incompatible
with the efficient education of others, in the new SEN Code of
Practice, which, the Minister says, is seen as the authoritative
source of advice and guidance in this important area.
56. A draft of the proposed SEN Code of Practice
has been published by the Government to assist Parliament's scrutiny
of the Bill. It does not, however, yet contain any guidance on
the inclusion provisions in clause 33 of the Bill. The guidance
that it does provide on inclusion, at para. 5.3, merely paraphrases
the relevant provisions of the legislation. The Inclusive Schooling
guidance, by comparison, contains many detailed examples of the
sorts of steps that a school or local authority could reasonably
take to prevent a child's placement in a mainstream setting being
incompatible with the efficient education of others. That guidance,
however, as the Government acknowledges, is not well known.
57. This issue of exactly how strong is the existing
presumption in favour of inclusion was debated in Public Bill
Committee.[29] A probing
amendment to the clause re-enacting the presumption in favour
of inclusion (clause 33) sought to look again at the grounds on
which it can be argued that children should not be educated in
mainstream schools, and the amount of latitude left to schools
to refuse to admit local children. The issue was raised because
of concerns that some schools are still reluctant to admit children
with special educational needs and can rely on "the efficient
education of others" to refuse a placement that they would
find merely inconvenient.[30]
The concern is that, as the law stands, mainstream schools might
prefer to take the easier option,[31]
and find excuses to avoid taking a child with special educational
needs,[32] which would
work against inclusion.
58. Responding to this concern, the Minister sought
to reassure the Public Bill Committee on the basis that the provisions
in subsections (3) and (4) of clause 33 "guard against the
condition of efficient education being used indiscriminately by
making it clear that a local authority, not a school, may only
rely on it if there are no reasonable steps that can be taken
to prevent the placement of the child or young person being incompatible
with efficient education of others."[33]
It is the local authority, not the school, he said, which makes
the decision about whether the exception to the presumption applies.
On that basis, that the "efficient education for others"
exception is for use only by the local authority rather than individual
schools, the amendment was withdrawn.
59. We note, however, that clause 33(5) of the Bill
expressly envisages that mainstream schools themselves may rely
on the "efficient education for others" exception if
they can show that there are no reasonable steps that they or
the local authority could take to prevent the interference with
others' education. While strictly speaking the decision is taken
by the local authority, a school's view that admitting a child
will be incompatible with the efficient education of other children
in the school is likely to carry significant weight.
60. We also asked the Government whether it would
consider including in the "general principles" clause
in this Part of the Bill (clause 19), as a matter to which local
authorities must have particular regard when exercising their
powers and duties in relation to the special educational needs
of children and young people, the obligation to take steps to
ensure that persons with disabilities have increasing access to
mainstream schools (an obligation which, the Government accepts,
exists under Articles 4 and 24 of the UN Convention on the Rights
of Persons with Disabilities, subject to the UK's reservation
and interpretive declaration to that Article).
61. The Government replied that while it takes its
commitments under UNCRPD very seriously, it does not believe that
it is necessary to include increasing access to mainstream provision
in the general principles in clause 19. It points to the Bill's
retention of the statutory presumption in favour of education
in a mainstream setting, the Government's wide ranging programme
of practical measures to build the capacity of teachers in mainstream
schools to support children with SEN (such as training for SENCOs,
training resources for teachers and other staff), and the duties
on schools and local authorities under the Equality Act 2010 to
increase the access of disabled children to school premises, the
curriculum and information.
62. As the Bill currently stands, "inclusion"
is not referred to anywhere on the face of the legislation. The
Minister told the Public Bill Committee that this is deliberate
because the Government wants to move away from what Mr. Buckland
MP described in Committee as "the rather sterile binary debate
about inclusion versus specialism."[34]
The draft SEN Code of Practice, however, refers, at para. 5.3
to the statutory presumption in favour of education in a mainstream
setting as "the general principle of inclusion."
63. 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.
64. We consider that a form of words could be found
for giving expression to such a general principle which avoids
the crude binary distinction between inclusion and specialism
which the Government seeks to avoid and instead reflects the more
nuanced, synthesising approach which the Government wishes to
encourage, such as where mainstream schools have specialist units
on site, or where children at specialist schools access local
mainstream schools.
65. We recommend that clause 19 be amended to
include an additional "general principle" which follows
closely the language of the UK's interpretive declaration to Article
24 of the UN Disabilities Convention, requiring 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 and which have the capacity to
meet the needs of disabled children." The following amendment
to the Bill would give effect to this recommendation:
Clause 19, page 18, line 31, insert '(e) the
need to continue to develop an inclusive system where parents
of disabled children have increasing access to mainstream schools
and staff and which have the capacity to meet the needs of disabled
children.'
66. Under Article 4(1)(a) of the Disabilities Convention
the UK has undertaken to adopt all appropriate legislative measures
for the implementation of the rights recognised in the Convention.
The inclusion of such a general principle on the face of the
Bill would in our view be an appropriate legislative measure for
the implementation of the right to inclusive education in Article
24 of the Convention.
67. 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, such as those contained in the Inclusive Schooling
Guidance, 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.
(B) PARTICIPATION OF DISABLED CHILDREN
IN THE LIFE OF THEIR LOCAL COMMUNITY
68. Scope advocates a much more far-reaching amendment
to the Bill, which would address its concern that the parents
and families of disabled children do not have access to inclusive
services in their local communities, not just in terms of education
but in terms of other services too, including health and social
care. In its view, existing equalities legislation is failing
to promote inclusive and accessible local services for disabled
children and their families.
69. We share Scope's concerns and we support the
amendment it has proposed which would impose a duty on local authorities
and NHS bodies "to promote and secure inclusive and accessible
education, health and social care provision."
(C) ENFORCEABLE RIGHTS TO SOCIAL
CARE AS WELL AS HEALTH AND EDUCATION
70. The Government's human rights memorandum states
that the requirement in the Bill that local authorities publish
on their website the "local offer" of the services and
provision which are normally available for children and young
people with SEN (clause 30) is "consistent with Article 23(3)
UNCRC". That Article, however, requires that assistance provided
to meet the special needs of a disabled child shall be designed
to ensure that the disabled child has effective access to and
receives those services (emphasis added).
71. The Bill as published only imposed a duty to
provide education services; there were no enforceable duties to
provide health or care services. However, the Government introduced
amendments to the Bill so that there will now be a duty on Clinical
Commissioning Groups to arrange the healthcare provision set out
in EHC Plans. The Government, however, does not consider it necessary
to make any similar provision in relation to the social care element
of EHC Plans, believing that sufficient legal protections already
exist in relation to such provision, which can be challenged through
local authority complaints processes and through judicial review.
We share the concerns that were expressed in the Public Bill Committee
and at Report Stage[35]
in the House of Commons, that the failure to provide in this Bill
for a specific duty in relation to the social care element of
EHC Plans, alongside the duties in relation to health and education,
poses a risk to the holistic approach which the Bill seeks to
promote, by encouraging the continuation of a wholly separate
approach to social care assessment and provision.
72. We welcome the Government's amendments to
the Bill to impose a duty in relation to health care provision,
which constitute a significant enhancement of the practical effectiveness
of the rights of children with an EHC Plan. 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.
(D) DIRECT RIGHTS OF APPEAL
73. We welcome in principle the Bill's provision
for children to appeal directly in relation to their special educational
needs and to bring disability discrimination claims against schools
to the First Tier Tribunal. Under the current law only the child's
parents have the right to bring such appeals or make such claims.
The Bill's provision, as the Government's human rights memorandum
correctly points out, directly addresses a concern expressed by
the UN Committee on the Rights of the Child in its 2008 Concluding
Observations on the UK, about the limited participation of children
in SEN appeals. Providing a direct right of appeal for children
strengthens the UK's implementation of Article 12 UNCRC, particularly
for Looked After Children, whose legal "parent" is the
very body against whom such appeals are made.
74. The direct right of appeal is only available,
however, to the first tier special educational needs and disability
tribunal in relation to the education component of the EHC Plan.
This gives rise to the prospect of "a complex and bureaucratic
system in which challenges to the health and social care aspects
of provision have to be conducted simultaneously through different
tribunals, procedures and processes."[36]
In the Public Bill Committee, the Government resisted an amendment
the purpose of which was to make the right of appeal more effective
by ensuring that the First Tier Tribunal has jurisdiction to deal
with legal challenges to the health and social care components
as well. The Government says that it is unnecessary to extend
the powers of the tribunal in view of the existing complaints
procedures and opportunities for judicial review which already
exist in relation to health and social care.
75. We are 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 which are otherwise being enhanced by the more integrated
approach to education, health and social care which the Bill promotes.
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.
(E) DETAINED CHILDREN AND YOUNG
PEOPLE
76. Clause 70 of the Bill provides that none of the
changes to the SEN regime apply to detained children and young
people.
77. This Committee and its predecessors have long
been concerned about education for detained young offenders.
In the last Parliament our predecessor Committee welcomed the
provision that was made in the Apprenticeships, Skills, Children
and Learning Bill for a statutory right to education for all children
deprived of their liberty, which gave effect to a 2008 recommendation
by the UN Committee on the Rights of the Child.[37]
78. It was concerned, however, about the extent to
which the law ensured equal access to special needs for provision
for children in detention. It accepted that it is not necessarily
practical for all of the duties imposed on Local Education Authorities
in the Education Acts to apply to the education and training of
detained children, because of the constraints imposed by custody
and the length of time for which children are usually detained.
It welcomed the Government's amendments to that Bill, in response
to the Committee's concerns, which significantly strengthened
the legal framework for the meeting of the special educational
needs of this group of children and young people amongst whom
such special needs are particularly prevalent.[38]
79. 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)
80. In our Report on the draft clauses reforming
the Office of the Children's Commissioner, we welcomed the proposed
reforms as constituting a significant human rights enhancing measure
"with the potential to transform the Office of Children's
Commissioner into a national human rights institution capable
of becoming an international example of best practice if sufficiently
resourced."[39]
In our view, the reforms directly address many of the concerns
expressed by our predecessor Committee when the Office was established
in 2004 which led that Committee to doubt the ability of the Commissioner
to operate as a national human rights institution of the sort
expected by international standards. However, we continued to
have some concerns, and in our Report on the draft clauses we
identified some possible ways of improving the draft legislation
in the light of international standards and best practice.
81. We welcome the fact that in its response to our
Report on the draft clauses the Government responded positively
to a number of our recommendations, and made a number of changes
to the draft clauses before the Bill was introduced. In particular,
we welcome the following significant changes which the Government
agreed to make to the Bill in response to our recommendations:
- Expressly including "monitoring
the implementation in England of the UNCRC" in the list of
the Commissioner's specific functions;
- Making clear on the face of the Bill that all
references to the UNCRC include the Optional Protocols that have
been ratified by the UK;
- Strengthening the formulation of some of the
Commissioner's specific powers in light of the changes to the
Commissioner's primary function;
- Expressly including a power to "investigate"
any matter relating to the rights or interests of children;
- Expressly including a power to bring any matter
to the attention of either House of Parliament, to increase parliamentary
engagement and co-operation
- Extending the provisions that relate to the Commissioner's
ability to request information, and the requirements on public
bodies to respond to the Commissioner's recommendations, so that
they apply to private providers delivering contracted-out services.
- Leaving out of the Bill the provision that would
have allowed the Commissioner to delegate the exercise of functions
to the devolved Commissioners.
82. We also welcome other aspects of the Government's
response which are not reflected in changes to the clauses, such
as:
- the Government's confirmation
that the legislation gives the Commissioner the powers to undertake
the key activities that would be expected of a national human
rights institution;
- confirmation that the Government considers that
the Commissioner will continue to have a sufficient interest in
relation to any matters before the courts which relate to children's
rights;
- agreement that the Office of the Children's Commissioner
should have its own premises; and
- confirmation that responding to any requests
for advice from the Secretary of State would be at the discretion
of the Commissioner.
83. In this Report we focus solely on those issues
where we are not satisfied with the Government's response to our
Report.
(A) "HAVE REGARD TO" OR
"PROMOTE AND PROTECT" THE RIGHTS IN THE UNCRC?
84. In our Report on the draft clauses, we recommended
that, in order to give effect to the recommendation of the Dunford
Review and the Government's own intention that the reformed Children's
Commissioner should have a rights-based remit grounded in the
UNCRC, the Bill should expressly define "the rights of children
in England" to include the rights in the UNCRC for the purposes
of defining the Commissioner's primary function, and we recommended
an amendment to the draft clauses which would have that effect.[40]
85. The Government's response to our Report said
that defining children's rights expressly by reference to the
UNCRC "would not be appropriate [...] given that the UNCRC
has not been directly incorporated into UK law."[41]
We had anticipated this objection in our Report and had proposed
a carefully formulated amendment which would merely refer to the
rights in the UNCRC for the very specific purpose of defining
the Commissioner's primary function, which would clearly not amount
to incorporation of the UNCRC.[42]
However, the Government did not respond to this specific recommendation
in its response to our Report. We therefore wrote to the Minister
asking for a response to this specific recommendation on this
important question.[43]
86. The Minister in his reply agreed with us that
defining children's rights in the way we suggested, specifically
in relation to the Commissioner's primary function, would not
amount to its incorporation into domestic law.[44]
However, he continued to believe that requiring the Children's
Commissioner to "have regard to" the UNCRC when determining
what constitutes children's rights is the more appropriate approach,
for two reasons. First, the UNCRC contains a broad mix of rights
and aspirations, rather than a more classic formulation of rights
such as those in the ECHR. Second, some UNCRC Articles do not
refer to children's rights but rather, for example, to parental
rights, or the State's responsibility to create an environment
in which children's rights can be realised. He thought it would
be inappropriate to imply that the UNCRC affords children a specifically
defined set of rights, or to place an obligation on the Children's
Commissioner to construct a right where one might not exist.
87. We have considered carefully the Minister's reasons
for continuing to prefer to use the language of "having regard
to" UNCRC rights, rather than to define "children's
rights" in the Bill to include the UNCRC, but we are not
persuaded by his arguments. It is a matter of common consensus
that the UNCRC contains some very important children's rights.
The fact that some of its provisions are couched in aspirational
terms, or impose responsibilities and obligations on the State,
does not detract from this fact. In our view the Commissioner
should be entrusted to interpret the UNCRC and to take a sensible
and properly advised approach about the children's rights that
it protects.
88. We remain of the view 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. "Have
regard to" is essentially a procedural requirement. To "promote
and protect" children's rights is a much more substantive
requirement. The Dunford Report recommended that the new role
of the Children's Commissioner should include "promoting
and protecting the rights of children under the UNCRC".[45]
In our view the Children's Commissioner should be required to
"promote and protect" the rights of children in the
UNCRC, rather than merely "have regard" to them.
89. We 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." The following amendment to the Bill would
give effect to this recommendation:
Clause 79, page 53, line 2, leave out subsection
(1) and insert '(1) For the purposes of s. 2(1) above the rights
of children include the rights in the United Nations Convention
on the Rights of the Child.'
(B) INDEPENDENCE
90. As we pointed out in our Report on the draft
clauses reforming the Office of the Children's Commissioner, the
Bill goes a long way towards addressing the perception that the
Children's Commissioner is not sufficiently independent from Government
to satisfy the requirements contained in the international standards,
including the UN Convention on the Rights of the Child and the
Paris Principles. The removal of the requirement that the Children's
Commissioner consult the Secretary of State before holding an
inquiry, and the repeal of the Secretary of State's power to direct
the Children's Commissioner to hold an inquiry, for example, represent
a welcome strengthening of the Commissioner's independence from
Government.
The NDPB model and Framework Agreement
91. We expressed some concerns, however, as to whether
the "Non-Departmental Public Body" ("NDPB")
model is appropriate for national human rights institutions such
as the Children's Commissioner, because the degree of financial
control exerted by the Government through the Framework Agreement
can give rise in practice to real inconsistencies with the requirement
in the Paris Principles that National Human Rights Institutions
should not be subject to financial control which might affect
their independence.[46]
We accepted the need for financial control and accountability,
but pointed out that other models of financial control are available,
such as the parliamentary model exemplified by the Scottish Children's
Commissioner, which might be more compatible with the Commissioner's
independence, and we recommended that the Government think again
about the appropriateness of the NDPB model for human rights institutions
such as the Children's Commissioner. We also asked that the proposed
new Framework Agreement between the reformed Office of the Children's
Commissioner and the Department for Education be made available
in draft as soon as possible to enable it to be scrutinised for
compatibility with the Paris Principles requirement of effective
independence from executive control.
92. The Government, in both its response to our Report
on the draft clauses and its response to our letter on the Bill,
said that it had looked at the alternative options but was not
persuaded that a different model from the NDPB model would be
appropriate.[47]
It points to many other public bodies which are required
to be independent from Government but operate effectively under
the NDPB model, including the EHRC.[48]
It also points to the benefit of the Commissioner having a sponsorship
link with a Government department, which facilitates liaison with
other parts of Government, which may be lost or reduced under
a parliamentary model. The Government acknowledges that there
are some constraints on the Children's Commissioner as a result
of it being an NDPB, but says that "these constraints have
not been imposed on OCC in particular in an attempt to curb its
independence."[49]
Rather, they are measures applied to NDPBs in light of
the pressure on all public funds as a result of the prevailing
economic conditions.
93. We accept that the constraints imposed on the
Children's Commissioner in the Framework Agreement are not intended
to curb its independence. However, since for bodies such as National
Human Rights Institutions the appearance of independence is as
important as actual independence, it is the perceived effect of
the financial controls, rather than their intention, which is
important. This is why the real test of the Commissioner's independence
lies in the practical operation of the Framework Agreement.
94. In the Government's Response to our Report, the
Minister promised to ask his officials to review the Framework
Agreement in light of the legislative proposals in the Bill and
our comments and to make a copy of the resulting document available
for scrutiny.[50] No
new Framework Agreement has in fact been made available but the
Government did give to the Public Bill Committee a Note explaining
how the Department thinks the existing Framework Agreement (dated
1 April 2012) will need to be amended when the reforms in the
Bill come into effect. Most of the existing agreement is based
on a standard Treasury template for all NDPBs, including the standard
Cabinet Office efficiency controls which constrain expenditure
on matters such as appointments, marketing and communications.
Exemptions from such controls can be sought and, according to
the Government's Note, the DfE will continue to support OCC in
gaining exemptions where it is felt that the efficiency controls
constrain the Commissioner in the effective exercise of her functions.
95. We note that the Equality and Human Rights Commission
has recently agreed a new Framework Document with the Department
of Culture, Media and Sport, dated 1 April 2013, in order to address
concerns about the Commission's independence which might have
imperilled its "A"-rated status as a National Human
Rights Institution. According to the Minister, the new Framework
Document "protects the EHRC's independence necessary to enable
it properly to fulfil its statutory functions, and ensure it is
accountable for its performance and its use of public funds."[51]
The new Framework Document differs from the earlier Framework
Agreement in significant respects which strengthen the Commission's
independence. For example, the EHRC's Chief Executive can authorise
all non-contentious external recruitment, whereas before the EHRC
was required to seek approval from DCMS for all recruitment outside
the civil service/public sector. The Framework Agreement between
the Children's Commissioner and the Department for Education,
however, has not been modified in the same way.
96. 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.
Website
97. In our Report on the draft clauses we recommended
that the Children's Commissioner's website be hosted outside of
the '.gov.uk' domain and that consideration be given to including
the word 'independent' in the Commissioner's web address.[52]
The Minister reassured us in his response that he appreciated
the importance of this matter and that his officials were liaising
with officials in the Cabinet Office on issues relating to the
Commissioner's website.[53]
98. We were therefore disappointed to hear from the
Commissioner, in her letter dated 14 March 2013, that the question
of retaining the OCC's independent and directly accessible website
has yet to be resolved and that the Office of the Children's Commissioner
is unable to update, or improve, their website, because this is
an areacommunicationson which the Commissioner is
not permitted to make independent decisions about expenditure
99. As the Government has acknowledged, the Commissioner's
website is a very important way of maintaining a clear sense of
the Office's independence from Government and its ability to fulfil
its remit, and we urge that all the ongoing issues with the website
be swiftly resolved.
(C) TITLE
100. In our Report on the draft clauses, we recommended
that the title of the Commissioner be changed to include "young
people" as well as "children", both in order to
encourage older teenagers to consider the Commissioner of relevance
to them, and to reflect the fact that the commissioner will have
functions in relation to certain 18-24 year olds.[54]
101. The Government in its response to our Report
said that it was not persuaded that there are "compelling
arguments" for making the change, but the response did not
address our point, which we consider to be important, that the
Commissioner will in future have functions in relation to a group
of particularly vulnerable 18-24 year olds (young people receiving
care leaving support from a local authority under the Children
Act), and such young people are unlikely to be encouraged to seek
advice or assistance from the Children's Commissioner by a statutory
framework that says, in terms, that they will be "treated
as a child."[55]
102. We therefore asked the Government for a response
to this specific point.[56]
The Minister acknowledged that this is "a slight anomaly",
and he also recognised that some under-18s are likely to associate
more closely with the Commissioner if the term "young people"
is reflected in the title. However, the group of 18-24 year olds
for whom the Commissioner will be responsible are likely to represent
only a small part of the Commissioner's role, and the Minister
felt that "it is often helpful to reinforce the message that
some vulnerable young people are still children and need to be
treated as such, rather than to emphasise their maturity."
103. The Government therefore believes that the arguments
for keeping the present title outweigh those for changing it,
but pointed out that the title which is used in the legislation
"does not rule out the possibility of a Children's Commissioner
calling him/herself by a different title if he/she felt that appropriate."
(D) ANNUAL DEBATE IN PARLIAMENT
104. In the Minister's response to our Report on
the draft clauses he said that he was "not opposed"
to the idea of an annual debate in Parliament on children's rights,
but that it was not in his gift. We asked whether, subject to
the usual caveats about the parliamentary business managers having
the ultimate decision, the Government agrees in principle that
it would desirable for there to be an annual debate in Parliament
about the state of children's rights in the UK, in Government
time.
105. The Minister had "mixed views" about
such an annual debate. He thought it would be unusual to make
it an annual event, since the only such debates since 2010 had
been in relation to the Budget and the Queen's Speech. However,
he could see advantages in parliamentarians becoming more aware
of the issues and being able to question how well the UNCRC is
being implemented. He considered that the forthcoming periodic
review of the UK's record under UNCRC would provide an opportunity
for raising such parliamentary awareness.
106. 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)
107. Changes in the Bill to parental leave and pay
which enable both parents to share parenting responsibilities
and balance work and family commitments represent progress towards
the implementation of the obligation in Article 18(1) UNCRC, to
take steps to ensure recognition of the principle of common responsibility
for parenting. We welcome these changes in principle as human
rights enhancing measures.
108. We asked, however, whether the provisions in
the Bill go as far in implementing that obligation as the proposal
contained in the Government's Modern Workplaces Consultation,
which had proposed 4 weeks of paid shared parental leave reserved
for each of the mother and the father on a "use it or lose
it" basis. The Government's own impact assessment on shared
parental leave and pay notes that "international evidence
shows that fathers are more likely to share caring responsibilities
if there is a specific portion of leave allocated to them."[57]
109. The Government in its response said that it
had considered this option, but decided that the time was not
right to introduce it now, given the weak state of the economy.
It says that it will be keeping the take-up of shared parental
leave by fathers under review, and if it proves low will consider
extending paternity leave and pay at a later date to encourage
greater take-up. It is taking the power in the Bill to do so
by way of secondary legislation, including non-consecutive periods.[58]
110. We are disappointed that the Bill does not
make the more ambitious provision for shared parental leave that
was foreshadowed in the Modern Workplaces Consultation.
All the international evidence of which we are aware suggests
that this is the most effective way to encourage fathers to take
up parental leave. 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.
1 HL Bill 32. Back
2
HC Bill 131. Back
3
The House of Commons Library has published a Report on the Bill's
Committee Stage, Research Paper 13/32 (31 May 2013) available
at www.parliament.uk/briefing-papers/RP13-32 Back
4
HC Bill 5. Back
5
Sixth Report of Session 2012-13, Reform of the Office of the
Children's Commissioner: draft legislation, HL Paper 83/HC
811 (hereafter "JCHR Report on draft clauses"). Back
6
Children and Families Bill 2013: Contextual Information and
Responses to Pre-Legislative Scrutiny, Cm 8540 (February 2013)
(hereafter "Government response to JCHR Report on draft clauses"). Back
7
Ev 2 and Ev 4. Back
8
Ev 5. Back
9
Available on our website http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/legislative-scrutiny-2013-14/children-and-families-bill1/ Back
10
Ev 6. Back
11
JCHR Report on draft clauses, above n. 5, paras 18-19. Back
12
Ev 1. Back
13
New s. 2(3)(d) Children Act 2004, inserted by clause 79 of the
Bill. Back
14
Clause 1(3), inserting new s. 22C(9A) into the Children Act 1989. Back
15
PBC 12 March 2013 c158-c187. Back
16
PBC 12 March 2013 c. 187 (Lisa Nandy MP). Back
17
Edward Timpson MP, HC Deb 11 June 2013 c 267. Back
18
Published in the Adoption and Special Guardianship Data Pack
in July 2012: http://www.education.gov.uk/childrenandyoungpeople/families/adoption/b0076713/datapack
Back
19
New s. 1(2A) Children Act 1989, inserted, by clause 11(2) of the
Bill. Back
20
Ninth Report of 2005-06, Schools White Paper, HL Paper
113/HC 87. Back
21
Article 24(1) UNCRPD. Back
22
Article 24(2)(b) UNCRPD. Back
23
Article 3(c) UNCRPD. Back
24
Article 4(1)(a) UNCRPD. Back
25
Article 4(2) UNCRPD. Back
26
Clause 33(2)(b). Back
27
Clause 33(3)-(5). Back
28
See e.g. Bury Metropolitan Borough Council v SU [2010]
UKUT 406 (AAC), [2011] ELR 14. Back
29
PBC 21 March 2013 c456-c468. Back
30
PBC 21 March 2013 c458 (Sharon Hodgson MP). Back
31
PBC 21 March 2013, c467 (Annette Brooke MP). Back
32
PBC 21 March 2013 c 461 (Robert Buckland MP). Back
33
PBC 21 March 2013 c 468 (Edward Timpson MP, Minister of State
for Children and Families). Back
34
PBC 21 March 2013 c 462. Back
35
HC Deb 11 June 2013 c191. Back
36
Mr Robert Buckland MP, HC Deb 11 June 2013 c 192. Back
37
Fourteenth Report of Session 2008-09, Legislative Scrutiny:
Welfare Reform Bill; Apprenticeships, Skills, Children and Learning
Bill; Health Bill, HL Paper 78, HC 414, paras 2.7-2.14. Back
38
Ibid., paras 2.15-2.22. Back
39
JCHR Report on draft clauses, above n. 5, para. 20. Back
40
JCHR Report on draft clauses, above n. 5, paras 33-38. Back
41
Government response to JCHR Report on draft clauses, above n.
6, para. 3 (first bullet point). Back
42
JCHR Report on draft clauses, above n. 5, at para. 37. Back
43
Letter dated 13 March 2013 from the Chair to the Minister, Ev
2, Q8. Back
44
Letter dated 15 April from the Minister to the Chair, Ev 5, Annex
B, para. 29. Back
45
Review of the Office of the Children's Commissioner (England),
CM 7981 (December 2010), p. 61 (emphasis added). Back
46
JCHR Report on draft clauses, above n. 5, paras 115-121. Back
47
Government response to JCHR Report on draft clauses, above n.
5, para. 16. Back
48
Government Reply to JCHR letter on the Bill, Ev xx, para.s 33-34. Back
49
Government response to JCHR Report on draft clauses, above n.
6, para. 19. Back
50
Government response to JCHR Report on draft clauses, para. 20. Back
51
Letter dated 2 May 2013 from the Minister for Women and Equalities,
Helen Grant MP, to the Chair of the Equality and Human Rights
Commission, Baroness Onora O'Neill: http://www.equalityhumanrights.com/uploaded_files/aboutus/ehrc_framework_letter.pdf
Back
52
JCHR Report on draft clauses, above n. 5, paras 126-8. Back
53
Government response to JCHR Report on draft clauses, above n.
6, para. 22. Back
54
JCHR Report on draft clauses, above n. 5, paras 70-77. Back
55
JCHR Report on draft clauses, above n. 5, paras 75-76. Back
56
Letter dated 13 March 2013 from the Chair to the Minister, Ev
2, Q10. Back
57
Modern Workplaces: shared parental leave and pay impact assessment,
February 2012, para. 33(ii), citing P. Moss, International Review
of Leave Policies and Related Research 2011, Institute of Education,
University of London. Back
58
Clause 95(3), amending s. 171ZE Social Security Contributions
and Benefits Act 1992. Back
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