Dr Rhian Croke, Children’s Rights Strategic Litigation and Policy Advocacy Lead, Children’s Legal Centre Wales
There is so much that could be said about the facts of this case (please see another blog by my colleague Prof Simon Hoffman) but in this blog, I am going to focus on the failure of Welsh Government to pay due regard to the UNCRC and to undertake a Children’s Rights Impact Assessment (CRIA) on a significant budgetary decision that has had a negative effect on some of the poorest children in Wales.
The Welsh Government’s decision to end free school meals in the holidays was made without due regard to the United Nations Convention on the Rights of the Child (UNCRC). In other words, the Welsh Government did not take the impact on children’s rights properly into account when they took the decision to end the provision of free school meals during the school holidays. Neither did the Welsh Government give proper consideration to how the decision would impact on people with protected characteristics, such as disabled people or ethnic minorities.
Following a legal challenge by the Public Law Project, the High Court declared that the Welsh Government’s last-minute decision to stop free school meals in the school holidays last June, was unlawful. The Public Law Project successfully argued that Welsh Ministers breached the Rights of Children and Young Persons Wales Measure 2011 and the Equality Act 2010. (You can read more about the case here)
This is a landmark case – as it is the first time the court has declared that Welsh Ministers acted in breach of their duty under the Rights of Children and Young Persons (Wales) Measure, since its introduction in 2011. I was privileged to be able to support the Public Law Project on this case – who are active members of our All-Wales Child Rights Strategic Litigation Group. There is so much that could be said about the facts of this case, but in this blog, I am going to focus on the failure of Welsh Government to pay due regard to the UNCRC and to undertake a Children’s Rights Impact Assessment (CRIA) on a significant budgetary decision that has had a negative effect on some of the poorest children in Wales.
Making decisions without robust analysis of the impact on children’s rights
The Welsh Government failed to follow arrangements set out in its own Children’s Scheme requiring a CRIA of decisions affecting children’s rights. If this had been properly carried out it would have helped Welsh Minsters pay due regard to – or give proper attention – to children’s rights when making their decision.
It is clear (from equalities law) that CRIA should be carried out in such a way as to ensure those who are responsible for making government decisions ‘consider with substance and rigour and an open mind’, how their decision will impact on the full range of children’s rights. The process is also meant to be informed by evidence gathered from meaningful consultation with children who may be affected by a decision.
The UN Committee on the Rights of the Child [‘Committee’] says that ‘CRIAs should be part of each stage of the budget process and should complement other monitoring and evaluation efforts’. The Committee also makes it ‘clear that in times of economic crisis, regressive measures may only be considered after assessing all other options and that children are the last to be affected, especially children in vulnerable situations’. Most recently in the Committee’s 2023 Concluding Observations to the UK Government and devolved administrations they recommended CRIA should be a mandatory requirement.
Unfortunately research in Wales has demonstrated that there is a lack of consistency in the application of CRIA by the Welsh Government and when CRIA is applied it is often too late in the decision-making process to make any difference to policy or budgetary decisions. Senedd Children and Young People Education Committee in a national inquiry on children’s rights echoed these concerns and most recently, failure to undertake CRIA or to undertake them too late in the decision making process, was reported by the previous Children’s Commissioner Prof Sally Holland, in evidence to the UK Covid Inquiry. With Professor Sally Holland reflecting on how this resulted in some decisions, during the pandemic, having a negative impact on children and their rights.
The Holiday Free School Meals case presents further evidence of a pattern of Welsh Government making decisions without a robust and considered analysis of a decision’s impact on children’s rights. These findings are disappointing because research has confirmed that, where CRIA is properly applied, it results in closer attention to the UNCRC in policy and better outcomes that reflect children’s rights. It is also concerning because it suggests that the decision was made with no accountability to the children concerned and consideration as to how to mitigate the negative impact on their lives.
Lack of transparency in spending on children
With regards to the decision to end Free School Meals in the holidays, the Welsh Government failed to carry out an Integrated Impact Assessment which encompassed CRIA. In this case an Integrated Impact Assessment (which included a CRIA), was only carried out after the decision had been made, and only when the Public Law Project had commenced their legal challenge. What followed was that the Welsh Government’s integrated impact assessment concluded there was a negative impact on children and their rights, but Ministers then went on to decide a lack of resources means that the free school meal provision would not be reinstated.
The Welsh Government argues that if free school meals are continued in the holidays this would result in significant cuts in other key education budgets. As a result of the Welsh Government’s failure to carry out CRIA on its overall budget, there is no transparent evidenced consideration of this decision as an aspect of the Welsh Government’s overall budgetary decision-making.
The decision to withdraw fee school meal provision is worrying as paediatricians reported – when the decision was made that it will have an impact on children’s long-term health:
‘Every day, we see the impact of hunger and malnutrition in our work as paediatricians. It is not unusual for us to care for children who don’t have enough to eat or who don’t have access to a substantial meal outside of what is provided in school. Good nutrition is at the heart of health, wellbeing and development for children and young people. Without it, children’s health outcomes worsen, and with that, so do their life chances.’(RCPCH Wales 2023).
Furthermore, as Senedd Children, Young People and Education Committee, recently pointed out, there is a lack of transparency regarding spending on children, ‘raising significant challenges in terms of seeing what is spent and monitoring outcomes for children’. In a nation which aims to respect and fulfil children’s rights, evidence should be communicated publicly to confirm – or not – whether children are getting a fair and proportionate share of the budgetary cake. There should be a balanced and transparent consideration regarding what is – or is not – spent on children alongside other spending decisions.
Unfortunately, what has become increasingly evident is that adult services often get priority and therefore a more significant allocation of spend. This point has been made very recently in relation to child health, with RCPCH Wales, sharing evidence that children are waiting disproportionately longer than adults for health services, arguing that spending is skewed against the young. Similarly, this issue was identified by Mind Cymru in an earlier report that children are waiting longer for mental health services. As Senedd Children, Young People and Education Committee comment:
‘It is our view when the public purse is tight, more than ever, we must be rigorous in making sure children and young people’s rights are not overshadowed by the situation for adult health and social care. We do not accept the Welsh Government’s rational that a separate CRIA (of the Welsh Government Budget) is not needed’.
Like Senedd Children, Young People and Education Committee, and many organisations in the children’s sector in Wales, we have been calling for a CRIA of the Welsh Government budget so we can understand and hold the Welsh Government to account to demonstrate that they are spending to the ‘maximum extent of available resources’ on the fulfilment of children’s rights in Wales (Article 4 UNCRC). However, the call for CRIA of the Welsh government budget is consistently rejected.
Final reflections
The Welsh Government regularly communicates that it champions children’s rights and embraces a Children’s Rights Approach. However, the Public Law Project’s legal action on the free school meal decision demonstrates how the Welsh Government has failed to consider the impact of a budgetary decision on children’s rights.
We hope the legal challenge motivates the Welsh Government to take children’s rights fully and comprehensively into account in all its decisions. The decision that the Welsh Government acted unlawfully is significant and will certainly pioneer a pathway for further legal challenges if the Welsh Government fails to do so.