Speaking up for children

Children: UK perspectives

The UN Convention on the Rights of the Child (“UNCRC”) came into force in the UK in 1991. Though a wide-ranging human rights instrument, it does not have the direct effect, or enforceability, of (say) the European Convention on Human Rights. Rather, enforcement is sought through a system of governmental reporting and UN responding.

States parties are obliged to submit every five years a report to the UN Committee on the Rights of the Child on how they are fulfilling their UNCRC obligations, and that committee has the power to make recommendations in its “Concluding Observations”. The committee’s concluding observations on the UK’s second report were published in 2002, and the next round of reporting and responding is currently in progress. The UK’s third and fourth report (combined at the request of an overstretched UN committee) was presented in July 2007.

On 9 June 2008 the UK Children’s Commissioners published their own joint report to the United Nations Committee on the Rights of the Child. The Commissioners’ joint report will be an invaluable, because independent, assessment. It also gives full recognition to the fact that there are four legal systems within the UK subject to the UNCRC, and it identifies the substantial social and legal differences between the four. This is a most useful counter to the UK Government’s frankly bizarre statement in its 2007 report that, while Scotland and Northern Ireland do have separate legal systems, “similar statute and common law principles are applied throughout the UK” (p 6).

It is unsurprising when a government presents an upbeat report on its own progress, but nor is it surprising that an independent body, like the joint Commissioners, paints a far less rosy picture. The Commissioners’ report will make uncomfortable reading for government at all levels in the UK, and indeed for everyone who has a concern for our children. The health, for example, of Scotland’s children is castigated as “appalling” (p 7). And the increased demonisation of young people by the media across the UK is singled out for special criticism (para 176).

The report is not limited to legal issues, and it covers social, administrative, political and economic matters. Space precludes an examination of these, and even of all the legal matters. But there are two areas, both with clear Scottish dimensions, that deserve particular attention here.

Juvenile justice

This is the field in which Scots law is most obviously different from the law in the rest of the United Kingdom. The Commissioners’ report makes plain that Scotland does better than England in the field of juvenile justice, for our children’s hearing system clearly focuses on the needs of children in trouble with the law and adopts a welfare approach in responding to that trouble. Instead of concentrating primarily on the troublesome behaviour itself, the Scottish system seeks to address the issues that led to that behaviour.

The result is, as the report confirms, that children under 16 are much less likely to be punished or locked up than in England, and the Commissioners “welcome the Scottish Government’s recently announced intention to end the detention in adult prisons of under-16s on remand” (para 33). There is, however, no room for complacency in Scotland, for “after that age, young persons are largely classed as adults for the purpose of criminal justice. Scotland locks up too many people aged 16 and 17” (p 7).

Even more worryingly, the welfare principle is constantly under attack and is, to put it at its lowest, compromised by new initiatives to deal with bad behaviour by young people, such as the antisocial behaviour order (ASBO). There is nothing, of course, in the Antisocial Behaviour etc (Scotland) Act 2004 limiting ASBOs to children, but the report points out that they have been used disproportionately on children (para 177). This reflects, or perhaps is the consequence of, what the report describes as “the consistently negative portrayal of young people in the media [where] 71% of media stories about young people are negative” (para 176).

Again, the position this side of the border is an improvement on the position in the south, in at least two respects: a breach of an ASBO cannot result in a custodial sentence for a child under 16, and details cannot be publicised in the press. The Commissioners’ conclusion, which needs to be strongly endorsed, is that “it is vital that the Scottish Government resists importing initiatives that threaten the best interests of the child and that shift the focus from the child’s needs and welfare” (para 173).

The conceptual difficulties with fitting ASBOs into the pre-existing Scottish system are well known. Whether ASBOs have made any difference at all in terms of good outcomes for either young people or society as a whole is not, for as the report points out: “There has been no proper evaluation of the effectiveness of ASBOs by the Government” (para 180). This is a defect urgently in need of remedy.

Non-discrimination and equal protection

Article 2 of the UNCRC requires that children be protected from all forms of discrimination, at least in respect of the rights provided for in the Convention. The present UK Government has extended protections from discrimination far beyond any previous government in this country, and it might have been expected that in this area at least there would be little criticism due. Quite the reverse. It is in respect of the UK’s record in tackling discrimination against children that some of the harshest, and most justified, criticisms are found in the Commissioners’ report. Such discrimination is endemic and institutionalised.

The UK Government had been criticised in 2002 for not sufficiently monitoring the extent to which children are exposed to discrimination. The Commissioners point out that “The UK Government and devolved administrations have made little or no progress” here (para 24), and they highlight in particular continuing concerns for children in gypsy and travelling families, and from ethnic minorities. Also of concern is the position of lesbian, gay, bisexual and transgender young persons: the disgraceful statistics are presented (para 25) that fully half of all teachers do not intervene when they hear homophobic language, and that 30% of lesbian and gay pupils say that adults – teachers and support staff – are responsible for homophobic incidents in their schools. No change from 1973, then.

Disability discrimination is particularly and disappointingly prevalent in educational provision. The report points out (para 129) that only 12% of mathematics textbooks and 8% of science textbooks used for GCSE are available in large print or braille, virtually ensuring that blind or partially sighted pupils cannot achieve their full educational potential. The health service is no better: the Commissioners point to “evidence of institutional discrimination in the NHS against people with a learning disability, leading to neglect and unequal healthcare” (para 84).

Another aspect of discrimination concerns corporal punishment. The rules have of course been amended by s 51 of the Criminal Justice (Scotland) Act 2003, but they still fall short of what is required by the Convention and children remain the only members of society who can be hit; as such they are “denied the equal protection of the law” (para 40). Following the 2003 Act the Scottish Government undertook to inform parents about positive parenting, but the Commissioners consider that the booklet produced, which provides information about the 2003 Act, falls short of the public education campaign recommended by the UN Committee in 2002.

Yet the UK Government continues to fail to get the message. It has announced welcome plans to extend age discrimination legislation to cover goods, facilities and services, but seems to think age discrimination is a problem only for the elderly: the protections they have in mind will apply only to those over the age of 18. However, as the Commissioners point out, shop signs like “no school children” or “only two children at a time” are now common, go largely unnoticed by adults, but impact seriously on children’s day-to-day activities. They conclude that “unfair treatment based on prejudices and negative stereotyping should be no more acceptable for children than for any other members of society” (para 31).

Underlying the whole report, indeed, is the Commissioners’ identification of a deeply worrying trend across society to see children as a group to be threatening and dangerous: a clear stereotyping that would not be acceptable if based on, for example,

race. The Commissioners recommend the monitoring of the situation of children vulnerable to discrimination, and that government at all levels should develop, on the basis of such monitoring, comprehensive strategies containing specific and well-targeted actions aimed at eliminating all forms of discrimination.

Timely reminder

This report is to be welcomed. Government (unlike, perhaps, the media) is not bad-intentioned towards children, but it does sometimes need reminding of its international obligations, and of its failings. A central aspect of the role of the Commissioners, appointed by government, is to do just that.

Kenneth McK Norrie is a Professor of Law in the University of Strathclyded