STANCE TOWARD THE UN COMMITTEE ON THE RIGHTS OF THE CHILD
In common with all but a very small number of State parties, the UK is a signatory to the United Nations Convention on the Rights of the Child (UNCRC), which it ratified in 1991 (Monaghan 2005). There is however an interesting distinction within the single jurisdiction of England and Wales in the two countries’ stance toward the Convention.
The Welsh Government adopted the UNCRC as the basis for policy making for children in Wales in 2004. In 2011, the Welsh National Assembly unanimously passed the Rights of Children and Young Persons (Wales) Measure which placed a duty on all Ministers to have regard to the Convention and its optional protocols. The Welsh Government (2014) has further published a Children’s Rights Scheme which specifies how this duty is to be discharged and describes accountability arrangements in relation to it. However, unlike other child services, youth justice is not a function devolved to the Welsh Government and the extent to which the commitment to a child rights agenda impacts directly on this policy area is accordingly limited. The Welsh Government’s (2013: 60-61) contribution to the most recent UK report to the UN Committee on the Rights of the Child notes three core principles that underpin Welsh youth justice provision:
- • ‘Early, appropriate and sustained intervention to reduce the flow of children and young people into the criminal justice system
- • Promoting resettlement and reducing reoffending after sentence
- • Most importantly, treating those involved in offending behavior, or at risk of offending, as children and young people first’.
Only the third is distinctively Welsh: the first two might equally well describe policy in England.
For its part, the English Government has made no attempt to enshrine the UNCRC into domestic law: the obligations which ratification entails are accordingly not directly enforceable. The Human Rights Act (HRA) 1998 does, however, incorporate the European Convention on Human Rights (ECHR) so that redress for any breach of that Convention’s articles is available in domestic courts. Moreover, the courts have increasingly shown an appetite for interpreting the provisions of the ECHR in the light of the UNCRC in cases involving children. As Baroness Hale put it in a House of Lord’s judgment in 2005 [Regina v Durham Constabulary and another  UKHL 21], the , UNCRC is:
‘not only binding in international law; it is reflected in the interpretation and application by the ECHR of the rights guaranteed by the European Convention...; to that extent at least, therefore, it must be taken into account in the interpretation and application of those rights in our national law’ (paragraph 26).
While an increasing body of case law refers explicitly to the provisions of the UNCRC, such progress may be at risk: the Conservative government elected in May 2015 came to a power with a manifesto commitment to abolish the HRA in favor of a British Bill of Rights to ‘restore common sense to the application of human rights in the UK’ (Conservative Party 2015: 73). At the time of writing, no details of the legislation that would replace the HRA have emerged, but abolition remains government policy.
In any event, explicit reference to the UNCRC in youth justice policy is rare. For instance, the Youth Crime Action plan (YCAP) published in 2008, the same year that the UN Committee on the Rights of the Child last, at the time of writing, reported on the UK’s compliance, does not mention the Convention; the only reference to rights is those that pertain to victims (HM Government 2008). Nor is it apparent that priority is given to implementing the Committee’s recommendations. In 2008, the Committee recommended an increase in the minimum age of criminal responsibility echoing a recommendation made 6 years previously: as noted earlier, no progress has been made in this regard in the intervening period. A recommendation in both 2002 and 2008, that no child should be tried in an adult court irrespective of the gravity of the offense has also fallen on deaf ears. The Committee’s 2002 concluding observations registered concern at the extensive incarceration of children in England and Wales. The number of children deprived of their liberty remained stubbornly high, leading to a further expression of concern from the Committee in 2008 (UN Committee on the Rights of the Child 2002, 2008). As discussed later the youth custodial population has declined rapidly since but the extent to which this reduction can be attributed to a conscious attempt to address the Committee’s anxieties is debatable (Bateman 2012b).
The Committee has also questioned the use of antisocial behavior orders (ASBOs) for children. Provisions in the CDA allowed local authorities, the police, and a range of other agencies to apply for an ASBO where a person over the age of 10 years deemed to have behaved ‘in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself’ (Great Britain 1998: section 1). The effect of the order was to impose restrictions as specified by the court for a minimum of 2 years. Although the ASBO was designed to address behavior that fell short of criminality, and the measure itself was civil, breach of any requirements constituted a criminal offense that could attract custody. The provisions applied to children just as adults, although the maximum period of detention for breach was reduced for the former.
The availability of ASBOs for children attracted considerable criticism: the grounds for making the order were subjective; ASBOs were disproportionately targeted at young people’s behavior; the measure was primarily negative and the potential to provide support to change behavior limited; the conditions were overly onerous and unrealistic, frequently requiring teenagers to stay away from designated areas (usually those places where they congregated) and to refrain from associating with named individuals (typically their closest friends) for the duration of the order; breach rates were extremely high so the order provided a net-widening mechanism for criminalizing children and expanding the custodial population; and some young people regarded the ASBO as a ‘badge of honor’ that could encourage, rather than deter, antisocial behavior (Solanki et al. 2006).
The UN Committee endorsed this critique and, in 2008, recommended an independent review of ASBOs ‘with a view to abolishing their application to children’ (UN Committee on the Rights of the Child 2008: paragraph 80). The Coalition government, elected in 2010, did abolish ASBOs without any review. However, the orders by which they were replaced (criminal behavior orders and injunctions for the prevention of nuisance and annoyance) bore a striking similarity to their predecessor and were vulnerable to the same criticisms. Indeed in some respects they might be considered more intrusive since they allow the imposition of positive requirements as well as prohibitions on behavior: children can be required to undergo interventions equivalent in many respects to those that would constitute sanctions for offending for noncriminal behavior (Wigzell 2014).
The UN Committee is due to report on the UK again in 2016. Although further criticism of arrangements for dealing with children in conflict with the law appears probable, the extent and nature is not known at the time of writing.