Written evidence from Dr Roger Morgan OBE, former Children’s Rights Director for England (HRO0013)

 

 

Introduction

  1. I write in an individual capacity, but on the basis of my experience in fulfilling the statutory role of Children’s Rights Director for England from 2001 to its merger with the role of Children’s Commissioner in 2014, and of then in retirement founding and running the Pupils 2 Parliament project working with schools to gather school pupils’ views for submission to Select Committee inquiries and government consultations.

 

  1. My functions as Children’s Rights Director, under the then Children’s Rights Director Regulations, focused on the rights of particularly vulnerable children and young people:  those in care, receiving social care services, or living away from home in residential establishments, foster care, or boarding schools.

 

  1. The main activities of the Office of the Children’s Rights Director were (1) to advise statutory bodies (including successive children’s social care regulators, and individual children contacting our Helpline, on the application of children’s rights, (2) conducting casework to investigate and recommend actions where we found a vulnerable child’s rights were being, or were at risk of being,  significantly breached, and (3) consulting vulnerable children and young people directly on their care and welfare, publishing reports on their views and concerns.  I also had a statutory duty to initiate safeguarding referrals where I deemed this necessary.

 

Comment on the Ombudsperson proposal

  1. From my experience, advice and investigation of individual cases leading to recommended and monitored action, have the potential to make a far more extensive contribution to the observance and application of human rights ‘on the ground’ than does the inevitably rare case that reaches judgement in a court.

 

  1. This is particularly so for vulnerable children, who are rarely in the position of being able to take rights issues to the level of a court.

 

  1. A human rights ombudsperson, operating at the level of individuals’ cases, holds the potential to have great impact in increasing fulfilment of human rights.

 

A Proposal on children’s rights

 

  1. My main proposal to the Committee is that within the overall proposed provision of a human rights ombudsperson, there should be a specific and separate unit to carry out functions in relation to children’s rights.

 

  1. The rights and freedoms set out in the European Convention of Human Rights apply to “everyone” in the jurisdiction of all parties to the Convention, which of course includes children under the age of 18.   Article 13 of the Convention requires that everyone whose rights and freedoms are set forth in the Convention are violated shall have an effective remedy before a national authority.  I suspect however that the number of children able to access the adjudication of a court on their own rights is vanishingly small.  A Children’s Rights ombudsperson team has far greater potential to enable children to secure an effective remedy under Article 13 on their own initiative.

 

  1. The justification for a specific separate Ombudsperson function for Children’s Rights is ninefold:

 

    1. The everyday application of each Convention right and freedom to children is likely to be different and in a very different context than it is to adults.

 

    1. Children are likely to be subject to a higher level of control than are adults, by any public body with which they interact, such as a school or children’s service.

 

    1. Children by definition are more dependent for enjoyment of any rights, upon the manner in which adults exercise their responsibilities for them.  This requires a very different application and judgement of rights and freedoms in practice than is the case for adult citizens.

 

    1. Children are, by virtue of their age and experience, less likely than adults to be able to challenge actual or potential breaches of their individual rights, and in case of such breaches they thus require a highly accessible means to secure rights advice or raise a challenge, such as may be offered by a children’s rights ombudsperson service.  A common question to me from individual children was not to challenge or allege a breach of rights, but simply to ask whether they did or did not have a right to something specific.

 

    1. By international treaty, the rights of children are deemed to need a separate expression in addition to those of other more general human rights conventions, through the United Nations Convention on the Rights of the Child.  It follows that a separate specialised children’s rights ombudsperson function should be considered.

 

    1. A rights ombudsperson function for children therefore also needs to extend more widely than the ECHR, to include separate application of the rights of children under the UN Convention on the Rights of the Child.

 

    1. UK law contains many provisions which are specific to children, many of which confer child-specific rights and freedoms.  Any children’s rights ombudsperson function needs to encompass child-specific provisions, together with situations where national law extends or specifies the application to children, of matters that are covered in either the ECHR or the UN Convention on the Rights of the Child. 

 

It is my experience in the Children’s Rights Director role that much rights advice and casework concerning children’s rights relates to child-specific UK legislation, as much as to the text of rights Conventions. 

 

To exemplify, the Children Act 1989 establishes rights to welfare and protection from harm, and to have feelings taken into account as far as they can be ascertained, and requires statutory bodies and courts to uphold those rights.

 

    1. Interpretation and application of rights to children requires specialist gauging in relation to age, dependency, and understanding of the child.

 

    1. In practice, engagement and interview of children in relation to any rights casework is a specifically different skill to that of engagement of adults who might require the services of a rights ombudsperson.

 

  1. I would propose the following functions for a children’s rights specialism within a human rights ombudsperson service:

 

    1. Provision of independent Opinions in response to questions on the application of children’s rights that are raised by individual children, their parents or carers, children’s advocates, children’s lawyers, and by public bodies or bodies carrying out public functions, based on ECHR, the UN Convention on the Rights of the Child, and UK law relating to children.

 

    1. Maintenance, updating and publication of an anonymised Opinions Log of children’s rights Opinions issued, both as a basis for provision of advice on frequently asked rights questions, and as a publicly available reference on the application of children’s rights.

 

    1. Individual ombudsperson casework on children’s rights cases, including investigation, findings, recommendation and follow up monitoring.

 

    1. Issuing public advice on children’s rights issues from time to time, based on independent opinion on the application of ECHR, UN Convention and rights conferred by UK children’s law.

 

To contribute to the further Terms of Reference of the Joint Committee’s inquiry in relation to a children’s rights ombudsperson function …

 

Resourcing

 

  1. A children’s rights unit within the human rights ombudsperson function would require legal specialist advisers in the field of children’s rights and law, a casework team skilled in working with children and with specialist knowledge of education, children’s services and children’s healthcare, staff to maintain an Opinion Log, robust and high level IT provision, and communications and response staff including those to operate a children’s helpline, plus administrative support.

 

Powers

 

  1. A children’s rights unit would require the same ombudsperson powers as the wider human rights ombudsperson function, regarding investigation, requiring information, interviewing, recommendation,  publication (but strictly anonymised in relation to children), and follow up.  But these would require specific child-related skills for work with children of different ages, working with adults representing or purporting to represent the rights and welfare of any child, and assessing a child’s competence, consent or withholding of consent, safety, welfare, wishes and feelings.

 

  1. Power independently to interview or otherwise assess a child’s experience of a given situation and the child’s concerns, views, wishes and feelings, in any reasonable manner.

 

  1. Duty and power to make, and require a report back on, a safeguarding referral to the relevant statutory authority should an officer of the ombudsperson consider a child to be suffering or at be at risk of suffering, significant harm.

 

Interaction with existing mechanisms and bodies

 

  1. In relation to a children’s rights ombudsperson function, interaction would be needed with UK national Children’s Commissioners, UNICEF, Local Authority children’s rights staff, children’s advocacy organisations, children’s lawyers and academic departments concerned with children’s law.

 

Other steps beyond a rights ombudsperson

 

  1. The Committee’s Terms of Reference specifically ask for views on any other steps that might be taken in relation to human rights and freedoms, alongside a Human Rights Ombudsperson.

 

  1. The application of rights is not static.  Beyond international Conventions declaring universal rights principles, the individual experience of rights, or their denial, is dependent on the many relevant specific provisions of national legislation, and that is subject to constant and regular change.  Alongside this, the application of individual rights – and risks to individual rights - develops over time with changes in society and technology.  In very recent experience, the application of rights and freedoms has required review – and public assent in practice -  in relation to Covid lockdowns, restrictions and precautions.

 

  1. This argues for a proactive standing process for public review of the application of universal rights in practice, as law and society change, but not of those rights themselves.  Such standing review requires a mechanism which is independent of the executive and legislature.

 

  1. It may therefore be worth considering the establishment of a regular citizen’s assembly to review the application of human rights. 

 

  1. My own experience of consultation with children on policy issues over the past 20 years suggests that in the field of children’s rights, a similar standing consultation process with children and young people would be effective in monitoring, reviewing and providing public advice on the evolution of the application of children’s  rights and the emergence of new risks to their rights and freedoms.

 

Conclusion

 

  1. Should the Committee be persuaded of the case for a Children’s Rights function within an ombudsperson service, I would be happy to contribute further if that would be of any assistance.

 

 

Roger Morgan

 

23/06/2022