Conclusions and recommendations
Children and Social Work Bill
Information provided by the Government
1.We thank the Department for Education for providing a full ECHR Memorandum and a full UNCRC impact assessment, which have both helped us in our human rights scrutiny of the Bill. We remind Departments that we expect such memoranda to be published at the same time as the Bill is introduced, to enable us and other Committees to begin our scrutiny of the Bill as early as possible and to report in time to inform debates on the Bill as it proceeds through both Houses. (Paragraph 8)
2.We remind the Government of the importance of replying promptly to our inquiries about Bills to enable us to perform our human rights scrutiny role in time to inform parliamentary debate. (Paragraph 11)
Human rights enhancing aspects of the Bill
3.We welcome those aspects of the Bill which enhance protection for children’s rights and in particular those which give effect to recommendations recently made by the UN Committee on the Rights of the Child in its Concluding Observations on the UK. In our Report, however, we focus on areas where the Bill could be improved from the point of view of children’s rights. (Paragraph 17)
Giving better effect to children’s rights in England
4.We welcome the Department’s acknowledgment that more needs to be done to ensure more systematic consideration of the impact of laws and policies on children’s rights. We have considered the arguments and the evidence for and against introducing a statutory duty on public authorities in England requiring them to have due regard to the rights of children in the UNCRC in the exercise of their functions relating to children, equivalent to the duties already introduced in Wales and Scotland. Having taken into account the practical implications for local authorities, in our view the case is made out. We recommend that Parliament takes the opportunity presented by this Bill to enhance the protection of children’s rights in England by introducing such a duty. The following amendment would give effect to this recommendation within the scope of the current Bill: We recommend that Parliament takes the opportunity presented by this Bill to enhance the protection of children’s rights in England by introducing such a duty The following amendment would give effect to this recommendation within the scope of the current Bill
In the Children and Social Work Bill, Part 1, Chapter 2 (Other provision relating to children in England), before clause 10 insert:
New Clause
Duty to have due regard to United Nations Convention on the Rights of the Child
(1)A public authority must, in the exercise of its functions relating to safeguarding and the welfare of children, have due regard to the UN Convention on the Rights of the Child.
(2)For the purposes of this section,
(a) ‘public authority’ has the same meaning as in s. 6 of the Human Rights Act 1998, and
(b) ‘United Nations Convention on the Rights of the Child’ has the same meaning as in s. 2A(2) of the Children Act 2004. (Paragraph 30)
5.We welcome the introduction of corporate parenting principles as having the potential to enhance the protection of the rights of looked after children, including their right to have their best interests treated as a primary consideration and their right to health and well-being. (Paragraph 32)
6.The new statutory duty on public authorities in England that we recommend above, to have due regard to the rights of children in the UNCRC in the exercise of functions relating to children, would apply to local authorities when acting as corporate parents, and there would therefore be no need to insert any express reference to the UNCRC in the list of corporate parenting principles. However, Parliament may wish to consider such an amendment in the event that the more general duty does not find favour. (Paragraph 35)
Support for care leavers
7.We welcome this provision as a human rights enhancing measure. The UN Committee on the Rights of the Child recently expressed concern about children leaving foster care or residential care not receiving proper support and counselling, including on their future plans, and recommended that the UK “provide sufficient support for care leavers, including for accommodation, employment or further education.” The provision in clause 3 of the Bill goes some way to meeting this recommendation. (Paragraph 37)
A right to request or a duty to offer?
8.In our view the right to support would have been more practically effective if the Bill had imposed a duty on local authorities to offer advice and support directly to care leavers, rather than merely to take steps to inform them of their right to make a request for such support. This would still allow for a tailored approach, as not all care leavers will take up the offer, and local authorities will not therefore be required to provide the same service to all care leavers. We welcome the Government’s amendments to clause 3 of the Bill, tabled for consideration at Report stage, which remove all references to the further advice and support being available “on request” and impose instead a duty on the local authority to offer such advice and support. These amendments meet our concern that the additional support might not be effective in practice because care leavers may not be aware of their entitlement. (Paragraph 41)
9.We welcome the Government’s recognition of the additional burden that will be placed on local authorities and its clear undertaking that “DfE will provide additional funding for this.” However, the Government’s response also states that “if introduced incrementally, this would reduce required funding in the first years of implementation”, without explaining what it means by introducing the change incrementally. Having decided to make such further advice and support available, it would not be fair to make it available to some care leavers but not to others. We recommend that the Government clarify what it has in mind when it refers to the possibility of introducing the change “incrementally.” (Paragraph 43)
10.We welcome the Government’s recognition of the need to do more to facilitate contact between care leavers and their former carers, and its acceptance of the recommendation that care leavers should be enabled to stay close to the residential home that they have left. The Staying Put initiative for children in foster care required statutory provision to be made in the Children and Families Act 2014. We recommend that the Government bring forward an amendment to the Bill to pave the way to the implementation of the recommendation it has accepted in Sir Martin Narey’s report, that would enable residential care leavers to remain close and in touch with their former care home. (Paragraph 49)
Information sharing
11.The information sharing provisions in the Bill appear to us to be very broad in scope and to provide no protection against the possible unnecessary disclosure of sensitive personal information about children, including information which might be subject to legal and medical privilege. The Information Commissioner’s Office is the expert on the safeguards that should accompany information sharing powers and we recommend that the Government now formally consult the Information Commissioner on the adequacy of the safeguards in the Bill and report back to Parliament on the Information Commissioner’s views. (Paragraph 55)
Exemptions from and modifications of children’s social care legislation
12.We welcome the Government’s recognition of the need for strong safeguards to ensure that this piloting power does not risk a reduction in the legal protection of children’s fundamental rights. We welcome the Government amendment which will give effect to the recommendation of the Delegated Powers and Regulatory Reform Committee that the Secretary of State be under a duty to lay an explanatory statement alongside any regulations, explaining, amongst other things, how the local authority will ensure that the rights of affected children continue to be protected. We draw to the attention of both Houses the need for Parliament to remain vigilant and to scrutinise carefully any exercise of the new piloting power to ensure that the protection of children’s fundamental rights is not diminished. (Paragraph 65)
Social workers
13.We welcome the Government’s undertaking to carefully consider the ECHR implications of its proposals, but this falls short of the undertaking we sought because the Explanatory Memorandum accompanying regulations only states the conclusion of the Government’s assessment of their compatibility with the ECHR: it does not set out the detailed explanation of the basis on which the Government has reached its conclusion that the regulations are compatible. (Paragraph 69)
14.We recommend that the Government publish a full ECHR memorandum alongside the detailed regulations when they are laid so that they can be fully scrutinised for human rights compatibility. (Paragraph 70)
Unaccompanied refugee children
15.We agree with our predecessor Committee about the need for a clear Government strategy in relation to unaccompanied migrant children. In our view, the recent concerns and recommendations of the UN Committee on the Rights of the Child demonstrate the urgency of such a strategy. We support the amendment tabled by Lord Dubs and the Lord Bishop of Durham and we recommend that the Government go further by bringing forward clear proposals for drawing up a wider strategy in relation to all unaccompanied migrant children, as recommended by our predecessor Committee in 2013. (Paragraph 75)
Policing and Crime Bill
Detention in a place of safety
16.We believe that additional safeguards are required to ensure that a person detained in a place of safety under s 135 or 136 of the Mental Health Act 1983 should have access to an ‘appropriate adult’, particularly in circumstances where they are detained in their own home. In those circumstances, we propose an amendment to the Bill to make such provision, the text of which is contained below
After Clause 81, insert the following new Clause:
Access to an appropriate adult
(1) A person detained in a place of safety under section 135 or 136 of the Mental Health Act 1983 shall have the right to an appropriate adult
(2) For the purposes of subsection 1 “right to” means:
(i) all detainees must be informed that they may at any time consult and communicate privately with an appropriate adult, whether in person, in writing or by telephone, and that such advice is available.
(3) For the purposes of subsection 1, “appropriate adult” means:
(i) a relative, guardian or other person responsible for the detained person’s care;
(ii) someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not a police officer or employed by the police; or
(iii) some other responsible adult aged 18 or over who is not a police officer or employed by the police. (Paragraph 84)
Requirement to produce nationality document
17.Where a UK citizen is asked to provide a nationality document, and is not in possession of such a document, it should instead be possible for him or her to provide documentation sufficient that such a document would be issued by the passport authority. This safeguard should be reflected on the face of the Bill rather than as operational guidance. Accordingly, we propose an amendment in the following terms
Requirement to produce nationality document
Clause 140 (7)
At page 154, line 17, after the words “nationality or citizenship” add the words “, or where a person is not in possession of such a document, such alternative documents sufficient that such a document would normally be issued by the relevant authorities”. (Paragraph 88)
Cultural Property (Armed Conflicts) Bill
18.We draw the attention of both Houses to the concerns we raised about Clauses 4 and 28 of the Cultural Property (Armed Conflicts) Bill. We regret the Government’s reluctance to consider amendments to the Bill on these specific points notwithstanding the criticism that they attracted from a number of quarters during Report Stage in the House of Lords. (Paragraph 92)
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13 October 2016