Enhancing children’s rights

by Rebecca Hilsenrath

Published: 07 Sep 2015

The week’s biggest international story, out of 10,000 people fleeing to Europe, was three year old Aylan from Syria, whose body on a Turkish beach, next to that of his five year-old brother, shocked and appalled viewers. A quick look at other news items yields headlines such as 'Information Commissioner says websites aimed at children gather unacceptable amounts of personal data'; 'Cameron launches wave of free schools'; 'Children paralysed in polio outbreak'. The media is not alone in its focus; we live in a child-centric culture, where our thoughts go naturally to the next generation and its challenges. Our dialogue, from dinner party to debating chamber, always comes back to the rights and responsibilities of working mothers, our parenting choices and the life chances and opportunities of our children.

Is the law lagging behind?

Readers will be aware that the UN Convention on the Rights of the Child (CRC) does not form part of UK national law. This means that UK courts cannot rule that Government actions are unlawful purely as a result of breaching the CRC, and decision-makers can propose policies and laws which do not meet the standards set out in the CRC. This weakens the protection of the rights of all children in the UK.

Cameron Mathieson was a severely disabled boy who sadly died after a long period of illness. While he was in hospital, payment of Cameron’s disability living allowance (DLA) was suspended. The suspension of Cameron’s DLA had a very significant impact on his family’s finances and on Cameron himself, because his family couldn’t afford to visit him in hospital as often once the DLA was suspended. Cameron’s father challenged this decision [1]. The Supreme Court found the Secretary of State to be in breach of his obligation under the CRC to treat the 'best interests of the child' as the primary consideration when making a general rule that a child’s DLA should be suspended following his 84th day in hospital. This prompted the court to consider Cameron’s domestic rights under the Human Rights Act, in the light of the CRC. The court found, on the facts, the decision to suspend Cameron’s DLA to be unlawful, but the general rule remains. We hope the Secretary of State will respond quickly to the Supreme Court’s judgment and either scrap the rule or modify it to take into full account the UK Government’s responsibilities under the CRC.

The Modern Slavery Act 2015 provides important protections for children who are victims of human trafficking, although some gaps remain in relation to children. The Commission found that the CRC had not been adequately considered by the UK Government in its development of the original proposal for the law. For example, the UK Government’s Bill had initially failed to clearly define a child as anyone under the age of 18 or set a presumption that a person is under 18 until their age is otherwise determined. The Act still does not make it clear that a child cannot consent to their own exploitation.

We have seen attempts in Scotland and Wales to give greater weight to the CRC.

The UK’s record on children’s rights is currently under review by the UN Committee on the Rights of the Child. As part of this process, members of the Committee visited the UK this week. At an inspiring meeting, the EHRC told these children’s rights experts that discussions around a Bill of Rights provide an opportunity for increased protection for children’s rights and must not lead to reduced protections for human rights. The Commission has set out its full analysis of children’s rights in the UK in our report to the UN. [3]

That’s why we are recommending an enhanced status for the CRC – with greater access to remedy, increased scrutiny of legislation and policy, and a higher level of accountability. The CRC is a powerful tool to ensure that the rights of all children are better protected. This week more than most, the significance of this echoes around the headlines, around the UK and around the world.

[1] Cameron Mathieson, a deceased child (by his father, Craig Mathieson) v Secretary of State for Work and Pensions UKSC [2015] available at: https://www.supremecourt.uk/cases/docs/uksc-2014-0166-judgment.pdf

[2] Equality and Human Rights Commission, Children’s Rights in the UK, August 2015.