This blog was written by Dr Simon Hoffman, Co-ordinator of the Wales Observatory on Human Rights of Children and Young People, University of Swansea. Dr Hoffman presented at the ‘UNCRC in Scotland’ series seminar 1 on Friday 10th February on the ‘UNCRC in Law’. The series consists of 4 seminars held in partnership between Together, the Centre for Research on Families and Relationships, and the Centre for Child Wellbeing and Protection at the University of Stirling. It seeks to improve — and address gaps — in the implementation and monitoring of the UNCRC in Scotland.
Abstract; Wales-only legislation has incorporated the UNCRC into Welsh domestic law. This presentation will provide an overview of how this has been achieved, and will reflect on the legislation’s impact on duty-bearers and others with responsibility for children in Wales. The presentation will also discuss the benefits that have accrued for children’s rights in the context of law and policy making. The focus will be on institutional culture and processes of governance and accountability. Wales is often held up as a model on children’s rights in the UK. Whilst there has undoubtedly been progress, this presentation will introduce a note of realism: warning that it is unrealistic to expect legislation to carry the burden of children’s rights, and reflecting that post-incorporation much work remains to be done to properly embed children’s rights in law and policy making.
The United Nations Convention on the Rights of the Child sets out the rights to which children (17 and under) are entitled in all areas of their lives. The Convention is a benchmark against which not only states’ treatment of children is measured, but also the treatment of children by sub-units of the state, including devolved or decentralised administrations. Devolved governance is a feature of many states worldwide (including unitary states), and is a significant factor affecting implementation of children’s rights where governance responsibilities are allocated amongst different institutions. Whilst the state retains overall responsibility to take all appropriate measures to ensure that the Convention is implemented, the reality is often that children are reliant on devolved or decentralised governance bodies to give effect to their rights, especially in areas where services are arranged at a local level (e.g. health, education, social care, housing, transport).
Whereas a number of states, including the UK, have decided not to take particular steps to draw down the UNCRC into domestic law (incorporation), some devolved administrations have powers to do this for themselves. In the UK this includes Wales and Scotland, both of which have taken steps to incorporate the UNCRC into domestic Welsh Law and Scots Law respectively. The legal form used to achieve this differs in Wales from Scotland, and neither has achieved the form of incorporation envisaged by the Committee on the Rights of the Child. The Committee recommends justiciability of all Convention rights before a national court or tribunal. However, the experience of Wales suggests that the absence of justiciable rights does not preclude devolved legislation from making a significant contribution toward giving effect to the UNCRC and making it real for children and young people.
In Wales the Rights of Children and Young Persons (Wales) Measure 2011 requires Welsh Minsters to have ‘due regard’ to the UNCRC when exercising any of their functions. This legal mechanism is designed to promote deliberative processes to achieve implementation of state obligations. The Measure includes requirements for the Welsh Minsters to set out how they will achieve due regard in a ‘Childrens’ Scheme’, and requires the Children’s Commissioner for Wales, and children and young people, to be involved in drawing up the Scheme. This gives key stakeholders the opportunity to influence mechanisms which will affect how children’s rights are embedded in legislation, and through policy making in Wales. Stakeholder engagement helped shape the Scheme so that it includes a Child Rights Impact Assessment for legislation and policy proposals, training for civil servants and internal coordination of children’s rights within the Welsh Government and across departments. This has influenced and helped shape the content of legislation and policy in Wales since the Measure was introduced to better reflect children’s Convention rights.
Whilst the Measure has helped Wales to introduce legislation and policy which promote children’s rights, it has not always had the pervasive impact that its proponents had hoped. The duty of due regard has not yet been influential to ensure that Welsh Ministers deliver on the long-standing promise to remove the defence of reasonable chastisement in Wales. And when the Welsh Government made a decision in October 2014 to remove funding from Funky Dragon, the highly successful and very active Children and Young People’s Assembly for Wales, many in the child rights community complained that this decision was made without due regard to the impact on the structures for children’s participation and children’s voice in Wales.
Despite its flaws, the Measure has contributed to an improvement in the institutional culture within Welsh Government so that children’s rights have become more embedded into the way Ministers and their officials go about the conduct of governance in Wales. There is also growing evidence that the Measure has not only had an impact on Welsh Government but is also of symbolic importance, providing inspiration for other institutions in the public sector to put children’s rights at the heart of their services planning and activities. Following the lead given by Welsh Ministers a number of public bodies, including local authorities, a health board and a police authority have adopted the UNCRC as a guiding framework for their work which impacts directly or indirectly on children.
Find out more about ‘the UNCRC in Law’ seminar and access other materials here.