The definition of "vulnerable children"

43.  An addition to the proposed Order when published in its revised form was the inclusion of a definition of the term "vulnerable children",[55] as follows:

"vulnerable children" means children -

(a) who are unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for them of social care services,

(b) whose health or development is likely to be significantly impaired, or further impaired, without the provision for them of social care services,

(c) who have a physical or mental impairment,

(d) who are in the care of a public authority, or

(e) who are provided with accommodation by a public authority in order to secure their well-being.

44.  The Explanatory Memorandum notes:

Vulnerable children are defined within the Order … to relate to the needs of a diverse range of children: any child in need (including disabled or very sick children), children on the periphery of care, in care, or who have left care. It is drafted so as to include support to parents who may need help for their mental health, substance misuse, learning disability, poverty or other problems that may affect a child's opportunities and wellbeing.[56]

45.  The Deputy Children's Commissioner, while concerned that the definition contained in the Explanatory Memorandum was too narrow,[57] said in evidence to us that she was now "broadly satisfied" with the definition contained in the revised Order itself.[58] We believe that the inclusion of a definition of the term "vulnerable children" is a significant improvement to the proposed Order as revised, and agree with the Deputy Children's Commissioner that the definition provided is satisfactory.

Safeguarding children from harm and neglect

46.  As originally published, Matter 15.1 of the proposed Order referred to "safeguarding children from harm and neglect", which some argued would have enabled the National Assembly to make it an offence to smack a child or to remove the current common law defence (in relation to England and Wales) of "reasonable chastisement".[59] Legal advice to the Assembly Committee stated:

… it could be argued that this LCO could be the gateway to legislation which makes all smacking of children in Wales unlawful and illegal.[60]

47.  The Welsh Assembly Government's view, as the Deputy Minister set out in a letter to the Chair of the Assembly Committee, is as follows:

In our view, a power for the Assembly to legislate so as to protect children from harm caused by parents or people with parental responsibility physically punishing them could relate to an appropriately worded matter in the social welfare field - a field which is in Schedule 5.[61] There is an important distinction between criminal justice in general - which is not devolved - and criminal sanctions, which may or may not be devolved.[62]

48.  The Deputy Minister told us in evidence that the Assembly Government remained committed to this agenda, and that its view was that the defence of reasonable chastisement in Section 58 of the Children Act 2004 ought to be removed., "so that children and young people enjoy the same level of protection in law as adults do".[63] The Deputy Minister confirmed that in the Welsh Assembly Government's view, this matter was primarily a children's rights issue.[64]

49.  The UK Government's position is that this is not the case as the matter relates to criminal justice, a non-devolved area of policy, rather than to social welfare or the protection of children.[65] The Parliamentary Under-Secretary of State told us:

The UK Government firmly considers that a ban on smacking would not fall within field 15 of social welfare or any other field. Our view is that a prohibition on smacking would relate to criminal justice, which is not represented in Schedule 5 [of the Government of Wales Act 2006].[66]

50.  The proposed Order which was published following Whitehall clearance amended Matter 15.1 so that it now refers to the "Functions of public authorities" relating to safeguarding children from harm and neglect. The Deputy Minister noted that:

… the amendments to the proposed Order … meet the UK Government's insistence that it should not confer legislative competence on the Assembly to enable the removal of the defence of reasonable punishment in relation to the physical punishment of children.[67]

51.  The UK Government's position remains as explained to us by the Parliamentary Under-Secretary of State:

… a prohibition on smacking would relate primarily to the substantive issue of criminal law as opposed to social welfare fields, and that is where our position remains on this. … we essentially believe that it is an issue of criminal law rather than social welfare.[68]

52.  We note that this particular controversy over smacking has highlighted the potential for different interpretation of the scope of devolved and reserved matters. We note the assurance of the Deputy Minister and the Parliamentary Under-Secretary of State[69] that the revised proposed Order would not enable the Welsh Assembly Government to introduce a Measure removing the defence of "reasonable chastisement" relating to the punishment of children. This assurance that because this Order deals with the functions of public authorities it can not be used to make changes in the criminal law has been confirmed as correct by the Wales Office and by Parliamentary Counsel.[70]

53.  To ensure that there is no doubt, we propose the addition of a resolution at the time of passage saying, "Nothing in this resolution shall be interpreted as giving a competence that is not explicitly given by this Order.".

The definition of "well-being"

PLAY

54.  The definition of "well-being" given in the proposed Order, taken from the Children Act 2004, includes reference to "education, training and recreation".[71] In its revised form the Order has not been amended to take account of one of the Assembly Committee's recommendations, that it be expanded to include the word "play". The Deputy Minister noted in a letter to the Chair of the Assembly Committee that:

The concept of play … is not solely connected to recreation. For example, a child's play is connected to his or her physical, mental health and emotional well-being, education and recreation. As such the view is that there is no added value or reason to include the word "play" … Indeed if we add the word "play" the courts may seek to attach meaning to it …[72]

55.  This was supported by the Parliamentary Under-Secretary of State, who told us:

… we would anticipate that play would fall within the fields that we have extended it to, which include recreation and so on, and certain professional bodies … would interpret it that way as well.[73]

56.  We agree with the Deputy Minister that the reference to "education, training and recreation" in the proposed Order should not be expanded to include reference to the word "play", as "play" is already implicit in the definition given. To include specific reference to "play" could restrict the scope of the definition of "well-being" rather than add to it.

SECURING THE RIGHTS OF INDIVIDUALS AND THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

57.  To the definition of well-being taken from the Children Act 2004, the proposed Order adds the further category, that of "securing their rights".[74] The Explanatory Memorandum notes that this is to:

… place greater emphasis on the voice of the child as paramount to his/her well-being and recognises the important concept of rights in the United Nations Convention on the Rights of the Child on which all the Assembly Government's policies and programmes for children and young people are based.[75]

58.  The proposed Order does not contain an express reference to the United Nations Convention on the Rights of the Child (UNCRC), although in evidence to the Assembly Committee this was supported by Children in Wales, Save the Children and the British Association for Adoption and Fostering. One of the Assembly Committee's recommendations in its Report was that:

… the United Nations Convention on the Rights of the Child … is of such importance as to merit inclusion on the face of the proposed Order …

59.  However, in written evidence to the Assembly Committee, the Deputy Minister stated that "Express reference to the UNCRC … is likely to lead to uncertainty both for the Assembly, the Welsh Assembly Government and the UK Government".[76]

60.  We note the view of the Deputy Minister that it would prove "constitutionally difficult for a constituent part of the United Kingdom to incorporate the [United Nations Convention on the Rights of the Child] into its law".

Conclusion

61.  We welcome the assurance by Mr Mike Lubienski, a lawyer for the Welsh Assembly Government, that in drafting the proposed Order:

…very great care has been taken in the words that have been chosen so that where there are particular phrases which have reference points in UK legislation, those are clear and apparent. … A great deal of thought has been given to try and marry up language and phrases … to ensure that the concepts are clear.[77]

62.  We believe that, as with all proposed legislation, clarity of the terms used and of the definitions given is crucial to its eventual effectiveness. It is particularly the case that terms used in Welsh legislation which are also used in the same policy area in English legislation are consistent. We are assured that where there are differences, these will not cause practical problems when they are implemented.

56   Ev 29 (para 12) Back

57   Memorandum from the Children's Commissioner to the Assembly Committee (not printed here) Back

58   Q 52 Back

59   Children Act 2004, Section 58 Back

60   Assembly Committee Report, para 97, p 27 Back

61   Government of Wales Act 2006 Back

62   Letter of 22 January 2008 from the Deputy Minister to the Chair of the Assembly Committee (not printed here) Back

63   Q 90 Back

64   ibid Back

65   Head of Legislative Policy, Wales Office, email to the Committee (not printed here)  Back

66   Q 119 Back

67   Letter of 18 March 2008 from the Deputy Minister to the Chair of the Assembly Committee (not printed here) Back

68   Q 118 Back

69   Q 122 Back

70   Letter of 19 June 2008 from the Parliamentary Under-Secretary of State, Wales Office, to the Chairman (Ev 40) Back

71   Ev 24, interpretation of this field Back

72   Note of 17 December 2007 from the Deputy Minister to the Chair of the Assembly Committee (not printed here) Back

73   Q 110 Back

74   Ev 24, Interpretation of this field (f) Back

75   Ev 32 (para 32) Back

76   Note accompanying a letter of 17 December 2007 from the Deputy Minister to the Chair of the Assembly Committee (not printed here) Back

77   Q 79 Back