Wales Observatory on Human Rights of Children and Young People Dr Simon Hoffman Swansea University
Rights of Children and Young Persons (Wales) Measure 2011 Duty of due regard – section 1 ‘ the Welsh Ministers must, when exercising any of their regard to...’ functions, have due • Part I of the Convention • Specified articles of: Optional Protocol on involvement of the child in armed conflict Option Protocol on the sale of children, child prostitution and child pornography Equalities context, e.g. R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 • decision-maker to be informed and aware of what must be taken into consideration • must exercise due regard duty in substance, with rigour and open mind • duty must be integrated within the discharge of public functions
Rights of Children and Young Persons (Wales) Measure 2011 Additional mechanisms to support incorporation: • Children’s scheme – section 2 Duty to make and publish a Children’s Scheme ‘… setting out the arrangements they have made … for the purpose of securing compliance with the duty under section 1.’ • Complaints mechanism • Clarification on responsibilities
“Six steps to due regard”
Rights of Children and Young Persons (Wales) Measure 2011 Additional mechanisms: Reports – section 4 The Welsh Minsters must ‘… publish a report on how they and the First Minister have complied with the duty under section 1.’
Has it made a difference? Human Transplantation (Wales) Act 2013 • soft opt-out organ donation (18+) • soft opt-out not applied to children • children to register their wish to donate their organs if they should die • competent child - election treated as express consent CRIA • identifies relevant children’s rights issues • consultation with children suggested soft opt-out should apply from age 16 Housing (Wales) Act 2014 • Ministers to introduce regulations to prevent finding of intentional homelessness against certain households • informed by considerations of the child’s right to adequate housing (Art. 27, adequate standard of living) Caution • Ministerial discretion whether to make regulations affecting children • Act permits local authorities to circumvent the regulations in some instances
Has it made a difference? Well-being of Future Generations Bill • to improve lives of people in Wales • focus is tackling poverty Legislation does not refer to children’s rights or UNCRC Does this signal a lack of political will to fully and expressly incorporate the provisions of the Convention in Welsh Law? Social Services and Well-Being (Wales) Act 2013 • section 7 requires anyone who exercises functions under the Act to have due regard to part 1 of the Convention No provision to remove defence of reasonable punishment in Wales
Key challenges – incorporation and the Measure • How to ensure that the views of children are properly represented and taken into account as an aspect of due regard • How to monitor law and policy output in order to monitor compliance with due regard • Moving forward on incorporation on a sectoral basis • Advocacy and challenge
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