The United Nations Convention on the Rights of the Child in Wales

Jane Williams

• Publisher: University of Wales Press
• Year: 2013
• Print ISBN: 9780708325629
• eBook ISBN: 9780708326879
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Social Policy
• Index: Politics & International Relations

This edited collection tells the story behind a ground-breaking Welsh law which reinforces the human rights of children and young people in Welsh devolved government, examines the impact of this law in selected policy areas and shows why the Welsh approach is attracting worldwide interest.

PART I

The UNCRC in Wales – and Wales in the UNCRC

CHAPTER 1

Children’s rights as a policy framework in Wales

Ian Butler and Mark Drakeford

Introduction

To anyone familiar with the origins, and early days, of devolution in Wales the combined focus on ‘devolution’ and ‘rights’ will come as no surprise. In this scene-setting chapter our aim is to set out some of the precipitating factors which, in our view, have made this such a powerful strand in the brief history of the National Assembly for Wales and, in particular, in the approach to policy making for children. We then identify a number of key initiatives in the journey which, in some important ways, culminated in the Rights of Children and Young Persons (Wales) Measure 2011.

Early Days

In order to understand the context in which the UNCRC came to be a cornerstone of responding to children’s issues in Wales, it is important to identify some early, influential strands in the emerging institutions. Here we focus on three ps – policy, politics and people.

As far as policy is concerned, the National Assembly, which emerged from the smoking ruins of the lost referendum in 1979, and the many debates and compromises that followed over the next quarter of a century, was, more than anything else, a social policy body. While the Assembly lacked some very important levers (gaps in its competence and the absence of full legislative capacity, for example), it did possess very many of the powers in the field of children’s policy. Health, education and social services were among the most complete transfers of responsibility from Whitehall to Wales in the original devolution settlement. As a group, children and young people were one of the strands that most clearly allowed policy-making to take place across the range of these possibilities and, as such, helps to explain the early focus on this area.

In terms of politics it is important to recall the faltering start of devolution in Wales, and the impact that this produced on the political imperatives of those early years. The wafer-thin referendum victory in September 1997, the failure of Labour to win a majority in the 1999 election, and the Lady Bracknell-like carelessness with which party leaders at the Assembly were lost during the first year of devolution (one retired, one defeated, one arrested) combined to produce a set of powerful, and potentially contradictory, political impulses. In order to recover and rebuild its reputation, the nascent Assembly Cabinet (forerunner of the Welsh Government) needed to be both radical, so as to demonstrate a capacity for effective, relevant action, and also to be conciliatory, so as to reach out beyond its Labour base and to command a level of cross-party support.

It is hard to recall now, even at the distance of only a dozen years, the enthusiasm that existed in 1999 for the soon-to-be-abandoned ‘corporate body’ which formed the constitutional basis of the first National Assembly. Wales had never succeeded in bringing together a cross-party, cross-sectoral Convention on the pre-devolution Scottish model. The corporate body structure was intended to entrench a new post-sectarian form of politics in Wales in which every Assembly Member had an equal stake in the organisation, operation and success of the institution. The rather high-minded hopes, in which the importance of party politics would be diminished in favour of a uniting determination to ‘do the best for Wales’, soon evaporated under the pressures of the everyday tussles more characteristic of the political process. The welfare of children and young people, however, provided a relatively rare topic in which the non-partisan form of politics had some purchase.

Finally, we draw attention to the impact of people as well as policy and politics in this formative period. Indeed, it could be argued that people were especially important in an institution where all politicians were completely new, and the conventions of day-to-day procedure were yet to be established. An interest in and experience of working with children and young people was a theme that connected a series of key players in the 1999 Assembly. Within the Labour Group, First Secretary Alun Michael drew regularly on his experience as a youth worker in some of the most challenging parts of Cardiff. The first Health and Social Services Minister, Jane Hutt, came to the Assembly from a background in which she had chaired the Children’s Committee of the South Glamorgan County Council and worked as head of the child care organisation Chwarae Teg. Among representatives of the second-largest party in 1999, Plaid Cymru, the Llanelli AM, Helen Mary Jones, elected while a leader of the Barnardo’s youth justice project, was already emerging as a formidable voice for children’s issues.

The earliest example of this combination of policy, people and politics in action can be seen in the establishment of an office of Children’s Commissioner for Wales. Its immediate context is usually traced to a specific recommendation of the Waterhouse inquiry (2000) into child abuse in north Wales, but the idea of a commissioner for children had been gathering momentum since the Staffordshire ‘pindown’ inquiry almost ten years earlier (Levy and Kahan, 1991). Rather than provide the case for a commissioner, ‘Waterhouse’ provided the opportunity for the Assembly to establish the UK’s first independent human rights institution specifically for children. It was an appointment that might easily have been deferred, as it was in England, for several more years. The political consensus that existed across parties in this area was mobilised, however, to establish the post in the Care Standards Act 2000 and to extend it further by the Children’s Commissioner for Wales Act 2001.

From the perspective of this text it is important to note that, in law, the commissioner’s primary duties are to safeguard and promote the rights and welfare of children in Wales, and, in so doing, to have regard to the UNCRC. In practice, it is generally agreed that the record demonstrates the Welsh Government’s commitment to establishing an effective, independent champion of children’s rights who is well-resourced to carry out his functions, including holding the government to account. This very early example of policy-making in the field of child welfare suggests that, from the earliest days, not only were children’s issues always likely to be near the top of the Assembly agenda, but that the underlying approach to such questions was likely to be rooted in a concern with rights. It is to the genesis of that concern that this chapter now turns.

Rights

The foundation document of post-devolution policy-making for children in Wales was published in 2000 under the title of Extending Entitlement (NAW, 2000a). It sets out a series of rights to support services and opportunities that are, as far as possible, free at point of use, universal and unconditional. While in England the emphasis has been firmly on making individual young people responsible for exploiting opportunities that may be available to them, in Wales the emphasis has been on ensuring that providers discharge their responsibilities to make new opportunities available, especially to those who need them the most (see Davies and Williams, 2009, for an account of this policy approach across different areas of devolved responsibility in Wales). Specifically in the field of children’s policy, the first statement made by the Welsh Government was published as early as November 2000 as Children and Young People: A Framework for Partnership (NAW, 2000b). Intended primarily to bring coherence and focus to the planning and funding of services for children at local level, the framework established, early in the devolution period, the Government’s commitment to children’s rights and, in particular, its endorsement of the UNCRC:

Over the past ten years [the UNCRC] has helped to establish an internationally accepted framework for the treatment of all children, encouraged a positive and optimistic image of children and young people as active holders of rights and stimulated a greater global commitment to safeguarding those rights. The Assembly believes that the Convention should provide a foundation of principle for dealings with children. (NAW, 2000b: 10)

It is important to be clear that this approach was, from early on, located in a wider context in which the Welsh Government had set out on a distinctive policy pathway. Perhaps the most rounded and memorable articulation of wider Welsh devolved policy-making was given in the ‘clear red water’ lecture given by First Minister Rhodri Morgan, in the run up to the 2003 Assembly election (Morgan, 2002). Here Morgan attempted to set out a defining set of principles that characterised Labour policy-making in Wales. While intended primarily to distinguish Labour from other parties in the Assembly elections, it was also capable of being read as opening up conceptual space between Labour in London and in Cardiff. In that context, the lecture firmly rejected an understanding of the relationship between the individual and public services as one based on consumerism. Rather, Morgan argued, Wales had opted for a model in which a reinforced set of unconditional and universal rights, rooted only in citizenship, allowed for a set of relationships based on equality, reciprocity and mutuality. The detail of this approach has been set out at greater length elsewhere (see, for example, Chaney and Drakeford, 2004; Drakeford, 2007; Davies and Williams, 2009). In the same way as the Welsh Government’s rights-perspective has deep roots in an established collectivist and nonconformist political tradition, so, as far as children are concerned, there is an inseparable relationship between welfare and rights, with rights being the guarantor of welfare, and participation the key to good governance (see Crowley and Vulliamy, 2002, and Butler, 2007, for an elaboration of these points).

Against that background, the commitment to basing children’s policy on the UNCRC was given real substance when, on 14 January 2004, the National Assembly unanimously reaffirmed ‘the priority which it attaches to safeguarding and promoting the rights and welfare of children and young people in Wales, particularly those who are vulnerable’, and formally adopted ‘the United Nations Convention on the Rights of the Child as the basis of policy making in this area’ (NAW, 2004).

From this point onwards, almost every major policy initiative taken by successive Welsh Governments in the children’s field has drawn directly on the UNCRC framework. In 2003, for example, an independently chaired task group was established to map out the contribution that might be made, at the Assembly, to tackling child poverty in Wales. Its report, published in February 2005, and titled A Fair Future for Our Children, was unambiguously ‘built on a set of core values in line with the Convention of the Rights of the Child’ (WG, 2005: 9). When the report was debated on the floor of the Assembly, an opposition amendment was tabled to ‘commend the Welsh Assembly Government on basing its strategy on the core principles of the UNCRC’ (NAW, 2005). Agreed unanimously by all those present, the vote is an example of the cross-party consensus which children’s issues have most often attracted in post-devolution Wales, as discussed earlier in this chapter.

By the time the A Fair Future report was debated, progress had been made in giving the UNCRC a distinctively Welsh cast. Having formally adopted the convention, the Welsh Government published its statement of Rights to Action (WG, 2004a). It translated the Convention into seven core aims which were to underpin policies and programmes for children and young people in Wales. The core aims were designed to ensure that all children and young people:

• have a flying start in life;
• have a comprehensive range of education and learning opportunities;
• enjoy the best possible health and are free from abuse, victimisation and exploitation;
• have access to play, leisure, sporting and cultural activities;
• are listened to, treated with respect and have their race and cultural identity recognised;
• have a safe home and a community which supports physical and emotional well-being;
• are not disadvantaged by poverty.

Rights to Action helped to cement an approach to children’s policy in Wales that continued to enjoy cross-party support. The radicalism of the rights-based agenda ought not to be under-estimated. The mid-2000s were characterised, more generally, by high levels of anxiety about the treatment of children in public policy. Events in Wales had contributed to this climate, with the Waterhouse inquiry (2000) continuing to cast a long shadow. The death of Victoria Climbié, and the publication of the Victoria Climbié Inquiry Report (Laming, 2003) provided the momentum for the Every Child Matters programme (2003) in England, and the Children Act 2004. Yet, when a debate took place at the Assembly on the consequences of Lord Laming’s recommendations for Wales, it was most remarkable for an amendment proposed by Liberal Democrat AM, Kirsty Williams that:

regrets that the UK Government continues to retain the defence of reasonable chastisement and has taken no significant action towards prohibiting the physical punishment of children in the family. (NAW, 2004)

The Assembly had already established its opposition to corporal punishment during a short debate introduced by Labour AM Christine Chapman, some two years previously. Now the debate was located firmly as a rights issue in the post-Climbié context. Even Welsh Conservative AMs who voted against the amendment itself, voted in favour of the amended substantive motion. It provided a further indication, not only of the Welsh Government’s preparedness to put ‘clear red water’ between itself and Westminster, but also of a progressive, largely consensual approach to policy-making on behalf of children and young people.

If Rights to Action was a key policy statement, then Rights in Action (WG, 2007) provided a practical programme for its implementation. In many ways Rights in Action was a landmark document in that its publication had to be negotiated between the Welsh Government and the UK Government as Wales’s contribution to the periodic reporting required of States Parties to the UNCRC. After some determined negotiations, often with rather reluctant Whitehall officials, Ministers in all four UK nations agreed...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Tables and illustrations
• About the Contributors
• Foreword
• Preface and acknowledgements
• Abbreviations and terms
• Editor’s Introduction
• PART I: The UNCRC in Wales – and Wales in the UNCRC
• PART II: Making it work: realising children’s rights in selected policy areas
• PART III: Ensuring it works: accountability and participation