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Incorporating children’s rights: the divergence in law and policy

  • Jane Williams
Abstract

The paper examines conceptual barriers to incorporation of children’s rights – understood in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child 1989 – in the law of England and Wales. It identifies traditions in law and policy on children and young people, and competing political imperatives which militate against effective implementation of children’s rights to protection and provision, but suggests that participative rights pose fewer problems. It argues that the scope for further judicial development is limited in the absence of substantial changes in the legislative framework. It then examines rights-based reasoning in administrative practice and considers the impact here of ideological differences between the UK Government and the Welsh Assembly Government. It considers the scope for differential implementation within the evolving devolution settlement, and the potential impact of such difference on child law and practice in the ‘single jurisdiction’ of England and Wales. It concludes by arguing for greater attention to executive as well as legislative and judicial functions, and to extra-judicial mechanisms, for promoting rights-based decision making.

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1. For example, UNCRC Articles were referred to independently or as aids to ECHR-compatible interpretation of domestic legislation, in Re S (Sexual Abuse Allegations: Local Authority Response) [2001] EWHC Admin 334, [2001] 2 FLR 776 (Arts 19 and 37); R (P) v Secretary of State for the Home Department [2001] EWHC Admin 357, [2001] 2 FLR 383 (Arts 3, 5, 9 and 18); Re L, V, M and H [2000] 2 FLR 334 (Art 9(3)); Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 (Art 12); Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571 (Art 24); Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 (Arts 3 and 14); Re C (HIV Test) [1999] 2 FLR 1004 (Arts 5, 6 and 24); R v Central Criminal Court, ex p S [1999] 1 FLR 480 (Arts 3 and 40); Re R (A Minor) (Contact) [1993] 2 FLR 762 (Art 9); Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 1011 (Art 12); R v Secretary of State for the Home Department, ex p Thompson and Venables [1997] 2 FLR 471 (Arts 3 and 40); R v Accrington Youth Court, ex p Flood [1998] 1 WLR 156 (Art 40 ); Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052 (Art 3); R (P, Q and QB) v Secretary of State for the Home Department and Others [2001] EWCA Civ 1151, [2001] 2 FLR 1122 (Arts 3, 9 and 18); R (Howard League for Penal Reform) v Secretary of State for the Home Department and Department of Health [2002] EWHC 2497 (Admin), [2003] 1 FLR 484 (Arts 3 and 37); R (Smith) v Secretary of State for Work and Pensions [2006] UKHL 35, [2006] 1 AC 159 (Art 27.4).

2. M Woolf ‘Coming of age? – The principle of “the best interests of the child” ’ [2003] EHRLR 205.

3. Woolf cites by way of example the Howard League case, above n 1, the prison babies decisions (P, Q and QB, above n 1, CD and AD v Secretary of State for the Home Department (unreported) 16 January 2003 and Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 1 FLR 815.

4. Fortin, J Accommodating children’s rights in a post-Human Rights Act era’ (2006) 69 MLR 299 .

5. The phrase ‘safeguard and promote welfare’ is liberally used throughout the Children Act 2004 in connection with a range of statutory services, including those associated with child protection and support for children and families under the Children Act 1989: see, eg, Children Act 2004, ss 11, 14, 28 and 32.

6. Re S; Re W, above n 3, especially per Lord Nicholls of Birkenhead, at para [27].

7. The consultation paper, Building a Strategy for Children and Young People, Children and Young Person’s Unit, November 2001, contained a set of principles ‘developed to take into account the UN Convention on the Rights of the Child’ (para 2.3) and an associated framework for monitoring outcomes for children and young people. The subsequent Green Paper Every Child Matters Cm 5860, September 2003, developed the framework of outcomes, a version of which was eventually included in s 10 (2) of the Children Act 2004 as ‘aspects of well-being’: (a) physical and mental health; (b) protection from harm and neglect; (c) education, training and recreation; (d) the contribution made by children to society; and (e) social and economic well-being. The Children Act 2004 is focused on structural change and managerial controls aimed at promoting these aspects of well-being. Youth Matters Cm 6629, July 2005, continues this approach. Along the way, references to the UNCRC, or to any overarching principles governing the strategies, were dropped, and it became clear during the parliamentary passage of the Children Act 2004 that this represented a deliberate decision to avoid adopting the concept and language of children’s rights. For further discussion, see references at nn 68 and 83 below.

8. Plenary resolution 14 January 2004: see further below.

9. Section 25(2) repeats, in respect of children’s services in Wales, the s 10 (2) list of ‘aspects of well-being’.

10. Daintith, T and Page, A The Executive in the Constitution (Oxford: Oxford University Press, 1999).

11. For a critical, historical account, see Hendrick, H Child Welfare (Bristol: Policy Press, 2004).

12. The principal text remains the Children Act 1989, and for youth justice, the Crime and Disorder Act 1998.

13. For example James, A, Jenks, C and Prout, A Theorizing Childhood (Oxford: Polity Press, 1998); ; and .

14. See J Fionda, above n 13, ch. 1.

15. Above n 4.

16. For example Verhellen, E Convention on the Rights of the Child: Background, Motivation, Strategies, Main Themes (Belgium: Garant, 2000) and .

17. Quoted by Mary John in ‘The Right to be heard’ in John, M (ed) Children in Charge: The Child’s Rights to a Fair Hearing (London: Jessica Kingsley, 1996).

18. See, eg, Willow, C et al Young Children’s Citizenship: Ideas into Practice (York: Joseph Rowntree Foundation, 2004).

19. The ‘Crick Report’: Final Report of the Advisory Group on Citizenship: Education for Citizenship and the Teaching of Democracy in Schools (Qualifications and Curriculum Authority, 1998).

20. See, generally, [2004] 18 Children and Society, special issue on children, young people and participation; V Morrow ‘Social capital, community involvement and community in England: a space for children and young people?’ and M Wyness ‘Regulating participation: the possibilities and limits of children and young people’s councils’, both in A Invernizzi and B Milne ‘Children’s citizenship: an emergent discourse on the rights of the child?’ [2005] Journal of Social Sciences (Special Issue No 9).

21. The fixing of age limits and thresholds does not necessarily follow scientific evidence about developmental capacity but may simply reflect a desired outcome, such as the suppression of ‘delinquency’, avoidance of adverse socio-economic outcomes or protection of the young from exploitation.

22. Children Act 1989, s 41 and see Fortin, J Children’s Rights and the Developing Law (London: Butterworths, 2nd edn, 2003) ch 7.

23. See Mabon v Mabon, above n 1, per Thorpe LJ and s 122(1)(b) of the Adoption and Children Act 2002, which allows court rules to be made to provide for children to be separately represented in all private law cases under s 8 of the Children Act 1989. In September 2006, the Department for Constitutional Affairs published a consultation paper, Separate Representation of Children (CP/20/06) on proposals for rules under this provision.

24. A James, A James and S McNamee ‘Turn down the volume? – not hearing the children in family proceedings’[2004] CFLQ 189; Masson, J and Winn Oakley, M Out of Hearing (Chichester: Wiley, 1999). A study by Cardiff University for the Department for Constitutional Affairs suggests that the courts and professionals view separate representation for the child as a means of ensuring a voice for the child, rather than that the voice of the child be heard in family proceedings: .

25. Practice Direction (Representation of Children in Family Proceedings) 1 April 2004 and CAFCASS Practice Note, 6 April 2004.

26. Relatively old, but graphic examples, are Waite J’s remark in Re C (A Minor) (Care: Childs Wishes) [1993] 1 FLR 832, in connection with a 13-year-old girl subject to a care application, who vehemently resisted separation from her father: ‘Listening to lawyers debating one’s future was not an experience that should in normal circumstances be wished on any child’; and Johnson J’s resistance, on welfare grounds, to a 15 year old making an application against her parents in Re C (A minor) (Leave to Seek Section 8 Orders) [1994] 1 FLR 26.

27. Marshall, TH Citizenship and Social Class and Other Essays (Cambridge: Cambridge University Press, 1950).

28. Jones, G and Wallace, C Youth, Family and Citizenship (Buckingham: Open University Press, 1992) and see further ch 13.

29. For example, the provisions of Pt III of the Children Act 1989 which deal with support for children in need and their families.

30. See cases cited in E Palmer ‘Courts, resources and the HRA: reading section 17 of the Children Act 1989 compatibly with Art 8 ECHR’ [2003] 3 EHRLR 308, where the author discusses the potential for, and also the limits of, judicial interpretation of positive rights under the ECHR in relation to local authority support for children and families in England and Wales.

31. G Van Bueren ‘Including the excluded: the case for an economic, social and cultural Human Rights Act’[2002] Public Law 456, who cites as examples South Africa, Guyana, Venezuela and Finland. Further European examples include Italy, Spain, the Nordic States and Greece; see Ewing, K Social rights and constitutional law’ (1999) Public Law 104 and .

32. Above n 31.

33. Botta v Italy (1998) 26 EHRR 241, and see the discussion about the implications of the judgment for children’s cases by Munby J in ‘Making sure the child is heard: part I’ [2004] Fam Law 338 at 340–341.

34. See the discussion of negative and positive rights in the European Court of Human Rights jurisprudence in Palmer, above n 30, at 317 et seq.

35. R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2005] 2 FLR 1249. See case commentary by N Wikeley [2006] CFLQ 287.

36. See the dissenting opinion of Baroness Hale of Richmone in R (Kehoe), above n 35. She was alone in focusing on the effect of the Child Support Act 1991 on the right of the child to maintenance rather than the right of the mother to enforce the obligation. Article 27.4 of the UNCRC requires state parties to take ‘all appropriate measures’ to secure the recovery of maintenance for children from their parents. This was not referred to in Kehoe, but in Smith v Secretary of State for Work and Pensions, above n 1, the Baroness, this time in a majority of 3:2, stated that Art 27.4 of the UNCRC could properly be referred to in determining the effect of the state’s positive obligation under Art 8 of the ECHR, thereby impacting on the court’s interpretation of the domestic scheme for calculation of child support. A further children’s rights-based line of reasoning was begun by Elias J in R (J) v Enfield London Borough Council [2002] EWHC 432 (Admin), [2002] 2 FLR 1 (suggesting that the positive obligation under Art 8 of the ECHR, read together with the power to promote well being in s 2 of the Local Government Act 2000, could generate a duty owed by a local authority to provide specific support to a child). This was expressly approved by the Court of Appeal in R (W) v Lambeth London Borough Council [2002] EWCA Civ 613, [2002] 2 FLR 32, and seems capable of further development.

37. Henricson, C and Bainham, A The Child and Family Policy Divide: Tensions, Convergence and Rights (York: Joseph Rowntree Foundation, 2005).

38. For example, Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300; Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 328 (Fam), [2003] 2 FLR 42 and Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730.

39. The history is set out in pt 1 of O’Halloran, K The Welfare of the Child: The Principle and the Law (Aldershot: Ashgate, 1999). See also .

40. For example, see the remarks of Butler Sloss and Thorpe LJJ in Payne v Payne, above n 1, Lord Nicholls of Birkenhead in Re B (A Child) (Adoption by One Natural Parent) [2002] 1 All ER 641 and Wall J in Re F (Care: Termination of Contact) [2000] 2 FLR 451.

41. R Mnookin ‘Child custody adjudication: judicial functions in the face of indeterminacy’ [1975] Law and Contemporary Problems 236; J Eekelaar ‘Beyond the welfare principle’ [2002] CFLQ 237, amongst others.

42. Adoption and Children Act 2002, s 1. Note, however, that adoption is the one area where the UNCRC demands paramountcy (see Art 21), a response to the range of adult-centred motivations that may influence adoption policy as well as adoption arrangements in individual cases. See the historical account of adoption law and policy in England and Wales in Bridge, C and Swindells, H Adoption: The Modern Law (Bristol: Jordans, 2003).

43. Concluding observations on the UK’s initial report, CRC/15/Add.34, 1995. The Committee’s concluding observations on the UK’s second periodic report were published in October 2002: CRC/15/Add.188, 2002.

44. J Spencer ‘The Sexual Offences Act 2003: (2) child and family offences’ [2004] Crim LR 347.

45. Ibid, at 354.

46. Spencer refers to French legislation and to the Scottish Law Commission’s draft Criminal Code for examples of a more measured approach.

47. [1998] EHRLR 82. The consultation, entitled Protecting Children, Supporting Parents: A Consultation Document on the Physical Punishment of Children, was undertaken by the Department of Health in 2000. See also Keating, H Protecting or punishing children: physical punishment, human rights and English law reform’ (2006) 26 Legal Studies 394 .

48. [2001] 2 FLR 431.

49. Notably the NSPCC’s Children Are Unbeatable campaign.

50. CRC/15/188, above n 43, para 37. Joint Committee on Human Rights, Nineteenth Report of Session 2003–04. In view of the discussion below about divergence between England and Wales, it is apt to note the Welsh Assembly’s opposition to the retention of the defence. Abolition in Wales remains, for the time being, beyond the scope of devolved legislative powers. The Assembly’s position was presented on the grounds that the inequality in protection of children under the criminal law could not be justified, whilst also endorsing the position of the UN Committee, based on the dignity of the child and the requirement to promote positive and non-violent approaches to discipline.

51. Crime and Disorder Act 1998, Anti-social Behaviour Act 2003, Criminal Justice Act 2003. S Macdonald ‘A suicidal woman, roaming pigs and a noisy trampolinist: refining the ASBO’s definition of “anti-social behaviour” ’ (2006) 69 MLR 183, traces the development of the policy from the Labour Party’s consultation paper A Quiet Life: Tough Action on Criminal Neighbours (1995) to the implementation of the legislation.

52. For example the individual support order for 10–18 year olds introduced by the Anti-Social Behaviour Act 2003.

53. Goldson, B (ed) The New Youth Justice (Dorset: Russell House Publishing, 2004); and note the (unsuccessful) legal challenge made by the Northern Ireland Commissioner for Children and Young People to the introduction of Anti-Social Behaviour Order (ASBO)legislation there: In the Matter of An Application for Judicial Review by the Northern Ireland Commissioner for Children and Young People of the Decisions Announced by the Minister of State for Criminal Justice, John Spellar on 10 May 2004[2004] NIQB 40.

54. Surugiu v Romania [2004] ECHR 158.

55. In challenges to various aspects of ASBOs, the appellate courts have demonstrated the need to balance competing rights and to measure the lawfulness of action against international human rights requirements. Most judgments have been in favour of the government’s position – see, eg, Clingham v Chelsea and Kensington LBC [2002] UKHL 39, [2003] 1 AC 787; Stanley, Marshall and Kelly v Metropolitan Police Commissioner and Others [2004] EWHC Admin 2229 and R(W) v Metropolitan Police Commissioner, London Borough of Richmond on Thames and Secretary of State for the Home Department [2006] EWCA Civ 458, [2006] 3 WLR 1098. It is unlikely, however, that the availability of sophisticated scrutiny by the appellate courts in the few cases that reach them will be enough to deflect further criticism of the legislation in the current UNCRC reporting round.

56. Adoption and Children Act 2002, ss 118 and 119.

57. Reported as Re W and B; Re W (Care Plan) [2001] EWCA Civ 757, [2001] 2 FLR 582.

58. Above n 42.

59. Breen, C The Standard of the Best Interests of the Child (The Hague: Kluwer Law International, 2002) introduces and develops the idea of the best interests of the child as a legal and social tradition which must compete with other traditions and counter-traditions impacting on decisions relating to children.

60. Lord Steyn ‘The new legal landscape’ [2000] EHRLR 549.

61. See CAFCASS practice note on cases referred by independent reviewing officers [2005] Fam Law 60.

62. Audit Commission Human Rights: Improving Public Service Delivery (London: TSO, 2003).

63. Home Office Putting Rights into Public Service (London: TSO, 1999) and .

64. As Baroness Hale of Richmond remarked, ‘In reality, the niceties and technicalities with which we have to be involved in the courts should be less important than the core values which underpin the whole Convention’: ‘What can the Human Rights Act 1998 do for my mental health?’ [2004] CFLQ 295 at 305.

65. Above n 33.

66. Butler, F Improving Public Services: Using a Human Rights Approach (London: Institute for Public Policy Research (IPPR), 2005). Another IPPR report by the same author considers the use of the HRA 1998 by voluntary organisations to advance the interests of their client groups: Human Rights: Who Needs Them? (London: IPPR, 2004).

67. Children’s Commissioner for Wales Regulations 2001, SI 2001/2787 (W237), reg 22. A similar link is made in the legislation establishing the Northern Ireland Commissioner for Children and Young People and the Scottish Commissioner for Children and Young People.

68. Children Act 2004, s 2(11). For a comparative discussion of the UK’s children’s commissioners and their connection to the UNCRC, see J Williams ‘Effective government structures for children? the UK’s four children’s commissioners’ [2005] CFLQ 37.

69. In fact, the difference between the ‘Wales only’ Acts and the England and Wales Acts is largely presentational. The ‘Wales only’ Children’s Commissioner for Wales Act 2001 operates by amendment to Pt IV of the Care Standards Act 2000, which was an ‘England and Wales’ Act. The Care Standards Act 2000, Children Act 2004 and Childcare Act 2006, all ‘England and Wales’ Acts, contain several parts providing only for England or only for Wales. The picture is similar in relation to education and health.

70. For example, in relation to social work, the General Social Care Council for England and the Care Council for Wales set up under the Care Standards Act 2000.

71. For England, there is the Commission for Social Care Inspection and for Wales, the Care Standards Inspectorate for Wales and the Social Services Inspectorate for Wales; see Health and Social Care (Community Health and Standards) Act 2003. The Local Government Act 1999 began a process of separation of responsibility for local government inspection and reviews generally, so that, eg, the English ‘best value’ regime has been replaced in Wales by the Wales Programme for Improvement. A separate audit office for Wales was established under the Public Audit (Wales) Act 2004 and a separate public service ombudsman under the Public Services Ombudsman (Wales) Act 2005.

72. Under the National Health Service Reform and Health Care Professions Act 2002 there are strategic health authorities and primary care trusts in England and in Wales, local health boards, which are coterminous with local authority areas. The Health (Wales) Act 2003 provided for the establishment of two further health bodies, the Wales Centre for Health and Health Professions Wales.

73. Government of Wales Act 2006, ss 72–75.

74. Ibid,, ss 77–79.

75. Plenary resolution of 14 January 2004, National Assembly for Wales, Official Record of Proceedings.

76. National Assembly for Wales Children and Young People, A Framework for Partnership (November 2000) ch 2 and National Assembly for Wales Framework Planning Guidance (July 2002) para 1.8.

77. Welsh Assembly Government Children and Young People: Rights to Action: Stronger Partnerships for Better Outcomes (2006).

78. National Assembly for Wales Extending Entitlement: Supporting Young People in Wales (2000).

79. The Assembly’s guidance under the Children Act 2004 provides for the exercise of discretion by local partners as to age-based partnerships and the integration of young people’s plans within the new statutory plans.

80. Section 114 of the Act requires, in relation to England, provision of services to ‘encourage, enable or assist effective participation of 13–19 year olds in education and training’. In relation to Wales, s 123 requires the provision of ‘youth support services’ for 11–25 year olds.

81. Connexions Strategy Document Connexions: The Best Start In Life for Every Young Person (London: DfEE, 2000).

82. For example the CAFCASS (England) consultation, Every Day Matters: New Directions for CAFCASS (June 2006). For the provenance of Every Child Matters, etc, see above n 7.

83. See Williams, above n 68, and J Williams ‘What matters is who works: why every child matters to New Labour. Commentary on the DfES Green Paper Every Child Matters’ [2004] Critical Social Policy 406.

84. Welsh Assembly Government Rights to Action, Framework for Partnership (July 2002).

85. Welsh Assembly Government (August 2004).

86. See, eg, the Key Elements of Effective Practice series of guidance documents published by the Youth Justice Board.

87. Welsh Assembly Government A Fair Future for Our Children: The Strategy of the Welsh Assembly Government for Tackling Child Poverty (February 2005).

88. Annual Report and Accounts of the Children’s Commissioner for Wales, 2001–2.

89. Annual Report and Accounts of the Children’s Commissioner for Wales, 2003–4.

90. M Sullivan ‘Wales, devolution and health policy: policy experimentation and differentiation to improve health [2004] Contemporary Wales 44. The First Minister’s quotation is from R Morgan Making Social Policy in Wales National Centre for Public Policy Annual Lecture (Swansea, 2002).

91. Sector Skills Council for Care and Development National Occupational Standards for Child Care at Post Qualifying Level (2005).

92. Section 25 of the Children Act 2005 requires every children’s services authority, every Local Health Board and every NHS Trust in Wales to appoint a lead official to oversee compliance with ss 25 and 26 (cooperation to improve well-being and children and young people’s plans).

93. Children Act 2004, s 18. In practice, the requirement entails substantially more reorganisation within English local authorities than s 25 entails for authorities in Wales.

94. Above n 77. The guidance is issued under ss 25(8), 26(5) and 27(4), dealing with local cooperation and leadership of change.

95. Paragraph 2.1.1

96. Paragraphs 9.8 and 9.21.

97. An amendment which would have had this effect was tabled in the House of Lords during the parliamentary passage of the Children Act 2004, but was withdrawn.

98. Above n 10.

99. Section 10.

100. See Williams, above n 68.

101. The British and Irish Network of Ombudsmen and Commissioners for Children (BINOCC).

102. The Children Act 2004 Commissioner is tied into the government process and only rarely handles individual cases. The Children’s Commissioner for Wales has more ‘teeth’, being independent of government and having powers to investigate, report and require action in individual cases. The Scottish and Northern Ireland Commissioners are clearly independent of government, the Scottish Commissioner has limited powers to deal with individual cases and the Northern Ireland Commissioner’s powers to deal with individual cases are broadly similar to those of the Children’s Commissioner for Wales. See Williams, above n 68.

103. Public Audit (Wales) Act 2004, s 41. Section 33 of the Audit Commission Act 1998 makes similar provision in relation to the Audit Commission and the bodies in respect of which it exercises functions.

104. Above n 62.

105. ACT Human Rights Act 2004, s 41. Thus, in conducting a review of a youth detention centre, the ‘benchmarks’ would be specific provisions of the UN International Covenant on Civil and Political Rights 1966 and UN rules and guidance relating to children in detention: Human Rights Audit of Quamby Youth Detention Centre (Canberra: ACT Human Rights Office, June 2005).

106. The Victoria Climbié Inquiry Cm 5730, 2003.

107. Paragraph 6.41

108. Family Justice Council Mapping an Inclusive Curriculum for Continuing Professional Development for Family Justice Professionals (2004).

109. L Woll ‘Reporting to the UN Committee on the Rights of the Child: a catalyst for domestic policy change’ [2000] International Journal of Children’s Rights 71. See also U Kilkelly and L Lundy ‘Children’s rights in action: using the UN Convention on the Rights of the Child as an auditing tool’ [2006] CFLQ 331.

110. Article 4 of the UNCRC puts the question clearly on the agenda, stating that state parties must undertake measures ‘to the maximum extent of their available resources’.

111. The Children’s Rights Alliance for England, the Scottish Children’s Rights Alliance, All Wales UNCRC Monitoring Group. In Northern Ireland the coordinating role is carried out by Save the Children.

112. Fortin, J Rights brought home for children’ (1999) 62 MLR 350 .

* Lecturer, School of Law, Swansea University. I am grateful to my colleague Professor Andrew Halpin for comments on earlier drafts of this paper and to the anonymous referees for their constructive comments. Any remaining errors remain, of course, my own.

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