LEGISLATIVE GAP ANALYSIS COMMISSIONER’S FOREWORD This report is the culmination of a year’s work – work that has required both a great deal of patience and expertise on the part of its authors. But their efforts have been worth it, because what we now have in these pages is a comprehensive, independent analysis of the extent to which Jersey legislation complies with the United Nations Convention on the Rights of the Child (UNCRC). For the first time, we have a clear understanding of where our laws meet the expectations of the United Nations Committee, and where they continue to fall short of them. However, this report should not be viewed as a document that seeks to attach fault or blame for any lack of compliance with the UNCRC. Instead, it should be seen as part of an ongoing collaboration between my office and the Government of Jersey, the intended outcome of which is to achieve genuine progress – as opposed to nominal, tick-box compliance – with both the letter and the spirit of the UNCRC. In order to do that effectively, though, we need to have an accurate map. This document provides that. It illuminates the areas of our statute which we can already chalk up as ‘wins’ in our journey along the continuum of compliance, and it also exposes those parts of the Island’s legislation that are most in need of attention. I am thinking, in particular, of aspects of the Children (Jersey) Law 2002, as well as other major pieces of legislation relating to education, healthcare, adoption, young offending, and many other areas. Thanks to the tireless work of Simon Hoffman and Sally Sellwood at Swansea University’s Observatory on Human Rights of Children, who have spent the past year sifting through hundreds of legal documents, we now have a reliable touchstone for our elected representatives to use when debating propositions. Or, to put it another way, we have an overview of the changes that will be required if the Government is to truly deliver on its commitment to Putting Children First. Now that we have such an overview, it is my recommendation that the Government revisits its transformation programme for children’s legislation, which was set at a time before any independent and thorough gap analysis had been undertaken. Reliable, detailed information is essential for good decision-making. The Council of Ministers were very clear on this point when they first asked me to deliver this piece 1 of work. And I am confident that, in the same spirit of informed decision-making, they will now want to act on the information that is set out here. From my point of view, I will simply say that I made three clear undertakings in 2018 when I took up my post as the Island’s first Children’s Commissioner. I said that I would: develop and embed a culture of children’s human rights in Jersey; form a strong, resilient and inspiring organisation which promotes and protects children’s human rights; make sure children’s human rights are at the centre of laws, policies and practice in Jersey. It is not only on the last of these strategic aims that this report is focussed, but on all three. Because for us to truly embed a culture of children’s human rights in the Island, we must reflect our commitment as signatories to the UNCRC in both our policy-making and our law-making. Of course, this cannot happen overnight. Compliance with the UNCRC is a continuum – it does not happen from one day to the next; it happens incrementally. But careful consideration of the articles of the UNCRC is something that we can incorporate right away into the services that we deliver and the policies that we debate. This is why I would like to see the introduction of a Child Rights Impact Assessment (CRIA) in the process of drafting and debating States propositions. The Government of Jersey has already begun piloting the use of a CRIA approach, and it makes sense for that to become a permanent fixture as we strive to address the findings of this report. This would not be a straitjacket for States Members, nor would be it a tactic for crowbarring in consideration of children’s rights where they are not thought to be relevant. It would merely be a way of ensuring that the UNCRC, which was formally extended to Jersey six years ago, becomes a natural and permanent part of our political and social consciences. Deborah McMillan Commissioner for Children and Young People, Jersey 2 LEGISLATIVE GAP ANALYSIS relating to STATES OF JERSEY FINAL REPORT Authored by: Simon Hoffman, Sally Sellwood Swansea University Submitted to the Office of the Children’s Commissioner for Jersey 26th August 2020 (updated 18th September 2020) (This report supersedes all previous versions) 3 CONTENT GLOSSARY AND ABBREVIATIONS .............................................................................. 6 STATES OF JERSEY LAW: SHORT FORM ................................................................... 7 BACKGROUND .............................................................................................................. 8 NOTE ON RECOMMENDATIONS .................................................................................. 8 NOTE ON PROGRESSIVE REALISATION .................................................................... 9 ONGOING DEVELOPMENTS ...................................................................................... 10 METHODOLOGY .......................................................................................................... 10 Developing an Analytical Compliance Framework ..................................................... 12 HOW THE REPORT IS SET OUT................................................................................. 14 DISABILTY, BASIC HEALTH AND WELFARE ............................................................. 16 Areas Covered ........................................................................................................... 16 Right to Life, Survival and Development (Article 6) ................................................... 17 Findings: Article 6 ...................................................................................................... 24 Childcare Services and Facilities (Article 18.3) .......................................................... 25 Findings: Article 18(3) ................................................................................................ 26 Disabled Children (Article 23) .................................................................................... 27 Findings: Article 23 .................................................................................................... 28 Health and Health Services (Article 24) ..................................................................... 28 Findings: Article 24 .................................................................................................... 33 Social Security and Standard of Living (Articles 26 and 27) ...................................... 33 Findings: Articles 26 and 27 ...................................................................................... 37 Protection from Harmful Substances (Article 33) ....................................................... 38 Collated Findings: Disability, Basic Health and Welfare ............................................ 38 EDUCATION, LEISURE AND CULTURAL ACTIVITIES ............................................... 41 Areas Covered ........................................................................................................... 41 Education (Article 28) ................................................................................................ 42 Findings: Article 28 .................................................................................................... 50 The Aims of Education (Article 29) ............................................................................ 51 Findings: Article 29 ................................................................................................... 55 Leisure and Cultural Activities (Article 31) ................................................................. 55 Findings: Article 31 ................................................................................................... 58 Collated Findings: Education, Leisure and Cultural Activities .................................... 58 FAMILY ENVIRONMENT AND ALTERNATIVE CARE ................................................. 60 Areas Covered ........................................................................................................... 60 Parental Responsibility and Guidance (Articles 5 and 18(1) and (2)) ........................ 61 Findings: Article 5 and 18(1) and (2) .......................................................................... 64 4 Separation From Parents (Article 9) .......................................................................... 64 Findings: Article 9 ..................................................................................................... 72 Family Reunification (Article 10) ................................................................................ 73 Findings: Article 10 ................................................................................................... 74 Illicit Transfer and Non-return of Children (Article 11) ................................................ 74 Children Deprived of Family Environment (Article 20) ............................................... 75 Findings: Article 20 .................................................................................................... 82