/Doing%20Right%20By%20Children%20June%202011

Doing right by children Making a reality of children’s rights in the family and juvenile justice

The Children’s Rights Alliance for England (CRAE) protects the human rights of children by lobbying government and others who hold power, by bringing or supporting test cases and by using national and international human rights mechanisms. We provide free legal information and advice, raise awareness of children’s human rights, and undertake research about children’s access to their rights. We mobilise others, including children and young people, to take action to promote and protect children’s human rights.

Each year we publish a review of the state of children’s rights in England.

Several CRAE staff worked on this project: Carolyne Willow, Catherine Hodder, Krishna Maroo, Carla Garnelas, Geoff Monaghan and Sue Marris.

Carolyne Willow wrote this publication.

ISBN 978-1-898961-28-4 Children’s Rights Alliance for England 94 White Lion Street London N1 9PF T: 020 7278 8222 E: info@crae.org.uk W: www.crae.org.uk June 2011

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Doing right by children

I believe we are at a significant point in relation to children’s rights and the value we place on children and young people in our society.

John Dunford, Review of the Office of Children’s Commissioner, 20101

Everyone has been a child in their life; they should know how important it is to have rights. They can use rights as a shield to know what is good and what is wrong.

Ethan Marriott, member of expert advisory group, 2011

Acknowledgements Many people and organisations helped in the development of this publication.

We are very grateful to everyone who submitted evidence showing why a rights-based approach to law, policy and practice affecting children is so fundamental.

Thank you to Children North East, the Howard League for Penal Reform, Investing in Children and the National Youth Agency for allowing us to visit and learn more about all the things you do to make a reality of children’s rights, and the very positive impact this has on children and young people’s lives.

It has been a great pleasure working with Denise Rose from Mouth That Roars, who has made a short film to accompany this publication.

Finally, CRAE wishes to take this opportunity to thank the Esmée Fairbairn Foundation for financially supporting this work and to John Mulligan in particular for being so encouraging from the start.

Children’s Rights Alliance for England June 2011

We were extremely fortunate to have had an expert advisory group comprising many of the country’s most committed children’s rights advocates. Thank you for so generously giving your time and sharing your expertise.

We are indebted to the children and young people who took part in our focus groups, and to their workers who brought us together. These conversations powerfully confirmed that children’s rights are vital.

Our two roundtables, one on children’s rights in the family and the other on children’s rights and juvenile justice, proved invaluable in developing the ideas and proposals in this publication.

Several people gave extensive advice on various drafts of this publication, though none are responsible for errors and omissions: Dr. Tim Bateman, Jenny Clifton, Professor Jane Fortin, Richard Garside, Professor Barry Goldson, Kiran Iqbal, Ethan Marriott, Geoff Monaghan, Peter Newell, Mary Riddell and Bryony Shuter.

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Doing right by children

Contents

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1. Executive summary

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2. Terminology

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3. Introduction

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4. What are children’s rights?

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5. Why do children’s rights matter?

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6. Children’s rights and the family

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7. Children’s rights and juvenile justice

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8. Project methodology

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9. Expert advisory group

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10. Summary of the Convention on

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the Rights of the Child 11. References

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1.

EXECUTIVE SUMMARY

When the UK ratified the Convention on the Rights of the Child in December 1991, it took on legal obligations under international law to make a reality of these rights for all children.

• Reformulates children’s needs as entitlements

We now have a coalition Government comprising the political party that ratified the Convention almost 20 years ago and another that, during the 2010 general election, made a historic pledge to make the treaty part of UK law. Against a shameful backdrop of continuing rights violations, and extensive recommendations from international and domestic human rights bodies, there is vast scope for transforming the lives of children through the full realisation of their rights. This publication aims to set out the parameters of what can be done and achieved in adopting a rights-based approach to the family and to juvenile justice.

• Promotes wider respect for human rights.

Doing right by children does not aim to provide blueprints for law, policy and practice in either of these contexts. Its aim is to examine the key implications and consequences – for law, policy and practice – of adopting a rights-based approach to the family and to juvenile justice. Importantly, it sets out to communicate the values and beliefs underpinning a children’s rights approach: there is much more to knowing the Convention than being aware it has 54 Articles.

Sections 3, 4 and 5 explore the meaning of children’s rights and why they matter, proposing six pre-eminent and inter-related strengths. A children’s rights approach: • Elevates the importance of childhood • Affirms children’s dignity and integrity

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• Recognises and supports children’s agency, their choices and solutions • Demands accountability and transparency Making sure children are visible and accorded proper respect and consideration as individuals within their families is one of the central messages of Section 6.

Children’s rights is a powerful antidote to the Victorian “seen and not heard” adage, both in how families function behind closed doors and in public policy debates and decision-making. Making a reality of children’s rights in the family demands that children are always seen and respected as human beings with wishes, feelings and perspectives of their own. From this standpoint, a law which allows parents and others acting in loco parentis to hit children is intolerable. The conception of children being the property of their parents lies at the root of this law and this is incompatible with today’s acceptance that children are holders of rights, including the fundamental right to respect for their mental and physical integrity. Setting out parental responsibilities in law and reviewing inconsistencies in the child’s legal status are two other natural consequences of adopting a rights-based approach, as is giving much more prominence to the importance of positively supporting parent-child relationships, including when children or parents are held in custody.

A children’s rights approach to the family puts an end to the patriarchal idea that ‘An Englishman’s home is his castle’: the Convention places wide-ranging

obligations on the state to support parents and family life, through a combination of universal and targeted measures. Doing right by children sets out five fundamental principles underpinning the state’s relationship with the family: 1 Parents and family life are fundamental to children’s well-being and positive development 2 Parents play a unique and vital role in promoting and protecting the rights of their children, consistent with the child’s evolving capacities 3 The needs, rights and views of children must always be considered separately in family policy and interventions 4 In administrative and judicial proceedings, where a child’s rights are in conflict with their parents’, the child’s rights must always prevail 5 A child deprived of family life is especially vulnerable and is entitled to special care and protection.

Nobody seems content with current responses to children who infringe the law. Human rights assessments over the past 20 years have been scathing and would provide ample motivation for an administration keen to make a reality of children’s rights for some of this country’s most disadvantaged children. A children’s rights approach instantly makes these children “insiders” and part of the mainstream; in doing so, it draws a close to punitive treatment and deliberate cruelty. It injects clarity and intelligence into debates and decisions that are too often distorted by emotions of panic, fear, aggression and retribution. It is a remarkable irony that, in this country, we expect primary school children to take full responsibility

Doing right by children

2. for their actions, to fully understand society’s moral and legal codes and to resist urges and forces contributing to them infringing the law, when we have had decades of well-educated fully grown up Ministers and senior officials presiding over penal policies they surely must know are not fit for children. The injustice is stark and shameful.

8. Detaining children in child-centred secure facilities can only be justified by immediate and serious risk to public safety: the use of penal custody is absolutely rejected.

International human rights law and norms point to at least 10 governing requirements for juvenile justice law, policy and practice:

10. All those working with children are properly selected, trained, supervised and regulated for work with children.

1. The response to children’s behaviour which infringes the law differs substantially, and must be distinct, from the response to adult offending.

In preparing this publication, CRAE wants to show the benefits and the imperatives for making the promotion and protection of children’s rights central to everything that is done and decided. The Children’s Minister Sarah Teather has said that children’s rights is no longer an embarrassing or guilty secret within government. The Convention is increasingly being used to frame and assess law, policy and practice, inside and outside of government. But children’s rights is not yet part of the mainstream and this is what a generation of children could reasonably have expected after the UK ratified the treaty in 1991.

2. The state’s response to children’s behaviour which infringes the law is part of a wider commitment to children’s well-being and positive development.

3. The response to children’s behaviour which infringes the law is always proportionate to their needs and circumstances.

4. The best interests, human dignity and positive development of children guide all interventions and procedures: retribution and the deliberate infliction of suffering is absolutely rejected.

5. Children’s active role in society is consistently encouraged; and children’s views are heard and taken into account in all decision-making processes.

6. The unique role of parents and the importance of family life are consistently valued.

7. Children are only ever brought into contact with the criminal justice system as a last resort and according to due process.

9. There are child-specific safeguards for children in secure facilities.

The approach to the twentieth anniversary of ratification later this year is a perfect time for Ministers, policy makers and all those working with and for children to show much more clearly and consistently that we understand children’s rights, believe in children’s rights and will do everything in our power to make them a reality for all children. This publication is a contribution to that process.

TERMINOLOGY

This publication uses the definition of a child in the Convention on the Rights of the Child – a person aged 17 or under.

We use “child” throughout the publication, including when referring to teenagers. We recognise that young people often find this term patronising. However, we wanted to consistently make the point that people aged 17 and below are protected by the Convention on the Rights of the Child. We believe this approach is particularly important when considering children’s contact with the criminal justice system, where the term “youth” predominates (as well as many less respectful terms). This obscures the fact that so often policy makers and professionals are, indeed, talking about children.

In a similar vein, we use the term “juvenile justice” to refer to children’s contact with the criminal justice system and laws, policy and practice affecting this. Before the Crime and Disorder Act 1998, introduced by an incoming Labour administration determined to be tough on “young offenders”, juvenile justice was the normal terminology in our country. It remains the standard international language.

All references to the Convention mean the Convention on the Rights of the Child.

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EXECUTIVE SUMMARY 7 7

3.

INTRODUCTION At CRAE’s annual children’s rights conference in November 2010, Children’s Minister Sarah Teather said children’s rights would no longer be an embarrassing or guilty secret within government.2 In December 2010, just two weeks later, she announced the coalition Government would now be giving due consideration to the Convention on the Rights of the Child when making new laws and policy.3

In February 2011, the Department for Education issued a memorandum to Parliament’s Joint Committee on Human Rights assessing the compatibility of the Education Bill with both the European Convention on Human Rights4 and the Convention on the Rights of the Child. This was the first time a Parliamentary Bill had been subject to children’s rights scrutiny within government and the reasons for doing so were clearly set out: The Government is a proud signatory of the UNCRC and is committed to its implementation ... it is important that the best interests of children continue to be at the heart of policy making and that changes be assessed with that in mind.5 The December 2010 Ministerial commitment to integrate children’s rights into the policy making process is unparalleled in Westminster (devolution has enabled considerably more progress in other parts of the UK, particularly in Wales, and children’s rights has been a central part of the UK’s foreign policy since at least 19986).

Anyone doubting that this is progress should read the Department for Education and Employment’s response to the 1995-96 Gulbenkian Foundation Inquiry into how well Government worked for children.

The Convention had been ‘brought to the attention’ of civil servants who ‘bear it in mind in their work’, the completed questionnaire said flatly.7 Around the same time, the Conservative Government had, in 1996, issued guidance to local authorities promoting the Convention as ‘a foundation of values, principles and objectives which can be shared by all

agencies involved in children’s services’.8 This was a welcome move though there was no indication, at that time, that Whitehall itself would be systematically using the Convention. The status of the treaty as a legal instrument was left unsaid, giving the impression that its implementation was merely desirable rather than required by international law.

Labour Party’s first official discussion document on incorporating the European Convention on Human Rights into UK law and the passing of the Human Rights Act. 1974 marked the first appointment of a Minister for Disabled People, yet it took another 30 years before buildings (including the Houses of Parliament) had to be made accessible for disabled people.

Near the end of its 13 years in charge of co-ordinating the implementation of children’s rights, the former Labour Government said it wanted to make the Convention ‘a reality in children’s lives’9 but did not promise to make it a central feature of policy making – something, let’s be clear, that is required of all United Nations member states that ratify the treaty.

And progress is not always linear. Despite the coalition Government’s strong promise to “rights-proof” its actions in relation to children’s law and policy, a landmark new duty on local authorities to have regard to the Convention on the Rights of the Child when preparing Children and Young People’s Plans was abolished in October 2010 after being in force for only six months. The duty was contained within Children’s Trust Board regulations deemed too prescriptive by incoming Education Secretary Michael Gove. The only other reference to the Convention in domestic law is in Part I of the Children Act 2004, dealing with the Children’s Commissioner, and even this was inserted by former Labour Ministers only after strong protests from parliamentarians and children’s rights advocates.

The Labour Party’s 2010 general election manifesto made no explicit reference to children’s rights, coming less than two years after the UN Committee on the Rights of the Child’s comprehensive examination of the UK’s implementation of the Convention.

Neither was there a mention of children’s rights in the Conservatives’ manifesto, even though it was this party that ratified the treaty in 1991 and had so powerfully championed children’s rights during parliamentary debates in 2004 on the creation of a Children’s Commissioner for England. It was the Liberal Democrats which gave the strongest of all manifesto commitments to children’s rights, in its promise to incorporate the Convention on the Rights of the Child into UK law.

Political support for rights can take a long time to come to fruition: more than 20 years passed between the

Children’s own testimony and very wide expert opinion shows that, despite cross-party support for the Convention on the Rights of the Child, and the fact that it is legally binding under international law, a generation of UK children has had to endure considerable deficiencies in rights protection.

December 2011 marks the twentieth anniversary of the UK’s ratification and CRAE hopes this publication will reawaken the high hopes had by many within and

3. INTRODUCTION 9

In a way, it shows that adults appreciate us, because if we get given rights, it shows that they’re taking an interest in making us a part of their life, and their lives are based on us.

Child in CRAE focus group on children’s rights and the family, 2011

outside of government in the lead up to ratification.

We also want it to demystify popular misconceptions and, most importantly, demonstrate the positive changes that are possible in children’s lives, and wider society, if a children’s rights approach is asserted and respected systematically.

Drawing on existing law, policy and practice, Doing right by children examines the strengths of applying a children’s rights approach to two areas of children’s lives – the family and contact with the criminal justice system.

The first theme – the family – concerns the lives and well-being of all of England’s 11 million children, including those who are temporarily or permanently separated from their family of origin. At a time of growing political and policy interest in “the family”, a reassertion of children’s rights is essential. There are also many fundamental rights that adults take for granted in our families that are not yet enjoyed by children. This publication highlights these and provides a positive way forward.

Relatively speaking, the second theme – juvenile justice – focuses on a very small number of children.

Less than 110,000 children had significant contact with youth offending teams in 2009/10 – about 1% of the child population.10 A very much smaller but still significant proportion of the child population experiences prison or other forms of custody: in 2009/10 over 5,000 children were sentenced to custody.11 This is important for context though it must be noted that the UK has the unenviable title of ‘biggest child incarcerator’ in Europe.12 Juvenile justice

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was selected as a theme for this report because of the serious harm being done to children in conflict with the law in our country. And in recognition that children in sustained contact with the criminal justice system often have the greatest (unmet) needs. Only a children’s rights approach offers a way out of this damaging spiral of state harm to children.

Convinced that a children’s rights approach is the surest way of promoting and securing child wellbeing, this publication offers two separate but related frameworks for policy makers and practitioners wishing to assess and monitor their actions in relation to the family and juvenile justice. Our analysis of current law, policy and practice concerning the family and juvenile justice reveals a great deal of non-compliance with international children’s rights standards: much of this has already been highlighted by a variety of human rights bodies and other organisations concerned with children’s rights.

Doing right by children is not intended to offer blueprints for children’s rights in the family and juvenile justice. The purpose is to show broadly what a children’s rights approach looks like, to convince readers of its strengths and, ultimately, to help children’s rights become part of the mainstream. Once a children’s rights approach is properly understood and applied to children’s lives, policy makers, practitioners and members of the public can see for themselves what needs to be done. Now.

Convention on the Rights of the Child – key facts • The Convention on the Rights of the Child was adopted by the United Nations on 20 November 1989 • When a United Nations member state ratifies the Convention, it takes on legal obligations under international law to ensure its rights and obligations are understood and upheld • The UK ratified the Convention on 16 December 1991 • The Convention grants every child (defined as a person under the age of 18 years) more than 40 substantive rights. These include economic, social and cultural rights, such as the right to an adequate standard of living and the right to play; and civil and political rights like the right to be heard and taken seriously and the right to protection from all forms of violence • Many Convention rights deal specifically with the family and with children’s contact with the criminal justice system • When the UN Committee on the Rights of the Child last examined the UK’s progress in implementing the Convention it made 118 recommendations. A large number of those recommendations concerned children’s rights in the family and the juvenile justice system.

More about the Convention on the Rights of the Child on pages 68-70.

Doing right by children

4.

What are children’s rights?

The term ‘children’s rights’ describes a legal framework and a philosophy for positively transforming children’s lives and social status.

It is the universal roadmap for making sure every child can enjoy a happy, safe and fulfilling childhood. Asserting children’s rights means that children are represented and respected as human beings with dignity and integrity. Deeply entrenched ideas of children being the property, projects or playthings of adults are rejected.

Respecting children’s rights is just being human, isn’t it? You can tell if someone really believes in you and that’s empowering. You can definitely tell.

Young associate with national youth organisation, CRAE site visit 2011

For children, [the Convention on the Rights of the Child] is the Magna Carta. To get one common doctrine is a near miracle. It creates a new international norm.

James P. Grant, Executive Director, UNICEF, 198913

Building on its undeniable legal status, most children’s rights advocates use the Convention on the Rights of the Child as our framework for understanding children’s needs and entitlements. In the words of UNICEF’s former Executive Director, the Convention is the “Children’s Magna Carta” – it governs everything else.

The Convention on the Rights of the Child deals with all aspects of children’s well-being and development and brings together economic, social and cultural rights with civil and political rights. Children have the right to an adequate standard of living; to the highest attainable health care; to education that helps them develop to their fullest potential; to the right to have their views given due weight in all matters affecting them; and for their best interests to be a primary consideration in all actions concerning them. The Convention protects the parentchild relationship and prioritises family life (though not at the expense of children’s other rights – see section 6); it grants every child the right to play; and it requires that discipline in school always upholds the child’s human dignity. All forms of violence against children are absolutely rejected in the Convention, as is inhuman and degrading treatment and punishment. Certain groups of children are seen to be especially vulnerable and they are given specific additional rights – thus, for example, contact with the criminal justice system should be a very last resort; children who have been abused and exploited (including those who infringe the law) are entitled to positive rehabilitation focused on their health, self-respect and dignity; and special care and protection must be given to children separated from their parents irrespective of the reasons behind such separation.

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The UN Committee on the Rights of the Child, the international monitoring body for the Convention, has set out the strategic priorities for governments seeking to give priority to children and their rights – see Box 1 on right.14 Although the Government has obligations to implement fully the Convention, all organisations need to ensure they are actively supporting and not undermining implementation and could undertake many of the actions set out in Box 1.

In addition to its tangible requirements, which are summarised here and in pages 68-70, the Convention offers the ultimate “statement of values” in its demand that each child be treated with equal worth and dignity to other children and, crucially, to adults. It also accords great importance to properly hearing and responding to children’s views and perspectives.

I wouldn’t treat children any differently from how I would treat an adult – I wouldn’t talk down to them, I wouldn’t expect them to swallow everything I say and I would want to connect with them.

Accepting that children have to have their rights respected – that’s fundamental to me, to how I am as a parent myself. I think it’s how I was parented, to be honest.

Senior manager of children’s charity, CRAE site visit 2011

Box 1: Government strategy for children’s rights – minimum requirements Undertake a comprehensive review of all legislation and policy to see how it separately and together gives legal effect (or not) to the Convention.

Give legal effect to the Convention in domestic law, going further than the Convention wherever possible.

Ensure children have effective remedies for violations of their rights – economic, social and cultural rights, as well as civil and political.

Ensure effective government co-ordination of the implementation of the Convention.

Conduct child impact assessments and child impact evaluations on an ongoing basis (undertaken by government as well as by independent bodies such as parliamentary committees, non-governmental organisations and national independent human rights institutions).

Ensure active and ongoing co-operation across all relevant government departments and between government and civil society organisations concerned with children’s rights, including those run by and for children.

Develop a national plan for the realisation of children’s rights.

Develop national indicators for children’s rights, and ensure ongoing data collection.

Ensure resources invested in children and the realisation of their rights are clearly identified in national and other budgets.

Ensure children’s rights training and capacity-building for all those working with, and making decisions affecting, children.

Establish a national independent human rights institution to promote and protect the rights of children, compliant with the UN Paris Principles15 and the UN Committee’s own guidelines.16 Implement a comprehensive strategy for increasing knowledge and raising awareness about the Convention, among children and adults.

Widely disseminate government reports to the UN Committee on the Rights of the Child to encourage constructive debate and active implementation.

Doing right by children

Everyone has a talent. Mine is never having forgotten the feeling of being a child.

Camila Batmanghelidjh, Founder of Kids Company, 200617

Box 2: Children’s rights in Sweden Sweden was the first European country to ratify the Convention on the Rights of the Child. It did not register any reservations and accepted the treaty in full. In 1999 its Parliament approved its national children’s rights plan. A Swedish Government fact sheet explains the importance of the Convention in ensuring a “child perspective”:18

The child perspective is based on respect for the integrity and full human dignity of children. All people – old and young – are of equal value … Another dimension of the child perspective is the intrinsic value of childhood. Children are … individuals in their own right with their own needs and rights.

This means that childhood is not seen solely as preparation for adult life but is seen as a part of life with a value of its own.19 Among children’s rights values is the strong belief that children must be seen and respected as human beings rather than human becomings.20 This means that actions, interactions and decisions have to be rigorously assessed for their impact on children’s wellbeing today. The effect on the child’s development must always be considered: as the UN Committee on the Rights of the Child states, upholding rights in early childhood is ‘an effective way to help prevent personal, social and educational difficulties during middle childhood and adolescence’ and the Convention’s aims for education focus on the child’s

dignity and rights now, as well as their future adult capacities. ‘Every childhood lasts a lifetime’ says the Australian Association of Young People in Care21; ‘a good childhood does not make you an oppressor’ adds the Council of Europe Commissioner for Human Rights.22 Notwithstanding this, a strong focus on present well-being is essential to accepting children as holders of rights.

From this perspective, legally sanctioned violence, smacking, is intolerable because it causes pain, distress and humiliation. That research shows negative outcomes in the longer-term23 is a subordinate consideration. Similarly, in the juvenile justice sphere, deliberately setting out to degrade or frighten children, in the police station, courtroom or custody, can never be justified even if these “interventions” could ever be shown to reduce reoffending.

Empathy with children is another strong characteristic of a children’s rights approach. On the face of it, this should be straightforward as every human being is either a child, or has been a child. It must be easier, for example, for an adult to imagine what it feels like to be a child than it is for a man to envisage being a woman, or vice versa. But here’s the conundrum. The act of respecting and making a reality of children’s rights falls in large part to those who are no longer children. There are strong forces working against this. Life is about moving forwards and not back, and empathising with children, or allowing one’s own experience of childhood to consciously affect adult decisions and actions, is not encouraged. Formative childhood experiences may be acknowledged as fuelling

the passions of artists, writers, politicians and serial killers but the received wisdom is that, once out of it, adults should leave childhood in the past.

Many factors point to our society having a particular problem with empathising with children. The UN Committee on the Rights of the Child observed ‘the general climate of intolerance and negative public attitudes towards children, especially adolescents’ when it examined the UK in 2008.24 In that same year, 54% of adults participating in a YouGov poll for Barnardo’s agreed that ‘British children are beginning to behave like animals’.25 We were the last country in Europe to abolish corporal punishment in schools and this was achieved by a shameful majority of a single vote in the Commons.

Councils and criminal justice agencies have applied anti-social behaviour sanctions to the young in a grossly disproportionate way. When anti-social behaviour orders were first introduced, Government guidance stated they would ‘be used mainly against adults’26, yet 10 to 17 year-olds account for 40% of orders and only 10% of the population.27 We use ‘the ultimate sanction’28 of imprisonment on thousands of children each year. Barry Goldson describes how “othering” children in penal custody protects adults from facing up to their anguish: … the very terms ‘child,’ ‘children’ and ‘childhood’ are studiously avoided. ‘Inmates,’ ‘prisoners,’ ‘trainees,’ ‘criminals,’ ‘lawbreakers,’ ‘offenders,’ ‘thugs’ and ‘yobs’ are the preferred descriptors. In this way, ‘othering’ effectively neutralizes sensitivity to the harm that penal custody imposes; it distorts and undermines sensitivity to children’s suffering and pain.29

4. WHAT ARE CHILDREN’S RIGHTS? 13

By child-centred we mean that the child, and the best interests of the child, should always be our focus.

Box 3: Changing attitudes towards relationships within the family Domestic violence injunctions were first introduced in 1976; rape within marriage has been unlawful since 199130; the age of consent for heterosexual and homosexual relationships was equalised in 2000; lesbian and gay partners can now have their relationships legally recognised (since 2004) and they can jointly adopt (since 2005); it is unlawful for service providers to treat breastfeeding mothers less favourably (since 2010); and fathers can request up to six months paternity leave (since 2011). The coalition Government has promised more positive changes in parental leave (from 2015), with the Deputy Prime Minister bemoaning the current mix of policies as ‘an Edwardian system that has no place in 21st Century Britain’.31 At the same time, attitudes about children being the property of parents have been preserved, refreshed even, in the shape of the Children Act 2004. Section 58 of this Act provides some limits to the criminal defence available to parents, and those acting in loco parentis, charged with assaulting a child. Nevertheless, the 2004 Act more or less confirms the common law dating back to an 1860 judgment where a teacher beat to death a 13 year-old child. The “new” defence means the prosecution must prove the assault on the child did not constitute “reasonable punishment”. A vote in the Commons on giving children the same protection against assault as adults was lost by 424 to 75 votes.

Annette Brooke was one of 25 Liberal Democrat MPs to vote for equal protection, and expressed how difficult it had been for her to reject and then openly challenge entrenched views: ‘It has taken me quite a long time to come round to that and to have the courage to speak up on it’. She said she hoped equal protection would increase respect between children and adults and ‘set a change in culture for the 2lst century’.32

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The Children’s Society, Good Childhood Inquiry, 200633

Being able to distance ourselves from children may explain why many powerful legacies of Victorian social attitudes towards relationships within the family have in recent years been removed from UK law in relation to women, men and gay people, but not children – see Box 3.

For a children’s rights advocate, the child’s needs and perspectives are always what matters. Often this is called being child-centred, sometimes it is described as being child-focused: what is vital is that the child is the paramount concern.

Had this simple but momentous rule been the primary concern of Parliamentarians when they debated in 2004 whether to incorporate a 19th Century common law principle into a 21st Century Children Act, we can be sure there would be no “reasonable punishment” defence.

Whilst a country’s law and attitudes towards smacking can be seen as indicative of the extent of respect for children’s rights (just as ending violence against women is close to the hearts of women’s rights advocates), there are many other debates and matters of concern. And children’s rights do seem to be permeating important areas of policy. Having a singular focus on the child is powerfully promoted in the reports of both the Family Justice Review34 and Professor Eileen Munro35 and has been reiterated by Ofsted in its fifth set of examinations of serious case reviews.36 The first two documents make consistent reference to the Convention on the Rights of the Child; the Ofsted report doesn’t but children’s rights values are in evidence throughout.

That so many individuals and organisations promote and seek to protect children’s rights without acknowledging such a concept has been repeatedly referred to by those consulted during the preparation of this publication. When the project’s expert advisory group discussed the differences between a rights-based and a welfare-based approach to juvenile justice, the strong point was made that many “children’s champions” of the past cared deeply about children’s well-being but did not necessarily see themselves as children’s rights advocates. The drafters of the Children and Young Persons Act 1969 could so easily have also written the Beijing Rules and Articles 39 and 40 of the Convention on the Rights of the Child Box 4: A story of parental physical punishment In 1978, the year before Sweden passed anti-smacking legislation, Astrid Lindgren [author of the Pippi Longstocking children’s books] received the German Book Trade Peace Prize. In her acceptance speech, Lindgren recounted a story once told to her by an old woman. As a young mother, the woman had heard that smacking was a necessary part of a child’s upbringing.

One day her young son had done something she thought warranted punishment, so she told the boy to go into the woods to find a birch with which she could beat him:

The boy was away for a long time and eventually returned in tears, saying: ‘I couldn’t find a birch but here’s a stone you can throw at me’. The mother suddenly saw the situation through her son’s eyes and began to cry too.37 Doing right by children

People might never have thought about children’s rights in the way we are discussing. It starts off with a basic respectful attitude and interest in children. I have to be able to see that in staff.

Senior manager of children’s charity, CRAE site visit 2011

– the principal international human rights standards relating to juvenile justice. Going back even further, the Conservative Lord Shaftesbury promoted the Factory Acts of the 19th century and persuaded Parliament to establish a Royal Commission of Inquiry into Children’s Employment in 1840 which took evidence directly from child workers. There were no “participation workers” in the 19th Century: it was simply common sense to Lord Shaftesbury that the plight of child workers was best understood by hearing from them. In a similar vein, a century later Labour’s Baroness Lestor campaigned tirelessly for children’s rights and was one of the earliest advocates for an independent Ombudsperson, urging the active involvement of children because ‘One adult is not good enough’.38

I didn’t know any of my rights before coming here. I knew I had them but I didn’t know what they were.

Young person active in children’s human rights organisation (since the age of 12), CRAE site visit 2011

4. WHAT ARE CHILDREN’S RIGHTS? 15

5.

WHY DO CHILDREN’S RIGHTS MATTER? It could be argued that this publication is completely unnecessary: that debates over whether and why children have rights ended the moment the UK ratified the Convention on the Rights of the Child 20 years ago. Under the Vienna Law of Treaties, such an act made the obligations of the Convention legally binding on the UK.39 Children have rights: end of story.

You’re only a child because you can’t be born as an adult.

11 year-old to Children’s Rights Director, 200440

But laws cannot bring about change without people feeling inspired (or obliged) to act. That is why it is necessary to dig deep and explore why children’s rights matter so greatly; to show the positive difference they make to children’s lives; and to use the strengths of a rights-based approach to judge laws, policy and practice.

A children’s rights approach to law, policy and practice has many overarching strengths. Pre-eminent are these set out below.

A children’s rights approach: • Elevates the importance of childhood • Affirms children’s dignity and integrity • Reformulates children’s needs as entitlements • Recognises and supports children’s agency, their choices and solutions • Demands accountability and transparency • Promotes wider respect for human rights.

OVERARCHING STRENGTH 1: Elevates the importance of childhood The preamble to the Convention on the Rights of the Child asserts that ‘childhood is entitled to special care and assistance’. This text was inserted into the 1989 treaty by UK civil servants and comes from Article 25 of the Universal Declaration of Human Rights, agreed in 1948.41 But the concept of children’s rights is not a modern invention: just a few years after selling Thomas Paine’s Rights of Man on London street corners, the former schoolmaster Thomas Spence published Rights of Infants (1796) advocating among other things breastfeeding and ‘comfortable clothing and lodging’.42 Then in the 1900s Janusz Korczak wrote powerful books about the human dignity and capacities of children, and their rights to love and respect. Korczak has been credited as being ‘the first and most radical campaigner for children’s rights’.43 His “children’s republic” gave orphaned children in the Warsaw Ghetto the chance to run their own newspaper, control money and make collective decisions about how their community should be run, including how to respond to rule-breakers. Many aspects of these can be seen in the contemporary children’s rights movement but for Korczak these were not projects or programmes; they were a way of life. He exposed the routine abuse and humiliation of children and stood by them right to the end, literally.

In August 1942 he refused offers from the Nazis to save his own life and subsequently died in Treblinka

concentration camp with his co-workers and 192 Jewish children.

It is said that Korczak was disappointed with the 1924 Declaration of Children’s Rights agreed by the League of Nations, the forerunner to the United Nations: [Korczak believed the Declaration] was not clear enough, it was begging rather than insisting. He wanted rights – not charity – and rights now, not in the far future.44 Nevertheless, the Declaration’s invocation that ‘The child must be the first to receive relief in times of distress’ was an important landmark in putting children’s needs before adults’. This sentiment was continued in the 1959 United Nations Declaration of the Rights of the Child when it urged: ‘mankind owes to the child the best it has to give’.

Once a country ratifies the Convention on the Rights of the Child, it is inadmissible for children and childhood not to be a priority. In embracing children’s rights, Government and organisations as big as the NHS or as small as a village primary school or a local library are saying ‘we value and care about childhood’. We recognise the unique potential that this (relatively short) period of life brings for human growth and development.

At the same time, we bear witness and seek to reduce, remove even, the vulnerability of the people that occupy childhood, from completely dependent newborns to teenagers facing new challenges.

More than a decade before children in England gained their first dedicated Cabinet Minister45, the Gulbenkian Foundation published a seminal inquiry

5. WHY DO CHILDREN’S RIGHTS MATTER? 17

The Convention is an international standard; it’s not some crazy nonsense, it’s been internationally agreed. On a human level, it’s about how you trust and respect people; it’s your values and attitudes.

Family support worker, CRAE site visit 2011

report by Rachel Hodgkin and Peter Newell making the strong case for effective government structures for children. Following extensive research, including among government departments, the inquiry exposed many shortcomings in how government worked – or, rather, didn’t work – for children. But the thrust of its argument was that children needed to be moved much further up the political pecking order: … over and above the need to remedy these defects is the need for an overt political commitment to children – for a sense that the government cares about where it is going in respect of children.46

OVERARCHING STRENGTH 2: Affirms the child’s dignity and integrity Box 5: Taking young children seriously In January 2010, the Court of Appeal dismissed a man’s application to appeal his conviction and sentence for the anal rape of a young child. The appeal centred on the claim that it was not acceptable to convict on the evidence of a 4 year-old child recounting events she said happened when she was just 2 years old.

Lord Chief Justice Lord Judge explained the developing law in relation to respect for children’s testimony and capacity: ‘Many accreted suspicions and misunderstandings about children, and their capacity to understand the nature and purpose of an oath and to give truthful and accurate evidence at a trial have been swept away … the old misconceptions no longer apply and have no relevance in England and Wales’. He carefully considered and reaffirmed the steps necessary to ensure children can give their best evidence and concluded: ‘Unless we simply resuscitate the tired and outdated misconceptions about the evidence of children, there is no justifiable basis for interfering with the verdict’.47

Ahead of the 2005 General Election, the UK’s five major children’s charities published a joint manifesto for children and explained: ‘We need to create a culture in which children are respected and treated as equal citizens with rights of their own, not as adjuncts of their parents’.48 More recently, Professor Eileen Munro asserts:

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The vision of children implicit in the [Convention on the Rights of the Child] and in the Children Act 1989 is that they are neither the property of their parents nor are they helpless objects of charity. Children are individuals, members of a family and a community, with rights and responsibilities appropriate to their age and stage of development.49 The Convention on the Rights of the Child demands that children be seen and treated as rights holders, as does the European Convention on Human Rights (ECHR). The ECHR is enshrined in UK law while the UNCRC as a whole is not. But the former is not sufficient to guarantee children’s rights. In particular, unlike the Convention, it contains no clear exposition of what children need in order that their dignity and integrity be, at the very least, left intact.

Children have many of the same needs as adults.

However, their relative immaturity makes them particularly vulnerable to attacks on their dignity and integrity. Accounts of children being inhumanely treated are especially chilling for they show so clearly their lack of power. The effects of such attacks can be far greater than if they were inflicted on adults.

This is why, for example, the Convention on the Rights of the Child gives an absolute right to privacy in criminal proceedings (unlike the ECHR whose case law highlights the need for, but does not guarantee, restrictions on publicity). It is also why the child’s right to be heard is given so much prominence, both in the Convention itself and also by the UN Committee on the Rights of the Child.

Doing right by children

A society that values and sees all children as the unique individuals they are, with their own personal integrity, will ensure that children are not dismissed or overlooked as simply the product or possession of their family, nor grouped and stereotyped together as an homogeneous group.

The Children’s Society’s Good Childhood Inquiry, 200950

Children in care have in the past suffered gross infringements of their dignity which went unnoticed and unchecked. The appointment of children’s rights officers in English local authorities in the 1980s and early 1990s came after revelations of longstanding abuse in care where children’s complaints had not been believed and many children were too afraid and intimidated to “speak out”. Sir William Utting commended these services as ‘One of the most beneficial developments of the last decade’ in his review of safeguards for children living away from home, established by the former Conservative Government.51 Many routine but seemingly benign practices of children’s homes in the past would now be rejected out of hand as a breach of children’s rights – for example, purchasing children’s clothes by an order book; bulk ordering of children’s toiletries; a large sign outside buildings identifying them as children’s homes; and staff keeping records of girls’ menstrual cycles. These demeaning practices changed because children began organising together to demand improvements in their care and treatment.52 Many adults supported them in their campaigns. Several members of the project’s expert advisory group were strong proponents of the rights of children in care in the 1980s and 1990s. Social worker Judith Timms founded the National Youth Advocacy Service because she saw so many vulnerable children left without advice and representation. The charity was initially run from a garage; it now has over 400 advocates supporting children in a variety of difficult circumstances across England and Wales.

The energetic promotion of children’s rights in care is still vital today. A National Voice, the organisation run by and for care-experienced people, has been campaigning since 2003 against children in care being forced to pack their belongings in a bin bag when moving placements. Each year the organisation holds a fashion show where the costumes are made from bin bags. The strategic director of Leicester City Council, Rachel Dickinson, explains why her authority has signed up to the “No Bin Bag Charter”: I support this campaign wholeheartedly, as I feel very strongly that we must make sure that all children and young people in our care are treated with dignity and respect.53 That young people have had to educate professionals about the degrading and upsetting impact of moving home with bin bags shows the absolute importance of always seeing life from the child’s perspective. This means asking them – again and again – about their situation, their feelings, what they want to happen in their lives, and the impact of our actions. And it requires being ready to change policies and practices wherever possible. In a recent User Voice consultation of children in custody about safeguarding, several children likened routine strip-searching to the experience of being raped. One child in a secure training centre explained: When I had my first full search I was 14, it was horrible as I have been sexually abused and I didn’t feel comfortable showing my body as this brought back memories. They told me if I didn’t take my clothes off they would do it when they got permission.54

Another in a young offender institution said: It reminds me of the sexual abuse I have suffered, makes me feel like I am being abused again.55 The Youth Justice Board (YJB) subsequently confirmed its ‘commitment to the principle that full searches should only ever be undertaken on a riskled, rather than a routine basis’.56 This was almost five years after it rejected the Carlile Inquiry’s very same recommendation. At that time, the YJB said it would need to review the practices of the different custodial establishments before being able to commit to such a shift.57 Even reports that children had had their clothes cut off,58 and that staff were restraining children during strip searching,59 had not resulted in a change of policy. It would appear that the powerful accounts from children of feeling utterly degraded by strip-searching are now forcing a change in policy, though it’s interesting that the YJB has retained the term “full search” to describe children being forced to strip naked (one half of their body at a time) in front of staff.

Without going over the top, if you can treat children as “others” you are only a few steps away from being able to inflict the most awful treatment.

Project co-ordinator, children’s rights in custody, CRAE site visit 2011 Believing that children have nothing worthy or important to communicate is a categoric denial of their dignity and integrity. Children feel this very deeply. In

5. WHY DO CHILDREN’S RIGHTS MATTER? 19

I had a crap youth worker at one stage. One time we met up and she said ‘Oh, what’s your name again?’ The next one I had longer. She would ask: ‘how are you?’ She thought ‘I’m going to be there for the kid’.

Young associate with national youth organisation, CRAE site visit 2011

our discussions with children for this publication, there were consistent calls for adults to: • Speak to children as equals • Be prepared to work alongside children as equals • Ask children their opinions • Allow children to come up with their own solutions • Give children the freedom to express themselves • Show interest in children and care about what happens to them.

Why should adults have rights and we don’t? Because technically, just because we’re younger doesn’t mean we shouldn’t have the same rights. It’s like saying, you know how women never used to have rights [like] men, whereas women could speak just as freely as men could and think just as freely. The same with children. We still think just like adults do, we’re just younger and less experienced.

Child in CRAE focus group on children’s rights and the family, 2011

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OVERARCHING STRENGTH 3: Reformulates children’s needs as entitlements Box 6: Mainstreaming children’s rights We support increasing participation of children and young people in decisions that affect them, as a right and not as a gift.

Extract from Durham’s Children and Young People’s Plan 2009-1260 … everyone involved in child protection should pursue child-centred working and recognise children and young people as individuals with rights …

Extract from Munro principles of an effective child protection system61

Strength 3 is at the heart of a children’s rights approach – the acceptance that children have entitlements and adults, particularly policy makers and those providing public services, have obligations towards them. Reformulating children’s needs as rights makes it more likely that these people will be treated with respect, and have self-respect. It introduces certainty and rebalances power.

It is deeply regrettable that, 20 years after the UK ratified the Convention, and 10 years since the ECHR became part of our law, there are still many people who believe the language of rights is off-putting. They fear this approach antagonises people in powerful positions who generally do not like to be told what to

do or where they are going wrong, including when they are acting unlawfully. Then there is the hostile media representation of human rights combined with the commonly held adult view that children should know their place.

This aversion to an “out” rights approach does no favours to the people suffering violations; and it impedes broader progress in developing a human rights culture. Fear of rights rarely shows itself among the disempowered: in fact, rights give these people hope, courage and a way out of difficult situations. A senior manager from a primary school involved in UNICEF’s Rights Respecting School Award (RRSA) reports: We always get some disclosures when we talk about rights at the beginning of the school year. [Children] feel empowered enough to say and we have to follow them up, they feel empowered to tell someone and that is something that probably wouldn’t have happened if it wasn’t for this [RRSA].62 Save the Children told us that framing its anti-poverty work with families in a rights context ‘makes for a much more empowering approach’: We have a shared understanding of what all children in our community are entitled to; we have the power to help make this the case by holding duty bearers to account; we can see what is getting in the way; [our work] is about tackling those barriers head on to help ensure that rights are realised.

Shelter explained the positive impact of its Children’s Legal Service and cautioned:

Doing right by children

The Convention places standards – what children can expect – outside political whim and electoral cycles. It allows for longer-term thinking and stops children’s needs being a political football. We have to remember that children don’t even vote.

Children’s charity manager, children’s rights and the family roundtable, 2011

By downplaying rights, children and young people are only further disadvantaged.

A children’s rights approach means that professionals and politicians no longer have sole control over the determination of children’s needs because these have been defined in international law. The development of the Convention took 10 years, and was influenced by the UK Government and civil society. Definitions and understandings of children’s rights have inevitably developed further over the past 20 years, since the UN adopted the Convention, through the work of the UN Committee on the Rights of the Child, regional human rights mechanisms such as the European Court of Human Rights and the African Committee on the Rights and Welfare of the Child, as well as British courts.

Box 7: Parents and teachers working together to uphold children’s rights [A rights-based approach] makes conversations with parents easier because, for instance, this morning I’ve had a conversation with a parent whose child is always late, misses a huge amount of school. So I can come at that by saying all children in the world have the right to an education and it’s our responsibility as parents and teachers to make sure that happens. So it gives me that sort of strength of argument to say ‘how can we work together to make sure your child gets their right to a good education?’ And it takes the wind out of people’s sails a bit and helps.

Senior manager, primary school, cited in three-year evaluation of UNICEF’s Rights Respecting Schools Award 63

With a rights based approach, assessments of individual need stop being a process of professionals focusing on the (perceived) personal deficits or failings of children and families and become a shared examination of how a child’s rights set down by international law can be secured. This will inevitably involve analysis of parents’ contribution to children’s well-being. Children’s own actions will also be part of the discussion. These processes will be painful and difficult at times but, having an external reference point, which crucially also holds professionals to account, can transform the process. One member of the project expert advisory group with almost 45 years’ experience of working with children and families involved with social care and the family courts, explained: You have to turn the whole process of assessment on its head – from needs to assessment of rights. This requires a forensic framework – what rights does this family have, and what needs to be done to ensure their rights are met? This approach takes pressure off the family. They are no longer supplicants.

Another member, a director of a campaign charity, observed: A rights-based approach is an intellectual approach, not a service-based framework. It is handing power over, creating an environment where you talk and have a dialogue. It is genuine partnership – a framework of discussion, not service delivery.

The Convention sets broad expectations about how decisions will be made affecting children. This includes

Box 8: A universal framework Everyone whose work involves safeguarding and promoting the welfare of children must ‘Have the confidence to actively represent the child or young person and his or her rights’ The Children’s Workforce Development Council’s common core of skills and knowledge 64

that children will be able to express their views freely and have these views taken seriously and that, in all actions concerning the child, their best interests will be a primary consideration. It also gives a normative framework. For example, the Convention sets out the rights and aims of education and health care; the roles and obligations of parents; and the entitlements of children in care, disabled children, child workers and children in conflict with the law. As the Council of Europe Commissioner for Human Rights explains: The substantive articles of the Convention give clear directions and limits on how children should and should not be treated.65 Adults often appeal to children’s “best interests” to justify actions and decisions that on closer examination should be rejected because they violate children’s rights. Gerison Lansdown explains: In the name of their best interests … we have placed [children] in large long-term institutions, refused to hear accusations of physical or sexual abuse, allowed high levels of physical punishment, separated them from family members, denied them the knowledge

5. WHY DO CHILDREN’S RIGHTS MATTER? 21

of their identity or origins, tolerated bullying, locked them up for running away from children’s homes, segregated children with disabilities, withdrawn entitlement to benefit – the list is endless.66

right to rehabilitation, in Article 39 of the Convention, would have also provided a useful framework for thinking about the child’s psychological and emotional needs, now and after the death of her mother.

A member of the project’s expert advisory group drew attention to the history of abuse in children’s homes, noting that in the Staffordshire “pindown” scandal 67 ‘one charismatic individual was able to devise a treatment regime which was outright cruelty’. Without a rights framework, ‘need is always subjectively defined.

Children’s best interests needs to be formulated around fundamental rights’. When CRAE supported a children’s investigation of the implementation of the Convention on the Rights of the Child, we heard devastating accounts of adults overriding the child’s own assessment of their best interests, including this one from a child in care:

The Equality and Human Rights Commission’s human rights inquiry unearthed numerous examples of people benefiting from having a clear set of entitlements, although sometimes they became aware of these by chance:

One day … when mum was alive, I posted [a mother’s day card] to her before she passed away, [but] my carers said, no, you’re not allowed to do it because it’ll make you upset, and I was, like, but I want to say goodbye. They wouldn’t let me because they think she would not want me there basically, and my mum wanted me there because she left a note saying goodbye and everything. I’ve still got that note now. I didn’t throw it away or nothing. I’ve got it in my safe.68 A rights framework would have given much more prominence to this child’s wishes and to the importance of her maintaining a relationship with her mother (the mother too would have been entitled to assert her rights under Article 8 of the ECHR). The

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When his five year old daughter was undergoing open heart surgery, a hospital official told him and his wife they were not allowed to stay the night with their daughter in hospital. It was only after the couple saw a notice which made it clear they did have that right, that they felt able to challenge the decision. The anxious parents were then able to be with their young daughter during the night at such a critical time.69 The Convention on the Rights of the Child gives children and families a clear reference point by which they can judge the conditions in which they live, and how they are treated: in other words it ‘gives pointers as to what is good for the child’.70

Were the coalition Government to decide that children’s Convention rights should be made part of UK law, Ministers, Parliament and the public could go even further than the rights put down in the treaty two decades ago (as has been achieved already in some areas of law and policy). For example, the Northern Ireland Human Rights Commission’s advice to the UK Government on a Bill of Rights for Northern Ireland proposes a stronger best interests duty on public authorities (where the child’s best interests is ‘the’ rather than ‘a’ primary consideration) and stresses that special care and assistance to children deprived of a family environment should be provided ‘for as long as they need it’. Protection from inappropriate use of force and restraint in the criminal justice system is also proposed for consideration for children.71 The Convention itself does not explicitly refer to restraint, though it gives extensive protection from violence and, like the ECHR, protects from torture and inhuman and degrading treatment and punishment.

Whilst imposing certainty over what children as a general rule need and are entitled to, the Convention offers considerable scope for UN member states to apply these universal standards in their own context – and to go beyond them in asserting even stronger respect for the human rights of children. Indeed, Article 41 of the Convention states that nothing in the treaty should ‘affect any provisions which are more conducive to the realisation of the rights of the child’.

Doing right by children

Here [at the youth offending team] if I made a suggestion or had an idea they would listen, but I haven’t [experienced that] in other services – they always talk down to you.

Case study Investing in Children

National Youth Agency research, 2010

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OVERARCHING STRENGTH 4: Recognises and supports children’s agency, their choices and solutions Article 12 of the Convention on the Rights of the Child affirms children as subjects, rather than objects of concern. Their feelings, views and ideas gain prominence. It is impossible to be an advocate of children’s rights and not be committed to hearing directly from children, whether this concerns their own needs or wider matters relating to policy and service delivery.

More than three-quarters (78%) of children who had recently come into care told the Children’s Rights Director that a good way for professionals to find out their wishes and feelings was to meet them face-toface on their own. By contrast, just over a third of children (35%) said professionals could ask children to write down their wishes and feelings; and an even smaller proportion (19%) said children could be asked to draw their wishes and feelings.73 This highlights the absolute necessity of checking with children how they would most like to communicate.

There are initiatives, programmes, projects and campaigns across the country to strengthen the child’s voice in decision-making. A review of developments in law, policy and practice since 2004 for the National Participation Forum reported substantial progress in the legal and policy context and many positive signs that children are feeling listened to and respected. However, it pointed to the ‘stark lack of evidence’ of children’s

If Investing in Children didn’t exist, ‘nothing would get done’ says an 18 year-old who has been active in the organisation for the past six years. She and three other young people describe a wide range of young people-led campaigns and activities that have brought about major changes for children and young people in Durham. One example they are particularly proud of is the lowering of the minimum age at which local children can become members of council-run gyms. The council said it would be impossible to reduce the age, from 14 to 11 years, and explained that children and young people could use badminton courts. Wanting to use gym, not badminton, facilities young people set about obtaining information and making their case. It took nearly three years to convince officials to change their policy but the result has been a significant increase in young people and families using council-run gyms.

and young people; that children and young people are treated with respect and honesty and their contribution is acknowledged; and that this dialogue has resulted in change, judged by children and young people.

A 17 year-old who has been part of Investing in Children since she was 12 clarifies what being a human rights organisation means: ‘Adults look down on children and young people and see them as inadequate. But they do not have all the answers … Children’s rights is normal human rights’.

Investing in Children was established in 1995 and is an organisation which promotes the rights of children and young people to have a say in the way that services are developed and delivered. It works with public and voluntary sector organisations to create ways to promote dialogue with children and young people.

The organisation has supported a whole host of young people-led research and advocacy projects dealing with subjects as diverse as public transport, disability rights, democratic education, stigma in mental health services, the rights of children and young people in care, relationships between young people and the police, the rights of young carers and social networking sites. The project worker explains that children and young people get first-hand experience of changing things. Indeed, to achieve Investing in Children membership status, an organisation has to show, among other things, sustained dialogue with children

5.

WHY DO CHILDREN’S RIGHTS MATTER? 23 23

Case study Voice

participation in immigration and asylum, child protection and juvenile justice systems with their ‘adult-centred decision-making processes’74 – findings since echoed by the National Youth Agency75, Ofsted76 and the Munro review of child protection.77 That children in contact with immigration and asylum, child protection and juvenile justice are often at their most vulnerable makes it even more abhorrent that the highest priority is not given to taking seriously their wishes and feelings. Professionals would greatly benefit from enlisting children’s advice and assistance in making these systems more childcentred, and therefore more effective.

The Convention on the Rights of the Child has been a catalyst and focal point for ensuring children are heard and respected. However, we should not overlook the fact that the child’s voice was given strong emphasis in the Children Act 1989, which gained Royal Assent four days before the UN adopted the Convention. Going back further, the Adoption Act 1926 first required courts to give due consideration to the wishes of the child, having regard to his or her age and understanding, and the Children Act 1975 required social workers to consult children in care.

CRAE itself has secured a number of positive changes in the law relating to the child’s right to be heard. We have invested time and energy into achieving these changes because we see them as fundamental to respecting children as people with wishes and feelings, and also to the realisation of their other rights.

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Box 9: The child’s right to be heard: changes in law and policy as a result of CRAE’s campaigning 2002 Education Act makes provision for statutory guidance on pupil participation 2004 Children Act 1989 is amended to require social workers undertaking children in need assessments and child protection enquiries to ascertain and give due consideration to the child’s wishes and feelings 2004 The Children’s Commissioner must engage directly with children, and produce childfriendly reports 2005 School inspectors must seek the views of children

A children’s charity established in 1975 initially to support children in care, Voice provides independent advocates to assist children in a variety of circumstances – children in and leaving care; children in contact with the immigration and asylum systems; children using mental health services; and children in custody. The organisation also offers advocacy to young disabled people.

Voice describes children’s rights as ‘a key feature of our organisational values’ and sees the provision of information to children about their rights as a critical part of its role. In 2009/10 between 96% and 100% of children using its services in six young offender institutions rated the service as ‘good’ or ‘excellent’.

In a seventh, 99.8% of the children rated the service as ‘above satisfactory’.

2006 Pupil participation guidance is extended to nursery education 2008 School governors must invite and consider the views of children (not yet brought into force) 2008 Ministers agree to issue statutory guidance on Children in Care Councils after CRAE lobbies for these new mechanisms to be enshrined in law 2010 New section on the child in focus in Working together statutory safeguarding guidance; also, the official definition of emotional abuse is extended: ‘it may include not giving the child opportunities to express their views, deliberately silencing them or ‘making fun’ of what they say or how they communicate’.

Doing right by children

Case study National Youth Advocacy Service (NYAS)

NYAS sent us case examples showing where it had assisted children to challenge statutory agencies to meet their legal obligations, including Cases A and B below.

Child A was convicted of a serious sexual offence when he was 13 years. He was remanded in foster care because of threats to his safety from the local community. He was then detained in a young offender institution. Upon his release, the threats to the child’s safety continued within the community. The local authority refused to provide any assistance. The Probation Service arranged for the child’s former (remand) foster carers to look after him on an informal basis, without any financial or other support from the local authority. The child was refused admission to his local school and the local authority refused to provide alternative education or to assist him in any way. NYAS was able to demonstrate that the child was a “child in need” under the Children Act 1989 and entitled to support.

The child’s foster placement was re-established on a properly funded and supported basis. The school’s refusal to admit the child was also successfully challenged.

Child B was 16 years old and had been living in unsuitable accommodation for nearly a year. He told NYAS he wanted somewhere stable to live so he could concentrate on obtaining qualifications to become a qualified mechanic. As a young child, he had witnessed several serious incidents of domestic violence and his father was a drug addict and regularly took drugs in front of him. Over time, the child started to take drugs and act aggressively, including to his mother. He began offending and started sleeping on the streets. The local authority refused to provide him with accommodation or support. The child then tried to commit suicide.

NYAS threatened the local authority with judicial review proceedings which resulted in the child being given accommodation and appropriate support – all of which he was legally entitled to under the Children Act 1989.

OVERARCHING STRENGTH 5: Increases accountability and transparency Box 10: Holding local authorities to account We currently have a culture in which threat delivers the best resources. If someone threatens the local authority with solicitors, then they are likely to get a statement of special educational needs for their child … In one year we had to take local authorities to the doors of courts thirty-three times, because they would not house children for whom they were responsible.

We won on every single occasion, or they settled before we got to the courtroom. But if you’re a child on your own in the inner cities or in an isolated farmhouse, if you are being abused behind closed doors, no one will notice you, no one will know until you’re old enough to protest – to make your rage visible. And then the injustice is that they do not admit to the damage that has been caused. Instead they want to punish the child for what in effect is the adults’ failure to care.

Camila Batmanghelidjh, Founder of Kids Company, 200678

Many aspects of children’s policy would not have come into being without children’s rights advocates demanding accountability and transparency in the delivery of services for children. From the right of children growing up in care to access their social services files, to protection from corporal punishment in schools and care settings, to financial support for young carers, to separate provision for children in

mental health hospitals, to the rights of young disabled people and children in custody to education, to the end of immigration detention for children – none of these policy developments first emanated from Whitehall. A rights framework kept the focus on what was best for children and, crucially, emphasised that public bodies and decision-makers are accountable and can, by persuasion or ultimately by law, be forced to change.

Advocacy organisation NYAS provided us with numerous examples of individual children they have helped to assert their rights – to parents, local authorities and the courts. The organisation states its contact services, for children of separating parents, do ‘not give too much power to the children and young people … [They] empower them to be involved in the process that is affecting their lives and [shows] parents that their children have rights within the process’.

Its work with children who infringe the law the law provides crucial assistance in times of great need.

In passing the Human Rights Act, Parliament agreed a new level of accountability for public officials. Section 6 of the Act makes it unlawful for a public authority to act in a way which is incompatible with a right in the ECHR (though Article 13, the right to an effective remedy, was not included in the Act). Francesca Klug had this to say in 2000: If the Human Rights Act works as intended, then … [p]ublic officials of all kinds will no longer be bound only by the letter of the law, nor will they be prohibited just from infringing fundamental rights. There will be

5. WHY DO CHILDREN’S RIGHTS MATTER? 25

Case study U R Boss – Howard League for Penal Reform

‘The legal team is focusing every day on fighting for the legal rights of children’ U R Boss is a five-year programme to strengthen the rights of children in custody, through the provision of legal advice and representation; and by supporting children to influence national policy and the practice of youth justice practitioners. It was initially established to develop new spaces in which children who had sought legal advice could stay in touch with the organisation and use their experiences to try and bring about wider change.

An independent evaluation reports children holding the legal service in ‘high regard’, particularly rating the time and care lawyers dedicate to defending their rights; the way in which they are kept informed of progress; and the willingness of lawyers to look beyond immediate legal problems ‘to pursue issues with a wider rights or welfare focus’. For example, Muslim children in one institution were treated more respectfully after a child asked Howard League lawyers for help in challenging restrictions on his opportunities to pray. Moving beyond children’s treatment in custody, the organisation has had ‘considerable success’ in forcing statutory agencies to meet their legal obligations to children.79 Building on this, the participation work of U R Boss empowers and enables children who are in, or who have experienced, custody to have a voice and influence real change in the penal system. Working with young people who have recently been released from custody, U R Boss is producing ‘Life outside’ – a policy report based solely on the views and experiences of children, to show the substantial challenges they face when leaving custody and serving the community part of their sentence. This builds on last year’s ‘Life inside’ policy report which gave powerful insights into the views and experiences of 15 to 17 year-old males held in young offender institutions.

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pressure on them to respect the rights of the people in the everyday decisions they make as they go about their work.80 At the end of 2008, the British Institute of Human Rights published 31 case studies of ‘ordinary people’ challenging the decisions and actions of public officials, with impressive impact.81 In one case, three children were placed in foster care after their mother entered 24 hour supported care due to deterioration in her mental health after the death of her husband, their father. The children initially visited their mother three times a week but this was stopped due to staffing shortages. The mother’s advocate then requested that children’s services attend the mother’s care programme meeting and invoked the children’s right to respect for family life. This resulted in the family visits being restored.

OVERARCHING STRENGTH 6: Promotes wider respect for human rights Eleanor Roosevelt, one of the main drafters of the Universal Declaration of Human Rights, said that human rights begin ‘in small places, close to home’.82 The former Government described as ‘bringing rights home’ the process of making the ECHR part of UK law.83 As well as living full lives today, children have a variety of relationships and roles to look forward to – as spouses and partners, parents, householders, employees and employers, voters and decisionmakers. How they are treated in childhood will necessarily affect how they perform these different roles and exercise their increasing responsibilities.

As Peter Newell explains: Children hold the key to the development of a human rights culture. If children do not enjoy human rights, experience what it means to be a holder of rights and see adults taking their human rights seriously, if human rights are not built into their early development and education and into government and services for them, there can be no serious prospect of developing a human rights culture for our future.84 Graham Allen’s review of early intervention, although not scoped within an explicit rights framework, powerfully shows the necessity of getting things right for children at the beginning of life. He believes effective early intervention will help children ‘become fully

Doing right by children

Case study Children North East

rounded citizens and, above all, excellent parents’ and advocates assistance across the whole of childhood: … to fulfil their roles, parents and carers must themselves benefit from policies across the age range 0–18 which significantly strengthen the ability of babies, children and young people to raise their future children with the social and emotional capabilities that are the right of every child … So I do not accept the false choice that Early Intervention is either 0–3 alone or 0–18 alone. It must be both.85 Furthermore, public services which engage with children from the standpoint of them being rights holders are much more likely to be aware and respectful of the human rights of parents and carers – see case study opposite. A society that values children will inevitably place a great deal of importance on supporting parents.

Trust, accessibility and focusing on the strengths of parents are key features of Children North East’s work with parents. The relationships family support workers have with children and parents are vital, as is straighttalking with parents about the needs and perspectives of the child. The organisation supports families to access specialist advice from welfare rights and housing and helps families access universal services. Children North East’s aim is to “walk with” families, not “do to them” and it is very successful in helping keep families together, though never at the expense of children’s safety. Parents know that children’s views are valued and respected by the organisation. The children’s rights ethos is so strong across the organisation that any member of the family, including children and young people, receiving support would know how to raise their concerns especially if they felt a child’s best interests was not being properly met.

The family support workers’ job description requires the postholder, ‘To ensure service user’s rights are valued and respected, making sure users inform and influence decision-making that brings about change’.

An independent evaluation of family work where there are substance misuse problems, or children have been removed into local authority care (or are at risk of being removed), shows positive outcomes in all 45 families (83 children). The impact for children included: ‘[B]abies that are thriving (in families with a history of neglect and physical abuse); school age children who have returned to school after periods of exclusion; improvements in children’s mood and behaviour; improvements in parenting techniques; and improvements in home atmosphere’.

An analysis of Children North East’s intensive work with 20 families in 2009/10 shows a saving in statutory public spending of over half a million pounds.

The intensive work with families can see workers arriving at 7am in order to help children get up and ready for school. Support can be provided in the home 7 days a week. Being in the family home at times of great stress gives workers valuable insight into the difficulties: this is a platform from which to make observations and suggestions to parents. This contrasts starkly with the relationships many parents have with statutory workers. ‘We don’t get to know them’ is not a complaint of Children’s North East staff. An honest and mutually respectful relationship is essential for staff to be able to assist parents to empathise – to help them develop ‘a healthier connection’ with their children.

5.

WHY DO CHILDREN’S RIGHTS MATTER? 27 27

6.

CHILDREN’S RIGHTS and THE FAMILY Human rights instruments from the Universal Declaration of Human Rights through to the Convention on the Rights of the Child place the family at the centre of human life – it is seen as being essential both to individual fulfilment and wider humanity.

A family is a group of people who love you.

Families are for loving you and for being kind to you.

10 year-old boy to family researcher86

People who are beaten up by their mums and dads, they don’t have the right to be part of a family because they’re not, if they are being beaten up. It’s not a loving family. People call you a family, but they don’t necessarily know what’s going on behind everything.

Girl giving evidence to Council of Europe’s child-friendly justice examination87

ways, and throughout the day and night, parents powerfully communicate to babies that they matter. It is parents who have the most intimate knowledge of their child’s growing personality, their physical needs and their preferences for people and places. They nurture their child’s right to play; respond to and welcome their abiding curiosity; and they work hard to ensure their children’s needs for shelter, food and clothing are met. Parents pass on strong values of respect and fairness – taking turns, sharing, saying ‘please’ and ‘thank you’ and thinking of others. They encourage children’s interests and nurture their abilities.

They constantly talk to and listen to children, and comfort and support them through life’s let-downs and challenges.

Parenting requires enormous empathy, altruism and the most careful exercise of power. In many respects, parenting can be seen as the greatest execution of human rights. The International Year of the Family in 1994 promoted the family as ‘the smallest democracy at the heart of society’.

back in 1995 that ‘in a child-centred society we would make a big and serious thing out of preparing for parenthood’,91 yet sex and relationships education remains absent from the national curriculum (a 2009 poll conducted for Government found overwhelming support among parents for such lessons to be compulsory for all children – 81% were in favour).92

The National Statistics’ definition of a family is a married or cohabiting couple with or without children or a lone parent with one or more children.88 The Children Act 1989 defines a family as including any person who has parental responsibility for a child, or who has been living with the child. In 2006, the UN Committee on the Rights of the Child reminded member states of the role of grandparents, noting that this ‘is very rarely acknowledged in domestic laws and practices’.89

Sadly, not all children enjoy such rights-respecting relationships with their parents or would describe their family life in such glowing terms. The family sustains human beings, children included, like nothing else but it can also be a place of great despair and damage.

A survey of 11 to 17 year-olds undertaken for the NSPCC in 2009 found that nearly 1 in 5 UK children had been physically attacked by an adult, sexually abused or severely neglected by their parents.90

• Article 5 – the advice and guidance a parent offers to a child shall be in accordance with the child’s evolving capacities

The very survival of babies depends on the love, devotion and non-stop care of parents: in meeting these fundamental first needs, parents give children their earliest experiences of having their rights upheld. In a multitude of

It is incredibly important that the roles and responsibilities parents share (with each other and with the state – see below) in securing the rights of their child are clear from the start. Peter Newell observed

Box 11: Human rights and the family The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 16(3), Universal Declaration of Human Rights, 1948 and Article 23(1) International Covenant on Civil and Political Rights, 1966 Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding…

Preamble, Convention on the Rights of the Child, 1989

Articles 27, 18, 5, 12, 7, 8 and 9 of the Convention provide the foundation stones of rights-based parenting (though nearly all of the Articles relate in some way to children’s rights in the family93 ): • Article 27 – parents have the primary responsibility to secure an adequate standard of living for their children • Article 18 – children’s best interests will be parents’ basic concern; parents have primary responsibility for the upbringing and development of children though the state must provide appropriate assistance

• Article 12 – the child’s right to be heard and to have their views given due weight in all matters affecting them • Article 7 – the right to a name and nationality and, as far as possible, the right to know and to be cared for by both parents • Article 8 – the right to identity and to the preservation of family relations • Article 9 – the right of the child not to be separated from his or her parents unless this is in his or her best interests.

6. CHILDREN’S RIGHTS AND THE FAMILY 29

Debates about rights and the family, particularly children’s rights in the family, are often limited to the right of the family to privacy and the state’s obligation to leave “it” alone unless intervention is absolutely necessary. ‘An Englishman’s home is his castle’ runs deep in both popular culture and, in some respects, the law of the land.

It is important not to overstate this position: a YouGov poll of parents in 2004 found that just over a third believed the Government should leave parents to make their own decisions about how to be good parents. However, nearly half (47%) wanted Government to take a proactive role.94 In reality, the state provides support for and interferes with family life in many different ways, from tax and benefits, to maternity and baby and child health services, to the provision of universal education, to support and accommodation for parents and families in need, to shared parenting and alternative care for children unable to live with their families of origin.

In its General Comment on children’s rights in early childhood, the UN Committee on the Rights of the Child affirms that ‘a young child’s parents play a crucial role in the achievement of their rights, along with other members of [the] family’. It signals that ‘appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities’, as required by Article 18 of the Convention on the Rights of the Child, includes economic and social policies relating to taxation and benefits, housing, working hours, health services, parent education and support in the home.95 In other words, the state has an expansive role in protecting children’s rights within their families.

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The 2010 General Election manifestos of the UK’s three main political parties promised wide-ranging support for families. All three parties pledged, to a greater or lesser extent, to increase arrangements for parental leave and flexible working (including, in the Labour and Liberal Democrats manifestos, for grandparents). Childcare provision was a staple promise, as were improvements in tax credits and “rewards” (for married couples and those in civil partnerships – Conservatives’ manifesto). All three promised action on Internet safety and harmful advertising to children: only one party, the Liberal Democrats, made a specific pledge to reduce child maltreatment (70% reduction by 2030). The Conservatives promised ‘a new approach to help families with multiple problems’96 whilst the Labour Party pledged ‘no-nonsense action to tackle the problems caused by 50,000 dysfunctional families’.97 No description of “dysfunctionality” is given; nor is there any explanation as to how such families were counted. In our roundtable on children’s rights and the family, a worker from a parenting organisation warned against targeting people on the basis of perceived inadequacy: Creating stigma and focusing on need causes a defence reaction … I don’t think people want to be among the group of people who need the help the most.

Still under the ‘helping families stay strong’ banner, the Liberal Democrats promised to make the Convention on the Rights of the Child part of UK law, and end the detention of children for immigration purposes. And the Conservatives promised to ‘make Britain the most familyfriendly country in Europe’.98 There were even more pledges in other parts of the manifestos – giving the strong message

Box 12: Family support: not a modern invention Children’s allowances, the precursor of today’s Child Benefit, were first introduced in 1945; local authorities were first given duties relating to health visiting and home helps in 1968; and families with dependent children and pregnant women were first given priority need status in homelessness legislation in 1977. Many highly valued public amenities – including parks, libraries and swimming pools – date back to the nineteenth century. “Baby farming” was first regulated in 187299 and the modern child protection system, although coming later than state intervention for the protection of animals, has its roots in the Prevention of Cruelty to, and Protection of, Children Act 1889.

that each of the three main political parties is committed to significant state intervention in, and on behalf of, the family.

That only one of the three parties’ 2005 election manifestos (Labour) included a dedicated section on the family is a sure sign of its growing political importance.

However, it would be a mistake to see the last two decades as a period of unparalleled state support for (or interference in) the family – see Box 12 above.

The widening of public policy interest in parenting, and the relationships between children and parents, is a significant recent development. In children’s social care, particularly in child protection, the child’s relationship with her or his parent has always been seen as pivotal. Now, the parent-child relationship dominates public policy debates about educational success and failure and antisocial behaviour and crime. In 2000, education law was

Doing right by children

amended to allow courts to imprison parents who fail to ensure children attend school regularly; and schools were first given the power to issue penalty notices (fines) under the Anti-social Behaviour Act 2003. CRAE has reported considerable gender bias in the application of these punitive sanctions, with mothers accounting for 78% of custodial sentences and 71% of fines.100 The Centre for Social Justice advocates access to parenting support programmes for every parent in the country, because: Parenting skills and the parent-child relationship are of fundamental importance in determining the outcomes and well-being of children.101 Demos argues for ‘a statutorily empowered National Institute for Clinical Excellence (NICE) for parenting policy’ which would validate parenting programmes eligible for public funding.102 Such a watchdog would help the state in its (suggested) new role of supporting the development of children’s character and capabilities: what’s ‘necessary for an autonomous, flourishing life’.103 Demos says the Government should aim to: ‘strengthen provision of support and information to parents to help them incubate character capabilities in their children’ as well as target support to those children who have ‘poorly performing parents’ and make better use of early years resources.104 The idea that parents, let alone the state, can seek to ‘incubate’ character traits in children was eloquently cast off by sociologist Laurie Taylor in a book he wrote with his son, Matthew Taylor, several years before Demos’s publication:

Yet while seeking to determine our children’s characteristics is an unwarranted infringement of their right to be the subject of their own life (and one for which they surely will not thank us), it is also, in an important sense, futile. The moral aesthetic of our lives concerns the way we carve our own unique history from the raw material and the tools we are handed by our inheritance, our circumstances and fate. Our task as parents is to create the raw material, and to teach our children as best we can how to use the tools, it is not to carve out the shape of that life before it has even begun. ‘What are children for?’ They are for being who they (not we) uniquely are, for living their own lives, for creating their own stories.105 Section 1 described six overarching strengths of a children’s rights approach. International standards applying to the family, including those required by the Convention on the Rights of the Child, point to at least five fundamental principles • Parents and family life are fundamental to children’s well-being and positive development • Parents play a unique and vital role in promoting and protecting the rights of their children, consistent with the child’s evolving capacities • The needs, rights and views of children must always be considered separately in family policy and interventions • In administrative and judicial proceedings, where a child’s rights are in conflict with their parents’, the child’s rights must always prevail • A child deprived of family life is especially vulnerable and is entitled to special care and protection.

PRINCIPLE 1: Parents and family life are fundamental to children’s well-being and positive development Parents’ rights and responsibilities feature very strongly in the Convention on the Rights of the Child. The parentchild relationship is seen as crucial to children’s wellbeing and parents can provide vital protection from a wide range of dangers. For example, the UN Committee on the Rights of the Child refers to the ‘general psychological and emotional assistance’ which parents can offer children subject to criminal proceedings.106 16 of the 40 substantive articles of the Convention on the Rights of the Child refer to parents, and the word ‘family’ appears 19 times. Whilst children’s rights are often presented as a destructive force drawing a wedge between children and their parents, there is absolutely nothing in the Convention that would support this view. In an article celebrating 20 years of the Convention, NCB’s Deputy Chief Executive, Barbara Hearn, said it was ‘time to put the record straight’ and explained: By ratifying the Convention, we as a nation explicitly committed ourselves to supporting parents in their special role, rather than undermining them.107 Unfortunately, public and media conceptions of children’s rights are still dominated by fear and panic about empowered children divorcing their

6. CHILDREN’S RIGHTS AND THE FAMILY 31

Box 13: Extract from Finland’s Child Custody and Right of Access Act 1983 Section 1 – Child custody

parents, running amok in classrooms and threatening their local communities. These caricatures are left unchecked in a public education vacuum. In the 20 years since the UK ratified the Convention, the Government itself has published only a single booklet, and this went out of print 10 years ago. In Austria, the Government sent materials on the Convention to every single school; the Swedish children’s ombudsperson provides awareness-raising and training for local municipalities; and the Finnish Ministry of Justice has included the Convention in its training of family court judges. In Cyprus, every November a delegation of children gets to the meet the President as part of Children’s Week and a press conference is held to inform the public of progress in implementing children’s rights. When Sweden banned smacking in 1979, it printed information on milk cartons and sent a 16-page colour leaflet to every household with children and to parenting organisations.108 In an article for a Fabian Society publication, Mary Riddell had this to say about the former Labour administration: For such a child-centred administration, Labour is coy to the point of omerta about young people’s rights.

The UN Convention on the Rights of the Child is the most universally accepted human rights prescription in history, and the least arid. Its articles cover happiness, love, understanding and freedom – the cornerstones of a good childhood.109

(1) The objectives of custody are to ensure the well‑being and the balanced development of a child according to his individual needs and wishes, and to ensure for a child close and affectionate relationships in particular with his parents.

PRINCIPLE 2: Parents play a unique and vital role in promoting and protecting the rights of their children, consistent with the child’s evolving capacities The Convention sets the legal parameters of the parent-child relationship, stressing the child’s status as an individual with his or her own feelings, views and interests whilst at the same time depending enormously on parents for his or her survival and healthy development. The UN Committee explains in its General Comment on implementing rights in early childhood: Babies and infants are entirely dependent on others, but they are not passive recipients of care, direction and guidance … Newborn babies are able to recognize their parents (or other caregivers) very soon after birth, and they engage actively in non-verbal communication.

Under normal circumstances, young children form strong mutual attachments with their parents or primary caregivers. These relationships offer children physical and emotional security, as well as consistent care and attention. Through these relationships children construct a personal identity and acquire culturally valued skills, knowledge and behaviours. In these ways, parents (and other caregivers) are normally the major conduit through which young children are able to realize their rights.110 The Convention describes four broad parental functions: to secure the necessary conditions for the child’s survival and development (Article 27); to promote

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(2) A child shall be ensured good care and upbringing as well as the supervision and protection appropriate for his age and stage of development. A child should be brought up in a secure and stimulating environment and receive an education that corresponds to his inclinations and wishes.

(3) A child shall be brought up with understanding, security and gentleness. He shall not be subdued, corporally punished or otherwise humiliated. The growth of a child towards independence, responsibility and adulthood shall be supported and encouraged.

Section 2 – Right of access (1) The objective of the right of access is to ensure a child the right to maintain contact and meet with the parent with whom he no longer resides.

(2) The parents of a child shall, in mutual understanding and keeping the best interests of the child foremost in mind, strive to the fulfillment of the purpose of the right of access in accordance with the principles provided in section 1.

Section 4 – Duties of a custodian (1) The custodian of a child shall ensure his well‑being and development, as provided for in section 1. For this purpose the custodian shall have the authority to make decisions on the care, upbringing and place of residence of a child and on other matters relating to the person of the child.

(2) Before making a decision on a matter relating to the person of a child, a custodian shall discuss the matter with him, if this is possible in view of the age and stage of development of the child and the nature of the matter.

When making the decision the custodian shall give due consideration to the opinion and wishes of the child.

(3) The custodian shall represent a child in matters relating to his person, unless otherwise provided by law.

Doing right by children

We see value in parents being given a short leaflet when they register the birth of their child, providing an introduction to the meaning of [parental responsibility] and what this means in practice.

Family Justice Review interim report, 2011111 Box 14: The child’s legal status – a cause for confusion

and uphold children’s best interests (Article 18); to give appropriate direction and guidance about the exercise of rights, consistent with the child’s evolving capacities (Article 5); and to give due weight to the child’s views in all matters affecting them (Article 12).

The concept of evolving capacities is enshrined in the common law and is fundamental to any understanding of the Convention. This sees children’s mental and physical capacities changing and growing over time. The immense capacities of babies and very young children are increasingly recognised, as the above extract from the UN Committee’s General Comment shows. In this context, capacity is not seen through the traditional lens of individuals being able to act autonomously but witnessed in the child’s everyday interactions such as when they communicate attachment and recognition and express hunger, fear and loneliness. This respect and understanding for young children’s capacities is incredibly important in the delivery of child protection services, making direct communication and engagement with the baby or young child natural and routine. A child who is not recognised as a sentient human being is much easier to ignore.

Children’s dependency on their parents changes over time and is affected by a multitude of factors, including the child’s age and maturity, parental or child illness or disability, abusive treatment and separation. The point was made in both the expert advisory group and the family roundtable that thousands of children are separated from their parents in circumstances not usually seen to be injurious to the child: there are 10 times more children currently attending independent (fee-paying) boarding schools than there are looked after by local authorities in

• Parents are permitted to change the name of their child by deed poll up to the child’s 18th birthday: from the age of 16, the child must also give his or her consent (this applies also to children subject to an adoption order)112 • A person is entitled to information from the Human Embryology and Fertilisation Authority about fertility treatment and donor conception relating to their birth – but only from the age of 18 or 16 if they plan to get married and wish to find out if they are related to their prospective spouse113 • Parents can rely on the defence of “reasonable punishment” if charged with common assault or battery – up to the child’s 18th birthday114 • A child of any age can apply to the High Court for leave to make an application for a Section 8 Children Act 1989 order relating to residence and contact (parents do not have to seek the court’s permission to commence proceedings)115 • An adoption order can be made in respect of a child up to their 19th birthday: there is no requirement for the consent of the child to be obtained before a court can make such an order116

children’s homes or held in custody. National standards and primary and secondary legislation promote contact between children and parents in boarding schools and children’s homes respectively, and the Code of Practice issued under the Mental Health Act 1983 requires ‘ageappropriate … facilities for visits from parents, guardians, siblings or carers’.123 There is no equivalent legal or policy provision for children held in custody.

• Parents are required by law to ensure their child of compulsory school age receives efficient full-time education suitable (a) to his age, ability and aptitude, and (b) to any special educational needs he may have, either by regular attendance at school or otherwise.117 From 2013, education and training up to the age of 17 will become compulsory and penalties will apply directly to children aged 16 and above; from 2015, the compulsory upper age limit will increase to 18118 • Children have no legal right to be consulted or to exercise choice over which school they attend (including whether this is a “special” school or a fee-paying boarding school) or whether or not they are home educated • Only a parent has the right to appeal a child’s school exclusion; unless the student is aged 18 or over119 • Parents have the right to withdraw their child from religious education up to the age of 19119a • Parents have the right to remove their child from sex education in school up to the age of 19120 • Children who infringe the law are considered to be fully responsible from the age of 10 years121 • A child is not permitted to win an animal as a prize (e.g. goldfish) until he or she is 16 unless he or she is accompanied by an adult, his or her parent gives consent or the arrangement is made within ‘a family context’.122

Another point often raised in discussions during the preparation of this publication is the powerful connection many children in care have with their parents, and the lengths they will go to maintain relationships deemed by professionals to be abusive. There is no easy answer to this though a rights-based approach demands sensitive dialogue with the child in order to understand their views and feelings and therefore come to a more accurate

6. CHILDREN’S RIGHTS AND THE FAMILY 33

Case study Colchester and Tendring Women’s Refuge

assessment of risk. Paternalistic attitudes and adult fears can cause children great distress, making difficult times even more unbearable.

England does not have a written constitution, nor does it spell out in domestic law the roles and responsibilities of parents or the rights of children vis-à-vis their parents.

Besides the Human Rights Act, the only piece of legislation explicitly promoting ‘the value of family life’ is that dealing with sex education in schools.124 The Children’s Society’s Good Childhood Inquiry advocated ‘a positive statutory basis for the role of a parent’, explaining that this would give: … a clear message that caring for children is not a completely private affair, only to be interfered with when things go wrong, but that parenting is an important commitment to a child that needs to be positively supported and recognised by society and in law.125 Legislation relating to the child’s legal status and the roles and responsibilities of parents does not consistently reflect the principles and provisions of the Convention on the Rights of the Child – see Box 14 on previous page.

Primary school children can be arrested, held in a police station overnight and sent to custody, yet the law gives them no say in whether their name is changed; requires them to obtain parental consent before buying a hamster or guinea pig; and sees their education as a contract between parents and the school. These contradictory messages could be usefully reviewed in the process of developing a statutory framework for parenting that upholds children’s rights.

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PRINCIPLE 3: The needs, rights and views of children must always be considered separately in family policy and interventions One of the dangers of the prevailing policy emphasis on the family is that children will be (further) pushed into the shadows. It is essential that interventions in the family – be this national policy or the delivery of statutory services or voluntary sector programmes – continue to give prominence to the child’s needs and perspective. This is right and just – children are individuals after all; it is also the only way of making sure services and interventions work for children.

Keeping a focus on the child is as important in the delivery of universal services which support families (libraries, leisure provision, health services and education) as it is in the provision of high-level interventions where there are concerns about a child’s welfare.

Three legal cases stand out as showing a strong appreciation of the distinct rights and interests of children within the family: these are set out on pages 35 – 36.

Colchester and Tendring Women’s Refuge supports women and their children who have suffered domestic abuse. It offers crisis accommodation and outreach support to help them make independent decisions about their future. The refuge was established in 1977 and has been providing children’s services since 1990.

Children’s rights have always been part of the core values and principles of the Children’s Department which supported 194 children in 2009/10.

The Children’s Department uses a variety of ageappropriate ways to encourage children to express their views. This requires staff to be sensitive and knowledgeable of each child’s individual needs.

Implementation of Article 12 rights includes facilitating conversations with younger children throughout the day, through to holding fortnightly meetings with the older children to discuss activities they would like to be involved in and issues of concern to them. Each child has their own key worker to whom they can talk.

This can often be the first time a child has had the opportunity to express their feelings and concerns about what they have experienced with an adult who is prepared to listen and respond to their needs.

Regular satisfaction questionnaires are given to both mothers and children: these have consistently rated services as being ‘excellent’ or ‘good’. Evaluation forms are also given to mothers and children at the end of their stay in the Refuge, when children again have an opportunity to express their views about the children’s services they were offered. This enables the Refuge to continually monitor and re-evaluate its service.

Doing right by children

I had to grow up since the age of 12 being the parent for this family.

They saw me as functioning fine … They saw me as working and coping, working fine. They just ignored me completely.

16 year-old in research for the Office of Children’s Commissioner, 2011125a Box 15: The invisible child – messages from research There is compelling evidence that children’s perspectives assessed; and a girl who told her teachers her father was and needs are systematically overlooked by professionals physically abusing her but then did not report her father’s working with families, even when the aim of these services is later sexual abuse because no action had been taken to to protect and uphold the rights of the child. protect her from his earlier violence126 • Ofsted’s analysis of 67 serious case reviews – conducted when a child dies and abuse or neglect was known or suspected, or when a child suffers a potentially lifethreatening injury or serious and permanent physical or mental impairment or other serious harm – between April and September 2010 shows a chronic pattern of children not being seen, not being listened to and not being considered as individuals worthy of serious and sustained attention. Four previous assessments of serious case reviews, going back to 2007, came to the same conclusion: ‘Above all, previous Ofsted reports have identified that too often the focus on the child was lost’. This latest report provides a deeply upsetting catalogue of children left unnoticed and unheard: a three-year old distressed sibling of a baby who died of non-accidental injuries who was not asked why she was so unhappy; a disabled child who was locked in her bedroom overnight; a teenager shot by his mum who had not been seen earlier by professionals even though a community psychiatric nurse had made a referral to children’s services – the mother had reassured social workers that no action was necessary; children who were only able to disclose neglect, physical and sexual abuse many years after it started because nobody had sought to spend time with them away from their oppressive home environment; the failure of agencies to consider the needs, rights and views of a teenage girl whose seven older siblings had been removed from her mother’s care – professionals had focused on the mothers’ mental health difficulties and the child’s needs, and her role as a carer for her mother, had never been separately

• For many years, children have been seen as the “hidden victims” of domestic violence. Recent research undertaken for the NSPCC about services offered to children and families experiencing domestic violence found that police officers rarely communicated directly with children. One specialist supervising officer explained: ‘…support to the children? No, no definitely not, because when you communicate with the family you communicate with the adults, generally speaking, and you don’t communicate with the children. The only time that you communicate with the children, generally, is when they are suspects … or they’re witnesses’. The researchers recommend that ‘Conceptualising children and young people as victims of domestic violence may assist police officers to acknowledge and engage with their needs more fully’.127 The Government has promised a consultation on extending the definition of domestic violence to include victims under the age of 18 which could help make children’s suffering much more visible128 • Awareness is increasing about the views and experiences of children who have a parent who misuses alcohol or drugs. Nevertheless, ChildLine reports that ‘the focus of treatment and services is still on the user and not on the wider family’. In 2008/09, 6,312 children spoke with a ChildLine counsellor about parental alcohol or drugs misuse (the majority, 64%, of these calls concerned alcohol misuse). 21% of child callers concerned about parental alcohol or drugs misuses were aged 11 or under. Physical abuse was by far children’s biggest concern connected with their parents’ alcohol and drugs misuse.129

Right to be heard in family proceedings130 The Court of Appeal in 2005 held that three boys, aged 13, 15 and 17, could instruct their own lawyer in proceedings brought by their separating parents who were in dispute about which parent the boys should live with. The boys argued successfully that their views should be heard directly, in line with Article 12 of the Convention on the Rights of the Child.

Lord Justice Thorpe explained the role of the guardian and his or her powers to instruct a solicitor on behalf of the child, noting that: ‘[The] overall approach is essentially paternalistic. The guardian’s first priority is to advocate the welfare of the child he represents.

His second priority is to put before the court the child’s wishes and feelings. Those priorities can in some cases conflict. In extreme cases the conflict is unmanageable.’ He continued: Although the tandem model has many strengths and virtues, at its heart lies the conflict between advancing the welfare of the child and upholding the child’s freedom of expression and participation. Unless we in this jurisdiction are to fall out of step with similar societies as they safeguard Article 12 rights, we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare. … If direct participation would pose an obvious risk of harm to the child arising out of the nature of the continuing proceedings and, if the child is incapable of comprehending that risk, then the judge is entitled to find that sufficient understanding has not been demonstrated. But judges have to be equally alive to the risk of emotional harm that might arise from

6. CHILDREN’S RIGHTS AND THE FAMILY 35

Historically the voices of children have often been too weak to be heard, often with disastrous consequences.

CAFCASS children’s rights policy, 2008

denying the child knowledge of and participation in the continuing proceedings.

There was no conflict between the Family Proceedings Rules’ requirement that children be entitled to separate representation only if they have sufficient understanding to participate: In my judgment the Rule is sufficiently widely framed to meet our obligations to comply with both Article 12 of the United Nations Convention and Article 8 of the ECHR, providing that judges correctly focus on the sufficiency of the child’s understanding and, in measuring that sufficiency, reflect the extent to which, in the 21st Century, there is a keener appreciation of the autonomy of the child and the child’s consequential right to participate in decision making processes that fundamentally affect his family life.

independent schools that since the corporal punishment of children is central to their religious beliefs, to prohibit this in private schools is an unjustifiable interference with their right to practise their religion. The Law Lords found the ban on corporal punishment in schools to be legitimate and proportionate. Baroness Hale expressed exasperation that children had been missing their own advocates in the courtroom: This is, and has always been, a case about children, their rights and the rights of their parents and teachers. Yet there has been no-one here or in the courts below to speak on behalf of the children … The battle has been fought on ground selected by the adults. This has clouded and overcomplicated what should have been a simple issue.

She described the criteria used to judge whether beliefs qualify for protection:

Lord Justice Wall fully endorsed the judgment, stressing the importance of children having the satisfaction of knowing the judge has properly heard their views:

[They] must attain a certain level of cogency, seriousness, cohesion and importance; be worthy of respect in a democratic society; and not incompatible with human dignity.

I do not agree with the judge that the only advantage from independent representation was “perhaps the more articulate and elegant expression of what I already know”.

That analysis overlooks, in my judgment, the need for the boys on the facts of this particular case to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented and their perspective fully advanced to the judge.

Allowing some schools to inflict corporal punishment, at the behest of parents, would be in clear breach of children’s rights: How could it be justified in terms of the rights and protection of the child to allow some schools to inflict corporal punishment while prohibiting the rest from doing so? If a child has a right to be brought up without institutional violence, as he does, that right should be respected whether or not his parents and teachers believe otherwise.

Parents’ religious beliefs cannot trump children’s fundamental rights131

The right to receive confidential sexual health advice132

In 2005, the House of Lords rejected a claim from a group of Christian head teachers, teachers and parents of four

Sue Axon, a mother of five children, sought to persuade the High Court that Government guidance to doctors

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and other health professionals on giving advice to under 16 year-olds on contraception, sexual and reproductive health without parental knowledge was unlawful. She had had an abortion herself 20 years ago and still deeply regretted it. Her two youngest children, both girls, were at the time of the proceedings aged 12 and 15.

Mrs Axon argued that, as parents are legally responsible for children, and they have children’s welfare at heart, children’s right to confidentiality should be limited.

Mr Justice Silber relied heavily on the Gillick judgment and European Court jurisprudence, including the muchquoted Yousef v Netherlands, which asserted: ‘in judicial decisions where the rights under article 8 of the parents and those of the child are at stake, the child’s rights must be the paramount consideration’.

He also considered the Convention on the Rights of the Child, whose ratification came after Gillick: The ratification by the United Kingdom of the United Nations Convention on the Rights of the Child … was significant as showing a desire to give children greater rights. The ECHR and the UNC [sic] show why the duty of confidence owed by a medical professional to a competent young person is a high one and which therefore should not be overridden except for a very powerful reason. In my view, although family factors are significant and cogent, they should not override the duty of confidentiality owed to the child.

The judge said Mrs Axon failed to establish that her rights under Article 8 of the ECHR, the right to respect for private and family life, were unjustifiably breached by the absence of a duty on health professionals to provide her with information about her daughter’s sexual health.

Doing right by children

PRINCIPLE 4: In administrative and judicial proceedings, where a child’s rights are in conflict with their parents’, the child’s rights must always prevail The “paramountcy principle” can be traced back to the Guardianship of Infants Act 1886, wherein Section 3 required the court to regard the welfare of the infant (then defined as a person up to the age of 21) as the first and paramount consideration. Interestingly, 10 years before the UN passed the Convention on the Rights of the Children it stressed in the Convention on the Elimination of All Forms of Discrimination against Women that men and women have common responsibility for the upbringing of children and ‘the interest of the children is the primordial consideration in all cases’.133 In a speech to a Families Need Fathers conference, the country’s leading family judge, Lord Justice Wall, explained the damage that can be done to children by parents in residence and contact “battles”: Parents, in my experience, often find it difficult to understand that children both love and have a loyalty to both parents. There is nothing worse, for most children, than for their parents to denigrate each other.

To use the trite phrase, each parent represents 50% of the child’s gene pool. If a child’s mother makes it clear to the child that his or her father is worthless – and vice versa – the child’s sense of self-worth can be

irredeemably damaged. Parents simply do not realise the damage they do to their children by the battles they wage over them.134 Indeed, the year before Lord Justice Wall had, in what he admitted to be an unconventional move, cited four lines of Phillip Larkin’s famous poem This be the verse in a judgment concerning a nine yearold boy suffering serious harm at the hands of two severely acrimonious parents.135 The interim report of the Family Justice Review observes growing demand for the automatic and equal split of children’s time between parents after they have separated. This proposal is rejected on the grounds that ‘The welfare of children must always come before the rights of parents’.136 Such a development could have the (unintended) consequence of reproducing outdated attitudes of children being the property or chattel of their parents.

Where parents and children have not been able to agree arrangements themselves, and the state becomes involved, it is imperative that the focus is on securing what is best for the child, taking into account all of his or her rights and the impact of different actions and decisions on each of these.

Passing judgment in the Supreme Court in November 2009, Lord Kerr explained there are no freestanding parental rights to residence or contact disconnected from what is best for the child. He said: ‘All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s

best interests. This is the paramount consideration.

It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim’.138 Traditionally, discussions about the paramountcy of the child’s welfare see the child’s needs and rights pitted against those of the parents. A recent Supreme Court judgment – see below – considered children’s rights vis-à-vis the state’s immigration function – and the welfare of the children prevailed. The judgment could have very positive implications for children whose parents are in contact with the criminal justice system, particularly those in prison. If the child’s best interests should be part of the decision-making process for determining whether parents can be forcibly removed, it follows that this must also be considered when sentencing parents. Indeed, the Sentencing Council already advises courts sentencing a parent for the offence of assault of a child to ‘take into account the impact that a custodial sentence for the offender might have on the [child] victim’.

In particular, ‘[i]n considering whether a custodial sentence is the most appropriate disposal for an offence of assault on a child the court should take into account any available information concerning the future care of the child’.139 One of the recommendations made to the UN Committee by CRAE following its comprehensive review of the implementation of the Convention

6. CHILDREN’S RIGHTS AND THE FAMILY 37

You just want to be treated the same and feel the same as everyone else.

16 year-old in care, 2009137

in 2008 was that ‘When sentencing parents, courts should be required to have due regard to the best interests of affected children’. This recommendation was endorsed by 100+ nongovernmental organisations and was reflected in the UN Committee’s concluding observations – see Box 18 overleaf.

Box 16: The impact of parental removal on children’s rights140 In February 2011, the Supreme Court allowed an appeal concerning a mother of 12 and 9 year-old children due to be deported to Tanzania. It was unanimously agreed that the Court of Appeal had given insufficient priority to the well-being of the children, both British citizens, should they be forced to leave the country with their mother or be separated from their mother and have to live with their father (a British citizen) in this country. The Court focused on Article 3(1) of the Convention on the Rights of the Child, the requirement that in all actions concerning the child his or her best interests be a primary consideration and Article 12, the child’s right to have his or her views given due weight. That the parents had conceived knowing the mother’s immigration status was not settled, and the mother’s asylum history was ‘appalling’, should not be held against the children, the Court held. As Lord Hope explained: ‘… considerations of that kind cannot be held against the children in this assessment. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible’.

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PRINCIPLE 5: A child deprived of family life is especially vulnerable and is entitled to special care and protection Article 20 of the Convention entitles all children who are temporarily or permanently deprived of their family environment to special protection and assistance.

Rachel Hodgkin and Peter Newell explain: The use of the word “entitled” stresses the obligation the State has towards children who cannot be cared for by their parents. It goes to the heart of the duty all societies owe children – that if parents cannot meet children’s needs then children have a moral claim on the rest of us.141 The rights of children living apart from their families are very frequently compromised. The love, support and stability of family life, which underpins the realisation of children’s rights, are often no longer available to these children, or at least greatly diminished.

Children not living with their families because of abuse or neglect or poverty or infringing the law will have already encountered extensive violations of their rights – see Box 18 below. Being in the care or custody of the state then brings its own challenges and risks, as reports from the Children’s Rights Director and Prisons Inspectorate frequently testify.142 Substantial efforts have been made by central and local government over the past 15 years to uphold the rights of children looked after by the state. This began with the review of safeguards for children living away from home

Box 17: Characteristics of two groups of children living away from home Looked after children143 Official statistics show: • 64,000 children were looked after on 31 March 2010 • 52% of these children were looked after because of abuse or neglect • 15% of school leavers who had been looked after for a year or more achieved five good GCSEs (compared with 70% of the general child population) • 72% of children in residential care are clinically diagnosed with a mental health disorder.

Children in custody144 Of 200 children sentenced to custody in the second half of 2008: • 48% had been excluded from school • 39% had been subject to abuse or neglect • 28% had witnessed domestic violence • 27% had been in local authority care • 20% had self harmed • 13% had suffered the death of a parent or sibling • 11% had attempted suicide.

established by the Conservative Government in 1996 – see page 19 – and was famously given force by the “Dobson letter” to local authorities two years later. Frank Dobson, then Secretary of State for Health, explained in his letter that ‘no-one should doubt that there are good grounds for the serious and widespread criticism of social services for children’ and told councils: [You have] a legal and moral duty to try to provide the kind of loyal support that any good parents would give to their children.145

Doing right by children

Box 18: “Alternative care” recommendations of the UN Committee on the Rights of the Child, 2008146 General action to protect the rights Take into account the Committee’s recommendations issued at the Day of General Discussion on children without parental care. of children without parental care Poverty and entry into care

Avoid children being taken into care as a result of parental low income.

Right to be heard and complaints

Take into account the views of children in all measures, and provide them with child-accessible complaint mechanisms.

Monitoring of care

Monitor the status of children placed in kinship homes, foster care, pre-adoptive homes and other care institutions, including through regular visitations.

Right to family life of disabled children

Assess why so many children with disabilities remain in long-term institutional care, and review their care and treatment in these settings.

Preparation for adulthood

Provide training and education programmes to prepare children in care and institutional care for adult life.

Family contact

Facilitate the initiation of contact proceedings for all children separated from parents and siblings, including those in long-term residential care.

Advocacy in education

Ensure children without parental care have an advocate to actively defend their best interests in school.

Children deprived of family life through parental imprisonment

Ensure support to children with one or both parents in prison, in particular to maintain contact with the parent (unless contrary to the child’s best interests) and prevent stigmatisation and discrimination.

Migrant children deprived of family life

Intensify efforts to ensure that the detention of asylum-seeking and migrant children is always used as a measure of last resort, and for the shortest appropriate period of time.

Ensure there are adequate safeguards in place when children are returned to their originating country, including an independent assessment of the conditions upon return, and of the family environment awaiting the child.

Ensure that the UK Border Agency appoints specially-trained staff to conduct screening interviews of children.

Consider the appointment of guardians to unaccompanied asylum-seekers and migrant children.

Provide disaggregated statistical data in the next periodic report on the number of children seeking asylum, including those subject to age disputes.

Give the benefit of the doubt to children in age-dispute cases.

Seek guidance from experts when determining age in disputed cases.

Consider amending section 2 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 to allow for an absolute defence for unaccompanied minors entering the UK without valid immigration documents.

Children with mental health Provide additional resources and support for children with mental health difficulties, including a focus on children deprived of parental care … difficulties deprived of parental care Children who infringe the law

Fully implement international standards of juvenile justice [including] the UN Rules for the Protection of Juveniles Deprived of their Liberty.

Establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle.

Ensure that, unless in his or her best interests, every child deprived of liberty is separated from adults in all places of deprivation of liberty.

Provide a statutory right to education for all children deprived of liberty.

Adoption

Strengthen efforts to ensure that children are adopted as speedily as possible, in line with their best interests and taking into account factors such as cultural background.

Sale, trafficking and abduction

Provide the necessary resources to effectively implement the Anti-Trafficking Action Plan.

Ratify the Council of Europe Convention on Action Against Trafficking in Human Beings.

Ensure child protection standards for trafficked children meet international standards.

Rehabilitation

Provide access for child victims of abuse to adequate services for recovery, counselling and other forms of reintegration.

6. CHILDREN’S RIGHTS AND THE FAMILY 39

A FRAMEWORK FOR ASSESSING LAW, POLICY AND PRACTICE AGAINST CHILDREN’S RIGHTS – THE FAMILY Whilst too many looked after children continue to report inadequate care and treatment, in policy terms their status as a group entitled to additional protection is not in denial.

Local councils are now expected to produce pledges for the children they look after, developed in consultation with children; to support consultative mechanisms (Children in Care Councils); and ensure effective complaints procedures, access to independent advocates and robust care reviews. The development of the independent reviewing officer is particularly positive, with its recently enhanced role to ensure that children are informed of their rights to initiate legal proceedings and that local authorities consistently give due consideration to their wishes and feelings.147 There is even a “Tell Tim” section of the Department for Education’s website for children in and leaving care (and others) to give advice to the Children’s Minister, Tim Loughton, about what works and doesn’t work and the changes that need to happen.148 Notwithstanding these positive developments, the UN Committee on the Rights of the Child made 27 recommendations relating to children in “alternative care” following its 2008 examination of the UK’s progress in implementing the Convention. These are set out in Box 18 on the previous page. The recommendations concern children who are looked after as well as those in a variety of other precarious situations – children seeking asylum, those held in custody and disabled children in residential schools for example. The Convention does not distinguish between groups of children deprived of family life: all of these children are entitled to special protection and assistance, tailored to their individual circumstances and needs.

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The framework below necessarily simplifies inter-connected children’s rights values and extensive legal obligations under international human rights law. It is not to be read as a complete summary of human rights requirements.

In providing this framework, we aim to establish some broad “rules” for the development of law and policy and for direct work with children which would bring us a lot closer to a consistent, child-centred, rights-respecting approach.

Q How does this action or decision show we value and care about childhood?

Q How does this action or decision affirm the child’s dignity and integrity?

Q How does this action or decision recognise and build upon children’s entitlements? What rights are particularly to the fore in this situation? How might these be (better) protected?

Q How does this action or decision recognise and support children’s agency, their choices and solutions?

Q How will this action or decision be explained to the child and how could it be challenged? Has the child been informed of his or her rights and how they apply to this particular situation?

Q How does this action or decision enhance parents’ capacity to promote and protect the rights of their children?

Q What do we know about the child’s wishes and feelings, concerning possible actions and decisions affecting him or her as an individual as well as policy and service development?

In what ways has the child contributed to the assessment of his or her needs?

Q Where there is conflict of rights, are children’s rights given paramountcy over the rights of their parents?

Q In what ways are children deprived of family life being given special care and assistance?

How are we upholding the child’s right to maintain relationships with his or her family?

Q How does this action or decision contribute to wider respect for human rights?

Q How does this action or decision respect the fundamental importance of parents and family life to children’s well-being and positive development?

Doing right by children

7.

CHILDREN’S RIGHTS AND JUVENILE JUSTICE … we either understand that children are children–wherever they are, whatever they have done – or we do not. If we understand that, we need to spell out, not only by exhortations and undertakings but in the detail of our legislation, that they shall at all times be treated as children, and that paramount in our considerations should be the best interests of the child.

Lord Judd, during House of Lords debate on the purposes of sentencing children, 2008148a

… the young, owing to their early stage of human development, require particular care and assistance with regard to physical, mental and social development, and require legal protection in conditions of peace, freedom, dignity and security.

United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985

Justice is … being treated right by adults.

Dudley Decision Making Kids, 2009149

Is having your rights respected important to you?

It makes you feel better 16 year-old boy It just makes you feel more happier inside and then you don’t feel depressed or nothing 14 year-old girl How do feel if your rights aren’t respected?

Killing them 14 year-old girl Fuck everyone basically 16 year-old boy CRAE focus group on children’s rights and juvenile justice, 2011

Where we are now Box 19: The disappearance of welfare from juvenile justice law, policy and practice The adoption of the United Nations Convention on the Rights of the Child in 1989 and its ratification by the UK government two years later came at a time of considerable progress in youth justice. The convention itself set clear standards of treatment, in terms of both process and disposals, which appeared at the time to provide positive endorsement of the direction of travel of that period. However, the period since the early 1990s has been one of retrenchment in youth justice, with an increasingly punitive public and political mood being reflected in legislation, policy and practice. Welfare concerns have virtually disappeared from the agenda in England.

Roger Smith, Professor of Social Work Research, De Montfort University, 2010150

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Nobody seems content with the juvenile justice system as it is.151 The Ministry of Justice says ‘[s]ome progress has been made in recent years’.152 In an equally subdued verdict, the Independent Commission on Youth Crime and Antisocial Behaviour states: As an overall judgment, the Commission considers that the returns in terms of crime prevention, reducing reoffending and helping children to deal with the issues that lead them into criminal behaviour remain unimpressive.153 Human rights assessments of law, policy and practice over the past 20 years show major fault-lines in how our country treats children who infringe with the law: In May 2011, the Prisons Inspectorate expressed disappointment that Peter Smallridge and Andrew Williamson, the two former directors of social services appointed to review restraint in child custody, believe that pain-compliant restraint in child custody is sometimes necessary. Its report to the Carlile public hearing stated firmly: ‘HMI Prisons does not accept that pain-compliance techniques should ever be used’.

The Inspectorate reports continuing high levels of restraint and force still being (unlawfully) used for noncompliance. There has been an overall improvement in staff using de-escalation though staff training for this is only provided in one young offender institution (YOI). The only mandatory training for staff in YOIs is control and restraint. The threshold for local authority investigation of children’s complaints ‘is generally higher than might be the case in other settings where children make allegations about adults caring for them’.154

The second inquest into the death of 14 year-old Adam Rickwood at Hassockfield secure training centre in 2004 concluded in January 2011, finding that the privately-run institution ran an unlawful regime and the YJB should have been aware of this.155 In December 2009, the European Committee for the Prevention of Torture urged the UK to discontinue pain compliant methods of restraint in juvenile establishments.

It particularly urged the prohibition of the “nose grip” (also known as the nose “distraction”).156 In November 2009, the parliamentary Joint Committee on Human Rights made nine recommendations in relation to children in the criminal justice system: the Government to refrain from creating more offences penalising children; the repeal of offences which have not led to prosecution; a review to establish why looked after children, Gypsy and Traveller children and children with autism are overrepresented in the criminal justice system; an end to the criminalisation of children exploited through prostitution; a welfare-based and child-rights orientated approach, particularly for very young children; the real reduction in the number of children detained; measures to address the over-representation of certain groups of very vulnerable children in detention; urgent action to ensure children and adults are never held together in detention; and the end of restraint techniques which rely on pain as they are ‘irreconcilable with the UN Convention’.157 In October 2008, the UN Committee on the Rights of the Child criticised the UK on the grounds that the best interests of children are not reflected in juvenile justice law and policy and made eight recommendations for protecting the rights of children in contact with the criminal justice system – see Box 20 overleaf. (All except one of these recommendations – the proposal that the use of detention as a last resort, as required by Article 37b of the Convention, be enshrined in domestic law – were made previously by the UN Committee following its examinations of the UK in 1995 and 2002).158

Doing right by children

Box 20: Juvenile justice recommendations of the UN Committee on the Rights of the Child, 2008166

Also in October 2008, the Council of Europe Commissioner for Human Rights released his report on the UK’s juvenile justice system. Thomas Hammarberg made 19 recommendations, including that the UK should: increase considerably the age of criminal responsibility; introduce a legal safeguard to ensure incarceration is used as a very last resort; cease sending children who breach an ASBO to custody; transfer all funding responsibilities for children in custody to local authorities ‘[so that] children in conflict with the law are kept within the child welfare system’; immediately discontinue restraint methods which aim to inflict deliberate pain on children; and ensure children in custody have access to complaints mechanisms.159 In May 2008, the UN Human Rights Council issued its report on the UK following its Universal Periodic Review.

The UK was described in the report as being the ‘biggest child incarcerator in its region’ and urged to ‘put an end to the so-called “painful techniques” applied to children’.160 A comprehensive assessment of the state of children’s rights in England co-ordinated by CRAE in 2007/08 for the UK’s examination by the UN Committee on the Rights of the Child culminated in 18 recommendations in respect of juvenile justice – see Box 20 overleaf. Over 100 non-governmental organisations supported these recommendations.161 In 2006, the Standing Committee for Youth Justice issued a scathing assessment of the treatment of children who infringe the law and issued seven headline recommendations: the primary focus of the juvenile justice system must be the prevention and reduction of offending by children already in trouble (as opposed to those who are seen to be “at risk” of offending); the use of ASBOs on children should be phased out; the age of criminal responsibility should be raised substantially; interventions (where required) for those above this new age of criminal responsibility should be delivered outside the criminal justice system; there should be a comprehensive review to ensure the treatment of children

who break the law is suitable to their stage of development and is distinct from adults; children’s offending should be dealt with by a totally different set of legislative procedures from adults; and there should be a statutory presumption against detaining children in custody.162 Also in 2006, the report of Lord Carlile of Berriew QC’s independent inquiry into the use of physical restraint, solitary confinement and forcible strip searching of children in prisons, secure training centres and local authority secure children’s homes drew attention to several aspects of children’s care and treatment which contravene human rights principles and obligations.163 In 2005, the European Social Rights Committee found the UK to be in breach of Article 17 of the European Social Charter because the age of criminal responsibility is ‘manifestly too low’. It said the ‘overall conditions in youth offender institutions are inappropriate’ and asked that the UK’s next report to the Committee describe developments to remedy this, giving particular attention to the provision of independent advocacy services and complaints procedures for children.164 In 2004, the follow-up investigation of progress since Sir William Utting’s 1997 review of safeguards for children living away from home restated that prison can never be a suitable environment for children, despite the efforts of the YJB and others. The report recommended the Government ‘undertake a fundamental review of the use and place of custody in society, and what the alternatives are’. It urged consideration of ‘small, mixed-sex units, which are geographically spread so that children are not placed too far from their home areas and so that they can experience a more normal environment during their formative adolescent years’ and said ‘Children in such units should have the same rights and access to universal services such as health and education as all other children’. The possibility of the then Department for Education and Skills holding responsibility for all children’s custody was also proposed.165

Best interests

Take all appropriate measures to ensure that the principle of the best interests of the child, in accordance with Article 3 of the Convention, is adequately integrated in all legislation and policies which have an impact on children, including in the area of criminal justice …

Human rights approach

Fully implement international standards of juvenile justice, in particular Articles 37, 39 and 40, and General Comment 10 on children’s rights in juvenile justice, the UN Standard Minimum Rules for the Administration of Juvenile Justice, the UN Guidelines for the Prevention of Juvenile Delinquency, and the UN Rules for the Protection of Juveniles Deprived of their Liberty.

Age of criminal Raise the minimum age of criminal responsibility responsibility.

Alternatives to detention

Develop a broad range of alternative measures to detention for children in conflict with the law.

Statutory principle

Establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle.

Separation from adults in detention

Ensure that, unless in his or her best interests, every child deprived of liberty is separated from adults in all places of deprivation of liberty.

Right to education

Provide a statutory right to education for all children deprived of liberty.

Juvenile courts Ensure that children in conflict with the law are always dealt with in the juvenile justice system and never tried as adults in ordinary courts, irrespective of the gravity of the crime they are charged with.

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 43

Box 21: Juvenile justice recommendations made by 100+ NGOs to the UN Committee on the Rights of the Child, 2008167 Inconsistency in age-based rights and responsibilities

The UK Government should undertake a review of age-based legislation to ensure that all of the protective rights in the Convention, particularly those relating to juvenile justice …, are fully applied in law and practice for all children (under-18s).

Best interests

The primacy of the best interests of the child should be enshrined in all laws relating to children, including in relation to juvenile justice …

Right to be heard

Children’s right to express their views and to have these views given due weight according to their age and maturity should be enshrined in all laws relating to children, including … juvenile justice

Right to privacy

Reporting restrictions relating to antisocial behaviour and civil and criminal (breach) proceedings involving children should be reinstated as a matter of urgency.

Sexual offences

The UK Government should commission an independent review of the number and circumstances of children who have been arrested and/or charged with new sexual offences under the Sexual Offences Act 2003, and the impact on individual children in these circumstances of contact with criminal justice agencies …

Deportation for offences committed as a child

No individual should face deportation for offences committed whilst a child.

Prosecuting children exploited through prostitution

Criminal law should be reformed so that children who are sexually exploited (engaged in prostitution) cannot be prosecuted (or threatened with prosecution) but instead receive appropriate assessment and services under the Children Act 1989.

Distinct juvenile justice system

The UK Government should commit itself to a distinct juvenile justice system, based on meeting the child’s needs and positive rehabilitation. Punishment must have no place in the juvenile justice system; proposals to include punishment as one of the statutory purposes of sentencing should be scrapped.

Age of criminal responsibility

The age of criminal responsibility in England should be amended to reflect the requirement of international human rights standards for a completely distinct approach to dealing with all juvenile crime.

Children not tried in crown court Children should not be tried as adults in crown courts (though the right to a jury trial should be retained).

Institutional race and class bias A national strategy must be introduced to tackle the institutional race and class bias across all aspects of the criminal justice system.

Custody threshold

A distinct children’s custody threshold should be introduced in law to ensure that only children who have caused (or could reasonably be expected to have caused) serious physical or psychological harm and who are a serious danger to others can be held in custody; and then for only the shortest period of time.

Rights protection for seventeen year-olds

Seventeen-year-olds should only ever be remanded to local authority accommodation. Safeguards in the Police and Criminal Evidence Act 1984 should be extended to 17-year-olds.

Indefinite and extended custodial sentences

Sections 226 and 228 of the Criminal Justice Act 2003 must be repealed without delay. These require courts to issue to children indefinite “detention for public protection” sentences (release is subject to satisfactory parole board review) and “extended detention sentences” (up to the adult level for a particular offence).

NB: Legislation passed in 2008 made these sentences discretionary rather than mandatory. This still not does not satisfy children’s human rights requirements, notably Articles 37 and 3 of the Convention.

Child-centred environments

Children should only ever be detained in child-centred environments which have a single joint aim: to provide positive rehabilitation and to meet the child’s needs. These environments must operate to the highest child care and human rights standards, be non-punitive and demonstrably distinct in culture and practice from prison establishments. All children in custody should have a statutory right to independent advocacy.

Parole process

Child specific mechanisms and safeguards must be introduced into the parole process. Children must be made aware of their right to legal representation in the parole process. The YJB must ensure that children are provided with enough opportunities to demonstrate their progress, and that their progress and risk are measured well enough to allow a meaningful decision to be made as to release on parole.

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Doing right by children

I think the respect is the important thing. As soon as you’re not respected, you just get angry and wound up and frustrated and then that just changes the whole atmosphere of everything.

Young person in contact with criminal justice system quoted in Children’s Workforce Development Council publication, 2010168

A rights-based approach to juvenile justice Box 22: Council of Europe child friendly justice guidelines 2010 “Child-friendly justice” refers to justice systems which guarantee the respect and the effective implementation of all children’s rights at the highest attainable level … It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity.169

Section 1 described six overarching strengths of a children’s rights approach. International human rights law and norms point to at least 10 governing requirements for juvenile justice law, policy and practice: 1. The response to children’s behaviour which infringes the law differs substantially, and must be distinct, from the response to adult offending.

2. The state’s response to children’s behaviour which infringes the law is part of a wider commitment to children’s well-being and positive development.

3. The response to children’s behaviour which infringes the law is always proportionate to their needs and circumstances and according to due process.

4. The best interests, human dignity and positive development of children guide all interventions and procedures: retribution and the deliberate infliction of suffering is absolutely rejected.

5. Children’s active role in society is consistently encouraged; and children’s views are heard and taken into account in all decision-making processes.

6. The unique role of parents and the importance of family life are consistently valued.

7. Children are only ever brought into contact with the criminal justice system as a last resort and according to due process.

8. Detaining children in child-centred secure facilities can only be justified by immediate and serious risk to public safety: the use of penal custody is absolutely rejected.

9. There are child-specific safeguards for children in secure facilities.

10. All those working with children are properly selected, trained, supervised and regulated for work with children.

The response to children’s behaviour which infringes the law differs substantially, and is distinct, from the response to adult offending Article 37c, Convention on the Rights of the Child 1989 Every child deprived of liberty shall be treated … in a manner which takes into account the needs of persons of his or her age.

Rule 2.2(a), United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult.

UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990 Article 5 The need for and importance of progressive delinquency prevention policies and the systematic study and the elaboration of measures should be recognized. These should avoid criminalizing and penalizing a child for behaviour that does not cause serious damage to the development of the child or harm to others. Such policies and measures should involve: (a) The provision of opportunities, in particular educational opportunities, to meet the varying needs of young persons and to serve as a supportive framework for safeguarding the personal development of all young persons, particularly those who are demonstrably endangered or at social risk and are in need of special care and protection; (b) Specialized philosophies and approaches for delinquency prevention …

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 45

‘Young offenders are children first and foremost and should be protected by all the agreed human rights standards for children’ reminded the Council of Europe Commissioner for Human Rights in 2009.170 Four decades earlier, Oxfordshire Children’s Officer, Barbara Kahan, strongly defended the child-centred proposals in the 1965 White Paper, drawing parallels with 19th century reforms such as the Factory Acts and the development of universal education. She observed a major change in public perception of children – ‘the gradual recognition that children are not small adults’ – and saw the proposals as stemming from earlier Liberal reforms:

the law demand much more than the current statutory framework – ‘to prevent offending and reoffending by children and young persons’172 – which could easily be applied to adults.

It is not revolutionary to suggest that the full processes of law are unnecessary to deal with many of the incidents of legal contravention by the young. It is a natural evolution from the recognition that an immature human being cannot be expected on all occasions to make mature judgments and act on them, even if he does “know right from wrong”, particularly when his natural guides and mentors, his parents, have not been able to give him what is necessary for his proper development.171

That Ministers sometimes go to remarkable lengths to deny that some children who commit offences are, indeed, children is an extreme rejection of their children’s rights obligations. However, numerous aspects of how we currently treat all children in contact with the criminal justice system fail to live up to internationally agreed standards: fundamentally, how we respond to children is barely distinguishable from how we respond to adults.

A children’s rights approach to juvenile justice demands that the needs and interests of children always determine law, policy and practice. An adult-based system that is adapted in a number of ways remains inadequate: children’s needs must permeate and define the whole system. And all children, right up to the age of 18 years, are guaranteed the protection of the Convention on the Rights of the Child and other international standards. The wide scope and ambition of international norms relating to children in conflict with

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[Children in conflict with the law] are adult in everything except years Michael Howard, Home Secretary, 1993173 Most young people who are put into custody are aged 16 and 17 – they are not children; they are often large, unpleasant thugs, and they are frightening to the public Jack Straw, Home Secretary, 2008174

There is very little done to adults in contact with the criminal justice system that law or policy says cannot be done to children – they can be arrested, taken away in a police car or van, strip-searched, finger-printed, held overnight in police custody, detained without charge for 14 days if suspected of terrorism, given fixed penalty notices, transported in security vehicles, cross-examined by barristers, electrocuted by Tasers, remanded to custody, have their photos and personal details put on posters and publicised in newspapers, interviewed by the police without a lawyer, given indeterminate and preventive custodial sentences,

forced to use communal prison showers, sent to prison for breaching their ASBO conditions, subjected to painful restraint, made to wear prison uniform, put in segregation and tied in handcuffs.

The Criminal Justice and Immigration Act 2008 transplanted the adult purposes of sentencing to children, including punishment. (The Halliday Review of sentencing, which led to the purposes of sentencing for adults being enshrined in law in 2003, by its own admission, ‘concentrated on the powers available for sentencing offenders aged over 18’175). A Home Office youth justice consultation at the end of 2003 had reported the Government’s preference for a single purpose of sentencing, for adults and children alike, as preventing offending. The child’s welfare wasn’t even mentioned though it was proposed that the courts should have regard, inter alia, to a child’s age and vulnerability.176 A parallel consultation document aimed at 10-17 year-olds used the words ‘punish’ and ‘punishment’ 18 times.177 As can be seen from Box 23 overleaf, the only differences between the two sets of sentencing purposes are the read across to the 1933 Act welfare duties (which have now been relegated) in relation to children; and the reference to deterrence in relation to adults. It is instructive that the children’s purposes of sentencing have not yet been brought into force because some members of the judiciary and the Sentencing Council have expressed the view that deterrence should also be included in the statutory purposes of sentencing children.178 Were this to happen, the convergence would be virtually complete.

Doing right by children

Box 23: Convergence in purposes of sentencing for adults and children Purposes of sentencing – adults179

Purposes of sentencing – children180

Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing– (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences.

The court must have regard to – (a) the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18 …) (b) in accordance with section 44 of the Children and Young Persons Act 1933, the welfare of the offender, and (c) the purposes of sentencing mentioned [below] …

Those purposes of sentencing are – (a) the punishment of offenders, (b) the reform and rehabilitation of offenders, (c) the protection of the public, and (d) the making of reparation by offenders to persons affected by their offences.

Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.

Section 44, Children and Young Persons Act 1933 (as amended)

A distinct approach to children in the criminal justice system: highlights from history The idea that children should be treated differently from adults has been reflected in our laws, to varying degrees and never yet fully accomplished, for more than 150 years. The 1965 White Paper ‘The child, the family and the young offender’ represents the closest we have been to having a child-centred approach.

Juvenile Offenders Act 1847 – introduced an alternative to jury trial for children under 13 charged with theft.

Summary Jurisdiction Act 1879 – extended this approach for children under 14 in relation to any indictable offence, on condition the child gave his or her consent. The 1879 Act imposed a maximum period of child imprisonment of one month. (It also permitted the “private” whipping of boys as an alternative to imprisonment).

Children Act 1908 – part of the Liberal Government’s Children’s Charter of reforms, this Act imposed a minimum age for capital punishment – 16 years. It also heralded juvenile courts and prohibited the imprisonment of children under the age of 14.

Children and Young Persons Act 1933 – Part III of the Act, titled ‘protection of children and young persons in relation to criminal and summary proceedings’, removed the death sentence for children up to the age of 18 and required the separation of children from adults in police stations, criminal courts and journeys to and from court. Girls were to be ‘under the care of a woman’ whilst held at police stations and attending court. The Act made

provision for the mandatory attendance of (both) parents in court. It required local authorities and poor law authorities to conduct investigations of children appearing to be ‘in need of care or protection’, providing the court with information concerning the child’s ‘home surroundings, school record, health, and character’. With the exception of ‘infants in arms’, the Act prohibited children (up to the age of 18) from being present in a criminal court during another person’s trial (a provision that has remained in law though the court now has discretionary power to allow a child to be present181). Child defendants could, of course, appear in court at very young ages: the 1933 Act only slightly increased the age of criminal responsibility, from seven to eight years. Very significantly, the 1933 Act introduced a welfare duty on courts – see text on left.

It also introduced measures to protect the privacy of children giving evidence (a court could now be cleared of members of the public, though not members of the press) and gave the court the power to impose reporting restrictions for the first time.

Children and Young Persons Act 1963 – increased the minimum age of criminal responsibility from 8 to 10 years.

1965 White Paper ‘The child, the family and the young offender’ – recommended children up to the age of 16 be kept away from juvenile courts and be dealt with, instead, by family councils and the family courts. The family councils, established by the local authority children’s committee, would consist of ‘social workers of the children’s service and other

7. CHILDREN’S CHILDREN’SRIGHTS RIGHTSAND AND JUVENILE JUVENILE JUSTICE JUSTICE 47

No civilized society regards children as accountable for their actions to the same extent as adults.

Professor Colin Howard cited in 1995 House of Lords case concerning doli incapax, the rebuttable presumption that children aged between 10 and 14 years did not know their actions were seriously wrong.182

persons selected for their understanding and experience of children [and] would include at least one man and woman’.183 The family councils would work with families to determine the most appropriate response to the child’s behaviour (only dealing with cases where the facts were not in dispute; where an offence was denied or there was disagreement over events there would be a referral to the family court). Only children charged with homicide were to be subject to criminal proceedings, on committal from the family courts. Four main reasons were put forward for this radical new approach (which also included significant protections for 16 to 21 year-olds): • To spare children ‘the stigma of criminality’ • To focus on appropriate responses, rather than the facts of the case (which in the majority of cases before the juvenile court were not in dispute) • To engage parents much more in the process, helping them ‘to assume more personal responsibility for their children’s behaviour’ • To provide flexible responses to children’s changing needs and circumstances (which criminal court orders were said to inhibit).184 Significantly, where a child was thought to require ‘longer-term training’, this was to be provided in a special residential school or a children’s home and the child would be placed in the care of the local authority (something proposed by Conservative MP Stephen Crabb’s Private Member’s Bill in 2009). A system of reviews would take place, at least annually, the aim being ‘to restore the child to his parents as soon as practicable consistently [sic] with his best interests’.185

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There would be three types of custodial sentences for children and young people aged between 16 and 21, all run by the Home Office and ‘distinct from the prison system’: the detention centre; youth training centres (merger of the borstals and senior approved schools); and young offender institutions. Statutory after-care would be provided for between one and two years, depending on the length of custodial (training) sentence.

The court’s duty to have regard to the child’s welfare was to be extended to apply to 16 to 21 year-olds.

Children and Young Persons Act 1969 – Part I of the Act, titled ‘care and other treatment of juveniles through court proceedings’, prohibited the use of criminal proceedings for all offences, except homicide, allegedly committed by children aged 13 or under.

When Home Secretary James Callaghan introduced the legislation into the Commons he said: I regard this part of the Bill as a completely new and challenging departure, with immense possibilities … [it] looks not merely to the prevention of crime, but to the active promotion of social development. I believe, when we are dealing with the young saplings as distinct from the mature trees, that this is the most helpful and forward-looking of our prospects, where we can hope to influence these young people in the most formative stage of their lives.186 Even though the 1969 Act left 14 and 15 year-olds in the criminal courts (the White Paper had promised this age group would also be protected), nearly four million children aged 13 and under were to be protected from the harm of criminal proceedings (though, of course,

only a small proportion of these children would have been in contact with criminal justice agencies). An equivalent measure today, reaching a similar number of children, would require the prohibition of criminal proceedings for all children aged 15 and under.

Extending this protection to a further million plus children – 16 and 17 year-olds – would show complete integrity to the Convention on the Rights of the Child.

In the event, the incoming Conservative Government decided not to implement this part of the 1969 Act (and it was repealed in 1992).

Children Act 1989 – requires local authorities to take reasonable steps to reduce the need to bring criminal proceedings against children in their area.

Criminal Justice Act 1991 – a statutory custody safeguard was introduced for the first time to ensure custodial sentences were restricted to very serious offences or where, in the case of a violent or sexual offence, this was the only means of protecting the public from death or serious personal injury (this safeguard was repealed in 2000). Although this safeguard applied to both adults and children, it is included here to show that such a measure is perfectly possible. A statutory custody safeguard for children has been recommended in recent years by, among others, the UN Committee on the Rights of the Child187 and the Council of Europe Commissioner for Human Rights.188 House of Lords, 1995 – reinstated the doli incapax presumption (which had been removed the previous year by the High Court). Lord Lowry rejected the Crown’s argument that the Lords could reformulate the

Doing right by children

presumption as a defence, given the ‘radical nature’ of the proposed change. He concluded, ‘This is a classic case for Parliamentary investigation, deliberation and legislation’ urging: There is a need to study other systems, including that which holds sway in Scotland, a task for which the courts are not equipped. Whatever change is made, it should come only after collating and considering the evidence and after taking account of the effect which a change would have on the whole law relating to children’s anti-social behaviour.189 (In the event, there was no study of other systems.

On 30th September 1998, Section 34 of the Crime and Disorder Act 1998 came into effect and the doli incapax presumption ceased to exist.190 The age of criminal responsibility, set at 10 in 1963, remained).

Crime and Disorder Act 1998 – defined the purpose of the youth justice system for the first time. (This development is included as the potential was clearly there to legislate for a child-centred, rights-respecting system. The absence of any reference in this Act to children’s needs, rights or interests was a major missed opportunity). The Act also established the YJB, providing further support for a distinct approach.

Youth Justice and Criminal Evidence Act 1999 – introduced court referral to youth offender panels for under 18s who have admitted an offence, this is their first conviction, the sentence is not fixed in law, and the child is not facing a custodial sentence. The operation of the panels has been subject to criticism,

and the involvement of lay members of the community is a significant diversion from the professional composition of the family councils proposed in the 1965 White Paper. Nevertheless, the youth offender panels are widely perceived as having the potential to deliver a child-centred response to juvenile crime.191 The Youth Justice Board for England and Wales Order 2000 – YJB’s functions were extended to include the commissioning and purchasing of children’s custody and escort arrangements. Five years later, the YJB published its strategy for the secure estate, stating that all custodial establishments should ‘have a culture centred on the child and young person’, though noting that this and other elements of the strategy are ‘aspirational, in the sense that it cannot be achieved easily or quickly, given [the] starting point’.192 The strategy makes explicit reference to children’s rights: ‘The YJB believes that it is important for the rights of children and young peoples [sic] to be recognised and upheld, particularly when they are in custody. In particular, the Human Rights Act and the United Nations Convention on the Rights of the Child should underpin work with children and young people in custody’.193 Despite these positive moves, the legal aims of young offender institutions and secure training centres remain aligned with adult prisons and do not share the welfare functions of secure children’s homes – see page 60.

Practice Direction 2000 – the European Court’s judgment that the two young boys convicted of murdering two year-old James Bulger had been denied the right to a fair trial led to the Lord Chief

Justice issuing a Practice Direction on the trial of children in the crown court. The Practice Direction required a number of adaptations to the adult crown court to enable fair trials for children as young as 10.194 (In April 2007, the Practice Direction – now part of the Consolidated Criminal Practice Direction – was expanded to include vulnerable adult defendants and several new provisions were added195).

A review of the criminal courts in England and Wales, 2001 – Lord Justice Auld recommended the end of crown court trials for children (with some limited exceptions), noting his proposal had ‘wide agreement’.196 Justice for All White Paper, 2002 – sought views on taking children out of the crown court (though not all children: the option of jury trials was to be retained for serious offences committed by 16 and 17 year-olds).

(This proposal was never implemented).

Children Act 2004 – the police and youth offending teams (YOTs) were required to co-operate with other agencies working with and for children to improve the well-being of children. Significantly, the police, YOTs and the governors / directors of prisons and secure training centres must discharge their functions having regard to the need to safeguard and promote the welfare of children. (Notably, the duty to co-operate to improve the well-being of children, included in Section 10 of the Children Act 2004, has not been extended to the YJB. The former Labour Government (Home Office) resisted attempts by cross-party Peers to apply the well-being duties to the YJB).197

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 49

Police and Justice Act 2006 – child and vulnerable adult defendants now able to give evidence in court through live link.

Offender Management Act 2007 – amended the Powers of Criminal Courts (Sentencing) Act 2000 to enable children serving a detention and training order to be placed in “youth detention accommodation”. The legislation specifically removed the requirement that such accommodation has the purpose of restricting liberty. This measure came into force on 1st November 2007198, though it is not yet being implemented. The Centre for Social Justice welcomes Section 34 – ‘We could be much more innovative and imaginative about the management of prison sentences’ – and suggests children be placed in boarding schools or residential training centres as alternatives to custody.199 Apprenticeships, Skills, Children and Learning Act 2009 – amended the Education Act 1996 to place responsibility for children’s education in custody on local authorities. The duty came into force in April 2011. This is a positive move though it is still the case that all remaining education duties on Ministers and local authorities in the 1996 Act do not apply to children in custody.200 Coroners and Justice Act 2009 – child and vulnerable adult defendants can now give evidence through intermediaries. (JUSTICE has warned that this provision may actually contravene children’s human rights, increasing the likelihood that they will be subject to damaging criminal proceedings rather than being accepted as unfit to plead201).

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The state’s response to children’s behaviour which infringes the law is part of a wider commitment to children’s well-being and positive development Article 4, Convention on the Rights of the Child 1989 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.

UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 Rule 1.4 Juvenile justice shall be conceived as an integral part of the national development process of each country, within a comprehensive framework of social justice for all juveniles, thus, at the same time, contributing to the protection of the young and the maintenance of a peaceful order in society.

UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990 Article 2 The successful prevention of juvenile delinquency requires efforts on the part of the entire society to ensure the harmonious development of adolescents, with respect for and promotion of their personality from early childhood.

Article 52 Governments should enact and enforce specific laws and procedures to promote and protect the rights and well-being of all young persons.

UN Committee on the Rights of the Child General Comment on Children’s Rights in Juvenile Justice, 2007 … [A] juvenile justice policy without a set of measures aimed at preventing juvenile delinquency suffers from serious shortcomings.

International juvenile justice standards are clear: the state’s response to unacceptable behaviour by children must be part of a wider investment in children. The operation of dual punishment and welfare systems flies in the face of this requirement. It is also an incredibly inefficient use of resources, and as incoherent as having two contradictory, publicly financed climate change or national cancer treatment strategies.

The Centre for Crime and Justice Studies observed in 2008 that there had been ‘a significant deployment of social expenditure into youth justice budgets’ since the creation of YOTs between 1998 and 2000.202 Recent estimates are that £4 billion is spent annually on the juvenile justice system in England and Wales. To put this in perspective: • Between £3.1 billion and £6.7 billion is spent on children using the NHS each year203 • The total schools budget (for England) is £56.1 billion204 • £523 million is spent on Child and Mental Health Services each year205 • £625 million is being spent on the pupil premium this financial year.206 The YJB’s latest annual accounts show that £305.6 million was spent on locking up children in 2009/2010.207 A rights-based approach would quickly and intelligently divert these resources to welfare services for children, including the development of childcentred secure facilities for the very small number of children who present an immediate and serious risk to others and there is no other way of preventing that risk (the duration of detention would be subject to regular review – see Articles 25 and 37b of the Convention).

Doing right by children

The response to children’s behaviour which infringes the law is always proportionate to their needs and circumstances Convention on the Rights of the Child 1989 Article 3(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 16 (read in conjunction with Article 8, ECHR) 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.

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

Article 39 States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment … [This] shall take place in an environment which fosters the health, self-respect and dignity of the child.

UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 Rule 5 The juvenile justice system shall emphasize the wellbeing of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.

In avoiding criminalisation, we must be cognisant of the risks of harming children by applying disproportionate welfare interventions. The abolition of the “criminal care order” was one of many positive measures in the Children Act 1989. The Children and Young Persons Act 1969 included in the grounds for making a care order that a child was guilty of an offence (excluding homicide) and was in need of care and control which he or she was unlikely to receive unless the court made the order. By 1975, 6,100 children were subject to such orders208, the duration of which could continue until their eighteenth birthday.

Although introduced with the aim of responding more humanely and effectively to children’s welfare needs, the orders became to be seen as deeply unjust.

Robert Harris cites the emergence of myths like children being given eight years in care for stealing a loaf of bread: stood next to research showing ‘wide and inexplicable’ use of the orders, it is not difficult to see how such rumours spread.209 Recent reforms in the Scottish children’s hearings system to, inter alia, meet human rights requirements in the ECHR and the Convention on the Rights of the Child provide a salutary reminder that even nonpunitive approaches have to be rigorously assessed for their compliance with children’s rights. Importantly, the Children’s Hearings (Scotland) Act 2011 provides the child with the right to appeal a hearings decision and the right to appeal the implementation of a secure accommodation authorisation. A policy memorandum from the Scottish Government explains the need for greater transparency in professional decision-making:

… from a policy and practice perspective, there is a concern that [professional] discretion, while valuable, is not applied consistently, and not always based on the best interests of the child. For example, there is a perception among some stakeholders that local authorities may give agreement to decisions by the head of unit based on the finance available to fund placements rather than what provision is optimal to meet the needs and risks of children. In exploring these concerns it has become clear that the process of decision-making is insufficiently transparent.210 The memorandum sets out the Scottish Government’s three key principles in developing its policy on “secure care”: • Its ‘ultimate ambition … to have no child in Scotland in secure care’ • ‘[W]here it is possible to meet the needs of high-risk young people safely and cost effectively without recourse to secure care, then these opportunities should be maximised’ • Law and practice ‘must support the achievement of optimum outcomes for children, young people and their communities by providing appropriate, proportionate and timely responses based on the interests of the child’.211

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 51

The best interests, human dignity and positive development of children guide all interventions and procedures: retribution and the infliction of deliberate suffering is absolutely rejected Convention on the Rights of the Child 1989 Article 3(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 6(2) States Parties shall ensure to the maximum extent possible the survival and development of the child.

Article 37a No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

Article 37c Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

Article 39 States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim … Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

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Article 40(1) States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985

should avoid criminalizing and penalizing a child for behaviour that does not cause serious damage to the development of the child or harm to others. Such policies and measures should involve: (a) The provision of opportunities, in particular educational opportunities, to meet the varying needs of young persons and to serve as a supportive framework for safeguarding the personal development of all young persons, particularly those who are demonstrably endangered or at social risk and are in need of special care and protection; (b) Specialized philosophies and approaches for delinquency prevention …

Rule 10.3 Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the wellbeing of the juvenile and avoid harm to her or him ...

(c) Official intervention to be pursued primarily in the overall interest of the young person and guided by fairness and equity;

Rules 14.1 and 14.2 Where the case of a juvenile offender has not been diverted (under rule 11), she or he shall be dealt with by the competent authority (court, tribunal, board, council, etc.) according to the principles of a fair and just trial.

European rules for juvenile offenders subject to sanctions or measures, 2008

The proceedings shall be conducive to the best interests of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow the juvenile to participate therein and to express herself or himself freely.

UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990

(d) Safeguarding the well-being, development, rights and interests of all young persons …

Rule 7 Sanctions or measures shall not humiliate or degrade the juveniles subject to them.

Rule 8 Sanctions or measures shall not be implemented in a manner that aggravates their afflictive character or poses an undue risk of physical or mental harm.

Article 5 The need for and importance of progressive delinquency prevention policies and the systematic study and the elaboration of measures should be recognized. These

Doing right by children

Cruel and degrading treatment and punishment: lessons from the past

A children’s rights approach demands that adults recognise and attend to children’s suffering. There is no place for cruelty, vengeance or violence.

Interventions must increase, not impair, children’s welfare. In the words of Article 37(c), every child in contact with the criminal justice system ‘shall be treated with humanity and respect for [their] inherent dignity’. This positive engagement is intrinsically right and humane; it is also an essential prerequisite for helping children face up to the hurt and suffering they have inflicted on others. This is especially so for children who have committed horrific acts of violence.

As a member of the project’s expert advisory group, Pam Hibbert, told journalist Paul Vallely: … you have to get them to develop an awareness of how they feel about themselves before you can move on to dealing with how they think their victim might have felt. Whatever crime they have committed you always have before you an extremely damaged and vulnerable child and you have to focus on them.212

Two 10 year-old children were tried in a packed crown court in Preston over a three-week period in November 1993. Deeply hostile crowds met every journey they made to and from the courtroom, with grown adults shouting and screaming abuse and banging the sides of the van holding the boys.

Children’s active role in society is consistently encouraged; and children’s views are heard and taken into account in all decision-making processes Article 12, Convention on the Rights of the Child 1989

The court day followed school hours and the children were allowed a 10-minute break every hour, during which they could spend time with their parents and social workers in a play area.

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

A carpenter was brought in to raise the floor of the dock where the boys would sit near to their parents and lawyers. It was later revealed that physically elevating the small boys in the adult courtroom made them feel even more uncomfortable and exposed, and was one of the factors denying them a fair trial.213

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The European Court of Human Rights’ judgment that there had been no Article 3 violation (the child’s right to protection from torture and inhuman and degrading treatment and punishment) in respect of the children’s trial was not unanimous. The five judges who gave a dissenting opinion on the Article 3 breach in relation to the trial proceedings explained: The combination in this case of (i) treating children of ten years of age as criminally responsible, (ii) prosecuting them at the age of eleven in an adult court, and (iii) subjecting them to an indeterminate sentence reached a substantial level of mental and physical suffering. Bringing the whole weight of the adult criminal process to bear on children as young as eleven is, in our view, a relic of times where the effect of the trial process and sentencing on a child’s physical and psychological condition and development as a human being was scarcely considered, if at all.214

UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990 Article 3 … a child-centred orientation should be pursued.

Young persons should have an active role and partnership within society and should not be considered as mere objects of socialization or control.

Article 37 Youth organizations should be created or strengthened at the local level and given full participatory status in the management of community affairs. These organizations should encourage youth to organize collective and voluntary projects, particularly projects aimed at helping young persons in need of assistance.

UN Committee on the Rights of the Child General Comment on Children’s Rights in Juvenile Justice, 2007...

Continued...

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 53

Case study The National Youth Agency ...The right of the child to express his/her views freely in all matters affecting the child should be fully respected and implemented throughout every stage of the process of juvenile justice … The Committee notes that the voices of children involved in the juvenile justice system are increasingly becoming a powerful force for improvements and reform, and for the fulfilment of their rights.

It is obvious that for a child alleged as, accused of, or recognized as having infringed the penal law, the right to be heard is fundamental for a fair trial … Alleging that the child is criminally responsible implies that he/she should be competent and able to effectively participate in the decisions regarding the most appropriate response to allegations of his/her infringement of the penal law … to treat the child as a passive object does not recognize his/her rights nor does it contribute to an effective response to his/her behaviour.

Before becoming the Commissioner I worked for a number of years in and around the youth justice system in Wales and in England. It never failed to amaze me the extent to which the system never listened to children and young people; never really tried to understand why these vulnerable children got drawn into offending; never really took the trouble to ask, let alone listen to a reply.

Keith Towler, Children’s Commissioner for Wales, 2009 215

Di Hart and Chris Thompson examined the ways in which children’s right to be heard and taken seriously are upheld by criminal justice agencies. They conducted a literature review which showed that seeking (and affirming) the child’s perspective and working with them in respectful, non-punitive ways had been promoted in official documents for many decades. Now, there are encouraging signs of children’s advice being sought in developing policy and practice, for example:

54

[T]he YJB invited some young people involved with Rochdale YOT to talk at the Youth Justice Convention about their experiences of resettlement. This received a very positive response and resulted in the young people being commissioned to produce a DVD and to attend the programme board to suggest how resettlement could be improved. The young people have grown in confidence as a result of this opportunity and their firsthand description of their experiences has raised the awareness of those responsible for shaping policy.216 Ipsos MORI research for the YJB on techniques for effective engagement and participation points to some interesting findings in YOT workers’ perceptions. For example, an online survey of more than 400 YOT workers found 64% believed a child turning up but having minimal input into sessions is either engagement or participation.

Only a small proportion – 27% – thought it was neither of these things. Over half (59%) of the YOT workers believed simply turning up when required was indicative of either engagement or participation, whilst just 15% said this was neither of these things. 97% of the YOT workers believed that completing worksheets and other set activities represented engagement and participation. A child being proactive in stopping offending was seen to be the best signal that he or she was engaging and participating (cited by 73% of respondents). The most common way of allocating a worker to a child was through assessing workload and capacity (reported by 36% of respondents): this occurred more than twice as often as looking at the child’s needs and the skills of the worker (reported by 16% of respondents). A surprising proportion – 67% – believed this to be either ‘very effective’ or ‘fairly effective’.217

The National Youth Agency has developed training and tools to increase the capacity of YOTs and other criminal justice agencies to increase children’s influence in both individual and strategic decision-making. This work often involves basic awareness-raising of children’s rights, including their right to be heard. During the pilot of training for YOTs, one worker was genuinely puzzled: ‘But why should they have a voice?’

The organisation has conducted research into the extent of service user participation, finding a lack of leadership at both local and national levels. For young people, the strength of relationship with their YOT worker determines their level of engagement and the success or otherwise of interventions. Being understood, respected and having a connection with a worker were crucial for young people. Youth offending services which are engaging young people in policy and service development report positive results. For example, Reading YOT redecorated its town centre reception area and obtained a music license to play the radio following advice from young people.

Doing right by children

The unique role of parents and the importance of family life are consistently valued Convention on the Rights of the Child 1989 Preamble Convinced that the family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance …

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding …

Article 9(3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

Article 18 … Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child …

Article 20(1) A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990 Article 11 Every society should place a high priority on the needs and well-being of the family and of all its members.

This governing requirement moves the focus of work with children from individual blame and pathology to understanding their life and full set of circumstances.

Children who offend remain sons and daughters, brothers and sisters; some are even parents themselves (13% of boys in young offender institutions in 2009/10 were fathers218). These intimate relationships can sustain children through the most frightening and harrowing experiences in the criminal justice system. As the YJB says:

can cause to children and to the parent-child relationship has long been acknowledged in paediatric hospital care, where separation only occurs in very extreme situations and then never for weeks or months at a time. The lack of empathy and respect for parent-child relationships in custody is nothing short of disgraceful. A girl held in a secure training centre (“purpose built” for children as young as 12 in the 1990s) made this request in a consultation on safeguarding this year:

Working with parents is almost certainly a prerequisite for effective intervention with young people who are offending or at risk of it; working with young people alone is generally less effective than work that takes account of their family and home contexts.219

I think we should be able to hug our families when they come and visit us because it is bad enough being away from them for a year and a half. It’s awful.221

An Ipsos MORI survey of over 400 YOT workers found that parental support was seen to be the greatest factor determining the success or otherwise of their intervention in a child’s life.220 Given their crucial contribution to children’s wellbeing and development, any intervention that does not consider the role and contribution of parents will be superficial, pointless even. Clearly, there are many occasions where children feel strongly they will be “better off” without their parents, and many parents do have an extremely damaging effect on their children.

But not exploring and seeking to strengthen these relationships can deny the child crucial family support for many years to come.

When children enter custody, parents lose nearly all their opportunities to parent. The suffering and damage this

The practice of stopping children having contact with their families when they are in “separation” (more commonly known as solitary confinement) has the effect of making them feel even more isolated, angry and depressed, as User Voice’s report notes: The [child] spoke only of feeling of feeling lonely and further from his family as he had been unable to have contact with them for the duration. He had said he’d have liked to have spoken to them while there, he usually turned to them when he felt depressed or had problems and not being allowed to do so had been the only thing that had affected him.222 These practices offend basic human empathy, compassion and children’s fundamental human rights.

They also inexplicably and unintelligently fail to capitalise on the uniquely positive role parents can play in helping children manage strong emotions. It is almost as if the state wants children in custody to be truly alone.

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 55

Children are only ever brought into contact with the criminal justice system as a last resort and according to due process Convention on the Rights of the Child 1989 Article 37b The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time …

UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 Rules 11.1 to 11.4 Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority ...

The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such cases, at their discretion, without recourse to formal hearings …

Any diversion involving referral to appropriate community or other services shall require the consent of the juvenile, or her or his parents or guardian, provided that such decision to refer a case shall be subject to review by a competent authority, upon application.

In order to facilitate the discretionary disposition of juvenile cases, efforts shall be made to provide for community programmes, such as temporary supervision and guidance, restitution, and compensation of victims.

UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990 Article 5 [Policies] should avoid criminalizing and penalizing a child for behaviour that does not...

Continued...

56

... cause serious damage to the development of the child or harm to others. Such policies and measures should involve: … (e) Consideration that youthful behaviour or conduct that does not conform to overall social norms and values is often part of the maturation and growth process and tends to disappear spontaneously in most individuals with the transition to adulthood; (f) Awareness that, in the predominant opinion of experts, labelling a young person as “deviant”’, “delinquent” or “pre-delinquent” often contributes to the development of a consistent pattern of undesirable behaviour by young persons.

There are libraries in every UK town and city holding books, research papers and testimony from children and professionals showing the harm caused by bringing children into contact with the police, courts, custody and the widening net of law enforcers. A parent’s first instinct on hearing their child has been arrested or is “in trouble” with the authorities is usually to protect and minimise any damage to the child’s reputation, immediate well-being and their future prospects. Such protection is not to be confused with children being “let off”: there are very few parents who would shrug off as insignificant their child infringing the law. The point is that the vast majority of us would do everything possible to protect our child from a criminal record, having to appear in court or be “taken away” to custody.

In 2006, in response to children’s homes inappropriately bringing in the police to deal with matters that would ordinarily be dealt within families as a private matter, the former Government urged a similarly constructive approach for children in care:

We have had consistent reports of children’s home providers referring cases of poor behaviour to the police in response to incidents which would normally be managed within the family for children not in the care system…223 Professionals that work closely with children in the criminal justice system, as well as those who research and study the impact of different approaches, have been saying for many decades that diversion brings the best results. That is, any kind of contact with the criminal justice system can be deeply harmful and counter-productive. Apart from anything else, as the UN Riyadh Guidelines (1990) state: ‘in the predominant opinion of experts, labelling a young person as “deviant”, “delinquent” or “pre-delinquent” often contributes to the development of a consistent pattern of undesirable behaviour by young persons’.224 A longitudinal study in Edinburgh gives such powerful findings of the negative effect of labelling that the researchers recommend ‘the key to tackling serious and persistent offending lies in minimal intervention and maximum diversion’.225 The UK’s age of criminal responsibility is one of the youngest in the Western world. Children who are chronologically at the minimum age – 10 years – are being brought into a system when they are developmentally much younger. One child was psychologically assessed as functioning at the level of a 6-8 year-old, yet he was tried in the Crown Court.

The European Court of Human Rights found his right to a fair trial had been violated – see page 58 – though

Doing right by children

All of my work [social work with adolescents] is about trying to rectify neglect of some sort Professional in Government commissioned research on adolescent neglect, 2010.226

there has been no change in policy. A global study found that, since ratification of the Convention on the Rights of the Child in 1989, 39 countries have passed legislation increasing the age at which children can be held responsible for their actions through the criminal justice system, and another 23 countries have plans to take such action.227 Let’s not underestimate the impact of contact with the criminal justice system on children approaching puberty and adolescence. These are crucial periods of psychological, neurological and social development.

Telling children they are failures and outsiders at this crucial age is destructive, to them as individuals and to wider society. There is compelling evidence that minimum intervention is all that is necessary for the vast majority of children who behave anti-socially.

At the same time, proportionate welfare responses are vital for the very small number of children whose behaviour poses serious harm to others and themselves.

These children’s biographies are often characterised by parents’ inability or unwillingness to love and cherish them and / or chronic failings in statutory bodies to honour their legal obligations. In other words, these are children whose rights have been violated. This is not an excuse for unacceptable behaviour: it is simply a fact that effectively responding to such behaviour relies upon a proper understanding of children’s lives and circumstances. These children will have already experienced a great deal of punishment, from violence in the home to exclusion at school to victimisation in their communities. Added to this are inequalities such

as poverty, poor housing, and limited access to health care and leisure facilities. Their lives are already tough.

Forceful rhetoric about taking responsibility and children facing up to their actions, especially when not backed up with action to remedy these rights violations, is deeply insensitive. Some would say cruel. It is also misplaced as a strategy. Interviews with 13-17 year-olds in 2001/02 about their direct experience of contact with the criminal justice system, from interviews in police stations to incarceration, highlighted the disempowering nature of many interventions: Giving in, submitting, becoming marginalised and losing power were central themes, quite contrary to the assumption of engagement and responsibility that the system hopes to achieve.228 Furthermore, many children brought into contact with the criminal justice system have impairments that make it nigh on impossible for them to navigate and comply with rules, threats and sanctions.229 • Barnardo’s reports that children in contact with the criminal justice system are five times more likely than their peers to have special educational needs230 • Four separate evaluations of family intervention projects in Scotland showed that ‘children working with [the] projects were amongst the most disadvantaged in the country’ (our emphasis).

The trigger for referral to the projects was antisocial behaviour by children or adults. The Scottish Government explains: ‘Across all four studies families referred for intensive support were characterised as having multiple and inter-related

support needs which in many cases had not been adequately addressed by other agencies’231 • The British Institute for Brain Injured Children reported in 2005 that 35% of youth offending teams were in contact with children aged 16 or under with a diagnosed mental health disorder or an accepted learning difficulty who had been given an ASBO.232 Government policy and research documents (as opposed to media releases) have for many years called for children who persistently infringe the law to be supported back into education; to have their mental health needs met; to be helped with family relationships, housing, getting a job and planning their future. All evidence points to the need for this small group of children to have sustained contact with teachers, social workers, therapists and youth workers. Yet responding to children through the criminal justice system only ever guarantees contact with police officers, lawyers, courtrooms and other offenders.

This keeps children away from the mainstream. It also means the state is funding two parallel systems. This only ultimately makes sense if policy makers believe that children who offend are fundamentally different. Or that differentiation, separation and exclusion is necessary for the purposes of retribution and punishment. Neither of these constructs is compatible with a children’s rights approach. It is worth recalling that when the Convention on the Rights of the Child was being debated by the UN, it was drafts prepared by the UK and Canadian Governments which led to the requirement in Article 37b that the arrest, detention and imprisonment of children be used only as a measure of last resort.233 Understandably, Government and others frequently cite financial reasons

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 57

S.C. v United Kingdom, European Court of Human Rights, June 2004

for diverting children from the criminal justice system. But Article 37b was drafted in the knowledge that contact with the criminal justice system imposes stigma and suffering on growing children.

The argument that a lower age of criminal responsibility allows for early intervention in children’s lives has been made by successive Ministers over the past 20 years. What is never made clear is why they believe criminal justice, as opposed to education, health or welfare, agencies are best equipped to deliver this early intervention. It is abundantly clear that children’s lives are turned around by sustained attention to their living conditions, their relationships, and their educational and job prospects. Equally important is listening to them, finding out what motivates them and makes them feel (and behave) good. Little is achieved by bullying and punishing them, giving them a criminal record or telling them in words or deeds they are worthless and different from other children. Richard Garside explains: In the UK, our notions about criminal responsibility are meaningless. We set the age of criminal responsibility too low because adult society does not have the collective capacity to imagine a system for dealing humanely with children and young people who break laws created by adults, largely to police the behaviour of adults. We prefer to punish children and young people, so relieving ourselves of the responsibility of thinking seriously about what it would mean to treat children and young people with compassion, dignity and respect.234

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This case concerned an 11 year-old child who attempted to take the bag of an 87 year-old in the street. He was with a 14 year-old. The woman fell to the ground, the younger child ran off and the older child stayed with the victim. The following month, in connection with other offences, the 11 year-old child was subject to a two-year supervision order.

He was remanded to the care of the local authority and placed with foster carers. In light of his offending history, the young child was committed to the Crown Court in relation to the attempted robbery charge. An adolescent forensic psychiatrist and a consultant clinical psychologist carried out assessments and concluded he was functioning at the cognitive level of a child somewhere aged between 6 years 2 months and 8 years 2 months.

The Government argued the child did not suffer a violation of his right to a fair trial because: • The child had been accompanied by his social worker throughout the proceedings • Wigs and gowns were dispensed with • The court took regular breaks • There was no publicity and the child was not subject to displays of public anger • There was no evidence that the child was traumatised by the proceedings • The child’s representatives had not raised concerns about his ability to function in the proceedings at the time.

The European Court found that the child’s right to a fair trial had been violated. It said: … when the decision is taken to deal with a child, such as the applicant, who risks not being able to participate effectively because of his young age and limited intellectual capacity, by way of criminal proceedings rather than some other form of disposal directed primarily at determining the child’s best interests and those of the community, it is essential that he be tried in a specialist tribunal which is able to give full consideration to and make proper allowance for the handicaps under which he labours, and adapt its procedure accordingly.235

Detaining children in child-centred, secure facilities can only be justified by immediate and serious risk to public safety Convention on the Rights of the Child 1989 Article 37b The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time …

UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 Rule 13.1 Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time.

Rule 18.1 A large variety of disposition measures shall be made available to the competent authority, allowing for flexibility so as to avoid institutionalization to the greatest extent possible.

Rule 19.1 The placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary period.

UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990 Article 46 The institutionalization of young persons should be a measure of last resort and for the minimum necessary period, and the best interests of the young person should be of paramount importance. Criteria authorizing formal intervention of this type should be strictly defined…

UN Rules for the Protection of Juveniles Deprived of their Liberty (The Havana Rules), 1990 Rule 1 The juvenile justice system should uphold the rights and safety and promote the physical and mental well-being of juveniles. Imprisonment should be used as a last resort.

Rule 17 … Detention before trial shall be avoided to the extent possible and limited to exceptional circumstances.

Doing right by children

… it is precisely those children who have experienced or witnessed bad behaviour at first hand – and whose own behaviour may as a result become most concerning – who need most urgently and consistently to be shown the example of what it means to be treated with dignity and respect.

The Children’s Society Good Childhood Inquiry, 2009236

Custody is the best-resourced part of the criminal justice system but, as currently constituted, it is also the most harmful to growing children. The Standing Committee for Youth Justice calls this ‘compounding the damage’.237

By far the biggest problem is the way in which the security and traditional penal considerations outweigh children’s needs. This is reflected in the governing legislation – see Box 25 overleaf – but also in so many operational decisions. Deeply degrading stripsearching continued unabated for years for the sake of finding and confiscating “contraband”, chiefly cigarettes. Children today are not allowed to hug their parents or siblings during prison visits for fear they may pass on such contraband. Furniture is nailed to the floor and beds are built into the walls. Mealtimes remain institutionalised:

• 31 children have died in custody since the year before the UK ratified the Convention on the Rights of the Child; 14 of these deaths have happened since the “juvenile secure estate” was formed and put under the watch of the YJB in April 2000

Many YOIs issue a week’s worth of breakfast packs in one go or children receive them the evening before.

Children are so hungry that they can eat the limited contents of these packs straight away, leaving them without any food in the morning.241

• There were 4,666 incidents of self harm by children in custody between 2008 and 2010238

The penal priorities of the YJB and Ministry of Justice are clear in the name they give to children who self harm in custody – “perpetrators” – and in their conceptualisation of restraint, self harm and assault in custody as “behaviour management”.242

Why do we lock up children?

A children’s rights approach sees only one justification for locking up children who infringe the law – that this is the only means of stopping the child causing serious harm to others. This derives from the dual aim of protecting the rights of the child and the rights of the victim.

• There were 6,904 incidents of restraint in custody in 2009/10, resulting in 257 injuries to children.239 Latest published figures show that there were 2,002 children held in custody in March 2011.240 92% of these children were held in penal custody (young offender institutions and secure training centres).

Surveys of children held in young offender institutions (accounting for the vast majority of children locked up) show the fundamental incapability of these penal settings to meet children’s needs.

The day before he killed himself after being restrained in Hassockfield secure training centre, 14 year-old Adam Rickwood’s “privileges” were reduced from the highest to the lowest level because his mother had given him two cigarettes and seven matches during a visit. His television and music system were removed from his cell. Adam had smoked since he was eight years old.243

Box 24: A snapshot of life inside our country’s child prisons244 – the best we can do?

Girls

Boys

22% felt unsafe in prison at 31% felt unsafe in prison at some time some time 18% victimised by other children

24% victimised by other children

20% victimised by staff

23% victimised by staff

77% have a member of staff they can turn to

70% have a member of staff they can turn to

67% have been checked on by a member of staff in last week

39% have been checked on by a member of staff in last week

37% says food is good or very good

21% says food is good or very good

96% can shower each day

64% can shower each day

68% usually able to exercise outside every day

31% usually able to exercise outside every day

57% says health services 79% says health services are good or very good are good or very good 43% of those with 21% of those with emotional or mental emotional or mental health problems are health problems are not receiving any help not receiving any help 86% taking part in education

47% taking part in education

64% religious beliefs respected

54% religious beliefs respected

84% can access telephone 56% can access telephone every day every day 7% received more than three visits in past month

17% received more than three visits in past month

32% never receive visits

12% never receive visits

89% know how to make a complaint

85% know how to make a complaint

79% believe complaints are dealt with fairly

39% believe complaints are dealt with fairly

54% able to speak to an advocate

39% able to speak to an advocate

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 59

There are child-specific safeguards for children in secure facilities

Box 25: Statutory aims of different forms of adult and child custody Adult prison

Young offender institution

The purpose of the training (1) The aim of a young and treatment of convicted offender institution shall prisoners shall be to be to help offenders to encourage and assist them to prepare for their return to lead a good and useful life.245 the outside community.

(2) The aim mentioned in paragraph (1) shall be achieved, in particular, by (a) providing a programme of activities, including education, training and work designed to assist offenders to acquire or develop personal responsibility, self-discipline, physical fitness, interests and skills and to obtain suitable employment after release; (b) fostering links between the offender and the outside community; and (c) co-operating with the services responsible for the offender’s supervision after release.246

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Secure training centre The aims of a centre shall be (a) to accommodate trainees in a safe environment within secure conditions; and (b) to help trainees prepare for their return to the outside community.247

Secure children’s home The registered person shall ensure that the children’s home is conducted so as to (a) promote and make proper provision for the welfare of children accommodated there; and (b) make proper provision for the care, education, supervision and, where appropriate, treatment, of children accommodated there.

The registered person shall make suitable arrangements to ensure that the home is conducted (a) in a manner which respects the privacy and dignity of children accommodated there; and (b) with due regard to the sex, religious persuasion, racial origin, and cultural and linguistic background and any disability of children accommodated there.248

Convention on the Rights of the Child, 1989 Article 21(1) A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

Article 25 States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 Rule 26.2 Juveniles in institutions shall receive care, protection and all necessary assistance – social, educational, vocational, psychological, medical and physical-that they may require because of their age, sex, and personality and in the interest of their wholesome development.

United Nations Rules for the Protection of Juveniles Deprived of their Liberty (The Havana Rules), 1990 Rule 27 As soon as possible after the moment of admission, each juvenile should be interviewed, and a psychological and social report identifying any factors relevant to the specific type and level of care and programme required by the juvenile should be prepared …

Rule 28 The detention of juveniles should only take place under conditions that take full account of their particular needs, status and special requirements according to their age, personality, sex and type of offence, as well as mental and physical health, and which ensure their protection from harmful influences and risk situations.

Doing right by children

In the NHS context, it has been observed that: ... the majority of adult qualified nurses and doctors see children as small adults, who simply need smaller beds and smaller portions of food. They do not see them as a client group that have wholly different needs.249 Moving children’s secure facilities away from the model of adult prisons would result in a completely different type of establishment, which has the single joint aim of providing positive rehabilitation and meeting the child’s needs. These facilities would operate to the highest care and human rights standards, be non-punitive and demonstrably distinct in culture and practice from prison establishments.250 Were such facilities to be used as a last resort, as international human rights law requires, far fewer children would be detained.

Resources could be used considerably more effectively than is the case now, with these facilities becoming centres of excellence in the care and rehabilitation of children, attracting highly skilled multi-disciplinary staff teams. Seeing children in these centres as children, rather than as criminals or miniature adults, would allow attention to be focused on the arrangements necessary to promote and safeguard their welfare. This paradigm shift would see the central concern of staff and managers as keeping children safe and secure, rather than dealing with security arrangements and the needs of the institution.

Children held in these secure facilities would be accorded at least the same level of protection as other children cared for by the state, including:

Lack of ‘care’; under-qualified and over-stretched staff; cultures of violence, intimidation and bullying; prevalent racism, sexism and homophobia; omnipresent fear and anxiety; penal regimes that provide only minimal and wholly inadequate ‘safeguards’ – these are the realities of life inside for many children in penal custody.

The degradation, the claustrophobia, the denial of ‘childhood’, the emptiness of time and the fear of place corrodes and crushes the child’s sense of self.251

• A legal status which entitles them to regular review of their needs and circumstances and planning for return to their family and community. Such reviews would be co-ordinated by an independent reviewing officer and rely upon the positive engagement of the child, his or her family and relevant statutory agencies • A legal status which entitles them to after-care assistance and support • The right to contribute to decisions about their care and rehabilitation; and to be consulted about the day-to-day running of the establishment • The right to maintain positive relations with their family • All the same education and health rights as children living in the community • Legal protection from corporal punishment and other forms of violence, including pain-compliant restraint and routine strip-searching

supported to record their account; and each use of force to be independently reviewed (possibly by the independent reviewing officer assigned to the child) • The right to access information and advice from an independent advocate • The right to make complaints and representations • Inspections which routinely include private interviews with children about their care and treatment • Arrangements for staff to raise genuine concerns about the care and treatment of children without fear of redress.

Many of these measures have already been introduced in other residential settings, following revelations of past abuse and a failure by the state to promote and protect children’s rights. Children’s own suggestions for developing “secure” facilities are perfectly achievable, should we decide to abandon the penal model: Other groups [of children] discussed what sort of building a future secure unit should have. By far the most usual suggestion was that it should have more space inside, with all the rooms being bigger than they are in many existing secure units. Some thought that beds should also be bigger than is usual at present. Another suggestion was that the heating should be easier to control in each room, and the building, especially bedrooms, should not be so hot, since in security you usually cannot cool rooms down by opening the windows.252

• Staff to record each use of force, including the steps they took to avoid the use of restraint (demonstrating that it was a genuine last resort); children to be

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 61

I think you … you should put them in a care environment, like the police … Yes, get them to work with us kids and see how they like it. Because I don’t think they would like it to be honest. And then maybe they might start understanding.

14 year-old in CRAE focus group on children’s rights and juvenile justice, 2011

All those working with children are properly selected, trained, supervised and regulated for work with children UN Committee on the Rights of the Child General Comment on General Measures of Implementation of the Convention on the Rights of the Child, 2003 The Committee emphasizes States’ obligation to develop training and capacity-building for all those involved in the implementation process – government officials, parliamentarians and members of the judiciary – and for all those working with and for children. These include, for example, community and religious leaders, teachers, social workers and other professionals, including those working with children in institutions and places of detention, the police … and many others.

Training needs to be systematic and ongoing – initial training and re-training. The purpose of training is to emphasize the status of the child as a holder of human rights, to increase knowledge and understanding of the Convention and to encourage active respect for all its provisions.

In all our conversations with children and young people during the preparation of this publication the relationships they have with professionals stood out as the dominant factor in whether “services”, including those provided by criminal justice agencies, actually make an impact. A member of the project’s expert advisory group summed up: That is the big point [about children’s rights]; it’s how adults treat you.

Characteristics which were universally welcomed and wanted including staff having time for children, genuinely listening to them, seeing their point of view

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and understanding them, being fair and not shouting.

These applied whether children were talking about family services or their contact with police, lawyers and custody staff. Mutual respect was a recurring request.

Above all, children said they respond positively to staff that want to be with them. This may seem an obvious point, but how many individuals currently working with children in contact with criminal justice agencies have positively elected to do so?

It is now widely acknowledged that children play a valuable role in staff selection. Their involvement in recruitment not only adds expertise and a unique perspective to the process; it also powerfully signals to would-be employees that this is an organisation that respects and takes seriously children. The National Youth Agency’s research with YOTs found some very positive practice, for example:

staff working with, and making decisions that affect, children. This training should, of course, be in addition to other core training for work with children, including child development, communication skills and promoting and safeguarding children’s welfare (all of these overlap with children’s rights training).254 A Freedom of Information (FOI) request earlier this year found that almost a third (29%) of staff in YOIs had not yet completed mandatory safeguarding training. The National Offender Management Service has been in charge of such training since 2006. Deputy Children’s Commissioner, Sue Berelowitz, responded to the FOI release: My concern about the National Offender Management Service is it almost exclusively focuses on the adult estate, they don’t understand the needs of children.255

Young people are involved in the recruitment and selection of some staff, usually with a separate young people board, but this may not be the case with police and probation secondees. Young people were entirely responsible for my recruitment and even had to ring me to offer me the job and they were really surprised at how long it took for me to take up the position due to the delays with CRB checks.253 Article 42 of the Convention requires governments and others to make all those working with children aware of the treaty’s values and legal obligations. Domestic law, the Human Rights Act, requires public authorities to act compatibly with the ECHR: knowledge of the treaty’s rights and freedoms is essential to meet this obligation. Human rights training is therefore vital for all

Doing right by children

A FRAMEWORK FOR ASSESSING LAW, POLICY AND PRACTICE AGAINST CHILDREN’S RIGHTS – JUVENILE JUSTICE

The framework below necessarily simplifies inter-connected children’s rights values and extensive legal obligations under international human rights law. It is not to be read as a complete summary of human rights requirements.

In providing this framework, we aim to establish some broad “rules” for the development of juvenile justice law and policy and for direct work with children which would bring us a lot closer to a child-centred, rights-respecting approach.

Q How does this action or decision show we value and care about childhood?

Q How does this action or decision affirm the child’s dignity and integrity?

Q How does this action or decision recognise and build upon children’s entitlements? What rights are particularly to the fore in this situation? How could these rights be (better) protected?

Q How does this action or decision recognise and support children’s agency, their choices and solutions?

Q How will this action or decision be explained to the child and how could it be challenged? Has the child been informed of his or her rights and how they apply to this particular situation?

Q How does this action or decision contribute to wider respect for human rights?

Q How does this action or decision substantially differ from actions and decisions taken in relation to adults in comparable situations?

Q How does this action or decision contribute to my organisation’s wider commitment to child well-being?

Q How does this action or decision uphold the best interests, dignity and right to positive development of the child or children concerned? Are we sure there is no deliberate infliction of suffering?

Q To what extent have safeguarding measures in secure facilities been developed around the particular needs and rights of children? Is there parity of safeguards across all residential facilities for children?

Q To what extent have individuals working with children been selected, trained, supervised and regulated specifically for work with children?

Q How does this action or decision encourage responsible action by children; how does it support their right to be heard and taken seriously – in matters affecting them as individuals and in wider policy and service development? Has the child contributed to the assessment of his or her needs?

Q How does this action or decision demonstrate respect for the importance of family life?

Q How does this action or decision help to divert a child or children from contact with criminal justice agencies? Are measures aimed at promoting and safeguarding the child’s welfare proportionate to the child’s current needs?

7. CHILDREN’S RIGHTS AND JUVENILE JUSTICE 63

8.

PROJECT METHODOLOGY

This project was launched in October 2010.

Focus groups and interviews

Between October 2010 and May 2011, we developed our ideas and gathered a large amount of helpful material through:

Children and young people from the following organisations participated in focus groups and paired and individual interviews:

• Meetings of the project expert advisory group and discussions with individual members – see page 66

• CRAE’s children and young people’s advisory committee

• Conducting a mapping exercise of laws and policy affecting children’s rights in the family and children’s rights in the juvenile justice system

• Chelmsford youth offending team

• Undertaking a literature review to assess what is known about children’s rights in the family and juvenile justice in England

• Homerton youth forum, Hackney • The Ryes College and Community, Suffolk.

Site visits

• Issuing an open call for evidence from children, young people, parents and professionals

The following organisations were selected for site visits:

• Conducting focus groups and paired and individual interviews with children and young people (33 participants in total)

• Howard League for Penal Reform, London

• Making site visits to organisations that actively promote and protect children’s rights (interviews with 5 adults and 5 young people)

• Children North East, Newcastle • Investing in Children, Durham • The National Youth Agency, Leicester.

• Holding two roundtables for adult professionals and policy makers concerned with children’s rights in the family and children’s rights in juvenile justice (25 participants in total).

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Doing right by children

Roundtables Two roundtables were held at the CRAE offices in April and May 2011.

Participants at roundtable on children’s rights and the family

Participants at roundtable on children’s rights and juvenile justice

Name

Job title

Organisation

Name

Job title

Organisation

Alan Bean

Co-chair

Association of Lawyers for Children

Chris Ball

Youth custody policy team

Ministry of Justice

Wendy Banks

Senior policy advisor

Voice

Jenny Clifton

Principal policy advisor (safeguarding)

Office of the Children’s Commissioner for England

Dr. Tim Bateman

Reader in youth justice

University of Bedfordshire

Jenny Coles

Committee member

Association of Directors of Children’s Services; Families, Communities and Young People Policy Committee

Nick Davies

Policy and information officer

Children England

Penelope Gibbs

Director of strategy to reduce child and youth imprisonment

Prison Reform Trust

Peta Halls

Development officer

National Youth Agency

Kathy Evans

Deputy chief executive and director of operations

Children England

Dr. Di Hart

Principal officer – youth justice and welfare

National Children’s Bureau

Ian Johnston

Former chief executive of the British Association of Social Workers

Chair of the Roundtable

Pam Hibbert

Independent youth justice specialist

Chair of the Roundtable

Linda Jack

Liberal Democrats

Sophie Laws

Head of policy and research

Coram

Chair of youth justice policy working group

Jimi Odell

Information and liaison officer

Parenting UK

Kate Martin

Howard League for Penal Reform

Roger Morgan

Children’s rights director

Office of Children’s Rights Director (Ofsted)

Senior project coordinator, U R Boss

Prof. Roger Smith Professor of social work research De Montfort University

Sarah Salmon

Deputy director

Action for Prisoners’ Families

Christine Smart

Independent children’s champion Former Children’s Rights Director, CAFCASS

Enver Solomon

Director of policy

David Utting

Secretary

Independent Commission on Youth Crime and Antisocial Behaviour

The Children’s Society

9. PROJECT METHODOLOGY 65

9.

EXPERT ADVISORY GROUP

Members of the Expert Advisory Group shared their expertise and experiences in promoting and protecting children’s rights and gave advice on the preparation of this publication. However, Doing right by children is a CRAE publication and Expert Advisory Group members will not necessarily agree with all of its contents.

Frances Crook is director of the Howard League for Penal Reform, a national charity that researches and campaigns on children’s rights in the penal system and has a legal team representing children and young people in custody. The Howard League took legal action to force the government to apply the Children Act to children in custody, campaigned to end the use of prison for 15 and 16 year old girls, and to include all children leaving custody in child welfare and protection. Frances Crook has led the charity for 25 years and has been a board member of the School Food Trust, Barnet NHS and Greenwich University.

Professor Jane Fortin is Professor of Law at Sussex Law School, Sussex University. She is particularly interested in the way that the law affects children and their families and writes widely on the legal and policy developments relevant to children. Her interest in children’s rights has led to many publications focusing on this aspect of child law, and to her book Children’s Rights and the Developing Law, the third edition of which was published by Cambridge University Press in 2009.

Professor Jane Fortin chaired the Expert Advisory Group.

Richard Garside is the director of the Centre for Crime and Justice Studies, an independent public interest charity that engages with the worlds of research and policy, practice and campaigning. The Centre aims to

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inspire enduring change by promoting understanding of social harm, the centrality of social justice and the limits of criminal justice. Richard is an advocate for raising significantly the age of criminal responsibility.

Penelope Gibbs runs Out of Trouble, a Prison Reform Trust programme to reduce child and youth imprisonment in the UK. The programme is trying to make child imprisonment truly a last resort for the shortest possible period of time.

Numbers of children imprisoned in the UK have reduced by 30% in the last three years but at approximately 2000 at any one time, they are still too high. The Prison Reform Trust uses the Convention on the Rights of the Child and other international guidance on children’s rights to persuade decision makers not to imprison and policy makers to adapt policy so it is more difficult for judges to use imprisonment.

Professor Barry Goldson holds the Charles Booth Chair of Social Science at the University of Liverpool.

He is also ‘Visiting Professorial Research Fellow’ at the Faculty of Law, University of New South Wales, Sydney (2010-12). His most recent authored and/or edited books include: In the Care of the State? Child Deaths in Penal Custody in England and Wales (Inquest, 2005); Youth Crime and Justice (Sage, 2006), Comparative Youth Justice (Sage, 2006), Dictionary of Youth Justice (Willan, 2008); Youth Crime and Juvenile Justice (an edited three-volume set of international ‘major works’, Sage 2009) and Youth in Crisis? ‘Gangs’, Territoriality and Violence, (Routledge, 2011). A particular concern with the protection and promotion of human rights is central to all of his research, teaching and publications.

Lorna Hadley qualified as a social worker in 1995. Since this time she has specialised in the field of youth justice and has significant front line and management experience having started her career in youth justice teams and progressing through the changes to youth offending teams. Lorna currently manages a youth offending service in East London. She has been the Chair of the Association of Youth Offending Team Managers Ltd (AYM Ltd) since March 2010. AYM Ltd is the professional association for heads of youth offending services and managers in youth offending teams in England and Wales. Lorna is also currently the Chair of the Standing Committee for Youth justice (SCYJ). The SCYJ is a membership body which provides a forum for organisations, primarily in the nonstatutory sector, working to promote the welfare of children who become engaged in the youth justice system.

Pam Hibbert has a long history as a practitioner and manager in children’s services and until 2009 was Assistant Director of Policy at Barnardo’s. Since her retirement she has undertaken work for the Children’s Commissioner for England and User Voice and is a member of the Restraint Accreditation Board for the Ministry of Justice. She is Chair of the National Association for Youth Justice and a member of the Standing Committee for Youth Justice. Pam is committed to improving the rights of children in trouble with the law and particularly those in custodial institutions; she is the author of a number of reports relating to youth justice.

Kiran Iqbal is 14 years old. She works with various organisations like CRAE to promote the rights of children. She does this because she wants to help make sure that each and every child in the world is

Doing right by children

treated fairly with equality and dignity. Also so that their voices are heard. Kiran enjoys doing this very much and will continue to do so in the future.

Ethan Marriott is 12 years old. He has held the post of Children’s Champion of Rochdale from 2009; a post which is voted by children. He represents the children and young people of his town at various events to raise awareness of rights and responsibilities. He attends his local community school in Rochdale; positioned in an area of economic disadvantage and ethnic diversity, which gives him insight into discrimination and prejudice. He is a member of the CRAE children and young people’s advisory committee.

Maureen Obi is a human rights children lawyer with over 20 years’ experience. Maureen represents the interests of both children and parents in public law proceedings involving the state. She uses the provisions of the Convention on the Rights of the Child in promoting children’s rights within care proceedings and in any proceedings where the child’s rights are being litigated.

Dr Katherine Rake OBE took up her post as Chief Executive of the Family and Parenting Institute in October 2009. She has a strong background in social policy and research and is passionate about improving families’ well-being. Katherine previously spent seven years as chief executive of the Fawcett Society. Prior to that she was a Lecturer in Social Policy at the LSE and seconded to the Women’s Unit, Cabinet Office, where she edited a ground-breaking report on women’s lifetime incomes: Katherine has advised the Prime Minister’s Policy Unit, HM Treasury, and a

variety of other Government departments. She is a regular broadcaster and has contributed to a wide range of print media. In 2008, Katherine was awarded an OBE for services to equal opportunities, an Institute of Directors ‘Good Director’ Honour and the Social Policy Association’s Annual Award for Outstanding Contribution from a Non-academic.

Bryony Shuter is a college student and children’s rights activist. She is a dedicated campaigner in Essex and works with schools, councils and MPs to both promote awareness of children’s rights and provide training around issues for children in the Essex area.

She has led multiple training sessions for teachers, children and MPs about children’s rights and how to best respect them. Bryony is a member of the Young Essex Assembly and has been involved in campaigns around bullying, peer pressure and discrimination.

Enver Solomon is Director of Policy at The Children’s Society which has campaigned for many years to promote children’s rights and the Convention on the Rights of the Child. Enver has an established track record in social policy and criminal justice policy. Prior to joining The Children’s Society he was assistant director of policy and research at Barnardo’s. He has also worked at the Centre for Crime and Justice Studies and the Prison Reform Trust. He is a strong advocate for children’s rights particularly in the justice system.

Anita has travelled extensively to UNICEF’s field programmes, including to Angola and Southern Sudan to see first hand UNICEF’s work with children in conflict zones and to Thailand and Zambia to explore work with children who have been exploited or affected by HIV/AIDS. Before joining UNICEF in 1998, she worked for eight years at Amnesty International’s global headquarters as International Media Director.

Judith Timms OBE is Policy Consultant for Nagalro, Vice President of the Family Mediators Association and an Hon Research Fellow at the University of Liverpool.

She was the founder and former Chief Executive of the National Youth Advocacy Service (NYAS).

Geraldine Van Bueren, a barrister and one of the original drafters of the Convention on the Rights of the Child, is Professor of International Human Rights Law at Queen Mary, University of London and Visiting Fellow, Kellogg College, Oxford. Since December 2009 she has served as the lead Commissioner for Human Rights on the Equality and Human Rights Commission.

As an ex-Care leaver and chief executive of A National Voice, Maxine Wrigley works to keep the agenda of children and young people’s rights at the heart of policy making. A National Voice seeks to improve the Care system by ensuring that practice and policy remains “rights focused”.

Anita Tiessen is the Deputy Executive Director – Communications and Programmes, for UNICEF UK, responsible for the organisation’s Communication, Programmes and Advocacy work.

9. EXPERT ADVISORY GROUP 67

10.

SUMMARY OF THE CONVENTION ON THE RIGHTS OF THE CHILD

Article 1 This Convention applies to everyone aged 17 or under.

Article 2 All the rights in this Convention apply to all children and young people without any discrimination.

Article 3 Adults should always try to do what is best for children and young people. Governments must do everything to make sure children and young people are safe and well looked after.

Article 4 Governments must do all they can to make sure children and young people’s human rights are upheld.

Article 5 Parents can give children and young people advice and help about children’s rights. The more a young person knows and understands, the less advice and help a parent needs to give.

Article 6 Every child and young person has the right to life.

Governments must do all they can to make sure every child and young person has the best possible life.

Article 7 Children and young people have the right to a name and a nationality. Children and young people have the right to be cared for by both parents.

Article 8 Governments should do everything possible to protect the right of every child and young person to a name and nationality and to family life.

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Article 9 If a court is thinking about who a child or young person should live with, everyone affected by the decision should get the chance to be heard – including the child. Every child and young person has the right to keep in regular contact with both parents, so long as this is the best thing for the child or young person.

Article 14 Every child and young person has the right to freedom of thought, conscience and religion (unless there are legal restrictions). Governments must respect the right of parents and guardians to give advice to the child and young person about this right. The more a child or young person knows and understands, the less advice parents need to give.

Article 10 If a child or a parent wants to live in another country, the decision about this should be made quickly and positively.

A child or young person whose parents live in another country has the right to keep in touch with them.

Article 15 Every child and young person has the right to meet people and to gather in public (unless there are legal restrictions).

Article 11 Governments must work together to stop children and young people being taken illegally to another country.

Article 12 • Every child and young person has the right to express his or her views freely – about everything that affects him or her • The child’s or young person’s views must be given ‘due weight’ depending on his or her age and maturity • The child or young person has the right to be heard in all decision-making processes, including in court hearings • The child or young person can speak for him or herself, or someone else can speak for him or her.

Article 13 Every child and young person has the right to freedom of expression, including the right to all kinds of information and ideas (unless there are legal restrictions).

Article 16 The law must protect every child and young person’s right to privacy.

Article 17 Governments must make sure children and young people have access to lots of different information. Governments must encourage the media to give information to children and young people and protect them from harmful information and materials.

Article 18 Governments must do all they can to help parents look after children well. Parents are the most important people in children and young people’s lives. Parents must always do what is best for children and young people.

Article 19 Governments must do everything to protect children and young people from all forms of violence, abuse, neglect and mistreatment. Help must be available for children and young people who are hurt by violence, abuse, neglect and mistreatment.

Doing right by children

Article 20 Children who are separated from their parents have the right to special protection and help.

Article 21 The child’s best interests must be the top priority in adoption.

Governments can support adoption between countries.

Children and young people who are adopted by people in another country must have the same protection as children adopted by people in their own country.

Article 22 Governments must give protection and humanitarian help to children and young people who are refugees, or who are trying to be accepted as refugees.

Article 23 Every disabled child and young person has the right to a full life and to active participation in the community.* Article 24 Every child and young person has the right to the best possible health and health services.

Article 25 Children and young people who have been placed away from home by the authorities have the right to have their care reviewed regularly.

Article 26 Governments must support every child and young person’s right to benefit from social security, including social insurance. Child benefit is for every child, comes from taxes, and is part of social security. Family benefits, including allowances for children, come from weekly social insurance contributions made by employers and employees.

Article 27 Children and young people have the right to a standard of living that is adequate for them to develop fully (this includes physical, mental, spiritual, moral and social development).

Parents have the main responsibility for making sure children and young people get this right. Governments must support parents. The amount of help the Government gives depends on how rich the country is.

Article 28 • Every child has the right to free primary education • Governments must encourage secondary education, making it available and accessible to every child and young person • Access to higher education must be based on the ability to benefit from it • Governments must make sure children and young people get information about education • Governments must encourage regular school attendance • Governments must make sure that school discipline protects the dignity of children and young people, and is in line with their rights in this Convention – so no hitting or humiliation.

Article 29 Governments agree that the aim of education is to help the fullest possible growth of the child or young person’s personality, talents and mental and physical abilities.

Education must help children and young people: • Respect human rights • Respect their parents

Article 30 Children and young people from minority communities must not be stopped from enjoying their own culture, religion and language.

Article 31 Every child and young person has the right to rest, play and leisure. Governments must promote children and young people’s involvement in the arts.

Article 32 • Every young person has the right to be protected from harmful work and economic exploitation • Governments must do everything to protect this right • Governments must set a minimum age at which young people can work, and they must introduce rules to protect young people in work.

Article 33 Governments must do everything to protect children and young people from illegal drugs.

Article 34 Governments must do everything to protect children and young people from sexual exploitation (including prostitution) and sexual abuse.** Article 35 Governments must do everything to protect children and young people from being taken away, sold or trafficked.** Article 36 Governments must protect children and young people from all other exploitation.

• Respect their and others’ culture, language and values • Have self-respect • Respect the environment.

10. SUMMARY OF THE CONVENTION ON THE RIGHTS OF THE CHILD 69

Article 37 • Governments must do everything to protect children and young people from torture or other cruel, inhuman or degrading treatment or punishment. This is an absolute right, with no excuses for any breach of it • Children and young people must not be given a death sentence or life imprisonment without the possibility of release • Children and young people who are locked up should be able to challenge this quickly in court • Children and young people must only be arrested or locked up as a last resort and for the shortest possible time • Every child or young person who is locked up must be treated with respect • Every child or young person who is locked up must be separated from adults, unless it is better for him or her to be with adults • Every child or young person who is locked up has the right to keep in contact with his or her family, through letters and visits.

Article 38 • Governments agree to abide by international human rights law in relation to wars • Governments must do everything to stop children under 15 from being involved directly in a war • Governments must do everything to protect and care for children who are affected by war.*** Article 39 Governments must give good support to children and young people who have been hurt, abused or exploited.

This support must promote children and young people’s health, self-respect and dignity.

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Article 40 • Every child or young person accused, or convicted, of committing a crime must be treated with respect and in a way that helps him or her to respect the human rights of others • Every child or young person must be treated as innocent until found guilty • Every child or young person should be told as soon as possible why they have been arrested and charged with a crime • Every child or young person accused of a crime must be given immediate access to a lawyer • No child or young person can be forced to give evidence in a court • Every child and young person has the right to an interpreter if they do not understand the country’s main language • The child and young person’s right to privacy must be fully respected at all times • Governments must set up a separate criminal justice system for children and young people • Governments should promote a minimum age of criminal responsibility

Article 42 Governments must make sure everyone gets information about this Convention.

Articles 41 and 43 to 54 say how adults and governments must work together to promote and protect all the rights in this Convention. *The emphasis on children’s rights to inclusion is significantly stronger in the UN Convention on the Rights of Persons with Disabilities. The UK ratified this Convention in 2009. **In May 2000, the UN introduced stronger protections for children and young people subject to sexual exploitation and trafficking (the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography). The UK ratified this part of the Convention on the Rights of the Child in 2009. ***In May 2000, the UN introduced stronger protections for under 18 year-olds (the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict). This requires that no child or young person should ever be forced to join the armed forces, and no child or young person should ever be involved directly in a war.

The UK ratified this part of the Convention on the Rights of the Child in 2003.

• Wherever possible, children and young people who infringe the law should not have to go to court • Courts should always try to avoid sending children and young people to institutions • There must be many ways to assist children and young people who infringe the law, including care, guidance and counselling.

Doing right by children

11.

1

References

Dunford, J. (2010) Review of the Office of the Children’s Commissioner (England). Department for Education. Page 64.

2 The Minister said: ‘For too long government has been lukewarm toward the Convention on the Rights of the Child – an embarrassing and guilty secret. I want this to change and be proud of campaigning for children’s rights, which is good for children and young people and good for everybody, building civil society’.

3 The commitment was included in a Written Ministerial Statement from the Department for Education on the ‘Publication of the independent review of the Children’s Commissioner’, 6 December 2010.

4 Such an assessment, and a subsequent statement, is required by Section 19 of the Human Rights Act 1998.

5 Department for Education (February 2011) Education Bill. Memorandum of written evidence to the Joint Committee on Human Rights from the Department for Education. Paragraph 18.

6 See the annual human rights reports published by the Foreign and Commonwealth Office between 1998 and 2009. Also the statement from former FCO Minister Peter Hain MP in response to a select committee of 16 children convened to mark the tenth anniversary of the Convention on the Rights of the Child. The Minister declared: ‘Children’s rights – their promotion and protection – are a priority for this Government. Giving full recognition to the rights of children epitomises the wider aim of our human rights work – that is, to stand up for and give a voice to the vulnerable, the excluded, the ignored members of society’ (Children’s Select Committee: Report on Children’s Rights. Response of Her Majesty’s Government, July 2000).

7 Hodgkin, R. and Newell, P. (1996) Effective government structures for children. Report of a Gulbenkian Foundation inquiry. Page 130.

8 Department of Health (1996) Children’s services planning guidance.

9 Department for Children, Schools and Families (November 2009) United Nations Convention on the Rights of the Child: priorities for action. Page 1.

10 Youth Justice Board / Ministry of Justice (January 2011) Youth justice statistics 2009/10. England and Wales. Page 2.

11 Ibid. Page 4.

12 UN Human Rights Council (May 2008) Universal Periodic Review. Report of the Working Group on the Universal Periodic Review. United Kingdom of Great Britain and Northern Ireland.

13 Reported in The New York Times, 21 November 1989, ‘U.N. Assembly adopts doctrine outlining children’s basic rights’.

14 UN Committee on the Rights of the Child (2003) General comment no. 5. General measures of implementation of the Convention on the Rights of the Child.

15 UN General Assembly (1993) Principles relating to the status of national institutions (The Paris Principles).

16 UN Committee on the Rights of the Child (2002) General comment no. 2. The role of independent national human rights institutions in the promotion and protection of the rights of the child.

17 Batmanghelidjh, C. (2006) Shattered lives. Children who live with courage and dignity. Jessica Kingsley Publishers. Page 9.

18 This paragraph is an extract from Willow, C. (2007) Children, human rights and social justice. The Smith Institute.

19 Ministry of Health and Social Affairs, Sweden (March 2004) Strategy to implement the UN Convention on the Rights of the Child. Fact sheet no. 6.

20 Lee, N. (2001) Childhood and society: growing up in an age of uncertainty. Open University Press.

21 Australian Association of Young People in Care (1996) Every childhood lasts a lifetime: Personal stories from the frontline of family breakdown.

22 Thomas Hammarberg (2011) in The right stuff.

The human rights magazine by and for children and young people. Children’s Rights Alliance for England. Page 21.

23 See research on the effects of corporal punishment on children here: http://www. endcorporalpunishment.org/pages/frame.html 24 UN Committee on the Rights of the Child (2008) Consideration of reports submitted by states parties under Article 44 of the Convention. Concluding observations. United Kingdom of Great Britain and Northern Ireland. Paragraph 24.

25 Available from here: http://today.yougov.co.uk/ pdfarchives/child-behaviour 26 Home Office (1998) Introductory guide to the Crime and Disorder Act.

27 Ministry of Justice (2010). Anti-social behaviour order statistics: England and Wales 2008.

28 Ministry of Justice (2010) Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders. Page 14.

29 Goldson, B. (2009) ‘Child Incarceration: institutional abuse, the violent state and the politics of impunity’.

In: Scraton, P. and McCulloch, J. (eds). The violence of incarceration. Routledge.

30 Following the case of R. v. R in the House of Lords in 1991, rape within marriage became illegal. This was given statutory effect by Section 142 of the Criminal Justice and Public Order Act 1994 (now contained in the Sexual Offences Act 2003).

31 Parenting speech, 17 January 2011.

32 House of Commons debate on equal protection, Children Bill, 2 November 2004: Column 247 33 The Children’s Society (2006) Good childhood? A question for our times. Page 7.

34 Family Justice Review (March 2011) Interim report.

35 Department for Education (May 2011) The Munro review of child protection: final report. A childcentred system.

36 Ofsted (April 2011) The voice of the child: learning lessons from serious case reviews.

37 Speech by Swedish Ambassador Staffan Herrström on corporal punishment in Zanzibar, 20 January 2010.

38 National Council for Civil Liberties (1972) Rights of children. Report of the first conference on children’s rights. Page 25.

39 Vienna Convention on the Law of Treaties 1969.

40 Children’s Rights Director (2004) Children’s views from care and residential education on proposals in the Green Paper “Every Child Matters”. National Care Standards Commission.

41 Willow, C. (ed.) (2007) Advancing opportunity: children, human rights and social justice. The Smith Institute. Page 6.

42 Children’s Rights Alliance for England and NSPCC (2009) Children’s rights programme. EduCare.

Module 1.

43 Hammarberg, T. (2009) in Janusz Korczak. The child’s right to respect. Janusz Korczak’s legacy.

Lectures on today’s challenges for children. Council of Europe. Page 7.

44 Ibid.

45 Ed Balls MP was Children’s Secretary between June 2007 and May 2010.

46 Hodgkin, R. and Newell, P. (1996) Effective government structures for children. Report of a Gulbenkian Foundation inquiry. Page 26.

47 R. v. Barker [2010] EWCA Crim 4 48 Barnardo’s, The Children’s Society, NCH, NSPCC and Save the Children (2005) Room for improvement. A manifesto for children. Page 10.

49 Munro, E (2011) The Munro review of child protection. Final report. A child-centred system.

Page 16.

50 The Children’s Society (2009) Vision for a good childhood for all. Page 11.

51 Utting, W (1997) People like us. The report of the review of the safeguards for children living away from home. The Department of Health and Welsh Office.

52 See Willow, C. (1996) Children’s rights and participation in residential care. National Children’s Bureau.

53 Leicester City Council press release, 16 November 2010, ‘Fashion show highlights care issues’.

54 User Voice (March 2011) Young people’s views on safeguarding in the secure estate. A User Voice report for the Youth Justice Board and the Office of the Children’s Commissioner. Page 21.

55 Ibid. Page 29.

56 Ibid. Page 4.

57 Youth Justice Board (July 2006) A response to Lord Carlile’s inquiry into children in custody.

58 HM Chief Inspector of Prisons (2007) Report on an unannounced short follow-up inspection of HM YOI Werrington (16-20 April 2007) by HM Chief Inspector of Prisons.

59 HM Chief Inspector of Prisons, Annual Report 2005/06.

60 Durham County Council The Children and Young Peoples Plan 2009-2012.

61 Department for Education (May 2011) The Munro review of child protection: final report. A childcentred system.

62 Sebba, J and Robinson, C (September 2010) Evaluation of UNICEF’s Rights Respecting Schools Award. UNICEF UK. Page 20.

63 Ibid. Page 31.

64 Children’s Workforce Development Council (2010) The common core of skills and knowledge. Page 14.

11. REFERENCES 71

65 The principle of the best interests of the child. What it means and what it demands from adults. Lecture

by Thomas Hammarberg, Commissioner for Human Rights, Council of Europe, Warsaw, 30 May 2008.

66 Lansdown, G. (2005) The evolving capacities of the child. UNICEF Innocenti Research Centre. Pages 37-38.

67 132 children aged 9 upwards living in four children’s homes in Staffordshire in the 1980s were locked in “pindown rooms”, sometimes weeks at a time, deprived of human contact and daytime clothes and forced to undertake menial tasks such as copying from books. Social worker Tony Latham was the architect of the abusive regime which was formally adopted by social services managers as a means of dealing with troublesome children.

The regime was exposed after a 15 year-old told her solicitor what had happened to her (the solicitor was representing the child through care proceedings). See Levy, A. and Kahan, B. (1991) The Pindown experience and the protection of children. Staffordshire County Council.

68 Davey, C. (2008) What do they know? Investigating the human rights concerns of children and young people living in England. Children’s Rights Alliance for England. Page 32.

69 Equality and Human Rights Commisison (June 2009) Human rights inquiry. Page 78.

70 The principle of the best interests of the child. What it means and what it demands from adults. Lecture

by Thomas Hammarberg, Commissioner for Human Rights, Council of Europe, Warsaw, 30 May 2008.

71 Northern Ireland Human Rights Commission (December 2008) A Bill of Rights for Northern Ireland. Advice to the Secretary of State for Northern Ireland.

72 National Youth Agency (November 2010) Voice and influence in the youth justice system. NYA and Local Government Association. Page 7.

73 Children’s Rights Director (June 2011) Messages for Munro – a report of children’s views collected for Professor Eileen Munro. Ofsted.

74 Burke, T. (2010) Anyone listening? Evidence of children and young peole’s participation in decisionmaking in England. NCB. Page 11.

75 National Youth Agency (November 2010) Voice and influence in the youth justice system. NYA and Local Government Association.

72

76 Ofsted (April 2011) The voice of the child: learning lessons from serious case reviews.

77 Munro, E (2011) The Munro review of child protection. Final report. A child-centred system.

78 Batmanghelidjh, C. (2006) Shattered lives. Children who live with courage and dignity. Jessica Kingsley Publishers. Page 22.

79 Smith, R. and Fleming, J. (2011) An interim evaluation report into the Howard League’s legal service for children and young people. De Montfort University.

80 Klug, F (2000) Values for a godless age. The story of the United Kingdom’s new Bill of Rights.

Penguin. Page 48.

81 British Institute of Human Rights (December 2008) The Human Rights Act – changing lives. Second edition. Page 5.

82 See http://www.udhr.org/history/biographies/bioer. htm 83 Home Office (1997) Rights brought home: the Human Rights Bill.

84 Newell, P. (2000) Taking children seriously. A proposal for a Children’s Rights Commisisoner.

Calouste Gulbenkian Foundation. Page 10.

85 Allen, G (January 2011) Early intervention: the next steps. An independent report to Her Majesty’s Government. Page 6.

86 Morrow, V. (1998) Children’s perspectives on families. Joseph Rowntree Foundation Findings.

87 TNS Qual+ (October 2010) The rights of the child.

Aggregate report. European Commission. Page 26 88 Smallwood, S. and Wilson, B. (ed.) (2007) Focus on families. National Statistics. Page 3.

89 UN Committee on Rights of Child (March 2006) Day of general discussion. Children without parental care. Paragraph 648.

90 See http://www.nspcc.org.uk/news-and-views/ media-centre/press-releases/2011/11-02-15NSPCC-study-finds-one-in-five-11-17-year-oldsabused-and-neglected-in-childhood/11-02-15NSPCC-study_wdn80820.html 91 ‘Rights, participation and neighbourhoods’ in Henderson, P. (1995) Children and communities.

Pluto Press.

92 Available here: http://www.populus.co.uk/bluerubicon-dcsff-sex-education-survey-parents-ofchildren-aged-519-years-161009.html

93 In 1995, CRAE published a handbook examining the implications of children’s civil and political rights within the family – Building small democracies. The implications of the UN Convention on the Rights of the Child for respecting children’s civil rights within the family.

94 Available here: http://today.yougov.co.uk/ pdfarchives/parents-and-discipline 95 UN Committee on the Rights of the Child (2005) General comment no. 7 (2005) Implementing child rights in early childhood. Paragraphs 20 and 21.

96 Conservative Party 2010 general election manifesto. Page 43.

97 Labour Party 2010 general election manifesto. 5:2.

98 Conservative Party 2010 general election manifesto. Page 35.

99 The Infant Life Protection Act 1872 made it compulsory for persons taking for hire two or more infants less than a year old to register with the local authority.

100 CRAE (2008) State of children’s rights in England.

Review of UK Government’s implementation of the Convention on the Rights of the Child – 2008. Page 9.

101 The Centre for Social Justice (2010) Green paper on the family. Page 28.

102 Lexmond, J. and Reeves, R. (2009) Building character. Demos. Page 65.

103 Ibid. Page 57.

104 Ibid. Page 58.

105 Taylor, L. and Taylor, M. (2003) What are children for? Page 126.

106 UN Committee on the Rights of the Child (2007) General comment no. 10 (2007) Children’s rights in juvenile justice. Paragraph 53.

107 See http://www.egovmonitor.com/node/30894/ print 108 These examples were collected by CRAE for research into other countries’ implementation of Article 42 of the Convention. Many were included in a report we were commissioned to produce for the former Department for Children, Schools and Families in 2007.

109 ‘What are children for anyway?’ In Diamond, P. et al (2004) Family fortunes. The new politics of childhood. Fabian Society.

110 UN Committee on the Rights of the Child (2005) General comment no. 7 (2005) Implementing child rights in early childhood. Paragraph 16.

111 Family Justice Review (March 2011) Interim report.

Page 21.

112 Regulation 8, The Enrolment of Deeds (Change of Name) Regulations 1994.

113 Sections 31ZA and 31ZB, Human Fertilisation and Embryology Act 1990 (as amended).

114 Section 58, Children Act 2004.

115 Section 10(8), Children Act 1989.

116 Section 47(9), Adoption and Children Act 2002.

117 Section 7, Education Act 1996.

118 Section 1, Education and Skills Act 2008.

119 The Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (England) Regulations 2008.

119a Section 71, School Standards and Framework Act 1998.

120 Education Act 1996.

121 Section 50, Children and Young Persons Act 1933.

122 Section 11, Animal Welfare Act 2006.

123 Department of Health (2008) Code of practice.

Mental Health Act 1983. Page 346.

124 Education Act 1996.

125 The Children’s Society (2009) Vision for a good childhood for all. Page 19.

125a Cossar, J. et al (2011) Don’t make assumptions.

Children and young people’s views of the child protection system and messages for change. Office of the Children’s Commissioner. Page 32.

126 Ofsted (April 2011) The voice of the child: learning lessons from serious case reviews. A thematic report of Ofsted’s evaluation of serious case reviews from 1 April to 30 September 2010.

127 Stanley, N. et al (January 2010) Children and families experiencing domestic violence: police and children’s social services’ responses. NSPCC. Pages 127 and 249.

128 This is promised in the Government’s call to end violence against women and girls: action plan, published in March 2011.

129 ChildLine casenotes (August 2010) Children talking to ChildLine about parental alcohol and drug misuse. NSPCC. 130 Mabon v Mabon & Ors [2005] EWCA Civ 634.

131 R. (on the application of Williamson) v Secretary of State for Education and Employment; UKHL 15 [2005] 2 A.C. 246.

Doing right by children

132 Axon, R (on the application of) v Secretary of State for Health & Anor, Court of Appeal – Administrative Court, January 23, 2006, [2006] EWHC 37 (Admin).

133 Article 5b, Convention on the Elimination of All Forms of Discrimination against Women, adopted by the UN in 1979.

134 The President of the Family Division Lord Justice Wall’s speech can be downloaded here: http:// www.familylaw.co.uk/articles/Wall200910 135 R (A Child), Re [2009] EWCA Civ 358 136 Family Justice Review (March 2011) Interim report.

Page 21.

137 Office of the Children’s Rights Director 138 Re B (A Child) [2009] UKSC 5.

139 Sentencing Guidelines Council (February 2008) Overarching principles: Assaults on children and cruelty to a child. Definitive guideline. Part 1B. The Sentencing Council for England and Wales has power to make such guidelines by virtue of Section 120, Coroners and Justice Act 2009.

140 ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4.

141 Hodgkin, R. and Newell, P. (2002) Implementation handbook for the Convention on the Rights of the Child. UNICEF. Page 281.

142 Children’s Rights Director reports can be accessed here: https://www.rights4me.org/reports.cfm; Prisons Inspectorate reports can be accessed here: http://www.justice.gov.uk/inspectorates/hmiprisons/index.htm 143 Obtained from: Department for Education (September 2010) Children looked after by local authorities in England (including adoption and care leavers) – year ending 31 March 2010; http://www. education.gov.uk/childrenandyoungpeople/families/ childrenincare/a0065714/promoting-educationalachievement; and Meltzer H. et al (2003) The mental health of young people looked after by local authorities in England. HMSO. 144 Jacobson, J. et al (2010) Punishing disadvantage.

A profile of children in custody. Prison Reform Trust.

145 Available here: http://www.dh.gov.uk/en/ Publicationsandstatistics/Publications/ PublicationsPolicyAndGuidance/DH_4007153 146 UN Committee on the Rights of the Child (2008) Concluding observations of the Committee on the Rights of the Child: United Kingdom of Great

Britain and Northern Ireland and UN Committee on the Rights of the Child. House of Lords, 5 Febuary 2008: Column 965 147 HM Government (March 2010) The Children Act 1989 guidance and regulations. Volume 2: care planning, placement and case review.

148 http://www.education.gov.uk/ childrenandyoungpeople/families/childrenincare/telltim 148a HL Deb, 5 Feb 2008: Column 963 149 ‘Have your say’ in Criminal Justice Matters (2009), 76: 1, 40–41 150 ‘Children’s rights and youth justice: 20 years of no progress’ in Child Care in Practice, Vol. 16, No. 1, January 2010, pp 3-17.

151 The Youth Justice Board states on its website that it has overseen a number of significant achievements over the last 10 years. However, we believe it would be a misrepresentation to construe this as the organisation being content with the system as it is.

See its summary here: http://www.yjb.gov.uk/engb/yjb/FutureoftheYJB/ 152 Ministry of Justice (December 2010) Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders. Page 67.

153 Independent Commission on Youth Crime and Antisocial Behaviour (2010) Time for a fresh start.

The report of the Independent Commission on Youth Crime and Antisocial Behaviour. Page 25.

154 Available here: http://www.howardleague.org/ carlile-inquiry/ 155 More information is available from INQUEST: http:// inquest.gn.apc.org/website/press-releases/pressreleases-2011/serco-and-youth-justice-agenciescondemned-for-unlawful-treatment-of-vulnerableboy-in-custody 156 Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 18 November to 1 December 2008.

157 Joint Committee on Human Rights (November 2009) Children’s rights.

158 See UN Committee on the Rights of the Child (1995) Concluding observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland and UN Committee on the Rights of the Child (2002) Concluding observations of the Committee on the Rights of

159

160

161 162 163

164 165

166

167 168

169 170

the Child: United Kingdom of Great Britain and Northern Ireland.

Commissioner for Human Rights of the Council of Europe (17 October 2008) Memorandum by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe following his visits to the United Kingdom (5-8 February and 31 March-2 April 2008). Issue reviewed: Rights of the child with focus on juvenile justice.

UN Human Rights Council (May 2008) Universal Periodic Review. Report of the Working Group on the Universal Periodic Review. United Kingdom of Great Britain and Northern Ireland.

CRAE (2008) State of children’s rights in England.

Review of UK Government’s implementation of the Convention on the Rights of the Child.

Standing Committee for Youth Justice (2006) Still waiting for youth justice.

The Lord Carlile of Berriew Q (2006) An independent inquiry into the use of physical restraint, solitary confinement and forcible strip searching of children in prisons, secure training centres and local authority secure children’s homes.

Howard League for Penal Reform.

European Committee of Social Rights (2005) European Social Charter. Conclusions XVII-2.

Volume 2. Council of Europe. Page 836.

Stuart, M and Baines, C. (2004) Progress on safeguards for children living away from home. A review of actions since the People Like Us report.

Joseph Rowntree Foundation.

UN Committee on the Rights of the Child (2008) Concluding observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland and UN Committee on the Rights of the Child.

CRAE (2008) State of children’s rights in England.

Review of UK Government’s implementation of the Convention on the Rights of the Child.

Botley, M, Jinks, B. & Metson, C. (2010) Young people’s views and experiences of the youth justice system. Children’s Workforce Development Council.

Page 8.

Available here: http://www.coe.int/t/dghl/ standardsetting/childjustice/default_en.asp Council of Europe Commissioner for Human Rights (2009) Viewpoint: children should not be treated as criminals.

171 ‘The child, the family and the young offender: revolutionary or evolutionary?’ in Br J Criminol (1966) 6 (2): 159-169.

172 As amended by Section 9(4) Criminal Justice and Immigration Act 2008.

173 Cited in Goldson, B. The Howard Journal Vol. 48 No. 5 December 2009 174 Jack Straw, House of Commons Hansard, 10 June 2008.

175 Halliday, J. (2001) Making punishments work.

Report of a review of the sentencing framework for England and Wales. Page 7 176 Home Office (December 2003) Youth justice – the next steps. Companion document to Every Child Matters. Page 4.

177 Home Office (2003) Stopping youth crime. Tell us what you think.

178 See YJB explanation here: http://www.yjb.gov.uk/ en-gb/practitioners/CourtsandOrders/CriminalJusti ceandImmigrationAct/#purposes 179 Section 142(1), Criminal Justice Act 2003.

180 Section 142A(2) and (3), Criminal Justice Act 2003.

181 Section 73 of the Access to Justice Act 1999 amended the 1933 Act. 182 C (A Minor), Re [1995] UKHL 15 (16 March 1995) at 73 183 Obtained from the National Archives: CAB/129/122. Paragraph 12.

184 Ibid. Paragraph 10.

185 Ibid. Paragraph 22.

186 HC Deb 11 March 1969 vol 779 cc1176-303.

187 UN Committee on the Rights of the Child (2008) Concluding observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland and UN Committee on the Rights of the Child. Paragraph 78b.

188 Council of Europe (2008) Memorandum by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe following his visits to the United Kingdom (5-8 February and 31 March-2 April 2008). Paragraph 48.

189 [1995] 2 WLR 383 at Paragraph 74 190 The Crime and Disorder Act 1998 (Commencement No. 2 and Transitional Provisions) Order 1998 191 See, for example, Standing Committee for Youth Justice (March 2011) Consultation response to Breaking the cycle: Effective punishment, rehabilitation and sentencing of offenders.

11. REFERENCES 73

192 Youth Justice Board (2005) Strategy for the secure estate for children and young people. Page 9.

193 Ibid. Page 8.

194 The Lord Chief Justice of England and Wales, 16 February 2000, Trial of Children and Young Persons in the Crown Court 195 Available here: http://www.hmcourts-service.gov. uk/cms/13442.htm 196 Lord Justice Auld (2001) Review of the criminal courts of England and Wales.

197 HL Deb 21 June 2004 vol 662 cc1013-30.

198 The Offender Management Act 2007 (Commencement No.1 and Transitional Provisions) Order 2007.

199 Centre for Social Justice (March 2009) Locked up potential. A strategy for reforming prisons and rehabilitating prisoners. Page 74.

200 Section 562, Education Act 1996.

201 JUSTICE (February 2009) Memorandum submitted by JUSTICE to the parliamentary Joint Committee on Human Rights’ legislative scrutiny: Coroners and Justice Bill. Paragraphs 22-23.

202 Solomon, E. and Garside, R. (2008) Ten years of Labour’s youth justice reforms: an independent audit. Centre for Crime and Justice Studies. Page 9.

203 Professor Sir Ian Kennedy (September 2010) Getting it right for children and young people Overcoming cultural barriers in the nhs so as to meet their needs. Page 28.

204 See http://www.education.gov.uk/aboutdfe/ spendingreview/a0065470/2010/012 205 Figures quoted refer to 2009: 10 Feb 2009 : Column 1250.

206 See http://www.ifs.org.uk/publications/5371 207 YJB (July 2010) Annual report and accounts 2009/10. Page 27.

208 Allen, R. ‘Juvenile offenders – left out of the Act? ’ in Childright, October 1990. No. 70. Pages 11-12.

209 Harris, R. ‘The life and death of the care order (criminal) ’ in British Journal of Social Work (1991) 21, 1-17.

210 Scottish Government (2010) Children’s hearings (Scotland) Bill. Policy memorandum. Paragraph 338.

211 Ibid, Paragraph 340.

74

212 Paul Vallely, ‘They’ve been condemned. Now they must be understood’, Independent newspaper, 23 January 2010.

213 T v. The United Kingdom (Application no.

24724/94) 16/12/1999, paragraph 86; and V v.

The United Kingdom (Application no. 24888/94) 16/12/1999, paragraph 88.

214 T v. The United Kingdom (Application no.

24724/94) 16/12/1999, page 54; and V v. The United Kingdom (Application no. 24888/94) 16/12/1999, page 54.

215 Towler, Keith (2009) ‘Treating our children as children first’, Criminal Justice Matters, 76: 1, 42-43 216 Hart, D. and Thompson, C. (December 2009) Young people’s participation in the youth justice system. National Children’s Bureau. Page 33.

217 Ipsos MORI (2010) A review of techniques for effective engagement and participation. Research study conducted for the Youth Justice Board for England and Wales.

218 Cripps, H. (2010) Children and young people in custody 2009–10. An analysis of the experiences of 15–18-year-olds in prison. HM Inspectorate of Prisons and Youth Justice Board. Page 22.

219 Youth Justice Board (2008) Parenting. Page 8.

220 Ipsos MORI (2010) A review of techniques for effective engagement and participation. Research study conducted for the Youth Justice Board for England and Wales.

221 User Voice (March 2011) Young people’s views on safeguarding in the secure estate. A User Voice report for the Youth Justice Board and the Office of the Children’s Commissioner. Page 22.

222 Ibid. Page 40.

223 Department for Children, Schools and Families (2006) Care matters: Transforming the lives of children and young people in care. Page 42.

224 United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines).

225 McAra, L. and McVie, S. (2008) Youth justice?

The impact of system contact on patterns of desistance from offending.

226 Hicks, L. and Stein, M. (2010) Neglect matters.

A multi-agency guide for professionals working together on behalf of teenagers. Department for Children, Schools and Families. Page 27.

227 Cipriani, D. (2009) Children’s rights and the minimum age of criminal responsibility. A global perspective. Ashgate. Page 111.

228 Hazel, N. et al (undated) Young offenders’ perceptions of their experiences in the criminal justice system. End of award report: summary.

229 See Hart, D. (May 2011) Into the breach. The enforcement of statutory orders in the youth justice system. Prison Reform Trust.

230 Barnardo’s (undated) How Barnardo’s breaks the cycle. Page 3.

231 Available here: http://www.scotland.gov.uk/ Publications/2009/05/14121100/3 232 British Institute for Brain Injured Children (November 2005) Ain’t misbehavin’. Young people with learning and communication difficulties and anti-social behaviour. Page 6.

233 Doek, J. et al (1992) The United Nations Convention on the Rights of the Child. A guide to the Travaux Préparatoires. Martinus Nijhoff Publishers. Pages 475-476.

234 ‘Too young to be a criminal’ in Guardian newspaper, 5 February 2009.

235 Case of S.C. v. The United Kingdom (Application no.

6958/00), 15 June 2004, paragraphs 29 and 35.

236 The Children’s Society (2009) Vision for a good childhood for all. Page 7.

237 Standing Committee for Youth Justice (2010) Custody for children: the impact.

238 Youth Justice Board / Ministry of Justice (January 2011) Youth Justice Statistics 2009/10 England and Wales. Youth Justice Board / Ministry of Justice Statistics bulletin. Page 34.

239 Ibid.

240 Berman, G. (May 2011) Prison population statistics. House of Commons library.

241 Howard League for Penal Reform (2011) Enough on their plate. A briefing on food in young offender institutions for 15-17 year old boys.

242 Youth Justice Board / Ministry of Justice (January 2011) Youth Justice Statistics 2009/10 England and Wales. Youth Justice Board / Ministry of Justice Statistics bulletin. Page 33.

243 ancashire Safeguarding Children Board (LSCB) (3 September 2007). Report of the Serious Case Review Panel upon the circumstances surrounding the death of AR at Hassockfield Secure Training Centre on 9th August 2004. Part II.

244 Cripps, H. (2010) Children and young people in custody 2009–10. An analysis of the experiences of 15–18-year-olds in prison. HM Inspectorate of Prisons and Youth Justice Board.

245 Rule 3, The Prison Rules 1999.

246 Rule 3, The Young Offender Institution Rules 2000.

247 Rule 3, The Secure Training Centre Rules 1998.

248 Regulation 11, The Children’s Homes Regulations 2001.

249 Learning from Bristol: the report of the public inquiry into children’s heart surgery at the Bristol Royal Infirmary 1984 – 1995. Command Paper: CM 5207. 2001. Chapter 29, paragraph 16.

250 Over 100 non-governmental organisations supported this recommendation included in CRAE’s submission to the UN Committee on the Rights of the Child in 2008.

251 Goldson, B. and Coles, D. (2005) In the care of the state? Child deaths in penal custody in England and Wales. INQUEST. Pages 99-100.

252 Children’s Rights Director (2009) Life in secure care. A report by the Children’s Rights Director for England. Ofsted. Page 10.

253 National Youth Agency (November 2010) Voice and influence in the youth justice system. Page 16.

254 Children’s Workforce Development Council (2010) The common core of skills and knowledge.

255 Puffett, N. in Children and Young People Now, 25 January 2011, ‘Third of prison officers lack safeguarding training’

Doing right by children

Is having your rights respected important to you?

Yes, it’s important to everybody really, because you just want to know that you’re treated right. They’re not just there to earn their money. They’re here to help.

13 year-old boy CRAE focus group on juvenile justice, 2011

11. REFERENCES 75

Children’s Rights Alliance for England 94 White Lion Street, London N1 9PF England, United Kingdom Web: www.crae.org.uk Tel: 00 44 (0) 207 278 8222 Email: info@crae.org.uk ISBN: 978-1-898961-28-4 June 2011

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