The Joint Committee on Human Rights is considering the human rights compatibility of the Children and Young Persons Bill. Having carried out an initial examination of the Bill, the Committee would be grateful if you could provide answers to the following questions concerning the human rights compatibility of some of the Bill's provisions, and some missed opportunities to implement human rights obligations.

Providers of social work services

We are grateful to you for your letter of 5 December 2007, which provides some further explanation of the Government's intention behind Part 1. This Part envisages the establishment of pilot projects by local authorities with private bodies ("providers of social work services"). These bodies would carry out some or all of the local authority's social services functions in relation to looked-after children or former looked-after children. Clause 3 provides that any act or omission of the provider of social work services is to be treated as an act or omission of the local authority. However, Clause 3(2)(b) also exempts the local authority from liability under section 6 Human Rights Act 1998 for acts carried out by the provider which are private in nature.

In your letter, you state that Clause 3(2)(b) addresses a "potential dissonance", namely that a local authority should not be liable for private acts of providers of social work services. You also say, and this is echoed in the Explanatory Notes to the Bill (para. 147), that the Department recognises that bodies which provide social work services pursuant to a contract under Clause 1 will be "functional" public authorities for the purposes of section 6(3)(b) Human Rights Act. This confirmation is to be welcomed. However, as you also note, the House of Lords has given judgment in the case of YL v Birmingham City Council [2007] UKHL 27. This judgment adopts a very narrow interpretation of "public function" and a correspondingly wide interpretation of acts which are private in nature. In view of current case law, the scope of the Clause 3(2)(b) exclusion is therefore potentially extremely wide.

In its Report on Meaning of Public Authority, the Committee recommended that:

… the Government should be prepared to acknowledge that the position in law is currently uncertain. This uncertainty should inform parliamentary debate on whether delegation or contracting out is an appropriate means of dealing with the provision of the relevant services, and whether it is desirable to make it clear on the face of a Bill that a body is a public authority for the purposes of the HRA.[241]

Why has the Government chosen expressly to exclude local authorities from liability for private acts of providers under the Human Rights Act?

Why does the Government consider that without Clause 3(2)(b), local authorities would be potentially liable for breaches of Convention rights by providers of social work services in the context of an employment relationship (the example given in your letter of 5 December)?

On what does the Government base its assertion that providers of social work services will be "functional public authorities" in light of the YL judgment?

In order to avoid confusion and to give effect to the Government's intention, why did the Government not make clear on the face of the Bill that providers of social work services are to be treated as public authorities under the Human Rights Act?

Will all contracts between local authorities and providers of social work services include provisions stating that the provider is to be treated as a functional public authority for the purposes of the Human Rights Act and is therefore required to comply with the Act in relation to all its public functions?

Accommodating looked-after children

Clause 8 imposes a new duty on local authorities to place children in accommodation within their local authority area and, where a sibling is also looked after by that authority, to accommodate siblings together, "in so far as … is reasonably practicable and consistent with the welfare of the child they are looking after".

Please explain whether the Government considers that an interference with a child's right to a family life with their siblings could be justified on the basis of impracticality.

Independent Reviewing Officers (IROs)

All local authorities are required to appoint an IRO for each looked-after child. The Explanatory Notes state that this Clause replaces sections 26(2A)(c) and (2C) Children Act 1989 which were inserted following the House of Lords decision in Re S and Re W[242] to "enable the IRO to have a more effective independent oversight of the child's case and ensure that the child's interests are protected" (para. 48).

We note that a number of speakers in the Second Reading debate expressed concern that the IROs are not independent of the local authority whose work they are intended to review and suggested that looked-after children should have access to independent advocates. In response, Lord Adonis stated:

… that the voice of the child is adequately supported is enshrined in a whole series of other measures, including the independent reviewing officers … Taking all of those measures together, there is sufficient support for the voice of the child without having the specific figure of the independent advocate which has been raised … in the debate… We would not be calling these figures independent reviewing officers if we did not expect them to operate independently. Under Clause 12, we have taken powers to establish a national service to manage the independent reviewing officers if we are not satisfied that the new responsibilities imposed on them by Clause 11 do not lead to their representing children's views with the independence we expect…. They are expected to represent not the view of the local authority, but that of the child.[243]

In its 2002 Report on the UK, the UN Committee on the Rights of the Child observed:

The Committee is concerned that the obligations of article 12 have not been consistently incorporated in legislation, for example in private law procedures concerning divorce, in adoption, in education and in protection throughout the State party.

….

[The Committee] … recommends that the State party take further steps to consistently reflect the obligations of both paragraphs of article 12 in legislation, and that legislation governing court procedures and administrative proceedings … ensure that a child capable of forming his/her own views has the right to express those views and that they are given due weight.[244]

Given the concerns which have been expressed about the need for children to have an independent voice, please explain (1) what safeguards the Government intends to put in place to ensure that IROs can operate fully independently of the local authority and (2) how it will ensure that the voices of looked-after children are taken fully into account throughout the time that the local authority exercises parental responsibility?

Further measures

Whilst this Bill contains some human rights enhancing measures, it has been criticised by speakers in the Second Reading debate and interested organisations as not going far enough in relation to children subject to immigration control (including asylum-seeking children) and to children in custody.

Children subject to immigration control

The Committee has previously expressed concerns that asylum-seeking children are not receiving the support and accommodation that they need.[245] In its report on the Treatment of Asylum Seekers, the Committee noted that the UK's reservation to Article 22 to the UN Convention on the Rights of the Child (UNCRC) sent out "a powerful signal that the rights of asylum-seeking children are less important than those of other children" and recommended that the reservation be withdrawn. It also recommended that local authorities be provided with sufficient funds to deliver appropriate support and care. Further, the Committee advocated that:

… a formal system of guardianship should be established for separated children subject to immigration control, including separated asylum seeking children. The guardian would have a statutory role and would be appointed by a statutory body to safeguard the best interests of the child and provide a link between all those providing services and support. The guardian should be expected to intervene if public bodies act in contravention of their legal duties towards a child.[246]

The Committee's recommendations accord with the Concluding Observations of the UN Committee on the Rights of the Child which suggested that the Government consider withdrawing its reservation to Article 22 UNCRC[247] and consider the appointment of guardians for unaccompanied asylum-seeking and refugee children.[248]

Given the particular vulnerability of asylum-seeking children, why has the Government chosen not to extend the measures contained in the Bill to asylum-seeking children?

In particular, why does the Bill not ensure that the best interests of separated children who are subject to immigration control are protected through the appointment of individual guardians?

In light of the strong concerns expressed by this Committee and others, will the Government reconsider its opposition to withdrawing its reservation to Article 22 UNCRC?

Children in custody

Whilst the majority of children in care do not end up in the criminal justice system, as the Minister accepted in the Second Reading debate, a quarter of adult prisoners have been in care. As former Committee member Lord Judd said in the Second Reading debate, 40-49% of children and young people in custody have at some time been in local authority care.[249] It is therefore disappointing to note that, on the face of the Bill, not all of the proposed measures will apply to children in custody (e.g. personal advisors and independent visitors).

Please explain why the Bill will not apply equally to children in custody as compared to children who are not detained.

I would be grateful for a response by 2 January 2008.

242   [2002] 2 All ER 192 Back

243   HL, 26 Nov 2007, Col. 1098-1099 Back

244   UN Committee on the Rights of the Child, Thirty-First Session, Concluding Observations: United Kingdom of Great Britain and Northern Ireland CRC/C/15/Add.188, 9 October 2002, paras. 29-30 Back

245   Tenth Report of Session 2006-07, The Treatment of Asylum Seekers, HL Paper 81-I, HC 60-I Back

246   Tenth Report of Session 2006-07, The Treatment of Asylum Seekers, HL Paper 81-I, HC 60-I, paras. 183-193 Back

247   UN Committee on the Rights of the Child, Thirty-First Session, Concluding Observations: United Kingdom of Great Britain and Northern Ireland CRC/C/15/Add.188, 9 October 2002, para. 7 Back

248   UN Committee on the Rights of the Child, Thirty-First Session, Concluding Observations: United Kingdom of Great Britain and Northern Ireland CRC/C/15/Add.188, 9 October 2002, para. 50 Back

249   HL, 26 Nov 2007, Col. 1059 Back