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Rights of Children in Domestic and International Law
The dominant statute governing the position of children in the UK is the Children Act 1989. This act sets out the fundamental premise of decisions taken in relation to children, which is the welfare principle. This provides that where decisions involving children are to be taken, the best interests of the children are the paramount consideration. The welfare principle has historically guided the development of children’s law in the UK, and is the most significant restriction on children’s autonomy and ability to exercise their rights independently. It is addressed in more detail below.
As the law has developed in the UK the wishes and feelings of children themselves have been increasingly recognised to be of significance. The recognition of children’s rights to participate in decision-making processes is increasingly central to legislative reform relating to children.
Further to the government’s ‘Every Child Matters’ agenda, The Children’s Act (CA) 2004 received royal assent in November 2004. The 2004 act codified ‘five outcomes’ for children, being their rights to:
The CA 2004 created a Children’s Commissioner, and imposed enforceable duties on local authorities and other relevant bodies such as the police, NHS health services etc to work together in the provision of children’s services.
Every Children’s Services Authority (local authority) is required to publish a Children and Young People’s Plan. This plan should show how the authority intends to enable children in their area to meet the five outcomes, and must be regularly reviewed.
The European Convention on Human Rights (ECHR) has been incorporated into UK law, and is relevant to the rights of children and young people in much the same way as it is to those of adults. In addition, where the ECHR rights of a competent child are infringed simply by reason of their being a child, the anti-discrimination provisions in Article 14 may be applicable.
International Law
The other significant convention with respect to children’s rights is the UN Convention on the Rights of the Child (UNCRC). The UNCRC has been ratified by all countries other than the US and Somalia, making it the most widely recognised international instrument in the world.
The UNCRC gives children a comprehensive set of economic, cultural, social and political rights. It also provides that children’s best interests are to be a primary consideration for policy and decision makers and that the evolving capacity of children must be factored into law and policy. Article 12 of the UNCRC requires that children’s views must be sought and given due weight in all matters affecting children.
Although the UK ratified the UNCRC in 1991, it has not been directly incorporated into UK law. This means that a child cannot rely directly on the provisions of UNCRC in court, although it will have some persuasive weight. Despite pressure to incorporate the UNCRC into UK law, the government has not done so.
The UK must report to the UNCRC supervisory body – the United Nations Committee on the Rights of the Child (the UN Committee) – every five years. The report should deal with the ways in which the signatory is giving effect to the UNCRC. The government is preparing the latest report, which is due in July 2007.
Following receipt of the report the UN Committee comments on the level of Government compliance with the UNCRC, making recommendations on the action to be taken by the UK in order to make la, policy and practice compliant with the UNCRC. The last report from the UN Committee was in October 2002, and was highly critical of a range of UK laws and practices. In 2006 the Children’s Rights Alliance noted that the UK had made significant progress in relation to only 12 of the 78 recommendations made.
Equality Act 2006
The Equality Act 2006 establishes a new Commission for Equality and Human Rights, which obliged to promote awareness, understanding and best practice in human rights. The UNCRC is not specifically referenced in the Equality Act, although the Minister gave an assurance during the Bill’s passage through Parliament that the ‘human rights’ referred to in the bill included those conferred by UNCRC.
While the elimination of discrimination against children was dropped as an Every Child Matters ‘outcome’, the Equality Act imposes an obligation on public bodies to encourage positive relations between communities. ‘Children’ are a specific community for this purpose, and this provision may have some application in relation to (eg) discriminatory media reporting against children and young people.
Office of the Children’s Commissioner
The general function of the Office of the Children’s Commissioner (OCC) is to promote the awareness of the views and the interests of children. The OCC is the only statutory body with a stated duty to have regard to the provisions of the UNCRC.
Concern has been expressed as the extent of the English Commissoner’s independence; he is accountable to the Secretary of State for Education, rather than to Parliament. Unlike the Commissioners for Wales, Scotland and Northern Ireland the English Commissioner is required to consult the Secretary of State before undertaking an inquiry.
The OCC cannot undertake casework on behalf of children or investigate individual cases. However, it can act as a referral body for cases which fall within the remit of the newly created Commission for Equality and Human Rights.
The OCC is in the process of establishing a scheme to conduct ‘child impact assessments’ on proposed UK legislation. The aim of these assessments will be to provide an analysis of likely effect of the legislation on the rights and interests of children and young people. The weight that Parliament will give such assessments remains to be seen.
As the law has developed in the UK the wishes and feelings of children themselves have been increasingly recognised to be of significance. The recognition of children’s rights to participate in decision-making processes is increasingly central to legislative reform relating to children.
Further to the government’s ‘Every Child Matters’ agenda, The Children’s Act (CA) 2004 received royal assent in November 2004. The 2004 act codified ‘five outcomes’ for children, being their rights to:
- Be healthy
- Stay safe
- Enjoy and achieve
- Make a positive contribution
- Achieve economic well-being
The CA 2004 created a Children’s Commissioner, and imposed enforceable duties on local authorities and other relevant bodies such as the police, NHS health services etc to work together in the provision of children’s services.
Every Children’s Services Authority (local authority) is required to publish a Children and Young People’s Plan. This plan should show how the authority intends to enable children in their area to meet the five outcomes, and must be regularly reviewed.
The European Convention on Human Rights (ECHR) has been incorporated into UK law, and is relevant to the rights of children and young people in much the same way as it is to those of adults. In addition, where the ECHR rights of a competent child are infringed simply by reason of their being a child, the anti-discrimination provisions in Article 14 may be applicable.
International Law
The other significant convention with respect to children’s rights is the UN Convention on the Rights of the Child (UNCRC). The UNCRC has been ratified by all countries other than the US and Somalia, making it the most widely recognised international instrument in the world.
The UNCRC gives children a comprehensive set of economic, cultural, social and political rights. It also provides that children’s best interests are to be a primary consideration for policy and decision makers and that the evolving capacity of children must be factored into law and policy. Article 12 of the UNCRC requires that children’s views must be sought and given due weight in all matters affecting children.
Although the UK ratified the UNCRC in 1991, it has not been directly incorporated into UK law. This means that a child cannot rely directly on the provisions of UNCRC in court, although it will have some persuasive weight. Despite pressure to incorporate the UNCRC into UK law, the government has not done so.
The UK must report to the UNCRC supervisory body – the United Nations Committee on the Rights of the Child (the UN Committee) – every five years. The report should deal with the ways in which the signatory is giving effect to the UNCRC. The government is preparing the latest report, which is due in July 2007.
Following receipt of the report the UN Committee comments on the level of Government compliance with the UNCRC, making recommendations on the action to be taken by the UK in order to make la, policy and practice compliant with the UNCRC. The last report from the UN Committee was in October 2002, and was highly critical of a range of UK laws and practices. In 2006 the Children’s Rights Alliance noted that the UK had made significant progress in relation to only 12 of the 78 recommendations made.
Equality Act 2006
The Equality Act 2006 establishes a new Commission for Equality and Human Rights, which obliged to promote awareness, understanding and best practice in human rights. The UNCRC is not specifically referenced in the Equality Act, although the Minister gave an assurance during the Bill’s passage through Parliament that the ‘human rights’ referred to in the bill included those conferred by UNCRC.
While the elimination of discrimination against children was dropped as an Every Child Matters ‘outcome’, the Equality Act imposes an obligation on public bodies to encourage positive relations between communities. ‘Children’ are a specific community for this purpose, and this provision may have some application in relation to (eg) discriminatory media reporting against children and young people.
Office of the Children’s Commissioner
The general function of the Office of the Children’s Commissioner (OCC) is to promote the awareness of the views and the interests of children. The OCC is the only statutory body with a stated duty to have regard to the provisions of the UNCRC.
Concern has been expressed as the extent of the English Commissoner’s independence; he is accountable to the Secretary of State for Education, rather than to Parliament. Unlike the Commissioners for Wales, Scotland and Northern Ireland the English Commissioner is required to consult the Secretary of State before undertaking an inquiry.
The OCC cannot undertake casework on behalf of children or investigate individual cases. However, it can act as a referral body for cases which fall within the remit of the newly created Commission for Equality and Human Rights.
The OCC is in the process of establishing a scheme to conduct ‘child impact assessments’ on proposed UK legislation. The aim of these assessments will be to provide an analysis of likely effect of the legislation on the rights and interests of children and young people. The weight that Parliament will give such assessments remains to be seen.
