Thursday, 29 December 2011

Rights of Children

Farndon-Holt Bridge
An old stone bridge crosses the River Dee and links the English village of Farndon with the Welsh village of Holt.  For many years, the historic and sinuous boundary between England and Wales was of little practical interest to most lawyers who practised the Law of England and Wales.  (The Bar had, and still has, the Wales and Chester Circuit).  Since the enactment of the Government of Wales Acts 1998 and 2006 things have changed. There is an elected National Assembly for Wales (Cynulliad Cenedlaethol Cymru) based in Cardiff and it is empowered to legislate within certain devolved areas - see Cabinet Office.  As a result, there are now some marked differences between the law in England and that in Wales.

In 1989, the United Kingdom signed the United Nations Covenant on the Rights of the Child.   This came into force on 2nd September 1990 and binds the United Kingdom in international law.  The Convention has not been incorporated by statute into English law.  However, it could be referred to
in court as an aid to interpretation of legislation on the basis that, unless clear words are used, it is presumed that Parliament does not intend to legislate contrary to its international law obligations.   The Welsh Assembly has taken matters further with the enactment of the Rights of Children and Young Persons (Wales) Measure 2011

The purpose of this Measure is to impose a duty upon the Welsh Ministers and the First Minister to have due regard to the rights and obligations in the United Nations Convention on the Rights of the Child (UNCRC) and its Optional Protocols, when making decisions of a strategic nature about how to exercise functions which are exercisable by them.  Some of the duties imposed by the Measure will commence in May 2012 with others to follow in 2014.

Hence, we have reached the situation where (arguably) the rights of children will be better safeguarded in Wales than in England.  Better in Holt than across the bridge in Farndon?  Given that the UN Convention binds the entire UK, is it not odd that such a situation is being allowed to come about?

In the 2002 to 2003 Parliamentary Session, the Joint Human Rights Committee considered the UN Convention (report) and said: 

"We do not accept that the goal of incorporation of the Convention into UK law is unrealisable. We believe the Government should be careful not to dismiss all the provisions of the Convention on the Rights of the Child as purely “aspirational” and, despite the ways we have listed above in which the CRC is currently able to exert influence, we firmly believe that children will be better protected by incorporation of at least some of the rights, principles and provisions of the Convention into UK law."

Since then, there have been repeated calls for incorporation of the Convention - see, for example, The Guardian 19th November 2010 - "Why it's time to incorporate the UN Convention on the Rights of the Child into UK law."    In 2011, the Scottish Human Rights Commission rejected calls for a UK Bill of Rights and stated:

"SHRC’s recommendation is that all of the UK’s international human rights obligations are incorporated into domestic law, including the UN Convention on the Rights of the Child, the UN Convention on the Rights of Persons with Disabilities and the International Covenant on Economic, Social and Cultural Rights, which is overdue."

For more information about the UN Convention see UNICEF

The Measure is explained at Children in Wales (Plant yng Nghymru) and also see Welsh Assembly.

In 2010, the Welsh Assembly enacted the Children and Families (Wales) Measure 2010 which seeks to eradicate child poverty etc.


  1. I'm afraid that the Bar Council is holding on to an anachronism here. Cheshire moved in to the Northern Circuit some years ago. The Wales Circuit is now Wales only. The functions of the MoJ are not devolved but the Welsh Government is currently consulting on a separate jurisdiction for Wales.

  2. I refer you back to my Comment at the 20 December post and the link to the Welsh Seal news item and earlier Comments I've made about Welsh legal devolution.

    "Is it not odd that such a situation is being allowed to come about" - odd or not, it's inevitable following the increasing powers being granted to the Senydd. How far it will go? - who knows? but the UK (or whatever it becomes) is going to have a more obviously federal legal system than it had in the last century.

  3. There is a great deal of information about the Bar's Circuit system on the Bar Council website - follow the link in the post.

    I also think that the UK is moving toward a "federal" system and, in my opinion, this may yet prove to be preferable to the complete break up of the UK.

    The Convention is international in nature. One might therefore expect the UK government to ensure that the Convention was applied evenly throughout the UK.

  4. Yes that is odd - HMCTS moved Chester into the Northern Circuit but the Bar Council websites show one set of chambers in Chester in the 'Wales & Chester Circuit' and one in the Northern Circuit.
    The UK Government was not as keen as the Welsh Government on the UNCRC when children's groups were pushing for it to be incorporated into domestic law. The position in Wales was arrived at after lengthy consultations and some compromises, but it is a step.