State of Children’s Rights in England [2009]

SPECIAL UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD TWENTIETH ANNIVERSARY EDITION

Making Children’s Rights Everybody’s Business

The picture on the front cover shows Audrey Hepburn and two boy scouts at the official signing of the adoption of the United Nations Convention on the Rights of the Child on 20 November 1989:

(Copyright) UNICEF/NYHQ1989-0089/Ruby Mera

The Children's Rights Alliance for England (CRAE) seeks the full implementation of the Convention on the Rights of the Child in England. Our vision is of a society where the human rights of all children are recognised and realised.

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, regional 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.

This publication is the seventh annual State of children’s rights in England report in the series, the first being published in 2003.

Gordon Brown MP, Prime Minister and leader of the Labour Party

…the values of fairness and responsibility [are those] that we teach our

children, celebrate in our families, observe in our faiths, and honour in our communities.

David Cameron MP, leader of the Conservative Party

… I know there are children growing up in Britain today … who will live the life they’re given, not the life they want. That is what I want to change … I want every child to have the chances I had.

Nick Clegg MP, leader of the Liberal Democrat Party

Giving children the best possible start in life is at the heart of everything [we] believe in.

CONTENTS

FOREWORD ...... 7

PROGRESS OVER 20 YEARS OF CHILDREN’S RIGHTS ...... 8

WHERE THE UK MUST IMPROVE ...... 12

UK Children’s Commissioners ...... 12 Bringing legislation into line with the Convention ...... 12 Co-ordination at government level ...... 13 Best interests ...... 13 Non-discrimination ...... 13 Child poverty ...... 13 Child protection ...... 13 Equality ...... 15 Participation ...... 15 Privacy rights ...... 16 Children in care ...... 16 Children with disabilities ...... 17 Juvenile justice ...... 17 Physical restraint in custody ...... 18 Use of physical punishment ...... 18 Young refugees and asylum seekers ...... 19 Plans of action ...... 19 ORGANISATIONS ON THE STATE OF CHILDREN’S RIGHTS ...... 21

GENERAL MEASURES OF IMPLEMENTATION ...... 29

Address previous recommendations ...... 29 Legislation ...... 30 Co-ordinating implementation ...... 31 Budget allocation and child rights assessments ...... 33 Children’s rights impact assessments ...... 34 Powers of the Children’s Commissioner ...... 35 Dissemination ...... 36 Engagement in policy development and human rights monitoring ...... 39 GENERAL PRINCIPLES ...... 41

Status of children and young people in society ...... 41

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Discrimination ...... 42 Children’s best interests are not a priority ...... 46 Protection of the right to life ...... 47 Reviews of unexpected deaths ...... 48 Tasers and harmful devices ...... 48 Respect for children’s views ...... 49 CIVIL RIGHTS AND FREEDOMS ...... 52

Anti-social behaviour measures ...... 52 Protection of children’s privacy rights ...... 54 Protecting children’s privacy in the media ...... 56 The use of restraint ...... 57 Ending violence against children ...... 59 FAMILY ENVIRONMENT AND ALTERNATIVE CARE ...... 63

Supporting parenting ...... 63 Avoid taking children into care ...... 64 Complaints remedy ...... 64 Children in public and institutional care ...... 65 Children with disabilities ...... 66 Care leavers ...... 67 Family contact ...... 68 Adoption ...... 69 Violence, abuse and neglect ...... 69 BASIC HEALTH AND WELFARE ...... 73

Achieving equality for children with disabilities...... 73 Reduce health inequalities ...... 75 Improve mental health ...... 76 Respect children and young people’s sexual and reproductive rights ...... 77 Protect young people from drug and alcohol related harm ...... 78 End child poverty and ensure an adequate standard of living for all ...... 79 Support gypsy, Roma and traveller children ...... 80 Breastfeeding ...... 81 EDUCATION, LEISURE AND CULTURAL ACTIVITIES ...... 83

Overview ...... 83

Inclusion ...... 83

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Exclusion and conflict in school ...... 84 Strengthen participation of children and young people in school ...... 86 Right to play ...... 87 SPECIAL PROTECTION MEASURES ...... 89

Asylum seeking and migrant children ...... 89 Child well-being: Best interests or immigration status? ...... 92 Age disputes ...... 93 Immigration processes ...... 95 Sale, trafficking and abduction ...... 95 Administration of juvenile justice ...... 97 Minimum age of criminal responsibility ...... 98 Make child custody a genuine last resort ...... 99 Children should never be tried as adults ...... 102 Children in custody should be separated from adults ...... 102 Statutory right to education for all locked up children ...... 103 Application of counter-terrorism law to children ...... 103 Rights of child victims and witnesses of crime ...... 104 Ratification of human rights instruments ...... 106 Training on and dissemination of the Optional Protocol ...... 109 Interpretative declaration ...... 109 Recruitment into the Armed Forces ...... 110 Refugee, asylum-seeking and migrant children and young people ...... 112 Treatment of under-18s in the Armed Forces ...... 113 Other welfare concerns ...... 114 REFERENCES ...... 115

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FOREWORD However, the fact is that the Government is breaching directly and systematically several

important rights for children. The areas where we This year represents a momentous landmark in continue to do most wrong by our children – for the children’s rights calendar, as it is the 20th example in matters of criminal justice, equality, anniversary of the United Nations adopting the media reporting, asylum-seeking and child abuse Convention on the Rights of the Child. The – are those where, as a society, we have clearly Convention is the most widely adopted failed to give sufficient regard and emphasis to international legal instrument, against which all of children’s human rights. our laws, policies and services for children and young people should be judged. It is the Government’s own stated ambition to

make this country ‘the best place in the world for To mark the occasion, the 2009 State of children’s children to grow up’. To achieve that rights in England report will start by reflecting commendable aim we call on the Government to over the past 20 years. show the courage and political will necessary to

take the lead in making children’s rights During this time, the subject of children’s rights everybody’s business. has, in both professional and public life, progressively shifted towards the mainstream to a point where policies are increasingly informed by some consideration of children’s rights. As a Dr Mike Lindsay result, we are perhaps more able to conduct National co-ordinator, Children’s Rights Alliance mature and serious debates about a whole host of for England children’s rights issues that would have been open to widespread ridicule or even hostility in the past.

While nobody would wish to pretend that we have achieved a society that fulfils all aspects of the Convention for all children and young people – particularly given that parts of the media persist in vicious and unbalanced reporting on children and young people’s issues – the children’s rights debate is, for the most part, finally beginning to 7 find its rightful place.

While many are reluctant to use the language of children’s rights, it is evident that the aspirations many of us have for children, whether as politicians, practitioners or parents, increasingly coincide with one or more of the 54 articles set out in the Convention. In fact, it is becoming ever more difficult to find specific measures within the Convention to which any reasonable person would take exception. Over the last 20 years more of us have become less antithetical towards the concept of children actually having rights.

The Government is trying to address negative reporting in the media, but recognises that it could do much more. Promoting a greater climate of respect and regard for children’s human rights, within our culture, would be an ideal starting point.

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PROGRESS OVER 20 YEARS OF CHILDREN’S RIGHTS1

This year marks the 20th anniversary of the United In response to the UN Committee’s concluding Nations Convention on the Rights of the Child observations on the UK in October 2008, the then (UNCRC). Here we consider some of the greatest Children’s Minister, Beverley Hughes MP said: achievements for children’s rights over those 20 years and reflect on some of the significant I broadly welcome the concluding observations and, opportunities that have been missed. while areas of difference with the Committee remain, we will give the Committee's recommendations the Introduction careful consideration they deserve. This process will It is worth emphasising that children’s rights in include a dialogue with non-governmental this country did not begin and end with the organisations and the four United Kingdom UNCRC nor, indeed, with its ratification by the UK Children's Commissioners. Our Children's Plan, Government on 14 December 1991. The 1985 published in December 2007, sets out our ambitions landmark ruling in the Gillick case2 and the and strategies to tackle many of the issues the UN appointment of a local authority children’s rights Committee has highlighted. Later this year we will officer back in 19873 both pre-date the UNCRC. In report on progress against the commitments made in any case, the subject of children’s rights was the Children's Plan.4 established long before this, expressed through the 1970s “student power” movement in schools, CRAE regrets that, through this statement, the and other more mainstream strands both then Government perpetuates a systemic lack of and before. understanding of the UNCRC as a legal and binding instrument; and remains in conflict with the one While the UNCRC has rightly become the body given international authority to interpret it. definitive international binding instrument for The Minister’s references to the Children’s Plan children and young people’s rights, there are some indicate a worrying trend, in the government examples where domestic legislation and practice narrative, of a narrow, partial and piecemeal have gone further in realising children’s rights. approach to UNCRC implementation, which The emergence of the “Gillick” principle (albeit presumes on a number of key issues to know better weakened by subsequent judgments) and than the many experts in children’s rights, both at measures set out in the Children Act 1989 have home and abroad, who agree that the UK still has enabled children and young people, in given some way to go. circumstances, to acquire some rights to participate in decision-making. It is also The areas where England must improve are increasingly the case that children and young summarised on pages 12-19 and the state of people are consulted by government over major children’s rights in relation to all aspects of the policy decisions and legislation affecting them. UNCRC is set out in detail from page 27. Children and young people have qualified rights to see personal information that is about them; and, There follows a timeline depicting some of the by size and population, England (along with other significant children’s rights achievements and parts of the UK) has one of the most prolific positive developments in the UK, from the adoption infrastructures of professional children’s rights of the UNCRC by the UN General Assembly in 1989 and advocacy services anywhere in the world. to the present day. These are important developments for children and young people, and illustrates how 1989 conventions can be living instruments, able to be The United Nations General Assembly adopts the progressively interpreted over time. UNCRC, and it is opened for signature and ratification on 20 November (on the occasion of the The UNCRC provides a comprehensive set of 30th anniversary of the UN’s Declaration of the universal children’s rights obligations. It acts as an Rights of the Child). It has since become the most authoritative reminder to the governments of the universally ratified convention in international world that they cannot justify picking and history. choosing which children’s rights they will observe and which they choose to ignore. The case of Gaskin v UK in the European Court of Human Rights, Strasbourg, has a substantial impact 8 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

on UK law, helping to establish an important right growing number of children living in poverty in the for many children and young people to see UK. personal information that is kept about them.5 1996 The Children Act becomes law. It gives greater The North Wales Child Abuse Tribunal proves to be emphasis to the views and welfare of children and a triumph of children’s human rights over young people, strengthening provisions commercial interests. Insurance companies previously brought in under the Children Act threaten to withdraw cover from two local 19756; and radically transforms centuries of authorities, Clwyd and Gwynedd, if they publish tradition in which children and young people their independent reports into abuse in care were seen as little more than the possessions of scandals. Welsh Secretary William Hague and Prime their parents. The Children Act 1989 stands as the Minister John Major intervene and order a full piece of domestic legislation that best evokes the public inquiry to be carried out by Sir Ronald spirit of the UNCRC. Waterhouse. The subsequent report Lost in Care is published in 2000.7 1991 Prime Minister John Major ratifies the UNCRC on 1998 behalf of the UK, thereby giving a solemn The Human Rights Act is introduced. While not commitment to its full implementation into specifically a children’s rights instrument, it applies domestic law and policy, subject to reservations in to children as it does to adults and is a crucial relation to the treatment of young refugees and safeguard for children’s human rights. The Act asylum seekers and the separation of children directly incorporates into UK law the articles of the from adults in custody. Its ratification attracts European Convention on Human Rights (ECHR). wide cross-party support. Since ratification, the Articles 3 (prohibition of torture) and 8 (respect for UNCRC has been strengthened further in the UK private and family life) are among those that have through the ratification of its two Optional been used to great effect for children and young Protocols, and the removal in 2008 of the last people. remaining UK reservations: a wide-ranging reservation regarding the treatment of young Corporal punishment is finally abolished in virtually refugees and asylum seekers, and a reservation to all schools, having been abolished in state schools in Article 37c regarding the separation of children in 1986. However, the Government continues to resist custody from adults. banning physical punishment in the home, even though it would appear that parents are 1994 increasingly saying that they do not smack their A comprehensive independent assessment of children. children’s rights, based on the UNCRC, is produced. The Children’s Rights Development The Sure Start programme is announced. The Unit’s UK Agenda for Children report coincides Government scheme aims to achieve better with the UN Committee on the Rights of the outcomes, and reduce inequalities, for children Child’s first examination of the UK in 1995. There under five by: had been fairly comprehensive assessments previously, in 1979 – the International Year of the  Increasing the availability of childcare for all Child, and from the Children’s Legal Centre children throughout the 1980s, both of which, by  Improving health and emotional development definition, pre-dated the UNCRC. for young children  Supporting parents both as parents and in their 1995 aspirations towards employment. Whilst the UN Committee on the Rights of the Child finds cause to commend the UK Government 2001 on four counts, including its commitment to Wales appoints the UK’s first children’s expanding pre-school education, it also identifies commissioner. Northern Ireland (2003), Scotland 15 significant areas of concern. These include the (2004) and England (2005) soon follow suit after lack of action to embed the principle of the child’s sustained campaigning by non-governmental best interests in relevant legislation and the organisations including CRAE. The UK Commissioners’ powers vary considerably. All, bar 9 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

England’s, have a clear function of promoting and The Government produces its first ever national safeguarding children’s rights. The function of the Children’s Plan for England, comprehensively English Commissioner is to promote awareness of setting out its strategic objectives. While children’s the views and interests of children. The UK rights do not feature among its main principles, the Commissioners also have varied powers in UNCRC and the Government’s human rights relation to taking up cases on behalf of individual obligations towards children and young people are children, with England’s Commissioner statutorily referenced in an annex. Although widely welcomed prevented from doing this. for its commitment to investment for children, the Children’s Plan cannot be mistaken for the 2002 comprehensive, overarching statement of The Children’s Rights Director for England is commitment to children’s rights provided for by the appointed with a specific statutory brief to UNCRC framework. promote the rights and obtain the views of children and young people living away from home, The establishment of the Equality and Human receiving social care services, and leaving care. Rights Commission presents an opportunity for The function involves advising Ofsted, reporting improved protection of children’s equality and children’s views to Government and taking up human rights. cases on behalf of individual children. 2008 The UK is examined for the second time by the CRAE’s Get ready for Geneva project supports Committee on the Rights of the Child. The children and young people to carry out an Committee raises significant and serious concerns, unprecedented nationwide children’s rights including about the Children’s Rights Director’s investigation with more than 1,700 of their peers. It perceived lack of independence. aims to discover how well children and young people feel their rights are being respected in 2003 England. The evidence is presented by children and The Government seeks children and young young people to both the UN Committee on the people’s views for the Every Child Matters Green Rights of the Child and the UK Government’s Paper. This sets a precedent for subsequent Children’s Minister. government consultations and legislation affecting the lives of children and young people. On the occasion of its examination by the UN Committee on the Rights of the Child in September The UK ratifies the UNCRC’s Optional Protocol on 2008, the UK Government announces the Involving Children in Armed Conflict in June 2003. withdrawal of its reservations to the UNCRC on the treatment of young refugees and asylum seekers 2006 and the separation of children from adults in The Education and Inspections Act requires the custody. inspectorate Ofsted to have regard to ‘the need to safeguard and promote the rights and welfare of The Government publishes its Equality Bill which children’. will strengthen and consolidate equality law protection in a range of areas. Disappointingly, 2007 children are specifically excluded from new age The first Secretary of State for Children, Schools discrimination protection. The Young Equals and Families is appointed. The new Department coalition, co-ordinated by CRAE, launches a for Children, Schools and Families brings together campaign seeking children’s inclusion in these responsibility for many services for children and provisions. young people, in particular education and children’s social care. However, the opportunity to During the passage of the Criminal Justice and ensure complete integration across all children’s Immigration Bill, cross-party support is achieved policy areas is not extended to areas such as for the principle of a statutory safeguard to prevent health, immigration or juvenile justice, which children being sent to custody except as a genuine remain either fully or partially the responsibility last resort. The provision is not yet, however, made of other government departments. law.

10 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

A UK-wide coalition of non-governmental organisations and individuals is launched by CRAE, Save the Children and UNICEF in October 2008 to seek the incorporation of the UNCRC into UK law.

2009 The Government brings forward legislation to reduce child poverty. This represents a significant step towards realising the Government’s historic commitment to eradicate child poverty by 2020. However, the legislation is yet to make its way through parliament; later in this report, CRAE sets out how, disappointingly, the Government is already missing its targets.

In February 2009, the UK ratifies the UNCRC’s Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.

The Government’s Green Paper on a UK Bill of Rights and Responsibilities recognises the UNCRC as a crucial instrument of change for children and acknowledges the need to improve respect for children’s rights.

In June 2009, the UK ratifies the UN Convention on the Rights of Persons with Disabilities, with a number of reservations opposed by disability rights campaigners. The Convention contains many important provisions for children.

The Government consults on giving children and young people the right to appeal against school exclusions and special educational needs assessments and statements made by local authorities, and the right to bring disability discrimination claims to the First Tier Tribunal (Special Educational Needs). The Government’s commitment to consult on the issue is a small but welcome step towards necessary reforms that have been resisted for far too long.

Negotiations progress towards the drafting of a third UNCRC Optional Protocol which would establish a mechanism for individual petition (i.e. hearing children’s complaints about rights violations).

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WHERE THE UK MUST IMPROVE

Every UK government over the past 20 years has, children’s rights issues of the day to the very heart in some measure, committed itself to the UNCRC. of government. Children and young people in However, progress remains slow and significant England deserve a Children’s Commissioner that is opportunities have been missed. The UK has not able to take up their concerns and issues only failed to live up to the UNCRC, but in some independently and, moreover, one whose post respects has taken backwards steps. complies with the UK’s obligations under the Paris Principles (see page 32). The UN Committee on the Rights of the Child’s 2008 concluding observations on the UK Unlike his counterparts in Northern Ireland, The UN Committee’s concluding observations on Scotland and Wales, the Children’s Commissioner the UK (October 2008) highlighted many areas for England is legally prohibited from dealing with where children and young people are denied individual children’s cases (Children Act 2004). The access to their rights.8 The Committee welcomed Children’s Commissioner for England can only the withdrawal of the UK’s two outstanding conduct general policy inquiries, having first reservations (a wide-ranging immigration consulted with the Secretary of State; and, reservation, and a reservation to Article 37c) and where doing so would not duplicate the the UK’s intention to ratify the Optional Protocol statutory functions of others. on the Sale of Children, Child Prostitution and Child Pornography (since ratified in February The Government used the opportunity of the factual 2009). It also welcomed recent references to the accuracy response we offered to them to clarify the UNCRC in the UK courts. position further:

However, the UN Committee was strongly critical Where the Children's Commissioner considers that of the UK for failing to implement several previous the case of an individual child in England raises recommendations (for example on the treatment issues of public policy of relevance to other children, of asylum seekers, the failure to ban corporal he may hold an inquiry into that case for the purpose punishment in the home and in many areas of of investigating and making recommendations about juvenile justice), and on issues including the lack those issues. of structures in place to support UNCRC implementation, health inequalities, access to However, the lack of a general function to promote services and the civil rights and freedoms of and safeguard children’s rights, the reluctance on children and young people. It said: the part of the Secretary of State to direct the Children’s Commissioner to undertake inquiries The Committee, while welcoming the State party’s (such as into the state of child protection in efforts to implement the concluding observations on England); and direct government control over the previous State party’s reports, notes with regret budget for the work of the Children’s that some of the recommendations contained Commissioner, continue to cause the greatest therein have not been fully implemented. concern.

Below is a brief summary of some of the failures The appointment of a new Children’s Commissioner to which the UN Committee drew the UK in England, from March 2010, represents an Government’s attention in October 2008, and opportunity for a fresh start. However, if the other significant children’s rights concerns that powers of the office remain inadequate then CRAE have emerged over the last 12 months. remains cautious about this signalling the step change needed for children and young people in UK Children’s Commissioners England to have a Children’s Commissioner they All four Children’s Commissioners in the UK can look to with confidence. should be mandated to deal with complaints from individual children about any violation of their Bringing legislation into line with the rights. Within his five-year tenure the first Convention Children’s Commissioner for England faces The UN Committee regretted that not all pieces of criticism for his lack of influence over policy, and domestic legislation affecting children have for ultimately failing to bring the important incorporated the UNCRC, and criticised the 12 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

piecemeal approach to this exercise: law by law, The introduction of the Child Poverty Bill to policy by policy. This has resulted in partial Parliament in 2009 seeks to set in law the target of implementation, leaving children in England with ending child poverty by 2020. However, UNICEF is limited opportunities to benefit from a full concerned that the Bill defines “eradication” only as expression of their human rights. ‘less than 10%’ of children and young people living in poverty; albeit this represents only one of four Co-ordination at government level targets set by the Bill. Also, while the Government Notwithstanding the welcome given by the UN would point to its success in lifting 500,000 Committee to the creation of a new Department children in the UK out of poverty, even before for Children, Schools and Families, it criticised a housing costs are factored in, this has to be set lack of both co-ordination and cross-government against the reality that the Government is already policy for the implementation of the UNCRC. falling short of its 2010 target to halve the number of children in poverty. Best interests The UN Committee judged that the principle of the Child protection best interests of the child is still not a primary The Government has failed to take up numerous consideration in all legislative and policy matters opportunities to address comprehensively the affecting children and young people. It identified many significant deficiencies in arrangements for juvenile justice, immigration control and freedom keeping children safe. The latest opportunity came of movement and peaceful assembly as particular with Lord Laming’s March 2009 review of child areas for concern in this regard. protection and safeguarding arrangements10 and the Government’s subsequent response to its 58 Non-discrimination recommendations, published two months later.11 In The UN Committee welcomed the Government’s outlining a programme of national and local plans to consolidate and strengthen equality government action to “reform” the child protection legislation, its adoption of action plans and the system, Children’s Secretary Ed Balls said: ‘This monitoring and data collection to tackle country has one of the best child protection systems discrimination. However, it identified particular in the world’. groups of children and young people that continue to experience unacceptable levels of CRAE believes this claim is seriously over-stated. discrimination and social stigmatisation, and There have been several positive developments in expressed concern at the general levels of child protection, with both practice and policy intolerance and negative public attitudes towards moving on in important ways. A significant change children and young people, which it felt has been the growing recognition that children contributed to further infringements of children’s should be seen as participants or even partners in rights. the child protection process. It is more widely accepted that children should attend meetings, Child poverty contribute to decisions about their lives and According to UNICEF, the UK has one of the worst express views on the child protection process. rates of child poverty in the industrialised world, Another significant development has been the with almost one child in three living in poverty. increasing public awareness of child abuse and the This high rate of child poverty significantly fact that it is being taken more seriously than contributed towards the UK’s bottom ranking of perhaps at any time in the past. Children today are 21 industrialised countries in UNICEF’s 2007 child generally better protected from sexual predators, well-being report.9 Although that particular report convicted child abusers are now more tightly has been widely criticised for errors in monitored and people seeking to work with methodology, and the End Child Poverty campaign children are better screened. recognises signs of progress in recent years, the UK still languishes in the bottom half of the up-to- Even so, the state of the child protection system in date league table of industrialised nations. As a this country remains deeply troubling in many result the UN Committee called upon the respects. Only a small proportion of children who Government to fulfill its commitment to lift are abused are ever reported to statutory child children and young people out of poverty. protection agencies, and referrals by children themselves form an even smaller number. Referrals receive widely different responses and some 13 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

serious cases are underplayed or even missed. seek the help and protection they may need. Many child and adult survivors who have reported Consequently, some children end up deliberating abuse to the authorities remain critical of the help over what are often conscious and informed choices they received, and a high proportion may be left about whether they can trust their protection to the regretting ever having disclosed abuse. statutory agencies, without fear of compromising their own privacy and well-being, or should New research, published earlier this year, continue to take their chances with the person who revealed the relationship between how much is promising to stop abusing them. A freedom of children and young people feel listened to and information request by CRAE to directors of how safe they feel. Children and young people children’s services last year found that local taking part in research by 11 MILLION mentioned authority staff are broadly unaware of the the importance of being listened to and receiving provisions of section 53 of the Children Act 2004: empathy.12 Feeling they were not listened to the duty to ascertain, as far as is practicable, the emerged as a cause of real frustration and wishes and feelings of the child. If children and disappointment, and had an impact on the way young people cannot learn to trust the system to do children and young people felt they were cared for what is right by them, then many will continue to and how much they wanted to further engage make choices that are ultimately worse for them.15 with social workers. CRAE welcomes the Government’s focus on All respondents looked after under Section 3113 improving the child protection system. However, recognised that when they were initially placed in we believe that the Government has failed to care, they were being protected from immediate recognise the need for a culture of understanding harm and the State was responsible for their safety and respect for children’s human rights as the and physical security. However, not everyone felt framework for keeping children safe. We are still a that this protection was maintained as their sense very long way from achieving the rights-based of security depended on where they were placed approach to child protection that would genuinely and with whom. make the best interests of the child the paramount consideration. The care system is an integral part of child protection in this country. It therefore has to be of The terms of reference established by the sufficient quality and safety to offer genuine Government for Lord Laming’s review of the state options for keeping children safe. Sadly, key of child protection overlook the obvious reality that professionals involved in child protection child abuse does not always confine itself to the decision-making are too often compromised narrow localities in which much of our child between judging whether a child will be safer protection system operates. There is a constant remaining at home rather than being exposed to challenge to ensure that the structures in place for the risks that may be associated with going into keeping all children well protected from abuse care. CRAE thinks that there is a risk of social remain sufficiently robust and smart for tackling workers sometimes not getting that balance quite increasingly sophisticated methods being used by right. those who not only abuse children, but who do so on an organised and geographically diverse basis. On 12 March 2009, the Children’s Secretary, Ed Current Local Safeguarding Children Board Balls, told the House of Commons: structures are much too parochial in their defined locations and outlooks for dealing with many of the No barrier, no bureaucracy, no buck-passing should growing number of child abuse cases requiring ever get in the way of keeping children safe. much more effective co-ordination and shared intelligence across national and, at times, Part of that involves the Government doing all it international boundaries. can to ensure that concerns about the adequacy of public care do not continue to act as just such a For this, and many other reasons outlined later in barrier.14 this report, it is CRAE’s contention that the current child protection system in this country is not fit Safeguarding processes remain characteristically for purpose and needs to be re-defined within a impersonal and highly formalised, giving too little rights-based framework. encouragement to children to come forward and 14 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

What might a rights-based approach look like? children’s upbringing and welfare. Ensuring children and young people’s full inclusion in the  It would ensure that we always prioritise ‘best Equality Bill is not just about determining which interests’ over ‘best value’, and ring-fenced the legislative or non-legislative devices may best resources necessary to make this happen resolve unjustified and harmful discrimination for  It would respect choices that children made, children and young people, it is an opportunity for including about who they choose to tell us to illustrate the value, as a society, we put on  It would offer children who needed it the human rights and worth of our children. “facilitative confidentiality”, on a risk-assessed basis, to enable them to discuss problems The Young Equals campaign has called on the without fear of triggering the consequences of Government to revise its plans and: a full-scale child protection response  It would ensure that children did not become  Include under-18s within protection from secondary victims of the system, such as by unlawful age discrimination in the provision of only ever losing out on their family home, on goods, facilities and services and the contact with siblings or their place in school as performance of public duties a last resort  Include schools and children’s homes in the age  It would ensure that children had access to element of the public sector equality duty properly trained and supervised social  Include a positive duty on public service workers being allowed to get on with the job, providers to make reasonable adjustments for including having their professional judgments parents and carers travelling with babies and for keeping children safe supported by the young children. system. Young Equals sets out detailed evidence Equality highlighting the systemic nature of age The UN Committee has said that it: discrimination against children and young people in both the public and private spheres in its report …welcomes plans to consolidate and strengthen Making the case.18 Age discrimination against equality legislation, with clear opportunities to children and young people is a neglected problem, mainstream children’s right to non-discrimination often unrecognised and rarely taken seriously. We into the United Kingdom anti-discrimination law. are not arguing that children and young people However, the Committee is concerned that in should be treated the same as adults or, indeed, the practice certain groups of children continue to same as children of different ages, but that they are experience discrimination and social treated equally. stigmatisation. The Committee is also concerned at the general climate of intolerance and negative Participation public attitudes towards children, especially Article 12 of the UNCRC enshrines the right of adolescents, which appears to exist in the State children and young people to have the opportunity party, including in the media, and may be often the to express their views on all matters affecting them underlying cause of further infringements of their and have those views taken given due weight. This rights.’16 has been expanded upon in the UN Committee’s recent General Comment on Article 12.19 However, The Young Equals campaign17 has welcomed the the Participation Works consortium believes that opportunity presented by the Equality Bill to the UK is lagging behind when it comes to ensuring tackle the unfair treatment of children and young that children and young people living in poverty, people on the basis of their age. with disabilities, from ethnic minority groups and younger children are given sufficient opportunities By excluding children from its plans for new age to have their views heard.20 discrimination protection under the Bill, the Government has missed an important opportunity There are many good examples of children and to ensure that legislation affecting children and young people being consulted at local and national young people is compliant with its obligations levels of decision-making, including on the under the UNCRC. This not only shows unequal development of local Children and Young People’s regard for children’s rights, but also has a negative Plans and, increasingly, on major planks of impact on parents and others concerned for government policy and legislation. While this is 15 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

highly creditable, there remains a common reality Privacy rights that consultation with children and young people Article 16 of the UNCRC sets out children and young is often partial and selective, that it is people’s right to privacy, yet this is being predominantly driven by the adult agenda, and consistently breached by the UK’s obsession with that adults often fail to take proper account of holding increasing amounts of information about what children and young people say. children and young people on ever-expanding national databases. Especially worrying is the use of Future of participation in England such databases to predict which children and young people may go on to offend in the future. Children  The challenge for the future must start and young people themselves have consistently with the need to redouble efforts to expressed their own concerns about the lack of promote respect for children’s right to be respect for their privacy and the confidentiality heard as the primary purpose and focus of duties owed to them by professionals. Action on participation work. Rights for Children believes that children and young  Participation work, on the ground, needs people’s privacy is being infringed like never to become more equally distributed to before, largely as a result of advances in new include children with disabilities, younger technologies, and with ‘so little attention…put on children and children living in poverty; children’s consent and dignity.’21 and have greater impact within services relatively untouched by participation The “naming and shaming” of children through local work to date, such as immigration and national publicity connected with anti-social behaviour continues unabated, without regard for services, juvenile justice and child the serious violations it causes to children’s rights protection. to privacy and dignity. Whereas there are some  Children with a right to participate also parts of the Government that express concern about must acquire the right to know how their this, such as the Department of Children, Schools views are being taken into account. and Families, there are other ministries, notably the  Participation needs to become a Ministry of Justice and the Home Office, that mainstream service for children, with an continue to encourage such negative publicity. expectation that participation workers are sufficiently supported, skilled and Children in care competent to enable them to engage Historically, the care system in this country has effectively with children and young encountered some of the worst cases of child abuse people. and neglect.22 It has taken much time, supported by  Perhaps the biggest single challenge for recent government-led initiatives such as Care participation work is to ensure that the Matters23, to restore confidence in the ability of the engagement of children is not only an care system to deliver safer and better public care enjoyable and interesting experience, but to children. While there is still some way to go, the also a rewarding one in which children’s Government deserves some credit here. However, its more recent legislative and policy programmes views demonstrably inform and shape the should never have been needed in the first place, decision being reached. Wherever children had it been able to achieve good implementation of and young people have a legal right to provisions that already existing through the have their views obtained they must be Children Act 1989. empowered to challenge processes that fail to do so, or those that simply go Government ambitions to improve outcomes for through the motions of listening to children in care and care leavers have long been children. It is not the role of the state to frustrated by indifferent implementation at local give children the right to a voice; it is the level. For example, much of what has been role of the state to respect the fact that legislated for in the Children and Young Persons Act they already have one. 2008 would have been unnecessary if placements for children in care consistently provided stability, with good prospects of achieving the best possible outcomes. Local authorities often fail in their role as corporate parents – where too many children in 16 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

care are routinely separated from siblings, moved Children with disabilities from settled placements, experience considerable In its 2008 concluding observations, the UN disruptions to their education, have limited Committee urged the Government to better contact with their family and are forced to leave promote the right of children and young people care too early. Worse still, these things happen to with disabilities to have their views heard and children regardless of whether or not these taken into account. These children, it said, required decisions best meet their individual needs. Not more support in order to realise their rights to unlike our conclusions on the state of child education, health care and to play and leisure protection, there is an impression that the care opportunities. Together with the UN Committee, system operates on its own terms, not necessarily CRAE calls for a comprehensive national always for the benefit of the children and young strategy for the inclusion of children and young people it is meant to serve. people with disabilities.

CRAE shares the Government’s frustration at the The UN Committee welcomed initiatives at national inability of some local authorities to ensure the and local level to improve the lives of children and effectiveness of mechanisms such as the role of young people with disabilities. However, CRAE is independent reviewing officers, social workers or concerned that progress remains slower than for local complaints resolution. To empower children other children and young people, particularly in and young people let down by the care system, light of findings in the chief inspectors’ CRAE calls for Section 8 orders (under the Safeguarding Children report.26 CRAE also strongly Children Act 1989) to be made more widely opposes the reservations made by the UK available as a means of settling unresolved Government in ratifying the UN Convention on the disputes with their local authority “parent” Rights of Persons with Disabilities, which only serve over what is best for their welfare. to conflict with the object and purpose of the Convention. CRAE believes that children’s right to contact should extend to their being able to keep in touch Juvenile justice with siblings, where to do so is consistent with The UNCRC is unequivocal about how children and their wishes and best interests. The provisions young people in conflict with the law should be within the Children and Young Persons Act 2008 treated. Article 37 makes plain that custody should deal well with the issue of placements, but are be used only as a measure of last resort and that silent on the issue of contact for brothers and children and young people should never be sisters separated in care. imprisoned with adults. Non-governmental organisations largely represented by the Standing You just want to be treated the same and feel the Committee for Youth Justice note that successive same as everyone else. [16 year old boy] 24 governments have failed lamentably in ensuring that children and young people are only given Article 2 of the UNCRC says that measures should custodial sentences or placed on remand where be taken to protect children against all forms of absolutely necessary. As the director of the Howard discrimination, yet the Children’s Rights Director League for Penal Reform, Frances Cook, has pointed for England recently found evidence that children out: ‘The Convention states that the use of custody in care and care leavers often face prejudice and should be a last resort and for the shortest possible discriminatory treatment. His report, Care and time, but both in England and Wales are in constant Prejudice, which documents children’s views, breach of this.’27 makes a compelling case for how children in care are discriminated against on the grounds of their Children and young people continue to be sent to care status.25 “Careism” is now recognised as an prison too readily and for longer than necessary, endemic form of discrimination that affects the while our age of criminal responsibility needs to be life chances of children and young people in and raised. ‘Twenty years ago there were hardly any 15- leaving care. The Government should bring year-olds in custody, but now there are hundreds of forward measures to address prejudice them,’ says Frances Crook.28 The continued use of against children in care and care leavers if it anti-social behaviour orders (ASBOs) is an wishes to accelerate further improvements in unwelcome illustration of how the Government has outcomes for looked after children. increasingly criminalised children and young people in recent years. 17 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

The UN Committee has called for an urgent review review of arrangements for safeguarding of whether ASBOs should be used with children children33 and young people, and for a similar exercise to  Formal guidance issued to Ofsted inspectors on examine changes needed to a criminal justice interpreting relevant national minimum system that is amongst the most punitive in the standards and regulations relating to the use of world. physical restraint34  The Court of Appeal ruling in R(C) v Secretary of CRAE has its own concerns about the violations of State for Justice [2008].35 children and young people’s civil rights by anti- social behaviour measures, including ASBOs, child The Government insists that methods originally curfews, dispersal zones and “naming and designed for restraining some of our most violent shaming”. The UN Committee felt that such adult prisoners are suitable for adaptation and use measures ‘may violate the rights of children to on children and young people despite the fact that freedom of movement and peaceful assembly’.29 children and young people have died and sustained Both the use of anti-social behaviour measures serious injuries as a result of permitted restraint with children, and the rhetoric that is often used techniques. The continued authorisation of to represent “public opinion”, does a serious deliberately painful methods of restraint seriously disservice to the vast majority of children and violates children’s rights and puts them at young people. At its worst, it is so invective as to significant risk of harm. The Government must suggest that we have actually declared war on our make it definitively clear that restraint is not youth. It is unacceptable that we effectively permitted in any setting for the purpose of ensuring exclude children and young people from good order and discipline. public spaces. CRAE believes that a public inquiry is required The UN Committee expressed concern at the to investigate the past unlawful use of force authorisation of Taser guns for police officers in against children in custody, to ensure that England, and the fact that they can be used on institutions and individuals guilty of unlawful children even though the extent of their potential practices are held accountable, and to restore to cause serious harm or even fatality has not public confidence that necessary reforms will be been properly examined. CRAE has called on the implemented, including an end to the use of Government to issue clear guidelines to every deliberately painful techniques. police force in the country withdrawing the use of Tasers on children and young people. Use of physical punishment Physical restraint in custody The Government continues to ignore the repeated The UN Committee raised concerns about the recommendations from the UN Committee, other Government’s failure to provide children and UN treaty bodies, the European Committee on young people in custody with greater protection Social Rights and the Council of Europe’s Human from the use of physical restraint. Rights Commissioner to remove the “reasonable punishment” defence completely to give children CRAE continues to work closely with other NGOs, equal protection under the law on assault. The UN including through the Standing Committee for Committee recommended full prohibition to the UK Youth Justice, to tackle the Government’s Government for the third time in 2008: continued failure to protect children in custody against the unlawful use of force. Having taken The Committee is concerned at the failure of the State the positive step of commissioning an Party to explicitly prohibit all corporal punishment in independent review of restraint, albeit with the home and emphasises its view the existence of severe limitations30, it is disappointing that both any defence in cases of corporal punishment of the review and the Government’s response to it31 children does not comply with the principles and should have so completely overlooked: provisions of the Convention, since it would suggest that some forms of corporal punishment are  The findings from the 1993 Aycliffe inquiry acceptable. report, A place apart32  Specific recommendations from the 2005 and The Committee on Economic, Social and Cultural 2008 reports of the Joint Chief Inspectors’ Rights repeated this recommendation in May 2009.

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The Government continues to defend the rights of Plans of action parents to resort to common assault, under the The Government has set itself an ambitious guise of this constituting “reasonable programme of reform for children and young punishment”; and refuses to allow the free vote in people in England. CRAE applauds the ambition and the House of Commons that would provide for a intent being shown, but believes that the better test of opinion on the issue. programme is neither founded on the obligations to respect children’s rights which the Government Young refugees and asylum seekers accepted when it ratified the UNCRC, nor is it a The lifting of the UK’s wide-ranging reservation to unified programme sufficiently embedded or the UNCRC36 in September 2008, which limited shared across all parts of government. While the the rights of refugee children to special protection, Department for Children, Schools and Families was seen by the UN Committee as a great (DCSF) pushes forward with some necessary advancement, with the added proviso that it reforms, other aspects of its policy (along with should lead to real change in policies and some policies pursued by the Home Office and procedures affecting the rights of young refugees Ministry of Justice) continue to hold the UK back. In and asylum seekers.37 The Children’s Society has addition, the Government remains reliant upon described the lifting of this reservation as ‘a step local providers of children’s services to deliver in the right direction’, but is concerned that it many of its reforms and this is not always effective might not make the real difference that is needed to ensure that children’s rights are fully respected on the ground. This organisation and many others or implemented. have cited the indefinite detention of children and young people for immigration purposes, without The Government may believe that it has made a judicial oversight, as a clear breach of the UNCRC. good start in taking forward the measures set out in While government efforts to identify alternative its Children’s Plan39 and a follow-up report, The arrangements are acknowledged, progress is too Children’s Plan: One year on, clearly details progress slow and many within the immigration system are that is being made.40 However, while this has many far from committed to the principle that children commendable aspirations for children, basing these and young people’s best interests must come first. plans on the limited five outcomes of the Every Child Matters programme is no substitute for the There are also continuing concerns about the comprehensive framework provided by the UNCRC. growth in trafficking and the failure of an The Government’s progress, therefore, still falls immigration system, which seems increasingly well short of meeting international obligations insensitive to the exploitation that many children under the UNCRC. and young people suffer, to tackle the problem. As Lisa Nandy at the Children’s Society points out: In defence of its record, the Government proudly ‘Too often [children] are not identified as being talks of pouring in massive extra spending; and of trafficked (into this country) because they are many good initiatives to drive forward its reforms going through a very disbelieving immigration aimed at improving children’s lives. It would be system’.38 churlish not to acknowledge the Government’s achievements in putting in extra resources, The parliamentary Joint Committee on Human although of course there are concerns about where Rights (JCHR) noted that asylum-seeking children the inevitable future cuts in spending will be found. continue to be detained, and may be kept in A recent Organisation for Economic Co-operation detention for weeks until assessments are and Development report acknowledges UK completed. Along with the JCHR, CRAE deplores: expenditure on children as appreciably higher than other comparable industrialised nations, though  The lack of data on the number of children and notes that this does not necessarily result in young people seeking asylum improved outcomes for children and young people.  The lack of independent oversight of reception However, while these steps towards improving conditions for unaccompanied children who children’s well-being are undeniable, that only have to be returned forms part of the narrative. This year’s State of  The prosecution of children over the age of 10 children’s rights in England report identifies a if they do not possess valid documentation number of key failings in the Government’s upon entry to the UK permitted via section 2 approach. of the Asylum and Immigration Act 2004. 19 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

The Government has continued to fail to provide a coherent and comprehensive implementation of children’s rights under the UNCRC. Even where the Government has given expression to children’s rights, it has not ensured effective and consistent delivery of these.

The Government has failed to ensure that its legislation and policies for children and young people are consistently compliant with meeting its legally-binding UNCRC obligations.

The Government has failed to understand the fundamental reality that, without first promoting widespread respect for children’s rights, its efforts to improve children’s well-being are far less effective than they would otherwise be.

Taking account of the UK’s position of wealth and prominence in the world, CRAE welcomes the Government’s much-stated aim of creating truly world-class services for children in England. It is, after all, nothing short of what children and young people in this country deserve; and what most parents and others concerned with children’s upbringing and welfare would want for them. The achievement of this aim, however, can only be met where legislation, policies and services are based upon the universal children’s rights framework provided by the UNCRC.

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ORGANISATIONS ON THE STATE OF CHILDREN’S RIGHTS

To mark the 20th anniversary of the United Nations Convention on the Rights of the Child, CRAE has invited a number of prominent children’s organisations and bodies to contribute their own brief statements on the state of children’s rights in England. CRAE would like to acknowledge all of those organisations that took the time to share their views. These are re-produced here, un-edited, in alphabetical order by organisation.

4Children Committee on the Rights of the Child our view of In this year that we reflect on the 20th anniversary where the UK is, and where it should be. of the UN Convention the Rights of the Child we also recognise that 2009 has been a difficult year  Fewer children now live in poverty and in sub- for children and their families across the UK. The standard homes in this country – but still too recession is causing real and daily suffering to many young lives are blighted by this issue children whose parents are struggling to make  There are better services for children and ends meet, particularly as a result of rising young people suffering mental health problems unemployment, and progress made on reducing – but there is room for improvement child poverty is under threat.  And we are making headway on the treatment of young offenders – but there remains Worst still, the legacy of this recession may be even excessive use of custody. more damaging than its daily reality. The political debate that has now begun in earnest about where Against that, most youngsters say they are happy, future public spending cuts might come threatens healthy and well-educated, and the vast majority the very services, structures and resources which make a hugely positive contribution to our society. are vital to making children’s rights a reality. Indeed, there is little doubt that since the Rights are often seen as abstract, but what could be Conservatives ratified the UNCRC, and then under more tangible than the investment in childcare Labour, the UK has made great strides to (Article 18), special needs (Article 23), education improving children’s rights, including the Children (Articles 28 and 29) and health care (Article 24) Act 2004, Every Child Matters and the creation of a that has improved the lives of children; albeit with children’s department with a dedicated Secretary a long way still to go? of State. Across all areas of life now, the views of children and young people are increasingly being If the next 20 years are to see real progress in sought and taken seriously – school councils, ensuring every child can enjoy the rights laid down volunteering and police force youth forums are just within the Convention there is a battle to fight and three examples – and the benefits are clear to see. win first. 4Children is committed to winning the So we are moving in the right direction and if all argument, that investment in children and families political parties commit themselves to further must remain a top priority in good times and bad. commitment to uphold the rights of children, there are plenty of reasons why we should be optimistic 11 MILLION: by Sir Al Aynsley-Green, Children’s that the improvements we have seen will be Commissioner for England sustained, and that every child will be able to fulfil There are two emotions that come to mind when their potential. one considers the UK and the UN Convention on the Rights of the Child. First, pride that the UK is a Action for Children signatory and that we have made great progress Action for Children is committed to helping the since we adopted this children’s bill of rights. most vulnerable children and young people in the Second is the realisation that we still have some UK break through injustice, deprivation and way to go – the UK complies with some articles inequality, so they can achieve their full potential. better than others. We are the leading UK provider of family and community centres, children's services in rural Last summer my fellow three Children’s areas, services for disabled children and their Commissioner colleagues in the UK and I called for families, and services for young people leaving the complete incorporation of the Convention into care. We also promote social justice by lobbying domestic legislation, setting out to the UN and campaigning for change.

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We believe that the UK Government must prioritise During celebrations to mark the 20th year of the working towards full incorporation of the United UNCRC, BYC is looking forward to empowering Nations Convention on the Rights of the Child. We young people to use their rights to improve their want a child-fair state that actively promotes a lives. positive vision for children and young people as full citizens. We demand a political system that Children Are Unbeatable: by Peter Newell, puts the long-term needs of children first and Co-ordinator short-term politics second. The Department “for” Children voices its commitment to the Convention, to children’s well- To ensure that children’s rights are protected we being, to making this country the best place in the are calling for governments across the UK to invest world for children to grow up in. But when it in early intervention for children in a way that comes to the emotive issue of hitting children, its positively impacts on their experiences and on courage and integrity fail it completely and it hides their longer-term outcomes. There needs to be a behind pathetic and dishonest claims that cross-party commitment to invest in essential “smacking is not violence” and its wish not to services for children to build the foundations of a “criminalise good parents”. It has ignored three society that is better and fairer for our families and successive clear recommendations of the communities, and where children can live happy Committee on the Rights of the Child (backed by lives with their rights fulfilled. Children must be two other UN human rights treaty bodies). Indeed, given the commitment they need for as long as it it treats the UNCRC as some sort of wish-list for takes. children from which it can pick and choose the rights it feels comfortable with. British Youth Council 2009 was a landmark year for the British Youth The Children’s Commissioner identified this as an Council (BYC), as we celebrated 60 years of iconic issue; nothing is more symbolic of children’s empowering young people in the UK to have a continuing low status in UK society than the refusal voice. As a youth-led organisation, it is an to accord them the same protection of their human important part of our history that we worked dignity as the rest of us. And it is not just towards the ratification of the UNCRC in the late hypocritical and disrespectful: it is highly 1980s and early 1990s. Subsequently Article 12 dangerous too. No government can pretend it has a has been crucial in strengthening young people’s safe and effective child protection system while its ability to have their say on decisions that affect law continues to authorise common assault on them. children.

This year young people across the UK have worked The UK was the last country in Europe to ban together to create a BYC General Election school corporal punishment, and it looks like we Manifesto of five actions that Parliament must do will be the last to ban smacking. We are one of just to improve their lives. BYC will be lobbying four of the 27 EU states that has not either enacted parliamentary candidates, MPs and peers to make complete prohibition or committed to do so very these actions happen following the general soon. England in its colonialist past played a election. The manifesto centres around solutions to disreputable role in promoting corporal gaps in young people’s rights today. BYC is calling punishment, in the context of slavery and military for votes at 16 in all public elections so young occupation, in developing school and penal people can elect representatives who affect so systems for children and in some missionary many decisions in their lives. BYC is also teaching. The Government could be paying some campaigning for young workers’ right to equal pay penance to the world’s children by being in the for equal work, regardless of age. The manifesto vanguard of the accelerating progress towards a highlights the need for concessions on public new respect for children. But instead it defends to transport fares so young people feel they can make the last ditch this grotesque concept of the most of positive activities available. Young “reasonable” assault on them. people are also calling for Parliament to keep the promise to end child poverty and invest in mental Children’s Rights Director for England: by Dr health services to protect young people’s well- Roger Morgan being. In my job I carry out a continuous series of consultations about rights and welfare issues with 22 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

children and young people in care, leaving care, to children's rights, the participation of children receiving social care services, or living away from and young people in decisions that will make a home in residential education. We also respond to difference to their lives and advocating on behalf of direct calls for help from individual vulnerable those children and young people who need children whose rights are being breached. independent help in getting their voice heard. Our vision is that CROA improves access to information From what children tell us, governments and about, and promotes the human rights of, children legislators have generally done well in setting out and young people in need through campaigning, clear rights for children in law, regulations and training and policy support for children’s rights guidance. However we hear of a gap between what officers and advocates. children have a right to get, and what they actually get. What they get varies across the country and CROA’s national conference this year was depends on their individual worker. Two dedicated to celebrating 20 years of children’s examples: the most frequent issue raised with us rights: we realised that there is much still to be by individual children is being moved from a done. Our experience is that there appears to be a placement against their wishes, against their care backlash against children’s rights in society and plan, and for policy or financial reasons other than policy, with young people still viewed negatively in their own best interests. The other example is that the media and a widening gap between England young people in care are often still not allowed to and other countries with regard to the rights of stay overnight with friends because their friends' children. parents have not been police checked. National policy is that permission should be given or Children’s rights services are struggling to survive refused by carers in the same way that parents in the continual lack of funding available and decide this - not that if you are in care your friends tighter commissioning expectations. Perhaps this is parents need police checks. a response to the current economic climate; however it speaks volumes as to how the service is Children are now consulted over many things, from valued. We are continually concerned about the policy to individual decisions affecting them. That rights of our most vulnerable children and young is excellent, and a good culture of seeking people especially those seeking asylum, in receipt children's views. Where we need to go now though of mental health services, with a disability; in is consistently to give children's wishes and secure settings, and those excluded from school. feelings the weight the law now expects. We need to give information and feedback to children to We strive to live in a society that recognises the enable them to formulate their views and know need for all rights – participation, protection and what happened to their views; we need to provision – for children and young people as an individualise services to the needs and concerns of integral part of their lives. CROA will continue to each child rather than focusing on children as a highlight awareness of children’s human rights and general group; we need to be honest with children provide training and support to children and about where their views will, and where they young people and adults with a responsibility to won't, make a difference; we need to take and for them. children's wishes into account in proportion to their understanding of the issue, not their Children’s Workforce Development Council chronological age; and we need to take the views of The Children’s Workforce Development Council a child about things that directly affect them as (CWDC) leads change so that the thousands of seriously as we would the views of an adult. people and volunteers working with children and young people across England are able to do the Children’s Rights Officers and Advocates best job they possibly can. We want England’s Children's Rights Officers and Advocates (CROA) is children and young people’s workforce to be an umbrella organisation representing the respected by peers and valued for the positive professional interests of children's rights officers, difference it makes to children, young people and participation workers and advocates. Our their families. association is a vital source of support and advice for practitioners working in the field of children's We’ve adopted the UN Convention on the Rights of rights and advocacy in various settings. CROA now the Child because we believe it’s important that has over 200 member projects that are dedicated children’s rights are understood and respected by 23 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

everyone who works with children and young and tourism industry but much more work needs people. We’re working hard to make sure that to be done to safeguard children no matter where Article 12, children’s right to be heard, is central to they live. While there has been progress to combat everything we do. We’re working with children the sexual exploitation of children in the UK, much and young people to help us plan our work, both more needs to be done on joint investigations and within individual projects and across our whole sharing information between police, prosecutors organisation. and child protection agencies when child abuse crosses borders. We believe that children and young people should have a say in workforce development and reform Howard League for Penal Reform: by Frances locally too. We’ve developed resources so that local Crook, director services can involve children and young people in More than five years ago, the deaths of Adam decisions about the people who work with them, Rickwood and Gareth Myatt in separate secure including in recruitment and selection, appraisal training centres prompted an investigation into the and training. use of restraint in child prisons. Nearly one year has passed since an independent inquiry ECPAT UK recommended the use of restraint be reduced ECPAT UK is a leading children’s rights across the entire juvenile secure estate. It strongly organisation campaigning against the commercial advised that the use of restraint be exercised only sexual exploitation of children. In particular, we in truly exceptional circumstances and that it must focus on the protection of trafficked children and not be used to punish children or ensure children exploited in tourism destinations. compliance. However, in the year since the inquiry, the use of restraint has risen by 25% in young ECPAT UK has been encouraged by the progress offenders institutions. In the year ending March made by the UK Government towards fully 2009, restraint was used 4,274 times on children realising the rights of child victims of trafficking. in gaol. This is deeply concerning due to the risk of However, there are still important steps to be physical harm to children who are already made in ensuring these children are fully vulnerable, and also the high risk of emotional and supported and safeguarded. Children who have mental trauma such interventions can cause. been trafficked are routinely denied their rights through the failure to implement national and Children are already exposed to forcible strip- international policy and guidelines. Many children searching and extensive use of solitary who have been trafficked in the UK are placed in confinement in prisons while inactivity contributes inappropriate and unsafe accommodation, are to bullying and self-injury. Locking troubled criminalised when they should be treated as children up in prisons is inhumane and shameful. It victims, and risk not being identified as a child that is time to rethink and restructure the way we deal has been trafficked due to limited training, capacity with our most troubled and challenging young and awareness of practitioners. The UK people. Government must ensure the effective monitoring and documenting of trafficking cases and establish Include Me TOO comprehensive support and protection services for Include Me TOO (IM2) continues to support the trafficked children, including safe accommodation, children and young people’s sector to develop a providing children with a specialist guardian, and rights respecting culture in their areas and the establishment of a national rapporteur on strengthen the application of the UNCRC through trafficking. the IM2 National Charter of Rights for Disabled Children and Young People. Disabled children and ECPAT UK has been responsible for extra- young people, through consultation, produced and territorial legislation to prosecute British nationals developed their IM2 Charter in 2005. Between for crimes committed abroad. Sadly, with cheaper 2006 and 2008 40 jigsaw pieces of the charter travel and new technologies British offenders were forwarded to many national organisations continue to target the world’s most vulnerable and government departments requesting national children but there have only been a handful of support and endorsements. 41 convictions. Their abusive acts are often captured on digital technology and transmitted around the The IM2 Charter supports the Government’s world. ECPAT UK works with police and the travel Aiming High for Disabled Children’s vision, 24 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

endorsing the 10 standards within the IM2 Charter. spaces; CCTV cameras in classrooms and The standards, written by children, continue to playgrounds; indefinite DNA retention for innocent benefit the lives of not only disabled children and children. Yet, while these are just some of the young people, but also their peers, increasing their indecencies that we inflict on our own, they pale in understanding and awareness of disability issues comparison to the treatment we dole out to and rights. children born elsewhere who dare to claim asylum on our shores. Those children we detain not as The charter was officially launched on 11 punishment but for administrative convenience. September 2008, where the Children's Separated from the community and taken out of Commissioner for England became the guardian of school many are left traumatised, sometimes the charter. The charter is now displayed at the 11 forced to prove their age in invasive “age MILLION offices in London. The Children’s assessment” tests. If we are to be measured on the Commissioner for England, Sir Al Aynsley-Green treatment afforded to the most vulnerable in our said, ‘I welcome this charter and see it as an society then our current record must bring shame important catalyst towards children and young on us all. people with disabilities being properly supported and listened to in our society’. National Children's Bureau: by Sir Paul Ennals, Chief Executive During 2009, IM2 has been able to demonstrate UK governments have made significant advances in increasing involvement and participation of relation to policy and service development as they children and young people with the launch of the relate to children and young people over the past IM2 song and the signing of new jigsaw pieces by 20 years. However, too often government’s focus organisations like the Olympics and Paralympics. has been on structures and service standards – a IM2 has enhanced the application of the UNCRC for very adult-led agenda. And despite the disabled children. considerable investment and increase in status that children's services have received across the Inquest: by Deborah Coles, co-director board, children's rights and the implementation of What greater abuse of human rights can there be the UNCRC have often been presented as an add-on than a child dying in custody? The deaths of 30 rather than an integral part of policy and service children since 1990 and the high levels of self harm development at national and local levels – a matter and suicide attempts together with the overuse of for individual choice rather than a shared aim restraint is a stark reminder of the neglect, driven by government commitment. emotional damage and harm inflicted by the state on some of society's most vulnerable and We would like to see government lead by example disadvantaged children in custody. The refusal of and incorporate the UNCRC into UK law. Among the Government to set up a comprehensive public other things, this would provide a natural inquiry into the treatment of children in conflict progression for: the introduction of child impact with the law runs counter to the spirit of assessment when new policy developments that democratic accountability, transparency and the may impact on children and young people are pressing need to learn from these children’s being considered; disaggregated resource deaths. allocations to help us identify how much spending goes to support disabled children or reduce Liberty childhood obesity; and a deliverable and sustained The state of children’s rights in the UK? Well, the strategy to tackle the negative public attitudes UK is certainly a less friendly place to be a child in faced by children and, in particular, adolescents in 2009 than in years gone by. Demonised in the the UK. A piecemeal approach to implementing the media, scapegoated by politicians and pushed into UNCRC gives us an excuse to ignore it. Giving the criminal justice system by a statute book children the right to have their best interests bursting with new innovations – what chance for considered and their views taken into account in our “feral youth”? After child curfews, police all matters affecting them is only just in a society dispersal powers, anti-social behaviour orders, that wants them to thrive. barbaric restraint techniques and more, our children have, sadly, been left unequal before the NORM-UK law. And still the innovations keep coming: NORM-UK raises awareness of the risks of male mosquito devices to clear children from public circumcision and the right of boys to be protected 25 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

from genital surgery which is not medically However, significant challenges remain. Many of indicated and to which they have not consented. the new legal duties are broad and wide ranging. While we should avoid prescription to the degree We celebrate the progress made in this area. that stifles innovation and flexibility, a series of Twenty years ago, six per cent of British boys weak duties and rights risks the law having little underwent the painful and traumatic excision of bite on public bodies and not stimulating the half their penile skin, although only 0.6% of them change children deserve. While there has been presented the absolute clinical indications for good progress in education policy and many surgery. The vast majority had a perfectly normal pockets of good practice, too many educationalists body. The fight against female genital mutilation and education organisations have a narrow has had even greater success, with strong conception of participation or are outright hostile legislation now protecting British girls’ rights to to the agenda. We must redouble our efforts to genital integrity. Sadly, the same protection is not allay their fears while countering myths and extended to boys and three per cent of British boys misunderstandings. Inequalities in accessing are still circumcised on the NHS. However, as only opportunities to speak out block too many children one per cent of males ever medically need from claiming their rights. Too often children living circumcision, this figure reveals an unpleasant in poverty, disabled children and those who just reality, namely that the NHS is performing forced “don’t fit in” are denied the opportunity to be ritual genital cutting on children at the request of heard. We have made progress but there is much their parents. more still to do.

Mounting evidence establishes the physical and Save the Children UK psychological harms done to those whose genitals The huge level of child poverty is one of the most were altered forever by others without their severe and ongoing child rights violations in the consent. Circumcision is a choice for each person UK. In 2007, the UK still had the fourth highest rate old enough to decide for themselves. Forcing of child poverty in Europe, at 23%. 43Only Romania genital cutting on children is an unethical practice (33%), Italy (25%) and Poland (24%) have higher with no place in a civilised, child-protecting rates. The UK is one of the richest countries in the society. world yet there are still an estimated four million children living in poverty, and the Government is NORM-UK urges that steps be taken to protect the likely to miss its target of halving child poverty by 18,000 English boys forced to undergo non- 2010 and eliminating it by 2020. consensual circumcision each year. Given the severe injuries, and even deaths, occurring The introduction of the Child Poverty Bill is a regularly from circumcision, it is now urgent that welcome addition and will hold future we extend UNCRC rights against genital cutting to governments to the child poverty targets, but it is boys. not sufficiently rigorous to reach those children in severe and persistent poverty. Participation Works 42 It has been a year of progress on children’s right to One of the main problems with policy making on be heard. “Student voice” is coming of age, with child poverty is that it is not clear how much is new legal duties to involve children in matters spent on children in the UK and how effectively affecting them and a consultation on allowing that money is spent. The UN Committee’s children in England similar rights to those in Wales concluding observations made it plain that the and Scotland to appeal school exclusions and SEN maximum extent of available resources should be decisions. Ratification of the Convention on the focused on eradicating poverty and that there Rights of People with Disabilities gives new should be child rights impact assessments used to international protection for disabled children to be evaluate budget allocation and test their provided with disability and age-appropriate effectiveness. 44 The Government currently has no assistance to express their opinions freely. New mechanism to even collect data on how much they duties to promote democracy and increase police spend on children in the UK. Save the Children UK accountability have the potential, if implemented has recently published a thorough analysis of effectively, to tackle our democratic deficit. public spending on children45, demonstrating that current policy interventions are not reaching those children in severe and persistent poverty. 46 The 26 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Government should have effective systems for put in place a proactive plan for the rights of all UK demonstrating public expenditure to promote children. transparency and accountability, and to better serve their own targets of ending child poverty by Another milestone was the adoption of a “four 2020. nations” approach to the implementation of the Convention at both civil servant and ministerial The Secular Medical Forum level. We hope the co-ordinating body will meet The SMF commends the progress so far towards the recommendations of the UN Committee and achieving equality of care for all children, whatever their General Comment 5. their own, their doctor’s or their parents’ religion or belief. UNICEF UK urges the Department for Children, Schools and Families and the devolved The SMF supports the 2003 female genital administrations to make further advances in the mutilation law. We note that it is immaterial progressive realisation of children’s rights, taking whether anyone believes that the operation is steps to meet all of the 2008 recommendations required as a matter of custom or ritual. The SMF from the UN Committee. We advocate the would like to see research into the reasons why no incorporation of the Convention into UK law so cases have yet come to trial. that it guides all policy and practice, and we call for the urgent eradication of child poverty. The SMF supports the ongoing provision of good quality sex and relationships education exploring Voice the wide diversity of human relationships. Pupils The Government states that the voice of the child is in both religious and non-religious schools are central to the delivery of its Care Matters agenda. diverse in their sexuality in later life. The SMF Existing 1989 Children Act duties give children and commends the Royal College of General young people the right to be heard in decisions Practitioners’ recent statement on this subject: affecting their lives and Article 12 gives them the ‘Children in schools of a religious character run the right to be represented in the administrative risk of missing out on important aspects of their process if they wish. education which could be at detriment to their health and personal development’. The SMF would Aside from the complaints procedure (which is like all children to receive adequate preparatory rarely used by children) there is no statutory right information to enable them to engage in safe to independent advocacy support for looked after sexual relationships. children to give effect to their right to be heard in the decision making process. The SMF is pleased to note that the majority of boys in the UK are not subjected to traditional non- Despite considerable support in both Houses, the therapeutic surgery. Yet the prevalence of ritual Government failed to legislate to extend the right childhood male circumcision is concerning. Young to advocacy during the passage of the Children and boys do not have the capacity to consent to such Young Persons Act 2008 although they did give surgery and many are permanently harmed. some limited assurances to be set out in guidance. Children must be protected from irreversible Instead they focused on the improvement of social operations on their genitalia performed only to work practice and extension of duties of satisfy parental choice of religion or custom. The Independent Reviewing Officers failing to SMF encourages equivalence in protection for acknowledge the distinctive features of advocacy. males as for females. Further lobbying opportunities will be utilised in response to the consultations on the 2008 Act UNICEF UK regulations and guidance. Additional resources for 2009 was significant for children’s rights as, independent advocacy services will be necessary. following the UN Committee on the Rights of the Child’s 2008 recommendations, the Government Changes in legal aid contracts leading to reduction and devolved administrations started work on a in child care lawyers, shortage of CAFCASS nationwide action plan to apply the UN Convention children’s guardians and opening the courts to the on the Rights of the Child in the UK. This is a media is a severe erosion of children’s rights. In landmark as it is the first time, since the UK ratified addition, new legislation being introduced in the the Convention in 1991 that the Government will 27 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

autumn aims to allow the media to access confidential court documents.

Youth Access: by Barbara Rayment, Director Young people's needs for rights-based advice continue to rise. Even before the economic downturn, young people experienced over two million social welfare problems each year, obtaining advice on only a minority of those problems. Yet there remains no government policy focused on addressing the alarming gap between young people's needs for advice and the shortage of age-appropriate advice services able to support them. For this reason, we will be supporting JustRights, a new campaign for fair access to legal services for children and young people.

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GENERAL MEASURES OF IMPLEMENTATION

NOTE: The unshaded boxes throughout this report containing emboldened text denote the concluding observations made by the United Nations Committee on the Rights of the Child in its latest examination report to the UK Government on 3 October 2008

Overview Some progress has been made by the Government towards putting structures in place to enable and support the full implementation of the UNCRC. Explicit references to children’s rights have appeared in several key policy documents, including the Bill of Rights and Responsibilities Green Paper, and Westminster meets quarterly with the devolved governments to co-ordinate efforts across the UK to implement the UNCRC and respond to the UN Committee’s concluding observations. However, despite a UK-wide action plan being developed for the first time, several factors block more substantial progress towards the full implementation of the UNCRC in England, including the piecemeal approach to ensuring its provisions are reflected in domestic law, the failure to routinely undertake children’s rights impact assessments on all policy and legislation affecting children, and the limited remit of a Children’s Commissioner whose office is still not compliant with the Paris Principles. NGOs have not been engaged consistently or systematically by the Government with regard to implementing the UNCRC and the concluding observations, although mechanisms to engage with children and young people on these issues are now being developed. Training on the UNCRC is still poorly developed, with little impetus coming from central Government to ensure that the UNCRC is widely disseminated and understood by all professionals (including civil servants and the judiciary) responsible for decisions that affect the lives of children and young people.

As part of its factual accuracy response, Government asked that we include its following statement on the Green Paper:

Considering the UK's ratification of and commitment to the UN Convention on the Rights of the Child, and drawing on the general principles and articles of the Convention, the Government consider that a future Bill of Rights and Responsibilities could contain a right for children to achieve well-being, whatever their background or circumstances. This could be based on current policy (Every Child Matters) goals for children: to be healthy, stay safe, enjoy and achieve, make a positive contribution and enjoy economic well-being. By including children's rights, the Government would not seek to create new avenues of redress for individuals in the courts. Rather they would be seeking to influence the actions of public bodies and emphasise the importance of children and their well-being in UK society.

CRAE has responded to the Government’s statement by welcoming its efforts to address its international obligations under UNCRC, but point out that this focus on well-being does not provide as comprehensive a human rights framework, and does not enable all children and young people, regardless of their background and circumstances, the fullest enjoyment of their rights.

Address previous recommendations UN Committee had cause to note the widening gap in UNCRC implementation across the four Address those recommendations made by the jurisdictions (England, Northern Ireland, Scotland UN Committee in 1995 and 2002 that have not and Wales) and poor co-ordination UK-wide. The yet – or not sufficiently – been implemented Government could have taken the opportunity to set out a detailed response to the latest concluding It is regrettable that the UK entered into the observations (along with its response to those process of examination by the UN Committee on outstanding from 1995 and 2002) in its first year the Rights of the Child in 2008 with so many review of the Children’s Plan47, or at least to outline recommendations from the previous its process for taking these recommendations examinations in 1995 and 2002 still unaddressed. forward. The ad hoc selection of concluding In particular, the UN Committee regretted that not observations in the review’s annex is manifestly all domestic legislation affecting children and insufficient. young people has incorporated the UNCRC. The 29 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

In its concluding observations on 3 October 2008, Legislation the UN Committee made the following observation: Take measures to bring all legislation in line with the UNCRC, in part by taking the The Committee, while welcoming the State party’s opportunity given by the development of a Bill efforts to implement the concluding observations on of Rights in Northern Ireland and a British Bill previous State party’s reports, notes with regret of Rights to incorporate its principles and that some of the recommendations … have not been provisions fully implemented.48 CRAE joined together with major charities and Still outstanding from the 2002 reporting process children’s rights activists in October 2008 to form a was the need to address: new UK-wide coalition seeking the incorporation of the UNCRC into UK law. The Rights of the Child UK  Incorporating the UNCRC into domestic (ROCK) coalition is working with Baroness Joan legislation Walmsley who plans to table a Private Members Bill  Allocating discrete spending budgets on in November 2009 which will propose children and young people incorporation of the UNCRC. CRAE hopes this will  Making the UNCRC widely known provoke serious debate and raise awareness of  Tackling discrimination as it impacts on incorporation as the best means of ensuring the children and young people UNCRC’s full implementation in England.  The continued sanction of corporal punishment, particularly in the home Having previously recommended incorporation of  The need to safeguard the right of all children ‘at least some’ of the UNCRC into domestic law, the and young people to an inclusive education parliamentary Joint Committee on Human Rights  The treatment of young refugees and asylum (JCHR) has recently again recognised the strength seekers of the case for improving children’s rights  Juvenile justice issues, including the use of protection in its inquiry into a Bill of Rights for the custody and physical restraint. UK.50

A new UNICEF report card (published in An opinion poll carried out for the Northern Ireland December 2008) has warned that poor quality Human Rights Commission found overwhelming child care can have a devastating impact on the support for “special rights for children” in that development of young children, particularly those country's emerging Bill of Rights; similar support living in deprived areas.49 The report proposes 10 may be anticipated across the rest of Britain.51 The benchmarks as a first step towards establishing a JCHR has noted significant public support for the set of minimum standards by which progress in inclusion of economic and social rights, which may early childhood education and care might be be seen as an indicator of likely views on monitored and compared across the countries of incorporation of the UNCRC.52 the Organisation for Economic Co-operation and Development (OECD). England currently meets To date, the Government has rejected the idea of only five of the 10 benchmarks and ranks joint incorporating the UNCRC into UK law, whether 11th out of 25. through a bill of rights and responsibilities or otherwise. However, in its Green Paper on a future The UN Committee urged the UK to take all Bill of Rights and Responsibilities, published in necessary measures to address recommendations March 2009, the Government has, to a limited from previous reports. The progress made by the extent, recognised the need to improve protection Government in this endeavour is reflected, along of children’s rights.53 The Green Paper includes a with acknowledgement of gaps in compliance, in proposal for the potential inclusion of a right for the relevant pages of this publication. children to achieve well-being and suggests more generally that such a document ‘could present the opportunity to bring together in one place a range of welfare and other entitlements currently scattered across the UK’s legal and political landscape’.54

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The Government takes important steps in the  Some rights are neglected, such as privacy and Green Paper by explicitly acknowledging children freedom of movement and association and young people as rights-holders, recognising  Obligations to respect children and young the need to foster greater respect for them in people’s views tend to be recognised only in society, and drawing attention to the specific circumstances or contexts responsibility of wider society towards children  The most vulnerable children and young people and young people. The Government recognises the are likely to lose out (for example, those in UNCRC as a crucial instrument to achieve change custody and young refugees and asylum for children, and has also emphasised the seekers). importance of ensuring that children's existing rights remain in place – including those protected Co-ordinating implementation under the Human Rights Act 1998. It has said that any new measures must build on these Ensure effective co-ordination of the safeguards. implementation of the UNCRC throughout the UK, including in local areas where authorities Despite the increasing political commitment to hold significant powers to determine priorities children and young people, there is still significant and budget allocation resistance to adopting a rights-based approach. Listening to the views and experiences of children Notwithstanding the UN Committee’s welcome of and young people makes it clear that they struggle the creation of the new Department for Children, to exercise their rights in many areas of their Schools and Families (DCSF), there remains a lack 55 lives. of both co-ordination and cross-cutting policy across Government for the implementation of the The approach taken in the UK, as in most UNCRC. common-law countries, could be described as “sectoral” law reform – namely the gradual There has been only spasmodic implementation in examination of legislation in different areas to England. While the DCSF holds lead responsibility identify and make the changes needed to bring for taking forward the UNCRC, co-ordination is existing legislation into conformity with the often hampered by responsibility for matters UNCRC. However, this suggests something more affecting children and young people still being systematic than is the reality in the UK. Although spread across many different government the publication of the first Children’s Plan for departments, such as the Department of Health, the England in 2007 was a huge step forward, and its Home Office and the Ministry of Justice. reference to the UNCRC a welcome development, the plan is by no means framed by the UNCRC. CRAE’s report, Beyond article 12: The local This is illustrated by the piecemeal and patchy implementation of the United Nations Convention on development of children’s rights protection in the the Rights of the Child in England, published earlier UK. The first step towards law reform must be the this year, examined how the UNCRC is being put recognition that reform is needed, and this is into practice locally, and whether it is having an sometimes wanting in government thinking. impact on the development, commissioning and delivery of local services.56 The survey of 140 There have been many positive developments, directors of children’s services revealed a wide including progress in supporting children and variation across the country, with some local young people’s participation in education, some authorities clearly engaging well in taking forward strengthening of child protection law and the children’s rights, and others recognising that they intention to legislate in order to end child poverty still have some work to do. Beyond article 12 shows (or to reduce it to a level that Government that knowledge about the UNCRC at a local level is believes it is acceptable to claim that it has far from consistent, and that children’s rights do not achieved eradication). Children and young people routinely inform strategic planning or day-to-day now have their own cabinet minister. However, no work. Forty-five per cent of local authorities have single approach is sufficient in and of itself. The not adopted the UNCRC, and 77% do not explicitly disadvantages of sectoral law reform are that: reference it in their Children and Young People’s Plan. CRAE believes that local authorities need  It tends to focus on specific areas, such as further encouragement to take forward child protection children’s rights; and part of the solution may 31 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

lie in placing every Children’s Trust Board in the grounds of age, and the intolerance of children the country under a primary duty to safeguard in British society. and promote the rights and welfare of children in their area. Another weakness in government co-ordination and monitoring of the implementation of the While local authorities tend to be relatively UNCRC is the lack of capacity for 11 MILLION, the transparent and accountable for spending on the office of the Children’s Commissioner for England, services they provide for children and young to systematically evaluate the implementation of people, expenditure at national level is often more the UNCRC. Early in 2009, 11 MILLION produced a difficult to define. Some of this may become lost children’s rights impact assessment on the Equality within funding arrangements to help support Bill, which detailed and evidenced how devolved countries administer their own affairs opportunities were being missed to meet the or, as is the case within the NHS, the funding does Government’s obligations under the UNCRC. CRAE, not always distinguish clearly how budgets are which itself produced a children’s rights impact used discretely for the benefit of children and assessment in response to the Children’s Plan: One young people, rather than for all users of health year on, strongly urges the Government to produce services. children’s rights impact assessments as an important contribution to ensuring high-profile Establish a single high-profile mechanism to and ongoing evaluation of the implementation co-ordinate and evaluate the implementation of the UNCRC in England. of the UNCRC (in addition to well-resourced and functioning co-ordinating bodies in each Adopt comprehensive rights-based action plans jurisdiction) to implement the UNCRC in all parts of the UK, in co-operation with public and private There is currently no single high-profile organisations involved in promoting and mechanism to co-ordinate and evaluate the protecting children’s rights implementation of the UNCRC, either in England or in the UK as a whole. However, representatives There is no overarching rights-based strategy to of the governments of all four nations meet implement the UNCRC in England, nor have there regularly to discuss progress. been any comprehensive action plans brought forward to encourage the implementation of the At present, it is difficult to identify the extent of UNCRC in the last year. Legislation and policy compliance with this particular recommendation. affecting children and young people is not A parliamentary under-secretary of state from developed using a children’s rights framework, and within the Department for Children, Schools and implementation of the UNCRC appears to remain Families, Baroness Morgan, holds responsibility entirely at the discretion of individual government within government for co-ordinating the departments and agencies, while at a local level it is implementation of the UNCRC. But because her left to individual local authorities. responsibilities do not extend to, for example, matters of children’s health, child poverty, There are still aspects of legislation and strategic criminal justice or immigration, there are many planning affecting children and young people that aspects of the UNCRC where her influence over remain outside the DCSF’s sphere of influence, and the direction of government policy can be limited. in any event the UNCRC is still not fully reflected in In March 2009, Baroness Morgan gave oral all aspects of the Department’s policy-thinking. The evidence on children’s rights to the parliamentary principles of the UNCRC are not yet routinely Joint Committee on Human Rights. This followed reflected in all pieces of legislation affecting evidence given earlier in the month by the children, and opportunities for incorporating the children’s commissioners from England, Northern UNCRC into domestic law continue to be missed. Ireland, Scotland and Wales. Questions to the CRAE shares some government concerns about Minister focused on issues such as children in effective delivery at local level, where custody and the criminalisation of children, the accountability for ensuring that children and young treatment of young refugees and asylum seekers, people’s rights are fulfilled can still be lacking, even the incorporation of the UNCRC into UK law, under the very best pieces of legislation. government plans to respond to the concluding observations, discrimination against children on 32 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

On the occasion of the 60th anniversary of the being. Specific aspects of children’s education and Universal Declaration of Human Rights, Prime health will have mechanisms in place for evaluating Minister Gordon Brown emphasised his national plans, but these do not target commitment to human rights both in the UK and implementation of the UNCRC and, consequently, abroad. The Prime Minister used the occasion of are not designed with identifying gaps in mind. his speech to remind us all that: Second, budget allocation may be aggregated across It is all too easy to take our rights for granted, but services, such as health, that are for both adults and we should never forget that the universal rights children. This makes it more difficult to isolate enshrined in the Universal Declaration and in our aspects of the budget that more specifically benefit Human Rights Act are a shield and a safeguard for children and young people. Budget allocation may us all. also be devolved from the UK Government to local and national administrations, thus adding to the The Government is right to set itself the ambitious difficulty in assessing exactly how much of it is vision of making England ‘the best place in the spent, and to what purpose, for the benefit of world for children to grow up’. Given our position children and young people across the country as a of wealth and influence we should be achieving whole. nothing less. However, the Government’s vision cannot be fully realised unless children’s Third, there is no automatic relationship between rights become the central driving force behind the injection of additional government funding, the Children’s Plan. The UNCRC is the most however sizable, and the achievement of desired universally ratified human rights instrument in outcomes. Furthermore, such outcomes do not the world ever, setting the minimum international necessarily include meeting requirements under binding standards by which every country will be the UNCRC; and there are examples of where measured on its treatment of children. However, implementation, at service-delivery level, is falling there are limitations to what one government well short of expectations. department can achieve alone. The measures outlined in the Children’s Plan need to become Fourth, the Government does not systematically rights-proofed, then part of a government-wide carry out children’s rights impact assessments, strategy, with full commitment and sign-up from thereby denying itself the opportunity to monitor all government departments, so that they become the effectiveness of what it is trying to achieve for embedded in every aspect of policy and legislation children and young people, through its extra that touches the lives of every child and young investment, even in terms of a cost–benefit analysis. person in this country. The case for Government to ensure there are systematically produced children’s rights impact Budget allocation and child rights assessments assessments is clear, both in respect of the benefit it would provide the Government in terms of Ensure adequate budget allocation and monitoring the impact and effectiveness of its own evaluation mechanisms for delivering action policies, as well as being better able to evaluate and plans, in order to regularly assess progress identify progress that it was making against UNCRC. and identify gaps in implementing the UNCRC Implementation action plans should pay special While the Government is able to point to vastly attention to children belonging to the most increased levels of public investment in areas such vulnerable groups as education, health, social security and social services, it is not always clear about the impact A series of implementation action plans have been this investment has for children and young developed by the Government since the UN people, either generally or for specific groups. Committee’s concluding observations were First of all, budget allocation is not linked to published in October 2008. These include action progress in implementing the UNCRC, and so is plans focusing on trafficked children, children at rarely evaluated for that particular purpose. risk of sexual exploitation, young runaways, Consequently, action plans tend to set objectives homeless young people, children in need of child that neither relate to the UNCRC, nor to any protection services, black and minority ethnic particular coherent strategy for assessing children in the criminal justice system, and children progress across the full range of children’s well- in care. New guidance will be developed to support 33 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

the implementation of the Children and Young recommendations regarding the use of children’s Persons Act 2008 for children in care, leaving care rights impact assessments as a tool to help evaluate or going through adoption, and measures have the effectiveness of its policies. been outlined to support children living in poverty as part of in the Child Poverty Bill currently going The UN Committee expressed some concern that through Parliament. government strategies are not sufficiently targeted at those groups of children at risk of most severe However, a rights-based strategy that joins up poverty, and that the standard of living of traveller these action plans is sorely needed. Following children remains particularly poor. Traveller Ofsted’s publication of its 2008 Annual children themselves raised this issue in the course Performance Assessments, giving an overview of of CRAE’s children’s rights investigation, where it local authority children’s services, HM Chief was noted that the often ad hoc nature of Inspector Christine Gilbert said: assembling traveller sites on road verges means that access to running water and electricity cannot I am concerned that some services provided for the always be guaranteed, and the lack of on-site toilets most vulnerable children and young people remain and skips where travellers can dispose of their inadequate. We would expect those working in rubbish raises serious concerns about traveller children’s services to address these issues as an children’s access to high standards of hygiene and urgent priority [and] we will be inspecting next health.59 In light of these findings, CRAE would like year to ensure they make good progress.57 to draw attention to the UN Committee’s recommendation to reintroduce a statutory Allocate the maximum extent of available duty on local authorities to provide safe and resources for the implementation of the adequate sites for travellers.60 UNCRC, with a particular focus on eradicating poverty and reducing inequality Children’s rights impact assessments

It is disappointing that the Government is unlikely Children’s rights impact assessments should be to achieve its 2010 target to reduce child poverty regularly conducted to evaluate whether budget by half, and CRAE encourages them to do more to allocations are proportionate to the provide immediate relief from the hardship that implementation of legislation and policy many children and young people will face during this time of economic recession. To this end CRAE Children’s rights impact assessments are a process urges the Government to consider the UN for helping predict the potential consequences of a Committee’s recommendation to provide proposed policy, programme or project on children consistent budgetary analysis to identify the and young people’s enjoyment of their rights, and amount of expenditure allocated to children and for evaluating the actual impact of implementation. to consider whether this serves to effectively The objective of the assessment is to inform implement policies and legislation affecting them. decision-makers and the people to be affected of the The Government’s figures on households below likely impact at the earliest stage possible so that average income have shown that four million they can improve the proposal to reduce any children were living in relative poverty in 2007– potential negative effects, as well as increase 08, an increase of 100,000 on the previous year.58 positive ones. Taken with the failure of the Government to provide the £3 billion investment in family Earlier in the year, CRAE wrote to the Secretary of incomes needed to deal with child poverty, this is State for Children, Schools and Families with a a serious blow to the Government’s efforts to children’s rights impact assessment of the Children’s halve child poverty by next year, and to plan: One year on progress report. Further to this, “eradicate” it by 2020. 11 MILLION produced a children’s rights impact assessment in response to the Government’s CRAE recognises that the Government’s publication of its Equality Bill. commitment to eradicating child poverty by 2020 should move the UK further towards compliance In England, there is still no statutory or legal with its obligations under Article 27 of the UNCRC. obligation to undertake children’s rights proofing of The Government would be assisted greatly in this law and policy, although the UN Committee on the task by taking account of the UN Committee’s Rights of the Child recommended this in its General 34 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Comment in 2003 on implementing the UNCRC.61 concerns and issues independently, in accordance This leaves a significant gap in ensuring that all with the UK’s obligations under the Paris Principles. legislation and policy is developed with the While the children’s commissioners in Northern UNCRC and its general principles as a framework Ireland, Scotland and Wales are each mandated to and is therefore commensurate with all the rights deal with complaints they receive from children of children and young people. CRAE believes all about violations of their rights, the Children’s proposed policies, programmes and projects Commissioner for England is legally prevented from affecting children and young people should be acting as an ‘ombuds’ in children’s complaints, systematically assessed for their impact on although he may enquire into the wider policy children’s rights prior to being adopted and implications that might initially arise from an implemented by Government. individual concern raised by, or on behalf of, a child. The Children’s Rights Director for England, Powers of the Children’s Commissioner however, does have the power to investigate individual cases from children living away from Ensure all four Children’s Commissioners are home in care and in some other regulated settings, independent and comply with the UN Paris and from care leavers.63 Principles Empowering the Children’s Commissioner for The Government has, to date, taken no action to England to investigate complaints from children is strengthen the powers of the Children’s particularly important given that the lack of access Commissioner for England in order to give to independent information and support for making children and young people in England a strong complaints has consistently been identified by and effective independent voice, and to meet full children and young people as a major barrier to compliance with the Government’s obligations realising their rights.64 CRAE found that children under the Paris Principles.62 and young people who were aware of complaints mechanisms often felt unable to use them for three The Paris Principles require a national human reasons: they felt they would not be believed; there rights institution to have: was no likelihood of their complaint being upheld because procedures were not independent; or  A clearly defined and broad-based mandate, complaining was not encouraged. In these based on universal human rights standards situations, good parental support proved 65  Independence guaranteed by legislation or the invaluable. One child said: constitution  Autonomy from government I’ve done a lot of complaints about three kids’ homes  Pluralism, including membership that broadly that I’ve been in and never heard anything back. No reflects the society one’s come to see me to say, right, why are you making this complaint, what’s wrong, what can we  Adequate powers of investigation do. It never happened. And I’ve even wrote to  Sufficient human and financial resources in managers and everything and never ever got a reply, order to carry out its functions effectively. probably because I’m too low life and I’m the one in

care…. Ensure the Children’s Commissioner is mandated, among other things, to receive and The UN Human Rights Council has set up a working investigate complaints from children, and has group to investigate the case for a new complaints the necessary human and financial resources procedure for the UNCRC, which would allow to carry out the mandate in a co-ordinated children and their representatives to bring manner to safeguard the rights of all children individual complaints about violations of rights in the UK directly to the UN Committee on the Rights of the Child. However, children and young people in Within his five-year tenure, the Children’s England also need accessible and impartial Commissioner for England has brought a number complaints redress in place, within a national of important children’s rights issues right to the context, to enable them to seek redress for very heart of government. However, children and violations of their human rights. The Children’s young people in England are lacking a children’s Commissioner for England seems best placed to commissioner who can hear and take up their take on this “ombuds” role, whenever 35 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

approached by, or on behalf of, a child or made by the Government this year to ensure that young person with an issue lacking an professionals working in health care, immigration, effective and accessible complaints remedy law enforcement, the media and social care receive elsewhere. dedicated training on the content of the UNCRC and what it means for dealing with, and providing Dissemination services and support to, children and young people.

Strengthen efforts to ensure that the UNCRC is CRAE has been working with EduCare and the widely known and understood by adults and NSPCC to create a children’s rights distance- children, in part by including the UNCRC in the learning programme for those working with statutory national curriculum children and young people, aimed at expanding knowledge of the UNCRC and focusing on the Ensure the principles and values of the UNCRC promotion and protection of children’s rights.66 are integrated into the structure and practice of all schools Teaching of children’s rights in schools Knowledge about the UNCRC among children and Ensure adequate and systematic training of all young people, parents and carers and professionals professionals working with children, is still limited in England. While some progress has especially law enforcement officials, been made to disseminate information about the immigration officials, the media, teachers, UNCRC in schools, the UNCRC is still not part of the health personnel, social workers, and national curriculum. The Ministry of Justice and the childcare workers British Institute of Human Rights are producing secondary teaching resources on the Human Rights Children and young people’s workforce Act, which includes a Key Stage 3 teaching resource CRAE is disappointed that the Government’s 2020 on human rights in the UK, and guidelines on a Children’s and Young People’s Workforce Strategy whole school approach to human rights.67 CRAE has lacks sufficient vision to appreciate the integral been involved in providing a series of lesson plans role that children’s rights should play in informing for the resources and teachers have attended the professional practice of those who work with training days on delivering the lessons. children and young people. This strategy, although aspiring to achieve a world-class children and CRAE welcomes the Government’s move to make young people’s workforce, disregards the Personal Social Health and Economic (PSHE) recommendation from the UN Committee’s education compulsory in all primary and secondary concluding observations: schools68 and recognises the opportunity this provides for children and young people to learn The Committee recommends that the State party about the UNCRC in a wider context. However, it is further strengthen its efforts, to ensure that all unlikely that this will achieve wider knowledge provisions of the Convention are widely known and about the rights of children until the UNCRC itself understood by adults … It also recommends the becomes a compulsory, rather than optional, reinforcement of adequate and systematic training module within the curriculum. Through of all professional groups working for and with undertaking outreach work in a series of schools, children, in particular law enforcement officials, CRAE has found that many children and young immigration officials, media, teachers, health people are unaware or have only a vague personnel, social workers and personnel of understanding of their rights, and where they have childcare institutions. learned about human rights, this has usually been as a small part of an active citizenship module. Without a commitment to meeting our international obligations under the UNCRC, More positively, the DCSF continues to fund documents such as the 2020 Children and Young UNICEF’s Rights Respecting Schools initiative until People’s Workforce Strategy will remain high on 2010, an initiative which has awarded Rights rhetoric and short on anything that is likely to Respecting School status to over 150 schools. A make any real and lasting change for children. school can obtain the award if it can demonstrate, Knowledge of the UNCRC remains limited among among other things, that knowledge and professionals working with children and young understanding of the UNCRC has been embedded in people, and little additional progress has been the school community and is relevant to the school 36 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

ethos and curriculum, and teaching and learning workers (and directors of children's services) receive. styles are commensurate with knowledge and Not only does this deficiency risk local authorities, at understanding of children’s rights. An interim times, putting best value before children's best evaluation report of the scheme found that, in the interests, but it also often exposes a serious lack of 12 case study schools, staff reported that where understanding of professionals’ primary the language of rights and responsibility was used responsibilities to uphold the rights of some of the by both students and staff, behaviour had most vulnerable children. improved and there was greater consistency and support in building on topics raised in PSHE and In its evidence to the Select Committee on the citizenship. 69 However, the scheme only runs in training of social workers, earlier in the year, CRAE four local authorities (Hampshire being the most had made the following points: active) and received mixed feedback from Sussex University, which carried out the evaluation. CRAE welcomes the timely decision to review the training of social workers following Leadership development for directors of recommendations from Lord Laming's review of the children’s services child protection system71and the Select Committee's This year the Secretary of State for Children, own research into looked after children.72 Given the Schools and Families, Ed Balls, announced a new recent bad press surrounding the social work leadership development programme that all profession, it is important to state at the outset that a directors of children’s services, both current and recent nationwide investigation conducted by CRAE aspirant, will be expected to take up. They will uncovered many examples of social workers going have the opportunity to take part in a 12-month beyond the call of duty to ensure children and young development programme to build on their people had access to opportunities to develop their leadership skills and knowledge. Currently, most skills and talents.73 However, this same investigation directors of children’s services come from an uncovered significant areas for improvement which education, rather than a social care, background additional or revised training for social workers and so have variable experience in children’s could help to address. safeguarding. The new scheme will be led by the National College for Leadership of Schools and CRAE commends the emphasis Lord Laming and the Children’s Services and developed in partnership Select Committee have placed on putting the best with the Association of Directors of Children’s interests of the child at the centre of all decisions Services and the Children’s Workforce regarding a child's welfare and protection, in Development Council. CRAE believes that accordance with section 1 of the Children Act 1989 children’s rights must form an integral part of and Article 3 of the UNCRC. Making decisions which this training, especially those rights which serve the best interests of the child, respect all prioritise listening to children and keeping other rights that children have under the UNCRC them safe. and uphold the principle of child protection is fundamental to understanding and respecting Social work training children's basic human rights, and it is important Children's rights must be an integral part of the that training for social workers is developed in this training of social workers. The Children, Schools context. Following its examination of the UK and Families Select Committee has published a Government in September 2008, the UN Committee report on the training of children and families’ on the Rights of the Child expressed concern about social workers.70 In it, the Select Committee the general lack of knowledge and understanding accepted evidence submitted by CRAE that social about the UNCRC among professionals, identifying work degree courses do not adequately cover social workers as one group in particular need of children's rights. In welcoming the Select 'adequate and systematic training'.74 Committee's findings, CRAE said: There are several reasons why training for social It is unthinkable given the growing catalogue of workers needs to be built around an explicit public child care failures in this country, together children's rights approach. Human rights are widely with our solemn international obligations under accepted to be 'universal, indivisible, interdependent the United Nations Convention on the Rights of the and interrelated'.75 This means, for example, that Child, that children's rights are still not an integral Article 20 – which gives children who are part of the training that all children's social temporarily or permanently separated from their 37 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

family the right to special protection and review meeting, despite the duty laid down in the assistance provided by the state – cannot be Children Act 1989 (amended in the Children Act considered in isolation from other articles of the 2004) for social workers to ascertain a child's UNCRC; there are other rights which are directly wishes and feelings and give them due relevant to a child's entitlement to alternative consideration. Not listening to the views of children care. Of particular importance here are rights led to criticism from children that social workers identified in the UNCRC, by the UN Committee on were failing to tailor care plans to their specific the Rights of the Child, as general principles: the needs.76 right to non-discrimination (Article 2); the best interests of the child as a primary consideration Section 53 of the Children Act 2004 placed new (Article 3); the right to life, and maximum survival duties on social workers to give due consideration and development (Article 6); and the child's right to children's wishes and feelings when undertaking to express their views in all matters affecting a child protection enquiry or a children in need them and to have those views given due weight assessment. Two years after it came into force, the (Article 12). In addition, Article 9 (the right to stay Government was asked in Parliament what in regular contact with family so long as this is the guidance it had issued to local authorities, and how best thing for the child) and Article 19 it intended to monitor the implementation of the (guaranteeing protection from all forms of new duty. The minister gave a very inadequate violence) are also directly relevant to a response.77 At the end of 2007, CRAE made a comprehensive understanding of the rights of freedom of information request to all directors of children in need and looked after. A better children's services in England to determine how understanding of these rights and how they they had implemented this new provision. We interlink would improve the development, found nearly 10% of respondents had been commissioning and delivery of local services, as personally unaware of the new provision until well as the outcomes achieved by children and receiving the CRAE survey (13 of 139 respondents). young people in the care system. Only a third of local authorities that responded said action had been taken to raise awareness of Section Social workers often have difficult judgments to 53 among social workers, while 24 (18%) said they make between competing priorities such as "best were not aware of any action and a further 19 value" versus safeguarding children's best (15%) replied they had taken no action. The interests. A thorough knowledge of the UNCRC Children’s Minister Dawn Primarolo MP has since would enable social workers to make the best asserted that new Working Together guidance will informed decisions about keeping children safe. make ‘even clearer the responsibilities of those This would include understanding not only the concerned to ascertain the views and wishes of rights children have, but also how these need to children’.78 be appropriately weighed and balanced. Adopting a children's rights approach to social work would When talking about whether they have a say, bring the UK in line with internationally children and young people have raised concerns recognised children's rights standards, and help about social workers not dealing with that profession reconnect with its core values. The administrative duties (such as enabling children to UNCRC would provide a comprehensive travel to visit family members and ensuring money framework for ensuring that all children receive allowances for clothes). The failure to consult their basic human rights and also enable social children and young people when decisions are workers to demonstrate how they are improving being made about their care, and to explain those the safety and well-being of children in the local decisions fully, make some feel belittled by the care area. system and silenced by their lack of opportunity to take part meaningfully in decisions affecting their Appropriate participatory techniques must be lives: used to elicit children's views in care review meetings and this must be addressed in ...they say that they're listening to you, and then they training just don't because they say they're going to do something for you and then they never do it, so you CRAE's nationwide investigation suggested that can't trust them. 79 there is wide variation across the country in the extent to which children have a say in their care 38 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

It is vital that methods used by social workers to Media training elicit the views of children in care are inclusive, In February 2009, CRAE published its guidelines for age-appropriate and participatory. This is in journalists and editors on reporting on children’s keeping with the child's right to have a say in all rights and equality issues, funded by the Equality decisions which affect their lives as enshrined in and Human Rights Commission. Another perspective Article 12 of the UNCRC. provides an opportunity for media professionals to better understand human rights issues affecting Children's views must be taken into account children and young people.83 In the meantime, when reviewing social worker training Turkey has become the first country internationally The findings from CRAE's nationwide to incorporate children’s rights into the syllabus of investigation80 and the work of the Children's journalism courses.84 This marks a significant step Rights Director give strong testimony to the fact forward, and one that, according to UNICEF regional that many children in care have informed and director Maria Calivis, will equip ‘young journalists useful views about the training that should be with new tools for their profession, enabling children given to social workers. CRAE understands that to be heard and listened to’. The UNICEF-written the Children's Workforce Development Council syllabus will be rolled out to universities across the has been commissioned to involve children, young country. CRAE hopes the Government here will people and their families in the development and take similar action to disseminate information rollout of leadership training to all directors of about the UNCRC to current and future media children's services. We hope the Government will professionals. endorse a similar approach for social worker training, particularly given the unique insights Engagement in policy development and human that young service-users can provide in rights monitoring identifying gaps in training. Encourage the active and systematic Supporting the mental health needs of involvement of NGOs, youth-led organisations children in care and others in the promotion and Social workers must offer appropriate assistance implementation of children’s rights, including in to children in need of counselling and therapeutic the development of policy support. Nearly half of children in care have a clinical mental health disorder, and six out of Engage NGOs and youth-led organisations in the every 19 have been subject to abuse or neglect, follow up to the UN’s concluding observations yet mapping in 2005 by the Child and Adolescent and the preparation of the next periodic report Mental Health Service found that only 16% of children in care were receiving mental health There has been little concerted action by the services.81 In light of these findings CRAE Government to engage with NGOs in the follow-up recommends that training for social workers to the UN Committee’s concluding observations of identifies the range of mental health services 2008, although NGOs are consulted and involved in available to children and young people and the development of a wide range of policy areas how to ensure that decisions regarding affecting children and young people. However, the referral to these services are made in Department for Children, Schools and Families conjunction with the young person. (DCSF) worked with UNICEF UK and CRAE to organise a conference in September 2009 between Border and immigration staff training government officials and children and young people Although CRAE welcomes training rolled out to to discuss plans for action on the concluding immigration staff over the last year by the UK observations, and to engage with children and Border Agency on its Code of Practice to safeguard young people in developing government policy in the welfare of children and young people, the areas such as family and relationships, schools, Government has missed the opportunity to complaints procedures, health and mental health. explicitly focus this training on the application of This is an encouraging first step; however we the UNCRC to children and young people subject hope to see continued dialogue on the response to UK immigration law.82 to the 2008 concluding observations and meaningful engagement with children and young people in children’s rights monitoring, both in contributing to ongoing policy 39 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

development and in preparing for the next periodic report to the UN Committee on the Rights of the Child coming up in 2014. We acknowledge that DCSF continues to work closely with CRAE to consider how best to take forward dialogue between ourselves and other NGOs on progress towards fully implementing the UNCRC in England.

This year has also seen the recruitment of a brand new Children and Youth Board, managed by the National Children’s Bureau, which has regular dialogue with DCSF ministers and policy-makers.

40 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

GENERAL PRINCIPLES

Overview The four general principles of the UN Convention on the Rights of the Child – the right to non-discrimination in the application and enjoyment of rights (Article 2), for best interests to be a primary consideration when decisions are being made that affect children (Article 3), the right to life and maximum development (Article 6), and the right to express views and have those views taken seriously (Article 12) – are distinct rights by their own nature as well as underpinning all other rights for children set out in the UNCRC.

In its concluding observations, the UN Committee underlined its concern about the intolerance towards children and young people in our society, the manifestation of which is most clearly seen within the pages of our national and local newspapers. The Government has joined with NGOs, children and young people and others in condemning this and exploring ways in which to address negative representations of children and young people and raise their status in society. However, it remains the case that in many areas the Government’s own policies and actions give such negative representations credence and even tacit justification, a tension reflected across many government departments. Welcome measures to consolidate anti-discrimination legislation in the Equality Bill are somewhat undermined by the denial of protection from discrimination on the grounds of age to under-18s. Children’s best interests are much promoted by the Department of Children, Schools and Families, yet clearly come in second where matters of immigration or juvenile justice are concerned. Progress continues to be made by the Government with regard to legislative and other measures to ensure the involvement of children and young people in decisions affecting them, yet children still report not being listened to, and both local and national mechanisms to promote children’s engagement remain under-developed, broadly self-selecting and at times even tokenistic.

Status of children and young people in society  SHINE week in July 2009 (intended to encourage positive perceptions of young Take urgent measures to address the people)86 intolerance and inappropriate  Investing jointly with the Department for characterisation of children, especially Communities and Local Government in the adolescents, within society including the National Body of Youth Leadership (now known media as The Youth of Today), a programme to develop young leaders.87 For the first time, the UN Committee on the Rights of the Child has expressed deep concern at the However, Baroness Morgan recognised that more ‘climate of intolerance and negative public needs to be done, saying, ‘We feel very strongly that attitudes towards children, especially adolescents, there is an awful lot more as a government that we which appears to exist in the State party, including could do.’88 Evidence from the last 12 months in the media’ and called for urgent action to be supports Baroness Morgan’s comment and shows taken to address this.85 that huge effort is still required in order to seriously challenge public perceptions of children and young In an evidence session on children’s rights held by people. the Joint Committee on Human Rights, Baroness Morgan confirmed that the Government shares Poll results published by Barnardo’s in November the UN Committee’s concerns, and noted that the 2008 demonstrated alarming negative perceptions Department for Children, Schools and Families is of children and young people by some adults in the working with other government departments and UK. According to the poll, 49% of people asked agencies to develop communications strategies to agreed that children were increasingly a danger to change the public perception of young people. It themselves and adults, and only 45% disagreed has also introduced initiatives to celebrate the with a statement that ‘People refer to children as achievements of children and young people, feral but I don’t think they behave this way’.89 including: Findings from police recorded crime and the British Crime Survey also show that perceptions of children and young people’s involvement in anti- social behaviour have remained consistent, with

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“teenagers hanging around the streets” remaining negative messages about young people that are the most prevalent perception of anti-social perpetuated by the Government’s own policy and behaviour, at around 30%.90 legislation (guidance on “naming and shaming” children and young people with ASBOs being a key A publication by CRAE this year reviewed the example of this), any measures taken will be of representation of children’s human rights and limited effectiveness and may even prove counter- equality in the media, finding that in an audit of 10 productive in addressing these widely shared national newspapers over a six-month period only concerns. 1.8% of articles about children were about rights and equality, and that sensationalist stories about Discrimination children as victims were most likely to dominate coverage. Articles about anti-social behaviour Strengthen anti-discrimination activities, made up 7.4% of the articles about children in the including awareness-raising, and take tabloids and only 2.9% of articles in affirmative action where necessary to benefit broadsheets.91 This research coincided with a vulnerable groups including Roma and Irish report from young researchers working with the traveller children; migrant, asylum seeking and National Children’s Bureau, exploring how 13 to refugee children; lesbian, gay, bisexual and 18 year-olds are portrayed in the media. The transgender children; and all children researchers interviewed journalists who ‘talked belonging to minority groups about the pressures they face to cover negative stories that often portray young people in a bad light’. Young people who participated in the Take all necessary measures to ensure that research called for more balanced and less cases of discrimination against children are sensationalist reporting.92 A report by the addressed effectively, including with Citizenship Foundation, Our stories – portrayal or disciplinary, administrative and penal sanctions betrayal, found that most children and young people feel that their actions are positive and There is still no single system within government should make good news stories, yet only five per for monitoring the situation of all children and cent believed that such a positive news item young people exposed to discrimination. Without would appear in the media, potentially damaging clear, consistent and robust data on discrimination wider recognition of children and young people’s and inequalities the Government will be unable social and political participation.93 either to properly identify what further anti- discrimination measures are required to protect CRAE’s guidelines for journalists and editors children or to implement measures to address about reporting on children’s rights and equality discrimination where it occurs. issues, Another perspective, emphasise that research to determine the balance of reporting on Monitoring the scale of discrimination and children and young people ‘has consistently found inequality that negative stories dominate’. The guidelines There have been two developments in the last 12 recognise that there are many parts of the media months which may support the Government to that present children in a fair and balanced way, further its work on anti-discrimination activities but they also call for more ‘accurate and sensitive relating to children and young people. reporting’ which challenges damaging assumptions about individual and groups of The Equality and Human Rights Commission children, including young refugees and asylum (EHRC) has a statutory duty to develop and monitor seekers, gypsy and traveller children, and children human rights and equality outcomes and indicators. in conflict with the law.94 They also include advice The EHRC this year published a report on the for gaining the direct perspectives of children and development of equality measurement indicators young people in reported news. for adults and children. It stated that the provisional children’s indicators are based on ‘the adults’ list, CRAE welcomes the Government’s commitment to examination of the Every Child Matters framework addressing disproportionately negative reporting and the UN Convention on the Rights of the Child’, about children and young people in both the local and recommended that the children’s indicators be and national media. However, until concerted subject to review by children’s charities and other cross-government action is taken to halt the stakeholders.95 A small number of children and 42 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

young people were consulted by the authors of The age element will not apply to schools and the report. The children’s indicators have yet to be children’s homes, and the duty to eliminate finalised. unlawful age discrimination will not apply to under- 18s.102 The equality duty also promotes In October 2008 the Government established the participation and consultation.103 If implemented National Equality Panel (NEP), and tasked it with properly, this duty could mean that children and analysing the different factors that contribute young people become much more involved in towards inequality, and the links between them. 96 shaping public services. The NEP is analysing a range of evidence relating to how life chances are not only affected by The Government seems unable to understand how gender, ethnicity, age and disability, but also by children in care are likely to suffer as a consequence family background, geographical location, of children’s homes being excluded from the public educational attainment, type of employment, and sector equality duty. It is now widely recognised individual and family income.97 that subjecting children and young people to multiple moves does them considerable harm and While the NEP is not taking a specifically rights- severely damages their opportunities for achieving based approach to analysing societal inequalities good outcomes. Children’s homes, quite opposed to and the links between them, it has gathered being able to make decisions based on what is good evidence from a range of individuals and for children, are often required as a condition of organisations.98 The NEP has also run two registration with Ofsted to restrict places strictly in stakeholder seminars to share information on its accordance with agreed age criteria. Therefore, work, both of which addressed inequalities regardless of what might be best for the child, if the experienced by children and young people. The children’s home does not wish to risk acting in NEP’s final report to the Equality Minister is due breach of its conditions of registration, a child who to be published in early 2010.99 It remains unclear is too young will not be admitted (even if they are a to what extent either of these pieces of work sibling of another resident) and a child who is too engages with the Department for Children, old will typically be required to leave. There are Schools and Families. many examples of children and young people being refused what would otherwise be perfectly good Equality Bill extends protection from care placements, or being forced to move from discrimination to children, but not on the basis children’s homes, primarily because of their age.104 of their age Such gratuitous placement moves are strong The UN Committee welcomed the Government’s evidence of the problems that can arise from the plans to consolidate equality legislation in the absence of an age equality duty. Equality Bill and noted that it provided a clear opportunity ‘to mainstream children’s right to non- The Equality Bill does not provide extensive discrimination into the UK anti-discrimination protection from discrimination for all children and law’.100 young people. A children’s rights impact assessment on the Equality Bill, produced by 11 MILLION, The Bill, which aims to simplify and streamline identified several other areas where groups of equality and anti-discrimination legislation, will children and young people are specifically excluded bring into law several new legal protections for from measures in the Bill: children and young people from various forms of discrimination. Legal protection from unlawful  Exclusion of students in schools from protection discrimination in goods, services and public against discrimination, harassment and functions will be extended to sexual orientation, victimisation on the grounds of pregnancy and religion or belief, and age.101 These measures will maternity (clauses 79 and 16) apply to people of all ages – apart from the  Exclusion of students in schools from legal measures relating to discrimination on the protection against harassment on the grounds grounds of age, which will only apply to adults. of gender re-assignment (clause 80 (10)).105

The Equality Bill will also introduce a public More positively, the Equality Bill proposes to extend sector equality duty requiring public authorities protection to students against victimisation by to eliminate unlawful discrimination, promote school authorities as a result of conduct by their equality of opportunity and foster good relations. parents or siblings.106 In addition, the extension of 43 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

legal protection from discrimination beyond the that age discrimination legislation is not an workplace to sexual orientation, religion or belief appropriate way to ensure that children’s needs are is a welcome step and should provide much met.111 needed protection for specific groups of children and young people. They will also provide children The Government’s position is deeply disappointing, and young people with important means of particularly in light of the recognition by the UN redress in cases of unlawful discrimination. Committee that the Equality Bill provides a major opportunity to enshrine children and young However, the Government has missed a huge people’s right to non-discrimination in domestic opportunity to protect the right to non- law. Several organisations have challenged the discrimination of all children and young people by Government’s position on children and age refusing to extend measures relating to age discrimination, including the Equality and Human discrimination to under-18s. In June 2008, the Rights Commission112 and 11 MILLION.113 Equality Minister, Harriet Harman, said: Specific groups of children continue to The provisions will not cover people under 18. It is experience high levels of discrimination right to treat children and young people differently, Despite recommendations from the UN Committee for example through age limits on alcohol in its last set of concluding observations in 2002 consumption, and there is little evidence of harmful regarding the need to pay more attention to the age discrimination against young people.107 rights of particular groups of marginalised and vulnerable children and ensure they are not Prior to and throughout the passage of the Bill to discriminated against114, certain groups of children date, the Government has consistently held this in England continue to experience much higher position and rejected all calls to extend legal levels of discrimination and social exclusion. protection from harmful age discrimination to children and young people, despite significant Lesbian, gay, bisexual and transgender children evidence that age discrimination against under- This year, Stonewall highlighted teachers’ 18s is systemic and widespread.108 In its flagship experiences of homophobic bullying among publication, Making the case, the Young Equals students in schools: campaign co-ordinated by CRAE109 sets out for the first time all the evidence that illustrates why  Nine out of ten secondary school teachers and children need protection from age over two in five primary school teachers said discrimination.110 It looks at evidence in a range of that students experienced homophobic bullying, settings, including health and social care, access to harassment or name-calling (regardless of justice, in public spaces, shops and restaurants children’s actual sexual orientation) and on public transport. Making the case also  Secondary school teachers said that challenges the Government’s argument that legal homophobic bullying was the second most protection from harmful age discrimination common form of bullying, and three times more against children and young people may prevent common than bullying related to race or the development of age-appropriate services. ethnicity  Half of secondary schools who were aware of The Government has also rejected EU proposals to homophobic bullying in the school said that the extend legal protection against harmful age ‘vast majority of incidents’ go unreported.115 discrimination to children and young people. In its consultation on the cross-cutting EU Directive on Stonewall’s report calls for schools to take more Equal Treatment the Government reiterated its action to prevent and respond to homophobic view that age discrimination protection should bullying and to involve students in the development not be extended to children and young people: of anti-bullying policies. Schools must also make sure that staff challenge homophobic bullying and The UK Government does not think that any receive appropriate training to help them deal with extension of age discrimination legislation should it effectively.116 In 2009, Parliamentary Under- cover children or the provision of education in Secretary of State for Children, Baroness Morgan, schools and therefore does not plan to extend anti- wrote to all headteachers and directors of children’s discrimination legislation to those aged under 18… services to remind them of the DCSF’s 2007 The UK Government therefore continues to believe guidance on homophobic bullying. She noted that 44 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

‘all forms of bullying, including homophobic can be taken seriously and dealt with effectively bullying are unacceptable’.117 through the justice system.

Discrimination related to race and ethnicity Gypsy and traveller children experience severe In December 2008, the Ministry of Justice inequalities and discrimination published its first annual report detailing progress Research commissioned by the Equality and Human towards addressing the over-representation of Rights Commission (EHRC) into inequalities young black people in the criminal justice system. experienced by gypsy and traveller communities Evidence given to the original Home Affairs found widespread discrimination and profound Committee inquiry by the Department for inequalities in relation to other groups of children Children, Schools and Families included comment and young people: that a compelling case could be made for the existence of institutional racism in schools in  A shorter life expectancy and poorer health relation to underachieving black boys.118 Although than the rest of the population over-representation remains a serious problem  Poorer (and declining) educational (and has since been highlighted again with regard achievements in relation to other children to the over-representation of ethnic minority  Very low participation in secondary education groups on the National DNA Database), the (discrimination and abuse by teachers and staff publication of the annual progress report is a was cited as a major cause of this) positive step towards ensuring that schools and  Lack of access to out-of-school and leisure the criminal justice system continue to fulfil their services equality obligations to all children and young  Impact on mental health caused by evictions, people.119 family tensions, and hostility from wider society  A very high representation in the criminal This year, a 15 year-old boy became the first justice system.122 child to be convicted of racially harassing another child in school. Lincoln Magistrates’ In both 2002 and 2008, the UN Committee voiced Court convicted the boy of racially aggravated concerns about the treatment of children and young harassment after finding that he had subjected people from gypsy and traveller communities.123 In a 14 year-old mixed race girl at his school to 2006, the Government set out targets for providing racial harassment over a six-month period, more gypsy and traveller accommodation provision leading her to attempt suicide. The girl’s mother by 2011124, but the EHRC judged earlier this year criticised the school for failing to recognise the that ‘too little progress has been made towards bullying.120 In August, the boy was sentenced to meeting this need’.125 a six month supervision order and fined £500. Inspector Pat Coates of Lincolnshire Police was Discrimination as a result of being in care quoted as saying: This year saw the publication of another children’s views report from the Children’s Rights Director for It was a targeted campaign. Hopefully he has England, Care and Prejudice.126 Nearly half of learned a lesson. If this sort of behaviour takes children in care reported being afraid of prejudice place the police will take it seriously. It also sends a or bullying, or of being treated differently if people message to the victims: come forward, we can help know about their care background. Many children you.121 and young people living in children's homes and foster care are particularly worried about This serious case raises difficult questions with employers, other young people and potential regard to protecting children from racial landlords finding out they are in care. The national harassment, and appropriately dealing with the survey of 362 children in care also reveals concerns children who racially harass. These include about their unjustified reputation among the whether bullying and harassment is best dealt general public. Almost half thought that the public with through the criminal courts, and whether saw children in care as bad and “out of control”, and schools are doing enough to improve their just under a quarter thought they were seen as detection and prevention. However, what the troublemakers. The Care and Prejudice report case does illustrate is that children and young supports evidence that children in care are people’s complaints about racial harassment discriminated against on the grounds of their care status. In any other context “careism” would be 45 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

recognised and challenged just like any other form Best interests in juvenile justice and of discrimination. Its impact on those immigration discriminated against would be a matter of Children and young people’s best interests continue serious cause for concern. However, it is not – yet to take second place to both immigration signaling another serious indictment of the considerations and policy and practice in juvenile English care system. justice. The Government recognises the UN Committee’s concerns regarding these areas in its Children’s best interests are not a priority one year progress report on the Children’s Plan, but fails to address them in any detail.131 Take all appropriate measures to ensure that the principle of the best interests of the child is Child’s best interests not considered when adequately integrated into all legislation and sentencing parents policy affecting children, including in criminal The 2007 Corston Report on women in prison justice and immigration matters found that 18,000 children each year are separated from their mothers through prison sentences. Only The UN Committee on the Rights of the Child five per cent of prisoners’ children remain in their expressed with regret that the principle of the home once their mother has been sentenced to best interests of the child is still not reflected as a custody. The review describes the impact on primary consideration in all legislative and policy children of their mother’s imprisonment as matters affecting children and young people.127 ‘catastrophic’.132

In an answer to a parliamentary question in In the 2009 update to its 2007 response to the October 2009, Baroness Morgan said: Corston Report, the Government rejected the report’s recommendation that ‘defendants who are The UK is fully committed to the United Nations primary carers of young children should be Convention on the Rights of the Child (UNCRC). The remanded in custody only after consideration of a Government implement the Convention through a probation report on the probable impact on the combination of legislation and policy initiatives. As children’. Stating that it agrees with this set out, for example in the Government's Children’s recommendation in principle, the Government has Plan for England, the ambitions for children and nonetheless indicated that it ‘does not consider that young people and the policies to deliver these, there is a need for a separate probation report on the reflect and are informed by the General Principles impact of a custodial remand on dependent and the Articles of the UNCRC128 children.’133

Disappointingly, the one-year update on the The Government has announced its intention to Children’s Plan does not directly address the UN ‘jointly publish a cross-government Committee’s recommendation that the best framework…setting out recommended practice by interests of the child must be ‘adequately local agencies and offenders services in identifying integrated in all legislation and policies which have and supporting [children whose parents are an impact on children’.129 The full incorporation of imprisoned]’ later in 2009.134 the UNCRC into domestic law would be the only guaranteed means of ensuring that the principle Penalties for non-participation in education and of the best interests of the child remains imprisonment of parents paramount. A great opportunity for enshrining the Measures brought in as part of the Education and UNCRC into domestic law was presented this year Skills Act 2008 set out a new duty to participate in with the publication of the Government’s Green education or training until the age of 18. The Act Paper on a Bill of Rights and Responsibilities.130 also allows for Parenting Contracts to be issued to However, the Government’s plans fall far short of adults whose children are not participating in a consistent approach to incorporating the education and training. provisions and principles of the UNCRC into UK law and policy. There have also been several reports in the media this year of parents being fined and imprisoned for their children’s non-attendance at school. Figures obtained by the Liberal Democrats and published in The Guardian in November 2008 showed that 46 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

mothers were three times more likely to be jailed Protection of the right to life than fathers for such instances, and more than twice as likely to receive a sentence or be fined as Use all available resources to protect the child’s fathers.135 According to figures published by the right to life, including by reviewing the BBC in February 2009, a parent is imprisoned effectiveness of preventive measures once a fortnight during the school term. The report quotes Professor Ken Reid, chair of a The Government has missed an important review of school attendance for the Welsh opportunity to address significant deficiencies in Assembly Government, who stated that jailing arrangements for keeping children and young parents does not make any difference ‘because the people safe, following the publication of Lord roots of truancy are in problems such as a Laming’s review into child protection arrangements breakdown of family life… jailing parents is not in England. Both the report and the Government’s going to address such issues.’136 Taking an response to its 58 recommendations – including increasingly punitive approach to school measures to improve the inspection of safeguarding attendance without having regard to the best services and the conduct and quality of serious case interests of children and young people will not reviews – were far too selective in the aspects of the resolve the problem of non-participation. Other child protection system that it covered. commentators have pointed to the double To begin with, the appointment of Lord Laming was standards being applied by many local authorities. not without criticism. Firstly, because he had been While they persist in prosecuting parents for the invited by the Secretary of State for Children, non-attendance of children, they as corporate Schools and Families to, in effect, review his own parents remain amongst the worst offenders in previously failed recommendations from the respect of ensuring that children in their care are Climbié Inquiry in 2003.139 Secondly, because it in regular school attendance. Yet, they are the only brought into sharp question the role of the “parents” in the country that never face the threat Children’s Commissioner for England, whose of prosecution. powers specifically allow for the conduct of such inquiries on behalf of the Secretary of State.140 Children in family proceedings From April 2009, most family court hearings that The review only partially addresses the previously took place in private were opened to professional development needs of social workers accredited members of the media, although the engaging in child protection decision-making, Secretary of State for Justice Jack Straw confirmed especially with regard to the involvement of the that the courts will have the power to restrict police, health care professionals and local authority attendance in certain circumstances. The solicitors. The role played by local authority Government has insisted that the privacy of solicitors is an area for urgent attention. According children and their families will be respected under to the original serious case review following the the new media attendance system and that the death of Baby Peter Connolly, advice from local court will be able to restrict attendance if the authority solicitors in Haringey was, at times, welfare of the child requires it.137 ponderous and questionable in terms of its understanding of what was required to keep Peter This is a reversal of the position taken only two safe. Advising that there were not, legally, sufficient years earlier by the Government when, following grounds for care proceedings rather misses the consultation, it decided that family courts would point that the first duty of the local authority should not be opened to the media on the basis that this have been to keep the child safe. There are other would not be ‘consistent with the principle that legal and professional options open for keeping children must come first.’138 The recent change of children and young people safe, short of seeking policy was heavily criticised by NGOs and lawyers, care proceedings. Lord Laming should have been and there has already been a significant amount of tasked to consider what specialist training is confusion about the rules permitting media required by local authority solicitors involved in coverage of such cases. It is likely that further child protection cases to give sound legal advice legislation will be passed in 2010. that takes into account the best interests of the child.

Although commendably taking forward this review of child protection arrangements, the Government 47 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

has failed to extend it sufficiently to look at the custody. Those calls have been rejected on the basis safety of children and young people of all ages, that the 2008 independent review of child restraint including those who are at risk in institutional and in custody would serve this purpose. However, custodial settings such as young offender recent inspection reports from HM Chief Inspector institutions and secure training centres. This is of Prisons show how misguided that has proved to despite ongoing and persistent lobbying from be and how far the Government continues to fall NGOs, families and children and young people that short of its duties towards some of our most such a review is sorely needed to protect some of vulnerable children and young people.142 In our most vulnerable children and young people addition, the independent review missed important from harm. sources of evidence, including the Aycliffe report of 1993, and the recent ruling in R(C) v Secretary of Reviews of unexpected deaths State for Justice [2008]. CRAE therefore repeats its call for a public inquiry into the use of Introduce automatic, independent and public physical restraint; for an immediate ban on all reviews of any unexpected death or serious uses of deliberately painful techniques; and for injury involving children – whether in care or the Government to pass on information to young in custody people in secure training centres (past and present) advising that their rights may have Serious case reviews been breached as a result of some unlawful Arrangements for the conduct of serious case restraint techniques being used that are prone reviews have received criticism, due to the to cause serious risk of injury. amount of time taken to carry them out and their lack of independence. Ofsted has called into Conflicts of interest are at their most evident question the quality of many serious case reviews, whenever establishments or local authorities finding that far too many have been inadequate.141 conduct their own inquiries into child abuse There are also inconsistencies across the country concerns. The tension between finding out whether as to what should cause Local Safeguarding lessons can be learned and defending the Children Boards (LSCBs) to conduct a serious case reputation of the establishment or council involved review. Allowing LSCBs to operate independently means that safeguarding children’s rights and in their area has to be tempered by a realisation welfare may not always be as prominent as it that learning across the country from the conduct should be. Consequently, CRAE has its reservations of serious case reviews requires an element of about how new guidelines for handling allegations both consistency among local practices and against people working with children will be transparency in reporting findings. Only that way interpreted in practice. While these should be fully can we begin to arrest the numbing repetition of integrated with procedures in Working together to child care inquiry reports trying to explain why safeguard children143, there is a risk that some clear and universal child protection guidance is settings and establishments will make not always consistently followed. inappropriate judgments about which allegations should be referred outside to local child protection The conduct of serious case reviews following the procedures. deaths of Gareth Myatt and Adam Rickwood (both aged 14), who died while in the care of secure Tasers and harmful devices training centres, does not adequately explain why there has never been the full public inquiry Treat Taser guns and AEPs as weapons subject repeatedly called for. The inquests, into both to applicable rules and restrictions deaths revealed evidence of the routine unlawful use of force by staff in these institutions, yet five End the use of all harmful devices on children years on we are seemingly no closer to holding institutions and individuals publicly to account for Use of Tasers their actions, or to allow children who have been The use of Tasers is becoming more widespread unlawfully restrained access to justice. and these harmful devices continue to be authorised for use on under-18s. The use of plastic Use of physical restraint baton rounds as a means of riot control has not CRAE and other NGOs have set out the case for a been abolished. public inquiry into the use of force on children in 48 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

In February 2009, a parliamentary answer announced that police forces would receive 6,000 revealed that: more Tasers and additional funding for cartridges.150  36 children had been ‘exposed to the use of’ Tasers in 2007, and 75 children between In August 2009, The Guardian reported that a new January and August 2008 ‘high-power Taser’, recently made available in  Tasers had been fired at 11 children in 2007, America, may soon be used by the police in the and 17 children between January and August UK.151 According to the newspaper, these weapons 2008. attach themselves to a target with a series of barbed electrodes and deliver a 20-second, 500-volt shock. In response to a parliamentary question, the This report is disputed by Government, and the Home Secretary stated that information is not Home Office confirmed that these new Tasers were collected on the number of times Tasers are being considered for use, but stating, ‘the Home deployed within 10 metres of a child.144 Figures Office Scientific Development Branch are considering released by the Home Office in August 2009 on the it as part of their ongoing remit to evaluate new less use of Tasers from 2004 to March 2009 did not lethal technologies’. give a breakdown of use according to age.145 When asked in a parliamentary question what In November 2008, the Defence Scientific safety assessments had been conducted on the use Advisory Council’s Sub-Committee on the Medical of Tasers and AEPs with children, Home Office Implications of Less Lethal Weapons (DOMILL) Minister Alan Campbell MP stated that: published a review of the first year of a trial of deployment of Tasers by specially trained units …the fourth DOMILL statement [on the medical who are not firearms officers. DOMILL’s report implications of Tasers] identified children and adults stated that during the trial period: of smaller stature as being at potentially greater risk from the cardiac effects of Taser currents than ...the Taser current was applied to twenty-four normal adults of average or large stature. The ACPO subjects under eighteen years old. Thirteen were guidance to officers highlights this point. ACPO exposed to the fired probes only, seven to drive-stun guidance on the use of Attenuated Energy Projectile application only, and four subjected to both. None (AEP) states that every effort should be made to of the incidents resulted in adverse medical ensure that children are not placed at risk by the outcomes attributable to the primary effects of the firing of baton rounds in public order situations.152 Taser. The secondary injuries were barb puncture wounds or drive-stun burn marks at the site of An Amnesty International report published in probe contact. There were no reported instances of December 2008 challenged industry claims that head injury due to Taser-induced falls. In two cases, Tasers are “safe” and “non-lethal”. Whilst it went on the top probe struck the neck.146 to reveal that 334 people died in the United States after being struck by Tasers between 2001 and The DOMILL statement concluded that the ‘risk of August 2008, it had to acknowledge that tasers death or serious injury from use of the M26 and X26 were the direct cause of death, apart from only in a Tasers ... is very low’ but warned of deaths in handful of cases. America caused by Taser-induced falls. The statement also noted that there was insufficient Respect for children’s views evidence to evaluate the risks to foetuses in pregnant women.147 Through legislation and in practice promote, facilitate and implement the principle of respect From 1 December 2008, the then Home Secretary, for the views of the child – in the family, in Jacqui Smith, offered chief officers of all forces in schools, in the community and in institutions, England and Wales the opportunity to extend the and in administrative and judicial proceedings use of Tasers (which emit electric shocks within a range of 50kV up to 100kV) to specially trained Support forums for children’s participation units who are not firearms officers.148 Whilst the Metropolitan Police Authority (MPA) commented Continue to collaborate with civil society to that it had ‘seen no case made out to extend their increase opportunities for children’s availability’149, in March 2009, the Home Secretary meaningful participation, including in the media 49 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Children and young people continue to report not positions, despite strong opposition from children’s being able to express their views or, when they do, charities.159 that these views are not being taken seriously. The Government undertook a nationally The Department for Children, Schools and Families representative survey of school students in years continues to have a Children and Youth Board of 25 8 and 10, which found that just 28% believed that children and young people aged eight to 18, and has their views were listened to in decisions about the plans to continue this work until at least 2011. The local area ‘a great deal’ or ‘a fair amount’. In Board advises Ministers and policy officials on the contrast, 57% said either ‘not very much’ or ‘not at development of policy and practice that affects all’.153 children and young people in England.

The Government has, however, introduced several The UN Committee on the Rights of the Child welcome measures that strengthen children and specifically urged the Government to further young people’s participation rights in law. These support children and young people’s forums are primarily in relation to collective participation including the UK Youth Parliament (UKYP). On 16 and include: March MPs supported a Government motion to allow the UKYP to sit in the House of Commons –  A duty on local authorities to promote with 210 MPs voting for the motion and just 22 democracy154 opposing.160 UKYP held its first event in October  A duty on local authorities to respond to local 2009. petitions, including electronic petitions, from those who live, work or study in the area The Government has supported an independent (some peers attempted to remove this Youth Citizenship Commission to examine ways of definition but the Government resisted such developing children and young people’s moves) understanding of citizenship and increase their  A duty on police authorities to have regard to active participation in politics. The Commission also the views of people in the authority area;155 examined the case for lowering the voting age to 16. the Government has confirmed that this It found that, in a nationally representative sample, includes children and young people the majority of under-18s support lowering the  A duty on the Secretary of State when voting age to 16 but that support fades among older preparing a UK child poverty strategy to people. The Commission stated that the final consult children and young people living in decision was political and should be left to political poverty, or organisations working with parties, but that Parliament could consider them156 devolving the issue to the devolved legislatures.161  A duty on NHS bodies to have regard to the CRAE feels that it is likely that, should the voting NHS Constitution, which includes provision age become a devolved issue, 16 and 17 year-olds in for individuals to be involved in and consulted Scotland and Wales may well become enfranchised. on all decisions about their care and The voting age must be reduced consistently treatment157 across the UK to avoid discriminating against  A duty on public authorities and those young people on the basis of where they live; undertaking public functions to encourage the continued denial of the basic civil and persons who share a relevant “protected political right to vote for 16 and 17 year-olds is characteristic” to participate in public life or in unnecessary and potentially undemocratic. any other activity in which participation by such persons is disproportionately low (a The Youth Citizenship Commission also made a protected characteristic includes age, number of general recommendations regarding disability, gender reassignment, marriage and young people and citizenship. Having found that civil partnership, pregnancy and maternity, much activity on participation and citizenship was race, religion or belief, gender and sexual poorly co-ordinated and short-term, it called for orientation).158 improved citizenship education in schools; for more activities to increase participation in school However, we have also seen children and young decision-making including the introduction of people lose participation rights. The Companies student governors; and a Government minister to Act 2006 came into force on 1 October 2008, drive change to increase the engagement of children removing under-16s from company directorship and young people in political life.162 The 50 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Government is yet to respond to the Commission’s recommendations.

Where Government can take some credit is in promoting many good initiatives to ensure that children and young people are consulted on issues that matter to them. A good example of this is through its Building Schools for the Future (BSF) programme, which is making substantial additional funding available to councils in order to transform schools and the future delivery of primary and secondary education in local areas. The Government commendably required local authorities to include children and young people as part of their process of local consultations on the proposals submitted in bids for a share of the new BSF funding. Many local authorities have taken this requirement seriously, and engaged in meaningful consultation with school-aged children and young people in their area, buoyed by what the Government had clearly built in as an integral part of the application process. This example shows how use of linked financial incentives can be effective alongside legislation, policy guidance, inspection and targets in driving forward improvements.

51 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

CIVIL RIGHTS AND FREEDOMS

Overview Children and young people’s civil liberties have been an emerging concern since the UN Committee’s last examination of the UK in 2002. The disproportionate application of anti-social behaviour orders (ASBOs) to children and young people (as compared to adults) and the continuing use of measures such as curfews and dispersal orders have raised particular concern with regard to the appropriateness and effectiveness of their use with children and young people. Positive moves by the Government to encourage local authorities to focus more on prevention and to ensure ASBOs are accompanied by individual support orders do not dispel concerns about the Government’s promotion of the anti-social behaviour agenda as a solution to the “problem” of children and young people.

The lack of regard given to children’s privacy rights in a wide range of areas (including the implementation of ContactPoint, the expanding use of biometric data in schools, the collection and retention of children’s DNA, and the increasing participation of children in reality television shows) have all illustrated the need for ensuring that policy development is firmly grounded in the Government’s obligations to children under international human rights law. A sectoral approach to dealing with violence against children has led to welcome initiatives to protect children from sexual exploitation and girls from gender-based violence, yet there has been no action taken to introduce an overarching national strategy to protect all children from all forms of violence. The failure of the Government to ban both physical punishment in the home and the use of painful restraint techniques on children in custody continues to undermine its efforts to end the use of violence against children and young people.

Anti-social behaviour measures ASBOs issued to children aged 10 to 17, 1999- 2007 Reconsider ASBOs as they may violate children’s rights Year Number of ASBOs issued Apr 99 – May 00 0 Conduct an independent review of ASBOs with Jun 00 – Dec 00 62 a view to abolishing their application to 2001 193 children 2002 251 2003 628 Reconsider other anti-social behaviour 2004 1340 measures, such as the mosquito device, as they 2005 1581 may violate children’s rights to freedom of 2006 1053 movement and peaceful assembly 2007 920 Total 6028 Nine hundred and twenty ASBOs were issued to children in 2007, who received 40% of all ASBOs Children and young people’s right to freedom of issued in England and Wales that year.163 The vast movement and peaceful assembly is protected by majority of these (79% or 727) were for a Article 15 of the UNCRC, the enjoyment of which is duration of two to three years, although a essential for their development. The use of formal significant minority (21% or 193) were for a and informal anti-social behaviour measures period of three years or more. Breach rates (including ASBOs, curfews, dispersal orders and remain high, with 64% of ASBOs issued to mosquito devices) has been a significant threat to children since June 2000 proven in court to be children and young people’s civil liberties for breached. Of these, 41% resulted in a custodial several years, and the recent examination provided sentence, most commonly of between three and the UN Committee on the Rights of the Child with its six months.164 In total, 1,184 children and young first opportunity to reflect upon the extensive use of people have been placed in custody as a result of anti-social behaviour measures in England. It, along breaching an ASBO. The Government’s rationale with the UN Human Rights Committee166 and the for custodial sentencing is that ‘…an offender may Council of Europe’s Human Rights Commissioner167, have breached their ASBO more than once…’ and expressed serious concerns about these measures custody is the ‘…severest sentence’.165 and called for a review of the use of ASBOs with 52 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

children and young people, and an end to local authorities powers to create local child curfew detention for children and young people who have schemes – is to be welcomed.175 However, Section breached the terms of an ASBO. 30 dispersal powers continue to be used by local authorities with little or no formal evaluation of In February 2009, the requirement for a review their effectiveness or the appropriateness of their after one year of ASBOs given to children and use with children and young people. The young people finally came into force (having been Government also continues with its ambivalent formally incorporated into Home Office guidance position on the use of the mosquito device to in 2006). The Government has also set out its “repel” children and young people from public plans to ensure that children and young people spaces. In a response to a recent petition against its subject to ASBOs and Acceptable Behaviour use, the Government stated that ‘…devices like the Contracts (ABCs) receive the support they need.168 mosquito are commercial products and not affiliated Twenty Intensive Intervention Projects are being with the Government, and these commercial products piloted to address underlying causes of anti-social are neither promoted nor recommended as a behaviour, and the Government has made clear response to tackling anti-social behaviour and crime.’ that it wants to see ‘…an increase in the proportion It confirms that there are still no plans to ban the of ASBOs accompanied by [Individual Support device, stating that ‘it is for local agencies…to decide Orders], ensuring that appropriate services are on the most appropriate interventions to tackle anti- made readily available and that young people social behaviour’.176 accept the support that is offered.’169 Recent government figures show that the use of Such ambivalence is not a sufficient response. It is Individual Support Orders (ISOs) has declined time for the Government to act definitively to since 2006, with only 11% of ASBOs having ISOs address the concerns of the international human attached (as opposed to 18% in 2006).170 rights community about anti-social behaviour measures and the indirect impact these have had on While CRAE welcomes the changes in the children and young people’s status in society. approach to using ASBOs with children and young people, such changes are minor and do not begin The Government must commission an to address the wider issues identified by the UN independent review to investigate the use and Committee. Between 2005 and 2006 three impact of anti-social behaviour measures on independent reports considered the effectiveness children and young people. The review’s terms of of ASBOs, but none focused on the particular reference must include consideration of the whole needs of children and young people.171 Although range of anti-social behaviour measures available to the Government has now commissioned new local agencies and, in relation to ASBOs, the number research to examine the ‘comparative effectiveness and characteristics of children and young people of interventions to address anti-social behaviour’, who have been issued with ASBOs since their this also does not look specifically at the impact of introduction in 1999, the compatibility of ASBO such measures on children and young people.172 legislation with welfare legislation and human Furthermore, the Government has made no move rights requirements, and the effectiveness (and to review the use of ASBOs with children and desirability) of using ASBOs to change children and young people, and in fact confirmed in July 2009 young people’s behaviour. that it has no intention of doing so.173 The Independent Commission on Youth Crime and Disappointingly, the Home Office has renewed its Anti-Social Behaviour was organised in early 2009 focus on ASBOs in recent months, launching a new by the Police Foundation and funded by the Nuffield anti-social behaviour website this year aimed at Foundation. Part of its remit is to suggest proposals people who live and work in the community.174 for reform (expected in Summer 2010) of the Features include a guide to gathering current youth crime system. In doing so, the photographic evidence of people breaching their Commission has indicated it plans to review ASBOs. international conventions and legislation on youth crime; analyse national and international statistics; Progress has been made with regard to Other anti- assess the current statutory and policy framework; social behaviour measures: the provision in the conduct consultations with key stakeholders - Policing and Crime Bill to repeal sections 14 and including children and young eople themselves and 15 of the Crime and Disorder Act 1998 – giving 53 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

investigate alternative approaches to dealing with privacy rights is necessary, proportionate and the issue, both here and abroad. lawful.

The Policing and Crime Bill currently going The Government has taken little positive action to through Parliament is expected to extend police halt either the “function creep” of various databases powers to confiscate alcohol from young people in or the increasing erosion of children’s privacy public places; introduce a new offence of rights. The most high profile threats to children and persistently possessing alcohol in a public place; young people’s privacy in recent months have been and extend police powers to issue Directions of the retention of their personal information on the Leave to 10 to 15 year-olds. This causes concern National DNA Database (NDNAD) and the inclusion about further incursions into children’s right to of all children and young people’s data on freedom of association in circumstances where ContactPoint, although concerns have also been police already have powers to take children and raised with regard to the growing number of young people home where there are safeguarding databases containing information about children concerns. and the collection of biometric data by schools and other agencies. The Bill is also expected to introduce a requirement for police authorities, when DNA collection and retention discharging any of their functions, to have regard Recent changes to the law allowing the collection of to the views of the public concerning policing. DNA samples from children and young people on This duty is intended to complement the duty of arrest and without consent have significantly police authorities, under Section 96 of the Police reduced the protection given to children and young Act 1996, to obtain the views of the public. The people’s privacy within the criminal justice Standing Committee for Youth Justice (SCYJ) has system.178 A judgment by the European Court of expressed concern about how this proposal may Human Rights in the S & Marper case in December impact on children and young people, given the 2008 found that the ‘blanket and indiscriminate’ apparently widely held fear of children and young retention of DNA and fingerprint material for any people in society and their negative portrayal in recordable offence and without any time limit on the media.177 The SCYJ is supporting an the NDNAD violated Article 8 of the ECHR.179 The amendment to the Bill that would require the Court also noted the higher level of protection to police to make arrangements to obtain the views children and young people’s privacy rights by the of children and young people in their area about UNCRC, and the particular harm privacy policing. infringements could cause to minors.180 The ruling offered the Government the opportunity to Protection of children’s privacy rights safeguard the privacy rights of children and young people that come into contact with the criminal Ensure, both in legislation and in practice, that justice system (including as witnesses), and it took children are protected against unlawful or the welcome steps of immediately removing the arbitrary interference with their privacy DNA profiles of all children under-10 from the NDNAD and consulting on the database’s future.181 Introduce stronger regulations for data protection in relation to children However, although some of the Government’s proposals were welcomed by NGOs, including the Children and young people’s right to privacy is independent oversight of the NDNAD and the protected by Article 16 of the UNCRC and by destruction of all DNA samples after six months, the Article 8 of the European Convention on Human majority fail to address the ruling of the European Rights (ECHR), incorporated into UK law through Court of Human Rights or the wider requirements the Human Rights Act 1998. Children and young of international law, or to take into account the people are developing individuals, and as such are principles of the juvenile justice system. In response in need of support and protection to enable them to widespread criticism, Home Secretary Alan to reach their full potential. The right to privacy Johnson MP noted that the proposals ‘clearly show becomes particularly important in this context, that the focus is on enhancing public confidence and and their distinct needs must routinely and public protection’.182 particularly be taken into account when considering whether any limitation of those 54 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

In a House of Lords debate in April 2009, Lord and a disproportionate and likely ineffective West, Security and Counter-Terrorism Minister response to concerns about the impact of recognised that ‘there is a need for the Government insufficient information sharing on child protection. to demonstrate [its consideration of necessity and In a recent mapping exercise of central government proportionality] better and to explain more clearly databases by the Joseph Rowntree Reform Trust, how they are seeking to achieve the right balance ContactPoint was found to be almost certainly between privacy and security’.183 In this case, it has illegal under human rights and data protection failed to do so. law.186

The Government must significantly revise its Data protection and privacy concerns have also proposals for the NDNAD in order to achieve both been raised by the Joseph Rowntree Reform Trust proportionality and a sufficient differentiation in relation to other databases containing personal between adults and children in the collection and information about children and young people, retention of DNA. DNA should not be taken from including the electronic Common Assessment children and young people following arrest, Framework, ONSET and the National Identity charge or conviction unless it is specifically Register. These echo concerns raised by the required for the purposes of investigating the Foundation for Information Policy Research in offence for which the child was arrested, nor 2006.187 The National Pupil Database, perhaps the should DNA profiles be retained for longer than is database containing the most extensive data on required for the purposes of an investigation. In children and young people, was disturbingly found any event, it is beginning to emerge that the sheer to demonstrate ‘significant worrying failings’. What volume of data that might potentially be has also become clear through parliamentary generated by a “blanket” retention policy is likely questions is that there is little or no central to prove counter-productive to any policing oversight of all the individual databases containing capacity to ever interrogate it all. It is therefore information on children and young people and, as a in everybody’s interests to ensure that result, little or no recognition of the extent of retention of the DNA profiles of children and information that may be held about each individual young people should never be indefinite and child.188 must always be subject to regular review.184 In response to questions about the Joseph Rowntree In an announcement in October 2009, the Reform Trust’s Database State report, the Government dropped plans to include proposals Government emphasised that it takes its ‘data to retain the DNA profiles of those arrested but handling responsibilities seriously and will consider not convicted for between six and 12 years in the any concerns carefully, adapting existing safeguards Policing and Crime Bill currently going through where necessary’.189 In order to fulfil its obligations Parliament. Of the change in policy, Liberal to protect children and young people’s privacy and Democrat spokesman Chris Huhne MP said: the integrity of data held about them, the Government must review the legality of all It was scandalous [for the Government] to attempt databases containing information about to respond to the European Court by circumventing children and make changes required for parliament. The Government must take this compliance with human rights and data opportunity to end their fudge on DNA. The protection law. It must also extend the statutory innocent should be removed from the database duties of the Information Commissioner to include immediately – no ifs, no buts.185 monitoring databases containing information about children and young people and, when implementing Databases containing information about the recommendations from the Data Sharing children and young people Review in 2008 (including measures to strengthen Despite ongoing concerns from parliamentarians, data protection and to develop a data sharing code security experts, civil liberties campaigners and of practice), the Government must ensure that those working with children and young people, children and young people’s particular needs the ContactPoint database (containing the details become a primary consideration. of all children and young people in England) was finally launched in January 2009. ContactPoint has A 2007 report on ContactPoint from the Children’s faced consistent criticism as an unjustifiable Rights Director for England set out quite powerfully invasion of children and young people’s privacy, the many concerns that children and young people 55 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

have expressed about both the accuracy and Protection Act, schools should normally involve pupils security of information kept about them.190 The and parents in their decisions to use biometric Government’s failure to allay some of those fears technologies…’.195 means that many children and young people may choose not to access the support and services they The speed with which technology is developing in need, if they have reason to feel that their right to this area, the concerns relating to the ever- confidentiality could be compromised. increasing levels of electronic surveillance, and the need to afford children and young people adequate Biometric data privacy protection all make it crucial that The advent of biometric identity cards has also independent mechanisms are put in place to highlighted concerns about the integrity of monitor the ongoing legality and compliance of children and young people’s personal data and the local and national databases and data collection necessity of collecting it. Following a consultation schemes that affect children and young people. This on regulatory guidance to the Identity Cards Act should also include enforcement of the rights of 2006 in early 2009191, the Home Secretary children and young people to access data held about announced in July that the identity card scheme them. The forthcoming annual review of the will no longer be compulsory for UK citizens.192 Children Plan affords the Government the This is a welcome move. However, with the opportunity to introduce significant safeguards Government’s continued promotion of identity against the violation of the privacy rights of all cards to young people, and Identity Minister Meg children and young people in all settings. Robust Hillier MP’s statement in 2008 that identity cards security and child protection procedures must be may eventually be available to 14 year-olds193, applied to all data held about children and young significant concerns remain. If it is to continue people, and those organisations and even with a voluntary scheme, the Government professionals with access to that data must be must undertake an assessment of its plans to held to the same security and information consider the potential negative impact of standards as those required by current identity cards on transient and vulnerable safeguarding and child protection legislation. young people. Protecting children’s privacy in the media Schools are continuing to collect biometric data on their students for delivering low-level In co-operation with the media, intensify efforts administrative tasks such as school registration, to respect the privacy of children in the media, school meals and library borrowing. Although this especially by avoiding messages publicly is governed somewhat by guidance from Becta exposing them to shame, which is against the (issued in 2007), there is anecdotal evidence that best interests of the child many of these schemes are introduced and operated with little explanation to students or Regulate children’s participation in TV parents. A report in The Guardian in March 2009 programmes, notably reality shows, to ensure featured a pilot scheme by a Cambridgeshire they do not violate their rights college to replace the traditional register with a facial recognition system, as ‘an easy way of The representation of children and young people in gathering accurate data about sixth-form the media, and its impact on the way children and attendance’. The newspaper reports that ‘an young people are treated by society, has been a estimated one million children have had their significant concern among many, including the fingerprints taken for activities as mundane as Government, the youth press and children’s borrowing library books or paying for school charities, for some time. Several research projects dinners.’194 It has been described by the pressure have been undertaken to determine the extent of group Leave Them Kids Alone as ‘a the problem in both national and local media. disproportionate response to a non-existent CRAE’s research with children and young people problem’. Little is being done by the Government found that the vast majority felt that the media to tighten up regulation in this area: Schools played a significant role in the way they were Minister Vernon Coaker MP has stated that the perceived.196 Becta guidance should be followed, and makes it clear that ‘while consent is not required for all Following the UN Committee on the Rights of the processing of personal data under the Data Child’s concerns about ‘publicity exposing [children] 56 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

to shame’ (reflecting earlier recommendations parentis…People under eighteen must not be caused from the Human Rights Committee197), the Council unnecessary distress or anxiety by their involvement of Europe’s Human Rights Commissioner Thomas in programmes or by the broadcast of those Hammarberg condemned the Government’s programmes.200 failure to stop the practice of “naming and shaming” those subject to ASBOs. He commented CRAE welcomes the Government’s announcement that ‘…it is difficult to comprehend why any civilised that it will undertake a review of safeguards to government would permit such a practice, let alone protect young performers.201 Any review must pro-actively pursue it.’198 Yet the Government particularly consider the participation of children continues to advocate publicising ASBOs and young people in reality television programmes, regardless of the age of the individual involved, whether as the main focus or as incidental stating in July 2009 that it is the responsibility of participants; whether adequate protection is in the agency applying for an ASBO ‘to determine place for babies and young children; the importance what publicity is appropriate and proportionate’, of informed and ongoing consent from both the and that courts ‘retain the right to impose parent and the child concerned; and what measures reporting restrictions where they believe it is need to be introduced to achieve much stronger necessary to do so’.199 regulation for programmes involving children and young people. There is still no central monitoring of the prevalence of “naming and shaming” children and Children’s privacy rights in the media have also young people, but the frequency with which come to the fore in the family courts, following the articles appear in local and national newspapers, Government’s decision to open up hearings to the and on council and other websites is extremely media (which came into force in April 2009). worrying. The Government has noted that Although the courts have been given discretion to publicity relating to ASBOs does not necessarily restrict media attendance in certain circumstances, have to be negative; however, the reality is that it and the Government has committed to protecting is disproportionately so. Automatic reporting the privacy of children involved in family restrictions must be introduced in order to proceedings202, children’s rights activists remain safeguard the best interests and well-being of concerned that the rights of children involved in children and young people subject to ASBOs, these hearings (including their right to privacy) are whether they are involved in civil or criminal not being given sufficient priority in the proceedings. Government’s drive for further transparency and accountability. A series of reality television shows in 2008 and 2009 brought into sharp relief the issue of The use of restraint children’s well-being and privacy when participating in such programmes. Examples such Ensure that restraint against children is used as Britain’s Got Talent, Boys and Girls Alone, only as a last resort and exclusively to prevent Supernanny and Find Me a Family have all hit the harm to the child and others headlines in the last year. The Channel 4 programme Boys and Girls faced accusations from Abolish all methods of physical restraint for charity Bullying UK as being a ‘peep show using disciplinary purposes children as the victims’, while 10 year-old Hollie Steel’s breakdown on ITV’s Britain’s Got Talent Recent information given to Parliament revealed led to serious concerns about the welfare of that physical restraint was used on children in children engaged in such shows. Ofcom’s secure training centres (STCs) a total of 1,792 times Broadcasting Code in relation to under-18s is between April 2008 and March 2009.203 Data on the clear: use of restraint is collected by the Youth Justice Board (YJB) for secure training centres (STCs) and Due care must be taken over the physical and secure children’s homes, despite the fact that these emotional welfare and the dignity of people under hold less than 10% of the juvenile population. eighteen who take part or are otherwise involved in However, new figures obtained through a freedom programmes. This is irrespective of any consent of information request by the journal Children & given by the participant or by a parent, guardian or Young People Now reveal that in the year ending other person over the age of eighteen in loco March 2009, restraint was used 4,274 times in YOIs 57 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

as compared with 3,409 times the previous year – submissions to the review by the Standing a rise of 25%. During the same period, the use of Committee for Youth Justice and others, it was restraint dropped by 25% in secure children’s ultimately very disappointing. The review was homes and STCs, from 4,828 to 3,599. These fundamentally flawed as it did not take account of figures remain unacceptably high. Lord Carlile, the judgment in R(C) v Secretary of State for Justice who conducted a review of restraint in 2006, was [2008], which made clear that restraining children reported as commenting, ‘…I don’t think steps are for the purposes of ensuring good order and being taken that my report certainly concluded discipline is unlawful. The review failed to were necessary…The situation in YOIs is not recommend the abolition of deliberately painful acceptable and it demonstrates that the restraint techniques as it was urged to do. The Government hasn’t got the message’.204 review surprisingly recommended that deliberately Recent inspection reports have also made clear painful wrist locks be authorised for use in that restraint is clearly neither used as a last exceptional circumstances, although these resort nor exclusively to prevent harm to a child techniques have previously been discredited, for or others. For example, during an inspection at example in the Aycliffe report referred to below. HMYOI Castington in January 2009, HM Chief The review reported shocking accounts given by Inspector of Prisons found an ‘unprecedented’ use children of their own experiences of restraint, but of restraint. The largest category of child these accounts appear in isolation and are not protection referrals related to allegations of referred to in the report’s overall analysis. physical assault by staff and a further 10 allegations of staff using undue force during In its response to the review, the Government set restraint.205 At HMYOI Cookham Wood in out a two-year implementation plan to reform February, inspectors found ‘an unsafe and poorly restraint of children in custody. It accepted most of controlled environment’ with high levels of force the review’s recommendations, including the and a safeguarding policy that remained ‘largely recommendation to continue endorsing unimplemented’. They identified inaccuracies in deliberately painful restraint techniques, and data collection and analysis of injuries sustained specifically to authorise the use of wrist locks in all during restraint, which had not been previously custodial settings. The Government has still not identified by monitors from the Youth Justice moved to amend legislation to make it clear that Board.206 In its submission to the Joint Committee restraint is not permitted in any custodial setting on Human Rights (JCHR) children’s rights inquiry for the purposes of good order and discipline. Thus, in February 2009, the Government asserted that it the Government has missed an important is clear in legislation and codes of practice that opportunity to provide children deprived of their ‘…physical restraint is only to be used as a last liberty greater protection from the use of physical resort, where all other options have not succeeded restraint, some incidents of which have led to or could not succeed.’207 Recent restraint figures serious injury and death.210 must lead us to question this assertion. Both the restraint review and the Government’s In November 2008, the House of Lords dismissed response to it manifestly fail to address the human the Government’s application to appeal a ruling of rights breaches identified by the JCHR, the UN the Court of Appeal quashing new rules to allow Committee on the Rights of the Child, the Council of the restraint of children in secure training centres Europe and others211, as well as the findings of the for the purposes of good order and discipline.208 Court of Appeal in the AC case212 and the concerns The rules had been quashed the previous July of the families of child victims. The independent because they violated the prohibition on inhuman review also failed to take into account important and degrading treatment under Article 3 of the findings from the Aycliffe review of restraint in the European Convention on Human Rights, 1990s, recommending that the use of deliberately interpreted in light of the UNCRC. painful wrist locks should not be authorised.213 The Government has unforgivably paid far too little The joint independent restraint review attention to children and young people’s undertaken in 2008 by Peter Smallridge and experiences of restraint as reported in the review. Andrew Williamson was delivered to Ministers in One child stated ‘I’ve had staff here lift me off my feet June 2008 and published in December 2008 by my head. You fear for your life here, I’m scared alongside the Government’s response.209 While the they’re gonna hurt me.’ review made many sensible proposals, mirroring 58 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

The Council of Europe’s Human Rights through Parliament, though urges the Government Commissioner, Thomas Hammarberg, has urged to put additional safeguards in place to protect the ‘immediate discontinuation of all methods of children. CRAE hopes parliamentarians will restraint that aim to deliberately inflict pain on review the law on restraint for maintaining children’ in the UK, as well as an explicit ban on good order and discipline in schools (Section 93, the use of corporal punishment in custody. He was Education and Inspections Act 2006) in the light of not aware of ‘…any other member state that the Court of Appeal’s ruling in AC.215 sanctions the use of deliberate pain as a method of restraining a child’.214 Yet, although the use of the Ending violence against children nose “distraction” technique was permanently withdrawn in December 2008 following health Prohibit as a matter of priority all physical and safety advice, the Government continues to punishment in the family, including through endorse other deliberately painful restraint repealing all legal defences techniques. Ensure that physical punishment is explicitly The withdrawal of this technique followed shortly prohibited in schools and all other institutions after a visit to the UK by a delegation of the and forms of alternative care European Committee for the Prevention of Torture, which has taken a particular interest in Actively promote positive and non-violent forms this area. The Government has yet to publish the of discipline, and respect for children’s equal report subsequently submitted to it by the right to dignity and physical integrity, with a Committee in April 2009. view to raising public awareness of children’s right to protection from all physical punishment The Government must take immediate action to ensure that children in custody are afforded the For the third time since the ratification of the same entitlement to protection and safeguarding UNCRC, the UN Committee has urged the as all other children and young people. It must Government to legislate to prohibit all corporal abolish deliberately painful restraint punishment in the family. This call comes within the techniques and make clear on the face of context of similar calls from the UN Committee on legislation that restraint is not permitted in the Elimination of Discrimination Against Women any custodial setting for the purposes of (2008), the UN Human Rights Council (in the recent ensuring good order and discipline. It must Universal Periodic Review of the UK’s overall urgently review its refusal to disclose the Physical human rights record), and the UN Committee on Control in Care manual, and clarify current and Economic, Social and Cultural Rights (2002 and past policy on the purposes for which the use of 2009) and the European Committee of Social Rights deliberately painful restraint techniques is (2005). The UN Study on Violence Against Children authorised. It should also hold a public inquiry in 2006 also urged all member states to prohibit all into the systematic unlawful use of restraint on forms of violence (including all forms of physical children in custody, for action to be taken to hold punishment) against children and young people by institutions and individuals to account, and to 2009.216 enable those who have been subjected to unlawful force to seek redress. The Government must Current law, detailed in Section 58 of the Children also make clear how child prisons and Act 2004, makes available a defence of “reasonable individual staff members are and will be held punishment” for parents charged with common to account for the unlawful use of force. assault, removing the use of this defence from those charged with more serious assault. Almost The judgment in the AC case also has implications concurrently with the UN Committee’s beyond juvenile justice settings, for example in recommendation in October 2008, a cross-party schools where physical restraint is still permitted amendment to the (then) Children and Young under UK law for the purposes of ensuring good Persons Bill to remove the “reasonable order and discipline. CRAE welcomes recent punishment” defence was due to be debated in measures to increase the accountability of schools Parliament at the Bill’s Report Stage. However, in the use of control and restraint (through Government and Opposition whips failed to secure reports to parents) in the Apprenticeships, Skills, sufficient time for debate. The Government would Children and Learning Bill currently going have forced its own Labour MPs to vote against the 59 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

amendment, despite calls from more than 100 of retaining physical punishment in a domestic setting them urging a free vote, and equal protection when it is widely banned in all spheres of care and being Liberal Democrat policy. Both Opposition education, but also increasingly being rejected by parties had planned to allow a free vote. In parents as either a reasonable or effective method support of the amendment, Kevin Barron MP said: of discipline. The Government’s position that introducing a ban would criminalise parents for We must act now to end the legal approval of minor assaults or compromise the best interests of hitting children. It is the responsibility of the child is simply not born out by experience in Parliament to ensure that the physical integrity and those countries that have taken this step. human dignity of every person is respected. The current law…is unjust, unsafe and unclear, and There has, to date, been no explicit ban on the use of must be abolished once and for all.217 corporal punishment on children and young people in the secure estate, although existing regulations The Government’s direct response to these set out clearly the sanctions that may be used in a developments has been to issue a statement disciplinary context. Regulations must be ‘defending’ its position on smacking.218 The then introduced that specifically prohibit the use of Children’s Minister Beverley Hughes MP stated: corporal punishment in secure training centres, private foster care, and in military establishments Let me be clear: we do not encourage or condone and cadet forces; or, indeed, for any persons acting smacking and we do not believe that it is the best in a position of loco parentis. The Government means of controlling children’s behaviour. But must also ensure that training is available for all neither do we support a ban which would make those working with children and young people smacking a crime. in institutions (including schools) in alternative and non-violent forms of discipline. She went on to emphasise the Government’s approach is to provide parents with ‘positive Without a comprehensive and unambiguous ban on support and guidance to help them manage their all forms of physical punishment, we will continue children’s behaviour more effectively in other ways to expose too many children to an experience in ...’, rejecting the need for a change in the law. which violence against them is justified, just as long as it is not too excessive. Tragically, and However, the Council of Europe’s Human Rights sometimes fatally, for some parents the Commissioner Thomas Hammarberg notes that distinction between reasonable punishment and the Government’s position of not condoning assault is far from clear. The Government smacking ‘lacks credibility’ without a clearly states it does not condone smacking, but corresponding change in the law. In his report of this position lacks credibility while it continues October 2008 on corporal punishment in the UK to allow assault on children to be justified as he stated that: “reasonable punishment”. The Government must show a political lead on conduct which it Laws allowing the definition of…“reasonable no longer condones. punishments” on children are not compliant with international human rights standards. That Provide parental education and professional children, uniquely, should have less protection training in positive child-rearing under the criminal law from assault is additionally discriminatory and unimaginable, given children’s Positive parenting obvious special vulnerability.219 The Government has shown a strong commitment to supporting parents to bring up their children, The Government must legislate to remove the noting in its Families in Britain evidence paper that “reasonable punishment” defence completely supporting parenting is ‘a crucial part of ensuring to ensure children and young people have that family provides the best possible environment equal protection under the criminal law on within which individuals can develop’.220 It has assault. Failing to do so will continue to engender piloted and put in place a wide range of family confusion among parents, carers and support initiatives in recent years, including early professionals, and seriously endanger the well- intervention projects, school-based parenting being of children and young people. It is advisers, parenting experts in each local authority, inconsistent for the Government to insist on and online resources for parents, investing £300 60 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

million between 2008 and 2011 to ‘improve the Take all necessary measures to implement the quality and supply of parenting support’.221 recommendations contained in the report of the UN Study on Violence Against Children The 2020 Children and Young People’s Workforce Strategy contains a commitment to reviewing the Use the recommendations from the UN Study on Common Core of Skills and Knowledge in order to Violence Against Children as a tool to ensure ensure that the children’s workforce have the (with civil society and children) that every child skills and capacity to support parents in is protected from all physical, sexual and mental developing effective parenting skills. This will be violence supported by research by the National Academy for Parenting Practitioners (set up in 2007 by the The UN Study on Violence Against Children (carried Government) into the quality and delivery of out in 2006) made 12 overarching parenting skills provision at a local level.222 The recommendations, including that all member states Children’s Secretary also announced additional establish a national ‘focal point’ on violence against support for new parents along with linked children and young people, prohibit all violence resources for training for professionals.223 against children and young people in all settings, create reporting systems accessible to children and However, the Family Justice Council has raised young people, and implement systematic data concerns that the ability to access parenting collection and research on violence against children classes remains subject to a ‘postcode lottery’.224 and young people at a national level. It also made While parenting support is diverse and wide- several “setting-specific” recommendations, looking ranging, there is very little monitoring of the at the home, schools, the care and justice systems, consistency of provision in providing parents with the workplace and the community. In May this year, education in positive parenting, and for the UN appointed its first Special Representative on professionals to receive training in this regard. Violence Against Children, Marta Santos Pais, tasked Existing provision also appears to have more with acting as ‘a high profile global advocate to focus on fulfilling social responsibilities than on promote prevention and elimination of all violence positive child-rearing. The Government is against children.’226 currently developing a Green Paper on families and relationships to establish a cross-government CRAE joins with the UN Committee on the Rights of strategy on support and education for families and the Child in welcoming government efforts to parents. The Green Paper provides a timely strengthen arrangements for tackling the problem opportunity to address the provision of parental of violence against children and young people. The education and professional training in positive Government has implemented several measures child-rearing within a children’s rights aimed at protecting children from violence, framework, ensuring that such education and including through the Home Office’s Tackling training develops awareness among parents, Violence Action Plan227, Lord Laming’s progress carers and professionals of the rights of children review on child protection arrangements228, and and young people in a family context. guidance from the Department for Children, Schools and Families on safeguarding children and young Interestingly, in its Good Childhood Inquiry, the people from sexual exploitation.229 It has also taken Children’s Society found that while children had the welcome step of looking specifically at gender- ‘clear ideas of what a parent should be and do, they based violence, and adopted the UN’s definition of were not entirely convinced that parenting could be violence against women and girls.230 The taught’. In fact, one young person felt that ‘you Government must take care to ensure that all forms can’t tell people how to be a parent’.225 This of violence against children and young people, highlights the importance of ensuring that including in domestic settings, are included in its children are engaged in the development and legal definitions. delivery of parental education, and that it is based on what children and young people have told us However, the Government has not yet implemented they need to help them to develop to their full a coherent response to the recommendations made potential. in the UN Study on Violence Against Children, which would focus specifically on children and young people and their right to protection, and cover violence against children and young people in all 61 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

settings – in the family, in school, in custody, in This strategy should build on children’s own care, and in the community. There is still no co- experiences and integrate the implementation of ordinated, comprehensive system for recording the Domestic Violence, Crime and Victims Act 2004 and analysing instances of violence against with the Children Acts of 1989 and 2004. It should children and young people. The figures that do ensure that violence witnessed by children or exist locally and nationally on recorded violence inflicted on children by parents and carers against children and young people in different (including that meted out in the name of discipline) settings and contexts are not yet collated is included in the Government’s definition of centrally. And, although the Government has now domestic violence. It must bring together all agreed to include 10 to 16 year-olds in the British existing action in all spheres, and also identify the Crime Survey, the survey still does not cover resources, services and interventions still required children under-10, nor does it include questions to ensure all children and young people subject to about children and young people’s experiences of violence or affected by violence receive the violence in the home. protection and support they need. It must establish a national system for recording comprehensive data To ensure a comprehensive approach to about the prevalence and forms of violence protect all children and young people from experienced by children and young people in all physical, sexual and mental violence, a settings, and set out plans for involving children cabinet-level minister should be given and young people in the cause of their own responsibility for co-ordinating the protection. Accessible information must be implementation of the recommendations of disseminated widely to children of all ages, making the UN Study, and for overseeing the them aware of their absolute right to protection development of a national strategy focusing from all forms of violence in all settings, setting out explicitly on ending all forms of violence the legal safeguards that exist and the places they against children and young people. can go to for advice and assistance, including for help of a confidential nature.

62 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

FAMILY ENVIRONMENT AND ALTERNATIVE CARE

Overview Progress towards improving the treatment and welfare of children and young people in the family and within the care system has been mixed.

The review of child protection arrangements in England published by Lord Laming in early 2009 offered a welcome opportunity to take a rights-based approach to keeping children safe, yet many considerations affecting children in contact with child protection agencies went unstudied as a result of the narrow remit of the review.

The legislation and guidance is broadly in place with regard to providing children in care with the support they need through stable placements and school places, educational support, health support, regular visitations and advocacy support, and advice and continuing support on leaving care, yet its implementation often leaves much to be desired. The Government has taken important steps towards comprehensive measures to protect children from violence with the introduction of Staying Safe guidance and action to strengthen arrangements for tackling violence against children and young people, but a national system for recording and analysing abuses committed against children and young people in all settings is still not in place.

Despite many welcome measures to support children and young people with disabilities and their families, little distinct progress has been made to promote their inclusion in society; the imposition of several reservations to the UN Convention on the Rights of Persons with Disabilities casts doubt that the necessary steps will be taken to do so in the future. The scope of parental support and the Government’s commitment to providing this remains strong, despite problems with regard to the continuity of provision across the country.

Supporting parenting implementation of recent guidance from the Department for Children, Schools and Families Render appropriate assistance to parents and (DCSF)232, to include commissioning and delivery legal guardians in the performance of their of services to parents in the production of local child-rearing responsibilities Children and Young People’s Plans; they also have statutory powers to call upon should they need to Supporting parents is central to many wide- help parents through the use of Parenting ranging government initiatives of recent years, yet Contracts (under Section 8 of the Crime and despite enormous advances in policy and Disorder Act 1998) and Parenting Orders (under legislation very little is known about the effect Section 25 of the Anti-Social Behaviour Act 2003). these initiatives are having. The UNCRC supports Both children and their families benefit from early safeguarding parents’ rights to bring up their years support. CRAE welcomes the commitment children and this should always be measured to extra investment, and the targeting of free alongside direct evidence from children about the learning and childcare at 15% of the most impact of family problems on their lives. disadvantaged two year-olds. It is hoped that these free childcare places will reach the people Support in parenting skills is now more widely who will most benefit from them, through available to parents through schemes such as NHS promoting appropriate early learning and play Parenting Support, children’s centres, extended opportunities. schools and Sure Start. Support to parents of older children still tends to be a little more spasmodic, More detail on parenting support can be found in but is beginning to be better addressed through the Civil Rights and Freedoms section of this the Government’s parenting strategy Putting report. Parents in Control.231 With the aid of additional funding, many local authorities now have parenting support officers and teams in place. Local authorities are encouraged, through the 63 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Avoid taking children into care Complaints remedy

Avoid children being taken into care as a Take into account the views of children in all result of parental low income measures, and provide them with child- accessible complaint mechanisms The care system effectively operates on two basic levels. There were a total of 60,900 children in At present, statutory provision for child-accessible care as of 31 March 2009, representing a two per complaints mechanisms is largely restricted to cent rise on the previous year. While 36,200 children in care. However, Government has children and young people were taken into care recently consulted on, and is introducing, under a care order (Section 31 of the Children Act legislation with the intention of giving children 1989), 19,800 were voluntarily “accommodated” the right to make complaints about their schools, at the request of parents (Section 20 of the and earlier in the year it consulted on giving Children Act 1989). 44,200 of children in care children the right to appeal against school were placed with foster carers, 2,500 were placed exclusion decisions and special educational needs for adoption, 4,100 were living with parents, (SEN) assessments.235 (This, however, is likely to 6,200 were in residential children’s homes, and be limited to those aged 16 and above for 1,000 in residential education; the rest of the exclusions, and those aged 12 and above for SEN children lived in a variety of placements decisions.) (including independent living; residential health care; and custodial, care home, or mother and The DCSF has asked the Children’s Commissioner baby settings). However, these figures probably for England to conduct a comprehensive review do not take into account a significant rise in taking into complaints procedures for children and children into care that has intuitively occurred as young people. The indication is that Government a reaction to the Baby Peter Connolly case.233 is not entirely satisfied with how these are being conducted; and recent surveys by the Children’s Thresholds for taking children into care have been Rights Director for England confirm a low level of relatively high in England, with very little satisfaction among children and young people.236 evidence to indicate that parental low income Research by CRAE found that many children and forms any significant part of the criteria. The young people did not know how to make a Government has confirmed that ‘children are not complaint, or even that they could.237 The section taken into care because of parental low income’234; of this report on the Optional Protocol on however, data shows that children and young Involving Children in Armed Conflict also people from low income families do have a much addresses the need for good complaints higher chance of being taken into care than do mechanisms for young people recruited to the other children. This is partly explained by the fact Armed Forces. that children and young people from low income families tend to have many of the social problems Taking the views of children into account that typify the backgrounds of children in care. At present, local authorities and other statutory They are more likely to come from families bodies are placed under a range of duties to experiencing poor housing, long-term obtain the views of children and young people. A unemployment, poor school attendance and few specific examples of these include: achievement, alcohol and substance misuse, teenage pregnancy, domestic violence and abuse,  Early years provision should have regard to poor parenting skills and involvement in crime. the available views of young children, as To reduce the incidence of children and young appears to them relevant (Section 3, Childcare people from low income families being taken Act 2006) into care, the Government and local  Children and young people, aged 13 to 19, authorities will need to step up their work to should be asked for their views on the need address social deprivation and inequality. for additional activities and facilities (Section 6, Education and Inspections Act 2006)  Children and young people should be consulted by local authorities about the preparation of the Children and Young

64 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

People’s Plan for the area (Section 17, greater opportunities, few children and young Children Act 2004) people believe that they are genuinely listened  In determining what services children in need to. This discrepancy between more opportunities may require, the local authority shall ascertain for children and young people to give their views and consider their wishes and feelings and them not necessarily feeling better listened to (Section 17, Children Act 1989) is explained by the fact that adults usually set the  In determining what action to take in agenda for consulting; adults remain too selective providing children with protection services, in the children and young people they choose to the local authority must consider the child’s consult; there is a lack of feedback and wishes and feelings (Section 53, Children Act explanation to children and young people 2004) following consultation; and adults remain poor at  In determining what services it provides to actually acting on what children and young people children in care, the local authority must consider the child’s wishes and feelings have told them. Under Article 12, children and (Section 22, Children Act 1989) young people’s views must be given the ‘due  A maintained school must ‘invite and consider’ weight’ required by the UNCRC and by several the relevant views of students about matters examples of domestic legislation. concerning the running of the school (Section 157, Education and Skills Act 2008). The Children in public and institutional care Government has not, to date, commenced this duty or issued regulations, but guidance Monitor the status of children placed in (Working together: Listening to the voices of kinship homes, foster care, pre-adoptive children and young people) was issued by homes and other care institutions, including DCSF in 2008 through regular visitations  Schools are required to consult students on their behaviour policies (Section 88, Discrimination against children in care, often Education and Inspections Act 2006) referred to as “careism”, has been largely an  In making certain decisions, the family court unrecognised problem for years.238 However, must have regard to the child’s wishes and the publication this year of the Children’s Rights feelings (Section 1, Children Act 1989) Director for England’s children’s views report  Any court or adoption agency in coming to a Care and Prejudice detailed accounts of children’s decision relating to the adoption of a child experiences of being treated differently on the must have regard to the child’s ascertainable grounds of their care status.239 Regrettably, the wishes and feelings (Section 1, Adoption and Government has spurned the opportunity Children Act 2002) presented by the passage of the Equality Bill to  The Children’s Rights Director for England address the unequal treatment of children in care must ascertain and report the views of and care leavers. children living away from home, receiving social care services or leaving care (Section CRAE is concerned at the high number of children 120, Education and Inspections Act 2006) who continue to be moved frequently between  The Children’s Commissioner for England is to placements; at 31 March 2009 10.7% of children be concerned about the views and interests of in England had been in three or more placements children, whilst having particular regard to during the preceding 12 months, representing a outcomes that relate to the Every Child small decrease on 2008 figures.240 A National Matters agenda (Section 2, Children Act 2004). Voice has cited placement moves and a lack of support from carers as the two biggest There are several other requirements to consult impediments to educational achievement. children and young people arising from a general Frequent placement moves have also led to requirement to consult the public on various criticism from children and young people that issues. Children and young people are arguably there are ‘too many people interfering’ in their more consulted today than at any time in the past. lives:

They are more widely consulted on relevant I think nowadays kids in care have their heads matters of local and national policy, and on the messed with just by everyone, everyone and development of legislation affecting them. anyone.241 However, while numerous surveys indicate 65 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Social work visits steps to assess why so many children and young Local authorities should regularly visit children people with disabilities and mental health and young people in their care, so as to satisfy problems remain in long-term institutional care, themselves that their well-being is being and there has been no official review promoted. However, from what children in care commissioned to consider the care and treatment tell us242, not all local authorities consistently they are receiving in such settings. In response to ensure that social workers regularly make visits a parliamentary question, the Government has to children living in children’s homes. What would confirmed that there are no plans to estimate the undoubtedly encourage them to perform better in number of children and young people living in this regard would be a reinstatement of the residential care.246 statutory duty regarding local authority visits, which the Government inadvertently allowed to While the Government’s plans to extend Child and lapse when the Children’s Homes Regulations Adolescent Mental Health Services (CAMHS) to 1991 were replaced by the updated 2001 schools in 55 new areas by 2011 are version.243 This year, the Children’s Homes demonstrably an important step forward247, CRAE National Minimum Standards and Regulations are urges more to be done to address the lack of due to be reviewed and amended; this presents access for many children and young people Government with an opportunity to rectify this who need it to appropriate treatment and particular oversight and ensure that children in care. In some areas, CAMHS end at 16, while adult residential care are given the same regard for services can only be accessed once the young their well-being as is given to children in private person has reached 18. Particular attention is fostering (where local authorities were put under needed for children and young people at greatest a duty to visit in 2005).244 risk, including those in care and leaving care, those affected by conflict, those in trouble with However, as is the case with many of the the law and those living in poverty. Government’s best intentions for children, these can often falter on ineffective local The extension of short-breaks is a welcome implementation. The Government must begin to addition to services for children and young people appreciate that legislation and guidance alone are with disabilities and their families; and, not sufficient to drive up standards in local importantly, these must be provided in full authorities. Adequate and consistent monitoring partnership and consultation with both. Further, is required to strengthen external accountability and in line with a key recommendation from the and improve outcomes for children in care. CRAE UN Committee, the Government must as a would recommend that the UNCRC is used as matter of urgency undertake a review of the the framework for all decisions relating to rights of children and young people with children and young people requiring a delicate disabilities to family life and active balance of competing priorities, such as those participation in the community, particularly relating to placement or contact issues. given its recent ratification of the UN Convention on the Rights of Persons with Disabilities. Such a Children with disabilities review should include an examination of why still so many children and young people with Assess why so many children with disabilities disabilities are in long-term institutional care, and remain in long-term institutional care, and whether the care and treatment they receive in review their care and treatment in these these settings is consistently good enough. settings Together with the UN Committee, CRAE calls for The UN Committee welcomed initiatives at a comprehensive national strategy for the national and local level to improve the situation of inclusion of children and young people with children and young people with disabilities. disabilities into society to underpin and guide However, CRAE is concerned, along with the all these initiatives. Such a strategy must include comments in the Third Joint Chief Inspectors’ consideration of their education, health, care, Report on Arrangements for Safeguarding Children, treatment, participation in society and family life, that progress for this group remains slower than and their right to have a say in all matters for other children and young people.245 There is affecting them (Articles 12 and 23 of the UNCRC). little indication that the Government has taken The Government must do more to remove the 66 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

barriers that prevent children and young people information about the benefits and support young with disabilities achieving the full enjoyment of people are entitled to on leaving care. Although their human rights. most young people we spoke to seemed well informed about opportunities for education, jobs Care leavers and accommodation, the majority wanted to ensure that effective support would be put in Provide training and education programmes place to help them with this transition. One young to prepare children in care and institutional person explained: care for adult life I think that you leave care normally when you're Some children and young people in public care 16. You go on 16-plus and them getting you a flat and other institutional care undoubtedly benefit and stuff like that. I know some kids might not think from good planning and preparation for leaving this sounds such a good idea and in some ways I care. However, this is not always the case and the don't either but I think you still need help when you manner in which some young people leave care move out with Social Services because I know a lot continues to be a national disgrace. Studies over of my friends in care that have been 16 moved into the last 20 years by Mike Stein and Kate Carey a flat and been really happy, yes, I'm out of care, I'm (1986)248; First Key (1992)249; and the Children’s on my own now, but then they mess up again Rights Director for England (2006)250 have because they're on their own and then they start consistently shown that young people in care are doing drugs because they're on their own. I'm not typically required to leave care at substantially saying they need to stay in care longer or anything. younger ages than their peers leave home. The They just need more support becoming independent average age for leaving care, which has not and going into a flat on their own. Do you know changed in two decades, still rests at 16.5 years- what I mean?253 old as against the national comparison for young adults leaving home at an average age of 22.5 Local authorities must accommodate years-old.251 Furthermore, when most young young people leaving care people leave home it is typically to live with friends, spouses or partners, something which is In an important case for young people often denied to most young people leaving care. leaving local authority care, R (G) (FC) (Appellant) v London Borough of Southwark Preparation for leaving care varies considerably (Respondents) [2009] UKHL 26, the House of around the country, and the way society in Lords found that children’s services general treats many young care leavers is well departments must accommodate and below any standard that any reasonable parent would accept for their child. In spite of positive support young people instead of referring measures to address this in the Children and them to housing departments as “homeless”. Young Persons Act 2008, such as encouraging the Young people leaving care who option of foster care placements continuing until subsequently find themselves at risk of the age of 21, and the Government’s stated aim to homelessness are entitled to be assessed as work with local authorities and employers to children in need of accommodation under improve care leaver pathways to employment252, Section 20 of the Children Act 1989. This the Government has again failed to act to ensure right is of particular significance as it would good local implementation or to recognise that, in subsequently qualify these young people for order to avoid a two-tier care system, many young leaving care support. The solicitor acting for people in residential care deserve the option of the young person in this case commented, being able to stay on beyond their 18th birthday, ‘This judgment is a huge step forward for just as much as young people in foster care do. children’s rights and requires a fundamental

rethink by local authorities of the level of

One of the major issues emerging from CRAE's support they offer these vulnerable children’s rights investigation which has direct individuals’. implications for the training of social workers concerns the support available to young people to assist them with the transition from care to Research carried out with care leavers living in independent living. This includes providing three regions of the UK by Rainer (now Catch 22) 67 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

found that almost one in six young people were In meetings I’d like her to be a bit more open, I say I not in suitable supported accommodation.254 want to see my mum, she says I can’t. And that’s Similar findings were uncovered by A National that. I want her to say … we can’t do that at the Voice, who in surveying more than 600 care moment, but how about thinking about this, or that, leavers found that one in ten had no place of their what would you like to happen? It gets me annoyed; own and were "sofa surfing" because of a lack of I just think they can’t be bothered. (Boy 14) communication between housing and social services.255 Evidence of this lack of joined-up The 11 MILLION study (of 112 children in care) working has also emerged from CRAE's research, confirmed many of the findings from A National where children and young people claimed that Voice’s 2006 survey, to which 75% of respondents some social workers gave contradictory said that they would like to see their siblings but information because they were unfamiliar with did not get the opportunity to do so.258 One in six the client's case file or system processes, or children in care that took part in CRAE's children’s because they lacked knowledge of appropriate rights investigation had not been asked their and local referral services. One young person told views about staying in contact with siblings.259 us: These children suggested that alternative methods should be made available to enable ...one time one social worker saying, oh, yes, we're children to stay in touch, and that sibling contact going to sort you out with a flat, blah blah, we'll get should be actively encouraged. Echoing these you on the system, come down and see me. So, I sentiments, a meeting of the Associate went down. Oh, he's not in today but I'll see you and Parliamentary Group on Looked After Children they were saying something totally different. Oh, we and Care Leavers in March 2009 clearly can't get you on, we'll have to do this. They don't demonstrated how the issue of sibling contact was talk to each other. Then, when I saw my social of great importance to children in care, as well as worker, when he came back in and spoke to me, he to many professionals concerned with promoting said totally the opposite again. He didn't even know their rights and welfare. About 80 children in care that someone else had spoken to me when he came and young care leavers attended and many in. They just need to communicate more and revealed their own personal accounts of how local explain what's happening.256 authorities were failing to maintain contact between siblings. Some felt this happened because Family contact contact was genuinely not in the best interests of the children and young people affected, but others Facilitate the initiation of contact proceedings felt good contact was often being frustrated by a for all children separated from parents and lack of funding; by over-worked and over- siblings, including those in long-term stretched social workers; or by it not being in the residential care interests of some carers to make it happen.

In a study for 11 MILLION, children and young Children and young people have a right to express people told researchers that they were not their own wishes and feelings in a way that adequately listened to when it came to contact recognises that these may not always coincide with their families.257 This was a main cause of with the interests of adults, including parents who anxiety for them, and children in care felt their may be in conflict with one another. All children social workers could listen more, care more, and separated from their parents should have a be more helpful in finding solutions. Many missed presumed right of access to information about their families and were finding it really hard not their own family, and to have contact being able to see them. promoted with members of it who are important to them and their well-being. We They asked what changes I wanted, I said I wanted know from CRAE’s recent nationwide children’s to see my family, it didn’t happen. (Boy 11) rights investigation that appropriate support is not always available for children who wish to I’d run off and go and see my family, tough, it’s my meet their biological parents.260 family, don’t violate me by restricting contact. (Boy 17, young offender institution) The issue of family, and particularly sibling, contact is clearly an issue of great importance for children’s emotional well-being, yet one that is 68 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

widely overlooked by local authorities and of adoption placement breakdowns. Data obtained government departments. It is therefore crucial under the Freedom of Information Act for Channel that the training of social workers address the 4 in July 2009 showed that the number of adopted issue of sibling contact; encourages alternative children who were sent back to care homes has forms of communication where appropriate; doubled in the past five years. This is in spite of and ensures awareness of the provision in the only 4,367 children being adopted last year, the Children and Young Persons Act 2008 lowest number since 1999. Local authorities are requiring that children are placed with their still not obliged to retain data on adoption siblings ‘so far as is reasonably practicable’ or breakdowns, and the majority of authorities consistent with the child’s welfare. contacted during the research had no or only partial records. If adoption is intended to form A children’s views report on family contact by the an integral part of the English care system, Children’s Rights Director for England is due and then we need to know both its limitations as greatly anticipated to provide another vital well as its effectiveness; and maintain good source of evidence expected to urge more to be and consistent records in order to better done to promote meaningful contact for inform our policy choices. children in care. It is expected to support findings in a previous report on children’s views Violence, abuse and neglect on placements, decisions and reviews.261 Establish mechanisms for monitoring the Adoption extent of violence, sexual abuse, neglect, maltreatment or exploitation, in the family, in Strengthen efforts to ensure that children are schools and in institutional and other care adopted as speedily as possible, in line with their best interests and taking into account CRAE joins with the UN Committee in welcoming factors such as cultural background efforts to strengthen arrangements for tackling the problem of violence, abuse and neglect of The adoption system is characterised by being children and young people, instances of which rather a slow and cumbersome process. Clearly, remain alarmingly high. Staying Safe guidance adoption agencies need to make careful and makes an important contribution towards considered assessments before placing children providing a national strategy for keeping children for adoption, but delays are not always adequately safe.262 However, there is still no comprehensive explained by this. Few children in care are getting national system of recording and analysing abuses the opportunity to be adopted, due largely to a committed against children and young people, and shortage of adoptive parents coming forward. The support for child victims is not sufficiently Government has encouraged adoption embedded in local services for children across the recruitment drives, but there will always be a country. The UN Committee offers constructive finite supply of available homes. In addition, the recommendations in both these regards.263 Government must ensure that, in taking forward the UN Committee’s recommendation, it gives Moreover, there is an urgent need for a more primary consideration to the best interests and child-centred approach to child protection. views of children, realising that for many children Systems, such as those in place for improved in care adoption is not the answer. Many older strategies, structures, communication, co- children in care would, by choice, reject the ordination and information sharing, have been adoption option on the not unreasonable premise headlined among responses to recent tragedies. that they either have a family of their own already, However, the risk is that these improvements may albeit one that they cannot live with, or they have be too far removed from children and young already rejected family life, for perfectly people (unless persuaded as to their benefits), understandable reasons, as the best option for making it more likely that some may become their alternative care. alienated from and distrusting of those very systems intended to help to keep them safe. We CRAE would therefore advise caution in viewing need to be sensitive to the fact that not all children adoption as some sort of panacea for the problems and young people subscribe to the current mantra of the care system, at least until the Government that child protection is “everybody’s business”, has conducted a proper study into the frequency and may be reluctant to co-operate with processes 69 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

that they fear may breach their right to British Crime Survey confidentiality. In December 2008, following persistent lobbying by CRAE and others, the UK Government Violence in schools confirmed that the British Crime Survey (BCS) Violence in schools is becoming more widely would cover 10 to 16 year-olds from 2009. recognised as a serious and widespread problem, However, under-10s remain excluded. CRAE has which may hinder children and young people’s called on Government to extend the BCS to all attendance and learning. Recording incidents of under-16s and to use the information to bullying will only help if firstly there is a develop a national strategy to end all forms of presumption of transparency in those records violence against children and young people. being available to parents and inspectors on We have also urged the inclusion of questions request; and secondly if this is part of a wider on children and young people’s experiences of strategy for tackling violence and bullying in violence in the home. CRAE considers that schools that actively engages children and young gathering such data is both crucial for helping people. CRAE supports the UN Committee’s professionals to understand violence against recommendations in 2002 and 2008 to children in the home, and to support professionals intensify its efforts to tackle bullying and to take appropriate action. The Government has violence in schools, including through the said that it will not include these topics in 2009, teaching of positive messages about human but will review the scope of the survey on an rights, peace and tolerance.264 ongoing basis.

For more detail about measures to tackle violence Forced marriage against children and young people, see chapters In November 2008, statutory guidance was issued on Civil Rights and Freedoms and Special under the Forced Marriage (Civil Protection) Act Protection Measures. 2007. The guidance sets out the responsibilities of chief executives and senior staff in bodies Ensure that professionals working with involved in handling cases of forced marriages, children receive training on their obligation to and includes information on staff training. The report and take appropriate action in guidance states that chief executives must ensure suspected cases of domestic violence affecting that ‘there is a senior specialist who has undertaken children additional training who can be approached to discuss and direct difficult cases’. They are also Workforce training and development called upon to ensure that: We are encouraged to see that the Government is addressing urgent workforce issues. At least 20% …suitable training and awareness-raising is of social worker posts remain unfilled in more incorporated into existing training within agencies than half of children’s social care teams, and to ensure frontline staff are aware of the issue and increased caseloads means that unqualified or know how to respond quickly and appropriately to inexperienced staff are more likely to be carrying individuals threatened with, or already in, a forced out safeguarding work.265 In a series of recently marriage.268 leaked emails to The Guardian, it has come to light that Haringey council is appealing to all London Staff should also receive updates on issues boroughs to lend it ‘good quality’ social workers to relating to forced marriage and honour-based help with its recruitment crisis following the case violence through existing child protection of Baby Peter Connolly.266 training. Revised multi-agency practice guidelines on handling forced marriage (published in July Many children’s social workers may already 2009) clearly state that ‘forced marriage is a form benefit from having received some professional of child / adult abuse and violence against women; training on children’s rights. However, the UN it should form part of existing child and adult Committee’s concluding observations called for protection structures, policies and procedures’.269 the universal teaching of children’s rights for the benefit of all professionals whose work brings them into contact with children.267

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Strengthen support for victims of violence, Provide access for child victims of abuse to abuse, neglect and maltreatment in order to adequate services for recovery, counselling ensure they are not victimised during legal and other forms of reintegration proceedings Recommendations arising from Lord Laming’s Support for child victims recent review of child protection services in A report this year by the NSPCC outlining the England included measures to increase the experiences of 182 child witnesses (aged between number of health visitors in the NHS and improve five and 19) in criminal proceedings has found training for staff working with children. that only 55% of child witnesses had made statements in the form of a video interview, and New statutory guidance on safeguarding children, 44% had not met their supporter before the Safeguarding Children and Young People from trial.270 This has raised significant concerns Sexual Exploitation, and revised guidance on regarding the level of support – pre, post and young runaways and missing children are very during legal proceedings – given to child victims welcome. However, in order to ensure that child of violence, abuse, neglect and maltreatment. The victims of abuse are supported to cope with their Government must take concerted action now experiences, the Government must see that the to ensure that legal proceedings are tailored to necessary support, resources and training are the needs of child witnesses, which should in place to better enable local authorities to include the provision of individual support, fulfil their responsibilities towards these appropriate questioning in court, and working vulnerable children, so that the focus on keeping with child witnesses to help them feel safe. The children and young people safe properly extends NSPCC calls it a ‘significant gap’ between the to the support and services provided to them. policy that exists and the reality of children and Valuable counselling and support services to child young people’s experiences. victims of abuse are provided by a range of third sector organisations. It is essential that these Support must be strengthened if child victims of organisations receive sustainable funding to violence, abuse, neglect and maltreatment are to enable them to carry out their work. avoid further victimisation by a system that is meant to be there to protect them; and the The role played by Child and Adolescent Mental unfairness of seeing those who offend against Health Services is crucial to supporting the good children continuing to escape justice. mental health of young survivors of abuse. However, as identified in the following chapter, Over a decade ago, the Children's Safeguards Basic Health and Welfare, services are patchy to a Review concluded that the criminal justice system point of operating a “postcode lottery” and many is not working in a way which protects children 16 and 17 year-olds continue to fall between the against abuse, with few convictions in relation to provision of mental health services to children the cases investigated, and young children and and adults. The Government has acknowledged children with disabilities being disadvantaged to that these problems exist, as demonstrated by the point of being deprived of justice. It also noted Section 131A of the Mental Health Act 1983 (as that child witnesses may be further harmed by the amended), which introduces a requirement for court process. The review recommended that the age-appropriate mental health in-patient services Government implement the remaining for under-18s. recommendations of the Pigot Report and undertake a comprehensive review of the Violence against women and girls arrangements for prosecuting offences against A body of health professionals has been set up by children to make them more effective.271 Whilst the Home Office to spot early signs of violence and there has been progress in some areas, the long- abuse against women and girls, to investigate the awaited comprehensive review envisaged then scale of violence against this group, and to make remains outstanding. Where there is progress in sure victims are well-supported by the NHS.272 this area this is more as a product of practice that According to a survey of 13 to 17 year-olds is exemplary rather than standard. conducted by the NSPCC and the University of Bristol, one-third of teenage girls in a relationship suffer unwanted sexual acts and a quarter, physical violence. The survey found that nearly 71 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

nine out of 10 girls had been in an intimate relationship. Of these, one in six said they had been pressured into sexual intercourse and one in 16 said they had been raped. Others had been pressured or forced to kiss or sexually touch. A quarter of girls had suffered physical violence such as being slapped, punched, or beaten by their boyfriends. Nearly nine out of 10 boys also said they had been in a relationship. A smaller number reported pressure or violence from girls.273

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BASIC HEALTH AND WELFARE

Overview Children and young people in England report generally good health. The annual Health Survey for England found that 94% of those under-18 believe that they have good or very good health. Evidence suggests that they are drinking less alcohol, smoking less tobacco and eating more fruit. 274 Expenditure on health care in the UK has risen from 6.6% of GDP in 1997 to 8.4% of GDP in 2007.275 While this progress is welcome, state action on children’s health rights remains mixed.

The publication of a dedicated Child Health Strategy is a significant step forward for children’s health. Progress has been made in the provision of sexual health education but this risks being undermined by retaining parents’ right to withdraw children from sex and relationship education.

Access to good quality, appropriate and accessible services remains difficult for many children and young people, especially in relation to mental health and sexual health services. While children and young people are generally healthier, inequalities in outcomes remain and in some instances have widened.

Investment in services and support for children and young people with disabilities runs alongside policies focused largely on parental and adult experiences, missing the valuable perspectives of children and young people themselves.

Legal duties to “eradicate” child poverty are promised, but benefits remain too low to ensure all children and young people can enjoy a life with dignity and free from poverty.

Achieving equality for children with Despite this there remains no comprehensive disabilities national strategy for the inclusion of children and young people with disabilities in society. Aiming Develop a comprehensive national strategy for High for Disabled Children: Better Support for the inclusion of children with disabilities in Families, published in 2007, has been the main society impetus for change. Aiming High (AHDC) has resulted in significant service reform and new Develop early identification programmes for equipment for children and young people with children with disabilities disabilities.277 However, this strategy and its implementation programme focus on improving Take all necessary measures to ensure that service provision for the families of children with protective legislation, programmes and disabilities rather than the full inclusion of children services for children with disabilities are and young people themselves, and its primary effectively implemented measure of success is based on parental experiences of services for children.278 No In 2005 the Government committed itself to comparable national survey of the views of children achieving a long-term vision that by 2025, and young people with disabilities about the ‘disabled people in Britain should have full services they use is undertaken. opportunities and choices to improve their quality of life and will be respected and included as equal As part of the AHDC programme, the Government members of society’.276 The Office for Disability launched a new “core offer” in 2008 - a national Issues is an interdepartmental unit, based in the statement of expectation of how services for Department for Work and Pensions, which is children with disabilities and their families will be responsible for driving forward this vision. delivered locally. This includes standards about Jonathan Shaw MP was appointed Minister for information, transparency, assessment, Disabled People in October 2008 and is supported participation and feedback.279 Yet the offer remains by both a Ministerial Group and an Inter- unenforceable with no right of redress for children Departmental Group on Disability. and young people and parents who lack access to service provision or in cases where services fail to meet the standards. The parental satisfaction

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survey is measured against a 0-100 score, and the However, the Government has published a range of first published data (June 2009) gave a national new guidance and practice documents for average score of just 59 out of 100. While scores practitioners and professionals that raise were generally better for transparency, scores awareness of issues facing children and young relating to participation and feedback remain people with disabilities and promote their much lower.280 inclusion. This has included new guidance aimed at Local Safeguarding Children Board partners and Best practice guidance issued this year for the other professionals working with children and Early Support programme (which aims to improve young people and their families.285 In 2008, DCSF the way in which services for children and young supported the Children’s Society to create a website people with disabilities work together and how with practical advice on working with and including services engage with families) showed that while children and young people with disabilities.286 over £16 million has been spent on the programme to date, just 21% of local authorities Ratify the International Convention on the have well-established systems that include a Rights of Persons with Disabilities and its stable key worker service. The Government Optional Protocol acknowledges that many local authorities have been ‘been slow to engage’ with the Early Support The rights of children and young people with programme, and has announced plans to integrate disabilities were significantly strengthened when the programme into AHDC over the coming the Government ratified the UN Convention on the year.281 Rights of Persons with Disabilities (CRPD) on 8 June 2009.287 The CRPD significantly reinforces human While there is no strategy for the inclusion of rights protection for children and young people, children in society there is an existing statutory particularly with the ratification of the Disability Equality Duty which includes a duty to accompanying Optional Protocol, which allows for promote equality of opportunity between people individual right of petition to the treaty monitoring with disability and other people, and to eliminate body.288 unlawful discrimination and harassment of disabled people that is related to their disability. Although the Government had played a key role in The duty is laid on schools and a number of other negotiating the CRPD, the process of ratification for public bodies who had to produce a Disability the UK became delayed. In January 2009 the Equality Scheme by December 2007.282 However, parliamentary Joint Committee on Human Rights research by learning disability charity Mencap (JCHR) strongly criticised the Government for its published in November 2008 examined the slow progress towards ratification, stating that it schemes of 40 schools from nine local authorities. had ‘…lacked transparency and…unfortunately Only seven were able to provide on request a alienated disabled people and their organisations’.289 document called a Disability Equality Scheme, and only one of these documents met the relevant The Government finally ratified the CRPD in June statutory requirements.283 The Department for 2009. However, despite strong and consistent Children, Schools and Families (DCSF) has stated lobbying from disability and children’s charities, the that it is taking these findings seriously. 284 Government has made an interpretative declaration on ratification in order to allow children and young Undertake awareness-raising campaigns on people with disabilities to continue to be educated the rights and special needs of children with in “special schools”:290 disabilities, encouraging their inclusion in society and preventing discrimination and The United Kingdom Government is committed to institutionalisation continuing to develop an inclusive system where parents of disabled children have increasing access to Provide training for professionals working mainstream schools and staff, which have the with children with disabilities capacity to meet the needs of disabled children. The General Education System in the United Kingdom There is no specific public awareness-raising includes mainstream, and special schools, which the campaign on the rights of children and young UK Government understands is allowed under the people with disabilities. Convention.

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The Government also entered several mainstream schools become progressively more reservations, including: inclusive.297

 A reservation to ‘...allow for circumstances Reduce health inequalities where disabled children’s needs may be best met through specialist provision which may be Address inequalities in access to health services some way from their home…’291, weakening through a co-ordinated approach across all both children’s right to an inclusive education Government departments and to a family life  A reservation on the right for regular review Better co-ordinate health policies with those where a person exercises substituted aiming to reduce income inequality and poverty decision-making rights in relation to social security claims and payments. This may be In 1998 the Government set a target to reduce particularly relevant for children and young inequalities in health outcomes by 2010 by 10% as people. The Government has confirmed its measured by infant mortality and life expectancy at intention to introduce a proportionate system birth.298 of review and will repeal the reservation upon its introduction Sadly the gap has widened. For the baseline period  A general immigration reservation to ensure of 1997-99, infant mortality rate among the routine that issues of immigration are not adversely and manual groups was 13% higher than in the affected by the CRPD. This reservation is total population. The most recent data (2005-07) particularly striking as the Government had shows that this has risen to 16%. In spite of these repealed a similar wide-ranging reservation to current trends the Government believes that the the UNCRC just a few months earlier target will be met.299 It is perhaps important to note  A reservation to permit discrimination against that the rise in inequalities is set against a people with disabilities in admission into or background of generally improving health, and the service in the UK Armed Forces. The JCHR widening of the gap is not because those on low states that this reservation is likely to be open incomes are necessarily getting less healthy but to challenge as being incompatible with the because those on higher incomes are getting CRPD.292 healthier more quickly.

Prior to ratification, the JCHR expressed doubt In February 2009 the parliamentary Health Select that ‘…any, or all, of the reservations or Committee published the results of its inquiry into interpretative declarations currently being health inequalities.300 The report noted that considered by the Government are both necessary England is a world leader in political leadership to and compatible with the object and purpose of the reduce health inequalities. However, the Select [Convention].’293 The reservations and Committee was very critical of how the Government interpretative declaration have also been widely has designed and implemented programmes to criticised by human rights activists. CRAE believes reduce inequalities. It found many were not that the reservations are unreasonably cautious founded on good evidence, and had neither been and will deny children and young people with piloted nor effectively evaluated. disabilities equal status and citizenship. Scope said it was ‘extremely disappointed that the It was particularly concerned that the move from Government is denying disabled people in the UK targeted Sure Start centres in deprived their full human rights.’294 The Centre for Studies communities to universal provision of Children’s on Inclusive Education judged that the Centres in all communities by 2010 ‘risks distracting interpretation itself ‘contravenes the very principle from the original focus of deprived families who are enshrined in the [Convention]’.295 Finally, the most in need of support’. In its response, the Equality and Human Rights Commission has called Government rejected the claim but promised to it an ‘unnecessary and disproportionate degree of monitor the situation closely. 301 cautiousness’296, and expressed concerns that underlying the qualified ratification is a shift in The Health Select Committee was strikingly critical policy suggesting the Government now accepts a of co-ordination between DCSF and the Department permanent role for segregated “special schools” as of Health (DH). While the (then) Secretary of State opposed to their role diminishing over time as 75 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

for Health Alan Johnson claimed they were ‘almost I think school counsellors should learn to keep their joined at the hip’, the Select Committee said: things to themselves, because my old school counsellor discussed everything with the dinner lady If, as the Secretary of State told us, joined up during lunch time, so you’d be standing in the queue working between the Department of Health and the and listening to everything from her last session. If DCSF on health inequalities is truly the best in you’re at the front of the queue, you’d have to listen, Whitehall, this must mean that elsewhere it is very and all the teachers go in first, and you’re stood there poor. In our view the DCSF did not display a high with the counsellor at the top of her voice, discussing level of knowledge about or insight into this area, everything about the kid’s problems, and that’s not and it seemed that few attempts had been made at right.304 evaluation of the health impacts of DCSF policies to date, suggesting to us that health inequalities are Without clear guidance on the need to provide not a particularly high priority on this children and young people with confidentiality, and Department’s agenda. the impact of this on current child protection thinking and policies, the Government’s efforts to In February DCSF and DH released a new Child increase children and young people’s take up of Health Strategy that includes many policy services that meet their health needs, or keep them proposals which will affect health inequalities safe from harm, will not be as effective as they could such as increased health promotion in the early be. years, and the rollout of the Family Nurse Partnership Programme. However, the Child In November 2008 a Government-backed Health Strategy says very little about health independent review of Child and Adolescent Mental inequalities explicitly, and reducing inequalities Health Services (CAMHS) found that while there between children is not among its measures for have been considerable improvements in services, success.302 CRAE looks forward to seeing the particularly since 2004, many children and young outcome of the involvement of Professor Sir people continue to receive inadequate care. The Michael Marmot, Chairman of the World Health review found that improvements have not been Organisation Commission on the Social ‘…as comprehensive, as consistent or as good as they Determinants of Health, commissioned in could be’. The review found unacceptable variations November 2008 to advise the Secretary of State in service provision, unhelpful thresholds for on the future development of a health inequalities access, and a perception by children and young strategy beyond 2010.303 people that services were not as well-known, accessible, responsive or child-centred as they Improve mental health should be.305 The Government accepted the recommendations of the CAMHS Review in Provide additional resources and support for principle and has created a National Advisory children with mental health difficulties, Council on Children’s Mental Health and including a focus on children deprived of Psychological Well-being (chaired by Dame Jo parental care, children affected by conflict, Williams, former Chief Executive of Mencap), along those living in poverty and those in conflict with a new National Support Programme for with the law CAHMS to support local areas to deliver effective services.306 However, while the Government Strengthen mental health and counselling penchant for structural reforms is clearly evidenced services and ensure they are both accessible in its acceptance of the review’s recommendations, for and sensitive to young people it has less to say about the resources that will be necessary to make the provision of mental health For all children and young people to enjoy equal services a reality for all children and young people access to health services it is necessary to who need them. understand how important confidentiality is to them. During CRAE’s children’s rights This year, the Government has conducted a investigation many concerns were raised about consultation on revised statutory guidance on the confidentiality (especially in relation to health and well-being of children in care, which counselling services), breaches of which could includes proposals for dedicated CAMHS support constitute a major deterrent to children using for children in care.307 health services. A typical comment was: 76 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Provisions from the Mental Health Act 2007 have Progress on under-16s has largely driven progress been gradually introduced over the past year. The towards implementing the broader new legal duty Act represented the biggest reform of mental for age-appropriate care. In 2006-07, 12.2% of bed health legislation in over twenty years. days for under-18s were on adult psychiatric wards In early 2008, a draft revised statutory Mental – this fell to 8.1% in 2008-09.317 Health Act 1983 Code of Practice was issued. Following criticism from 11 MILLION and the Mental health services in the secure estate remain Royal College of Psychiatrists308, the draft revised neglected. The consequences of this are tragic – Code underwent further revisions and a final since 1990, 30 children and young people have died version came into force in November 2008.309 in custody: all except two deaths were classified as Doctors and managers must now have regard to ‘self-inflicted’.318 In April 2009 Lord Bradley the Code and justify any departures from it.310 The published a review into the treatment of people revised Code includes significant information with mental health problems or learning disabilities about children and, for the first time, makes in the criminal justice system.319 Initially the review explicit reference to the UNCRC. It includes was to consider provision for children and young specific information about legal responsibilities people; however, the decision was taken to focus relating to children in care. A non-statutory primarily on adults. Lord Bradley called on the reference guide to the law regarding children and Government to ensure ‘dedicated scrutiny [for mental health treatment has also been children and young people] in a separately published.311 commissioned piece of work’ – this has not yet been forthcoming. Lord Bradley did however recommend Statutory access to an Independent Mental Health in his report that all Youth Offending Teams (YOTs) Advocate (IMHA) became available to patients must include a suitably qualified mental health liable to be detained in April 2009.312 Both worker who is responsible for making appropriate regulations on IMHAs and Guidance for referrals to services. The Government has accepted Commissioners include detail on definition of this recommendation in principle and is creating a independence of the advocacy services.313 Health and Criminal Justice Board to develop an However, unlike adults who are admitted under action plan on taking the proposal forward the 1983 Act, children and young people who are (expected before the end of 2009).320 This is likely admitted on the basis of parental consent or in the to coincide with the Government’s new health and case of 16 and 17 year-olds in accordance with the social care strategy for offenders.321 Mental Capacity Act 2005 (also known as informal admissions) do not have the right to support from The Healthcare Commission and Her Majesty’s IMHAs apart from in limited circumstances, such Inspectorate of Probation issued their second as if they might receive electro-convulsive review of health care in the community for young therapy. offenders in February 2009. It found that insufficient progress has been made in the In November 2006 the Government committed provision of health care advice to YOTs; the nature that within two years no child under 16 would be and quality of initial health assessments were too treated on an adult psychiatric ward. This was frequently inadequate; and that national average further strengthened by the 2007 Act which for the financial contribution of health services to introduced a new statutory requirement for age YOTs has fallen since its first review.322 appropriate care in mental health settings for under-18s.314 The aim was to prevent children Respect children and young people’s sexual and being treated on adult wards with a reproductive rights commencement date of April 2010. New guidance to support the duty has been published.315 The day Provide appropriate reproductive health bed figures for under-16s on adult psychiatric services for young people wards dropped from 133 in the fourth quarter of 2007-08 to zero by the third quarter of 2008-09, Increase provision of appropriate sex and meeting the Government’s initial commitment. relationship education in schools Unfortunately, in the following quarter, three under-16s were still treated on adult psychiatric New research published by UNICEF UK and the wards (albeit for one day only).316 Terrence Higgins Trust found that one in five young people who had visited a sexual health service rated 77 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

the experience as ‘bad’ or ‘very bad’ and the another review, led by Sir Alasdair MacDonald, to majority of young people do not know where to go look at the development of PSHE.329 for trusted information on sexual health.323 The Government acknowledges that access to The PSHE Review final report was published in sexual health information and comprehensive April 2009.330 Among other recommendations, it services remains difficult for some young people recommended retaining the duty on schools to and that this hampers progress to reduce both produce a sex and relationship education policy and teenage pregnancy and the onward transmission the parental right to withdraw students. The of sexually transmitted infections. The Child Qualifications and Curriculum Development Agency Health Strategy makes several commitments to then undertook a full public consultation on increase access to sexual health services for MacDonald’s proposals for PSHE, as well as on children and young people, including:324 wider curriculum reform.331

 Rollout of the You’re Welcome standards CRAE welcomes the new statutory provision for across England325 PSHE and believes it significantly strengthens  £27 million a year from 2008-09 to improve children and young people’s right to access access to contraception and £6 million over appropriate information about health. However, three years from 2008-09 to support Primary CRAE has expressed concerns that the use of Care Trusts and further education colleges to school-based sex and relationship education improve information and advice on policies may be an excuse to circumvent the contraception for young people entitlement to comprehensive education for all  Reforms to the standard NHS contract for children and young people. We called for clear 2009-10 including a new clause to ensure that regulations to govern the content of sex and abortion providers improve access to relationship education policies and for Ofsted to contraception monitor implementation to ensure that school-  New best practice guidance to disseminate based policies do not weaken the provision of specialist advice on commissioning comprehensive sex and relationship education. reproductive health services for young people CRAE has also criticised the retention of parents’  Developing a resource pack for schools, right to withdraw students, highlighting that this providing practical advice and support on does not respect the evolving capacities of the child. setting up on-site health advice services. It is expected that the new PSHE curriculum will be delivered in schools by September 2010. There have been significant developments in the provision of sex and relationship education. Protect young people from drug and alcohol Following pressure from members of the UK related harm Youth Parliament (UKYP), the Government set up an independent review of sex and relationship Study the causes of substance misuse in order to education which was co-chaired by a young provide targeted preventative measures person from UKYP. The final report, published in October 2008, called for sex and relationship Provide accurate and objective information on education to form part of the statutory school drug and alcohol to young people curriculum and contained a series of recommendations aimed at improving Ensure support is given to those attempting to 326 provision. end dependency on toxic substances

PSHE education Evidence suggests that use of drugs and alcohol by In its response, the Government committed to children and young people continues to fall. A making Personal, Social, Health and Economic national survey in 2008 found that: (PSHE) education a part of the compulsory curriculum from Key Stages 1 to 4 (ages five to  18% of school students had drunk alcohol in the 16).327 The decision was widely welcomed by last week, with similar proportions of boys and children’s rights activists, with Simon Blake, chief girls (this has fallen from 26% in 2001) executive of Brook, describing it as ‘absolutely  The proportion of school students who have brilliant’.328 The Government made a full response never drunk alcohol has risen in recent years, to the group’s recommendations and instituted from 39% in 2003 to 48% in 2008 78 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

 About half of school students who do drink and to improve the quality of training for PSHE said they bought alcohol, despite being well teachers below the age when they can legally do so  Improve identification and support for children  The prevalence of drug use among children and young people vulnerable to drug misuse in and young people has declined since 2001 schools, colleges and non-formal settings. 337  33% of school students had at some time been offered drugs, a decrease from 42% in 2001.332 The Government response committed to making PSHE a statutory part of the national curriculum; to In January 2009 DCSF consulted on draft refocus drugs education support for parents; and to information and advice on children and young issue better guidance for further education people’s use of alcohol for parents, carers and colleges.338 Revised guidance to schools will be young people. This was based on guidance from consulted upon in autumn 2009. the Chief Medical Officer and is intended to provide both clear information about the impact Despite this progress, the Welfare Reform Bill (as of alcohol on children and young people’s health proposed) creates the power for regulations to along with guidelines on drinking alcohol. The impose additional requirements on Employment final version will be published in autumn 2009.333 and Support Allowance and Jobseekers Allowance claimants (including 16 and 17 year-olds) ‘where While there has not been a dedicated study into they are dependent on or have a propensity to misuse the causes of substance misuse, the National any drug’ and this affects their ability to work. Treatment Agency for Substance Misuse (NTA) These regulations will require claimants to answer published a study in January 2009 that brought questions about drug use and treatment, undergo together evidence regarding the effective drug testing if they do not attend substance related treatment of substance misuse among under- assessments, and attend rehabilitation 18s.334 Data on young people accessing specialist programmes. This information will be shared by the drug treatment has been very patchy and poor. Department for Work and Pensions with the The NTA has issued new data which will provide a criminal justice system, and failure to participate in baseline for future statistics. It recorded that in any of these steps may lead to benefit sanctions. 2007-08, 23,905 under-18s received specialist drug treatment, and that 62% of young people Many human rights organisations have condemned accessing these services are male. The vast these proposals. Release states that they ‘fail to majority of these young people need interventions understand the nature of problematic drug use and for alcohol or cannabis use and very few accessed provides a discriminatory and unfair system for support in respect of Class A drugs. The NTA dealing with people who are vulnerable’339 and, claims that government investment in specialist alongside the Joint Committee on Human Rights340, young people's services has increased from £15.3 highlights that the provisions will almost certainly million in 2003-04 to £24.7 million in 2007-08.335 breach Article 8 of the European Convention on However, Drugscope has highlighted problems Human Rights (respect for private and family life) faced by young people when they reach 18, and and risk pushing young drug users into destitution. are no longer eligible for specialist services, and has called for the transition from child to adult End child poverty and ensure an adequate treatment to be improved.336 standard of living for all

The Government began a review on the Adopt and adequately implement legislation effectiveness of delivery arrangements for all aimed at achieving the target of ending child drugs education (including alcohol) in January poverty by 2020, including by establishing 2008. The review called for action to: measurable indicators

 Increase knowledge among parents and carers In such measures, prioritise children and about drug and alcohol education to enable families in most need of support them to better inform and protect their children Extend material assistance and support  Improve the quality of drug and alcohol programmes for children living in poverty, education by making PSHE a statutory subject, particularly with regard to nutrition, clothing and housing 79 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Child poverty impacts on all areas of children’s In June 2009 the Government published its Child lives, as was recently illustrated in CRAE’s Poverty Bill. If passed by Parliament the Bill will: children’s rights investigation. Children living in poverty, children in care, children and young  Place legally binding income targets to be met people with disabilities, traveller children, black by 2020 (with four measurable indicators – and ethnic minority children, young refugees and relative poverty, material deprivation, asylum seekers, and children living in low income persistent poverty and absolute low income) families were found to have a greater likelihood of  Require the Government to publish a UK child underachieving in school, suffering from poor poverty strategy (to be revised every three health, feeling unsafe in their community and years), setting out the policies that will enable becoming involved in behaviour that could be targets to be met termed “anti-social”. Poverty not only affected the  Establish a Child Poverty Commission to advise individual life experiences of particular groups of on the development of child poverty strategies children and young people - it was also an issue  Require the Government to publish annual that many children and young people said that progress reports they wanted to see taken more seriously.341  Place duties on local authorities and other local agencies to work together to tackle child The UN Committee welcomed the Government’s poverty. commitment to end child poverty and the Childcare Act 2006 requirement on local The End Child Poverty Coalition, of which CRAE is a authorities to reduce inequalities among young member, has seen the Bill as ‘an important step children. However, government figures show that, forward in making tackling child poverty a priority after housing cost, four million children are now for all governments - ending child poverty is not a living in poverty. Although numbers fell between luxury, but a necessity’.346 However, the Bill defines 1998-99 and 2004-05, they have been rising since successful eradication as a relative poverty rate of then, returning the number of children living in below 10%. This has been challenged by CPAG, poverty to their 2001-02 levels.342 which commented that it is ‘unconvincing to define a rate of one in ten children suffering income poverty The Government has committed itself to as eradication’. While recognising that survey “eradicating” child poverty by 2020 and to limitations and short periods in poverty mean that halve child poverty by 2010. While this target surveys are unlikely to show a zero child poverty remains in place, making tangible progress rate, CPAG believes that this should be defined as a towards it remains a challenge. The April 2009 rate no higher than five per cent.347 budget increased the “per child” element of the child tax credit by £20 per annum, yet the Child Critics have claimed that many children and young Poverty Action Group (CPAG) highlighted that this people will be pushed from just below to just over amounts to just 38.4p per week for each child, the poverty line, but that the most deprived will ‘…less each week than the cost of a pint of milk. It is remain trapped in poverty. Save the Children UK disgraceful to give such a pittance’.343 The Joseph has called for the Bill to include a new Rowntree Foundation stated that a rise of £12.50 measurement of children in severe poverty, in per week would be needed to meet the target of order to address the static number of children living halving child poverty by 2010.344 in severe poverty.348 For its part, the Government has noted that the Bill does include a target for Projections by the Institute for Fiscal Studies (IFS) reducing ‘persistent’ poverty among children. show that under existing policies, about 1.1 million fewer children will be in poverty in 2010 Support gypsy, Roma and traveller children than in 1998. This falls 600,000 short of the Government’s target (of halving child poverty), Reintroduce a statutory duty for local and the number may be far higher if the recession authorities to provide safe and adequate sites is deeper and continues for longer than for travellers anticipated. Higher levels of unemployment and lower levels of real earnings will have more effect There is currently no statutory duty to provide safe on median incomes (and thus the poverty line) and adequate sites for travellers and, in spite of the than on the income of low-income families with UN Committee’s recommendation that these sites children.345 80 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

should be provided, CRAE’s own evidence and adequate nutrition for infants by ensuring the indicates that this has still to be addressed.349 proper use of breastmilk substitutes. The Government has continually failed to fully The Criminal Justice and Public Order Act 1994 implement the Code which, if implemented fully, had repealed Part II of the Caravan Sites Act 1968 would ban baby food companies from promoting which placed a statutory duty on local authorities products in hospitals and shops, from giving out to provide adequate accommodation for gypsy free samples, and from using pictures of babies on and traveller communities. Gypsy and traveller milk labels. communities were afforded more secure legal protection by the Housing and Regeneration Act While individual measures to protect the right to 2008. This amended the Mobile Homes Act 1983 breastfeed have received mixed responses, the to provide security of tenure for tenants of gypsy Equality Bill includes plans to better protect and traveller pitches on public sites.350 The breastfeeding in public. The relevant clause ensures Department for Communities and Local that women have more confidence in the law that Government has stated that regulations to will protect them from breastfeeding outside the implement these changes will be laid in home.353 In support of the measure, David Kidney Parliament during 2009, to come into effect as MP stated that: soon as reasonable thereafter. …it is a scandal that this country performs so much The most recent count of gypsy and traveller worse than others in enabling mothers to feel caravans showed that the total number had comfortable breastfeeding and in helping them to increased by 0.1% between January 2008 and breastfeed at work and in public places.354 January 2009 to 17,865. Of these, 79% are on either authorised private sites or socially rented The Child Health Strategy, Healthy lives, brighter sites. In the same period the number of caravans futures, clearly outlines the benefits of on unauthorised encampments (on land not breastfeeding: owned by gypsies and travellers) has decreased by 13%. However, the number of caravans on The reasons for focusing on breastfeeding are clear: unauthorised developments (land owned by babies who are not breastfed are five times more gypsies and travellers but where planning likely to be admitted to hospital with gastroenteritis permission has not yet been granted) increased by and they are more at risk of becoming overweight or 3.4% – this amounts to an increase of 78 caravans obese in later childhood. Increasing breastfeeding can across the country. The number of caravans on help to reduce inequalities in health outcomes, as sites on land not owned by gypsies and travellers relatively disadvantaged groups tend to breastfeed and which are “not tolerated” has fallen to 545 less. Teenage mothers, mothers from lower socio- from a high of 1,316 in July 2007. 351 economic groups and mothers with lower educational levels are least likely to initiate, and find Breastfeeding it harder to sustain, breastfeeding.355

Fully implement the International Code of The Government plans to strengthen its focus on Marketing of Breastmilk Substitutes breastfeeding through Sure Start, Children’s Centres and primary care, including training for staff to Encourage the inclusion of breastfeeding in promote and support breastfeeding; setting up peer nursery training support groups; and providing easy and accessible advice for mothers through the National It was reported this year that the Advertising Breastfeeding Helpline and an information DVD.356 Standards Agency banned a formula milk advertisement for ‘misleading parents’ over However, there is still a long way to go. According immunity boosting claims following 15 to Baby Milk Action: complaints. 352 The advert stated that the formula milk could help build ‘some’ but not ‘all’ natural The UK has breastfeeding rates among the lowest in defences. the industrialised world. Marketing practices undermine breastfeeding and encourages mothers to The aim of the Code of Marketing of Breastfeeding use formula. In the UK few infants are breastfed at 6 Substitutes is to contribute to the provision of safe 81 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

months. Government figures show just 48% are community health facilities in England which have breastfed at 6 weeks.357 at least a “certificate of commitment” – the minimum standard for baby-friendly hospitals. Promote baby-friendly hospitals Supporting government plans359, the National Childbirth Trust commented that: The Government acknowledges the benefits of baby friendly hospitals, stating that the …there is a need for continued investment of this kind ‘proportion of babies that are breastfed at birth rise to ensure that the UNICEF Baby Friendly level of significantly in settings that have adopted the support is available to every family and peer support principles of the UNICEF Baby Friendly Initiative’. is available for women who need it in the Currently, there are 160 maternity hospitals and community. 360 45 Primary Care Trusts engaged in Baby Friendly initiatives in the UK.358 This includes six universities and 44 Primary Care Trusts and

82 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

EDUCATION, LEISURE AND CULTURAL ACTIVITIES

Overview As the Government plans further reforms to the education system, a year of progress and set-backs set the context for children and young people’s participation in education, play and leisure activities. Children and young people have more say in their schools and colleges than ever before, but exclusions from school and violence within schools, whilst marginally reducing, remain a serious challenge. While national Key Stage 3 tests have been scrapped, and GCSE and A Level results continue to improve, schools persist in over-testing students and many children and young people have told CRAE that schools are a major cause of stress and unhappiness in their lives.361 Limited progress has been made in placing children’s human rights at the core of the Government’s education policy.

The Government’s considerable investment in play is welcomed by children’s charities and local authorities but needs to translate more quickly and consistently at a local level into accessible, dynamic and safe play facilities for all children and young people.

Inclusion have been out of school for some time, in the education system. Invest considerable additional resources to ensure the right of all children to a truly Steps towards a more inclusive primary education inclusive education, in particular children were taken through the report and from disadvantaged, marginalised and school- recommendations from the review of the primary distant groups curriculum undertaken by Sir Jim Rose. The independent review was tasked with advising on Continue and strengthen efforts to reduce the how the content and teaching of the primary impact of socio-economic background on curriculum needed to change to ‘foster children’s children’s achievement at school different and developing abilities’. In the review’s final report of April 2009, it recognised that the The Government’s Your child, your schools, our current national curriculum was too prescriptive st future: Building a 21 century schools system White and noted that the new curriculum must be more Paper sets out plans to deliver reforms to the flexible, ‘underpinned by an understanding of the education system. Measures include a guarantee distinct but interlocking ways in which children for students setting out their entitlement to learn and develop – physically, intellectually, personalised education support, a Parent emotionally, socially, culturally, morally and Guarantee to involve parents in their child’s spiritually…’ and place a greater emphasis on education, and the introduction of a School Report children’s personal development.362 CRAE hopes Card for every school. The ambition is for all that the introduction of Personal Social Health students with additional needs to receive extra and Economic (PSHE) education as a statutory help, with 4,000 extra specialist dyslexia teachers subject at primary level will contribute to a to be trained, and all students in Years 3 to 6 more balanced, developmental curriculum, falling behind in English or maths to receive one- and support younger children to learn about to-one tuition to support their learning. CRAE their human rights and the human rights of welcomes the focus on early intervention in others. providing support for children and young people with additional needs, and the intention to Whilst Government insists that gaps are beginning provide an individualised and tailored education to narrow, socio-economic differences between in the mainstream schooling system. However, children and young people have a profound while the White Paper does note that the reforms impact on achievement and children's learning. In are intended to better support vulnerable children 2007-08, 63.5% of children and young people and young people, the Government needs to be achieved five or more GCSE A* to C grades (an more specific with regard to the priority given to increase of 4.2% on 2006-07).363 However, this working towards the full inclusion of marginalised figure drops to 40% for children and young children and young people, including those that people eligible for free school meals; albeit this

83 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

does represent an increase of 4.2% on 2006-07 explicit texts or e-mails.368 The findings uncover figures.364 The impact of the recession has meant increasing ‘sexualised peer-to-peer’ bullying using that the Government is stalling in its commitment digital technology. Concerns also persist with to end child poverty, which is likely to have an regard to the prevalence of homophobic bullying impact on its plans to support children and young within schools, the failure of schools to deal with people to improve their educational attainment.365 bullying head-on, and concerns from children in care that they will be bullied if people know about Ensure children without parental care have an their care background.369 Poor local advocate to actively defend their best interests implementation in some schools of the in school Government’s Staying safe guidance has left many children and young people in fear of bullying and The Government is consulting on proposals to violence.370 support measures in the Children and Young Persons Act 2008 to place designated teachers for The Government must encourage every school children in care on a statutory footing, and for a in England to do more to engage its students in designated teacher to be appointed in each school. the development and delivery of anti-bullying The designated teacher will be given a specific strategies, and to explore the value of peer- role in ensuring that the educational mentoring schemes in supporting children to deal achievements and needs of children in care are with bullying. Schools themselves must also do promoted. Under its wider Care Matters more to ensure that their anti-bullying strategies programme366, the Government is driving forward are comprehensive and implemented with regard initiatives to improve the educational attainment to every aspect of school life. Encouraging schools of children in care by promoting more settled to take a rights-based approach to education and placements in care and school; and by using to the school environment will, over time, enable specific targets and performance indicators to this to happen. Protecting children and young encourage local authorities and carers to act as people from bullying is a basic human right, one better corporate parents towards them. The that is even more important when we recognise Government is hoping that these reforms to the how big an impact bullying has on children’s lives. care system will result in children in care experiencing less disruption from multiple This year, the Government has published guidance placement moves or from the higher risk of school for local authorities regarding preventing bullying exclusion that this group of children and young in play areas – Outdoor Play: A communication people face. toolkit for local authorities.371

Intensify efforts to tackle bullying and violence Exclusion and conflict in school in schools, including through teaching human Use permanent or temporary exclusion from rights, peace and tolerance school only as a last resort, and reduce the The Guardian reported in May 2009 that violence number of exclusions in schools is increasing, with ‘38 school fires each In 2007-08 there were 8,130 permanent week on average, with around 17 identified as exclusions from primary, secondary and “special” malicious and 40 per year causing more than £5m schools, and 383,830 fixed-term exclusions of damage’. Police have been called into schools (0.11% and 5.14% respectively of the school 3,000 times over the last two years.367 population).372 Eighty-six per cent of permanent Bullying remains an issue for children and young exclusions were from state funded secondary people, and not only in the classroom – new schools; 12% were from primary schools and two technologies are providing unwelcome per cent were from “special” schools. Exclusion opportunities for bullying at school to extend into rates for students with special educational needs all areas of children and young people’s lives. A (SEN) remain disproportionately high, with 33 in survey of over 2,000 11 to 18 year-olds by the every 10,000 students with SEN statements, and charity Beatbullying found that more than a third 38 in every 10,000 students with SEN but without of those questioned had been sent sexually statements, being permanently excluded. This

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compares with four in every 10,000 students with tests at Key Stage 2 remain. The 21st century no SEN. schools consultation document emphasises the value of ‘schools being able to access support from This year, a judge ruled that schools must make multi-agency teams’, and for other professionals reasonable adjustments for children and young working with children ‘to be part of the team people with disabilities who have behavioural working in school’.376 It is crucial when considering problems in order for them to participate in how to deliver multi-agency support in school properly.373 In this case, a nine year-old partnership with schools that the Government and student was excluded after scratching his local authorities approach service provision from teacher’s arm while being removed from the the perspective of the children and young people classroom for disruptive behaviour (linked to his whom the services are intended to support. They Attention Deficit and Hyperactivity Disorder). must also co-ordinate effectively with existing Following a disability discrimination claim made services provided by NGOs and Primary Care against the school by the child’s parents, the Trusts. Special Educational Needs and Disability Tribunal (SENDIST) found the school had failed to make Place social workers and educational reasonable adjustments in relation to the psychologists in schools to support children in exclusion. The High Court upheld this decision on conflict with their schools appeal. John Wadham, legal director at the Equality and Human Rights Commission, Building on the findings from the Child and commented: Adolescent Mental Health Services (CAMHS) Review regarding mental health and emotional This judgment sends a clear signal to schools that well-being services for children and young people, they must provide an appropriate teaching CRAE urges the Government to follow the environment with the right support for children example of the Welsh Assembly and develop a with special educational needs and to not wait until co-ordinated national strategy for providing an incident has taken place before doing so. children and young people in England with Currently, the rate of exclusion of these children is easy access to counselling services through unacceptably high - we need to prevent these schools, youth clubs and other community exclusions happening. This judgment will help settings.377 This strategy must have a particular teachers do that by providing clarity about their focus on ensuring that children and young people responsibilities. out of school have access to counselling support and advice. The Government recently consulted on whether to give children and young people a direct right to Ensure that all children out of school receive appeal exclusions from school, SEN decisions, and high quality education to lay disability discrimination claims.374 Those under the age of 18 do not currently have the right In October 2008, the Secretary of State for to bring their own appeal. Giving children and Children, Schools and Families published the young people the right to bring a disability Government’s response to evidence submitted for discrimination claim would bring the approach its consultation on the provision of alternative into line with other equality strands such as race education for children out of school, Back on and gender. Track. This was accompanied by guidance for local authorities on commissioning alternative CRAE’s What do they know? report found that provision; the establishment of named individuals schools are not providing adequate support for within local authorities who will hold children and young people outside their academic responsibility for ensuring that alternative remit. The final report from Cambridge provision meets the needs of children and young University’s Primary Review states that ‘testing in people; and the announcement of 12 pilots to test our schools causes anxiety and stress in pupils’.375 new ways of teaching students out of school. As noted above, while testing at Key Stage 3 is no While CRAE welcomes this focus on ensuring longer required, many schools are continuing to adequate education provision for those out of administer these tests and, unfortunately, national mainstream school, the continuing focus on 85 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

managing behaviour - ‘Ministers intend to make Ensure that children, and particularly children the sector more proactive so that alternative in care, have the right to appeal to a special provision outlets are brought in at a much earlier educational needs tribunal stage to nip poor behaviour in the bud’- rather risks missing the point about the need to find It has been a year of mixed blessings for student better ways of actually keeping children in voice in schools. To date, the Government has school.378 failed to commence a new duty on school governing bodies to “invite and consider” the Following the Badman review of home education, views of students. To be implemented, the duty the Government has published proposals to (part of the Education and Skills Act 2008) introduce a registration and monitoring system requires regulations to be issued that detail the for home-educated children and young people. specific matters a governing body must consult While CRAE welcomes some form of registration children and young people on. In October 2008 and monitoring of home education, this must be Ministers gave assurances that these matters proportionate and focus on the quality of the should include delivery of the curriculum, education being provided, in line with Article 29 of behaviour, school uniform, school food, health and the UNCRC. These proposals should make sure safety, equality and sustainability, ‘not that children and young people, whose parents simply…what colour to paint the walls’.380 Baroness opt to educate them at home, do not miss out on Morgan also stated that the Government did ‘not educational opportunities or support available to intend to drag our heels’ on the matter. More than their peers. The Government should also use the a year later, there has been no significant opportunity to ensure that its forthcoming progress. proposals provide for children and young people of sufficient understanding to initially and Despite this, there have been a number of positive periodically be given their own say in whether, developments. The Government has undertaken a and how, they are home-educated. consultation to look at giving 16 and 17 year-olds the right to appeal exclusions from school and Research published by CRAE in 2008 highlighted giving a broader range of children the opportunity significant concerns from young refugees and to appeal SEN decisions and to make disability asylum seekers about their access to education, discrimination claims. The UNCRC was explicitly particularly where they did not have places in mentioned in the consultation as an impetus for mainstream schools or colleges. Children and the review.381 Research undertaken with children young people reported relatively few hours in and young people by CRAE on behalf of 11 school or college, with most of their lessons MILLION found that the majority of children in the focused on learning written and oral skills in sample who had been excluded would use a right English with little opportunity to study subjects in to appeal an exclusion if they disagreed with the other areas.379 In the same research, children and reasons for their permanent exclusion, if young people from traveller communities spoke appealing against the decision would reduce the about long periods out of school, and resulting amount of time they spent out of school, and difficulties in reading and writing. They said ensure they could put forward their ‘side of the schools were unsuited to their interest in learning story’. Children and young people with SEN also a skilled trade. said they would use the right to appeal because they are in the best position to talk about the Strengthen participation of children and effect decisions made about the content of SEN young people in school assessment and statements have on their education: ‘Everyone should be able to make a Strengthen children’s participation in all complaint’.382 matters of school, classroom and learning that affect them CRAE, through the Participation Works Consortium, has called for all children to have Ensure that children, and particularly children the right to appeal permanent exclusions, SEN in care, have the right to appeal against their decisions, and to make a disability exclusion discrimination claim. We do not think it is 86 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

necessary for children to be a specific age or pass Right to play a specific competency test to claim this right. Instead, this right should be accompanied by a Strengthen efforts to guarantee children’s parallel right for all children to have access to an right to rest and leisure, to engage in play and advocate to support them in preparing and recreational activities appropriate to their participating in an appeal. The results of the age, and to participate in cultural life and the consultation will be published this autumn. arts

Following recommendations by 11 MILLION Provide children, including those with regarding complaints mechanisms for children, disabilities, with adequate and accessible play and extensive consultation by the Department for spaces Children, Schools and Families383, the Apprenticeships, Skills, Children and Learning The Play Strategy and DCSF-funded myplace Bill includes provisions to allow registered programme have provided new opportunities for students or their parents to complain about children and young people in England to engage in their education and, if unable to resolve the play and leisure activities. After widespread issue at school level, refer the matter to the consultation with children and young people and Local Government Ombudsman. 384 CRAE adults, the Government has invested £235 million warmly welcomes this explicit provision for to create better play spaces for all children and children to refer complaints in their own name to young people, more adventure playgrounds, and the Local Government Ombudsman. CRAE has increased facilities for children and young people called for the Bill to be strengthened to give with disabilities in their local community. In the children and young people the right to comment first national play strategy, published in December on a complaint if made by a parent and for all 2008, the Government recognised that children children and young people to have the right to an and young people living in poverty, children and advocate. young people from ethnic minority groups, and children from gypsy and traveller communities While, as noted above, there has been no progress face different and particular challenges in on the duty of governing bodies to invite and accessing play services.390 consider students’ views, the Your child, your schools, our future White Paper does outline The Government has recently reported that proposals for a Pupil Guarantee which will be children and young people have access to more underpinned by legislation. This guarantee will than 530 new play sites in 63 local authorities. include the commitment that ‘every pupil has an The Children’s Minister, Dawn Primarolo MP, opportunity to have a say on how well their school acknowledged that ‘the ability to play safely and is doing and how it can be improved.’385 It is independently is one of the defining characteristics 391 expected that the guarantee will be included in the of a good childhood’ , and the Government has Improving Schools and Safeguarding Children Bill advised local authorities that play spaces need to in the 2009-10 parliamentary session.386 be free, accessible and engaging in well-lit and safe areas. In 2006 the Government changed the law to allow a sixth-form student attending a maintained Despite welcome progress at both national and school to be able to withdraw him or herself from local levels with regard to the priority being given collective worship. This right came into force in to enabling children and young people to realise September 2007.387 The Education and Skills Act their right to play under Article 31 of the UNCRC, a 2008 further extended this right to include sixth- lack of cross-government co-ordination is again form students in non-maintained special schools, hampering efforts by DCSF. Play England has although this extension has not, as yet, come into found that more than half of parents feel that force.388 During the passage of the Bill the work, or other unavoidable commitments, limit Government continued to resist giving competent the time they spend supporting their children to children and young people under the age of 16 the play and that half of parents say there are not right to withdraw themselves from collective enough places for children to play safely without 392 religious worship.389 an adult. The research also found that a third of

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children (34%) and a quarter of seven and eight all children in the UK to have high quality arts year-olds report that homework often stops them experiences as an integral part of their childhood, playing, while nearly half of adults think children hopes that ‘…schools will work closely with parents, should go to fewer extra-curricular activities. Play ensuring that the importance of play outside school England’s study discusses the effects on children is understood’ as a result of the proposed new of not being able to access their right to play and curriculum.394 recommends more flexible working hours for parents alongside more age-appropriate play and CRAE is encouraged by the Government’s efforts leisure facilities as important steps to addressing to support children and young people of all this issue. backgrounds to realise their right to play, and the involvement of children and young people in the Play England has commissioned KIDS to provide development of the national play strategy and its advice and guidance on the availability of delivery at a local level. However, the focus must inclusive play provision and space, including for be retained on ensuring that efforts to improve children and young people with disabilities.393 access to provision for children and young people from disadvantaged and marginalised With an increasingly packed curriculum and backgrounds continues, and that particular accusations of “teaching to the test” to achieve emphasis is given to the different barriers facing good ranking in the school league tables, the arts children in urban and rural areas with regard to have continually been pushed aside on the accessing play and leisure provision. curriculum, despite innovative practice in individual schools. CRAE hopes that plans for a more flexible curriculum, outlined in the Primary Review and the recent schools White Paper, will allow the arts to be re-integrated and recognised as a valuable contributor to children and young people’s development within education. Action for Children’s Arts, which campaigns for the right of

88 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

SPECIAL PROTECTION MEASURES

Overview Children’s best interests as a primary consideration, and placing children’s well-being and development ahead of administrative concerns, continues to be far from the reality for children subject to immigration control and for children in conflict with the law.

Children and young people continue to be detained for immigration purposes, despite explicit Government guidance and a new legal duty emphasising the need to safeguard their welfare. Children who are the subject of age disputes are still not given the benefit of the doubt. However, the Government has taken clear steps to improve support for trafficked children over the last year, with legislative change under the Borders, Citizenship and Immigration Act 2009, the ratification of two international treaties to protect the rights of trafficking victims, and the introduction of a range of measures to identify, support and protect trafficked children. CRAE has welcomed new responsibilities for local authorities in relation to the education of children in custody, but is saddened that children in conflict with the law continue to be denied the same consideration as all other children.

The Government has consistently refused to recognise the need for a radical overhaul of the juvenile justice system in England and Wales. The increasing number of children in custody seriously undermines the Government’s claim that custody is only used as a genuine last resort. Several reports have evidenced the commonplace use of force against children in custodial settings, and the use of painful restraint on children in custody continues. In contrast however, there have been positive measures introduced to improve the protection of the rights of child victims and child witnesses, and the experiences of 10 to 16 year-olds are now included in the British Crime Survey.

Asylum seeking and migrant children Five children had been detained for between two and three months.395 Immigration detention and return Between January and June 2009, a total of 470 Intensify efforts to ensure that the detention of children and young people entered immigration asylum seeking and migrant children is always detention, of which 335 were asylum detainees.396 used as a measure of last resort, and for the Figures for April to June 2009 showed that as of shortest possible period of time the end of June 2009, 35 people who had been detained under immigration powers were Ensure there are adequate safeguards in place recorded as being under-18. Twenty five had been when children are returned to their originating detained for less than 29 days and 10 had been in country, including an independent assessment detention between 29 days and two months. The of the conditions upon return, and of the family figures also showed that, as of 30 June 2009, there environment awaiting the child were 26 families with children being held in detention.397 In August 2009, The Guardian Children subject to immigration control published a series of articles on children and young continue to be detained people in detention questioning Government Despite the removal of the wide-ranging policy.398 Far from being a last resort these figures reservation on immigration to the UNCRC, the suggest that children and young people are in fact Government continues to place immigration being detained routinely. control ahead of the best interests of children and young people. In 2008 the UN Committee on the Rights of the Child expressed concern over the continued Detention of unaccompanied children and children detention of children and young people for with families continues. As at the end of March immigration purposes.399 Yet despite heavy 2009, 30 children were detained under criticism and associated evidence that detaining Immigration Act powers. Of these, 20 had been children and their families causes severe mental detained for less than 29 days and five had been health problems and extreme distress for children detained for between 29 days and two months. and young people, the Government’s policy 89 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

remains unchanged. Research by 11 MILLION children and 81 children were referred to found that children and young people were deeply ministers for authorisation of detention beyond 28 traumatised by the experiences of arrest and days. In 2008-09, 122 families with children and detention: 212 children were referred to ministers for authorisation, a significant increase from 2004-05 There was this woman, just shouting, shouting at my (at 53 and 93 respectively).402 sister to get up. She was in bed asleep and she’s only five so she was crying and the women just kept According to Bail for Immigration Detainees (BID), shouting at her… (Boy, 11) of the 30,000 people held in immigration detention each year approximately 2,000 are children. They pushed me on the floor and got my hands Research by BID details the experiences of families behind me… then they took me to the van. I was on held in detention in Yarl's Wood. One parent my own in the van and I didn’t know what was described the impact of detention on her child’s happening to my family. (11 year-old) health: ‘…she was really depressed in the centre, she just vomit, she doesn’t want to eat or drink… my Why do they have to put us in cages? (Girl, 11) daughter, she lost so much weight…’403

Just the initial sight of the place, you know you’re in In June 2009, charities received reports that some a prison with the two big gates. As soon as you see it families at Yarl’s Wood Immigration Removal you know. (Boy, 12)400 Centre were sleeping in corridors and refusing food in protest of their treatment in the centre. These experiences are not isolated. In June 2009, There were also reports of staff using force to the Centre for Crime and Justice Studies published remove families from the family wing in front of a testimony from a 15 year-old about her children.404 Yet, the Immigration Minister experiences of detention in Yarl’s Wood and continues to state that keeping children in subsequent attempts to deport her family: detention for immigration purposes is compliant with the UNCRC: At 7 o’clock in the morning in August 2007…I woke up to hear banging on the door. As soon as my mum Detention of children takes place because of the opened the door, these men rushed in. They told us desire not to separate children from parents who to be quick: they were shouting. We were taken to have flagrantly abused the immigration laws. The Yarl’s Wood. It’s a detention centre, but it is no detention of children under Immigration Act powers different to a jail…I missed my teachers and just complies with the requirements of the United being at school and doing normal things with my Nations Convention on the Rights of the Child.405 friends. I was in Yarl’s Wood for three months…I saw how the other people had suffered from being there. A recent National Audit Office report on the UK How they’ve just got pain in their eyes…We applied Border Agency’s management of the asylum for bail five times. Every time they said no. Then on process states that it is Government policy to hold 15 November, five escorts arrived, one woman and asylum applicants, including families with children, four men, and the woman searched our bodies in in detention while their applications are front of the waiting men. They took us to Heathrow. considered. The report notes that concerns have During the journey I was thinking: What are my been expressed about the length of time children friends doing? Will I see my school again? Why do I spend in detention.406 have to go to a country I don’t know? Alternatives to detention The plane moved a bit, but it stopped and we were The “Millbank pilot” was established in 2007 to sent back to Yarl’s Wood, but then we were taken to trial alternatives to immigration detention for Bedford Hospital…I am making a new start and one families with children who had been refused day I will show everyone what I am capable of. But I asylum and were facing return. The pilot, which will never forget Yarl’s Wood. 401 ended early on 31 October 2008, did not fulfil its intended outcomes, with only one family being Yet Ministers continue to authorise the continued returned under the Assisted Voluntary Return detention of children. Recent figures obtained programme.407 According to the external through a parliamentary question show that, from evaluation of the project, the pilot failed as a result 1 April 2009 to 4 September 2009, 44 families with of ‘low numbers of families referred to the project 90 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

and further legal representations by the families Chapter 26 of the same guidance states that, when that were selected.’408 Other challenges highlighted removing unaccompanied children, the following by the official evaluation included a lack of suitable considerations should be made: families participating in the pilot, too short a timeframe to test the pilot properly and a lack of  Establishing with the country to which the early engagement with families.409 child is to be removed that adequate reception arrangements are in place The Children’s Society and Bail for Immigration  Liaise with the services and/or nominated Detainees released an “alternative evaluation” of guardian with responsibility for care of the the pilot, which raised serious concerns about its child to ensure the removal is effected in the operation, including its 10-month duration; most sensitive matter possible unclear referral criteria; poor publicity  Whether escorts should be provided to contributing to low initial referrals and confusion accompany the child.416 among support workers; a limited timeframe for families to consider and plan for return; and There is no information publicly available about reports of families being coerced into participating. the policies and procedures in place to ensure It concluded that the pilot was a ‘missed there are adequate safeguards for children opportunity to find out which factors help and returning to their originating country, including hinder sustainable solutions for families at the end whether an independent assessment of the of the asylum process’.410 Following the end of the conditions upon return, and of the family Millbank pilot, the Government announced a new environment awaiting the child, is routinely pilot in Scotland to encourage refused asylum carried out. seeker families to voluntarily return to their country of origin.411 In December 2008, the Government announcement that it would be withdrawing a concession Removal of children and their families (DP5/96) under which families with children who continues had been in the UK for seven years or more could In a written answer to a parliamentary question in be considered for indefinite leave to remain (ILR). December 2008, the Immigration Minister Phil The withdrawal of the concession should not, in Woolas said: practice, mean that families or separated children who would have been granted ILR should now face The UK Border Agency seeks to deport all foreign removal. The Immigration Minister has explained nationals who are convicted of committing serious to Parliament that the withdrawal reflects the fact crimes in the United Kingdom. It only deports that it is no longer required: children who are part of family groups, or, where the child is unaccompanied, where there are adequate The original purpose and need for the concession and safe reception arrangements in place.412 has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child According to Government figures, 110 children and has spent a significant period of their life in the young people were removed from the UK upon United Kingdom will continue to be an important leaving detention in the first quarter of 2009, 55 of relevant factor to be taken into account by case whom were under five.413 Similar numbers of workers when evaluating whether removal of their children and young people were removed in the parents is appropriate. 417 second quarter.414 Cases in which children and young people seek ILR Chapter 53 of the Enforcement Instructions and may still be based on Article 8 of the European Guidance documents used by the UK Border Convention on Human Rights (the right to private Agency states: and family life). It is too early to make an assessment of what impact the withdrawal of this An unaccompanied child under the age of 18 would concession may have on families whose asylum not normally be considered for removal unless there status is being re-evaluated. is evidence that satisfactory reception arrangements are in place in their home. Cases must be assessed on their individual merits…415

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Child well-being: Best interests or immigration Committee on the Rights of the Child.421 The status? introduction of the duty was also applauded by the Joint Committee on Human Rights (JCHR) in its Ensure that the UK Border Agency appoints report on the Borders, Citizenship and specially-trained staff to conduct screening Immigration Bill: interviews of children This is a human rights enhancing measure which is a Consider the appointment of guardians to long overdue reversal of the Government’s previous unaccompanied asylum-seekers and migrant policy, which excluded children subject to children immigration control from the protection of the UN Convention on the Rights of the Child.422 There have been two significant developments in relation to children and young people’s well-being The JCHR called for the duty to make a real and safety in the last 12 months. difference to the lives of children and young people subject to immigration control and told the In January 2009, the UK Border Agency (UKBA) Government that: Code of Practice for keeping children safe from harm finally came into force.418 The Code sets out We will be looking carefully for evidence that this how children who come into contact with UKBA welcome change in policy will now make a practical staff must be treated. Staff are required to show difference to the many and well-documented human that young asylum seekers have received rights problems suffered by children in the UK who treatment of the same standard as any British are subject to immigration control.423 child, that the child’s interests are a primary (but not the only) consideration, that their asylum Section 55 of the Borders, Citizenship and applications have been dealt with appropriately Immigration Act 2009 requires the Secretary of and that children at risk of harm have been State to make arrangements to ensure that specific properly identified. The Code states that the UKBA [immigration] functions are carried out with must operate on the principle that ‘Every child does regard to the need to ‘safeguard and promote the matter, as much as if they are subject to welfare of children who are in the United Kingdom’. immigration control as if they are British This provision also applies to those who are citizens…’.419 carrying out services on behalf of the UKBA. The duty is modelled on the Section 11 duty in the Yet it seems that progress on safeguarding asylum- Children Act 2004. However, the Refugee seeking and migrant children and young people Children’s Consortium has expressed serious has been limited. A report published in March concern that the duty in the Borders, Citizenship 2009 by Refugee and Migrant Justice found that the and Immigration Act will not comprehensively UKBA had been ignoring its own guidelines. Does replicate the Section 11 duty.424 This could every child matter? Children seeking asylum in effectively mean limited safeguarding for Britain reported that children and young people children and young people subject to often have no legal representation, that staff immigration control. commonly fail to believe what children and young people tell them, and often wrongly identify them In June 2009, the Home Office and Department for as adults. The report says that far from ‘putting Children, Schools and Families (DCSF) consulted children first’, the Government disregards on draft statutory guidance to support the new children’s special needs, places them at risk of Section 55 duty. This states that the duty is: extreme poverty and subjects them to long, unsettling delays before confirming their status.420 …intended to have the same effect on UKBA as section 11 of the Children Act 2004 has on this 2009 also saw the introduction of a new duty bodies to which it applies. This guidance is informed relating to the welfare of children and young by the guidance issued under section 11.425 people subject to immigration control as part of the Borders, Citizenship and Immigration Act. This In response to the draft guidance, the Immigration duty replaces the Code of Practice. The Law Practitioners Association (ILPA) expressed Government’s decision to place this duty on a concern that this document had failed to statutory footing was welcomed by the UN incorporate much of the Section 11 guidance, 92 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

stating ‘it omits much more than is of use and Destitution threatens children’s well-being importance without any explanation as to why it has Despite making public commitments to not been considered relevant to children within UK safeguarding children and young people’s well- Border Agency functions…’.426 ILPA also criticised being, there is evidence that the Government’s the lack of cross-referencing to existing policy of destitution continues to put children and safeguarding publications and expressed young people at risk of harm. A research report by disappointment that the Government had not the Asylum Support Partnership published in May taken this opportunity to make children and young 2009 found widespread and long-term destitution people’s best interests a top priority by ensuring among asylum seekers, particularly those that had the Home Office holds joint responsibility for been refused asylum. The survey analysed data asylum-seeking children with the DCSF.427 This from 4,093 visits to the Asylum Support recommendation was also made by the Partnership’s services in October 2008. Thirteen parliamentary Children, Schools and Families per cent of visits were by destitute people with Committee in April 2009 and but rejected by the dependent children (250 of 1,972). Half of these Government in June.428 The Government says the had been destitute for more than six months. In the guidance has since been revised and is modelled majority of cases, families had either not applied much more closely on the existing Section 11 for, or were waiting for a decision on whether they guidance. could receive Section 4 support. This raises concerns about the length of time taken to consider While the new duty is a welcome step forward it applications for support and the lack of knowledge remains to be seen whether it will be sufficiently about the support available.432 The Partnership robust in safeguarding children subject to called on the Government to provide immediate immigration control. cash support for all destitute refused asylum seekers with dependent children. Government rejects call for guardians There has been no action to address the UN Age disputes Committee’s call for the Government to consider appointing guardians for unaccompanied asylum- Provide disaggregated statistical data in the seeking and migrant children. In April 2009, the next periodic report on the number of children Children, Schools and Families Select Committee seeking asylum, including those subject to age recommended that the Home Office share disputes responsibility for separated children with DCSF in order to ensure children and young people’s Give the benefit of the doubt to children in age- welfare remains a primary consideration. It also disputed cases urged the Government to: Seek guidance from experts when determining …consider appointing guardians for unaccompanied age in disputed cases asylum-seeking children to ensure that they are properly supported through the asylum process and Statistics on age-disputed children that swift access to services such as education is The Government has previously been criticised by arranged on their behalf…429 the UN Committee on the Rights of the Child for failing to provide clear data on children subject to In its response in June 2009, the Government immigration control. It has not yet published the rejected the call for guardians, stating that, ‘at disaggregated data required by the UN Committee. present the Government does not see the need for a At present, limited data on children and young statutory role of guardian…’.430 In a parliamentary people seeking asylum is collected. In a letter to debate on safeguarding children in June, the National Asylum Stakeholder Forum members in Children’s Minister Dawn Primarolo stated that the April 2009, assurances were given that future ‘case remains to be made [for separated children] or quarterly asylum statistics would provide more why such guardians would make a difference, given detailed information on children. The introduction that social work and key personnel advisers are to the Asylum and Immigration Statistics for the already in place to support these young people.’431 first quarter of 2009 confirmed that:

A programme to improve statistics on people held in detention is underway. This will result in more 93 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

statistics published, subject to data quality, in 2009. …in a three month period, 42% of those they worked The programme of work will give a particular focus with were found to be children. Among those in the to detained children.433 sample were 20 young people who had been classified by the UKBA as adults on a visual Asylum statistics published in August 2009 show assessment. Ten were later found to be children.439 that between July 2008 and the end of June 2009 there were 1,380 age-disputed asylum applications The issue arose in a parliamentary debate on made in the UK.434 These statistics do not reveal safeguarding in June, when Anthony Steen MP how many of these age-disputed applicants were asked why funding for the Refugee Council’s subsequently accepted as children. Children’s Panel had been cut:

Funding cuts to support age disputes The Home Office has decided to cease funding the The Government has continued to reject the call work of the Refugee Council children’s panel, whose from the UN Committee to give the benefit of the work concerns age-disputed children. That is odd. All doubt to children in age-disputed cases.435 Chapter funding to the panel is expected to be terminated in 26 of the Enforcement Instructions and Guidance 2010. Why? The UK Border Agency says that the documents used by the UK Border Agency sets out support work provided by the panel is now being the current Government position on age-disputed done by specialist local authorities. Can the Minister children clearly: tell us which ones? We have not been able to find any that have taken on such work. The children’s An applicant’s age should only be disputed where panel provides essential support for age-disputed their physical appearance strongly suggests that young people, including access to education. I do not they are aged 18 or over and there is no satisfactory know whether the Minister knows this, but there is documentary evidence to substantiate the claimed non-stop dispute about the age of children coming date of birth. The onus of proof is on the applicant to through ports of entry, because if they are under 18, supply satisfactory documentary evidence or they are treated in one way, and if they are over 18 otherwise demonstrate they are in fact a child.436 they are treated in another.440

The only cases in which children and young people No response was given by the Minister to this are given the benefit of the doubt appear to be question during the debate. where the applicant has initially claimed asylum as an adult but later state that they are a child. In Review of age assessment procedures still not these cases ‘…they should be given benefit of doubt published and treated as a child if their physical appearance The Government announced in January 2008 that strongly suggests that they are under-18…’.437 it would establish a working group to review ‘all age assessment procedures with a view to Ironically, the same guidance instructs case establishing best practice’. One of the areas of managers to notify all cases involving consideration was the use of dental X-rays as a unaccompanied minors to the Children’s Panel of means of assessing age.441 In September 2008 a the Refugee Council. Yet, in 2009 the Refugee Home Office minister announced that a working Council had a massive proportion of its Children’s group comprising representatives from Panel funding cut by the Home Office. This has government, health organisations, refugee significant implications for the support and care of children’s groups and the Children’s Commissioner age-disputed children. A Refugee Council for England would be issuing recommendations for newsletter states that, as a result, the Panel will improvement of the age assessment process by the only be able to provide very limited support to end of 2008.442 those seeking help because of an age dispute. In these cases ‘assistance will be limited to signposting In March 2009, Children & Young People Now a young person to another advice service or to the reported that the Home Office was set to ‘backtrack person’s legal representative’.438 The Guardian on plans to use X-rays to assess the age of young reported that, in 2008, the Refugee Council asylum seekers after a legal adviser confirmed the supported nearly 400 age-disputed children in move could be classed as assault’. The Home Office London alone. It noted that: refused to comment on the legal opinion before releasing the working group report.443 At the time of going to print, the report of the working group 94 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

and recommendations on improving the age for children and young people until they reach 17.5 assessment process has still not been published. years. At this point their case must be reviewed. Options considered at this point include return due In May 2009, the High Court ruled on age-disputed to a changed situation in the country of origin, or asylum seekers. 444 A and WK both came to the UK application for British citizenship. from Afghanistan seeking asylum and claiming to be 15 years-old. They were assessed by social A report by the National Audit Office on the workers as being over 18, but a paediatrician management of asylum application by the UK assessed their ages at 15. This was one of a number Border Agency published in January 2009 notes of similar cases which were taken to the High Court that there is no process for keeping track of to obtain guidance. refugees in order to carry out a review of their case, and a lack of guidance on reviewing cases of During the case, the judge commented that local children. The report called for the UKBA to: authorities should not ‘disregard’ the assessments of paediatricians, but these should not ‘generally …define what its process will be to review the status attract any greater weight than the observations of of refugees after five years and… monitor the an experienced social worker’. The judge referred to implementation of its new instruction to review the the need for specialist age assessment units and status of unaccompanied asylum seeking children at commented ‘The system at present is undoubtedly age 17.5.445 far from perfect.’ He concluded: Sale, trafficking and abduction It is always necessary to be sure that the assessment was properly conducted and has reached a Provide the necessary resources to effectively sustainable conclusion and the record of and implement the Anti-Trafficking Action Plan reasons for the assessment will be crucial. This rather than any medical report will usually provide Ratify the Council of Europe Convention on the only possible grounds for judicial review. Action Against Trafficking in Human Beings

Although in this case, the judge upheld the local Ensure child protection standards for authorities’ assessments that A and WK were over trafficked children meet international 18, this case could have significant impact on standards Government policy and local authority practice in relation to age disputes and assessments. There has been a significant level of activity in relation to child trafficking over the last 12 The Government has not yet responded to the months. The UK Government has now ratified both judgment, but is planning on issuing guidance to the Council of Europe Convention on Action local authorities on age assessments following this Against Trafficking in Human Beings and the and other cases. UNCRC Optional Protocol on the sale of children, child prostitution and child pornography. Immigration processes Action Plan on Tackling Human Trafficking Consider amending section 2 of the Asylum and The UN Committee on the Rights of the Child Immigration (Treatment of Claimants etc.) Act welcomed the adoption of the UK Action Plan on 2004 to allow for an absolute defence for Tackling Human Trafficking but expressed concern unaccompanied minors entering the UK that the necessary resources required to ensure without valid immigration documents these children receive high quality services and safe accommodation were not in place.446 The Government has not amended section 2 of the Asylum and Immigration (Treatment of Claimants The UK Action Plan sets out 20 discreet actions etc.) Act 2004, which would allow for an absolute related to supporting trafficked children.447 Since defence for unaccompanied minors entering the October 2008, there has been significant activity UK without valid immigration documents. relating to the Action Plan:

Under the New Asylum Model (in place since  The Government has published guidance on 2005), refugee status is granted for five years and safeguarding children and young people from 95 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

sexual exploitation. This contains information In a positive step following calls from the Home on how agencies should support children who Affairs Select Committee and NGOs455, Section 54 of are believed to have been trafficked448 the Borders, Immigration and Citizenship Act 2009  An e-learning tool kit has been developed by has now amended the definition of trafficking as ECPAT UK to support practitioners in set out in the Asylum and Immigration (Treatment identifying and taking appropriate action to of Claimants) Act 2004 so that anyone who has safeguard trafficked children449 trafficked a baby or very young child can no longer  An (optional) child trafficking assessment tool escape prosecution.456 has been developed to help practitioners identify and assess the needs of a child A year-long inquiry by the Home Affairs Select believed to have been trafficked and make Committee published in May 2009 investigated appropriate referrals.450 progress towards meeting various activities set out in the UK Anti-trafficking Action Plan, particularly An update on the UK Action Plan was published in in regard to the UK Human Trafficking Centre October 2009, noting that actions relating to child (UKHTC). The Select Committee noted the extreme victims are ‘on track’ and announcing that the UK challenges in gathering data on the scale of Border Agency will undertake research into the co- trafficking and called for more to be done to ensure ordination of efforts to combat trafficking.451 that UKHTC is ‘properly resourced for the work of However, it is also clear that much remains to be data collection’. 457 done to ensure that the UK Action Plan is implemented in full. Two large scale assessments Of major concern this year have been reports of were published in 2009 on the state of child children and young people (believed to be victims trafficking in the UK which revealed increasing of trafficking) going missing from local authority numbers of children being trafficked into the UK. care. In May 2009 The Guardian published details They called for more consistency in legislation and of a UKBA report which revealed that at least 77 policy, and greater support and resources to be Chinese children have gone missing from a made available to practitioners working with these children’s home near Heathrow since 2006. The children and young people. report suggested that organised gangs have exploited the home, with children being trafficked In March 2009, the Child Exploitation and Online to work in drugs, prostitution and counterfeit Protection Centre published a Strategic Threat trades. Only four of the missing 77 children have Assessment setting out the scale and nature of been found.458 The Children, Schools and Families child trafficking. The report identified 325 children Select Committee echoed these concerns after as potential victims of trafficking between 1 March hearing evidence that high numbers of separated 2007 and 29 February 2008. Fifty-three per cent of children had gone missing from care homes and these children were assessed as having a high or airports, and recommended that a system of very high likelihood of being trafficked. Victims guardianship should be introduced to support and were identified as coming from 52 different protect these children.459 countries, with the majority from China (23%). The report called for a ‘more co-ordinated, multi-agency During a parliamentary debate on sexual based, consistent UK-wide response… to tackle the exploitation, Conservative MP Anthony Steen problem [of Chinese children] in order to prevent it highlighted several areas where he believed from continuing and growing…’.452 A significant sufficient action had not been taken to support number of the children were British (14%) and trafficked children. He called for better had been trafficked internally. The majority of identification of trafficked children and questioned children were aged 16 or 17 and were the ability of UK Border Agency staff to carry out predominately female (68%).453 The report this task, given their status as immigration services highlighted a numbers of challenges in employees. He called for the Government to ensure determining the scale and extent of child that the immigration status of trafficked children trafficking in the UK, including flaws in current does not take priority when these children are legislation relating to child trafficking that make it being assessed: ‘…trafficked children need to be very difficult to assess the scale of trafficking in seen not as immigration cases, but as children who babies.454 have been trafficked here for exploitation.’460

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These sentiments were echoed in a report by the concern that the package of support will not NSPCC on practitioners’ responses to trafficked prevent the detention of trafficking victims children. The report cited practitioners concerns (particularly children) in prisons and immigration that safeguarding was not of paramount removal centres, seriously compromising the importance and that ‘children trafficked from Government’s implementation of this abroad might not receive the same rights and Convention.465 treatment as children born in the UK, even though they are entitled to do so by law’.461 In light of the A report by ECPAT UK has found that children are NSPCC’s findings, a report by the European Union being trafficked into and out of the UK for forced Fundamental Rights Agency (FRA), which notes marriages. The report describes instances of inconsistencies in policy and practice across the British born children being forcibly married European Union in the ways in which states deal abroad and children being trafficked into the UK with trafficked children (despite the existence of having been promised marriage, but ending up in international law), is particularly interesting.462 situations of sexual exploitation, servile marriage The report highlights good practice in Finland and and domestic servitude. The report raises some the Czech Republic in identifying child trafficking key issues for Government and practitioners about and welcomes the development of policies in the implementation of existing guidelines on how Belgium, Italy and Bulgaria relating to the to recognise and deal with cases of forced development of specialised shelter for trafficked marriage. It discusses training for professionals children. The lack of such services for children in and highlights the danger of not intervening to the UK is noted. The report also expresses concern help a child at risk of a forced marriage on the over the growing trend of children going missing basis of false assumptions about a culture or from accommodation. The FRA recognises that the community. ECPAT calls for increased practitioner UK, along with only seven other EU states, has a awareness that forced marriage can be both a specific data collection mechanism on trafficking cause and a consequence of trafficking, so that but expresses regret that ‘not all mechanisms are swifter action can be taken to safeguard fully operational’. children.466

The FRA report recommends the further Administration of juvenile justice development of EU legislation relating to child trafficking based on the principle of the best Fully implement international standards of interests of the child. To meet this aim, the juvenile justice, in particular: European Commission is proposing two new legislative proposals, modelled on practice in the * Articles 37, 39 and 40 of the Convention Czech Republic, Romania, Ireland and Finland. * General Comment No.10 on Children’s rights Ratification of the Council of Europe in juvenile justice Convention and Optional Protocol As noted above, the Government ratified the * The United Nations Standard Minimum Rules Council of Europe Convention Against Trafficking for the Administration of Juvenile Justice In Human Beings in December 2008.463 The ratification of the Convention and the * The United Nations Guidelines for the Government’s subsequent package of support is a Prevention of Juvenile Delinquency very welcome move. * The United Nations Rules for the Protection of Ratification of the treaty should mean that for the Juveniles Deprived of their Liberty first time victims of trafficking - including those who have been forced into prostitution - will be Although the 2007 Children’s Plan sets out a ten- entitled to a recovery period, specialist care, year strategy for children and young people in accommodation and other services. The England, this strong expression of leadership does Convention gives minimum legal rights to victims not yet extend to children and young people in the of trafficking and ratification was followed by a juvenile justice system. range of other measures to support work on trafficking.464 However, several organisations In its July 2009 report Youth Crime Action Plan: One including Amnesty International expressed year on, the Government identifies some welcome 97 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

areas of progress and sets positive targets, of 10, children ‘can generally tell the difference including for example a challenge to all local areas between bad behaviour and serious wrongdoing’ to ensure that positive activities are available in and by claiming that ‘in all cases, interventions are areas where anti-social behaviour and crime are a designed to be rehabilitative, not punitive’.472 This is problem.467 However, the progress report is hard to square with the first listed statutory selective at best. No mention is made of the unsafe purpose of sentencing for children in the UK, conditions which many children and young people namely ‘the punishment of offenders’.473 in custody face on a daily basis, as shown in recent independent inspection reports of shocking Rule 4 of the UN Standard Minimum Rules for the children’s rights violations.468 Administration of Juvenile Justice (the “Beijing Rules”) requires that the age of criminal The primary objectives set out by the Government responsibility should ‘not be fixed at too low an age in the Youth Crime Action Plan progress report do level, bearing in mind the facts of emotional, mental not include making children and young people and intellectual maturity’. This is reflected in the safer in custody. Nor is any attention devoted to UN Guidelines for the Prevention of Juvenile the serious breaches of children and young Delinquency (the “Riyadh Guidelines”). The current people’s privacy arising from anti-social behaviour position may also constitute a breach of children’s orders (ASBOs), although the privacy rights of rights under Article 6 (right to a fair trial) of the children involved with the criminal justice system European Convention on Human Rights, continue to be violated, with vulnerable children particularly in light of concerns that children and and young people facing ASBO proceedings being young people may not necessarily have capacity to regularly “named and shamed” in local and stand trial.474 national media. The Government has so far blocked attempts to In short, while there are clearly some areas of militate against the problem, in the context of progress, the One year on report instils no reforms to the law on homicide contained in the confidence that the Government has listened to last Coroners and Justice Bill currently going through year’s severe criticisms of the juvenile justice Parliament.475 The Standing Committee for Youth system by the UN Committee on the Rights of the Justice has supported the recommendation of the Child and several other international human rights Law Commission476 that defendants under the age bodies. It is clear that the Government still fails of 18 in homicide cases should be able to enter a to recognise the need for a radical overhaul of partial defence of diminished responsibility the juvenile justice system to bring the UK into (reducing the offence of murder to manslaughter) line with international standards. if their judgment or self-control was substantially impaired by their developmental immaturity. Minimum age of criminal responsibility Concerns have also arisen this year about Raise the minimum age of criminal widespread stopping and searching of young responsibility in accordance with the children by police, including those under the age of Committee’s General Comment No.10, and 10 (see below). notably paragraphs 32 and 33 End of English law doli incapax principle While the Scottish Government has announced its Doli incapax is a common law (non-statutory) intention to raise the age of criminal responsibility principle that has historically been used to in Scotland from eight to 12 years-old469, there has describe someone who is not capable of having been no similar move in England and Wales where, criminal responsibility. Until the last century, at 10, the minimum age is one of the lowest in English law left it up to the courts to decide Europe and has been described as ‘manifestly too whether a child could be criminally responsible. low’.470 The idea of raising the age to 14 was, however, mooted by the Liberal Democrat youth In 1963, legislation was introduced which policy group at the party’s September 2009 provided that children under 10 could not be conference.471 criminally responsible. The common law doli incapax continued to exist, and meant that The UK Government has previously sought to children aged between 10 and 14 were defend its position by commenting that at the age presumed to be incapable of criminal 98 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

responsibility unless evidence could be PF was one of three defendants pleading guilty to presented by the prosecution to rebut this drug-related charges in the Crown Court at presumption. Harrow. He was aged 15 at the time of sentencing, and received an 18 month Detention and Training In 1998, new legislation abolished this Order for conspiracy to supply class A drugs and “rebuttable presumption”477, and was thought by supply of class C drugs (cannabis). He appealed many to put an end to the doli incapax principle. against his sentence, partly on the grounds of age. However, in a case brought to the House of Lords in April 2009, it was argued that the PF’s lawyers argued that the sentence was principle of doli incapax could still be raised in a manifestly excessive, partly because they said the defence.478 The claimant, JTB, was appealing Crown Court should have considered not only against his conviction for sexual offences section 44 of the Children and Young Persons Act committed when he was 12. In interview he had 1933 (which requires sentencers of young people admitted the activity but said that he had not to have regard to the welfare of the young person) thought he was doing anything wrong. He but also international law - specifically Articles 3, wanted to rely on the principle of doli incapax in 37 and 40(1) of the UNCRC and Rule 17(1) of the his defence. The House of Lords dismissed the UN Standard Minimum Rules for the case, finding that Parliament’s intention in the Administration of Juvenile Justice (the ‘Beijing 1998 legislation was clearly to abolish the doli Rules’) – which they argued go further than the incapax principle altogether. 1933 Act.

The court rejected those arguments, finding that Make child custody a genuine last resort international law was not ‘at odds with’ the 1933 Act and does not ‘add to what the courts of England Develop a broad range of alternative measures have always seen as their duty when sentencing such to detention for children in conflict with the persons to have regard to the welfare of the child…’. law Nonetheless, the Court stated that it did ‘not remain deaf to the thrust’ of the appeal and Establish the statutory principle that detention quashed PF’s sentence, replacing it with one of 12 should be used as a measure of last resort and months. for the shortest period of time CRAE has called on legal advocates in the UK England and Wales have one of the highest child courts to make greater use of the UNCRC and other custody populations in the western world, relevant international instruments when standing at an average of 2,932 in the year 2007- challenging the sentencing of children to custody. 08. Of these children, an average of 224 were held in secure children’s homes, 252 in secure training Child custody still not a ‘last resort’ centres and 2,456 in young offender institutions The Government and the main political parties all (YOIs).479 HMYOI Hindley, with capacity to hold agree that too many children and young people are 440 young people, has this year become the largest in prison in the UK, yet the Government has dedicated child prison in Europe.480 failed to take the radical action required to significantly reduce the child population in In 2008, 5,165 children aged between 15 and 17 custody. Government policy is that custody should entered prison. Of those, 2,560 were to serve only be used as a last resort, but this principle is sentences up to and including six months.481 In not enshrined in UK law. As the UN Committee on September 2008, there were 156 children aged 14 the Rights of the Child has pointed out, the sheer and under in custody in England and Wales. Of number of children and young people still being these, 28 were aged 13 and five were aged 12.482 incarcerated in the UK indicates that the The Prison Reform Trust reports that the number requirement is not being met. of children sentenced to custody more than tripled between 1991 and 2006, although the figure has This assessment is clearly true when one considers dropped slightly in the last year.483 the statistics, and has been verified by a number of recent studies. In 2007, 219 children aged 15 to 17 Court of Appeal considers UNCRC when entered prison in England and Wales for motoring reviewing child prison sentence offences, 105 for disorderly behaviour, 70 for 99 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

criminal damage, 35 for fraud and forgery and Guidelines Council (SGC). three for drunkenness.484 In its study of 214 children aged 12 to 14 who were sentenced to The SGC was created in 2004 in order to frame Detention and Training Orders (custodial guidelines to assist courts as they deal with sentences) in 2007-08, Barnardo’s found that 35% criminal cases across the whole of England and did not even meet the existing criteria for custody Wales. The Council receives advice from the SAP under English law.485 The Prison Reform Trust has which consults before giving that advice. The reported on the significant overuse of remand for Council then produces a draft guideline on which it children, with one-third of those locked up on seeks the views of a limited group as provided for remand having been charged with a non-violent by the Criminal Justice Act 2003. crime and three-quarters later acquitted or given community sentences at trial.486 Through the Coroners and Justice Bill, currently going through Parliament, the current functions of During the passage of the Criminal Justice and the SGC and SAP are to be amalgamated into one Immigration Bill (enacted in May 2008), the body, the Sentencing Council for England and Standing Committee for Youth Justice achieved Wales, with a streamlined consultation process. cross-party support for the principle of There will be a duty on the new Council to assess establishing a statutory custody safeguard to the impact and application of its guidelines and in prevent children being sent to prison other than doing so to collect new sentencing data. for reasons of public protection. However, this continues to be resisted by the Government, The Standing Committee for Youth Justice (SCYJ) contrary to the UN Committee’s explicit has welcomed the introduction of the new body as recommendation. an opportunity for a renewed focus on dramatically reducing the numbers of children sent Sentencing guidelines to custody, in order to bring the UK into line with In June 2009, the Sentencing Guidelines Council international human rights requirements. The SCYJ launched a consultation on a draft guideline which has called for the Council’s judicial membership to courts should follow when sentencing children and include those with experience of sentencing in the young people.487 The consultation closed at the end Youth Court and for its non-judicial membership to of August 2009 and the Council’s definitive include those with experience of working with guideline is awaited at the time of going to print. children in the youth justice system. The parliamentary Justice Committee made submissions to the consultation and heard evidence from organisations including CRAE and Alternatives to custody JUSTICE on the over-use of custody and the need Alternatives to custody have been further for a renewed focus on using custody only as a developed and strengthened, although additional genuine last resort. The Justice Committee work needs to be done to ensure that the full range reported: of community sentences are made available to children across the country. However, there are According to Government policy, custody should be serious concerns about the implications of the used exclusively as a sentence of last resort for “scaled approach” for children. young people but our evidence shows that this is not what happens in practice. While the current statutory sentencing framework is based on the principle of proportionality (the Our witnesses suggested that there was not a intensity and duration of any court ordered common understanding of ‘last resort’, as intervention being constrained by the seriousness demonstrated by, for example, regional variations in of the offending), under the “scaled approach” the the use of custody, and they hoped that the guideline level of compulsory intervention is determined by will go some way to developing a common the risk of what the young person might do in the understanding.488 future. The UNCRC requires that responses to offending behaviour be proportionate to young Changes in the making of sentencing guidelines people’s circumstances and to their offending; the The current system for producing sentencing Beijing Rules make clear that interventions aimed guidelines involves two bodies, the Sentencing at safeguarding the welfare of the child should not Advisory Panel (SAP) and the Sentencing infringe upon the fundamental right of the young 100 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

person to receive a proportionate response. unsafe and poorly controlled environment’ with However, as pointed out by the SCYJ, the “scaled high levels of use of force and a ‘safeguarding approach” presents potential for inequitable policy’ which remains ‘largely unimplemented’.494 outcomes with significant disparity in disposal for The report identifies inaccuracies in data collection the same offence, and a risk of discriminating and analysis of injuries sustained during restraint, against the most deprived children.489 which had not previously been identified by Youth Justice Board (YJB) monitors. Innovative approaches A recent study by the Institute for Public Policy Reporting on HMYOI Castington, inspectors found Research (IPPR) laments the increasingly punitive that less than half of the staff had been vetted by nature of the juvenile justice system as well as its the Criminal Records Bureau to check they were failure to reduce offending by children and young safe to work with children, and showers could only people. The IPPR advocates developing a more be used twice a week.495 There was an ‘progressive’ and diversionary approach to youth ‘unprecedented’ use of restraint on children, which justice, and doing more to educate the public on had resulted in the fracture of young people’s the effectiveness of restorative justice when used wrists and, on one occasion, a knee; in the previous with children and young people.490 The Prison two years, there had been seven confirmed and Reform Trust has also identified a number of three suspected fractures at the institution. progressive approaches abroad which have Inspectors found that the largest category of child succeeded in reducing child and youth protection referrals at the YOI related to imprisonment and cutting crime.491 allegations of physical assault by staff, and that a further 10 allegations related to staff using undue The SCYJ has proposed a new system for the force during restraint. The report concluded that funding of custody for children and young people the child protection policy was not being in England and Wales, recommending that funding implemented, referrals were not being reviewed, be devolved to Children’s Trust Boards in order to and that there was no independent oversight of provide an incentive for local authorities and investigations of allegations concerning staff. The others to provide better services to vulnerable inspectorate called for an independent children and young people, and to help to make investigation into the use of restraint at the YOI. custody a genuine last resort.492 CRAE and other NGOs including INQUEST and Rights violations in child prisons the NSPCC have repeatedly called on the Sadly, recent independent inspections make clear Government to hold a public inquiry into the that rights violations in child prisons remain use of force on children in custody, after commonplace, with reports describing squalid inquests into the restraint-related deaths of two environments in which bullying and use of force children in 2004 revealed evidence of the routine are commonplace. The Howard League for Penal unlawful use of force by staff in secure training Reform published a report this year collating and centres. However, the Government refuses to do analysing reports by Her Majesty’s Chief Inspector so. While the Government has now permanently of Prisons dating back to 2007 on 15 YOIs.493 The withdrawn the use of nose “distraction” report identifies ‘dire conditions’ across the system, techniques, it has failed to make a commitment to including broken bones suffered during physical transform systems and settings so as to minimise restraint, forcible strip searches and denial of the circumstances which can lead to restraint access to showers and toilets. At HMYOI Ashfield, incidents, and continues to endorse the use of which is privately run by Serco and holds boys other deliberately painful restraint techniques on aged 15 to 18, prison inspectors found that children. inmates were denied toilet breaks during journeys to and from the jail and some boys said they were Custodial settings forced to urinate in a plastic bag. The same Amid increasing concern at the placing of criticism had been made by the inspectorate in vulnerable children and young people in unsafe 2006. environments, a report from the Children’s Rights Director for England on secure units highlights the Two of the reports included in the study were need for the Government to intervene in the published by the inspectorate this year. In relation threatened closure of secure children’s homes, and to HMYOI Cookham Wood, inspectors describe ‘an to develop a clear national strategy for the 101 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

provision of appropriate secure accommodation In a current high profile case, which is reminiscent for children and young people.496 of the notorious Jamie Bulger case involving Robert Thompson and Jon Venables, two boys have been CRAE believes secure children’s homes provide the charged with a range of offences alleged to have best existing UK model to meet the custodial needs been committed in Doncaster when they were aged of vulnerable children young people. However, in 10 and 11 respectively, in connection with serious March 2009 the YJB announced cuts in the number assaults perpetrated on two other young boys. of places allocated to secure children’s homes from Media reports have focused on the horrific nature 219 to 191.497 Four secure children’s homes will be of the attacks and the circumstances in which the directly affected, and some have already closed, two defendants have been raised, including the fact resulting in significant disruption and potential that they were taken into care just weeks before harm to children in those units. This includes the alleged offences. An application has been made children outside the juvenile justice system, who for reporting restrictions on the boys to be lifted may be housed in secure children’s homes on after the end of their trial, which is due to take welfare grounds under the Children Act 1989. place in the adult Crown Court in November 2009. CRAE has expressed strong opposition to the lifting Children should never be tried as adults of reporting restrictions, which we regard as an unjustified breach of privacy contrary to the public Ensure that children in conflict with the law are interest. always dealt with within the juvenile justice system and never tried as adults in ordinary Children in custody should be separated from courts, irrespective of the gravity of the crime adults they are charged with Following the welcome withdrawal of its Children continue to be tried in adult courts in reservation to article 37c of the Convention, England when charged with a grave offence (see ensure that, unless in his or her best interests, below). every child deprived of liberty is separated from adults in all places of deprivation of On the latest available data (2007) on the numbers liberty of children appearing before magistrates courts, 11,519 10 to 17 year-olds were proceeded against The Government’s withdrawal of its reservation to in adult magistrates courts and 115,015 in youth Article 37c of the UNCRC (concerning the courts in England and Wales.498 separation of children from adults in detention) has been rightly welcomed. However, When can a child be tried in the adult courts? organisations including the Howard League for Penal Reform report continuing breaches of this  Magistrates’ courts may deal with cases which requirement. In particular, it appears to be involve people under 18 but only if they are common practice for 17 year-old girls who are tried with an adult “detoxing” from drug addictions to be detained in  Young people may also appear in the Crown adult facilities. The Howard League has recently Court if they are being jointly tried with an made a formal complaint in relation to a 17 year- adult whose case needs to be heard in that old client in this position, with the prison arguing court that it was acting in their client’s best interests in  Homicide (murder, manslaughter) and rape placing her in the adult section since she was able cases will always be heard in the Crown Court to access specialist medical services not available  The Youth Court may also send a young person in the juvenile section.499 to the Crown Court if the offence is sufficiently serious (i.e. a “specified offence”) and the CRAE has also received anecdotal reports of sentencing powers of the youth court are children and young people being detained with thought to be insufficient. This is usually an adults, including from members of the public offence where an adult is punishable with 14 through enquiries to its legal advice service. years imprisonment or more. The Government has confirmed that children All other cases involving 10 to 17 year-olds will be continue to be detained with adults in ‘a small dealt with in the Youth Court. number of cases’. On 16 September 2009, David 102 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Burrowes MP asked the Secretary of State for improving the provision of education and training Justice how many children in each of the last five for young people in custody and enhancing the years have been detained in custody with adults. ways in which local authorities and education Maria Eagle MP, the Minister replying for the providers (whether schools, further education Government, said: colleges or alternative education providers) work together to ensure that children in trouble with the Information on the number of young people under law receive their entitlement to education while in 18 years-old who have been required to share custody or in the community. 501 However, the SCYJ accommodation with adults is not collected has sought clarification regarding the application centrally. of the new provisions, in particular with regard to children and young people with special educational Young people are not routinely required to share needs. accommodation with adults. They will only do so in a small number of cases where there are exceptional Application of counter-terrorism law to circumstances, such as the need to manage children disruptive and violent behaviour, and where this is considered to be the preferred course of action.500 Review the application of the Counter Terrorism Bill to children CRAE is concerned by the Minister’s failure to refer to children’s best interests, which is the only The main concerns of the UN Committee on the principle which could provide a legal basis for the Rights of the Child in relation to the Counter detention of children with adults. Terrorism Bill were the provisions for extended Statutory right to education for all locked up pre-charge detention and notification children requirements. The Bill was enacted in November 2008 with equal application to children and young Provide for a statutory right to education for all people, including in relation to those provisions. children deprived of their liberty 42 day pre-charge detention rejected by Measures relating to the education of children and Parliament young people in custody are being brought into law The Counter-Terrorism Bill contained a provision through the Apprenticeships, Skills, Children and which would have allowed police to detain Learning Bill. While it would be preferable to see suspected terrorists for up to 42 days before section 562 of the Education Act 1996 fully charging them with any offence. Following a repealed (see box below) so that children and sustained campaign by Liberty and other human young people in any form of court-ordered rights activists, the House of Lords rejected these detention can enjoy the same right to education or proposals. Shami Chakrabarti, director of Liberty, training as any other child in the country, the said ‘The Upper House has demonstrated why Standing Committee for Youth Justice (SCYJ) Britain is the oldest unbroken democracy on Earth. welcomed provisions in the Bill that give local Common decency says we don’t lock people up for six authorities specific duties in relation to the weeks without charge’. Substantial concern remains education of children and young people in custody. that the controversial clause may re-appear in a separate Bill to be used if an emergency terrorist Section 562 of the Education Act 1996 situation arises. Section 562 states that the Education Act – which sets out local authorities’ An inquiry was launched in September 2009 after obligations to provide children and two young girls aged six and 11 were stopped and young people with an education – does searched by police in London under counter- not apply to anyone detained under a terrorism powers. The girls were walking with the court order, but that a Local Education 11 year old’s father to a bus station when two men Authority may make arrangements for approached them. One identified himself as a plain educational facilities to be provided for clothes police officer and stopped and searched detainees. them.502 The incident followed a case earlier in the summer when a nine-year old boy, Jadan The new measures should help the Government Shepherd, was stopped and searched by the meet the UN Committee’s recommendations by police.503 Both complaints are being investigated by 103 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

the Independent Police Complaints Commission about the CJS process; and keeping victims and who described the allegations as ‘worrying’.504 witnesses informed of the progress of their case. In 2008, 2,331 stop and searches were carried out Before charge, police officers will keep young people by the Metropolitan Police on under-15s under or their parent or guardian informed of case Section 44 of the Terrorism Act 2000. Fifty-eight of progress. After charge, dedicated police/CPS Witness these involved children under the age of nine.505 Care Units will do the same.507 CRAE has called for clear guidelines on the stopping and searching of young children, The Youth Justice and Criminal Evidence Act 1999 taking account of children’s views and framed gives child witnesses automatic eligibility for special by human rights requirements. measures, a range of which are available.

Rights of child victims and witnesses of crime Despite these measures, a study by the NSPCC this year found a significant gap between policy and Adopt appropriate measures to protect the experience for child witnesses. Following its 2004 rights and interests of child victims or study of 50 child witnesses, Measuring up reports witnesses of crime at all stages of the criminal the experiences of 182 child witnesses (aged justice process between five and 19) in criminal proceedings.508 The report found that only 55% of child witnesses There have been a number of positive had made statements in the form of a video developments to improve protection of the rights interview; 44% had neither met their supporter of child victims and witnesses of crime. However, before the trial nor experienced a familiarisation the Government’s continued failure to give visit to the court; and 65% had had problems of children and young people equal protection ‘comprehension, complexity, questions that were too against physical assault in the home, contrary to fast, or answers being talked over’. The NSPCC is Article 19 of the UNCRC, continues to undermine calling for immediate action to close the ‘significant any such developments. gap’ between policy and the reality of children’s experiences, including offering support tailored to The Standing Committee for Youth Justice (SCYJ) the needs of child witnesses, ensuring appropriate has called on Parliament to take the opportunity questioning at court, avoiding delays in cases, and during the passage of the Policing and Crime Bill to working with child witnesses to help them feel decriminalise child victims of prostitution, who can safe. currently be prosecuted under the Street Offences Act 1959 contrary to the UK's international CRAE has also received anecdotal evidence obligations to protect such children and deal with through its legal advice service that the victim’s them as victims in need of support and code is not always complied with in relation to assistance.506 At the time of going to print this has child victims. For example, rather than been rejected by the Government. communicating with child victims themselves, the police may communicate only with their parents, In response to a written parliamentary question even where children and young people have asking how the rights of child victims and specifically asked them not to do so. witnesses of crime are protected at all stages of the criminal justice process, the Parliamentary Under- Four year-old gives evidence at the Old Bailey Secretary of State at the Ministry of Justice, Lord In a landmark case at the Old Bailey, a four year- Bach, replied on 21 July 2009: old girl gave evidence in a sexual abuse case. The girl was questioned by a specially-trained female Child victims have procedural rights to a certain police officer, and her evidence presented to the standard of service under the victims code, which court in a video interview. The prosecutor, Sally states that all victims in England and Wales have the O’Neill QC, said that while ‘…it is unusual for a child legal right to support and information from criminal of this age to give evidence in a criminal trial…her justice agencies. Child witnesses do not have age is only a feature, albeit an important one, in this equivalent legal rights but can expect to receive case’. The defendant was convicted of the rape of certain similar standards under the non-statutory the girl when she was two, despite arguments by witness charter. Key requirements for criminal the defence that the girl was too young to give justice agencies under the code and charter include evidence.509 providing victims and witnesses with information 104 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

This important case demonstrates that even a very an annual report to the Lord Chancellor to lay young child, when properly supported, has the before Parliament, and a duty on the Chief Coroner ability to act as a credible witness. It is crucial that to provide arrangements for coroners’ training adequate and consistent funding, along with have been welcomed. The NSPCC has argued that appropriate training for police officers and others, this duty should be supported by guidance is in place to ensure that all young witnesses, requiring specialist training, in particular on child regardless of age, are given the support they need deaths where maltreatment may be a factor. The before, during and after trial to help them give Criminal Justice Alliance, of which INQUEST is a effective evidence and to limit the distress that member, has called on the Secretary of State for many may experience as a result. This view is Justice to include measures in the Bill to provide supported by the NSPCC.510 bereaved families with full, non means-tested public funding for their participation in and legal Improvements for child witnesses under the representation at inquests into deaths in state Coroners and Justice Bill custody. The Coroners and Justice Bill includes a number of welcome provisions aimed at improving protection Child defendants as witnesses of the rights of child witnesses, including: Legislation currently specifically excludes young defendants from eligibility for the special measures  Extending the eligibility for special measures to available to young witnesses. The SCYJ has witnesses under-18 (presently only those proposed amendments to the Coroners and Justice under-17 are eligible) Bill to remove this exclusion so that special  Providing more choice for young witnesses by measures may be extended to young defendants in removing the current rigid rule which appropriate cases. In response, Government has presumes that young witnesses must give their highlighted provisions within the Police and Justice evidence by video recorded evidence and live Act 2006 to make live links available to certain TV link vulnerable defendants giving oral evidence.  Allowing a “specified person” to accompany the young witness while he or she is giving Access to fair treatment under the law evidence by live link. The court must have The Coroners and Justice Bill currently going regard to the wishes of the witness when through Parliament includes a new provision determining who this individual is. making witnesses in weapons cases automatically eligible for “special measures”. The SCYJ has The NSPCC has expressed regret that certain opposed this measure, arguing that where special reform measures have not been incorporated into measures will not help to maximise the quality of a the Bill, including a provision to enable young witness’s evidence they should not be used witnesses to give their cross-examination by visual because they may have a prejudicial impact upon recording away from the court setting.511 For its the defendant’s trial (by suggesting, for example, part, Government points to its response in that he or she is a person to be feared), and could February 2009 to the 2007 consultation paper: impair the quality of evidence if used in ‘Improving the Criminal Trial Process for young inappropriate cases. In relation to child defendants Witnesses’, which made clear its decision to retain there are grounds for particular concern since the and implement the existing legislative provision in defendant may also be very young or vulnerable to the Youth Justice and Criminal Evidence Act 1999 a similar or even greater degree than the (including provision for pre-recorded cross- witnesses. Witnesses in weapons offence cases will examination), subject to the successful continue to qualify for special measures if they development of procedures and practitioner fulfil the existing criteria in the Youth Justice and guidance. Government maintains that these Criminal Evidence Act 1999. provisions make it unnecessary to include such legislation in the Coroners and Justice Bill. Concerns have also been raised in relation to provisions under the Bill which After sustained lobbying by INQUEST and others, would allow for a child defendant to give oral welcome reforms to the coroner system are being evidence through an intermediary where his or her introduced through the Coroners and Justice Bill. ability to participate effectively in the proceedings Provisions including the appointment of a Chief as a witness giving oral evidence in court is Coroner, the presentation by the Chief Coroner of 105 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

compromised by the accused’s level of intellectual "The Government's overarching aim would be to set ability or social functioning. out in any Bill of Rights and Responsibilities an accessible and straightforward statement of The SCYJ opposes this provision on the basis that, equality to embody its central place in UK society. where a young defendant’s level of intellectual There are justifiable exceptions to the principle that ability or social functioning is so compromised that all should be treated alike; for example in they are unable to understand and respond to accordance with eligibility rules on benefits, rules of questions asked in language appropriate to their immigration and citizenship and exceptions to age by a prosecutor, defence lawyer or the court, it discrimination law permitted or required by EU law. is very probable that they will be unable to Generally these exceptions are already the subject of participate effectively in their trial for the purposes detailed legislation, which would remain unaffected of that trial being fair according to Article 6 of the by a bill of Rights and Responsibilities. The European Convention on Human Rights. In these Government would welcome views on how a circumstances they should not be on trial but statement of equality in a Bill of Rights and should be diverted to an appropriate alternative Responsibilities might be framed in order to secure process. The SCYJ has stated its belief that the equality’s place at the highest levels of political provision reflects an attempt by the Government to principle" deal with the case of SC v United Kingdom512 in which it was ruled that the trial of an intellectually Ratification of human rights instruments impaired 11 year-old in the Crown Court had violated Article 6. The court said that: Ratify all international human rights instruments it is not yet party to, including the …“effective participation” in this context International Convention on the Protection of presupposes that the accused has a broad the Rights of All Migrant Workers and Members understanding of the nature of the trial process and of their Families, the Convention on the Rights of what is at stake for him or her, including the of Persons with Disabilities, and the significance of any penalty which may be imposed. It International Convention for the Protection of means that he or she, if necessary with the all Persons from Enforced Disappearance assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand The Government ratified the UN Convention on the the general thrust of what is said in court. The Rights of Persons with Disabilities (CRPD) in June defendant should be able to follow what is said by 2009. However, despite strong and consistent the prosecution witnesses and, if represented, to lobbying from disability and children’s charities, explain to his own lawyers his version of events, the Government has made an interpretative point out any statements with which he disagrees declaration in order to allow children and young and make them aware of any facts which should be people with disabilities to continue to be educated put forward in his defence… in “special schools”. It also entered several reservations, including a reservation to ‘…allow for If the defendant is unable to do all these things circumstances where disabled children’s needs may then the mere presence of an intermediary when be best met through specialist provision, which may he or she gives his or her evidence cannot ensure be some way from their home…’, a general effective participation. The SCYJ also argues that immigration reservation, and a reservation there are inherent dangers in the use of an concerning safeguards for substituted decision- intermediary when a defendant gives evidence; the making.513 Prior to ratification, the Joint Committee intermediary may not be independent of the on Human Rights expressed doubt that ‘…any, or defendant or the case (for example, a parent or all, of the reservations or interpretative declarations carer) and could, whether independent or not, currently being considered by the Government are misinterpret the defendant’s speech and that of both necessary and compatible with the object and those asking him or her questions. purpose of the [Convention].’514 CRAE believes that the reservations are unreasonably cautious As part of it factual accuracy response, and will deny children and young people with Government asked if we would agree to include the disabilities equal status and citizenship. For following additional information relating to its more detail on the CRPD, see the Basic Health and Green Paper on rights and responsibilities: Welfare chapter.

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The Council of Europe Convention against Prostitution and Child Pornography in February Trafficking in Human Beings was ratified by the UK 2009, having initially signed it in September 2000. in December 2008 and came into force in April, Implementation of the Optional Protocol will be articles 10 to 14 of which provide minimum examined by the UN Committee on the Rights of standards for the protection of child victims of the Child as part of its next periodic examination of trafficking from the moment of identification. the UK. However, CRAE remains concerned that insufficient measures to prevent the detention Take all appropriate measures to ensure the of trafficking victims (especially children) in full implementation of the UN’s prisons and immigration removal centres will recommendations by submitting them to compromise the Government’s ability to Parliament, relevant Government departments implement the Convention. and the devolved administrations for consideration and action The UK ratified the UN Convention against Transnational Organised Crime, and the “Palermo Make widely available, in relevant languages Protocol” to Prevent, Suppress and Punish and also online, the Government report and the Trafficking in Persons, Especially Women and UN’s concluding observations to the public at Children, supplementing the United Nations large, civil society, youth groups and children Convention against Transnational Organized in order to generate debate and awareness of Crime. the UNCRC

The Government has not yet ratified the Council of Since the ratification of the UNCRC in 1991, the Europe Convention on the Protection of Children Government has failed to set up a comprehensive against Sexual Exploitation and Sexual Abuse, implementation programme on children’s rights. which it signed in May 2008. Currently, information about the UNCRC and its The Government has not yet ratified the related concluding observations is limited and International Convention on the Protection of the difficult to find. The Government does not have an Rights of All Migrant Workers and Members of accessible website specifically for children and their Families, noting when the issue was raised in young people to learn about their rights. Parliament in February 2009 that there is no Information is publicly available, in English, on the incompatibility between the Human Rights Act DirectGov website. 517 Few efforts were made to 1998 and failure to ratify the Convention. The actively disseminate information about the 2008 Government stated that ‘No EU member state has concluding observations to the public or to ratified the Convention.’515 children and young people, although the Government’s report and the Committee’s The Government has not yet ratified the recommendations can be found on the DCSF’s International Convention for the Protection of all Every Child Matters website. Persons from Enforced Disappearance. In response to a parliamentary question, Ivan Lewis MP, NGOs remain at the forefront of activity to Minister of State for Foreign and Commonwealth disseminate information about the UNCRC. In Affairs, said that …the work being undertaken December 2008, the Government published its within Government to examine the potential progress report on the Children Plan518 which impact… [of the Convention] on the law of the UK is included its “response” to the concluding ongoing…It is now clear that primary legislation observations. However, this response, which sets would be necessary to permit ratification if the out proposed action to address the UN Government decide to pursue this course of Committee’s recommendations in England (and in action.’516 non-devolved matters), is limited and does not set out how the Government intends to address each Ratify the Optional Protocol on the Sale of of the UN Committee’s recommendations. Annex A Children, Child Prostitution and Child of the report outlines the relationship between the Pornography Children’s Plan and the UNCRC providing ‘a helpful framework for further action by Government…to The Government finally ratified the UNCRC’s make children’s rights under the Convention a Optional Protocol on the Sale of Children, Child reality’. 519 107 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

This falls well short of a detailed, comprehensive response to the concluding observations in England, and risks leaving children and young people living in England behind in light of more positive progress in Scotland and Wales.

The Government plans to publish its UK-wide action plan for implementing the UNCRC concluding observations from 2008 in November 2009.

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OPTIONAL PROTOCOL ON INVOLVING CHILDREN IN ARMED CONFLICT

Overview The examination of the UK’s implementation of the UNCRC in 2008 also saw the UN Committee on the Rights of the Child’s first examination of compliance with the Optional Protocol on Involving Children in Armed Conflict. The Optional Protocol was ratified by the UK Government in 2003.

The following chapter does not assess Government progress against every recommendation made by the UN Committee regarding the implementation of the Optional Protocol, but instead highlights progress (or lack thereof) against key concluding observations affecting children and young people living in England. These relate to the age of recruitment to the Armed Forces, recruitment methods, minimum terms of service, the treatment of young recruits, support given to refugee and asylum seeking children who have been used in hostilities, and the dissemination of information about the Optional Protocol.

The concluding observations for the UK Government relating to the Optional Protocol can be downloaded from the website of the UN Committee on the Rights of the Child.520

Training on and dissemination of the Optional with children and young people on the Optional Protocol Protocol.522 This was confirmed by Armed Forces Minister Bill Rammell MP in October 2009: Provide training on the Optional Protocol to all members of the Armed Forces, including those All members of the Armed Forces receive training on involved in international operations the Law of Armed Conflict (LOAC) shortly after joining and regularly throughout their careers. The Provide further training on the Optional UK Armed Forces do not routinely train all personnel Protocol for all relevant professionals, on the Optional Protocol specifically, but personnel including those working with asylum seeking involved in handling prisoners of war, internees and and refugee children, migration authorities, detainees receive training which addresses the police, lawyers, judges (including military handling of juveniles and children.523 judges), medical professionals, social workers and journalists Dissemination of the Optional Protocol on Involving Children in Armed Conflict has been very limited Make the provisions of the Optional Protocol since it was ratified by the Government in 2003. widely known and promoted, by appropriate The information provided for the public on the means, to adults and children alike DirectGov website about the UNCRC does not include information about the Optional Protocol.524 Make the initial report submitted by the State At the time of writing, there does not appear to be Party and concluding observations adopted by any information about the UNCRC or the Optional the Committee widely available to the public at Protocol on the Ministry of Defence website large in order to generate debate and (including within its youth pages), or about the awareness of the Optional Protocol, its Optional Protocol on the Government’s Every Child implementation and monitoring Matters website.

The UK Armed Forces do not currently provide Interpretative declaration training for Service personnel on the Optional Protocol. In its submission to the UN Committee in Review this interpretative declaration to ensure August 2008, the Government noted that ‘some that the State Party’s policy and practice are in personnel will receive training on areas addressed conformity with Article 1 of the Protocol and by [the Optional Protocol]…’ and that ‘…guidance to that children are not exposed to the risk of Service personnel on the involvement of children in taking direct part in hostilities armed conflict exists in the form of appropriate doctrine, policy and training.’521 There are no On ratifying the Optional Protocol in 2003, the specific training courses available for Service Government entered an interpretative declaration personnel or for relevant professionals working to retain a recruitment age for the Armed Forces of 109 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

16, and to enable it to allow under-18s to take In the meantime, in recruiting among those part in direct hostilities in cases of ‘genuine persons who have not yet attained the age of 18, military need’, ‘if not practicable to withdraw such priority is given to those who are oldest persons before deployment’, or if their removal would endanger ‘operational effectiveness’.525 This Reconsider its active policy of recruitment of declaration stands in direct conflict with the spirit children into the Armed Forces, and ensure that of the Optional Protocol and the ‘best interests’ it does not occur in a manner which specifically principle of the UNCRC. targets ethnic minorities and children of low income families In its submission to the UN Committee, the Government made the following statement Ensure that parents are included from the regarding the declaration: outset and during the entire process of recruitment and enlistment The interpretative declaration made by the United Kingdom included a clear commitment to take all 25.4% of all recruits to the Armed Forces in 2008- feasible measures to ensure members of the Armed 09 were under the age of 18, a total of 5,780 young Forces who have not yet reached the age of 18 people.529 In response to a series of parliamentary years-old do not take a direct part in hostilities. questions regarding the age at which individuals Accordingly, administrative guidelines and may be recruited, the Government has repeated procedures are in place to ensure that under-18s confirmed that it has no intention of raising the are withdrawn before their units are deployed on recruitment age of the Armed Forces to 18.530 operations. There are no plans to withdraw or Despite the fact that no other European Union 526 amend the declaration. member state recruits at the age of 16, the Armed

Forces Minister said: The Government has since confirmed to Parliament that it will continue to retain the UK’s There are no plans to phase out the recruitment of interpretative declaration, allowing under-18s to under-18s into the Armed Forces. If the Armed Forces take part in direct hostilities under certain were required to raise the minimum age of entry, it prescribed circumstances: would create serious manning problems…it is

probable that should the minimum entry age be The Government remain committed to meeting raised, good quality school leavers would settle into their obligations under the protocol and there are other careers and thus be lost to the service.531 no plans to change the interpretative 527 declaration. The Ministry of Defence has resisted calls from

NGOs to conduct a feasibility study to consider The Armed Forces Minister stated in October phasing out the recruitment of under-18s; as such 2009 in response to a parliamentary question on there is no substantive evidence to justify the the interpretative declaration: ‘The MOD believes that its policies on under-18s are robust and Government’s claims that raising the entry age compliant with national and international law. We would have a detrimental impact on recruitment. remain fully committed to meeting our obligations The raising of the school leaving age is unlikely to under the UNCRC…’.528 affect the recruitment of under-18s as the Armed Forces are designated as a training provider. Recruitment into the Armed Forces The Government has emphasised that ‘no applicant Review its position on recruitment into the under 18 years of age may join the Armed Forces Armed Forces unless the application is accompanied by the formal written consent of his or her parent or guardian…’532, Raise the minimum age for recruitment into and that ‘comprehensive written and verbal the Armed Forces to 18 years in order to guidance’ is given to all potential recruits and their promote the protection of children through an parents covering their ‘…terms and conditions of overall higher legal standard service, the commitments that they would be undertaking, and their rights to discharge’.

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A recent Ofsted report into the quality of welfare young people, to provide positive information to and duty of care for recruits and trainees found influence future opinion formers and to enable that although most recruits received ‘at least recruiters’ access to the school environment.536 satisfactory information and guidance from recruiting staff’, a significant number did not. In the report, the Government indicates that ‘Service Problems included the quality of advice and Presentation Teams attendance in schools’ and youth information given to potential recruits, and clubs are part of the Armed Forces recruitment instances of steering applicants towards initiatives and that ‘experience indicates that single inappropriate trade choices. Ofsted found that: Service visits produce the best recruiting results.’537 The Government and the Defence Select Committee …recruit and trainee dropout data from Army have both noted that cadet forces are part of the training establishments indicate that the number of Department for Children, Schools and Families’ recruits arriving for training who are too immature youth programme rather than the Ministry of or physically unsuited to service life is rising…[and Defence’s recruitment programme. While CRAE that] some recruits to the infantry arrive with recognises that there are two distinct activities serious, unresolved, personal or psychological carried out in schools by the Armed Forces – issues.533 outreach work and recruitment – we feel it is disingenuous to insist that the two have no relation While the Government continues to recruit under- to one another, particularly with the announcement 18s to the Armed Forces, it must ensure that an in July 2009 that the Royal Navy is to become a co- independent adult has explained the risks of sponsor of a new Academy in Dorset.538 enlistment to potential recruits at the earliest possible opportunity. The Government should With regard to the recruitment of individuals from also do more to ensure that all potential recruits low income families and ethnic minorities, the fully understand the conditions of service before Government has stated that no recruitment policies they enlist. This is particularly important in light or targets are in place for those from low income of the current economic climate and the likely link families, although there are such targets in place for to higher enlistment figures (noted in The Times in the recruitment of black and minority ethnic May): personnel: ‘In partnership with the Equality and Human Rights Commission, we have set a target of …the Army is nearing full strength for the first time eight per cent [ethnic minority] representation by in a generation as the recession is prompting 2013’.539 thousands of young people to sign up. Recruitment rose by 14 per cent in the six months to March 31 Review the requirements for, and expand the compared with a year earlier. It is expected to exercise of, the “Discharge as of Right” for child reach full strength in 2011 after years in which it recruits struggled to win recruits.534 Give all persons who were still below 18 on 1 Concerns have also been raised by NGOs about the January 2008 the right to convert their recruitment methods of the Armed Forces, and the minimum term of service to four years from the targeting of children and young people for first day of duty recruitment through outreach work and the expansion of cadet forces in schools. Although the There has been no progress in expanding the Government has explicitly stated, both in Discharge as of Right for those recruited to the Parliament and to the UN Committee on the Rights Armed Forces as children. At present, 16 and 17 of the Child, that the Armed Forces ‘do not go into year-olds who have completed 28 days of service schools to recruit’535, its response to a report by may access a Discharge as of Right during their first the Defence Select Committee on the recruitment six months of service; any requests to leave the of Armed Forces personnel appears to show Armed Forces after that time are dealt with at the otherwise: discretion of the commanding officer. However, there have been longstanding concerns that this The Armed Forces’ work in schools is designed to lack of a legal right after the first six months of encourage good citizenship, raise awareness of the service could lead to bullying and intimidation. In Ministry of Defence and the Armed Forces among 111 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

fact, in a submission to the Joint Committee on Refugee, asylum-seeking and migrant children Human Rights children’s rights inquiry in 2009, and young people the Quakers noted that ‘present regulations regarding recruitment appear to subordinate the Strengthen measures to identify and interests of the child to military effectiveness’.540 systematically collect data on refugee, asylum- The Government must without delay widen the seeking and migrant children within its Discharge as of Right so that all serving personnel jurisdiction who may have been recruited or who enlisted as children and have served for more used in hostilities than six months continue to have an open-ended Ensure that these children receive appropriate Discharge as of Right with a 28 day notice period. care and treatment, including multidisciplinary This should apply to all personnel retrospectively assistance for their physical and psychological and would ensure that provisions within the recovery and their social reintegration Armed Forces adequately protect the best interests of children and young people. Ensure that the best interests of the child is a primary consideration when processing asylum In its concluding observations, the UN Committee requests from or on behalf of these children, in welcomed the lifting of the rule requiring under- particular in decisions concerning their 18s to serve for a minimum of four years from repatriation their 18th birthday. However, it transpired that the lifting of this rule was a result of administrative Take note of the Committee’s General Comment error, and the rule had in fact been reintroduced 6, in particular paragraphs 54 to 60 on the under the Army Terms of Service (Amendments treatment of unaccompanied and separated 541 etc) Regulations 2008. Its reintroduction in children outside their country of origin August 2008 means that while over-18s commit to a minimum term of service of four years, those Refugee, asylum-seeking and migrant children and joining the Army at 16 must commit to a minimum young people who may have been recruited or used term of service of six years. This is a in hostilities remain, to some degree, an unknown discriminatory provision resulting in different group. Data is not systematically collected on the (and more onerous) obligations being applied to number of refugee and asylum-seeking children 16 and 17 year-olds. Neil Gerrard MP, in an who may have been recruited or used in hostilities, intervention in a debate on Armed Forces and the UK Border Agency (UKBA) Code of Practice personnel earlier this year, wondered ‘…how this for keeping children safe from harm, which governs will sit with our debates on the Equality Bill.’542 The how children and young people who come into Government confirmed in July 2009 that the Army contact with UKBA staff should be treated, does not ‘has no plans to enable soldiers who were recruited make any specific references to this group of under the age of 18…to convert their minimum children and young people.544 term of service to four years from their first day of duty’.543 The Royal Navy and the Royal Air Force Dedicated support services are in place at a local no longer have different minimum service level for refugee and asylum-seeking children and requirements for under- and over-18s; there is no young people, and at a national level through the good reason for the Army to continue to retain Refugee Council Children’s Panel, while this discriminatory practice. unaccompanied minors have access to universal and targeted support through children’s social Develop and implement training programmes services. However, government-funded services and campaigns to promote the values of peace dedicated to identifying and supporting war- and respect for human rights, and include the affected children and young people are rarely part subject of peace education and human rights of local provision, and there is no consistent as a fundamental subject in the education approach to providing services for these children system other than on a case-by-case basis. The lack of consistent reliable data remains a significant For details on human rights and peace education, barrier to improving the situation. see the chapter on Education, Leisure and Cultural Activities. 112 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

Guidance for UKBA staff notes that Ensure that children in conflict with the law, unaccompanied children should ‘not normally be irrespective of its military or civil nature, are considered for removal unless there is evidence that always dealt with within the juvenile justice satisfactory reception arrangements are in system and are treated in accordance with the place…’.545 However, there is no information standards enshrined in the UNCRC publicly available about the policies and procedures in place to ensure that children and On joining the Armed Forces, under-18s become young people are, in fact, returning to a safe and subject to the military justice system. Any crimes supportive environment. Taking advantage of the committed by them are thus dealt with through opportunity provided by the introduction of a military courts rather than through the juvenile welfare duty on UKBA staff (through the Borders, justice system. Three under-18s were court- Citizenship and Immigration Act 2009), the martialled in 2008, yet there is still no separate Government should revise existing guidance to system for trying under-18s in the Armed Forces.548 reflect the UN Committee’s recommendation in its Under-18s continue to be detained with adults at General Comment on the treatment of the Military Corrective and Training Centre in unaccompanied and separated children, that: Colchester.549

…under-age recruitment…and direct or indirect A recent inspection by HM Chief Inspector of participation in hostilities constitutes a serious Prisons of the Military Corrective and Training human rights violation and thereby persecution, Centre found that ‘…a comprehensive child and should lead to the granting of refugee status protection and safeguarding policy [was] in place where the well-founded fear of such recruitment or which had been agreed with the local social care participation in hostilities is based on reasons of children’s services’, the child protection co-ordinator race, religion, nationality, membership of a was part of the Local Safeguarding Children Board, particular social group or political opinion.546 staff all had Criminal Records Bureau (CRB) checks, and that the level of staff training was very good.550 The Government must ensure that children Inspectors also felt that there was ‘an appropriate and young people affected by conflict are system of care planning…for children’ in place. treated as a discrete group with particular However, despite substantial improvements in the needs when providing local services to safeguarding and welfare arrangements for refugee, asylum-seeking and migrant children, children detained at the centre, inspectors noted taking on the recommendations from the UN that few detainees had regular family visits as most Committee and the recent UNICEF study on families lived more than 100 miles from the centre, children and armed conflict.547 and access to telephone calls was unacceptably limited.551 For more detail about the support services available to refugee and asylum-seeking children While CRAE welcomes the finding from inspectors and young people in England, see the Special that ‘the number of children sent to the centre had Protection Measures chapter of this report. reduced following a service directive that they should only be sent as a last resort and for sentences over six Treatment of under-18s in the Armed Forces days…’ (with children being given shorter sentences The Committee encourages that the use and to be served in their own units), detaining children 552 handling of firearms is abolished for all alongside adults in this facility is inappropriate. children in line with the spirit of the Optional This practice must cease as a matter of urgency. Protocol Children in the Armed Forces should have the same safeguards as other children living away from No action has been taken to address this home, including independent investigation of recommendation. 16 and 17 year-olds in the complaints and allegations of abuse, the right to Armed Force have the same responsibilities as all regular telephone contact and family visits, and other serving personnel with regard to the use access to confidential helplines. Action must be and handling of firearms. taken to ensure the military justice system fully complies with international human rights standards protecting children and young 113 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

people, and the principles of the juvenile including determining their levels of access to justice system. pastoral support and independent advocacy, and take action immediately to ensure that all Armed Other welfare concerns Forces personnel who have contact with under-18s In May 2009, the Ministry of Defence published are appropriately checked and trained. the reports of the inquiries into the circumstances surrounding the deaths of 17 year-old Privates Geoff Gray and James Collinson at Deepcut Barracks in 2001 and 2002.553 The inquiries found that the Army failed to provide appropriate care and supervision to trainees, thus highlighting the importance of retaining the emphasis on safeguarding the welfare and best interests of 16 and 17 year-olds in the Armed Forces. In the following month, Ofsted published its aforementioned review of the quality of welfare and duty of care for recruits and trainees, commissioned by the Ministry of Defence and based on visits to 12 training establishments.554 Encouragingly, in the light of findings from the Deepcut inquiries, Ofsted found that 10 of the 12 establishments inspected had good, and two satisfactory, arrangements in place for the ‘core elements of welfare and duty of care during training’, and that ‘over the past four years the arrangements for the support and care of recruits in initial military training have improved progressively’.

However, progress in improvement had slowed, and the following concerns were highlighted:

 The Army’s progress in ensuring all relevant staff have CRB checks is too slow – ‘in establishments training solely recruits under- 18, only about one-third of staff have had CRB checks completed’  Although the recording and managing of complaints had improved, few recruits made formal complaints, and many were ‘wary of some form of recrimination’ if they did  Too many applicants are being recruited to the Army who are ‘physically unsuited, psychologically immature and ill-prepared for Army service’  Data at a strategic level are ‘insufficient to provide a complete overview of the effectiveness of welfare and duty of care arrangements’.555

Building on the inspection by Ofsted, the Ministry of Defence must now undertake a comprehensive review of the welfare and safeguarding arrangements in place specifically for under-18s in the Armed Forces, 114 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

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The use of restraint in Investigating the human rights concerns of children and young people secure training centres; Committee on the Rights of the Child (2008). in England Concluding observations: United Kingdom of Great Britain and 242 Children’s Rights Director for England (2006). About Social Northern Ireland (CRC/C/GBR/CO/4); Council of Europe Workers: a children’s views report; (2009) Life in Children’s Homes Commissioner for Human Rights (2008). Memorandum – Issue 243 The Children's Homes Regulations 2001 No. 3967 reviewed: Rights of the child with a focus on juvenile justice 244 Paragraph 4 of the Children (Private Arrangements for Fostering) 212 R (AC) v Secretary of State for Justice [2008] EWCA Civ 882 Regulations 2005 213 Social Services Inspectorate (1993). A Place Apart: An investigation 245 Ofsted (2008). 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252 Children, Schools and Families Committee (2009). Looked-after 281 Department for Children, Schools and Families and Department of Children: Government Response to the Committee’s Third Report of Health (2009). Aiming High for Disabled Children: Best practice to Session 2008–09 common practice 253 Children’s Rights Alliance for England (2008). What do they know? 282 Disability Discrimination (Public Authorities) (Statutory Duties) Investigating the human rights concerns of children and young people Regulations 2005, Regulation 2(6) in England 283 Mencap (2008). Just not a priority: schools and disability equality 254 Rainer (2007) Home Alone. Housing and support for young people 284 Department for Children, Schools and Families (2008). Secretary leaving care of State report on progress towards disability equality across the 255 A National Voice (2005) No place like home. Housing for care children’s and education sector leavers report 285 Department for Children, Schools and Families (2009). 256 Children’s Rights Alliance for England (2008). What do they know? Safeguarding disabled children: Practice guidance Investigating the human rights concerns of children and young people 286 http://www.childrenssociety.org.uk/disabilitytoolkit/index.aspx in England 287 House of Lords written statement, 8 June 2009: Hansard Column 257 11 MILLION (March 2009) Children and young people’s views on 28WS safeguarding 288 House of Commons written statement 21 July 2009: Hansard 258 A National Voice (2006). Brothers and Sisters Column 133WS 259 Children’s Rights Alliance for England (2008). What do they know? 289 Joint Committee on Human Rights (2009). The UN Convention on Investigating the human rights concerns of children and young people the Rights of Persons with Disabilities First Report of Session 2008-09, in England page 14 260 Children’s Rights Alliance for England (2008). What do they know? 290 UN Enable website (Declarations and Reservations), accessed Investigating the human rights concerns of children and young people September 2009, http://www.un.org/disabilities/default.asp?id=475 in England 291 House of Commons Ministerial Statement, 13 May 2009: Hansard 261 Children’s Rights Director for England (2006) Placements, Column 57WS to 60WS Decisions and Reviews: A children’s views report 292 Joint Committee on Human Rights (2009). UN Convention on the 262 Department for Children, Schools and Families (2009). Staying Rights of Persons with Disabilities: Reservations and Interpretative Safe: Action Plan Declaration 263 Committee on the Rights of the Child (2008), Concluding 293 Joint Committee on Human Rights (2009). UN Convention on the observations: United Kingdom of Great Britain and Northern Ireland Rights of Persons with Disabilities: Reservations and Interpretative (CRC/C/GBR/CO/4) Declaration, paragraph 90 264 Committee on the Rights of the Child (2002). Concluding 294 Scope press release (17 April 2009). Government is denying observations: United Kingdom of Great Britain and Northern Ireland disabled people full human rights says leading campaign coalition (CRC/C/15/Add.118), paragraph 48e; Committee on the Rights of the 295 Centre for Studies on Inclusive Education press release (3 March Child (2008). Concluding observations: United Kingdom of Great 2009). Children’s rights denied Britain and Northern Ireland (CRC/GBR/CO/4), paragraph 67 296 Equality and Human Rights Commission (2009). Commission 265 The Guardian (17 June 2009). Agency staff being relied on to fill statement re: the Government's Explanatory Memorandum on UN shortages of qualified social workers, a new survey reveals Convention on the Rights of Persons with Disabilities 266 The Guardian (28 August 2009). Social worker shortage after Baby 297 Ibid P puts children at risk 298 Department of Health (2003).Tackling Health Inequalities: A 267 Committee on the Rights of the Child (2008), Concluding Programme for Action observations: United Kingdom of Great Britain and Northern Ireland 299 Department of Health (2003). Tackling Health Inequalities: 2005- (CRC/C/GBR/CO/4), paragraph 21 07 Policy and Data Update for the 2010 National Target 268 HM Government (2008). The right to choose: Multi-agency 300 Health Select Committee (2009). Health Inequalities statutory guidance for dealing with forced marriage 301 Health Select Committee (2009). Government's response to the 269 HM Government (2009). Multi-agency practice guidelines: House of Commons Health Select Committee Report on Health Handling cases of forced marriage Inequalities 270 NSPCC (2009). Measuring up 302 Department for Children, School and Families and Department of 271 Utting, William Sir (1997). Review of the Safeguards for Children Health (2009). Healthy lives, brighter futures: The strategy for children Living Away from Home and young people’s health 272 Home Office press release (13 May 2009). New health taskforce to 303 For further information see: spot signs of violence against women http://www.ucl.ac.uk/gheg/marmotreview 273 Barter C, McCarry M, Berridge D and Evans K (2009). Partner 304 Children’s Rights Alliance for England (2008). What do they know? exploitation and violence in teenage intimate relationships. NSPCC Investigating the human rights concerns of children and young people 274 The NHS Health and Social Care Information Centre (2008). Health in England Survey for England 2007 Latest Trends 305 Independent Expert Group (2008). Children and young people in 275 UK Centre for the Measurement of Government Activity and the mind: the final report of the National CAMHS Review Office for National Statistics (2009). Expenditure on Health Care in the 306 Department for Children, School and Families and Department of UK Health (2009). Response to Children and Young People in Mind: Final 276 HM Government (2005). Life Chances of Disabled People report of the National CAMHS Review 277 Department for Children, School and Families and Department of 307 Department for Children, School and Families (2009). Consultation Health (2009). Child Health Strategy Healthy lives, brighter futures on Promoting the Health and Well-being of Looked After Children - 278 Department for Children, School and Families (2009). NI54 revised statutory guidance disabled children’s services indicator – progress update; HM 308 11 MILLION and Royal College of Psychiatrists (2008). Draft Government (2007). The New Performance Framework for Local revised Mental Health Act 1983 Code of Practice: Comments on issues Authorities & Local Authority Partnerships: Single Set of National relevant to children and young people Indicators 309 Department of Health (2008). Mental Health Act 1983 Code of 279 Department for Children, Schools and Families (2008). Aiming Practice High for Disabled Children (AHDC): Core Offer 310 Section 118(2D), Mental Health Act 1983. See also: R(Munjaz) v 280 Department for Children, Schools and Families (2009). Local Mersey Care NHS Trust [2006] 2 AC 148 Authority Measure of Services to Disabled Children (National Indicator 311 National Institute for Mental Health in England (2009). The Legal 54): 2008-09 – Parental experience of services for disabled children Aspects of the Care and Treatment of Children and Young People with (Table 2) Mental Disorder: A Guide for Professionals 312 Mental Health Act 1983, Section 130A commenced on 1 April 2009

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313 National Institute for Mental Health in England (2008). 341 Children’s Rights Alliance for England (2008). What do they know? Independent Mental Health Advocacy: Guidance for Commissioners; Investigating the human rights concerns of children and young people Mental Health Act 1983 (Independent Mental Health Advocates) in England (England) Regulations 2008, regulations 6 and 7 342 Department for Work and Pensions (2009). Households Below 314 Mental Health Act 1983, section 131A (2) Average Income 1994/95-2007/08 315 National Mental Health Development Agency (2009). Working 343 Child Poverty Action Group press release (22 April 2009). Budget Together To Provide Age-Appropriate Environments And Services For gives poor children less than a pint of milk Mental Health Patients Aged Under 18 344 Hirsch D (2009). Ending child poverty in a changing economy. 316 House of Commons written statement, 15 July 2009: Hansard Joseph Rowntree Foundation Column 25WS 345 Brewer M, Browne J, Joyce R, Sutherland H (2009). Micro- 317 Ibid simulating child poverty in 2010 and 2020. Institute for Fiscal Studies 318 11 MILLION (2008). Making children’s mental health matter 346 End Child Poverty press release (12 June 2009). Welcome news for 319 The Bradley Report (2009). Lord Bradley’s review of people with 4 million children as Child Poverty Bill published today mental health problems or learning disabilities in the criminal justice 347 Child Poverty Action Group (2009). Child Poverty Bill Second system Reading debate briefing 320 Ministry of Justice (2009). Lord Bradley’s report on people with 348 Save the Children (2009). Child Poverty Bill Second Reading debate mental health problems or learning disabilities in the Criminal Justice briefing System: the Government’s response 349 Children’s Rights Alliance for England (2008). What do they know? 321 Communication to the Children’s Rights Alliance for England from Investigating the human rights concerns of children and young people Department of Health Offender Health Team (18 August 2009) in England 322 Healthcare Commission and Her Majesty’s Inspectorate of 350 Section 5(1), Mobile Homes Act 1985 as amended by Section 318, Probation (2009). Actions Speak Louder: A second review of Housing and Regeneration Act healthcare in the community for young people who offend 351 Department for Communities and Local Government (2009). 323 UNICEF and Terrence Higgins Trust (2009). Sexual Health, Rights Count of Gypsy and Traveller Caravans and Staying Safe 352 Advertising Standards Authority website, accessed August 2009, 324 Department for Children, Schools and Families and Department of http://www.asa.org.uk/asa/adjudications/Public/TF_ADJ_46648.ht Health (2009). Healthy lives, brighter futures: The strategy for children m and young people’s health 353 Equality Bill [as amended in Public Bill Committee], clause 17 325 Department of Health (2005). You’re Welcome Quality Criteria: 354 House of Commons debate on the Equality Bill, 11 May 2009: making health services young people friendly Hansard Column 638 326 External Steering Group (2008). Review of Sex and Relationship 355 Department for Children, Schools and Families and Department of Education (SRE) in Schools. Department for Children, Schools and Health (2009). Healthy Lives, Brighter Futures: the strategy for Families children and young people’s health 327 Department for Children, Schools and Families press release (23 356 Ibid October 2008). All Pupils To Get Healthy Lifestyle Lessons 357 Baby Milk Action website, accessed August 2009, 328 Brook press release (22 October 2008). Brook ‘delighted’ at http://www.babymilkaction.org/press/press9feb09.html statutory Sex and Relationships Education 358 Baby Friendly website, accessed August 2009, 329 Department for Children, Schools and Families (2008). http://www.babyfriendly.org.uk/htables/all_awards_list.asp Government response to the report by the Sex and Relationships 359 Department for Children, Schools and Families and Department of Education (SRE) Review Steering Group Health (2009). Healthy Lives, Brighter Futures: the strategy for 330 MacDonald A (2009). Independent review of making Personal, children and young people’s health Social, Health and Economic (PSHE) education statutory. Department 360 National Childbirth Trust press release (5 August 2008) for Children, Schools and Families Government invests £2 million to help breastfeeding 331 Qualifications and Curriculum Development Agency (2009). 361 Children’s Rights Alliance for England (2008). What do they know? Curriculum reform consultation Investigating the human rights concerns of children and young people 332 Figures based on an annual national survey of 7,798 children in in England 264 schools throughout England among secondary school students 362 Sir Jim Rose (2009). Independent Review of the Primary aged 11 to 15 in the autumn term of 2008; Fuller E (ed) (2009). Curriculum: Final Report Smoking, drinking and drug use among young people in England in 363 Department for Children, School and Families (2008). GCSE and 2008. NHS Information Centre by the National Centre for Social equivalent results in England 2007-08 Research and the National Foundation for Educational Research 364 Department for Children, School and Families (2008). Attainment 333 Department for Children, Schools and Families (2009). Young by pupil characteristics in England 2007-08 People and Alcohol Guidance consultation; (2009) Young People and 365 The Guardian (7 May 2009). Child poverty reduction halted by Alcohol Guidance Summary of Responses. recession 334 National Treatment Agency for Substance Misuse (2009), Young 366 Department for Education and Skills (2007). Care Matters: Time people’s specialist substance misuse treatment: Exploring the evidence for Change 335 National Treatment Agency for Substance Misuse (2009). Getting 367 The Guardian (22 May 2009). Nearly 3,000 school arson attacks in to grips with substance misuse among young people two years 336 DrugScope press release (22 January 2009). DrugScope responds 368 Beatbullying press release (4 August 2009). Beatbullying reveals to NTA figures on young people in treatment for substance misuse extent of ‘sexting’ amongst British teenagers 337 Advisory Group on Drug and Alcohol Education (2008). Drug 369 Children’s Rights Director for England (2009). Care and Prejudice Education: An Entitlement For All: A report to Government by the 370 Department for Children, Schools and Families (2008). Staying Advisory Group on Drug and Alcohol Education Safe: Guidance and Action Plan 2008 338 Department for Children, Schools and Families (2009). 371 Department for Children, School and Families (2009). Outdoor Government Response to the report by the Advisory Group on Drug and Play: A communication toolkit for local authorities. Alcohol Education 372 Department for Children, Schools and Families (2009). Permanent 339 Release (2009). Welfare Reform Bill: A Briefing Paper For Members and fixed period exclusions from primary, secondary and special Of The Lords schools and exclusions appeals in England during 2007-08 340 Joint Committee on Human Rights (2009). Legislative Scrutiny: 373 Governing Body of X Endowed Primary School v (1) Special Welfare Reform Bill; Apprenticeships, Skills, Children and Learning Bill; Educational Needs and Disability Tribunal (2) Mr and Mrs T and (3) Health Bill The National Autistic Society [2009] EWHC 1842 (Admin) 374 Department for Children, School and Families (2009). Consultation on giving children and young people a right to appeal 120 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

375 Cambridge Primary Review (2009). Towards a New Primary 410 The Children’s Society, Bail for Immigration Detainees and Diana Curriculum Princess of Wales Memorial Fund (2009). An evaluative report on the 376 Department for Children, School and Families (2008). 21st century Millbank Alternative to Detention Pilot schools: A world class education for every child 411 House of Commons written answer, 2 June 2009: Hansard Column 377 Welsh Assembly Government (2008). School-based Counselling 356W Services in Wales: A National Strategy 412 House of Commons written answer, 12 January 2009: Hansard 378 Department for Children, Schools and Families website, accessed Column 285W September 2009, 413 Home Office (2009). Control of immigration: quarterly statistical http://www.dcsf.gov.uk/exclusions/alternative_provision_policies/ summary, United Kingdom January – March 2009 379 Children’s Rights Alliance for England (2008). What do they know? 414 Home Office (2009). Control of immigration: quarterly statistical Investigating the human rights concerns of children and young people summary, United Kingdom April – June 2009 in England 415 UK Border Agency. Enforcement Instructions and Guidance, 380 House of Lords debate, 11 November 2008: Hansard Column 573 Chapter 53 381 Department for Children, School and Families (2009). Consultation 416 UK Border Agency. Enforcement Instructions and Guidance, on giving children and young people a right to appeal Chapter 26 382 11 MILLION (2009). The right to appeal: Children and young 417 House of Commons Ministerial statement, 9 December 2008: people’s views on extending the right to appeal permanent school Hansard Column 49WS exclusions and special educational needs decisions 418 UK Border Agency (2008). Code of Practice on keeping children 383 11 MILLION (2007). Bullying in Schools: A Review of the Current safe from harm Complaints System and Recommendations for Change; Department for 419 Ibid Children, School and Families (2008). A New Way of Handling 420 Refugee and Migrant Justice (2009). Does every child matter? Parents’ Complaints About School Issues; (2009). A New Way Of Children seeking asylum in Britain Handling Parents’ Complaints About School Issues: Consultation 421 Committee on the Rights of the Child (2008). Concluding Outcome Observations: United Kingdom of Great Britain and Northern Ireland 384 The Apprenticeships, Skills, Children and Learning Bill is currently (CRC/C/GBR/CO/4), paragraph 70 subject to Parliamentary approval 422 Joint Committee on Human Rights (2009). Legislative Scrutiny: 385 Department for Children, Schools and Families (2009). Your child, Borders, Citizenship and Immigration Bill your schools, our future: Building a 21st century schools system 423 Ibid 386 HM Government (2009). Draft Legislative Programme 424 Refugee Children’s Consortium (2009). Response to the Draft 387 Section 55, Education and Inspections Act 2006 Guidance on s55 of the Borders, Citizenship and Immigration Act 2009 388 Section 143, Education and Skills Act 2008 425 Department for Children, Schools and Families and UK Border 389 House of Lords debate, 30 October 2008: Hansard Column 1815 Agency (2009). Draft working document for statutory guidance under 390 Department for Children, Schools and Families and Department s57 of Borders, Citizenship and Immigration Bill for Culture, Media and Sport (2008). The Play Strategy 426 Immigration Law Practitioners Association (2009). Response to 391 Department for Children, Schools and Families press release (5 draft statutory guidance on section 55, Borders, Citizenship and August 2009). Children’s Minister: Over 300,000 more children have Immigration Act 2009 (children's welfare) access to improved play areas this summer 427 Ibid 392 Play England website, accessed September 2009, 428 Children, Schools and Families Committee (2009). Looked-after http://www.playengland.org.uk/Page.asp?originx_6956mp_1530695 Children: Third Report of Session 2008–09 2008119i26d_2009833156l 429 Children, Schools and Families Committee (2009). Looked-after 393 Children: Third Report of Session 2008–09 http://www.playengland.org.uk/Page.asp?originx_8328zf_84292089 430 Children, Schools and Families Committee (2009). Looked-after 56112z59k_2009734024e children: Government response to the Committee’s Third Report of 394 Action for Children’s Arts (2009). Report on Article 31 session 2008-09 395 Home Office (2009). Control of immigration: quarterly statistical 431 Houses of Parliament, Westminster House debate, 23 June 2009: summary, United Kingdom January – March 2009 Hansard Column 216WH 396 Home Office (2009). Control of immigration: quarterly statistical 432 Smart K (2009). The Second Destitution Tally: an indication of the summary, United Kingdom April – June 2009 extent and causes of asylum seekers, people at the end of the asylum 397 Ibid process and refugees in the UK. Refugee Council 398 The Guardian (31 August 2009). Ministers under fire for locking up 433 Home Office (2009). Control of immigration: quarterly statistical immigrant children summary, United Kingdom January – March 2009 399 Committee on the Rights of the Child (2008). Concluding 434 Home Office (2009). Control of immigration: quarterly statistical Observations: United Kingdom of Great Britain and Northern Ireland summary, United Kingdom April – June 2009. Supplementary excel (CRC/C/GBR/CO/4), paragraph 70 tables 400 11 MILLON (2009). The arrest and detention of children subject to 435 Committee on the Rights of the Child (2008). Concluding immigration control Observations: United Kingdom of Great Britain and Northern Ireland 401 Centre for Crime and Justice Studies (June 2009). Criminal Justice (CRC/C/GBR/CO/4), paragraph 71. Matters 436 UK Border Agency. Enforcement Instructions and Guidance, 402 House of Commons written answer, 12 October 2009: Hansard Chapter 26 Column 553W 437 Ibid 403 Bail for Immigration Detainees (2009). Out of sight, out of mind: 438 Refugee Council (July / August 2009). RCO News 45 experiences of immigration detention in the UK 439 The Guardian (1 June 2009). Charity loses funding to help child 404 The Children’s Society press release (18 June 2009). Statement on refugees wrongly classified as adults Protest at Yarl's Wood Immigration Detention Centre 440 Houses of Parliament, Westminster Hall debate, 23 June 2009: 405 House of Commons written answer, 29 June 2009: Hansard Hansard Column 204WH Column 68W 441 Border and Immigration Agency (2008). Better outcomes: the way 406 National Audit Office (2009). Management of Asylum Applications forward. Improving the care of unaccompanied asylum seeking by the UK Border Agency children 407 UK Border Agency website, accessed August 2009, 442 House of Lords written answer, 29 September 2008: Hansard http://ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/rep Column WA336 orts/alternative-to-detention/ 443 Children & Young People Now (12-18 March 2009). Home Office to 408 Tribal (2009). Review of the Alternative to Detention (A2D) Project back down on asylum age X-rays 409 Ibid 121 | STATE OF CHILDREN’S RIGHTS IN ENGLAND (2009)

444 R (A) v London Borough of Croydon and Secretary of State for the 476 The Law Commission (2006). Murder, manslaughter and Home Department; R (WK) v Secretary of State for the Home infanticide. Project 6 of the Ninth Programme of Law Reform: Department and Kent County Council [2009] EWHC 939 (Admin). Homicide Judgment delivered on 8 May 2009. 477 Section 34, Crime and Disorder Act 1998. 445 National Audit Office (2009) Management of Asylum Applications 478 R v JTB (Appellant) (on appeal from the Court of Appeal (Criminal by the UK Border Agency Division)) [2009] UKHL 20, judgment delivered on 29 April 2009 446 Committee on the Rights of the Child (2008). Concluding 479 Youth Justice Board (2009).Youth Justice Annual Workload Data Observations: United Kingdom of Great Britain and Northern Ireland 2007/08 (CRC/C/GBR/CO/4), paragraphs 75, 76 480 HM Inspectorate of Prisons (2009). Report on the pre-opening 447 Home Office and Scottish Executive (2007). UK Action Plan on inspection of HMYOI Hindley. In December 2008, the Youth Justice Tackling Human Trafficking Board and the National Offender Management Service announced 448 Department for Children, Schools and Families (2009). that, in order to focus better on the needs of their respective Safeguarding children and young people from sexual exploitation populations, Hindley and Lancaster Farms young offender 449 Home Office website, accessed August 2009, institutions would cease being split sites for young people under 18 http://police.homeoffice.gov.uk/operational-policing/safeguarding- and those aged 18 to 21. Instead, Lancaster Farms would become a vulnerable-persons/child-trafficking/ dedicated facility for those aged 18 to 21 and Hindley would be 450 Home Office Crime Reduction website, accessed August 2009, dedicated to those under 18. With an operational capacity of 440 http://www.crimereduction.homeoffice.gov.uk/humantrafficking00 young people, this makes Hindley the largest dedicated juvenile 5childassessment-090409.pdf facility in Europe. 451 Home Office and Scottish Government (2009). Update to the UK 481 Ministry of Justice (2008). Offender Management Caseload Action Plan on Tackling Human Trafficking Statistics 2007 452 Child Exploitation and Online Protection Centre (2009). Strategic 482 Youth Justice Board (2008). Monthly secure estate population Threat Assessment Child Trafficking in the UK summary 453 Ibid 483 Prison Reform Trust (2009). Bromley Briefings Prison Factfile 454 Ibid 484 Ministry of Justice (2008). Offender Management Caseload 455 Home Affairs Committee (2009). The trade in human beings: Statistics 2007 human trafficking in the UK 485 Barnardo’s (2009). Locking up, giving up: why custody thresholds 456 Borders, Citizenship and Immigration Act 2009 for teenagers aged 12, 13 and 14 need to be raised 457 Home Affairs Committee (2009). The trade in human beings: 486 Gibbs P and Hickson S (2009). Children: Innocent until proven human trafficking in the UK guilty – A report on the overuse of remand for children in England and 458 The Guardian (5 May 2009). Revealed: 77 trafficked Chinese Wales and how it can be addressed. Prison Reform Trust children lost by home 487 Sentencing Guidelines Council (2009). Overarching principles – 459 Children, Schools and Families Committee (2009). Looked-after Sentencing Youths Consultation Guideline Children Third Report of Session 2008–09 488 Justice Committee (2009). Draft Sentencing Guideline: overarching 460 Houses of Parliament, Westminster Hall debate, 23 June 2009: principles – sentencing youths. Tenth Report of Session 2008-09 Hansard Column 200WH 489 Standing Committee for Youth Justice (2009). Response to 461 Pearce J, Hynes P and Bovarnick S (2009). Breaking the wall of Sentencing Advisory Panel Consultation Paper on Principles of silence. Practitioners’ response to trafficked children and young people. Sentencing for Youths NSPCC 490 Farrington-Douglas J and Durante L (2009). Towards a Popular, 462 European Union Agency for Fundamental Rights (2009). Child Preventative Youth Justice System. Institute for Public Policy Research Trafficking in the European Union: Challenges, perspectives and good 491 Solomon E and Allen R (2009). Out of Trouble: Reducing child practices imprisonment in England and Wales – lessons from abroad. Prison 463 Home Office press release (17 December 2008). Government Reform Trust 492 ratifies European convention against human trafficking Standing Committee for Youth Justice (2009). The Funding of 464 Ibid Custody for Children: Devolving the Budget 493 Howard League for Penal Reform (2009). Analysis of the 465 Amnesty International UK press release (17 December 2008). Inspectorate of Prisons Reports on Young Offender Institutions holding Trafficking: Convention ratification welcomed but more protection children in custody needed 494 HM Inspector of Prisons (2009). Report on an announced 466 ECPAT UK (2009). Stolen Futures: Trafficking for forced child inspection of HMYOI Cookham Wood 2-9 February 2009 by HM Chief marriage in the UK Inspector of Prisons 467 HM Government (2009). Youth Crime Action Plan: One year on 495 HM Inspector of Prisons (2009). Report on an announced 468 Howard League for Penal Reform (2009). Analysis of the inspection of HMYOI Castington 19-23 January 2009 by HM Chief Inspectorate of Prisons Reports on Young Offender Institutions holding Inspector of Prisons children in custody 496 Children’s Rights Director for England (2009). Life in secure care 469 Scottish Government press release (1 March 2009). Criminal age 497 Youth Justice Board press release (26 March 2009). Future to be raised to 12 commissioning for YJB beds in England and Wales 470 European Social Charter European Committee of Social Rights 498 House of Commons written answer, 12 October 2009: Hansard (2005). Conclusions XVII-2. Volume 2, Chapter 18 Column 170W 471 Children & Young People Now (22 September 2009). Lib Dem 499 Children’s Rights Alliance for England (2009). Submission to conference: Under-14s should not be prosecuted parliamentary Joint Committee on Human Rights inquiry on children’s 472 UK Government (2008). Response to criticism by members of the rights Universal Periodic Review working group (A/HRC/8/25) 500 House of Commons written answer, 16 September 2009: Hansard 473 Criminal Justice Act 2003, section 142A(3)(a) – introduced by the Column 2250W Criminal Justice and Immigration Act 2008 501 Committee on the Rights of the Child (2008). Concluding 474 Cf. SC v UK, European Court of Human Rights, in which the right to observations: United Kingdom of Great Britain and Northern Ireland a fair trial of an 11 year-old boy with significant learning (CRC/C/GBR/CO/4), paragraphs 67b, 67c, 78e impairments was found to have been breached 502 Independent Police Complaints Commission press release (10 475 Standing Committee for Youth Justice (2009). Coroners and Justice September 2009). Managed investigation into stop and search Bill. House of Commons Committee Stage. Murder, homicide and complaint infanticide: Clause 39 – Persons suffering from diminished 503 Daily Mail (19 August 2009). Mother’s outrage after Met officers responsibility stop and search her nine-year-old son

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504 Independent Police Complaints Commission press release (10 536 Defence Committee (2008). Recruiting and retaining Armed Forces September 2009). Managed investigation into stop and search personnel: Government response to the Committee’s Fourteenth Report complaint of Session 2007-08, page 7 505 Metropolitan Police Authority (2009). Yearly statistics 537 Defence Committee (2008). Recruiting and retaining Armed Forces 506 Standing Committee for Youth Justice (2009). Policing and Crime personnel: Government response to the Committee’s Fourteenth Report Bill: House of Lords Committee Stage – Amendment to offence of of Session 2007-08 loitering etc for purposes of prostitution 538 Department for Children, Schools and Families press release (17 507 House of Lords written answer, 21 July 2009: Hansard Column July 2009). ‘Toddler to Graduate’ Academy to be part of Dorset’s WA316 Olympic legacy 508 Plotnikoff J and Woolfson R (2009). Measuring up? Evaluating 539 House of Commons written answer, 12 October 2009: Hansard implementation of Government commitments to young witnesses in Column 418W criminal proceedings. NSPCC 540 Religious Society of Friends [Quakers] (2009). Memorandum on 509 The defendant in this case was the boyfriend of Baby Peter the enlistment of under-18s in the Armed Forces Connolly’s mother. The mother was cleared of causing or allowing 541 The Army Terms of Service (Amendments etc) Regulations 2008 the abuse of the girl. Their names were changed during the court case came into force on 6 August 2008 to allow a fair trial. 542 House of Commons debate on Armed Forces Personnel, 29 510 The Observer (3 May 2009). NSPCC boss says more children should January 2009: Hansard Column 529 be trusted as abuse witnesses 543 House of Lords written answer, 20 July 2009: Hansard Column 511 NSPCC (2009). Briefing: Coroners and Justice Bill Second Reading WA268 512 App No. 60958/00, judgment final 10/11/2004, paragraph 29 544 UK Border Agency (2009). Code of Practice for Keeping Children 513 House of Commons Ministerial statement, 13 May 2009: Hansard Safe from Harm Column 57WS to 60WS 545 UK Border Agency. Enforcement Instructions and Guidance, 514 Joint Committee on Human Rights (2009). UN Convention on the Chapter 53 Rights of Persons with Disabilities: Reservations and Interpretative 546 Committee on the Rights of the Child (2005). General Comment 6: Declaration, paragraph 90 Treatment of unaccompanied and separated children outside their 515 House of Lords written answer, 2 February 2009: Hansard Column country of origin (CRC/GC/2005/6) 89W 547 UNICEF (2009). 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