Written evidence from the Children’s Commissioner for England (COV0143)
Rt. Hon Harriet Harman MP
Chair, Joint Committee on Human Rights
House of Commons
London, SW1P 3AA
18th June 2020
Thank you for your letter of the 8th June. I am very pleased to see the Committee focusing on children as part of their enquiry into Covid-19 and the human rights implications.
Today I am providing brief answers to your question and a short written evidence submission highlighting what I believe to be the key rights issues facing children during Covid-19. I have tried to limit my evidence to the most salient points and pressing issues: children’s right to an education, the basic rights of children in custody and the rights of children with special educational needs and mental health. However, this represents just a selection of the work I have undertaken since the onset of Covid-19, so if there are any topics on which you’d like more detail, please do not hesitate to contact me.
As always, if there is specific work the Committee would like me to undertake, or data that I may be able to collect, I will endeavour to do this.
Anne Longfield OBE
Children’s Commissioner for England
The Children’s Commissioner’s Office (CCO) response to the Chair’s questions:
Q: “How is the Government consulting you with regard to legislation, regulations and guidance in relation to children? For example, have you been consulted by the Ministry of Justice in relation to the release of pregnant mothers and those in Mother and Baby Units?”
In terms of changes to legislation and regulations, the Government’s attempts to consult with the Children’s Commissioner’s Office and with children more generally have been limited. The most significant changes introduced post-Covid have been the extensive relaxation of safeguards for vulnerable children in the social care system. We were not consulted on these prior to publication. We were informed of the regulations two days before they were published; we did respond with questions about the regulations but did not have an opportunity to make changes. After publication we have shared our concerns with the DfE and publicly about the changes, but for the most part these concerns have not been acted on. The Children’s Commissioner’s statement on the guidance is published on our website:
Nor were we consulted on the first iteration of guidance on children’s social care – this was particularly concerning guidance as it said that councils would not need to meet their statutory duties and could prioritise as needed. We were consulted on the second iteration of the guidance. To inform the Parliamentary Debate on this topic, last week the CCO published its response to this guidance:
As the response makes clear, our over-arching concern was that the guidance seemed only to be informed by the needs of local authorities and providers within the children’s social care system. There was a failure to prioritise the needs, rights or interests of. The most substantive of our comments – around having clear safeguards on use of regulation changes, and guidance around proactive safeguarding arrangements with so many safeguarding partners operating in more limited ways – were not addressed.
Other measures in the Coronavirus Act, upon which we were not consulted, but about which we remain concerned, are the provisions to relax the responsibilities on local authorities regarding Education Health and Care Plans for children with Special Educational (SEND) Needs and Disabilities and provisions on the use of the Mental Health Act. Our statement on the statutory changes to SEND provision is available here: https://www.childrenscommissioner.gov.uk/2020/05/12/changes-to-send-duties/
Nor were we consulted about changes – introduced through regulations enabled by the Coronavirus Act 2020 to the rights and entitlements of children in Youth Offending Institutes (YOIs). The Prison and Young Offender Institution (Coronavirus) (Amendment) Rules 2020, effectively regularise what was an emergency situation introduced following the beginning of lockdown. This includes a set of draconian measures undermining child’s rights to have visits from families, other professionals, access education and enjoy other activities. Moreover, the regulations allow these restrictions to be extended for 6 months longer than any Coronavirus-related restrictions in place in the rest of the country.
The CCO were not consulted about, nor made aware of the changes before they were implemented. Furthermore, when the Commissioner raised concerns about the impact of these changes on children’s rights and entitlements with the Ministry of Justice, the Department’s response failed to acknowledge the full implications of the changes on children’s rights. More details on the issues this is causing for children are included in our full written evidence submission.
In other areas, the Commissioner has not waited to be consulted. Where we are aware of rights threats to children, the Commissioner has been forthright in contacting the relevant bodies. While we were not consulted by the Ministry of Justice (MoJ) on Mother and Baby Unit releases, we did ask for information on the number of children of mothers released, and the plans for those in Secure Training Centres; we were told that 70 women were in scope for early release plans. We have subsequently been told that 22 women have been released from adult prisons while none were released from Secure Training Centres. We have also been proactive in making our case to the MoJ about child prisoners, please see the accompanying Written Evidence Submission for details.
Q: What role have you played in the development of the contact tracing app, and do you have any particular concerns in relation to the rights of children?
We have not been formally consulted on the development of the contact tracing app. We were informally contacted by the team developing the app who asked us for the best person for them to contact within the Department for Education. We understand that where the devolved administrations are developing their own apps, the respective administrations have engaged the relevant Children’s Commissioner.
There are a wide-range of rights issues this raises in regard to children:
However, to-date we have not been given enough insight into how the app will work to be able to offer a detailed commentary on all the rights implications. A Childs Rights Impact Assessment should be completed on this policy.
Q: How are you working with other agencies, such as the police and local government to ensure that children’s rights are protected at this time?
The Children’s Commissioner has a regular dialogue with senior leaders in children’s services, the police, the Youth Custody Services and the NHS, as well as Government Departments. Much of this has been made more frequent to reflect the speed at which the situation has changed.
In addition to this engagement, the Commissioner has written to the Treasury about the financial support needed for families, MHCLG about the needs of homeless families and the DWP about Universal Credit. We have published our letters on our website. https://www.childrenscommissioner.gov.uk/2020/03/24/anne-longfields-letters-to-the-secretary-of-states-for-hlgc-the-dfe-and-dwp-regarding-the-impact-of-the-coronavirus-outbreak-on-children-and-families/
Most of this engagement has been consensual and collaborative. However, the Commissioner has invoked her statutory powers to formally request data from the DWP, NHS England, individual inpatient units and the Youth Custody Service. The Commissioner has also written formally to those local authorities who have attempted to prevent the wider re-opening of schools reminding them of their statutory obligations towards children and asking how they considered children’s best interests in coming to their decisions.
This submission is made on behalf of the Children’s Commissioner for England, Anne Longfield OBE. The position of Children’s Commissioner is created by the Children Act 2004. The primary function of the Commissioner is to ‘promote children’s interests and rights’. This submission will, therefore, focus on some of the most significant rights issues pertaining to children in relation to the Covid-19 response.
This submission focuses on children’s rights in the following areas:
Children’s Right to an Education
Getting children out of the workplace and into the classroom has been the defining child rights struggle of the last 200 years. Article 28 of the UN Convention on the Rights of the Child recognises the rights of all children to a primary and secondary education. Yet in England, it is only since 2013 that all children have had to be in education or training until they become adults, something that has still not been achieved in the other nations of the UK.
That is why we have to take any deprivation of education extremely seriously. This is happening in England to an unprecedented degree. Up to 8 million children are likely to lose out on six months or more of education as a result of the coronavirus crisis. The evidence is now clear, as the Children’s Commissioner’s Office outlined in our evidence to the Education Select Committee, there is now very strong evidence that the majority of children at state schools are doing very little teacher-led learning each day. This is particularly so for those in the most deprived communities, but much less so for those attending private schools. This huge disparity is in itself a children’s rights concern: Article 2 of the UNCRC requires that children are not discriminated against because of their circumstance. Yet there is overwhelming evidence that being away from school is more damaging for already disadvantaged and vulnerable children.
Schools provide a whole host of rights for children beyond formal education. Article 29 of the UNCRC mandates that “Education should help develop every child’s personality, talents and mental and physical abilities to the full”. This supplements Article 31 which recognises that “Every child has the right to relax, play and take part in cultural and artistic activities”. These are not things which come from an online tutorial but are nurtured in the classroom and developed in the playground. Many children will get these opportunities, support and stimulation at home. But there are many children whose family don’t have the resources – time, knowledge, study space, technology, money – to provide a home environment in which children can develop their interests. For these children, schools plays this role too.
Economically disadvantaged children are not the only ones whose rights are particularly infringed. Article 23 of the UNCRC makes special provision for those with mental or physical disabilities to “get the education, care and support needed to lead a full and independent life”. In England this is achieved through Education, Health and Care (EHC) plans for children with more complex needs. However, the Government has suspended children’s absolute rights to the provision set out in their EHCP, with councils only required to make “reasonable endeavours” to deliver this provision. Of course local authorities and CCGs are working under extremely challenging conditions and clearly not all provision for children with SEND can be delivered in the usual way at the moment while schools are not open in the usual way. However, the downgrading of key duties towards children with SEND is disproportionate to the situation. The SEND system was already under considerable strain before Covid-19 and these changes could result in local services being stripped back further.
While some of these children may be returning to school, the vast majority are not – and many will find it difficult to until their rights to their EHCP are fully reinstated. This means they many are missing out on the specialist support that comes with being in school, whether that be provided by teachers, carers or other professionals (such as speech and language therapists). Furthermore we are hearing a worrying number of examples where:
All of these examples are serious breaches of a child’s right to education and to fair and equal treatment. At present, the optional basis on which schools are returning, and the suspension of Ofsted inspections, means there is no adequate redress for these children.
From a rights perspective, school also provides a whole host of protective factors around children which keep them safe from threats outside the home, or recognise the threats to children that exist at home. In doing this, schools form a vital role in delivering Articles 19, 33, 34 and 36 of the UNCRC, which are all about protection from harm.
All of this has to be balanced against another very fundamental right children enjoy: the right to life. Article 6 of the UN CRC makes very clear that states need to go a long way to preserve this. Therefore where there is a clear health risk to children there is also a clear justification for keeping them away from schools and other facilities. For some children – those with health conditions and disabilities – this is particularly important. But yet an increasing body of evidence has demonstrated that the risk to individual children from Covid-19 are extremely low. This has led Sir Patrick Vallance, Chief Scientific Advisor to the UK Government to conclude: “It is very clear that children are at much lower risk of clinical disease and severe disease. For severe disease, the evidence is absolutely clear that they are at very much reduced risk—not zero risk, but very, very much reduced risk. There is also reasonable evidence to suggest that they are at lower risk of getting symptomatic disease or clinically evident disease, so the effect on children is much, much lower”. Even the emergence of a linked inflammatory syndrome, similar to Kawasaki disease, has not significantly altered this. As Prof Russell Viner, President of the Royal College of Paediatrics concluded “The syndrome is exceptionally rare. [its emergence] shouldn't stop parents letting their children exit lockdown”.
This allows us to conclude that for most children (with notable exceptions for children with underlying health conditions which make them more susceptible to the virus), it is, on balance, in their best interests to be back at school. Yet the vast majority of children will not be back in school before September. While the Prime Minister made education one of his top-3 commitments for the easing of lockdown on the 30th April, since then education appears to have fallen down the priority list. Children won’t be back in the classroom until months after the opening of all shops, amusement parks and now it appears pubs and restaurants. In short, the prioritisation given to education within the easing of lockdown does not seem commensurate with its importance for children.
All this is discussed in our policy briefing on whether children should return to school:
The CCO’s Head of Public Affairs has written a blog on the rights implications of children being out of school which covers these issues in more detail: https://www.childrenscommissioner.gov.uk/2020/06/15/how-the-covid-19-crisis-has-affected-childrens-right-to-an-education/
The rights of children in contact with the criminal justice system
The rights of children in youth custody
As mentioned in the Commissioner’s letter to the Committee chair, our biggest concern in relation to youth justice is the conditions inside Youth Offending Institute’s (YOIs) and to a lesser degree other accommodation within the secure estate (Secure Training Centres and Secure Children’s Homes). The regime implemented in response to Covid-19, and formalised by regulations passed under the Coronavirus Act, is draconian: children regularly spend between 20 and 23 hours in their cells, their rights to visits either from family or other professionals have been removed, their access to education massively curtailed and their ability to socialise and partake in basic activities are extremely limited.
All of this is detailed in the Children’s Commissioner’s report on children in custody during coronavirus: https://www.childrenscommissioner.gov.uk/publication/children-in-custody/
The report details an emergency routine which has led to deprivation of basic rights to education, family life and leisure activities. All of this is likely to have long-term effects on the children incarcerated. What was implemented as an emergency procedure has now been regularised through sweeping powers which enable these measures to be extended for six months past the end of coronavirus-related restrictions in the rest of the population.
The changes introduced by these regulations have been particularly problematic in terms of:
The change in relation to education means that only ‘reasonable endeavours’ must be made to provide education to children in YOIs. This change in children’s entitlements to education has not been replicated in the community, with other vulnerable children still entitled to face to face education throughout this period, in spite of the challenges caused by Covid-19.
While it is inevitable that Coronavirus would have created challenges for secure settings, the Children’s Commissioner believes there were numerous ways to avoid the draconian measures imposed on children. These were outlined in a letter from the Commissioner to the Justice Secretary in March (before the Ministry of Justice laid regulations to prolong emergency measures for undetermined length of time). This letter is published on our website: https://www.childrenscommissioner.gov.uk/2020/03/25/calling-on-the-lord-chancellor-and-secretary-of-state-for-justice-to-ensure-the-rights-of-children-in-custody-are-upheld-during-the-coronavirus-outbreak/
One way of reducing pressure on the youth custody estate would be to reduce the incarceration of children held on remand. As the Commissioner’s letter to the Lord Chancellor outlined:
“Though guidance states that children should only be remanded to custody as a last resort, around 240 children are currently in custody on remand. Two thirds of these children will not subsequently receive a custodial sentence. Furthermore, the suspension of criminal trials has left these children in indefinite limbo. Reducing the number of children who are remanded in custody would immediately reduce pressure on the secure estate in this difficult time and improve the experience of children who will remain there.”
The guidance referenced stems from the Legal Aid and Sentencing Act 2012, which made children held on remand the responsibility of local authorities as looked after children. This was supposed to mean children would not be in the secure estate, but that has not happened. Instead, we find local authorities paying to place looked after children in the secure estate, which is both expensive and overly punitive for children who have not been convicted.
Failure to follow guidance on remand is not the only longstanding issue which has been brought into stark relief by Covid-19. The issue of the limited time children spend out of cells is also longstanding, although exacerbated by the crisis. The Children’s Commissioner’s Office undertook unannounced weekend visits across the secure estate during January and February 2020, finding it was common for children to be in their cells for in excess of 22hrs in YOIs and that in both YOIs and Secure Training Centres the range of meaningful activities on offer for children was derisory.
Finally, the Commissioner would like to draw the Committee’s attention to the process of Reverse-cohorting - 14 day isolation for new arrivals/children returning from appointments. This process requires that children who are new to the setting or have to leave (for court appearances etc.) must be kept in total isolation for 14 days. For children who arrive on the same day as others, they may be kept in small ‘family groups’, and can access other activities with those children. Some, however, will enter the setting without any others and will subsequently be kept in total isolation for 14 days. This time could be significantly reduced (to 2 or 3 days) if these children were routinely given expedited access to coronavirus testing. This is not available to all children, which unnecessarily increases the long periods they have to spend locked in their rooms alone, which is akin to solitary confinement. Moreover, more could be done to facilitate court visits online to avoid the need for a child to leave where they are staying and therefore have to isolate again.
Other rights issues relating to criminal justice
Long delays for cases to be heard by the courts
Covid-19 has led to long delays for criminal trials to be heard.
Access to professional visits
The work of the Children’s Commissioner has mainly focused on the physical conditions in prisons, the lack of access to family visits and the impact of this on their immediate quality of life. However, the banning of professional visits is likely to have wider implications for children’s access to justice and due process. Only being able to access legal professionals virtually is likely to negatively impact the relationship with children and their lawyers, and make it harder for lawyers to support children.
Right to family life for children whose parents are in prison
Just as children in custody have a right to family life, so too do children who have a parent in custody. Children have a right to family life and this right is currently severely reduced for children with a parent in prison who they currently cannot visit. The Children’s Commissioner believes the Government is not doing enough to mitigate or reduce that loss. Video visits have been promised by HMPPS, though only 20 prisons out of 117 now have the facility to offer video calls to prisoners. 97 prisons do not have the facility to offer video calls.
The rights of children in contact with the social care system
As outlined in the Commissioner’s letter to the Chair, our biggest concern in relation to children’s social care has been the changes to key social care regulations implemented by the Department for Education. As explained in the Commissioner’s letter, the CCO views these as unnecessary, detrimental for children’s rights and a distraction from the much more fundamental issues about how to keep children protected during Covid-19.
At the moment, the Commissioner is particularly concerned about:
Wider changes in relation to Covid-19
The changes to regulations and the onset of social distancing have meant a move to virtual support and less face to face support. We have heard that some children – particularly teenagers – have appreciated this change, but it is likely to be much more challenging for pre-verbal children or children with communication needs.
Social distancing has also led to big changes in the way children interact with their birth families, potentially impacting on their right to family life. The Children’s Commissioner’s helpline for children in care ‘Help at Hand’ has been contacted by many foster carers and others concerned that children in their care have not been allowed face to face visits with their birth family, and that blanket rules have been put in place even though guidance is clear that this should be done on a case by case basis.
The rights of children with special educational needs and disabilities
As outlined in the previous section of education, the Children’s Commissioner believes that children with special educational needs have been particularly disadvantaged by the closure of schools and face being further disadvantaged in the return to school unless: (a) funding is made available to support the extra costs associated with providing schooling for children with SEND in a socially distant environment; (b) the Government sets a very clear expectation on schools and local authorities that no excuses will be tolerated when it comes to depriving disabled children of their right to education.
Instead of this, however, the Government have decided to downgrade the statutory duty on local authorities in terms of meeting the educational requirements of children with special educational needs. The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (S.I. 2020/471) amend four sets of Regulations for the period 1 May to 25 September 2020, making sweeping changes to the obligations on local authorities to meet the needs of disabled children.
The most important of these changes are that:
The Commissioner has outlined her position on the regulations, and the sensible compromises she would have liked to see implemented instead. This is available here:
There are children whose disabilities are so significant they need to be looked after by the state. These children are usually on voluntary care orders under sect.20 of the Children Act 1989. The families of children tend to be heavily involved in their life, with lots of contact and children often spending weekends and other periods at home. Coronavirus has had a huge impact on these visits both to settings in which children are cared for and children to home. Many of these children will have disabilities which will inhibit virtual contact – such as children who are non-verbal. Therefore the impact on the right to family life for these children has been enormous.
The rights of children with mental health issues
In response to Covid-19 most community mental health services have gone online. Our previous qualitative work with children suggests that some children prefer this, but that for some children it will not provide the same level of support. At present, it is too early to understand the full impact on children’s mental health services.
The focus of the Children’s Commissioner’s Office has been on inpatient facilities. To date, we have attempted to speak to patients in these facilities through calls and, informed by these conversations, we have issued a statutory data request to all units to understand how care and provision has been affected by Covid-19.
The conversations we have held with children suggest that many therapeutic interventions – in some cases including psychiatry are provided remotely and often children felt that this was leading to a reduction in the overall level of provision. When children are sectioned under section 3 of the Mental Health Act it is dependent on appropriate treatment being available – it appears their right to this treatment has been affected. For example, the CCO is aware of one child who was hard of hearing. The nature of video technology and staff wearing masks meant lip reading was almost impossible – children with other communication needs will likely have been disproportionately affected. The Children’s Commissioner is issuing a data request to confirm this pattern.
The children we have spoken to raise the difficulties of not being allowed to have face to face visits with their families. The guidance is now clear that visits can happen, although one child said how hard it is knowing that ‘everyone else can hug their parents, but I can’t’.
 Some minor comments were addressed: eg increasing references to best interest decision making, clarifying that visits should return to face to face as soon as possible, and removing references to deprivation of liberty guidance that did not apply to children.
 Article 28 of the UN Convention on the Rights of the Child
 See https://yjlc.uk/covid-19-video-link-hearings-custody-time-limits-and-delays-for-children-in-the-criminal-courts/ for further details