Legislative Scrutiny: Children and Families Bill; Energy Bill - Human Rights Joint Committee Contents


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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Prepared 27 June 2013