WHAT FUTURE FOR CHILDREN’S RIGHTS IN ENGLAND?
We are here to celebrate the 20 years since the UK ratified the UNCRC and to look forward to the next 20 years and beyond. It was a major achievement to make respectable the idea that children do indeed have rights. Philosophers and academics have argued about this for years – mainly because they don’t agree about whether people who have limited capacity to make choices on their own behalf can be said to have rights at all. The dilemma is well illustrated by the Irish case of Lobe about the right of an Irish child of non- Irish parents to live in Ireland with her parents (Lobe v Minister for Justice, Equality and Law Reform [2003] IESC 3). If, as the Lord Chief Justice thought, it depends upon the capacity to make choices about where to live, then a child citizen can readily be deprived of the right to live in her own country by being deported with her parents. But if it depends upon the importance of the interest which is at stake, then a child citizen should always be enabled to live in her own country, whether or not she has the capacity to make this choice.
So as practical lawyers we do not have the same problems with the concept of children’s rights as the philosophers do. But we can still acknowledge that it is a major challenge for the law to put into operation the idea that ‘everyone’ has human rights even when that ‘everyone’ is a child with limited capacity to enforce those rights for herself. It involves quite a lot of modifications to our views about rights – not least because some of the rights of childhood involve positive rather than simply negative obligations – obligations which must be placed upon somebody, but who should that be?
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But we all know that the child is a human being. She cannot be chained in a cage as a primate can still be. That would be to deny her the respect which is due to her as a member of the human race, however young and however unable to make her own choices and enforce her own rights. She has the right not to be subjected to inhuman or degrading treatment or punishment. Once that simple fact is acknowledged then we have to find solutions to the difficulties.
So we can agree that children do have rights. These fall into perhaps five broad categories, all of them reflected in the specific provisions of the UNCRC:
(a) The right to an identity – to be recognised and counted as a human being. This is a sine qua non of all the other rights. We tend to take it for granted in this country where birth registration has been efficient and hopefully comprehensive since 1836, but there are millions of children elsewhere in the world whose existence is not recognised and counted and who may well be denied their basic status as human beings as a result.
(b) The right to nurture and care - to be fed, clothed, housed and protected from harm. These are basic socio-economic rights but in most societies we look first to the family to provide these and this is the approach of the UNCRC as well. But we also look to the state to step in, in order to supplement their role, especially in those things which cannot sensibly be provided within the family, and in extreme cases to take it over from them.
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(c) The right to education in the broadest sense – to be brought up to play a proper part in society as a responsible, grown-up, autonomous human being who can make choices and provide for herself. This includes learning the difference between right and wrong and that wrong actions have consequences – in other words to take responsibility. Onora O’Neill is right to say that the solution to the dilemma of childhood is to grow up. But we are right to expect that a great deal of the growing up process takes place during childhood and adolescence, and with appropriate help and support.
(d) The right therefore to develop that autonomy, by playing an increasing part in decisions about their own lives, in a manner appropriate to their age and stage of psychological development.
(e) The right to equal treatment, not to be denied the same treatment as other human beings, except where a difference in treatment is justified on account of their age and stage of physical and psychological development.
As with some other international human rights instruments, including the European Convention on Human Rights, I suspect that the UK thought that it was doing pretty well with children’s rights until the UN Human Rights Committee began monitoring our performance with the invaluable help of the Children’s Rights Alliance. Some good things have happened since we ratified the Convention. But whichever way we turn we find that there are things still left to do. So I want to look at some of the major developments of the last 20 years in the law of childhood before drawing a few conclusions about what still has to be done. But bear in mind that I am talking about
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the law, not about the full range of government policies affecting children. The UN Convention, the Committee on the Rights of the Child and the Children’s Rights Alliance range much more widely into policy issues than I could ever do.
(i) The best interests of the child
Article 3 UNCRC is well known to us all, although others are not as precise with its wording as we Anglo-Saxons have been:
‘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’.
The Children Act 1989, in force in October 1991, made a good start by making the welfare of the child the paramount consideration in all court proceedings about their future. This was not a new idea but it was important to have it up front and universally applicable to all kinds of disputes, thus making it clear that the children’s welfare trumps parental rights.
But this was not a general duty upon our public authorities until section 11 Children Act 2004 imposed it upon a wide range of bodies, including local authorities, health service bodies, the police, probation and prison services: now they must all:
‘. . . make arrangements for ensuring that . . . their functions are discharged having regard to the need to safeguard and promote the welfare of children’.
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In Every Child Matters (2009), the DCSF explained that safeguarding and promoting the welfare of children meant:
‘protecting children from maltreatment;
preventing impairment of children’s health and development (in the widest sense – physical, mental and psychological);
ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and
undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.’
In Castle v Commissioner of Police for the Metropolis [2011] EWHC 2317, the High Court held that this did not simply mean that the police must have institutional arrangements aimed at carrying these duties into effect, but that they must actually perform their functions in individual cases in a way which takes into account the need to safeguard and promote the welfare of the individual child concerned.
This duty has now been extended to the UK Borders Agency under section 55 of the Borders, Citizenship and Immigration Act 2009, following the UK’s welcome withdrawal of its reservation in relation to immigration issues. This ought to have a profound effect, not only upon how the Agency goes about looking after the children
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for whom it is responsible, but also upon how it goes about making its decisions. Efforts have certainly been made to reduce the numbers of children detained by the Agency but it remains to be seen whether detention is indeed being used only as a last resort.
Even before the Supreme Court’s decision in ZH (Tanzania) [2011] UKSC 4, section 55 was having an effect upon whether or not children should be removed to another country, in cases such as R (TS) v SSHD [2010] EWHC 2614. ZH (Tanzania) was about the de facto removal of children whose primary carer is to be removed from the country. The Supreme Court held (agreeing with the stance which the Secretary of State had taken by the time the case reached us) that it would be a disproportionate interference with the private and family lives of two children who had been born and brought up here to remove their mother to Tanzania, because this would in effect mean that they had to go too.
The European Court of Human Rights in Strasbourg would expect us to comply with article 3 of the UNCRC in interpreting and applying article 8, as indeed the UK Borders Agency was required to do by section 55 of the 2009 Act. This meant that the best interests of the children were a primary consideration – the first and most important - although they could be outweighed by other factors. However, the children were not to be blamed for the bad behaviour of their parents – the mother’s ‘appalling’ immigration history and the fact that she had had the children knowing that her immigration position was precarious. In reality, therefore, the children’s welfare can be a trump card.
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But why should it be a matter of welfare at all? In ZH Tanzania the children were British citizens, because they were born here to a father who was a British citizen. There is no power to deport British citizens. So why was that not a trump card?
You might say, why should it be? The effect on non-citizen children who can be removed along with their parents may be just as detrimental to their welfare. Yes, but I think there is a genuine children’s rights issue here – it is not just a question of their welfare. Expecting every issue to be decided according to this paternalistic criterion is certainly better than expecting it to be deciding according to the adults’ rights or utilitarian public concerns. But according the child an independent right, irrespective of whether it is in her best interests to try to exercise it, is different again.
The principal right of citizenship is to live in the country of which you are a citizen – you may not have right to live anywhere else in the world. It brings with it a great many other rights as you grow up. Our only handle on the issue was article 8 of the ECHR and the UNCRC is not as clear as should be.
There is no unequivocal
statement in the UNCRC that children have the right to live in the state of which they are nationals. We may be being critical of the performance of the UK in implementing the Convention. I think we can also be critical of the Convention in not recognising something as fundamental as this.
However, after our decision in ZH (Tanzania), the rights of citizen children probably have become a trump card, not because of Strasbourg but because of Luxembourg. In the Zambrano case (Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09), the European Court of Justice held that refusing a residence and work permit to the
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parent upon whom an EU citizen child was dependent deprived the child of the enjoyment of the substance of her rights as an EU citizen.
(ii) The voice of the child
The second thing that the Children Act 1989 did was to introduce a new requirement – previously only in adoption law – to take account of the wishes and feelings of the child, not only in court proceedings but also in the provision of children’s services by the state. I think that framers of the Act would have done this even without article 12 of UNCRC, which as you know requires State parties to assure to the child who is capable of forming views the right to express those views freely in all matters affecting her, to have them given due weight in accordance with her age and maturity, and in particular ‘to be heard in any judicial and administrative proceedings affecting her, either directly or through a representative or appropriate body, in a manner consistent with the procedural rules of national law.’
Thus the object is to see the child as an actor in her own right rather than simply the recipient of other peoples’ views about what is best for her – to try to reconcile the competing goals of the child’s welfare and her right to self determination.
But that aim is imperfectly realised even now. We haven’t worked out satisfactory mechanisms for taking account of children’s views when the adults are agreeing about their futures. We cannot prevent separating parents making arrangements for their children without any regard to how the children feel or what the children want. Some family mediators will try to involve the children either directly or indirectly but it is
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not a professional requirement, any more than it is a professional requirement for lawyers brokering a deal to do so.
Even when the adults disagree, the courts are reluctant to hear from children direct. They want to hear their views through the professionals. It is understandable that they should fear that if they begin to hear directly from children, the services of the professionals upon whom the courts depend so much may be reduced or even taken away. In fact, it goes deeper than this. The family justice system takes the view that meeting the children should be more in the nature of a public relations exercise – reassuring the child that she is seen as a real person and enabling her to learn more about what goes on in court - rather than actually helping the court to make a decision.
While the courts remain reluctant to listen to children directly, the Children Act 2004 increased the situations in which local children’s services authorities have to take account of the wishes and feelings of individual children – not just in relation to how they are looked after, but also in the provision of support services in the community and when deciding whether or not to bring care proceedings about them. But just as in courts there is a tendency to mediate the views of children through others, I wonder whether there may be a similar tendency within local authorities, so that the person actually making the decision about what to do is not the person who actually knows the child and what she thinks?
(iii) Children as victims
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The Youth Justice and Criminal Evidence Act 1999 changed the rules of evidence to make evidence from children more readily admissible in all legal proceedings. Formal corroboration requirements had already been abolished. Criminal courts are now much readier to hear evidence from children. Achieving Best Evidence (ABE) interviews can stand as their evidence in chief. Special measures can make it easier for them to give of their best in the witness box.
There may also have been a change in the approach of family courts as a result of Re W (Children) [2010] UKSC 12. There is no longer a presumption against child victims giving evidence in care proceedings, although I suspect that very few are still called. Some can see this as a bad thing – requiring children to give evidence and therefore to be challenged about what they have said about the abuse which they have suffered. Others can see as respecting the child as a real person with her own account to give of what has happened to her. I think that what we are all searching for is the best way of hearing the authentic voice of the child, which includes a sensible way of assessing the reliability of what the child has to say.
But that does not necessarily mean giving a free hand to cross examine the child in whatever way the opposing advocate thinks most effective. Child psychiatrists still find it hard to understand why they and ABE interviewers are required to refrain from asking leading questions or otherwise suggesting to a child what the preferred response may be, whereas defence counsel are allowed to do it all the time in crossexamination.
(iv) Children as wrongdoers
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Beware of what you wish for? When the Children Act was under discussion, we were very keen to separate the issue of whether parents were looking after their children properly from the issue of whether the state should be punishing naughty children. So a by-product of the good things in the Children Act was separation of care and criminal proceedings involving children.
When that happened diversion was all the rage. Very few children were then placed in custodial settings within the penal as opposed to the child care system. It was not expected that the criminal justice system would become more vindictive towards them. Perhaps the Bulger case changed the public mood. Certainly the government in 1998 decided that diversion had gone too far and started restricting police discretion. This meant putting children on the ladder of ever-escalating responses to bad behaviour. It is not surprising that there was a resulting explosion in the numbers of children in penal custodial settings. At the same time, we saw the introduction of ASBOs – a new way of stigmatising and eventually punishing children.
Then there was the abolition of the doli incapax presumption by s 34 Crime and Disorder Act 1998. In R v JTB [2009] UKHL 20, the House of Lords held that this had also abolished the defence. So in this country we have an unusually low age of criminal responsibility (most other European jurisdictions start at 12 or older) coupled with no formal recognition that moral responsibility can vary according to age and psychological development. This means that the criminal justice system, which has some severe measures at its disposal, operates on a model of responsibility which is completely different from the approach of the civil law– which looks to the capacity
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of the child to understand the implications of the decisions which she is making – the so-called Gillick competence test (from Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112).
Community sentences for children have been revamped as Youth Rehabilitation Orders. There has been a small reduction in the number of children being locked up in secure institutions as a result of their offending behaviour. But CRAE suggests that there is still no real distinction in law, policy and practice between how the state responds to adults and to children who are in conflict with the law. For example, the law continues to include punishment, as opposed to reform and rehabilitation, among aims of sentencing for children.
The UN Committee on the Rights of Children was ‘concerned at the general climate of intolerance and negative public attitudes towards children, especially adolescents, which appears to exist in the State Party, including in the media, and may be often the underlying cause of further infringements of their rights’ (para 24). There is not much evidence that the Government has heeded their recommendation to take ‘urgent measures to address the intolerance and inappropriate characterisation of children, especially adolescents, within the society, including in the media’.
(v) Education
It was thought to be a good idea to bring children’s social and educational services together in the wake of Victoria Climbie affair – and I have a great deal of sympathy for that because there are many complaints about the lack of joined-up thinking at
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both policy and operational levels. It is easy to see this at the policy making level. If everyone has to make cuts, they can only cut the budgets for which they are responsible. They cannot assess the effects which their cuts will have on another Department’s area of responsibility. So at operational level it might make sense to bring together the two kinds of children’s services.
However it has highlighted the differences in approach between education and social services. The main one – ironically - is that children do not have the same voice in educational decisions as they do in care and upbringing decisions. In general it is assumed that parents and children’s interest are identical. Parents are in charge. Parents can institute appeals against exclusion. Parents take part in the assessment of special educational needs and challenging the outcome.
The Government may have agreed to pilot the participation of children with special educational needs in the assessment and statementing decisions, but children still do not have the right to be heard in exclusion decisions. So a child may still suffer the consequences of his parents not doing the right thing – as happened to the child in the Ali case (A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14). He was illegally excluded from school, but his parents did not take part in the exclusion proceedings, nor did they take up the offer of (limited) alternative education. But the majority of the House of Lords held that there was no breach of the child’s rights and Strasbourg agreed with them.
There is a continuing difficulty for some children in getting places in school at all. When I was a child we assumed that there would be school places for everyone, so
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that the parents could properly be punished for failing to enrol their children in a school or to secure their attendance once enrolled. I remember in the Family Division being totally shocked that a teenage boy who had moved from one London Borough to another had not automatically been offered a place in a school in the borough to which the family had moved. It should be the right of every child to walk into a new school in that situation. The children are not to blame for what their parents do.
But there are still children who have difficulty gaining access to educational facilities which meet their needs – children with disabilities, children of travellers, asylum seeking children, dropouts and non-attenders, and excluded children, and children in custodial settings. It is good that these children too are to have the right to a proper education.
Some of us thought that article 2 of the first Protocol to the European Convention might provide a solution to children who had been denied the right to education – because this is the one article which seems to set out a positive right: ‘No-one shall be denied the right to education’. But it turns out that this is just a right not to be discriminated against in access to the education which the state has on offer. Even if the child has unlawfully been denied such access, but has been offered something else, that is apparently alright. And I doubt whether anyone really understands that, in A v Essex County Council [2010] UKSC 33, the Supreme Court did hold that a disabled child who has been denied any education at all for a substantial period of time might have a claim.
(vi) Children’s Commissioners
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We now have Children’s Commissioners in every part of the UK. But their powers and duties are significantly different. The question has always been whether they should simply have a policy guidance role – very important – or whether they should also have an ombudsman role – hearing complaints on behalf of individual children. Both the Northern Ireland and Welsh Commissioners have that power. The English and Scots as yet do not.
But plans are afoot to transform the role of the Children’s Commissioner for England – to give the new Office a new power to investigate individual cases where there are wider implications for the rights of children, a new power to carry out inquiries on issues which have a wider significance for the rights of children (without consulting the Secretary of State), and a new power to assess the impact of new policies and legislation on the rights of children.
There is little doubt that in our system an individual complaints handling system is more effective in securing change than a general policy advocacy role. Which brings me to . . .
(vii) Access to Justice
As I keep on saying, it is not the function of a judge to attack government policy. But it is the function of a judge – or indeed anyone else who cares - to warn the government of what may be the unforeseen and unintended effects of its policies in matters within their experience and expertise.
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One of the great achievements of recent decades has been to enable children to have access to justice in a wide variety of issues which really matter to them – especially education, leaving care, employment and welfare benefits. It is not at all surprising that the Government should wish to reduce the unmanageable legal aid bill. But its approach is to take whole areas of activity out of scope – not only for legal representation but also for advice and help. This includes disputes between parents about the upbringing of children; victims of domestic violence and their children unless they have obtained certain sorts of order; disputes about education – exclusion, bullying, grants, loans, and special educational needs; employment and discrimination disputes; welfare benefits; and immigration and trafficking.
Sound Off for Justice and JustRights have looked into how children and young people will lose out from the proposed cuts to civil legal aid. Like many people, they consider that the cuts are unlikely to achieve any real financial benefit: ‘the long term costs of leaving children and young people’s problems unresolved are likely to far outweigh the short term savings. Unresolved legal problems have knock-on impacts on children and young people’s employment prospects, physical and mental health and housing. New research shows that there are links between unresolved problems and young people’s offending behaviour. In their view Government could make greater savings by helping young people solve their problems earlier, rather than by cutting off access to legal help’ (p 24). The problem, of course, is that it is difficult for individual Government departments, when required to make cuts, to take into account that their cuts now will have an impact in the future on the budgets of other Government departments.
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Conclusion
I do think that things are a good deal better than when the UK ratified the Convention, not least because of the conversations we can now have which we could not have had before. But it is obvious that when the law and practice of one of the largest economies and most developed societies in the western world are subjected to scrutiny they can easily fall short. I have not discussed the socio-economic questions – such as the aim to eradicate relative child poverty by 2020 – because that is not a legal question unless Parliament makes it one. I think that we can look at our legal system and think that we have made some significant progress since 1991. But we still fall short in a number of significant ways, if we measure the achievements of our law in the five broad areas which I mentioned at the outset.
(a) On the right to an identity, it would worry me a great deal if there were evidence that some of the children born here were not being registered or if adopted children and children born as a result of assisted reproduction were still being denied the means to find out who their real parents are.
(b) On the right to nurture and care, the legal structures are there, both to oblige parents to provide it and to provide alternative care if they do not. But we can still worry if significant numbers of children are being provided with alternative care, not because their parents are incapable of looking after them properly, but because they are too poor to do so. Should we really see parental poverty, without more, as an acceptable reason for accommodating a child elsewhere?
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(c) On the right to education and training, we can see that children are still not yet adequately given a voice in decisions about their education. But we can also see that the criminal justice system is often aimed at satisfying the public desire for punishment and revenge rather than at what should surely be its true purpose which is the education and development of the child.
(d) On the right to develop autonomy, we have seen the increasing participation of children in decisions about their future, but it is still patchy and undecided about its purpose – reassuring the child or taking the child seriously.
(e) On the right to equal treatment, we can welcome the Equality Act 2010, which includes age among the protected characteristics for a wide range of activities, not just in employment and vocational training, as it was before. But we can look to a number of important areas where children are still not treated equally with adults, most notably in the lawful use of force against them, whether in the remaining powers of corporal punishment or in the use of ‘restraint’ in secure settlings.
So the message is that lots of good things have been done but there are still lots of good things to do even on the narrow legal front with which I have been concerned and there is a serious risk that the access of many young people to the legal remedies which are their right will be beyond them. So what does that tell us about who really believes that children have rights?
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