I know that some of my commenters have been interested in this in the past, and in particular the curious half-way house that the UK finds itself in with the UN Convention. We recognise it in our law, but don’t consider ourselves to be bound by it. The Government has agreed to take it into account when formulating policy but there isn’t a cause of action that a person can take to Court to say “I think X has acted in breach of the UN Convention”
That came into very sharp focus in the Supreme Court’s decision as to whether the Government’s policy on a cap on welfare benefits was discriminatory and in contravention of the UN Convention on the Rights of the Child – since children of parents who were (a) on benefits and (b) had large families were going to find themselves poorer through no fault of their own. Had the UN Convention been a formal part of English law, what was a knife-edge decision that the policy wasn’t discriminatory might easily have gone the other way.
[When I say knife-edge, I’m not kidding. It was 2-2, and the Judge who made the fifth judgment had gone the other way in his original decision, but changed his opinion when he saw the other draft judgments. It honestly could not have been closer]
See the excellent summary in UK Human Rights blog, which I couldn’t hope to match.
And the other newsworthy item on the UN Convention is the Parliamentary report on the UK’s compliance with the UN Convention here :-
Click to access UK_s_compliance_with_the_UN_Convention_on_the_Rights_of_the_Child.pdf
summarised very well by the people at Jordan’s Family Law here
The Report also points to areas, such as immigration, legal aid and children in custody, where some policy developments have actually worked against the best interests of children, despite the Government’s specific commitment to the United Nations Convention on the Rights of the Child (UNCRC) made in December 2010.
The Committee expresses its disappointment that, during the current period of austerity, children – particularly disadvantaged children – have in certain areas suffered disproportionately, and concludes that the Government’s statutory duty to eliminate child poverty by 2020 should be treated as a human rights issue.
The Committee also states that the Government should move to ratify the Optional Protocol to the UNCRC which would allow children in the UK the right to individual petition to the UN Committee on the Rights of the Child in the same way that applies under the UN Convention on the Elimination of Discrimination Against Women and the UN Convention on the Rights of Persons with Disabilities.
REMOVED AT REQUEST OF COMMENTER 25.01.19
Simon Hughes ,minister of state for children and civil liberties stated quite clearly that children aged 10+ should be able to speak to the judge ,The U.N Convention says that children’s voices should be heard by the courts on matters that concern them;As usual however the judges circumvent the law and either rely on the guardian (often an ex social worker) to tell them the child’s views (often contrary to what the child really thinks) or allow them to see the judge in chambers guarded by a social worker or cafcass official with no representative of the parents present thus ensuring that the child dare not ask to go home .
The fact is that if children say they do not want to see their parents the social services are delighted to produce videos to that effect but if the children say they miss their parentsand want to go home or that they are being badly abused in fostercare then of course it is decided that the poor children would be traumatised if allowed to come to court and so they are quietly and efficiently gagged.
This is the sad reality.
As I understand it, Wales adopted the UN Convention on the Rights of the Child as ‘law’ some time ago however I have never been clear how that systematically translates into practice that might be beneficial to children. Wales has a Children’s Commissioner (as does England I believe) but when I have raised points related to Family Law and how ‘Rights of the Child’ might be promoted in practical terms at Stakeholder events in relation to the Family Justice Review, there was nothing new suggested and in fact points made about the difficulty of vulnerable and traumatised children being able to voice their views without having therapeutic support to get them to a point where they could manage this,went nowhere.
It seems to me, sadly, that trumpeting the Rights of the Child, will be of no use to real children in real and difficult situations unless some actual changes in practice are attached to the political spin and self congratulation that goes with the ‘all children have a voice’ type mantras that get trotted out – because they don’t.
I could have sworn that Wales didn’t have its own legal system
The argument about why the convention should be binding has some merit, but I am going to stick my neck out, and say that this particular case illustrates why it would be a mistake (at least given the current trends in terms of how it would be used).
I am very happy with the concept of separation of powers, very much favour giving judges room to make just decisions based on the individual circumstances, and generally believe it is best to have legal restraint on what the executive can do.
However, we also need governments to be able to govern, and part of that is making policy which targets particular groups.
I have fostered way too many badly neglected or abused children from very large “families”, almost always with multiple (often unknown) biological fathers, none of which are playing a positive role in the children’s upbringing.
Given readily available contraception, my observation (based on contact with the mothers) is that the major reason for most very large “families” (where the mother is on benefits) is that each child attracts a significant payment, and matching accommodation.
I strongly disagree with many of the current government’s policies. Those relating to legal aid, judicial review, etc are truly shocking.
However, based on hard analysis, I happen to think that capping benefits payable is critical to removing the perverse encouragement to have children simply as a way to get cash (with that cash rarely being actually used on the children anyway).
Many people might disagree with this position, (and come the general election they are free to vote for a party with different policies,) but I strongly believe that it should be lawful for a government to enact such a targeted policy.
There _is_ a place for this equality of treatment at an individual level, and I strongly support almost all current sex, disability and race equality legislation. I also strongly support fundamental rights.
However, there is a major difference between using legislation to prevent individual discrimination, and requiring that, on statistical analysis, no government policy must have a disproportionate effect on “group X”.
Almost every government policy will have winners and losers, and the losers will almost always fall in particular groups. Once you start saying “group X must never lose out” you are effectively either saying that “group Y and Z must always be the ones who lose out instead”, or that any kind of targeted policy (deliberate or otherwise) is illegal.
This either leads to paralysis or the making of indiscriminate policies which don’t target those most in need (because by definition this means you are disadvantaging everyone else).
(P.S. I await the day that post some major disaster, there is a human rights challenge from men on the injustice of the principle of “women and children first” 😉
I prefer to live in a country that has the power to make its own laws – rather than having them made by another (unelected) bureaucrat.
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The result is social cleansing…..
I think this shows that judges are swayed by the government of the day and are not truely independant even after 300 plus years of evolution towards “true independence” from the Act of Settlement 1701 to the Constitutional Reform Act 2005, and that we do need the european court of human rights for their indepence at least.
This case reminds me of Campbell and Cosans v UK, not because of the actions of UK judges but because even though the UK was a signatory to the european Convention on human rights (and had even helped draft it), the UK state continued to use corporal punishment in schools and therefore violate children’s human rights and those of their parents who disagreed with corporal punishment.
You say “independent” I say “unaccountable”, lets call the whole thing off…
More seriously, I’m quite a fan of parliament making clear laws (not that they often manage that) and then the judges making decisions based on those laws. In this model you really do want independent judges.
The problem (to my mind) of some of these higher level charters is that by their nature they offer judges a huge degree of flexibility in terms of what they mean, which in turn can lead to judges effectively _making_ huge swathes of policy and law. This then makes the process very political, removing the separation which is supposed to exist, and which justifies independence.
There are risks and unaccountability with judges wherever they may be, but is there any true accountability or independence at all with judges or governments and are we all infact being hoodwinked and looking at the wrong issues.
Even the european court of human rights is not truely independant. If you look at abortion after sidestepping and remaining silent on the issue of the unborn’s right to life article 2 (it hasn’t ruled it in or out), it basically left it for individual states to take responsibilty for legislating for abortion.because of the discrepancies across its Jurisdiction on the issue.
Governments are supposed to make laws we want and support.
We have a “representative democracy”, which is controlled by the political elite.
Parliament is elected and the balance of power changes little (if it changes at all) and then those elected to represent us, our servants, do pretty much as they please. They all give eachother credibility in what can look like a “gentlemens” agreement at times and even dictatorship. Yes we can vote them out, but I don’t think that holds them to account for their actions or lack of and only replaces them with the flip side of the same coin and in the longterm the direction of travel is the same. They basically ignore the masses and listen to the lobbyists and business (including the “free” press).
I used to think that a sort of jury would make a good second house above the MP’s, to replace the political and legal elite, it could of vetoed the first house holding it to account and been the supreme court too, but now I think isn’t the technology good enough to do away with “representation” altogether and make a truely participatory democracy. accountable to ourselves.