Dr Rhian Croke, Strategic Litigation and Policy Advocacy Lead, Children’s Legal Centre Wales

 

Recent events and reports on children’s rights

Recently, there has been reports and events that have helped us to reflect on where there has been progress and where there has been very limited or indeed no progress at all on the realisation of children’s rights in Wales. The Welsh Government’s report on progress against the UN Committee on the Rights of the Child Concluding Observations was published in July of this year and last month the Children’s Commissioner for Wales  Annual report  was also published. Both reports indicate that there still needs to be so much more progress on the implementation of children’s rights in Wales.

We also held our event ‘Children’s Rights and the Law’ at the end of September co-hosted with our partners on the Child Law Network – which invited reflections from the Children’s Commissioner for Wales and the Chair of Senedd Children and Young People Education Committee, invaluable and insightful reflections from our sister lawyers on the Child Law Network and lawyers and policy leaders from across Wales, on children’s rights issues of concern. We reflected at our event, that the indirect incorporation of the UNCRC into law via the Rights of Children and Young Person’s (Wales) Measure 2011 has certainly helped to embed children’s rights into national legislation, policy and guidance, but we are still seeing a stubborn implementation gap, whereby children’s rights are taking too long to be translated into practice.

 

Scotland v Wales: ‘race to the top’ on children’s rights

We are it is true, witnessing, the full impact of austerity, that is certainly hampering the realisation of the fulfilment of many children’s rights.  We are also, however, witnessing inequitable realisation of rights depending on where a child is located geographically in the UK.  Examples of which I have referred to in several presentations this year, when making comparisons in particular, between children living in Wales and children living in Scotland.

For example, in Scotland:

  • Children, since direct incorporation of the UNCRC into Scots law in July, are able to legally challenge public bodies to act compatibly with the UNCRC, under the UNCRC Incorporation (Scotland) Act 2024
  • Children have access to the Scottish Child Payment, (an extra £26.70 per week) which is evidenced to be contributing to a lower child poverty rate and to be bucking the steep curve on destitution in Scotland. Most recently the Scottish Government has also committed to remove the 2- child limit. This stands in stark contrast to the stance taken by the UK Government to not end the 2-child limit and the benefit cap.
  • Children and young people 5- 21 years of age, have access to free bus transport, a call which was very recently rejected by the Welsh Government, even after detailed evidence by the Senedd Petition’s Committee, that this is having positive poverty alleviation and environmental impacts, and furthermore helps to promote inter-generational equity with older populations.
  • Children who are unaccompanied asylum seekers, have access to an independent guardianship service, successfully evaluated to have positive outcomes for this cohort of extremely vulnerable children, who are often deeply traumatised and struggle to navigate a complex asylum system.
  • Children are not deemed criminally responsible until 12 years of age and a law has recently been passed so that no child under the age of 18 will be held in young offender institutions. Recognising that the children who end up having contact with the criminal justice system, are most usually there, because of trauma, neglect, the negative impact of placements in an inadequate care system or undiagnosed neurodivergence.

With this more progressive ‘revolution in children’s rights’ Welsh Government, can no longer claim to be the leaders on children’s rights in the UK. And as Professor Ann Skelton, Chair of the UN Committee on the Rights of the Child makes clear, there should be no discrimination in the enjoyment of rights by children in different regions.

 

 

Clear and transparent evidence of financial and political decisions that impact the realisation of children’s rights

What is holding us back from racing to the top? Scotland has certainly optimised the context of their devolved legal settlement to maximise children’s rights, whereas devolved arrangements in Wales, have presented a different level of restrictions, in particular in relation to poverty and criminal justice.[i]

Justice and policing

We need to see Welsh Government more strongly advocating that the UK Government devolve justice and policing, which has been the long term ambition of the Welsh Government and also a recommendation of the Silk Commission in 2011, Thomas Commission in 2019. and earlier this year the call of the Independent Commission on the Constitutional Future of Wales. Otherwise, there are concerns that the status quo will remain, with barriers to raising the minimum age of criminal responsibility, which is out of alignment with international children’s rights standards and Welsh Government’s responsibilities to children’s rights. Furthermore, youth justice remains the only service for children in Wales that the Welsh Government is not responsible for. Devolving youth justice would help to remove existing barriers to joined up policy making and service delivery for children in Wales, as well as join up lines of accountability. Including promoting a distinctive, coherent Welsh approach rooted in children’s rights principles.

Poverty

Wales is the poorest region of the UK, with the highest rate of child poverty, we should be receiving money equal to other parts of the UK. We need to see Welsh Government advocating strongly for more money coming into Wales, with changes made to the Barnet formula (the recent UK Budget resulted in spending on a population basis, approximately, £620 per person for Scotland and only £541 per person for Wales). We also need to see full devolution of the Crown Estate in Wales, equal to Scotland. The proceeds of the Crown Estate are given to the Scottish Government, but not in Wales. We also need to see more control over benefits, giving the possibility of Wales having an equivalent Scottish Child Payment and the end to the benefit cap and the 2- child limit.

 

Austerity and accountability of budgetary decisions

Wrapped up in all of this, is the long- term impact of austerity decisions, which have certainly had negative impacts on so many facets of children’s lives, their mental and physical health, their additional learning needs and academic attainment, their standard of living and life expectancy. There was significant commitment and financing put into the cost benefit analysis of the 20mph speed limit.; we need to see the same commitment and evidence of the long term cost to society of not supporting this generation of children.

There should be transparency and accountability regarding the decisions that are made that deeply affect children in Wales. As has been advocated consistently by us, and indeed Senedd Children, the Welsh Government must demonstrate how they are meeting their obligation to have due regard to the UNCRC and how they are using the ‘maximum available resources’ to ensure children are able to access their UNCRC rights. There should not be a ‘no can do’ attitude without a detailed analysis of, why children are not having their rights fulfilled – including a balanced and transparent consideration regarding what is – or is not – spent on children alongside other spending decisions.

 

Final reflection

The UN Committee on the Rights of the Child rightly recommends that a tracking system for the allocation, use and monitoring of resources for children needs to be implemented with a view to eliminating disparities and ensuring equitability. They are also quite clear that children should not be affected by austerity measures and that regressive measures may only be considered after assessing all other options, ensuring that children are the last to be affected.

We hope that this will all be taken into consideration in the development of the Welsh Government Budget.

 

ENDNOTES

[i] Wales doesn’t have control over all matters. Some matters are reserved for the UK parliament. A number of these are consistent across all UK nations, but matters are different for Wales when compared to Scotland. The most obvious example is in the area of justice and policing which is devolved in Scotland.

Under the Scotland Act 2016, Scotland has the power to create its own benefits in certain areas e.g. the Scottish Child Payment. The UK Government still retains responsibility for many other benefits. The Scottish Government is working to mitigate the negative impact of the 2-child limit by allocating their own budget. Procedurally however, they need the cooperation of the UK Government to lift the 2-child limit.