Children's Commissioner for England

Logo of the Office of the Children's Commissioner

The post of Children's Commissioner for England was established under the Children Act 2004. The Children's Commissioner had a duty to promote awareness of the views and interests of all children in England, in particular those whose voices are least likely to be heard, to the people who make decisions about their lives. The role of the Children's Commissioner has been strengthened by the Children and Families Act 2014. This Act has changed the primary function of the Commissioner from representing the views and interests of children and young people to promoting and protecting children's rights.

The current Commissioner, Anne Longfield, also has a duty to speak on behalf of all children in the UK on non-devolved issues which include immigration, for the whole of the UK, and youth justice, for Wales. In carrying out her function, the Children's Commissioner must have regard to the United Nations Convention on the Rights of the Child (UNCRC).

The Office of the Children's Commissioner is a non-departmental public body.

Role of the Children's Commissioner for England

History

The Office of the Children's Commissioner is a national organisation led by the Children's Commissioner for England, Anne Longfield. The post of Children's Commissioner for England was established by the Children Act 2004 with the intended purpose of becoming the independent voice of children and young people, thereby championing their interests and bringing their concerns to the national arena.

More than 130 organisations campaigned for the establishment of a Children's Commissioner for England for 13 years.^[1] Professor Al Aynsley-Green was appointed England's first Children's Commissioner in March 2005.^[2]

Roles

The commissioner has a legal duty to promote and protect the rights of all children in England with a particular focus on children and young people with difficulties or challenges in their lives, and in particular those living away from home, in or leaving care, or receiving social care services.

The Children's Commissioner states that they "will use our powers and independence to ensure that the views of children and young people are routinely asked for, listened to and acted upon and that outcomes for children improve over time". They say they will "do this, in partnership with others, by bringing children and young people into the heart of the decision-making process to increase understanding of their best interests".^[3]

Unlike the Children's Commissioner for Scotland, Wales, and Northern Ireland, the Children's Commissioner for England cannot deal with individual cases but would conduct an investigation that affects the wider population. The relationship between the Commissioners in the UK is flexible and is left to the Commissioners to decided to work together to combat certain issues or whether to carry out the investigations independently.^[4]

There are times when the UKs four Commissioners come together to provide a stronger force for certain requests such as when the four united in making call for a national debate on fatherhood^[5] They also submitted a joint report to the UN Committee on the Rights of the Child. The Children’s Commissioner should be influenced by the United Nations Convention on the Rights of the Child when determining what constitutes the interests of children and young people. In addition, consideration should be given to the five principles of The Children’s Plan: Building Brighter Futures:^[6]

• Government does not raise children – parents do – so government needs to do more to support parents and families
• All children obtain the potential to succeed and should go as far as their talents can take them
• Children and young people need to get pleasure from their childhood in addition to becoming prepared for adult life
• Services need to be shaped by and responsive to children, young people and families, not designed around professional boundaries
• It is always better to prevent failure than tackle a crisis later

Recent cases

In 2010, following concerns over the welfare of children, the UK government held a consultation on ending child detention for immigration purposes. Maggie Atkinson, then the Children's Commissioner for England, commented: "There now needs to be an ongoing dialogue between the government, through UK Borders Agency (UKBA), and stakeholders with a concern for this area of policy. As a previous report from my office has stated, the starting point for any alternative to detention should be developing community-based alternatives to detention, which ensure that children's needs are met, and their rights not breached, during the process of removal."^[7]

This is an example of how the Children's Commissioner can intervene on behalf of children and young people in areas of policy that ostensibly may not appear to be directly about children's rights.

Children's Commissioner Scotland / Wales / Northern Ireland

SCCYP (Scotland's Commissioner for Children and Young People)

Scotland's Commissioner for Children and Young People is Tam Baillie.^[8]

Children's Commissioner Wales

Sally Holland is the Children's Commissioner for Wales.^[9]

Northern Ireland Commissioner for Children and Young People (NICCY)

Overall, one third of Northern Ireland's population are children and young people – about 500,000. The conflict in Northern Ireland and the impact of this have had significant influence over the realisation of children's rights under the UNCRC (United Nations Convention on the Rights of the Child).

The difference between Northern Irelands Children's Commissioner and the Commissioner for England is that they have more direct power to take on individual cases, whereas the Commissioner for England has a team to do this and can only take certain cases forward. Also the individual roles they take on vary depending on the needs of the local area. For example, the Commissioner can carry out a formal investigation of a service, if cases are put forward to a case worker within the department.

Officially, Northern Ireland's Children's Commissioner role is to promote and safeguard the rights of children and their best interests. To do this, they use a list of promises that Government has made to every child and young person in Northern Ireland, based on the United Nations Convention on the Rights of the Child (UNCRC). They should also ensure every child understands their rights.

One of the jobs of the Commissioner is to find new ways of communicating with and listening to the children and to encourage them to get involved in the decisions that affect them. This could also include getting parents, carers and others involved. There is a Youth Panel which is a group of young people who tell the commissioner directly what they think about certain issues or policies.

Northern Ireland's Commissioner claims to have already helped children and young people with problems about education; health; adoption; fostering; youth justice; road safety, bullying and other issues affecting young people. As well as directly helping children or young people with a legal cases.

The main current priorities for Northern Irelands Children's Commissioner are:^[10]

• Leisure
• Having your say
• Well being and mental health
• Child protection
• Equal treatment

Children's Rights UK and UNCRC

The United Nations Convention on the Rights of the Child (UNCRC) is a legally binding treaty, adopted in 1989 and is ratified by 193 countries. The UNCRC is the most ratified international human rights treaty.

History of International Child Law

The first major international document specifically focusing on children was the 1924 Declaration of the Rights of the Child (1924 Declaration).^[11] This non-binding League of Nations resolution,^[12] was drafted primarily by Eglantyne Jebb, the founder of the organisation Save the Children.^[13] It consists of only five points outlining key social, emotional and economic requirements of children.

In the years following the adoption of this declaration, there was a growing awareness regarding the vulnerable situation of some children, particularly in the aftermath of WWII. This led to the drafting of the 1959 Declaration of the Rights of the Child^[14] which expanded the 1924 declaration and included various new provisions.

Drafting of the Convention on the Rights of the Child

The drafting of the UNCRC was initiated by a representative of the Polish government who tabled an initial version at the UN in 1978, expanding on the 1959 declaration. This led to the creation of a working group to draft the proposed new treaty. The working group included UN member states, other international governmental organisations and the International Committee of the Red Cross. It was unusual for its time in that it worked actively with many non-governmental organisations (NGOs) including Amnesty International, the Quakers, Defence for Children International and Save the Children. The first meeting was held in 1979, and the working group then generally met annually until 1988.

The United Nations Convention on the Rights of the Child

Within the UNCRC,^[15] certain rights are considered to be core principles. These are generally accepted to be:

• Article 2 – non-discrimination principle
• Article 3 – best interests principle
• Article 6 – right of children to life, development and survival
• Article 12 – views of children to be given due weight.

Overview of Provisions

The CRC articles^[16] bring together civil, political, economic, social and cultural rights in one treaty. There are 42 rights given to children under the age of 18 and they are known as articles.

A number of these rights are already articulated in the global human rights treaties (e.g. the International Covenant on Civil and Political Rights (ICCPR)^[17] and apply to children as they apply to all persons. However, the CRC makes clear beyond doubt that children are entitled to these global rights. It also in some instances adds specific provisions focusing on children, such as the expansion of Article 6 (the right to life) to impose a duty that states should 'ensure to the maximum extent possible the survival and development of the child'.

The rights articulated in the CRC can be classified in four categories. These include:

a) Protection from abuse and exploitation

• Articles 11 (kidnapping and trafficking)
• Article 19 (protection from all forms of violence)
• Article 24 (health and health services)
• Article 32 (child labour)
• Article 33 (drug abuse)
• Article 34 (sexual exploitation)
• Article 35 (abduction)
• Article 36 (other forms of exploitation)
• Article 37 (torture and detention)
• Article 38 (war and armed conflict)

b) Prevention of harm (closely linked to protection)

• Article 6 (life, survival and development)
• Article 7 (registration, name, nationality and care)
• Article 8 (identity)
• Article 25 (review of care and treatment)

c) Provision to meet basic needs – largely economic and social rights

• Article 3(3) (good standards in institutions etc for children)
• Article 6 (life, survival and development)
• Article 23 (adequate care for the disabled)
• Article 24 (right to health and health services)
• Article 26 (social security)
• Article 27 (adequate standard of living)

d) Participation in matters affecting the life of the child

• Article 12 (views of the child)
• Article 13 (freedom of expression)
• Article 14 (freedom of thought)
• Article 15 (freedom of association)
• Article 17 (access to information)

Previous provisions in legal instruments regarding children focused on the first three categories above. The inclusion of participation rights, and especially Article 12, was quite a radical new departure.

The UN Committee on the Rights of the Child

One of the main roles of the Committee on the Rights of the Child^[18] is in monitoring state reports. Under Article 44, states are to submit reports on the measures they have adopted to give effect to the UNCRC and on the progress made. These reports are to be submitted within two years of ratifying the UNCRC and every five years after that. The committee has set out guidelines for both initial reports and periodic reports.

One member of the committee acts as a rapporteur for each report, and draws up questions to be put to the country representatives who appear before the committee. There follows a public hearing, where the aim is to have a 'constructive dialogue'. After this, the committee draws up its concluding observations on the state report, in which it can make strong and detailed recommendations. The country concerned should then act on these recommendations and summarise progress in its next report.

Legislation

Children Act 1989

The Children Act 1989 covers some key issues such as parent and child relationships; public child care law dealing with services to prevent family breakdown and emphasise child protection; and support for children with disabilities. It aims to strike a better balance between the duty to protect children but also allow parents to challenge the upbringing of the child and it strengthens the relationship between local authorities and parents. Some key principles are that the child's welfare must be the paramount consideration and agencies have a duty to review the wishes and feelings of the child. The act also reinforces the role of local authorities to manage services.^[19]

The Children Act 1989 will affect most child agencies, specifically social service departments and courts. Other areas may include day care, education and health.^[20]

Children Act 2004

The act compromises 6 parts and detailed the role of the Children's Commissioner and other children's services:^[21]

1. Children’s Commissioner
2. Children’s services in England
3. Children’s services in Wales
4. Advisory and support services for family proceedings
5. Miscellaneous – child minding and day care
6. General

Children and Families Act 2014

Part 6 of the Act detailed changes to the Commissioner's role.

Criticism

Maggie Atkinson attracted controversy by describing the murder of James Bulger as "unpleasant", and commenting that his killers, Jon Venables and Robert Thompson, ought never to have been prosecuted, and that the age of criminal responsibility in England and Wales ought to be raised to twelve, from the age of ten.^[22]

The UK implemented the United Nations Convention on the Rights of the Child post ratification in 1991. According to the United Nations Committee's concluding observations in 1995:

The Committee is concerned about the apparent insufficiency of measures taken to ensure the implementation of the general principles of the Convention, namely the provisions of its articles 2, 3, 6 and 12. In this connection, the Committee observes in particular that the principle of the best interests of the child appears not to be reflected in legislation in such areas as health, education and social security which have a bearing on the respect for the rights of the child.

— United Nations Committee on the Rights of the Child, First Concluding Observations

The Committee's concluding observations in 2002 were also highly critical^[23] and led to the Children and Young People's Unit taking on responsibility to co-ordinate the implementation of the Convention across the UK, but was subsequently disbanded in Autumn 2003.

In the hierarchy of treaty terminology,^[24] a State's undertaking to "ensure" a right denotes the highest possible obligation – requiring more than mere non-interference with a designated right and requiring the State to execute positive legislative administrative and legal measures as necessary, to make sure the specified right can be effectively exercised. The Convention therefore has the status of International Law, using the word "ensure" 32 times in the substantive body of provisions and is not derogated in any way.

Although a lynchpin of UNCRC provisions, the government strenuously resisted appointment of a Children's Commissioner on the basis that newly created agents were sufficient e.g. Minister for Children and Families and the Director of Children's Rights. After several tragedies and the death of Victoria Climbie, the Laming report of January 2003 recommended creation of the post.^[25] Margaret Hodge, then the Children's Minister won her battle to have five references to the word "rights" removed from the description of the role. She also altered the position from promoting and safeguarding the rights of children in England to promoting awareness of their views.^[26]

(The Children and Families Act 2014 has subsequently changed the primary function of the Commissioner from representing the views and interests of children and young people to promoting and protecting children's rights).

When the Commissioner for England was appointed in 2005, the National Society for the Prevention of Cruelty to Children commented:

the England Children Commissioner office does not meet the European standards set out for all European Commissioners.... the NSPCC believes that the Commissioner's remit and responsibilities should be more closely tied to the UNCRC... which the Government ratified in 1991, granting all children a comprehensive set of economic, social, civil and political rights

— National Society for the Prevention of Cruelty to Children, Briefing

In June 2008, all four UK Children's Commissioners in the devolved administrations issued a joint report to the UN Committee, uniting in the call for incorporation of UNCRC into domestic legislation. The third set of concluding observations in Autumn 2008 will indicate whether there is a need for a Children's Commissioner with 'teeth and hobnailed boots' in England, to herald the 30th Anniversary of the International Year of the Child.^[27]

In 2015, the new Commissioner, Anne Longfield, was criticised for removing her Deputy, Sue Berelowitz, with an enhanced severance package, and then immediately hiring her back as a consultant. It transpired that this had taken place without securing the required approval from government ministers. The arrangement was subsequently cancelled.^[28]

List of Commissioners

• Sir Albert Aynsley-Green (2005–2009)
• Dr Maggie Atkinson (2009–2015)
• Anne Longfield OBE (2015–present)

See also

• Children's Commissioner for Wales
• Commissioner for Children and Young People, Northern Ireland
• Scotland's Commissioner for Children and Young People
• Takeover Day
• Timeline of children's rights in the United Kingdom

References

External links

• The Children's Commissioner's website
• Barbara Hocking et al., on the almost complete absence of protection for children in English law
• Ongoing reality behind the lip-gloss
• The Balls Bill, sunk in Parliament, would have made it "clear in law for the first time that local authorities must assess disabled children and provide them with a range of services"