Conclusions and recommendations
Children and Families Bill
Information provided by the Department
1. 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. (Paragraph 10)
Child Rights Impact Assessment by the Children's
Commissioner
2. 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. (Paragraph 12)
Adoption and looked after children (Part 1)
3. 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. 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. (Paragraph 22)
4. 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.
(Paragraph 28)
5. 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. (Paragraph 33)
6. 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 (Paragraphs 34 and 35)
Family Justice (Part 2)
7. 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. (Paragraph 40)
8. 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. (Paragraph 45)
Special Educational Needs (Part 3)
9. 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 the relevant rights of children and young people
protected by these Conventions. We welcome these features of Part
3 of the Bill as positive human rights enhancing measures. (Paragraphs
48 and 49)
10. 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. (Paragraph 63)
11. 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." (Paragraph 65)
12. 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. (Paragraph
67)
13. 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." (Paragraph 69)
14. 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. (Paragraph 72)
15. 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. (Paragraph 75)
16. 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. (Paragraph 79)
The Children's Commissioner (Part 5)
17. 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". 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. (Paragraph 88)
18. 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." (Paragraph 89)
19. 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. (Paragraph 96)
20. 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 (Paragraph 99)
21. 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. (Paragraph 106)
Statutory rights to shared parental leave and
pay (Part 6)
22. 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. (Paragraph 110)
Energy Bill
23. We
are grateful to the Department for producing a detailed and helpful
human rights memorandum. We reiterate our view that it is best
practice to publish a detailed memorandum on introduction of a
Bill, which is based on the ECHR memorandum prepared for Parliamentary
Business and Legislation Committee. We welcome the Department's
proactive approach in providing us with a supplementary human
rights memorandum to accompany amendments to the Bill at Commons
Committee Stage. We are also grateful for the additional information
provided to us by the Department in correspondence, which assisted
us further in our scrutiny of the Bill. (Paragraph 112)
24. We
recommend that the Government provides clarification as to whether
or not any of the powers contained in this Bill, or any other
relevant powers, could be used to obtain information relating
to individual consumers. (Paragraph 118)
25. We
note the Government's commitment to providing safeguards in secondary
legislation to regulate the acquisition and handling of information.
However, we consider that where there is a need to legislate
to require and share information, the Government's intentions
should be set out clearly in primary legislation. We therefore
recommend that the Government reconsiders whether more detailed
safeguards could be included within the scope of the powers to
obtain and disclose information on the face of the Bill. (Paragraph
120)
26. We
welcome the Government's intention to provide for a right of appeal
against a decision to impose a capacity incentive payment. However,
we consider that where provisions for appeal are necessary to
satisfy the right of access to an independent and impartial tribunal
guaranteed by Article 6(1) ECHR, these safeguards should be expressly
provided for on the face of the Bill. (Paragraph 124)
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