DOING RIGHT BY CHILDREN Making a reality of children’s rights in the family and juvenile justice The Children’s Rights Alliance for England (CRAE) protects the human rights of children by lobbying government and others who hold power, by bringing or supporting test cases and by using national and international human rights mechanisms. We provide free legal information and advice, raise awareness of children’s human rights, and undertake research about children’s access to their rights. We mobilise others, including children and young people, to take action to promote and protect children’s human rights. Each year we publish a review of the state of children’s rights in England. Several CRAE staff worked on this project: Carolyne Willow, Catherine Hodder, Krishna Maroo, Carla Garnelas, Geoff Monaghan and Sue Marris. Carolyne Willow wrote this publication. ISBN 978-1-898961-28-4 Children’s Rights Alliance for England 94 White Lion Street London N1 9PF T: 020 7278 8222 E: [email protected] W: www.crae.org.uk June 2011 2 DOING RIGHT BY CHILDREN I believe we are at a significant point in relation to children’s rights and the value we place on children and young people in our society. John Dunford, Review of the Office of Children’s Commissioner, 20101 Everyone has been a child in their life; they should know how important it is to have rights. They can use rights as a shield to know what is good and what is wrong. Ethan Marriott, member of expert advisory group, 2011 ACKNOWLEDGEMENTS Many people and organisations helped in the It has been a great pleasure working with Denise development of this publication. Malcolm from Mouth that Roars, who has made a short film to accompany this publication. We are very grateful to everyone who submitted evidence showing why a rights-based approach to law, Finally, CRAE wishes to take this opportunity to policy and practice affecting children is so fundamental. thank the Esmée Fairbairn Foundation for financially supporting this work and to John Mulligan in particular Thank you to Children North East, the Howard League for being so encouraging from the start. for Penal Reform, Investing in Children and the National Youth Agency for allowing us to visit and learn Children’s Rights Alliance for England more about all the things you do to make a reality of June 2011 children’s rights, and the very positive impact this has on children and young people’s lives. We were extremely fortunate to have had an expert advisory group comprising many of the country’s most committed children’s rights advocates. Thank you for so generously giving your time and sharing your expertise. We are indebted to the children and young people who took part in our focus groups, and to their workers who brought us together. These conversations powerfully confirmed that children’s rights are vital. Our two roundtables, one on children’s rights in the family and the other on children’s rights and juvenile justice, proved invaluable in developing the ideas and proposals in this publication. Several people gave extensive advice on various drafts of this publication, though none are responsible for errors and omissions: Dr. Tim Bateman, Jenny Clifton, Professor Jane Fortin, Richard Garside, Professor Barry Goldson, Kiran Iqbal, Ethan Marriott, Geoff Monaghan, Peter Newell, Mary Riddell and Bryony Shuter. 4 DOING RIGHT BY CHILDREN CONTENTS PAGE 1. Executive summary 6 2. Terminology 7 3. Introduction 8 4. What are children’s rights? 11 5. Why do children’s rights matter? 16 6. Children’s rights and the family 28 7. Children’s rights and juvenile justice 41 8. Project methodology 64 9. Expert advisory group 66 10. Summary of the Convention on 68 the Rights of the Child 11. References 71 5 1. EXECUTIVE SUMMARY When the UK ratified the Convention on the Rights • Reformulates children’s needs as entitlements obligations on the state to support parents and of the Child in December 1991, it took on legal • Recognises and supports children’s agency, their family life, through a combination of universal and obligations under international law to make a reality of choices and solutions targeted measures. Doing right by children sets out these rights for all children. five fundamental principles underpinning the state’s • Demands accountability and transparency relationship with the family: We now have a coalition Government comprising the • Promotes wider respect for human rights. political party that ratified the Convention almost 20 1 Parents and family life are fundamental to children’s well-being and positive development years ago and another that, during the 2010 general Making sure children are visible and accorded proper election, made a historic pledge to make the treaty part respect and consideration as individuals within their 2 Parents play a unique and vital role in promoting of UK law. Against a shameful backdrop of continuing families is one of the central messages of Section 6. and protecting the rights of their children, rights violations, and extensive recommendations Children’s rights is a powerful antidote to the Victorian consistent with the child’s evolving capacities “seen and not heard” adage, both in how families from international and domestic human rights bodies, 3 The needs, rights and views of children must function behind closed doors and in public policy there is vast scope for transforming the lives of always be considered separately in family policy debates and decision-making. Making a reality of children through the full realisation of their rights. This and interventions children’s rights in the family demands that children publication aims to set out the parameters of what are always seen and respected as human beings with 4 In administrative and judicial proceedings, where a can be done and achieved in adopting a rights-based wishes, feelings and perspectives of their own. From child’s rights are in conflict with their parents’, the approach to the family and to juvenile justice. this standpoint, a law which allows parents and others child’s rights must always prevail Doing right by children does not aim to provide acting in loco parentis to hit children is intolerable. The 5 A child deprived of family life is especially vulnerable blueprints for law, policy and practice in either of these conception of children being the property of their parents and is entitled to special care and protection. contexts. Its aim is to examine the key implications lies at the root of this law and this is incompatible with Nobody seems content with current responses to and consequences – for law, policy and practice – of today’s acceptance that children are holders of rights, children who infringe the law. Human rights assessments adopting a rights-based approach to the family and to including the fundamental right to respect for their mental over the past 20 years have been scathing and would juvenile justice. Importantly, it sets out to communicate and physical integrity. Setting out parental responsibilities provide ample motivation for an administration keen the values and beliefs underpinning a children’s in law and reviewing inconsistencies in the child’s legal to make a reality of children’s rights for some of this status are two other natural consequences of adopting rights approach: there is much more to knowing the country’s most disadvantaged children. A children’s rights a rights-based approach, as is giving much more Convention than being aware it has 54 Articles. approach instantly makes these children “insiders” and prominence to the importance of positively supporting part of the mainstream; in doing so, it draws a close to Sections 3, 4 and 5 explore the meaning of children’s parent-child relationships, including when children or punitive treatment and deliberate cruelty. It injects clarity rights and why they matter, proposing six pre-eminent parents are held in custody. and inter-related strengths. A children’s rights approach: and intelligence into debates and decisions that are too A children’s rights approach to the family puts an end often distorted by emotions of panic, fear, aggression and • Elevates the importance of childhood to the patriarchal idea that ‘An Englishman’s home retribution. It is a remarkable irony that, in this country, we • Affirms children’s dignity and integrity is his castle’: the Convention places wide-ranging expect primary school children to take full responsibility 6 DOING RIGHT BY CHILDREN 2. TERMINOLOGY for their actions, to fully understand society’s moral and 8. Detaining children in child-centred secure facilities This publication uses the definition of a child in legal codes and to resist urges and forces contributing can only be justified by immediate and serious the Convention on the Rights of the Child – a to them infringing the law, when we have had decades of risk to public safety: the use of penal custody is person aged 17 or under. well-educated fully grown up Ministers and senior officials absolutely rejected. We use “child” throughout the publication, presiding over penal policies they surely must know are 9. There are child-specific safeguards for children in including when referring to teenagers. We not fit for children. The injustice is stark and shameful. secure facilities. recognise that young people often find this term International human rights law and norms point to at 10. All those working with children are properly patronising. However, we wanted to consistently least 10 governing requirements for juvenile justice selected, trained, supervised and regulated for make the point that people aged 17 and below law, policy and practice: work with children. are protected by the Convention on the Rights of the Child.