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


Written Evidence


1. Letter to the Chair, and Human Rights Assessment, from Rt Hon Edward Timpson MP, Parliamentary Under Secretary of State for Children and Families, Department for Education

I am writing to let you know that the Government has considered all the provisions proposed in the Children and Families Bill against the European Convention on Human Rights and the United Nations Convention on the Rights of the Child. We are confident that their effects would either be neutral or would strengthen the implementation of the rights set out in those Conventions. In particular, the Bill is designed to be consistent with children's rights in the UNCRC and will address some of the recommendations made by the UN Committee following the last UNCRC periodic review.

I enclose a copy of the Government's human rights assessment. I should be happy to answer any questions or provide any further information that would support your Committee's consideration of the Bill.

I will be placing a copy of this letter and the accompanying text in the House library and on the Department for Education website.

Consideration of the Children and Families Bill Provisions in the light of the European Convention on Human Rights and the United Nations Convention on the Rights of the Child

Introduction

1. This Government has given detailed consideration to whether the provisions in the Bill are compatible with the European Convention on Human Rights (ECHR). On introduction, the Secretary of State made a statement under section 19(1)(a) of the Human Rights Act 1998 that in his view the provisions of the Children and Families Bill are compatible with Convention rights as defined in section 1 of that Act. This note sets out a summary of the issues considered by the Government and the conclusion reached as to why the provisions are compatible.

2. In addition, in preparing for the Bill the Government has considered the Bill provisions in light of those rights set out in the United Nations Convention on the Rights of the Child (UNCRC). Not all of the Articles of the UNCRC are relevant to the Bill, but the Government has had particular regard to Article 3 - treating the best interests of the child as a primary consideration—and Article 5—respecting the rights, responsibilities and duties of parents, the wider family and other people who are responsible for ensuring children's safe and successful upbringing. The Government has also paid particular attention to Article 12—which gives children the right to express views on matters affecting them - and many of the provisions in the Bill take account of consultation with children and young people during their development.

3. Some other specific Articles of the UNCRC are directly relevant to certain provisions in the Bill and examples of how they have been taken into account are given below. Some of the provisions also address recommendations that were made by the UN Committee on the Rights of the Child following the last review of the UK's progress in implementing the UNCRC in 2008. The Government is therefore confident that the Children and Families Bill will enhance implementation of the rights of children under the UNCRC.

Bill Provisions

Adoption

Clause 1: Placement of looked after children with prospective adopters

ECHR

4. The Government has considered whether the provision aimed at encouraging early permanence placements through "fostering for adoption" is compatible with the Articles 6 and 8 rights of the birth parents and Article 8 rights of the child. The provision amends section 22C of the Children Act 1989 ("CA 1989"), which sets out the duties of a local authority in respect of accommodating looked after children—they must make arrangements for the child to live with his or her parents unless that is not reasonably practicable and consistent with the child's welfare, and it is only where this is not possible, that the local authority must then go on to consider all the other placement options available, and must decide which of those options is the most appropriate placement for the child (section 22C (5)). Section 22 of the CA 1989 applies in relation to that decision and requires the authority to safeguard and promote the child's welfare in making a placement decision. The new provision will apply where the local authority have decided that the child cannot currently live with his or her parents, and consider that adoption is a possible outcome for the child. In those circumstances, the new provision will require the local authority to consider placing the child in a 'fostering for adoption' placement, which is a placement with foster parents who are also approved prospective adopters, but in their capacity as foster parents.

5. The practical effect will be that the child will go to live with people who are prospective adopters, who may be his potential adopters, notwithstanding that the local authority does not have authority to place the child for adoption. It is important to note that such placements are already permitted in law under the CA 1989. The aim of this provision is to encourage the more widespread use of the practice of early permanence placements in appropriate cases.

6. The Government would like to stress, however, that this provision does not bring forward the point at which the child is removed from his birth parents, or affect the process by which that decision is made. Nor does it affect the process by which the decision to place him for adoption is made by the court or affect the rights of the birth family in that regard. Absent parental consent, the decision whether to authorise the local authority to place the child for adoption remains one for the court at the placement order stage, and the birth parents retain their right to be involved in the process and to have full account taken of their views and wishes, as required. On the hearing of the placement order application, if the parents do not consent to the making of the order, the court will consider whether the parents' consent should be dispensed with. Under section 52(1)(b) of the Adoption and Children Act 2002 ("2002 Act"), the court can only dispense with parental consent to a placement or adoption order if it is satisfied that the welfare of the child requires it. The Government does not consider that there is an interference with the procedural requirements of Article 8 because, taken as a whole, the process sufficiently protects birth parents who are properly involved in the decision making process.

7. In terms of the birth parents and child's right to a family life, it is important to reiterate that unless and until the local authority has authority to place the child for adoption under the 2002 Act, the placement remains a placement under the CA 1989 of a looked after child with local authority foster parents. If the local authority decided that the child ought to be placed for adoption, it will be for the court to decide whether to make the placement order and until that order is made the placement is not an adoptive placement. If the court does not make a placement order the child cannot be placed for adoption.

8. The Government acknowledges that the provision will mean that, in appropriate cases, local authorities will bring forward the point at which some children go to live with potential prospective adopters by a number of months, and that the fact that the child is living with those carers and may be forming attachments with them may weigh in the balance when the court is deciding whether the placement order is in the child's best interests. However, the provision does not bring forward the point at which the child is removed from his parents. Thus, at the placement order hearing stage, it will invariably be the case that the child no longer lives with parents—and the fact that he lives with another family will thus be a factor to be weighed in the balance against return home. Given that the new provision will only result in local authorities bringing forward the placement of the child with those carers by a relatively short period, it is not considered that this will have a significant effect on the rights of parents.

9. The Government concludes that, to the extent that Article 8 rights are engaged, such interference is both proportionate and legitimate given the importance of early placement for these children.

10. In terms of the Article 6 rights of the birth parents, and possibly other members of the birth family, even though, as mentioned above, it is likely that an attachment is formed between the foster parent and the child and that as a result, in cases where a placement order is subsequently sought, the court may conclude that the welfare of the child requires parental consent to the placement order to be dispensed with, for the reasons set out in the discussion on Article 8, the new provision does not affect the process by which decisions to remove a child from his birth family, or to place him for adoption, are made by the court, nor does it affect the rights of the birth family in that regard. The Government is satisfied that this provision is compatible with Article 6 and 8 of the ECHR.

UNCRC

11. In terms of consideration of rights under the UNCRC, this provision is about a CA1989 placement of a looked after child with foster parents, rather than placement for adoption, however as the step of placing with foster parents envisaged by this provision may be a precursor to adoption, the Government has considered Article 21 of the UNCRC and of particular relevance is the requirement that States which operate a system of adoption should have the best interests of the child as their paramount concern. It is important to note that this provision does not change the law relating to adoption. The legal position will still be that only adoption agencies, local authorities or registered adoption societies, can make arrangements for adoption. Section 1 of the 2002 Act provides that the paramount consideration of the court or an adoption agency must be the child's welfare throughout his life, and section 1(4) of that Act contains the "welfare checklist" which requires the court/adoption agency to have regard to the child's wishes and feelings, needs, background and relevant characteristics etc. The Government has also considered Article 12 UNCRC in this context which relates to a child's right to express his or her views and for such views to be given due weight according to that child's age and maturity. The requirement to have regard to the child's wishes and feelings under section 1(4) (which is not affected by this provision) is also relevant to that Article. It is clear that the adoption system still has as its focus, the best interests of the child and clause 1 has not changed this.

12. In terms of the placement with foster parents who are prospective adopters under the CA 1989, section 22(3)(a) of that Act continues to be relevant to Article 3 UNCRC and the requirement that in all actions the best interests of the child should be the primary consideration. Section 22(3)(a) contains a duty to safeguard and promote the welfare of a child looked after by them. The Government has also considered Article 12 UNCRC in this context and notes that section 22(4) and (5) of the CA 1989 contain a duty to take the child's wishes and feelings into account when placing him and this provision does not affect the operation of this requirement. The Government is satisfied that this provision complies with the UNCRC in that regard.

Clause 2: Adoption Agencies: repeal of requirement to give due consideration to ethnicity

ECHR

13. This provision repeals, as it applies in relation to England, the explicit requirement for adoption agencies to give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background. However, in making the decision on who the child should be placed with for adoption, the adoption agency will be required by section 1(2) and (4) of the 2002 Act to give paramount consideration to the welfare of the child and to have regard to the child's wishes and feelings, needs, background and any other relevant characteristics. As such, consideration of the child's religion and beliefs will continue to form part of the decision-making process as regards matching children with suitable prospective adopters. The Government is conscious that this repeal might raise concerns under Article 9 of the Convention, in that where a child holds a particular religion or belief prior to an adoptive placement, it might be argued that, if he is placed with prospective adopters who do not share those beliefs, he will not be able to manifest that religion or belief during the placement or post adoption. The Government takes the view that this concern may be valid where the child is old enough to understand and to hold religious beliefs. In such cases clearly it will be for the adoption agency to take this into account and act compatibly with Article 9 when selecting suitable prospective adopters. In any event, the Government is satisfied that this repeal is compatible with the ECHR.

UNCRC

14. In relation to the UNCRC, the Government acknowledges the relevance of Article 14, and the same arguments apply in relation to that, as do in relation to ECHR Article 9.

15. In relation to Article 20 UNCRC, the Government is satisfied that the duties set out in section 1(2) and (4) of the 2002 Act require adoption agencies to give due regard to a child's "ethnic, religious, cultural and linguistic background" are in accordance with Article 20(3).

16. Further, the Government notes the concluding observations of the Committee on the Rights of the Child in 2008 : "The Committee is concerned that children of African descent and children of ethnic minorities sometimes face long period waiting for adoption by a family of the same ethnic origin. The Committee recommends that the State party strengthen its efforts to facilitate that children, always in their best interests, are adopted as speedily as possible, taking in due account, inter alia, their cultural background".

17. The proposed legislation is designed specifically to tackle this issue.

Clause 6: The Adoption and Children Act Register

ECHR

18. The Government is satisfied that this provision, which will provide a power to make regulations to make provision enabling prospective adopters who are suitable to adopt a child to search and inspect the register for the purpose of assisting them to find a child appropriate for adoption, is compatible with the ECHR. The Government accepts that there will be an interference with the Article 8 rights of the child, however any interference is compatible with the ECHR in that it pursues the legitimate aim of speeding up the process for children who would benefit from being adopted, will be in compliance with a clear legislative framework relating to the collection, storage and disclosure of data, including the Data Protection Act 1998 and is proportionate in that there will be safeguards in place to prevent the unlawful processing of the personal data of the child.

Clauses 7 and 8: Contact (children in care of local authorities) and Contact (post adoption)

ECHR

19. These provisions have the aim of preventing the disruption to an adoptive placement that birth parents or other birth relatives may cause by inappropriate contact with the adopted child. The Government has considered the Article 6 and 8 rights of the birth parents and the Article 8 rights of the child. The Government is satisfied that these provisions are compatible with the ECHR.

20. In terms of the Article 6 rights of the birth parents where the child is in the care of the local authority, the birth parents retain the same rights to be involved in the process that may lead to adoption, so therefore the Government is satisfied that the provisions are compatible with the birth parents' ECHR rights.

21. In terms of the Article 8 rights of the birth parents when the child is in local authority care, there will still be a duty on local authorities under section 34 of the CA 1989 to allow the child reasonable contact with this parents and local authorities may only refuse contact where it is necessary to safeguard and promote the child's welfare and then for a limited period of time during with the authority may seek an order for no contact. In light of this the Government is satisfied that these provisions are compatible with the parents' Convention rights.

22. In terms of decisions about contact at the adoption order hearing or once the child is adopted, whilst clause 8 allows adopted parents to apply for an order to prevent future contact between the child and that child's birth parents or other members of the child's birth family, those members of the birth family will, if leave of the court is obtained, be able to apply to the court for contact with the child and when deciding whether to make an order about contact the child's welfare throughout their life will be the court's paramount consideration. The Government is therefore satisfied that any interference with the birth parents' Article 8 rights has a legitimate aim and is proportionate.

UNCRC

23. The Government acknowledges the relevance of Article 9 of the UNCRC to this provision, and the same points apply in relation to it as in relation to Articles 6 and 8 of the ECHR. The Government is satisfied that the amendments being made by the clauses have as their focus the best interests of the child.

Family Justice

Clause 10: Family Mediation Information and Assessment Meetings

ECHR

24. The Government has considered in particular Article 6 of the Convention in light of this provision and whether the requirement to attend such a meeting before making a "relevant family application" is compatible with Article 6. The Government is satisfied that this provision does not restrict the essence of the right of access to a court. It is proportionate in that the requirement to attend such a meeting would not apply in cases where the matter should be brought urgently to the court or where attending such a meeting would otherwise be inappropriate. The Government is, therefore of the view, that the provision is compatible with Article 6 of the Convention.

UNCRC

25. The Government notes that not all cases to which the requirement to attend a mediation information and assessment meeting applies will involve disputes in relation to children. For example, there could be a financial dispute between a divorcing couple who have no children.

26. If a case does involve a child, then Articles 3, 9 UNCRC are relevant.

27. As regards Article 3 (in all actions concerning a child the best interests of the child shall be a primary consideration), the Government does not consider that the requirement to attend a mediation information and assessment meeting in any way detracts from the application and importance of existing statutory provisions relating to the best interests of the child (for example, in section 1 CA 1989).

28. As regards Article 9, the Government does not consider that any very short delay in bringing proceedings to court which could result from first having to attend a mediation information and assessment meeting would amount to a breach of Article 9 obligations, especially as, as noted above, there will be exemptions from the requirement to attend a meeting in truly urgent cases.

Clause 11: Welfare of the child: parental involvement

ECHR

29. The Government recognises that the presumption inserted into section 1 CA 1989 by this clause engages Article 8 ECHR. However, as all decisions the presumption applies to will still be made on the basis of the child's welfare being the paramount concern and as the court (as a public body) will have to act compatibly with the ECHR when making such decisions, the Government is satisfied that the provisions are compatible with rights under Article 8.

UNCRC

30. Articles 3, 9 and 12 of the UNCRC are relevant to clause 11. It might be thought that clause 11 may encourage the court to order that a child spend time with or reside with more than one parent, and as a result may cause the separation of that child from the other parent for a period of time against his will in contravention of Article 9 of the UNCRC. However, in the event that a court makes an order that a child is to spend time with or reside with more than one parent, it will only have done so after a careful consideration of the best interests of the child (bearing in mind that the child's welfare is the paramount consideration), and once it is satisfied that the involvement in that child's life of both parents is (a) without risk of harm to the child and (b) in the child's best interests. Any such order will therefore be compliant with Article 9 UNCRC and also with Article 3 of the UNCRC which requires that in all actions concerning children the best interests of the child shall be a primary consideration. Further, because such decisions will, on the whole, be those in respect of which the court has to have regard to the factors in the 'welfare checklist'[77](which include having particular regard to the ascertainable wishes and feelings of the child), this clause also complies with Article 12

31. Clause 13: Control of expert evidence, and of assessments, in children proceedings

ECHR

32. Whilst there is a possibility that an argument could be made that restrictions on the ability to provide expert evidence and admit such evidence to court raises Article 6 and Article 8 issues, the Government is of the view that it is highly unlikely that such arguments would be successful as such restriction on using expert evidence does not limit access to the court. Further, there is not an unrestricted right to procure and adduce expert evidence. The Government's view is that the clause is in pursuit of the legitimate aim of ensuring that such proceedings are not subject to undue delay or excessive cost, and of balancing the rights of the child with those of the parents, and that this is borne out by case law in relation to existing provisions.

33. The Government is therefore satisfied that introducing a requirement for permission to commission expert evidence, for an examination or assessment of the child for the purposes of the provision of such evidence or for expert evidence to be adduced and principles for determining whether such permission should be given, as set out in clause 13, would not amount to a breach of rights under Article 6 or 8 ECHR.

UNCRC

34. The two articles of the UNCRC of relevance in relation to this clause are Articles 3(1) and 12.

35. In relation to Article 3(1) the Government recognises the importance of the welfare of the child in relation to the court's decisions relating to permission for expert evidence to be obtained or used. Subsection (7) expressly provides that when deciding whether to give permission the court is to have particular regard to any impact which giving permission would be likely to have on the welfare of the child concerned, including any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or assessed. In addition, by virtue of subsection (6) the expert evidence is to be necessary to avoid the child being subjected to unnecessary examinations or assessments or the final decision in the proceedings being delayed as a result of waiting on unnecessary expert evidence. The court's control of expert evidence provided in the clause permits the court to balance the interests of the child and the parent when reaching a decision about the expert evidence to be permitted so that the court will have before it the necessary evidence to assist its determination of what is in the child's best interest when it is making the final decision in the proceedings.

36. With regard to Article 12, the clause does not change the court's duty to have regard to matters in the welfare checklist including the ascertainable wishes and feelings of the child concerned (section 1(3)(a) of the CA 1989) when the court is considering whether to make a care order or other orders referred to in section 1(4) of the CA 1989. The clause itself ensures that the child's position, circumstances and views about being examined or assessed will be taken into account when the court is deciding whether to give permission for expert evidence to be obtained or used as the court must consider the impact which giving permission is likely to have on the welfare of the child and any impact which an examination or assessment is likely to have on the welfare of the child. In addition, the clause does not change the role of the child's guardian and solicitor in all public law proceedings and private law proceedings ( where the child is a party) of representing the child's wishes and feelings to the court.

Clause 14: Care, Supervision and other family proceedings: time limits and timetables

ECHR

37. This provision is intended to reduce the current delays experienced in care and supervision proceedings, and to ensure that cases involving care and supervision orders are more actively and better managed and progressed more swiftly. The Government has, in particular, considered Article 6 of the Convention. The European Court of Human Rights has made clear that the efforts of the judicial authorities to expedite proceedings as much as possible play an important part in ensuring that applicants receive the guarantees contained within Article 6.[78] The imposition of a requirement that an application should be disposed of without delay, and in any event within a 26 week time limit, will not affect an individual's right of access to the court. A potential concern is that the time limit could impinge upon an applicant's right to a "fair" hearing in contravention of Article 6 ECHR. There may be a concern that in certain cases 26 weeks will not be a sufficient length of time in order to enable a court to fairly dispose of a case. The Government acknowledges that there may be cases where 26 weeks will not be a sufficient length of time to enable a court to fairly dispose of a case. Clause 14 recognises this and affords the court discretion to extend time where it is of the opinion that the extension is necessary to enable the court to resolve the proceedings justly.

38. The clause allows extensions of up to eight weeks at a time to be granted, and importantly further places no limit on the number of extensions that may be granted. This safeguard ensures that for the minority of cases which cannot be decided justly within the 26 week period, the court will have the power to extend time as necessary.

39. There are further safeguards to enable the court to grant an extension after the expiry of the 26 week deadline in the rare occasion where a court deadline has accidentally elapsed with no order having been made to extend time in order to protect the rights of all parties involved.

40. Further, the process by which an extension can be sought by the parties will be set out in Court Rules and there will be a right of appeal against the decision to extend, or not to extend the time limit. We anticipate that a specific process for this will be addressed by amendment to the Appeals Practice Direction .

41. In light of this the Government is of the view that clause 14 will not unlawfully interfere with an individual's right to a fair hearing in accordance with Article 6 of the ECHR.

Children and Young People in England with Special Educational Needs

ECHR

Clause 51: Mediation

42. This provision requires a parent or young person who is considering appealing a decision in respect of educational provision to participate in a discussion about the benefits of mediation. The Government has considered this provision in light of Article 6 and is satisfied that it complies with this Article. The Government does not accept that the right being determined is a civil right for the purposes of Article 6. The right to education is narrow. It is a right not to be denied access to education not a right to the type of education a person may desire. Even if it were considered a civil right, the requirement to participate in a mediation information discussion is considered proportionate. The provision will not restrict access to a fair hearing as the requirement is simply for the potential appellant to participate in a brief discussion with a mediation company in which that person is informed of mediation as an option; there is no requirement to attend mediation. The Government is satisfied that there should not be any delay or barrier to the appeal process caused by the provision.

UNCRC

43. The SEN provisions seek to place children and young persons at the forefront of the new processes. This is reflected in the opening clause to the Part which requires a local authority when exercising a function under the Part to have regard to factors including the views, wishes and feelings of the child, their parent or young person and to ensure that the child or young person participates as fully as possible.

44. This theme is continued throughout the Part, so for example, the local authority is required to consult the children and young persons when keeping its education and care provision under review (clause 27) and when preparing and reviewing the local offer (clause 30). This is also in keeping with Article 12 of the UNCRC which requires that the child's views are considered and given appropriate weight.

Clauses 53 and 54—Direct Right of Appeal for Children

45. The UN Committee's 2008 concluding observations included an expression of concern about the participation of children in all aspects of schooling, including SEN appeals to the First Tier Tribunal. Clauses 53 and 54 should address this concern.

46. Article 12 UNCRC, in particular, is relevant to clauses 53 and 54 which are intended (following a pilot) to provide children with a direct right to appeal in SEN matters to the First Tier Tribunal("FTT"), as well as providing them the right to bring disability discrimination claims in their own right.

47. A right of appeal is currently provided to and exercised by the parent of the child. This right applies in respect of all pupils in school, whatever their age. The same is true for claims alleging disability discrimination against a school. Any challenges currently need to be brought by the child's parent, whatever the age of the child.

48. The Bill seeks to introduce a new right to appeal to the FTT for a young person over compulsory school age whilst retaining as now that the parents of a child who is of compulsory school age or younger appeal to the FTT in relation to that child. The Bill allows the Secretary of State to make an Order to provide for pilot schemes to give children in test areas a direct right to appeal in SEN matters and to bring their own disability discrimination claims before the FTT.

49. The pilot schemes will allow the Secretary of State to test different ways in which providing children with the right to appeal in SEN matters and to bring disability discrimination claims, might be implemented on a permanent basis. For example, it is proposed to test different age ranges in different areas. The Government's current intention is not to impose a competency test on the child, but instead to ask the pilots areas to consider a support test, namely what support is required to support the child in making the appeal.

50. It is proposed that the children will have access to advice and information provided through the parent partnership services and the dispute resolution arrangements. The Government will also be testing the use of case friends and providing the child with access to advocacy services.

51. The pilots are intended to be evaluated with a view to the right being provided to children on a permanent basis (by an Order made under clause 54). The clause seeks to further the rights set out in Article 12 and address the concern of the UNCRC by allowing the Secretary of State to better consider the options, and issues which may arise by providing children with the right to appeal in SEN matters. For instance, the pilots are intended to test whether the right of appeal is something which children would use, the best way to handle appeals, and the cost implications of the change.

Clause 30—The local offer

52. Local authorities will be required in 'the local offer' (clause 30) to publish information on their website on the services and provision which are normally available for children and young people with SEN. This will include information on how to access advice and support and how to make a complaint. This is consistent with Article 17 of the UNCRC which requires the State to consider the use of mass media and allowing a child access to information. It is also consistent with Article 23(3) of the UNCRC which recognises that the special needs of disabled children requires that they are provided for with free of charge access to services, which are designed so that the children have effective access to and receive education, training, and health care services.

Childminder Agencies etc

Clause 73: Childminder Agencies

ECHR

53. This provision together with amendments contained in Schedule 4 provides for the registration of childminder agencies with Her Majesty's Chief Inspector of Education, Children's Services and Skills ("the Chief Inspector"). It also provides for the registration of childminders with those agencies. Currently childminders have to be registered with the Chief Inspector before operating as childminders (subject to some exceptions). As a result of this provision childminders will have the option of registering with a childminder agency or the Chief Inspector. The Government has considered whether this provision is compatible with Article 6 in terms of childminder agencies' decisions about registering childminders. The Government does not consider that Article 6 is engaged because the civil right in question (the right to operate the business of childminding) is not being decisively determined. There remains the right to register with the Chief Inspector or another Agency. If it were the case that Article 6 is considered to be engaged by these decisions, the Government considers that there will be sufficient procedural protections in place including a right to make representations to the Agency. A fresh application for registration may also be made to the Chief Inspector, attracting a right of appeal to the FTT.

54. The Government has also considered the information sharing provisions that have been put in place as a result of childminders being able to register with childminder agencies and is satisfied that these provisions comply with Article 8 of the Convention. The Chief Inspector's power to require that childminder agencies supply him/her with certain information (including information about childminders registered with them) pursues the legitimate aim of protecting the health of children who are placed in the care of agency-registered childminders. The power is expressly limited to information which the Chief Inspector considers is necessary to the exercise of his functions.

55. The obligations on childminder agencies to supply prescribed information to HMRC and local authorities and their powers and duties to provide certain information to parents and other prescribed persons, including child protection agencies, for specified purposes mirror the disclosure obligations currently imposed on the Chief Inspector. They help to ensure that public funds through tax credits are correctly allocated, that parents can be assisted in finding suitable childcare and that children are protected from harm. The Government is satisfied that any interference with Article 8 rights is justified by the purposes for which the information is used. In all the cases described above, those processing personal data will need to comply with the Data Protection Act 1998. As public bodies the Chief Inspector, HMRC and local authorities are also bound by the requirements of Article 8 of the Convention where they are processing information falling within the sphere of private life.

UNCRC

56. In relation to the UNCRC the Government is mindful of the relevance of Article 18(3). By enabling childminders to register with agencies the Government considers that new childminders will be encouraged to deliver childcare. Agencies will provide a new framework which gives childminders training and support which will help childminders to deliver quality childcare. Working parents seeking childcare will benefit as they can approach childminder agencies for details and information about local childminders. The Government envisages that childminder agencies will facilitate the provision of childcare services for working parents by making it easier to find good quality childcare.

57. The Government also considers that the provision for childminder agencies gives further effect to the United Kingdom's obligation, under Article 3(3), to ensure that services responsible for the care of children conform to standards established by competent authorities. Childminder agencies will be required to monitor and quality-assure childminders who are registered with them by reference to registration requirements and standards set out in secondary legislation. Part of an agency's own inspection by the Chief Inspector will focus on how well that agency is assessing childminders registered with it and how well it supports them.

Provisions relating to the Children's Commissioner

ECHR

Clause 79: Commissioner's powers to enter premises

This provision gives the Commissioner power to enter premises and conduct interviews. It re-enacts an existing power with modifications. Whilst the Government acknowledges that the exercise of this power could potentially constitute an interference with the Article 8 rights of those persons who own or run the premises, of those working at the premises and of those children who are at the premises, the Government is satisfied that if there is such an interference it is capable of complying with Article 8 and that therefore this provision complies with the Convention. The power of entry will enable the Commissioner to exercise his or her general functions to protect and promote the right of children. It will not enable the Commissioner to force entry into premises or compel persons to be interviewed. Furthermore there are several safeguards in place for the exercised of this power: including that: i) it can only be exercised by the Commissioner or a person authorised by the Commissioner; ii) it can only be exercised at a reasonable time; and iii) it may not be exercised in relation to private dwellings. In addition the Commissioner will be required to exercise the power compatibly with Convention rights.

UNCRC

58. In 2010, John Dunford was asked to carry out a review of the role and functions of the current Office of the Children's Commissioner (OCC).[79] Dr Dunford concluded that there was a strong case to have a Children's Commissioner, but he recommended changes to legislation to enable the Commissioner to have greater impact. His main recommendation was that the role of the Children's Commissioner should be changed to one of 'protecting and promoting' children's rights (rather than the current role of promoting awareness of the views and interests of children). His report made recommendations to enhance the independence of the Commissioner and to ensure greater accountability of the Commissioner to Parliament. The provisions in the Bill are designed to better enable the Children's Commissioner to act as a champion for children, ensuring that their views are heard and that policy and legislation are developed in a way that takes account of their rights. The Government believes that the proposals will give children greater protection against abuses of their rights, by strengthening the powers of the Children's Commissioner to investigate and make recommendations about policy and practice that will strengthen implementation of the UNCRC. The proposals are, therefore, a key component of the Government's commitment to the UNCRC.

59. Given that the future role of the Children's Commissioner would be to promote and protect children's rights (as set out in the UNCRC), the legislation is relevant to all of the UNCRC Articles. In exercising the function of promoting and protecting children's rights, the Children's Commissioner could hold an investigation or an inquiry into existing policy or practice and/or undertake an assessment of the potential impact of proposed policy or legislation on any matter relating to the rights set out in the UNCRC.

60. Against that background, there are specific Articles in respect of which the legislation is particularly relevant, including the following:

Article 4 provides that States Parties should undertake all appropriate legislative, administrative, and other measures to support the implementation of the rights in the UNCRC. One way in which State Parties can fulfil this obligation is to establish an independent champion for children (a Children's Commissioner), with a statutory role to promote and protect children's rights;

Article 12: The proposed legislation would make clear that the Children's Commissioner's role includes: 'promoting awareness of the rights, views and interests of children'; 'encouraging persons exercising functions or engaged in activities affecting children to take account of children's rights, views and interests'; and 'monitoring the availability and effectiveness of complaints and advocacy services for children and young people'. All of these provisions are designed to ensure that children's voices are heard and their views are taken into account. With respect to how the Children's Commissioner operates, the proposed legislation would require the Children's Commissioner to take reasonable steps to consult children on his or her future priorities. The provisions would also require the Secretary of State to involve children in the process of appointing the Children's Commissioner.

Clause 79:Commissioner's powers to enter premises

61. In terms of clause 79, the Government has in particular considered Article 16 UNCRC which states that:

"1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation.

2. The child has the right to the protection of the law against such interference or attacks."

62. The Government is satisfied that the safeguards referred to in the paragraph above on the ECHR compliance of this provision, provide appropriate and necessary safeguards which will ensure the proper exercise of that power.

63. One of the purposes of the Commissioner in entering premises will be to interview children. New section 2E (3) (which is inserted by clause 79 and re-enacts with some modification the existing provision in the Children Act 2004), specifies that the interview may be conducted in private and that this is subject to the child's consent.

Provisions on Shared Parental Leave and Statutory Parental Pay

ECHR

64. Clauses 87 and 89 create new entitlements to shared parental leave and statutory shared parental pay. These new entitlements could be seen as engaging Article 14 (prohibition of discrimination) taken with Article 8 (right to respect for private and family life). This is because the entitlement of both a mother and another person, with whom care of the child is shared, depends (amongst other things) on early termination of maternity leave, statutory maternity pay and maternity allowance. The Government considers that there is no infringement of these articles. This is because it can be considered part of the protective principle behind maternity leave and pay (namely to allow a woman who has given birth to recover and to bond with the baby):

for a mother to end these entitlements early if she considers that she does not need to be on maternity leave and pay for these purposes; and

for this event potentially to generate an entitlement to shared parental leave and statutory shared parental pay for both the mother and the other person with whom care of the child is shared.

UNCRC

65. The Government believes that these arrangements are in line with Article 18 of the UNCRC about the common responsibilities of parents for the upbringing of the child.

February 2013

2. Letter from the Chair, to Rt Hon Edward Timpson MP, Minister of State for Children and Families, Department for Education

The Joint Committee on Human Rights is currently scrutinising the Children and Families Bill in the light of the UK's international human rights obligations. The Committee is grateful to you for the very detailed consideration that you have given to its recommendations in its pre-legislative scrutiny Report on the draft clauses on reform of the Office of Children's Commissioner for England, and for your positive and constructive response to many of those recommendations. It is also grateful for the memorandum you have provided summarising the Government's consideration of the Bill's provisions in light of the European Convention on Human Rights and the UN Convention on the Rights of the Child.

I would be grateful if you could answer a number of specific questions about Parts 3 and 5 of the Bill. The Committee may be in touch further about other Parts of the Bill when it has had the opportunity to consider them.

Part 3: Special Educational Needs ("SEN")

The Committee welcomes a number of aspects of Part 3 of the Bill as positively human rights enhancing measures which, as you justly claim in your letter of 22 February, will strengthen the UK's implementation of the rights set out in both the ECHR and the UNCRC.

This Part of the Bill also engages the UK's obligations under the UN Convention on the Rights of Persons with Disabilities ("UNCRPD"). Your memorandum, however, does not address this Convention.

Q1: We would be grateful to receive a supplementary memorandum setting out the Government's assessment of the compatibility of this Part of the Bill with the UNCRPD, including any ways in which the Government considers that the Bill enhances implementation of any of the rights in that Convention.

The provisions in the Bill which the Committee welcomes as enhancing the UK's implementation of the rights of children and young people protected by these Conventions include 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);[80]

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.

However, the Committee is considering a number of questions arising from a consideration of the Bill in the context of the relevant human rights obligations, including whether the Bill's implementation of some of the rights in question could be further improved, and would be grateful for your response to the following questions.

Progressive realisation of the right to inclusive education

The UNCRDP includes a right to inclusive education for people with disabilities (Article 24), and the state is under an obligation to take measures "to the maximum of its available resources" to achieve the progressive realisation of this right (Article 4). When the UK ratified this Convention, it entered a reservation and interpretive declaration to this right, 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.

The international obligation to progressively increase access to mainstream schools could be seen as one of the "general principles" which should be taken into account by local authorities when exercising their functions in relation to SEN, and therefore as a candidate for inclusion in the "general principles" clause in the Bill.

Q2: Will the Government consider including in clause 19 of the Bill, 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)?

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, and there are no reasonable steps that could be taken to overcome this. This provision has been the subject of considerable litigation before the Special Educational Needs and Disability Tribunal, and on appeal to the Upper Tribunal, which suggests that the current state of the law and guidance leaves considerable scope for uncertainty in practice about the circumstances in which the presumption does not apply.[81] For example, a mainstream school may consider that it is entitled to refuse to admit a child with disabilities on the grounds that it might not be able to accommodate the child's needs without affecting other children at the school, when in fact there is an obligation on such a school to take reasonable steps to do so. If scope for such uncertainty exists, the UK's obligation under Article 24 UNCRDP, 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 guidance.

Q3: Has the Government considered whether the Bill's retention of the current wording of the statutory presumption in favour of education in a mainstream setting is enough to be compatible with the obligation which the Government has accepted under Articles 4 and 24 UNCRDP, to continue to develop an inclusive system where children with disabilities have increasing access to mainstream schools?

The rights of disabled children and young people without SEN

The Bill provides rights to integrated education, health and care provision for children with SEN, but not for children with disabilities but no SEN. The Education Committee identified this as one of the principal shortcomings of the Bill and recommended that the Bill should include all children with disabilities, with or without SEN, within the scope of entitlement to integrated provision and to Education Health Care Plans. The Government, however, has not accepted this recommendation. The relevant provision of the UNCRC (Article 23), does not make this distinction: it refers to assistance to meet the special needs of disabled children in general terms.

There is a lack of clarity about the extent to which the categories of disabled children and children with SEN overlap, but this is crucial information for assessing the human rights compatibility of the Bill given the way in which it treats children with SEN differently from children who are disabled but do not have SEN. Some clarification about the extent of the overlap would greatly assist the Committee in its scrutiny of the Bill.

Q4: What is the Government's best estimate of how many children and young people in England:

(1)  both have SEN and are 'disabled' within the definition of s. 17(11) Children Act 1989:

(2)  have SEN but are not 'disabled'; and

(3)  are 'disabled' but do not have SEN?

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. The Bill, however, only imposes a duty to provide education services; there are no enforceable duties to provide health or care services. Other parts of the Bill are co-sponsored with other Government departments, but this part is not.

Q5: Bearing in mind that the Bill does not provide any enforceable rights in respect of health and social care provision, and that Article 23 UNCRC covers health as well as education, is the Government satisfied that the Bill is compatible with the requirement in Article 23(3) UNCRC that assistance to meet the special needs of disabled children must be "designed to ensure that the disabled child has effective access to and receives education, training and health care services"?

Direct rights of appeal

The Committee welcomes 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.

The Committee notes, however, that legal aid will not be available to fund advocacy and representation at the hearing of such cases, and the Bill does not expressly provide for the appointment of any independent advocate for Looked After Children who exercise such a right. The UNCRC Committee also recommended (para. 67 of its 2008 Concluding Observations) that Looked After Children should have a representative who actively looks after their best interests.

Q6: How does the Government propose to make the direct right of appeal for children practically effective in the absence of legal aid to pay for representation at the hearing of any appeal or claim, and of any independent advocate to represent the interests of Looked After Children in such proceedings?

Q7: What consideration has the Government given to the possibility of disagreement between parents and their children, for example where a "Gillick competent" young person wishes to be educated in a mainstream setting, but their parent wishes them to be educated in a special school?

Part 5: The Children's Commissioner

"Have regard to" or "promote and protect" UNCRC rights

The Government prefers to use the language of "having regard to" UNCRC rights, rather than to define "children's rights" in the Bill to include the UNCRC. The Committee considers that this is weaker 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".[82] The Committee recommended (paras 37-38) that, in order to give effect to the recommendation of the Dunford Review 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 the definition of the Commissioner's primary function. This would be a statutory reference to the rights in the UNCRC for a very specific purpose and would not be tantamount to incorporating the UNCRC into the general law. The Government's response to the Committee's Report did not respond to this specific recommendation.

Q8: The Committee would be grateful for your response to its recommendation in its pre-legislative scrutiny Report that children's rights could be defined in the Bill to include the UNCRC purely for the purposes of defining the Commissioner's primary function, which would not amount to incorporating them into UK law. If you do not agree, please explain why.

Independence

Q9: Please explain what consideration the Government has given to the Scottish model for the Children's Commissioner, in which the Commissioner is an adjunct of the Scottish Parliament rather than an NDPB, and explain the Government's reasons why such a model would not be appropriate for the English Commissioner.

Commissioner's title

Q10: The Committee would be grateful for the Government's response to its point about 18-24 year olds at paras 75-76 of its Report.

Annual debate in Parliament

In your response to our Report on the draft clauses you said that you were "not opposed" to the idea of an annual debate in Parliament on children's rights, but that it is not in your gift.

Q11: Subject to the usual caveats about the parliamentary business managers having the ultimate decision, does the Government agree in principle that an annual debate in Parliament, in Government time, on the state of children's rights in the UK would be desirable?

13 March 2013

3. Letter to the Chair, from Dr Maggie Atkinson, Children's Commissioner for England

Thank you for providing me with a copy of your letter to Mr Edward Timpson MP, Minister of State for Children and Families setting out the Committee's further questions in relation to the proposed Bill's compliance with the UK's international human rights obligations. I agree with the content of this letter and am grateful to you for sharing it with me.

I trust you have received my Child Rights Impact Assessment (CRIA) of the Children and Families Bill, Part 1-3 together with notes on reform of this affice and hope you will find it useful in your forthcoming consideration of and potential debates on the Bill. I attach these documents again for ease of reference.

In connection with discussions my team and I have had with the Committee before, and in setting out to do ongoing work in this transitional year towards a reformed OCC—of course pending the Bill's passage and subject to the will of Parliament— members may wish to note that this week the acc received notification of the 2013-14 budget. Whilst all of us here expected, and had planned in detail against, a further reduction of 200,000 in the budget for the coming year, sadly the team here is having to revise the business plan for 2013-14 to remove planned activities, and therefore to lessen our likely impact for children. This is because we are now working to a confirmed reduction of £229,000 and therefore a total budget, in round figures, of £2.27 million. As the Committee members are on OCC's stakeholder and mailing lists, I will let them have the plan, based as I say on a reduced level of activity and fewer likely outcomes for children, in the coming weeks.

Again on matters members of my team and I have raised with the Committee before, we are also continuing to try to retain the acc's independent and directly accessible website, that is, not becoming part of the generic '.gov.uk' web domain. This ongoing work on the principles and practice of OCC's and the CC's independent status was strongly endorsed by my Interim Advisory Board only this week, its members considering any move to make OCC part of the general government website to be a direct contradiction of the aims and ambitions for a more independent OCC set out in Part 5 of the Bill. I will keep you and your members informed of any progress on and outcomes of this matter, given the independent web presentation of OCC's work lies at the heart of what we all do here, and is key to our ability to say what must be said for children and young people, as well as to how children and young people contact and interact with us. In the reformed office this will be more not less the case. On a related matter and in spite of a pressing need and a well-presented business case we continue to be denied permission to update, or improve our website. This is becoming a real impediment, and I can see no reason for the blockages we face, especially given the high hopes for positive change in a post-Children and Families Act (2014) world.

Do keep me informed should you have further questions or commentary on our work.

14 March 2013

Office of the Children's Commissioner—Funding; extension of powers and independence

We welcome the opportunity to provide the Committee with our estimate of what constitutes 'reasonable financial provision' to meet the Office of the Children's Commissioner's (OCC) responsibilities as set out in the current legislation. We also welcome the opportunity to set out our thoughts on extending the Commissioner's powers and constraints on our independence.

Sufficiency of funding

The United Nations Convention on the Rights of the Child General Comment No.2 and Paris Principles establish the need for children's human rights organisations to be awarded 'reasonable financial provision'.

Below, we identify the additional budget that would enable us to comprehensively fulfil our current statutory remit. This is based on our experience of promoting and protecting children's rights since the inception of the Office of the Children's Commissioner. The costs of the additional functions expected to be a part of the OCC after 2014, when the Children and Families Bill passes into law, have not been included. Work is underway to assess how the Office of the Children's Rights Director's (OCRD) remit can be effectively integrated into the OCC. We are basing this on the principle that OCRD's current budget will transfer in full to the OCC in 2014 in order to cover the additional costs and functions that the office will assume under new legislation.

Background to our current budget

We have not yet had our 2013-14 budget confirmed but we anticipate a reduction which will mean that the budget will have reduced by 36% in real terms since the Office of the Children's Commissioner was established in 2005 and by 28% since 2010-11. These percentages are based on the following:

When we were established in 2005, we had a standstill budget that was set at £3m per year for five years. This represented a reduction in real terms of 8% over the period.

Our budget was reduced in subsequent years so that in 2012-13 it was £2.5 million. We expect our 2013-14 budget to reduce by at least a further £200,000 (just over 8%) from 1 April this year.

We are advised that there will be a further reduction of at least £200,000 for the 2014/15 financial year.

We wholeheartedly support the drive towards increasing public sector efficiency and effectiveness. In recent years, we have done much to refocus our expenditure away from back office functions and into programme delivery, where it has the greatest positive impact on the lives of children and young people. However, we have significant but necessary administrative costs associated with being a Non Departmental Public Body. These include the cost of audit; governance; security; and compliance with procurement procedures and frameworks that are often less cost effective for an organisation as small as the OCC. We have reduced these corporate costs as far as possible and the funding cuts from April 2013 are now falling disproportionately on our participation and public policy work.

Additional resource required to meet our current remit

Having been asked to provide details of what resources the OCC requires to carry out its current remit, we have considered what work we cannot or will have to stop doing. For ease of analysis, we have presented four categories of expenditure where our current budget is, or is likely to be, insufficient over the coming years. These areas and the amount of additional resource required are set out below.
Areas requiring additional resources Amount of additional resources required
1. Staffing£175,000
2. Research, investigations and inquiries £270,000
3. Rent and accommodation £150,000
4. Engaging with children, young people and other key groups £60,000
Total£655,000

1. Staffing

With the uncertainly of our budget in the last three years we have avoided, where possible, taking on permanent members of staff, have left other positions that should be filled vacant, and left other areas of work undeveloped.

To realise work that is closely aligned to our remit, we consider that we need at least:

a.  an increase in the staffing resource dedicated to children and young people's health from the current level (equivalent to 0.2 full time member of staff/four days per month) to a full-time position

b.  to recruit a youth justice expert to cover the position that is in our staffing structure but that left unfilled because of budget constraints.

The cost of recruiting people with comparable levels of experience and expertise to staff already in the organisation is approximately £150,000. This equates to two grade 7 civil servant and represents the total costs of the posts, including pensions and National Insurance contributions.

We also believe it is necessary to dedicate some staff resource to following through the recommendations we make and pursuing implementation. The Children and Families Bill promotes OCC's accountability to Parliament with a requirement to report annually to a Committee on the impact of our work and progress made in realising our recommendations and children's rights in England. Further capacity is needed in order to have accurate and useful information and to vigorously follow-up our work with relevant agencies. We have costed this requirement as a junior part-time position, requiring a budget of £25,000 including on-costs.

If resources allowed, we would also consider recruiting another children's rights expert to undertake more Child Rights Impact Assessments, and supplement current staffing levels devoted to our work on education. However, as both these areas already have 0.8 of a full time equivalent post (four days per week), we are not suggesting that this is a priority and have not included these additions in our cost calculation.

2. Research, investigations, and Inquiries

Over the past three years we have undertaken between ten and fifteen projects per annum. These projects often included new primary research either undertaken or commissioned by the OCC. The average cost of this work is around £40,000. Approximately 90 per cent of research we commission costs between £25,000 and £50,000.

The result of likely budget cuts in 2013/14 means that project budgets will have, on average, less than £10,000 each. This will result in little or no significant new research being undertaken or commissioned, which in turn, will restrict our ability to undertake investigations and inquiries. The impact will not be immediately felt in 2013/14 because of the number of projects being rolled forward from 2012/13, but the capacity for new work is likely to be significantly affected in 2014 and beyond. This will undoubtedly affect our capacity to meet our duty to promote and protect children's rights.

Our non-staff project budget for 2013-14 is estimated to fall to under £200,000, which includes the cost of completing our two Inquires and committed expenditure on research into the impact of parental alcohol misuse and the barriers children face to accessing child protection services. We would propose that OCC requires sufficient resources to increase our project budget back to 2012-13 levels excluding the amount it would require to launch a new Inquiry. This would mean that the OCC requires an additional £270,000 which would enable us to undertake the following:

carry through the recommendations from our two Inquiries (School Exclusions and Child Sexual Exploitation in Gangs and Groups), including further areas that require investigation

properly fulfil our obligations as members of the National Preventative Mechanism for the monitoring of cruel, inhuman or degrading treatment in places where children have been deprived of their liberty, by continuing to undertake visits to the youth justice secure estate, forensic mental health settings and, critically, visit detention settings that we have so far not been able to visit because of a lack of resource. This includes police custody facilities where approximately 50,000 children are detained per annum

carry out further and more detailed work on complaints systems that young people are able to access in different settings in accordance with current legislation

undertake more Child Rights Impact Assessments of key legislation and policies

undertake new work on protection afforded trafficked children and young people

develop new investigations on how to improve residential care and the education and health outcomes of children in care.

It is important to note that these are examples of what the additional resources would be spent on based on our current work. All of the work we undertake goes through a rigorous business planning process, which includes consulting with a broad range of organisations and individuals to establish the expected need and impact.

We believe that this additional sum is a modest amount of money to secure the rights of the most vulnerable children in England. OCC has demonstrated that it has the capacity to commission, manage and use this budget level efficiently and effectively to impact policy and service delivery. It would mean that most of the projects in the 2013-14 business plan are able to undertake primary research identified as necessary.

3. Rent and accommodation

The Government requires that we move out of our current offices at some point over the next twelve months. Under current Government guidelines, we must find alternative accommodation within the Crown Estate. The Department for Education has advised that comparable accommodation will cost at least £150,000 more than our current premises costs. This is a significant additional sum, which if not recognised and funded, will mean a substantial reduction in projects to address children's rights.

4. Engaging with children, young people and other key groups

Successive evaluations from children and young people, key stakeholders, policy makers, and our own internal auditors have noted that our website is no longer adequate for effectively communicating with different groups. Resolving the issue is partly a matter of resource but is also linked to OCC's independence. In line with Government guidance on communications activity, the OCC has not been allowed to carry out work to improve the usability of its website for some years, and there are currently proposals that it will be incorporated into the single government domain '.gov.uk'. To date, our business case to Cabinet Office to develop the site so that it is fit-for-purpose and to maintain an independent URL and has not been accepted. We continue to pursue this matter vigorously.

The Children Act 2004 also requires the OCC to produce a children's version of its reports. Due to a lack of capacity, resource and restrictions on expenditure that is classed as communications, we have produced very few young people focused documents and report. This is an example of the work we are tasked with doing under the 2004 Act and it is unacceptable that limited resources place such a serious constraint on delivering this obligation.

The additional cost of updating our website, undertaking more and tailored communication, including communications and resources for children and young people is likely to cost approximately £40,000. We have based this figure on the best value estimates for a basic level of work across this area.

Constraints on independence

The Paris Principles and the United Nations Committee on the Rights of the Child's General Comment 2 emphasise the need for national children's rights organisations to be independent so that they can hold the state, the public sector, organisations carrying out public functions but based in the voluntary or private sectors, and wider society, to account in relation to their treatment of children.

Whilst measures proposed in the Children and Families Bill will make the Commissioner more independent from Government, there are controls in place which continue to constrain our independence. On the one hand, the Bill proposes removing the ability of the Secretary of State to direct the Commissioner to undertake an Inquiry, which is a requirement under the 2004 Act. Whilst on the other, and taken from current experience, the Commissioner is not permitted to make independent decisions about its expenditure on communication and staff recruitment, including the development of its website. This constrains our ability to effectively fulfil our remit. For example, being permitted to develop a fit-for-purpose website is important to furthering our work. Unless this is addressed in the way the OCC was established—probably by technical papers on implementation—the new body will be stronger in theory, but remain constrained in practice.

Extending the Commissioner's Powers

At present, the Commissioner relies largely on evidence based reports and moral authority to ensure that recommendations made are implemented. Extending the Commissioner's powers to enable the postholder to insist that recommendations are implemented has both pros and cons. On the positive side it would enable the Commissioner to enforce positive change in relation to children and young people's rights. However, it is likely that it would change the nature of:

the recommendations the OCC makes

the relationships with stakeholders the OCC has constructed and nurtured to facilitate positive change.

The Commissioner also believes that there would be considerable resources implications attached to an additional regulatory function. However, OCC feels that some additional resource would enable it to track the progress that organisations have made in implementing recommendations and this has been outlined in the staffing section above.

4. Letter from the Chair, to Edward Timpson MP, Minister of State for Children and Families, Department for Education

I wrote to you on 13 March asking a number of questions about Parts 3 and 5 of the Bill. My Committee has now had the opportunity to consider Parts 1, 2 and 6 of the Bill and it would be grateful if you could answer the questions below concerning the human rights implications of some of those provisions.

Part 1: Adoption and Looked After Children

The Committee welcomes as a positively human rights enhancing measure the provision in clause 9 of the Bill requiring every local authority in England to appoint an officer to discharge its duty to promote the educational achievement of looked after children. This is 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.

The Committee also welcomes as potentially human rights enhancing the central objective of some of the provisions in Part 1, namely reducing unnecessary delay before a permanent placement is found which is in the child's best interests. It has some questions, however, about the extent to which pursuit of this objective has implications for other competing rights.

The Committee is grateful for the Government's analysis of the compatibility of Part 1 of the Bill with the EHRC and the UNCRC. The United Nations Guidelines on the Alternative Care of Children (2009) 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.

Q1: What consideration has the Government given to the United Nations Guidelines on the Alternative Care of Children when drawing up Part 1 of the Bill?

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 to the point at which the local authority is considering adoption for the child. 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".

Concerns have been expressed 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 options have been exhausted, and that in some cases it may lead to that result without a prior judicial determination, and therefore in breach of the requirements of due process contained in the relevant international standards.

Q2: Is the trigger for the duty in clause 1 of the Bill now so early in the process as to be incompatible with both the child's and their 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?

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".

A 2012 Ofsted Report, Right on time: exploring delays in adoption (April 2012), however, found little evidence of delay caused by an unrealistic search for a perfect match.

Q3: Please explain the basis on which the Government has discounted the findings by Ofsted 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?

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." 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 in the Government's view.

Q4: Will it 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? If not, how is the repeal compatible with the requirement in Article 20(3) UNCRC?

Part 2: Family Justice

The Committee welcomes in principle as potentially human rights enhancing measures those aspects of Part 2 of the Bill which will reduce unnecessary delays in the family justice system and refocus decision-making on the best interests of the child. 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. The Committee has some questions, however, about the implications of the proposed presumption that the involvement of both parents will further the child's welfare.

Clause 11 of the Bill 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. 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.

Q5: What evidence does the Government rely on 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?

The Committee notes that 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", and that, if evidence exists suggesting that the current law is inadequate in this respect, clause 11 of the Bill could be seen as a step towards greater recognition of the principle of shared responsibility. It is considering carefully, however, the implications of clause 11 for the requirement in Article 3(1) UNCRC, 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." It is scrutinising this issue particularly closely in light of the "significant concerns" expressed by the Justice Committee, in its pre-legislative scrutiny Report on the draft clauses, that a legislative presumption might detract from the principle that decisions must be made in the best interests of the child ("the paramountcy principle").

The Committee notes the Government's statement, in its reply to the Justice Committee's Report on the draft clauses, 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. The Committee welcomes this intention but is considering whether it 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.

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 both 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. Because the child's welfare is to be considered both in deciding whether the parental involvement presumption is rebutted and again in the overall decision-making process, there may be scope for uncertainty about the relationship between the two requirements.

Q6: 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?

Q7: To remove any 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, will the Government consider amending the Bill to make the proposed new presumption expressly subject to the paramountcy principle?

Part 6: Statutory Rights to Leave and Pay

The Committee welcomes in principle as a human rights enhancing measure changes to parental leave and pay which enable both parents to share parenting responsibilities and balance work and family commitments. Such measures implement the obligation in Article 18(1) UNCRC referred to above, to take steps to ensure recognition of the principle of common responsibility for parenting. The provisions in the Bill, however, are weaker than those first proposed by the Government in its Modern Workplaces Consultation, which proposed parental leave for fathers on an independent "use it or lose it" basis, rather than a system of shared leave which can be distributed between two parents.

Q8: Do the provisions in the Bill for shared parental leave and pay go as far in implementing the obligation in Article 18(1) UNCRC as the proposal contained in the Government's Modern Workplaces Consultation?

26 March 2013

5. Letter to the Chair, from Edward Timpson MP, Parliamentary Under Secretary of State for Children and Families, Department for Education

Thank you for your letters of 13 March and 26 March, on behalf of the Joint Committee on Human Rights, which asked questions about Paris 1, 2, 3, 5 and 6 of the Children and Families Bill.

I am delighted that the Committee has demonstrated such strong interest in the Bill and that my memorandum explaining the Government's considerations in relation to the European Convention on Human Rights and UN Convention on the Rights of the Child has been of assistance. Thank you again for your pre-legislative scrutiny of our provisions relating to the Office of the Children's Commissioner.

I enclose two annexes responding to your requests:

Annex A relates to Part 3 (SEN). It includes a supplementary memorandum setting out the Government's assessment of the ways in which this part of the Bill engages and enhances rights in relation to the UN Convention on the Rights of Persons with Disabilities (UNCRPD) followed by answers to your specific questions.

Annex B covers parts 1, 2, 5 and 6 of the Bill, answering your specific questions. For ease, the questions have been numbered in the same way as they were in your letters of 13 and 26 March.

I hope this letter provides the clarification the Committee requires, and I look forward to continued discussion during the Bill's passage through Parliament.

15 April 2013

Annex A

Memorandum on Consideration of Part 3 of the Children and Families bill in light of the United Nations Convention on the Rights of Persons with Disabilities & answers to specific questions from the Joint Committee on Human Rights.

Introduction

1. The Government has considered the provisions of Part 3 of the Children and Families Bill ("the Bill"') in light of the United Nations Convention on the Rights of Persons with Disabilities ("UNCRPD"). Part 3 of the Bill concerns children and young people with special educational needs ("SEN). As with the United Nations Convention on the Rights of the Child. not all the Articles of the UNCRPD are relevant to Part 3 of the Bill. however. The Government has had regard to those that are. Section C of this note provides an illustration of how certain provisions in Part 3 are compatible with the UNCRPD and how rights under that Convention are enhanced as a result of those Bill provisions.

2. Further, in order to explain why the Government considers that the Bill enhances rights under the UNCRPD, this note will also clarify how the provisions contained in Part 3 of the Bill relate to disabled children and young people. This will include an explanation of the relationship between SEN and disability, and an explanation as to how disabled children and young people will benefit from the proposed reforms. The Government is appreciative of the UK's obligations under the UNCRPD and recognises the importance of protecting those with a disability from all forms of discrimination.

3. The reforms in Part 3 of the Bill are designed to improve the identification and assessment of children and young people with special educational needs and improve the support they get to access educational provision, to achieve and make a successful transition to adulthood . They take forward the education spine of current SEN legislation and extend rights and protections enjoyed by children and young people in schools to those in further education. The Government is confident that the provisions will improve support for disabled children and young people, many of whom will have special educational needs. The improved practice that will result from the reforms, particularly in relation to better identification of children and young people who need support; more holistic assessments of need; and better integrated working between agencies to plan and commission services across education , health and social care will benefit a wide range of children and young people including disabled children who may not have special educational needs. The reforms in the Bill will also work with other legislation and guidance, such as the Equality Act 2010, to safeguard and improve the rights of disabled children and young people.

4. Answers to the detailed questions from the Committee are set out in Annex A1.

A. Background

5. The Joint Committee on Human Rights ("the Committee") may find it helpful to consider definitions relevant to "SEN" in light of the description of those persons which benefit from the rights set out in the UNCRPD.[83]

Special Educational Needs

6. The definition of SEN used in the Bill is broad, and mirrors the current definitions of SEN and a learning difficulty set out in sections 312 and 15ZA of the Education Act 1996. The Bill provides a single definition which applies to children and young people, from birth to 25 years old. The intention to extend the age range the provisions apply to, to include young people who are not at school, has been universally welcomed.

7. As the Committee is aware, clause 20 of the Bill provides that a child or young person has SEN:

"If he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her"[84]

Clause 20 further provides that:

"A child of compulsory school age or a young person has a learning difficulty or disability if he or she—

a)  has a significantly greater difficulty in learning than the majority of others of the same age, or

b)  has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institution"

This definition of SEN explicitly includes those who have a disability who fall within the description in clause 20(2)(b).

8. A child or young person has SEN if they have a learning difficulty or disability which requires special educational provision to be made for them. 'Special educational provision' means educational or training provision which is additional to or different from, that made generally for others of the same age.[85]

The relationship between SEN and disability

9. As the Committee is aware, Article 1 of the UNCRPD defines persons with disabilities to include:

" [...] those who have long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others."

There is a considerable overlap between children and young people with SEN and children and young people who have a disability. It is estimated that approximately three quarters[86] of those children and young people with a disability[87] will also have some form of SEN.[88] In order to have SEN a child or young person needs to have a disability or learning difficulty which requires special educational provision to be made. It is possible for a child or young person to be considered to be a disabled person for the purposes of the UNCRPD and not to have SEN. Similarly, it may be possible for a child or young person to have SEN but not to be considered as a disabled person for the purposes of the UNCRPD.

B. The provisions in Part 3 and the UNCRPD

General

10. The reforms seek to meet the needs of children with SEN, where on the whole, educational outcomes are markedly lower than their contemporaries. The SEN provisions consequently are intended primarily to assist those children and young persons who require additional provision within the education sector. As the Committee will be aware there is a spectrum of need across SEN. Those children and young people with the more significant needs under the current system qualify for a Statement or Learning Difficulty Assessment. Under the proposed reforms this will be replaced by a single Education Health and Care plan ("plan") which will bring together all the provision which they require. Other children and young people with SEN who do not come within the threshold of a plan will benefit from other parts of the Bill such as the local offer and joint commissioning of services.

11 . Where a plan is used this will seek to help the child or young person achieve the best outcomes in life which they are either able to achieve or aspire to achieve. The outcomes could be an educational goal, employment, or transitioning to independent living. The Bill seeks to place duties on local authorities and educational institutions to provide for this group, and there is a right of appeal concerning the special educational provision in a plan, to the First-tier Tribunal, which will be available to young people aged 16[89]-25 in further education and train ing, for the first time.

12. Although, the reforms in Part 3 are specifically targeted at children and young people with SEN a considerable number of disabled children and young people will benefit because of the large overlap. For the first time, there will be a plan which will seek to combine assessment processes and better coordinate provision, and this plan will extend new rights and protections to 16-25 year olds in further education and training. This will help ensure that for the more complex and vulnerable of individuals, who often have education, health, and social care needs, there will be less repetition and bureaucracy from the professionals and better holistic provision. Because of the proposed reforms, many disabled children and young people will be able to benefit from a plan: they will now be able to express a preference to be educated in an Academy or post-16 institution: and will now have a greater say in what is provided to them in their plan through an entitlement to a personal budget.

13. For those children and young people with a disability but without SEN, their entitlement to 'provision' under the re levant Social Care[90] and Health[91] legislation or other legislation continues. Nothing in the Bill restricts these entitlements. For instance, the Equality Act 2010 has meant that from September 2012 schools and local authorities have had to make reasonable adjustments to provide auxiliary aids and services for students with a disability, this may include specialised computer programmes, hoists and sign language interpreters.

14. The auxiliary aids duty applies to all disabled children and young people whether they will have an Education, Health and Care plan or not as will other duties under the Equality Act 2010. For example, schools, colleges and local authorities have duties under that Act to plan to increase access for disabled children to premises, the curriculum and to information.

The draft SEN Code of Practice

15. The Committee will be aware that the Department for Education has provided a draft Code of Practice[92] to assist Parliament when considering the provisions in Part 3. The Committee will also be aware that it is the Code of Practice which will provide statutory guidance on how functions under the Part should be exercised. The list of bodies which are obliged to follow the Code is extensive and will include local authorities, most educational institutions, health bodies and the First-tier Tribunal .[93] The Committee should note that it is the new Code that will provide guidance, for example, on the Additional SEN Support that will be provided to those with SEN but without a plan.[94] This is the group which are currently referred to as being at school action or school action plus, or in college who have been in receipt of low-level support, namely those who have SEN but whose needs are provided for mainly from within the school's or college's normal resources, with the local authority being able to make some additional provision at school action plus.

16. The draft Code recognises the importance of providing for those with a disability (regardless of whether they have SEN) and clearly sets out the relationship between SEN and disability.[95] It seeks to draw the whole picture for those with a disability, for instance it sets out the key duties under the Equality Act 2010 which schools, colleges and local authorities have towards disabled children or young persons, including the duty not to discriminate or harass children or young persons with a disability, and the duty to make reasonable adjustments to alleviate any sUbstantial disadvantage which the child or young person might otherwise suffer. The draft Code also refers to appropriate guidance and legislation which the local authority or educational institution will need to consider.[96]

17. For the reasons outlined, the Government is confident that the SEN provisions in the Part, along with existing legislation and guidance, will improve the rights of disabled children and young persons. The proposed educational system will better support those with a disability as expected under Article 24 of the UNCRPD, which rightly recognises the importance of allowing those with a disability not to be excluded from the general education system on the basis of disability.

C. Specific examples as to how Part 3 provisions are compatible with the UNCRPD

18. As set out above, the Government has considered the provisions in Part 3 in light of the relevant Articles in the UNCRPD. Below is an illustrative summary of the sorts of issues that have been considered.

Article 4(l)(h)— General obligations: To provide accessible information to persons with disabilities etc

Joint Commissioning Arrangements—Clause 26

19. The joint commissioning arrangements will require local authorities and their partner clinical commissioning groups to assess jointly the education, health and care provisions needs of the local population of children and young people with SEN, and determine what education , health and care provision is reasonably required to be secured to meet those needs. The arrangements will also set out which body is to provide which service and will include mechanisms locally to provide clear advice and information about what is available, and in order to resolve complaints where there is a problem with local services or between health and local authority providers. Those who are disabled will see benefits from this reform which will improve the provision and coordination of services, and ensure than information and advice is available to disabled people.

20. The joint commissioning arrangements can include more than the above, and the requirements in clause 26 provide merely the template from which each local authority and partner clinical commissioning group will start. We expect local authorities will look to build upon the arrangements and provide additional services according to the local needs for children and young people with SEN. These reforms look to build upon and complement the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategy[97] which require the local authority (in consu ltation with Clinical Commissioning Groups amongst others) to assess and prepare a local strategy for those that have needs that are capable of being significantly met by either the authority of health bodies. This overall structure within which joint commissioning fits, will benefit disabled children and young people.

The Local Offer—Clause 30

21. Parents and young people have told Government that a failing of the current system of provision is that they often do not know which services and resources are available and very often have little say in the development of those local services . The local offer seeks to ensure that information about services is available and transparent and that local authorities work with children and young people with SEN and their parents to develop the offer. The draft Code confirms that this involvement should be more than just a simple 'sign off and that children and young people can usefully influence the type of provision and how it is made accessible. Children and young people should be involved in planning the content of the local offer, deciding how the local offer should be published and in providing feedback on services in the local offer. In fact there is a requirement for the local authority to publish comments made from or on behalf of children and young people on the local offer and he authority's response.[98]

22. Each local authority will be required to publish details of the services which will be available for those within its area for whom it is responsible and for those outside its area for whom it is responsible. The draft regulations[99] and the Code of Practice[100] which supplement the clause on the local offer, illustrate the breadth of the information which the local authority will be intended to provide. For example, this will include information on short breaks; support when transitioning between phases of education, or from children to adult care, or to adulthood and independent living. The local offer will be published and reviewed in consultation with children and young people, and the local authority wi ll be required to publish it in a manner to ensure that those with a disability are able to gain access in accordance with Article 21(a) of the UNCRPD.

General

23. It is anticipated that the joint commissioning arrangements,[101] duty to keep education and care provision under review,[102] and the local offer[103] will result in disabled children and young people being provided with improved and coordinated services and better information as to what is available locally in respect of education, health and social care provision.

Article 4(3)—General obligations: to consult persons with disabilities or their representative organisations

24. In accordance with Article 4(3), prior to introducing the Bill, the Government consulted thoroughly on the reforms with all parts of the education sector including disability groups. This extensive consultation included the 'Support and aspiration: A new approach to special educational needs and disability' Green Paper and the process of pre-legislative scrutiny.

Article 5—Equality and Non Discrimination

25. The Government takes seriously the importance of the protection of the rights of people with disabilities. As mentioned in paragraph 16, footnote [14], the Department for Education has published detailed guidance on how the Equality Act 2010 applies to schools and the draft Code of Practice clearly cites from and cross-references to this guidance. The DFE has also updated its bullying advice to schools and this includes a section on prevention and intervention which outlines a variety of approaches and principles adopted by schools that have been successful in tackling bullying, such as openly discussing differences between people that could motivate bullying, like disability. The advice also provides schools with links to key organisations such as Mencap and the Anti-Bullying Alliance, which can provide advice and resources on disability related bullying.

26. A large proportion of children with SEN will have a disability and the provisions in Part 3 will benefit a considerable number of children and young persons with disabilities,

Article 7—Children with disabilities

27. Children and young people with SEN and their parents are at the heart of the Government's reforms in this field. The general principles[104] of the Part require the views wishes and feelings of the child or young person to be considered; it requires children and young people to participate as fully as possible; emphasises the need to provide support and assistance to enable the child or young person to be able to participate; and places the needs of the child of the child or young person at the forefront. The provisions seek to place children and young people with SEN and their parents at the heart of the new system.

28, The plan is now intended to be prepared to include outcomes[105] which are personal aspirations which might include an educational achievement, a social activity or paid employment. For the first time young people aged 16-25 in further education and training will be allowed to bring appeals directly to the First-tier Tribunal. We will pilot providing children with a direct right of appeal before deciding whether to roll this out across the country?[106]

29. The reforms will increase rights and protections for young people aged 16-25 and will enable better planned transition from school to college and from education to the world of work ending the 'cliff edge' of support when they leave schools. It will also address the problem of children and young people were being subjected to multiple and repetitive procedures, often poorly co-ordinated service provision and a lack of awareness over what is available. The local authority will be required to look at the overall local picture and will need to assess what the local education and social care needs are, and what provision is required to meet that need. The local authority will then publish a 'local offer' which details the services which are available to those that it is responsible. When reviewing its education and social care provision[107] and forming and reviewing its local offer[108] of available services, the authority must involve children and young people. This package of reforms is very much in keeping with Articles 7(2) and 7(3) of the UNCRPD.

Article 9—Accessibility

30. In keeping with Article 9(2), the Bill requires[109] schools to publish information as to; the arrangements for the admission of disabled pupils, the steps taken to prevent disabled pupils being treated less favourably than others, and the facilities provided to assist access to the school by disabled pupils.

Annex A1

Q1: We would be grateful to receive a supplementary memorandum setting out the Government's assessment of the compatability of this Part of the Bill with the UNCRPD, including any ways in which the Government considers that the Bill enhances implementation of any of the rights in that Convention.

1. Please see Annex A.

Q2: Will the Government consider including in clause 19 of the Bill, 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)?

2. The Government takes its commitments under the UNCRPD very seriously but does not believe that it is necessary to include increasing access to mainstream provision in the general principles in clause 19. As well as ensuring that the Children and Families Bill retains the statutory presumption in favour of education in a mainstream setting, I have taken forward those commitments through a wide ranging programme of practical measures to build the capacity of teachers in mainstream schools to support children with SEN. These include training resources for teachers and other staff in supporting children with a range of SEN; Masters level training for SEN coordinators; the development of SEN expertise in teaching schools to ensure that expertise is shared widely; the development of SEN expertise in clusters of further education colleges and national scholarships for staff wishing to undertake SEN professional development.

3. The Committee should also be aware that under the Equality Act 2010 schools and local authorities have duties to plan to increase the access of disabled children to school premises, the curriculum and information. Schools and local authorities must set out their proposals for increasing access in accessibility plans (schools) and accessibility strategies (local authorities).

Q3: Has the Government considered whether the Bill's retention of the current wording of the statutory presumption in favour of education in a mainstream setting is enough to be compatible with the obligation which the Government has accepted under Articles 2 and 24 UNCRDP, to continue to develop an inclusive system where children with disabilities have increasing access to mainstream schools?

4. Yes. The Government believes that the provisions in the Bill are compatible with its obligations under the UNCRPD. Current guidance on the statutory provisions on inclusion is contained in a separate publication, Inclusive Schooling. Consultation on the Special Educational Needs and Disability Green Paper revealed that the guidance was not well known. I therefore propose 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 a new SEN Code of Practice . The Code of Practice is seen as the authoritative source of advice and guidance in this important area.

Q4: What is the Government's best estimate of how many children and young people in England:

1. both have SEN and are 'disabled' within the definitions of s17(11) Children Act 1989:

2. have SEN but are not 'disabled'; and

3. are disabled but do not have SEN?

5. The Children Act 1989 says that "a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness. injury or congenital deformity or such other disability as may be prescribed". The disability data and estimates that have been supplied to the Department are based on the broader definition of disability which was contained in the Disability Discrimination Act 1995 which is largely the same as the definition now contained in the Equality Act 2010 so I hope that the Committee will understand why I will respond to this question using the Equality Act definition.

6. The Equality Act 2010 defines a person with a disability as someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. The definition of disability encompasses a broader range of impairments than might be commonly assumed, including children on the autistic spectrum, those with Tourette's syndrome and those with communication difficulties. Estimates of the proportion of children with a disability vary; some research suggests that around 6 to 7 per cent of children are disabled.[110] There is a significant overlap between disabled children and those with SEN—research suggests that around three-quarters of disabled children also have SEN.[111]

7. The definition of SEN used in the Bill is already broad, and mirrors the current definitions of SEN and a learning difficulty—as set out in sections 312 and 15ZA of the Education Act 1996—and provides a single definition which applies to children and young people - from birth to 25 years old.

8. It provides that a child or young person has "SEN" if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her. It also defines a "learning difficulty or disability" as a significantly greater difficulty in learning than the majority of others of the same age, or a disability which prevents or hinders a child or young person from making use of facilities of a kind generally provided for others the same age in schools, colleges and training providers. It is impossible to make blanket statements about complex conditions such as epilepsy, diabetes and asthma, and how they will affect children in different settings. However, where a child has a disability or health condition which is requiring special educational provision to be made, a child will be deemed as having SEN under this Bill. The families of children with such needs could legitimately seek an Education Health and Care Plan assessment. This is why an estimated 75% of disabled children will also have SEN, and so will be covered by the reforms.

Q5: Bearing in mind that the Bill does not provide any enforceable rights in respect of health and social care provision, and that Article 23 UNCRC covers health as well as education, is the Government satisfied that the Bill is compatible with the requirement in Article 23(3) UNCRC that assistance to meet the special needs of children must be "designed to ensure that the disabled child has effective access to and receives education, training and health care services"?

9. Yes. The purpose of the SEN reforms is to ensure that children with SEN get access to the integrated support that they need across education, health and care. The joint commissioning clause of the Bill will require local agencies to assess, agree and plan to deliver enough provision to meet the needs of children with SEN, and communicate that clearly through the local offer. Clause 28 of the Bill requires local authorities and health to co-operate over education, health and care . In response to concerns raised at the pre-legislative scrutiny stage, the Government has made an amendment to the Bill so that there will be a duty on Clinical Commissioning Groups (or the NHS Commissioning Board where appropriate) to arrange the health care provision set out in EHC Plans.

10. For social care, the existing provisions under section 17 of the Children Act 1989 already provide important protections for children. In introducing the new education, health and care needs assessment and Plans, we are clear that such education, health and care needs assessment will be combined with social services assessments under section 17. The Children Act makes clear that section 17 assessments may be combined with other assessments including assessments in relation to SEN. The EHC needs assessment will be a holistic assessment of the child or young person's education, health and social care needs. The purpose of that assessment is to identify not only the special education provision required by the child or young person concerned but also any health care and social care provision reasonably required by the learning difficulties and disabilities which result in him or her having SEN. I fully expect that a local authority which has identified social services to meet assessed needs for social care and specified these in the Plan will then provide these services. Furthermore in the case of services for disabled children under section 2 of the Chronically Sick and Disabled Persons Act 1970, once the local authority is satisfied that it is necessary to provide assistance under that section, the authority is under a duty to provide that assistance. As now, the route for challenge to hold services to account will be through the local authority complaints process (which ultimately includes redress through the Local Government Ombudsman) and by way of judicial review. We believe local authorities are best placed to make decisions on what services individual children need, based on local , professional judgements and having regard to the resources available to them, and that the strength of the existing legal protections is sufficient to ensure children get the integrated support they need.

Q6: How does the Government propose to make the direct right of appeal for children practically effective in the absence of legal aid to pay for representation at the hearing of any appeal or claim, and of any independent advocate to represent the interests of Looked After Children in such proceedings?

11. The Bill provisions strengthen the rights of children by the inclusion of enabling legislation which, following a pilot and enactment, would give children the right to appeal and make claims to the First Tier Tribunal (SEND). This is driven by the desire to ensure that those children whose parents cannot or will not represent them at the First Tier Tribunal or are less likely to appeal to the Tribunal—such as Looked After Children—are not at a disadvantage. It responds to UNCRC recommendations that children should have such rights.

12. The legislation would mean that, in pilot areas, children will be able to bring appeals in relation to their SEN, and to bring disability discrimination claims against schools and local authorities to the Tribunal. In addition, the pilots will test parents and their children both having the right to appeal.

13. The Bill does not propose to remove the right of parents to appeal for children of compulsory school age. We will decide whether all appeals for children of compulsory school age or below will always be brought in the name of the child following the pilots. Our intention is that advocacy and advice will be available for children (see paragraphs 19-21 below).

14. These changes would strengthen children's rights and routes to appeal in line with Article 12 of the UNCRC.

Aim of Pilots

15. The Bill would allow the pilots to look at issues such as the age from which children may appeal or make a claim, and what happens if a child and their parent appeal at the same time. We would also expect the pilots to explore what support, advice, information and advocacy a child might need, and how mediation may work.

16. The pilots will give us valuable information about whether the right to appeal is something that children would use, the best way to handle and support these appeals, and the cost implications of this change.

17. In addition pilots may explore how mediation before a child's appeal may work and the notices which may be given to, and documents served, on a child.

Extended Rights for Others

18. The Bill also proposes extending the right of appeal to the First-tier Tribunal (SEND) to young people in school and posl-16 education over compulsory school age up to age 25. Where such a young person is at school this involves a transfer of rights from the parent to the young person. Parents of children under two will also have the right of appeal to the First-tier Tribunal. Again this strengthens the rights of children and young people in line with UNCRC recommendations.

Information, Advice and Advocacy

19. The Bill takes the power to make an order under a pilot scheme including enabling children to have access to advice and information like that which is available to a parent or young person in respect of an appeal or claim to the First-tier Tribunal (Clause 53(2)(f)). It also takes a power to make provision about the provision of advocacy and other support services to children (Clause 53(2)(g)). If, subject to the pilot, the Secretary of State lays an order under Clause 54 of the Bill to implement the right of appeal and claim throughout England, then again the order may make provision about access to advocacy and the provision of information. I am proposing that children will also have access to 'case friends' who can help them through the whole process of making an appeal.

20. Our intention is to mirror the current arrangements in Wales which require local authorities to make arrangements for the provision of independent advocacy services for children considering or making appeals. This intention is that local authorities should refer any child or case friend who requests independent advocacy services to a service provider and the authorities must take such steps as are necessary to make the availability of the services known to children, parents, head teachers and other people as they consider appropriate.

21. Any provision of information, support and advocacy will be led by local authorities.

Legal Aid

22. The SEND Tribunal is an informal forum where appellants should be able to present their case without legal representation. However, I do appreciate that children, in particular, may need some extra help and support and this is why the Bill includes the provisions about advocacy referred to above. Legal aid is not available to pay for legal representation at the First-tier Tribunal (SEND) in SEN appeals but it is available to appellants to help them prepare their appeals, subject to the statutory tests of means and merits.

23. For children in the pilot areas and, subsequently, throughout England if the right to appeal is rolled out nationwide, financial eligibility for legal aid will be based on the aggregated family income. Where for instance there might be a conflict of interests between the parents and the child then we would anticipate that the child would use the advice and advocacy services referred to above. Any award of legal aid to help prepare a case is subject to a 'merits test' of whether the case has a realistic chance of succeeding.

24. A child or their supporter seeking access to legal aid for a SEN case can go online via www.gov.uklcheck-Iegal-aid to find out if they may be eligible.

Q7: What consideration has the Government given to the possibility of disagreement between parents and their children, for example where a "Gillick competent" young person wishes to be educated in a mainstream setting, but their parent wishes them to be educated in a special school?

25. Clauses 53 and 54 of the Bill would allow the Secretary of State by order to establish pilot schemes to test giving children the right to make SEN appeals and disability discrimination claims to the First-tier Tribunal (SEND) and following the pilot allow the Secretary of State, by order, to provide a right for children to appeal and make a claim throughout England. We envisage that the orders made under these provisions will allow for children and their parents to make appeals and claims concurrently. A policy statement on children's right to appeal and claim and how I see the order making powers being used was provided for the Bill Committee. Under the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 the First-tier Tribunal (Special Educational Needs and Disability) has powers to conjoin or hear together two appeals where the proceedings raise common issues. Where appeals or claims are about different matters then they can be taken separately.

26. We do not envisage that the scenario envisaged in question 7 is likely to arise since there should never be a case before the Tribunal where the parent is appealing for a special school while at the same time their child is appealing for a mainstream school. The local authority would have named either a particular mainstream or special school, or mainstream or special as the type of school, where the child should be educated. This would be after consultation with the parent. If, for example, the local authority named a mainstream school then the child would not need to appeal (unless they did not agree with the particular mainstream school named and wanted another). It would be for the parent to appeal for a special school to be named or vice versa if the local authority named a special school. The Tribunal would then have to take a decision on the merits of the appeal.

27. Young people—that is those over compulsory school age, are being given the right to appeal and claim instead of parents and so the situation you refer to would not arise where young people are appealing or making claims.

Annex B

Response to joint Committee on Human Rights Questions on Part 1, 2, 5, and 6 of the Children and Families Bill

Part 5: Office of the Children's Commissioner (OCC)

Q8: The Committee would be grateful for your response to its recommendation in its pre-legislative scrutiny Report that children's rights could be defined in the Bill to include the UNCRC purely for the purposes of defining the Commissioner's primary function, which would not amount to incorporating them into UK law. If you do not agree, please explain why.

28. In my response to the Committee's pre-legislative scrutiny (PLS) Report—which was published when the Bill was introduced to Parliament—I explained that the Government believed that requiring the Children's Commissioner to 'have regard to' the UNCRC when determining what constitutes children's rights, was a more appropriate approach.

29. I agree with the Committee that defining children's rights in the way it suggests, specifically in relation to the Commissioner's primary function, would not amount to its incorporation into domestic law. However, other considerations are important. Firstly, the UNCRC contains a broad mix of rights and aspirations (rather than a more classic formulation of rights as is contained, for example, in the European Convention on Human Rights). Secondly, some UNCRC Articles do not relate directly 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 (for example, Article 11 on illicit transfer and non-return).

30. I therefore believe it would be inappropriate to imply that the UNCRC afforded children a specifically defined set of rights, or to place an obligation on ace to 'construct' a right, where in fact this would not reflect the overall purpose and effect of a particular provision in the UNCRC. Accordingly, I remain of the view that placing a requirement on the UNCRC to have regard to the UNCRC provides the best and most practical formulation.

Q9: Please explain what consideration the Government has given to the Scottish model for the Children's Commissioner, in which the Commissioner is an adjunct of the Scottish Parliament rather than an NDPB, and explain the Government's reasons why such a model would not be appropriate for the English Commissioner.

31. The Dunford review looked into the pros and cons of alternative sponsorship models, including the one adopted for the Scottish Children's Commissioner, but found little to suggest that they would be preferable to the NOPB model or that the Children's Commissioner's independence had been compromised because of it.

32. Cabinet Office guidance says that the NDPB model is appropriate where:

a function needs to be, and be seen to be, delivered with absolute political impartiality (such as certain regulatory or funding functions);

a function needs to be delivered independently of Ministers to establish facts and/or figures with integrity and credibility.

33. Many other public bodies are required to be independent from Government, but operate effectively under the NDPB model, for example, the Equality and Human Rights Commission, the Office for Budget Responsibility, the Care Quality Commission and the Low Pay Commission. The independence of these organisations is secured through their founding legislation and, as the Committee is aware, the Bill includes changes to the existing legislation that would reinforce the OCC's independence from Government and strengthen its link to Parliament.

34. In contrast, very few public bodies are established as Parliamentary Bodies and those that do typically have a regulatory role in relation to Government—which does not apply in the case of the OCC. I would argue that the Commissioner also benefits from a sponsorship link with the Department for Education, for example, in facilitating liaison with other parts of Government, which may be lost or reduced under the Parliamentary model.

Q10: The Committee would be grateful for the Government's response to its point about 18-24 year olds at paragraphs 75-76 of its Report.

35. In its Report the Committee asked whether the Commissioner's title should include a reference to young people, in particular in light of the provisions that allow the Commissioner to support certain young people (essentially care leavers and young people with learning difficulties) beyond age 18.

36. I do understand that this is a slight anomaly. However, these two groups are likely to represent only a small part of the Commissioner's role. also recognise that some under-18s are likely to associate more closely with the Commissioner if the term "young people" is reflected in the title. However, as I explained in my previous response, from the point of view of challenging policy or practice, 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. For this and the other reasons set out in my response to the Committee's report, I believe that the arguments for keeping the present title outweigh those for changing it. I would add that the title which is used in 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. However, my own view is that he/she would be unlikely to find another title which is as succinct or as clear.

Q11 : Subject to the usual caveats about parliamentary business managers having the ultimate decision, does the Government agree in principle that an annual debate in Parliament, in Government time, on the state of children's rights in the UK would be desirable?

37. I have mixed views about the need for an annual Parliamentary debate on the state of children's rights. I can certainly see advantages in Parliamentarians becoming more aware of the issues and being able to question how well the UNCRC is being implemented. The forthcoming periodic review will provide a good opportunity to do this and I am aware that the Joint Committee on Human Rights played a key role in raising Parliamentary awareness of children's rights issues after the last periodic review. It would be unusual to make this an annual event given that since 2010, the only fixed debates have been in relation to the Budget and the Queen's speech. Consequently, while I strongly endorse the principle behind your suggestion, I am not able to make that commitment on behalf of Government.

Responses to questions asked in 26 March 2013 letter

Part 1: Adoption and Looked After Children

Q1 : What consideration has the Government given to the United Nations Guidelines on the Alternative Care of Children when drawing up Part 1 of the Bill?

Q2: Is the trigger for the duty in clause 1 of the Bill now so early in the process as to be incompatible with both the child's and their 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?

38. These questions are answered together, below.

39. Your letter indicated that concerns have been expressed about the implications of the new duty in clause 1 for the child's rig ht to respect for family life and the compatibility of the clause with Article 8 of the European Convention on Human Rights (ECHR). As you say, a Fostering for Adoption placement may lead to adoption, but this does not mean that the child will be adopted without a full exploration of all other options.

40. I would like to assure the Committee that the policy intention is not to give priority to Fostering for Adoption over other forms of permanence, but 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.

41. The introduction of a new duty in section 22C of the Children Act 1989 does not discharge local authorities from complying with other duties in that section and with the overarching requirement to place children, who cannot live with their birth parents, in the most appropriate placement available. In order to do that, local authorities must explore all the options available and place the child in the placement that best safeguards the child's welfare. Fostering for Adoption may be one of a range of options being considered.

42. I would like to stress that the proposed duty only requires local authorities to consider a Fostering for Adoption placement, not to place the child in that placement.

43. Under section 22C of the Children Act 1989, the first decision which local authorities have to make is whether the child can live with his or her birth parents or one of the other people mentioned in section 22C(3). This could be someone who is not a parent but who has parental responsibility for the child or someone in favour of whom a residence order was granted. If that is not reasonably practicable and consistent with the child's welfare, they must place the child in the most appropriate placement available.

44. There has been some confusion about the implications for placements with family and friends as the new duty disapplies the duty to give preference to these placements when Fostering for Adoption is being considered. Where adoption is not the plan, the Children Act 1989 assumes that if the child cannot be with parents, then the next best thing would be a placement with the wider birth family (or a connected person). But 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 wider birth family. In this scenario, therefore, it would not be logical to require the local authority to give preference to kinship placements, and the local authority will be required to consider a Fostering for Adoption placement.

45. The duty to place the child in the most suitable placement is an ongoing one, which means that if a relative, who may be able to care for the child, comes forward later in the process, the local authority should assess them to determine whether they would provide the most appropriate placement for the child. And if the local authority thinks that a placement with relatives is the most appropriate placement available, then they are required, by section 22C(7) to place the child in that placement.

46. In response to your point about Fostering for Adoption leading to adoption without prior judicial determination, I should stress that a fostering for adoption placement is a fostering placement which may or may not lead to adoption. It is important to point out that we are not making any changes to the law in relation to the making of placement orders or adoption orders and these cases will still have to go through the courts.

47. So it will still be the case, as now, 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 same rights to be heard when the court is considering an application for a care order or for a placement order and to have free legal representation throughout those proceedings.

48. Before adoption is decided upon, social workers are required to do all they can to rehabilitate the child with the birth parents, as well as giving preference to placing the child with relatives and friends if they cannot go home. This remains the case in respect of Fostering for Adoption.

49. I consider the framework for decision making set out in section 22C compatible with the guidelines set out in the United Nations Guidelines on the Alternative Care of Children. Section 22C stresses the importance of ensuring that children continue to live with their birth family, and attempting rehabilitation.

Q3: Please explain the basis on which the Government has discounted the findings by Ofsted 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?

50. We have carefully considered Ofsted's report Right on time: exploring delays in adoption. However, Ofsted surveyed just nine local authorities and those local authorities had so few black[112] children adopted that we do not think it is possible to draw meaningful conclusions about the extent of delay for this group, or the factors which contributed to that delay.

51 . We do 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, even though black children who are adopted are younger, on average, when first becoming looked after by local authorities. There is also unequivocal evidence that shows that delays can damage children's development, contribute to further emotional harm, and possibly reduce their chances of finding a permanent family or increase the chance of adoption breakdown.

Q4: Will it 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? If not, how is the repeal compatible with the requirement in Article 20(3) UNCRC?

52. Currently, section 1 (5) of the Adoption and Children Act 2002 places adoption agencies (but not the courts) under a duty to give due consideration to a child's religious persuasion, racial origins and cultural and linguistic background when placing them for adoption with prospective adopters. The effect of clause 2 of the Children and Families Bill is to remove this wording and so put a child's ethnicity, religious, cultural and linguistic background on the same footing as the child's other needs, background and characteristics.

53. When considering placing a child for adoption with particular prospective adopters, adoption agencies and courts will be required by section 1 (2) of the Adoption and Children Act 2002 to make a child 's welfare throughout his or her life their paramount consideration. Section 1 (4) of the Act requires the court or adoption agency to have regard to the child's background and any of their characteristic which the court or agency considers relevant. This will mean that courts and adoption agencies would consider a child's ethnicity, religion or language but weight it appropriately alongside other considerations including the child's views. An adoption agency would still place a child with prospective adopters taking into account ethnicity, religious, cultural and linguistic background, but not override the considerations in subsections (2), the other considerations in subsection (4), and the requirement in subsection (3) to bear in mind that any delay is likely to prejudice the child's welfare.

54. Ministers have indicated that statutory adoption guidance around matching and placing children for adoption will be amended following implementation of the repeal of subsection (5) to make clear the appropriate consideration of a child 's and prospective adopter's ethnicity, religious, cultural and linguistic background.

Part 2: Family Justice

Q5: What evidence does the Government rely on 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?

55. Evidence shows that the vast majority (approximately four out of five) of applications to court by non-resident parents result in an order or agreement for face to face contact with the child concerned. There is no evidence that the courts are biased towards either parent. Nevertheless, there is a public perception that this is the case, and therefore a risk that children are losing contact with pa rents because of a misconception about the way in which courts operate.

56. One of the principal aims of this legislative amendment is to address that perception and help restore confidence in the family courts. The change will also reinforce wider messages about the importance of both parents in a child's life. In too many cases, a child loses contact with one parent following family separation. The Government wants to bring about a cultural shift in attitudes towards parenting and underline the benefits to the child of a relationship with both parents, where that is safe and appropriate. The presumption is one element of the changes which the Government is implementing in order to achieve that.

Q6: What provision in the Children Act 1989 or 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?

57. Section 1(1) of the Children Act 1989 states that "the child's welfare shall be the court's paramount consideration". This section is not amended by the provisions in the Bill, and therefore still applies. The presumption of parental involvement which would be introduced by clause 11 of the Bill only applies to parents who can be involved in a way which does not put the child at risk of harm; even in those cases, it would be rebutted—in line with the paramountcy principle—if the involvement of the parent would not further the welfare of the child concerned.

Q7: To remove any scope for uncertainty about the relationship between the paramountcy principle in s1(1 ) of the Children Act 1989 and the proposed presumption in new subsection (2A) that parental involvement will further the child's welfare, will the Government consider amending the Bill to make the proposed new presumption expressly subject to the paramountcy principle?

58. The Government does not consider that such an amendment is necessary, for the reasons set out under 06 above. It is clear that when the court determines any question with respect to the upbringing of a child, the child's welfare shall be the court 's paramount consideration. This remains the case.

59. The presumption simply requires the court to presume that the child's welfare would be furthered by the involvement of each parent in the child's life. However, the presumption is rebuttable; if there is evidence before the court that the involvement of a parent would not further the welfare of the child concerned , then the presumption would not stand.

60. There is nothing in the parental involvement presumption that is inconsistent with the principle that the child's welfare shall be the court's paramount consideration.

Part 6: Statutory Rights to Leave and Pay

Q8: Do the provisions in the Bill for shared parental leave and pay go as far in implementing the obligation in Article 18(1) UNCRC as the proposal contained in the Government's Modern Workplaces consultation?

61. The shared parental leave policy package proposed under the Modern Workplaces consultation was:

Maternity leave and pay/allowance to be reduced to 18 weeks

Paternity leave and pay to remain at 2 weeks

4 weeks of paid shared parental leave reserved for each the mother and the father

30 weeks of shared parental leave to be used by either parent, of which 17 weeks would be paid.

62. The new policy package was outlined in the Government Response to the Modern Workplaces consultation, published on 13 November 2013:

Maternity entitlements to remain at 52 weeks of leave and 39 weeks of pay/allowance. This will give mothers the opportunity to decide for themselves the amount of maternity leave that is right for them

Paternity leave and pay to remain at 2 weeks

Up to 50 weeks of shared parental leave and 37 weeks of statutory shared parental pay for parents to share in the way that suits them best.

63. We want to give families the maximum amount of choice to decide for themselves how to share the leave and pay entitlement in the early stages of a child 's life. However, we also recognise that birth affects different women in different ways, and we need to ensure that all women are given sufficient time to fully recover.

64. We believe that the new policy achieves these aims. Mothers are able to choose for themselves how long their maternity leave and pay will be and a period equal to the remaining leave and pay can be shared between the mother and her partner, or the baby's father, as shared parental leave and statutory shared parental pay.

65. The original proposals also contained an additional 4 weeks of reserved shared parental leave for mothers and fathers. International evidence suggests that reserving a period of leave exclusively for fathers on a "use-it-or-Iose-it" basis encourages paternal involvement. Under the new system, families have flexibility to decide for themselves how to share the leave entitlement as suits the individual family circumstances. It would operate against this flexibility to reserve a proportion of shared parental leave for each parent.

66. Under the new policy, working parents will be able to decide how to share caring responsibility in the early stages of their child's life, and will be entitled to share time off to achieve this. Under the original policy proposal, fathers would have been entitled to a maximum amount of 36 weeks of leave if they took the full entitlement to paternity and shared parental leave. The new policy may enable fathers to take up to 52 weeks of leave, if this is what the family chooses. This policy recognises the common responsibilities of both parents for the upbringing and development of the child, whilst protecting the need for women to have sufficient time to recover from childbirth.

67. We considered extending paternity leave and pay from 2 to 6 weeks to provide fathers with this additional "use-it-or-Iose-it" leave. However, we decided that the time was not right to extend this now, given the weak state of the economy. We will be keeping the take-up of shared parental leave by fathers under review. If it is low, we will consider extending paternity leave and pay at a later date in order to encourage fathers to take more time off. For this reason, we are taking powers in the Bill to ensure that paternity leave and pay can be extended at a later date using secondary legislation.

15 April 2013

6. Letter from the Chair, to Emily Holzhausen, Director of Policy and Public Affairs, Carers UK

Thank you for your letter of 18 March drawing my Committee's attention to the potential gap in protection of the human rights of parent carers of disabled children as a result of the limited scope of the provisions in the draft Carer and Support Bill.

The day after you sent your letter the Joint Committee on the Draft Care and Support Bill published its Report on the Draft Bill: see Report on the Draft Care and Support Bill, HL Paper 143/HC 822 (19 March 2013). Chapter 7 of the Joint Committee's Report includes a section at paras 245-246 on "Young carers and parent carers". Although the substance of the Joint Committee's recommendations in that part of its Report concern young carers, rather than parent carers, I would be grateful to receive any further evidence you may wish to give my Committee in light of that Report.

I would also be grateful to receive the views of Carers UK as to whether the gap in protection for parent carers of disabled children that you identify would be better addressed in the Care and Support Bill when it is introduced or in the Children and Families Bill which is currently before Parliament.

The Committee is currently scrutinising the Children and Families Bill and if the view of Carers UK is that the issue is best addressed in this Bill the Committee would be interested to hear how you suggest the Bill could be amended to fill the gap in protection.

27 March 2013







77   Section 1(3) CA 1989. Back

78   See eg Vermillo v France, 20 February 1991, para 38 Back

79   https://www.education.gov.uk/publications/standard/publicationdetail/page1/CM%207981 Back

80   Report on the Education White Paper, 2006-07, paras xx. Back

81   See e.g. Bury Metropolitan Borough Council v SU [2010] UKUT 406 (AAC), [2011] ELR 14. Back

82   Review of the Office of the Children's Commissioner (England) , Cm 7981 (December 2010), p. 61. Back

83   Pursuant to Article 1. Back

84   Clause 20(1) Back

85   Clause 21(1)-this definition applies to those aged two and over and is in the education setting. Those under two are provided for under Clause 21(2) Back

86   Porter, J., Daniels, H., Georgeson, J, Hacker, J, Gallop, V, Feiler, A, Tarleton, B, & Watson, D (2008) Disability data collection for children's services. DCSF Research Report DCSFRR062. University of Bath, University of Bristol. Para 5.3.4 http://education.gov.uk/publications/eOrderingDownload/DCSF-RR062-report.pdf Back

87   The study used the Disability Discrimination Act 1995 definition of disability which was broadly retained by the Equality Act 2010 Back

88   The Government appreciates that the definition of disability in the Equality Act 2010 is not exactly the same as the description of disability found in Article 1 of the UNCRPD Back

89   From the date which they cease to be of compulsory school age-we have referred to age 16 for ease of reference. Back

90   Principally s. 17 Children Act 1989 for Children, but for young persons this is contained in a host of provisions which will be codified in the Care and Support Bill. Back

91   Principally the National Health Service Act 2006 as amended and the Health and Social Care Act 2012 Back

92   http://media.education.gov.uk/assets/files/pdf/sen%20code%20of%20practice%20indicative%20draft%20f0r%20committee.pdf  Back

93   Clause 66 Back

94   Sections 5.3, 5.5, and 5.6 of the draft Code of Practice Back

95   See sections 1.5 and 4.6 of the draft Code of Practice Back

96   Such as the guidance for schools provided by DfE on their duties under the Equality Act 2010 Back

97   Section 116 and 116B of the Local Government Public Involvement in Health Act 2007 Back

98   Clause 30(6) Back

99   http://media.education.gov.uk/assets/files/pdf/clause%2030%20draft%20regulations%20sen%20local%20offer.pdf Back

100   Section 4.2 but particularly page 20 of the Code of Practice Back

101   Clause 26 Back

102   Clause 27 Back

103   Clause 30 Back

104   Clause 19 Back

105   Clause 37(2)(b) Back

106   Clauses 53 and 54 Back

107   Clause 27(3)(a) Back

108   Clause 30(8)(d) Back

109   Clause 64 Back

110   Read, J (2007) Can we count them? Disabled Children and their households: Full research report. ECRC End of Award Report. RES-000-22-1725. ESRC Back

111   Porter, J, Daniels, H, Georgeson, J, Hacker, J, Gallop, V, Feiler, A, Tarleton, B, & Watson, D (2008) Disability data collection for children's services. DCSF Research Report DCSFRR062. University of Bath, University of Bristol. (The disability definition used for this publication was that in the Disability Discrimination Act 1995-It is broadly the same as the Equality Act 2010 definition). http://education.gov.uk/publications/eOrderingDownload/DCSF-RR062-report.pdf  Back

112   We define "black children" as Black Caribbean, Black African and any other Black background [source: Department for Education SSDA903 Return Guidance Notes Children Looked After by Local Authorities in England section 2.1.4] Back


 
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