The UK's compliance with the UN Convention on the Rights of the Child

The UK's compliance with the UN Convention on the Rights of the Child - Human Rights Joint Committee Contents

8 CHILDREN'S RIGHTS: ONGOING POLICY CHALLENGES

LEGAL AID AND ACCESS TO JUSTICE

103. The plan to undertake a wholesale review of the legal aid system was included in the Coalition Agreement of May 2010. During this Parliament we first considered legal aid reform as part of our legislative scrutiny of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill.[103] We then considered it in two consecutive inquiries-the first on the implications for access to justice of the Government's proposals to reform of legal aid, and the second on the impact on children of the residence test for legal aid.

104. The LASPO Act came into force in April 2012. Its aim was to cut £350 million from the £2.1 billion legal aid budget for England and Wales.[104] It led to a reduction in funding in the following areas: asylum support; debt (except when home is threatened); employment; housing (except when home is threatened); immigration; private family law (except in instances of domestic violence and abuse); and most welfare cases. It also abolished the Legal Services Commission, with responsibility for administering legal aid moving to the Lord Chancellor. Our Report on the Bill as it passed through both Houses argued that the Government had paid insufficient attention to the potential impact of the reforms on a number of vulnerable groups, including children. No specific ECHR memorandum had accompanied the LASPO Bill, although human rights issues were touched on in the Explanatory Notes.

105. The LASPO Act appears to have had a noticeable impact on children. The response to a Freedom of Information request from CRAE to the Ministry of Justice showed that the number of children granted legal aid for education has fallen by 84 percent, and the number granted legal aid where their parents have divorced or separated has fallen by 69 per cent. In her report on the legal aid changes, the Children's Commissioner noted figures which indicated a significant rise in litigants in person in private family law cases following LASPO.[105] An NAO report on the impact of LASPO on civil legal aid changes found a 22 per cent rise in the number of private family law cases involving children where neither party was represented and a corresponding fall in those where both were represented.[106]In our Report on the Bill we had expressed concern that the Government had failed to take into account the increased costs from lengthier proceedings resulting from an increase in litigants in person.[107] The NAO report provides some evidence of this. On the basis that cases involving litigants in person take an average of 50% longer, it estimates an additional £3 million cost in family court cases had resulted from the LASPO Act.

106. The Government responded to the criticism which stemmed from some of these statistics with increased support to facilitate litigants in person in order to reduce costs: it announced £2 million over two years to support litigants in person in family and civil courts. It also launched a helpline for parents in disputes.[108] The NAO concluded that overall the changes to legal aid for civil cases had the potential to save £300 million per annum but that there were costs, both legal and others that had not been taken into account.[109]

107. Applications to the scheme to cover exceptional cases where an absence of funding would constitute a clear breach of human rights have been considerably lower than planned. Where up to 7000 applications were anticipated, only 1520 were received and, of those, only 70 (five per cent) were funded. Legal Aid providers said that the application process created strong disincentives to apply.[110] While it is unclear whether this has been the result of non-essential cases dropping or whether significant cases are omitted by the changes, the then Children's Commissioner for England claimed it was the latter.[111]

108. With regard to children in particular, JustRights in its submission to us points out that the numbers of children and young people receiving Special Welfare legal aid and Immigration and Asylum legal aid have fallen by nearly two-thirds to below even the post-LASPO levels anticipated by the Government. It also reports that only 3 children were granted legal aid under the Exceptional Case Funding scheme in the first twelve months for which figures are available.[112]

109. Although we touch upon matters relating to devolution at the end of this Report, it is worth noting here that the submission we received from Clan Childlaw Ltd., an outreach centre delivering free, holistic legal advice and representation to children, and young people in Edinburgh, the Lothians and Glasgow, states that children in Scotland face particular barriers in accessing justice because of the legal aid rules that apply there. The requirement to take into account the resources of parents (or there liable to support children) in assessing the child's financial eligibility for legal aid means that many children "find it impossible to access confidential and independent legal advice and representation".[113]

THE RESIDENCE TEST

110. Shortly after the LASPO Act was passed, the Government introduced the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014. This further restricted access to legal aid on the basis of a residence test. To be eligible, applicants would have to demonstrate a 'strong connection' to the UK. Specifically, applicants would need:

1. to be lawfully resident in the UK at the time of their application for legal aid; and

2. to have resided lawfully in the UK for 12 months continuously prior to that.[114]

111. The justification was nominally financial, although the Lord Chancellor admitted that no specific figure for savings had been targeted as it was unclear what the expenditure was on those categories of applicants who would now be excluded. Instead, the Lord Chancellor argued that it was a matter of principle: that only those with a strong connection to the UK should be able to access its legal aid system. There were a number of exemptions such as military service overseas but there was no specific exemption for children. The Children's Society argued that the residence test would leave significant numbers of children ineligible for legal aid, including unaccompanied migrant children, refused asylum seekers unable to return to their country of origin, age-disputed children, children abandoned by parents or carers, undocumented migrant children, and children legally resident for less than 12 months.[115] The Government suggested that there was provision for exceptional cases that might cover these categories.

112. This instrument, laid on 31 March 2014, was scrutinised by other Parliamentary committees. The House of Lords Secondary Legislation Scrutiny Committee reported on this instrument; and the Joint Committee on Statutory Instruments concluded:

The Committee draws the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act.[116]

That Committee argued that the residence test, in omitting a class of people rather than varying services, should have been introduced via primary legislation and was consequently beyond the powers Lord Chancellor has under the Act.

113. A number of witnesses to our inquiry into access to justice argued that the residence test contravened the Government's obligations under the UNCRC. Specifically it was argued that the residence test breached the following UNCRC provisions

· Article 2: obliges state parties to ensure rights of any child within its jurisdiction without discrimination. Amongst others, this explicitly includes national and ethnic origin.

· Article 3: Requires decisions to be taken with the interests of the child as primary consideration

· Article 12: a child capable of forming a view has the right to express it. This means an opportunity to be heard in any judicial or administrative process.[117]

In our Report we concluded that "[w]e cannot see any way in which [the residence test] can be compatible with the UK's obligations" under the UNCRC. It did not seem possible to us for the Government to realise its obligations under Articles 3 and 12, without discrimination (Article 2).[118]

114. The legality of the means by which the residence test was introduced was also tested in the Courts.[119] In 15 July 1014, the High Court struck down the residence test as both illegal and discriminatory. It judged that the Lord Chancellor had acted ultra vires in introducing the residence test through secondary legislation and that the test was unjustifiably discriminatory in excluding access to legal aid on grounds that did not pertain to need.[120] The Lord Chancellor indicated his intention to press on with the introduction of the residence test. However, this affirmative instrument, which would have given effect to this test, was withdrawn by the Government and there is no sign that it will be re-laid before the end of this Parliament.

115. Legal aid, and the proposal to introduce the residence test in particular, was cited by all the NGO witnesses from whom we heard, and from the outgoing Children's Commissioner, as being one of the areas of policy development most flagrantly in contravention of the UNCRC.[121] One of the groups most affected was trafficked children. Natalie Williams of the Children's Society suggested that one of the main reasons was that the Home Office, a department that does not have a good record for promoting the best interests of children in this policy area, was sole decision-maker in making claims for trafficked children.[122]

116. Natalie Williams also added that the residence test would affect all children who are bringing judicial reviews against a local authority, which is sometimes the only way to challenge local authorities in order for them to adhere to their duties towards children. It would also affect particularly those children whose age is disputed and those who do not have the right documents.[123]

117. In this context, Kate Aubrey-Johnson of Just for Kids Law cited the case of teenagers who discover, when invited to go on an overseas school trip, for example, that they do not have regularised immigration status—which means that they cannot access work and welfare benefits and are excluded from further education and from accessing education to do A-levels and apprenticeships. She added that as a more general result of the legal aid reforms, small local organisations that provide free legal advice are now shutting down, and there is much less oversight of the quality and accessibility of local authorities' services to children.[124]

118. THE GOVERNMENT'S REFORMS TO LEGAL AID HAVE BEEN A SIGNIFICANT BLACK MARK ON ITS HUMAN RIGHTS RECORD DURING THE SECOND HALF OF THIS PARLIAMENT. THE TWO REPORTS WE AGREED ON THE SUBJECT, AT THE END OF 2013 AND EARLY IN 2014, SET OUT OUR CONCERNS AND WHAT WE FEARED MIGHT BE THE OUTCOME OF SOME OF THOSE REFORMS IN TERMS OF REDUCING ACCESS TO JUSTICE FOR CHILDREN. WE ACKNOWLEDGE THE FEW DISCRETE AREAS IN WHICH THE GOVERNMENT HELPFULLY ACCEPTED OUR CONCERNS AND REVIEWED ELEMENTS OF ITS REFORMS. HOWEVER, THE EVIDENCE WE HEARD FROM THE OUTGOING CHILDREN'S COMMISSIONER FOR ENGLAND AND FROM ALL THE NGOS WE TOOK ORAL EVIDENCE FROM PROVIDES FIRM GROUNDS FOR A NEW GOVERNMENT OF WHATEVER MAKE-UP TO LOOK AGAIN AT THESE REFORMS AND TO UNDO SOME OF THE HARM THEY HAVE CAUSED TO CHILDREN.

OTHER JUSTICE ISSUES

CHILDREN IN CUSTODY

119. The number of children formally involved in the youth justice system in England and Wales has reduced quite markedly over recent years. As the Howard League set out in its evidence to us, the number of first time entrants to the youth justice system in 2013/14 had fallen by 75% compared to 10 years ago, and indeed has fallen 20% compared to 2012/13, although this was against the background of the number of children in prison having increased by a startling 795% between 1989 and 2009. As the Howard League again pointed out in its submission to us, the UK "still has the highest level of child incarceration in Western Europe".[125] Perhaps as an unsurprising consequence of the number of children in custody having reduced—as different ways have been found for dealing with those in particular who have committed less serious offences—the average length of time spent in prison by each child has increased.

120. As part of its inquiry into children's rights, our predecessor Committee raised a number of concerns relating to the rights of children in custody. Amongst the issues it raised was the issue of the legitimate use of force on children in custody. Our predecessor Committee reiterated concerns from an earlier inquiry undertaken by its predecessor that "[t]he level of physical assault and the degree of physical restraint experienced by children in detention in our view still represent unacceptable contraventions of UNCRC Articles 3, 6, 19 and 37" and that recorded levels of use did not provide "reassurance that the Prison Service is implementing fully its responsibilities to respect the rights of children in custody".[126]

121. The Criminal Justice and Courts Act 2014 contains measures for the establishment of secure colleges as a form of youth detention. In considering the provisions of this Act relating to secure colleges before it became law, we raised the issue of the use of force on children in custody. The Criminal Justice and Courts Bill made provision for secure college officers to restrain by force "if authorised to do so by secure college rules", to use reasonable force where necessary to ensure good order and discipline on the part of persons detained in a secure college. We were concerned that ensuring "good order and discipline" was far too broad and vague a justification and that force should only be used to prevent harm to the child or to others and only the minimum force necessary should be used.[127]

122. The Government accepted the principle of the concerns (adding the prevention of escape to the justification for the use of force) but did not agree to amend the Bill at the time. CRAE also expressed its concern about the overly permissive nature of the Bill's provisions, adding that Ministry of Justice had paid out £96,000 in compensation to children who were unlawfully restrained in children's prisons in the past. Unfortunately, the Government did not accept our view, shared by CRAE and the Equality and Human Rights Commission, that the authorisation of use of force in the Bill would constitute a breach of UNCRC articles 3 and 8.[128]

123. Education for children in custody was one key justification for the introduction of secure colleges. The Deputy Prime Minister announced that the introduction of secure colleges was part of a process of "putting education at the heart of detention" which would reduce reoffending and see the current 12 hours a week that children in custody spend in education double. Our predecessor Committee noted the lack of special educational needs (SEN) provision for children in custody.[129] We note that the reforms to Special Educational Needs provision in the Children and Families Act 2014 do not apply to children in custody.

124. Our NGO witnesses reiterated to us their opposition to the secure college provisions, stressing that, since 2012, when a new system of restraint was introduced for use in custody, "there is now a move backwards in relation to the particular point around authorising force to maintain good order and discipline".[130]

125. Access to justice for children in prisons is also a significant concern, particularly in the light of the reforms to legal aid discussed above. In December 2013 we reported our concerns about the difficulties that children in prison might face in the absence of legal aid for the problems they encounter:

We do not agree that advocacy services and internal prison complaints systems will be able to deal with these cases effectively. This could leave young people vulnerable and deny them their rights. The issues concerning young people may involve matters of housing law, social care law and public law of such complexity that they require access to legal advice and assistance in order to investigate and formulate their case. The availability of such funding in appropriate cases would be in accordance with the UNCRC.[131]

Evidence mentioned in the submission to us made by the Howard League for Penal Reform indicates that, in 2014—following implementation of the reforms—calls to its helpline by or on behalf of children in prison increased by one third.[132]

126. The Howard League also raised concerns in its evidence surrounding the deaths of children in custody-three children have taken their own lives while in prison since 2010-and the use on children of what is effectively solitary confinement. It also notes that children appear to be more likely to be deprived of access to activities than adults as a result of what are termed "restrictive regimes" in the children's secure estate.[133] We also received written submissions raising concerns about the lack of anonymity for children in legal proceedings. This was touched on also in oral evidence during the course of the inquiry.[134]

127. WE REMAIN VERY CONCERNED ABOUT THE USE OF FORCE ON CHILDREN IN CUSTODY AND BELIEVE THAT THE RECENT PROVISIONS WITH REGARD TO SECURE COLLEGES IN THE CRIMINAL JUSTICE AND COURTS ACT CANNOT BE CONSIDERED COMPATIBLE WITH THE UN CONVENTION ON THE RIGHTS OF THE CHILD. THE PROGRESS THAT HAS BEEN MADE IN THIS AREA OVER THE LAST FEW YEARS IS IN DANGER OF BEING LOST. THE GOVERNMENT MUST CONSIDER NOT ONLY THE CIRCUMSTANCES IN WHICH FORCE CAN BE USED BUT REVISIT THE METHODS OF RESTRAINT WHICH CAN BE EMPLOYED.

128. WE WELCOME THE FACT THAT THE GOVERNMENT HAS COMMITTED ITSELF TO DEALING WITH THE ISSUE OF CHILDREN WITH MENTAL HEALTH PROBLEMS IN CUSTODY. WE ARE ALSO CONCERNED THE SPECIAL EDUCATIONAL NEEDS REFORMS PUT IN PLACE BY THE CHILDREN AND FAMILIES ACT DO NOT EXTEND TO CHILDREN IN CUSTODY DESPITE EDUCATION BEING SEEN AS KEY ELEMENT OF THE SECURE COLLEGE SYSTEM. WE CALL FOR THIS TO BE ADDRESSED AS A MATTER OF URGENCY BY THE GOVERNMENT. IN ADDITION, A NUMBER OF OTHER JUSTICE ISSUES RELATING TO CHILDREN HAVE BEEN RAISED WITH US, SUCH AS THE LACK OF ANONYMITY FOR CHILDREN IN LEGAL PROCEEDINGS, WHICH WE THINK OUR SUCCESSOR COMMITTEE MAY WANT TO EXAMINE IN GREATER DETAIL.

CRIMINAL AGE FOR PROSECUTION

129. Amongst the other children's rights issues we have raised in our Reports over the Parliament, we expressed concerns with regard to the Anti-social Behaviour, Crime and Policing Bill—now Act—about whether the best interests of the child were taken into account when imposing Injunctions to Prevent Nuisance and Annoyance (IPNAs) upon children, and also over the use of detention as a sanction for breaches of an injunction for children aged 14 and over.[135]

130. Also, with regard to the Serious Crime Bill and the issue of the Government not extending the protection of the child cruelty offence to those aged 16 and 17, in our Report on that Bill we expressed concern:

This appears out of line with the UNCRC definition of a child and domestic child protection guidance, which both define a child as anyone under 18 […]

We are not persuaded by the Government's justification for continuing to exclude 16 and 17 year olds from the protection of the child cruelty offence. The fact that a criminal offence protects those under the age of 18 does not mean that the offence cannot be committed by a person who is also under 18. In our view, it would be possible in principle to extend the scope of protection provided by the offence to those under 18 whilst preserving the possibility that those over 16 can commit the offence.[136]

Natalie Williams of the Children's Society, in her evidence to us, focussed on these definitions of neglect and child cruelty, stressing that, while neglect did not cover 16 and 17 year olds, children in that age group were actually more likely to be recorded as children in need because of neglect She also added that there were still other serious outstanding issues surrounding how children were treated as adults in the legal system while still under the age of 18.[137]

131. On a more general point, our witnesses noted that the number of children in contact with the criminal justice system had dropped massively since the last UN process in 2008, but that this had been accompanied by a very significant increase in the number of children placed into the child protection system.[138] While the former phenomenon was a positive, the child protection system obviously posed its own challenges to children's rights. Moreover, Paola Uccellari of CRAE suggested that the experience of those children entering custody was arguably worse than before, with the rate of the use of tasers on children and the strip-searching of children both seemingly on the increase.[139]

132. WE REITERATE THE POINT THAT WE MADE IN OUR REPORT ON THE SERIOUS CRIME BILL THAT WE HAVE COME ACROSS A "SERIES OF ISSUES WHICH HAVE ARISEN IN DIFFERENT CONTEXTS RAISING THE WIDER QUESTION OF THE LACK OF A CONSISTENT LEGAL DEFINITION OF THE AGE OF A CHILD IN THE UK". WE AGAIN CALL ON THE GOVERNMENT TO REVIEW THIS WHOLE AREA OF LAW. WE UNDERSTAND THAT THIS WILL NECESSARILY BE A COMPLEX AND OCCASIONALLY CONTROVERSIAL QUESTION, BUT CHILDREN AND YOUNG PEOPLE DESERVE GREATER CLARITY FROM THE LAW THAN IT CURRENTLY GIVES. THE START OF A NEW PARLIAMENT WOULD BE AN OPPORTUNE TIME TO TACKLE A COMPLEX ISSUE OF THIS KIND.

SPECIAL EDUCATIONAL NEEDS

133. Article 23 of the UNCRC states that "[c]hildren who have any kind of disability have the right to special care and support, as well as all the rights of the Convention, so that they can live full and independent lives".[140] In addition, the Convention on the Rights of Persons with Disabilities, which the UK Government ratified in 2009, amongst other things commits signatory countries to ensure that children with Special Educational Needs (SEN) are entitled to the 'full enjoyment of their human rights and fundamental freedoms on an equal basis with other children' (Article 2).[141] The UK Government's Interpretative Declaration to the Convention on the Rights of Persons with Disabilities (2009) stated its commitment to "continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff, which have the capacity to meet the needs of disabled children".[142]

134. Following several critical reviews initially launched under the then Labour government, the Coalition Government launched a formal consultation on initial proposals in a green paper followed by a series of Pathfinder trials, before finally announcing a major reform of SEN provision in the Queen's Speech of May 2012.

135. In addition to the general principles contained in the Equality Act 2010, the statutory framework for SEN was overhauled with the introduction of the Children and Families Act 2014. We broadly welcomed the SEN provisions during our scrutiny of the then Children's and Families Bill as "positive human rights enhancing" measures.[143]

136. The Act's commitment to educating SEN children in mainstream schools is in line with Article 24 of the UN Disabilities Convention. Section 33 of the Act maintains this except where the commitment would interfere with the "provision of efficient education of others" and where there are "no reasonable steps" that can be taken to avoid this. We were concerned that this might provide a convenient mechanism for schools to evade their SEN responsibilities under the Act. In spite of the Minister's assurance that the final decision on "reasonable steps" lay with local authorities and not schools, the end result would ultimately be strongly dependent on the school's opinion. We therefore recommended that a stronger statement of the principle of inclusion be added.[144]

137. Oral evidence to us both from NGOs and from the outgoing Children's Commissioner raised the concerns noted by us in our Report that Section 33 of the Education Act allows "schools to say that to educate a child with disabilities or special educational needs would undermine the effective education of other children", and that this poses a barrier to a really inclusive educational system. Paola Uccellari of CRAE said:

The huge disproportionality and exclusion of children with special educational needs illustrates that clearly something is going wrong and that support and adaptation are not happening in practice, which is why these children end up excluded.[145]

138. We have also dealt with the issue of SEN appeals during this Parliament. In response to the UNCRC 2008 Concluding Observation that SEN children had an insufficient voice in the appeals process, the Children and Families Bill allowed them to appeal directly to the First Tier Tribunal about the education component of their Education Health Care plan, a development we welcomed.[146]

139. WE ACKNOWLEDGE THE CONSIDERABLE IMPROVEMENTS THAT THE GOVERNMENT HAS MADE IN THE AREA OF SPECIAL EDUCATIONAL NEEDS, PARTICULARLY IN THE CHILDREN AND FAMILIES ACT 2014. HOWEVER, WE DO REMAIN CONCERNED AT THE POTENTIAL EFFECT OF SECTION 33 OF THE EDUCATION ACT WHICH COULD BE USED SIGNIFICANTLY TO DILUTE THE BENEFIT OF THE GOVERNMENT'S REFORMS IN THIS AREA. THE HIGH PROPORTION OF CHILDREN EXCLUDED FROM SCHOOLS WHO HAVE SPECIAL EDUCATIONAL NEEDS POINTS TO THE FACT THAT MORE NEEDS TO BE DONE. THE GOVERNMENT MUST MONITOR THE IMPACT OF SECTION 33 ON THE FAIR AND EQUITABLE PROVISION OF EDUCATION IN SCHOOLS AND TAKE STEPS TO REMEDY ANY HARMFUL IMPACT OF THIS SECTION OF THE ACT.

MIGRANT CHILDREN AND CHILD TRAFFICKING

140. From the autumn of 2012 through to the summer of 2013, we conducted a substantial inquiry into the treatment of unaccompanied migrant children. This area of policy engages a number of UNCRC Articles. Nonetheless, one of the key concerns which emerged from the inquiry was the tendency for immigration considerations to override the commitments to put the interests of the child first (in keeping with UNCRC Article 3, as well as both s11 of the Children Act 2004 and s55 of the Borders, Citizenship and Immigration Act 2009). The UN High Commissioner for Refugees, the Refugee Children's Consortium, the Coram Children's Legal Centre, and the Children's Commissioner, all of whom gave evidence to us during that inquiry, were amongst those who felt that, to a greater or lesser extent, the best interests of the child were subordinated to a wider concern with restricting immigration. This was apparent in a variety of areas, including the age assessments where the committee was told of a "culture of disbelief".[147]

141. During our inquiry we also found a tendency to grant unaccompanied children lower forms of leave to remain rather than full asylum, meaning they could be removed at the age of seventeen and half. This served administrative convenience rather than the best interests of children. The Government said in its submission to the UN Committee on the Rights of the Child that, in case of disputed age, applicants were treated as children whilst their actual age was established.[148]

142. In our 2013 Report on the human rights of unaccompanied migrant children and young people in the UK, we made a considerable number of recommendations concerning:

· the determination of the age of unaccompanied migrant children

· delays to decisions on children's futures, leaving children uncertain about what their futures will hold;

· the lack of a clear cross-Government strategy to safeguard and support unaccompanied migrant children;,

· a more prominent role for the Department for Education in overseeing the welfare of unaccompanied migrant children;

· the development of a training programme to enable frontline staff in asylum and immigration better to understand the needs of children,

· more effective support for trafficked children and great awareness of child tracking in the safeguarding workforce, the police and the Crown Prosecution Service;

· a trial of a system of guardianship for unaccompanied migrant or trafficked children; and

· an assessment of the quality and availability of legal services for unaccompanied migrant children in England and Wales.[149]

The Government did not accept most of these recommendations. We also raised concerns about the impact on children of provisions in the Immigration Bill—namely, access to residential tenancies and health services; and the impact on children of decisions relating to the deprivation of UK citizenship.[150] Witnesses before us during this inquiry also made mention of the detrimental impact of the Immigration Act upon migrant children's access to free health-care (affecting up to an estimated 120,000 migrant children in the UK).[151]

143. Aside from issues relating to migrant and trafficked children relating to legal aid which we have touched on in the section on legal aid and the residence test above,[152] witnesses before us also expressed particular concerns about the continuing failure of the Government to provide guardians with legal powers for all migrant children (the Modern Slavery Bill will provide independent advocates just for child victims of trafficking).[153]

144. Some areas of progress in rights for children within the immigration system over the length of this Parliament were acknowledged by witnesses.[154] The United Nations High Commission for Refugees (UNHCR) in its written submission to us pointed to the following as welcome initiatives undertaken by the UK Government:

· the introduction of a duty to ensure that functions undertaken by the Secretary of State for the Home Department in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom as reflected in section 55 of the Borders, Citizenship and Immigration Act 2009 and its accompanying guidance;

· the issuance of statutory guidance for local authorities regarding the particular care of unaccompanied and trafficked children;

· efforts made to improve the asylum process for unaccompanied asylum seeking children, including the introduction in 2007 of a distinct and separate asylum process for children, a screening unit for children, specific guidance for case owners handling asylum applications from unaccompanied children and training for all UK Visas and Immigration (UKVI) staff:

· the establishment of a 'Children's Champion' in UKVI; and

· a commitment to ending the detention of children for immigration purposes.[155]

145. The outgoing Children's Commissioner for England noted the Government's commitment to end the detention of children for immigration purposes in her oral evidence to us.[156]Dragan Nastic of Unicef UK and Natalie Williams of the Children's Society pointed out that here were however children of migrant families in detention.[157]The written evidence for the Children's Society also notes this commitment as a positive step by Government although it also points out that the Home Office does not "publish full statistics on where children are being held under immigration powers".[158] Home Office statistics do however show an overall significant decline in the numbers of children entering immigration detention since the beginning of 2010 although the exact quantum of that decline is not easy to establish.[159]

146. However, the UNHCR also pointed out the areas of concern. Its written submission states that "evidence suggests that, in practice, children's best interests are not always being considered or given appropriate weight". It points to some ambiguity in UKVI operational guidance over the primacy of the child's best interests as opposed to the need to control immigration for example.[160] This point was echoed by Dr Atkinson in evidence to us who said in particular as children become older "their cases are judged entirely on the basis of immigration law, not the best interests of the child".[161]

147. The UNHCR's audit findings also have revealed that the guidance available to decision-makers in the UK in "not sufficient" and that greater support is required for UKVI staff. Moreover, training given to asylum decision-makers on the principle of best interests is "very brief and […] provided only to those decision-makers who handle claims from unaccompanied children (failing to appreciate the duty to consider the best interests of children who are with their families".[162]

148. Indeed other witnesses also alluded to the continuing failure of the UK Government to provide a best-interests determination, providing a durable solution for migrant children (rather than their current temporary status).[163] While she noted some improvements to the situation for migrant and trafficked children, the outgoing Children's Commissioner in her evidence to us highlighted the case of a child born in the UK to a mother whose asylum request has been rejected being deported to a country he has never been to and whose language he cannot speak.[164]

149. As we have noted above in more general terms in relation to children's rights across Government, the UNHCR also points out in its submission the need for close cooperation and communication across Government in this particular policy area:

In the UK, as in other States, the issues facing unaccompanied and separated children who are seeking international protection fall under the jurisdiction of several authorities; different government agencies work together to discharge their respective statutory duties to "safeguard and promote the welfare of children" in carrying out their work. […] In practice, however, there remains scope for improved collaboration and coordination across UK government and between agencies to ensure that children's best interests are given primary consideration as they move through procedures that identify their international protection needs and durable solutions for their situation of separation and displacement.[165]

150. The UNHCR has called on the Government to:

create new, and strengthen existing, mechanisms to ensure that assessments and determinations of an individual child's best interests:

· are undertaken objectively, independently of the asylum process, and in coordination with other relevant government bodies responsible for child protection; and

· respect confidentiality and data protection arrangements allow for the collection of an increased amount of information relevant and specific to each individual child.

151. In addition, the UNHCR has told us that, in the cases that it had reviewed, no dependent children had been interviewed at any stage of the asylum process, which seemed to take no account of the Government's own guidance to listen to and respect the views of the children in question. It had concluded that "the principle of respect for the views of the child" does not appear to be being "met in the context of the assessment of family asylum claims".[166]

152. WHILE WE WELCOME THE REDUCTION IN THE NUMBER OF MIGRANT CHILDREN HELD IN IMMIGRATION DETENTION, WE ARE DISAPPOINTED THAT SO LITTLE OTHER PROGRESS APPEARS TO HAVE BEEN MADE BY THE GOVERNMENT SINCE WE REPORTED ON THE HUMAN RIGHTS OF UNACCOMPANIED MIGRANT CHILDREN AND YOUNG PEOPLE IN THE UK BACK IN JUNE 2013. ALL THE EVIDENCE WE HAVE RECEIVED SUGGESTS THAT THE TREATMENT OF CHILD MIGRANTS IS AN AREA WHERE, DESPITE SOME IMPROVEMENTS, IF ANYTHING THE SITUATION HAS GROWN WORSE OVERALL DURING THIS PARLIAMENT. THE HOME OFFICE SEEMS STILL TO PRIORITISE THE NEED TO CONTROL IMMIGRATION OVER THE BEST INTERESTS OF THE CHILD. THIS IS UNSATISFACTORY. THE GOVERNMENT MUST ENSURE THAT THE BEST INTERESTS OF THE CHILD ARE PARAMOUNT IN IMMIGRATION MATTERS AND WORK WITH OTHER DEPARTMENTS TO ENSURE THAT THE NEEDS SUCH CHILDREN ARE MET AND THEIR RIGHTS SAFEGUARDED. THE UNHCR EVIDENCE THAT GUIDANCE FOR HOME OFFICE AND UKVI STAFF IS NOT GOOD ENOUGH AND TRAINING PATCHY MUST BE ACTED UPON.

OTHER ISSUES

153. We received submissions during this short inquiry that also touched upon other issues connected to children's rights.

REASONABLE PUNISHMENT

154. Children Are Unbeatable! (CAU!) submitted a memorandum to us concerning the defence of "reasonable punishment" under section 58 of the Children Act 2004 (or "justifiable assault" under Scottish law) and the promotion of positive non-violent forms of parenting. It points to the failure of the current and previous Governments to implement the recommendations of the UN Committee on the Rights of the Child to "prohibit as a matter of priority all corporal punishment in the family, including the repeal of all legal defences".[167]

155. Our predecessor Committee in the 2001-2005 Parliament concluded by a majority vote that the defence of "reasonable punishment" for common assault on children, whilst probably compatible with the ECHR, was incompatible with children's rights under various other human rights treaties and recommended that it be replaced by a provision drafted so as to remove that defence and give children the same protection from battery as adults.[168] Paola Uccellari of CRAE also raised this issue briefly in oral evidence. She told us:

We know there is a clear link between smacking children and a fall-off in other forms of child abuse. In other jurisdictions where they have banned smacking it has changed attitudes and cultures around violence towards children, and you see a reduction in more serious abuse against children.[169]

156. WE HOPE THAT OUR SUCCESSOR COMMITTEE WILL HAVE AN OPPORTUNITY TO SCRUTINISE THIS ISSUE, WHICH WE KNOW IS A CONTROVERSIAL ONE IN THE UK, IN THE LIGHT OF THE UN COMMITTEE'S CONCLUDING OBSERVATIONS WHICH WILL BE DELIVERED IN 2016.

CHILDREN IN ARMED CONFLICT

157. We also received a submission from Child Soldiers International concerning the failure of the UK Government to implement the recommendations of the UN Committee on the Rights of the Child regarding the UK's compliance with the Optional Protocol to the UNCRC on the involvement of children in armed conflict (OPAC). Child Soldiers International is particularly concerned about the legally-binding obligations and terms of employment which accompany the recruitment of under-18s to the armed forces in the UK. It also notes that some soldiers under the age of 18 have also served overseas in conflict zones in contravention of OPAC.[170]

158. In addition, Child Soldiers International expressed concerns in its submission about detention of soldiers under the age of 18 in a military prison, namely the Military Corrective Training Centre (MCTC) in Colchester. Under MCTC jurisdiction, 17 year old children can be placed with adults in contravention of Article 37(c) of the UNCRC and General Comment No. 10 (2007) of that Committee. It also raises issues concerning the terms of service for under-18s in the UK armed forces, and their rights of discharge[171]-all issues we had raised with the Government in our legislative scrutiny Report on the Armed Forces Bill in May 2011.[172]

Again, WE HOPE THAT OUR SUCCESSOR COMMITTEE WILL HAVE AN OPPORTUNITY TO SCRUTINISE THE ISSUE OF CHILDREN SERVING IN THE ARMED FORCES IN THE LIGHT OF THE UN COMMITTEE'S CONCLUDING OBSERVATIONS WHICH WILL BE DELIVERED IN 2016.