Human rights committee criticises government actions to protect children during pandemic

In its latest review, the Government’s response to Covid-19: human rights implications, the committee highlights issues around government decisions to remove “vital” protections for looked-after children and those on the edge of care, changes to legislation allowing young offenders to be incarcerated for up to 23 hours a day and the impact of school closures on the most disadvantaged children.

School closures 

The committee examined the impact of school closures on children’s human rights, particularly those of vulnerable children and those with special educational needs and disabilities (SEND).

The report highlights an increase in mental health issues faced by young people as schools closed and an increase in referrals to children’s services departments as lockdown measures eased as well as the widening attainment gap between poor students and their wealthier peers following six months of school closures.

• Related news: SEND review delayed until ‘early next year’, Gavin Williamson confirms

• Related news: Attainment gaps widens for first time in 12 years

“Urgent measures are needed by schools, communities and children’s services to repair harm done. This will require adequate resourcing from the government,” the report states.

It also criticises government guidance for schools and parents around the “continuity of education”, stating that this may have caused “disparity in education accessed by different groups of children”.

“In particular, school closures have created specific barriers to children with SEND’s access to their right to education. This is really concerning,” the report adds.

“We urge the government to look into the effect that school closures have had on young people with SEND and to address any barriers to them returning to schools and accessing education. 

“Where it is not in the best interests of the child to be in school, for example if they are shielding, appropriate support should be provided to them so that they can learn from home.”

Children’s social care

The JCHR also states that the government must justify its reasons for removing “vital” protections for children in response to the Covid-19 pandemic if any of the changes to children’s social care legislation are to continue.

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020, also known as Statutory Instrument 445, makes changes to around 65 children’s social care regulations relating to social worker visits, foster and adoption processes and the standard of care and education in children’s homes.

• Analysis: Changes to care responsibilities divide opinion among leaders

• Blog:  Mark Kerr from the Centre for Outcomes of Care on why emergency legislation is another attempt to push through exemption clause changes

Most of the changes are set to expire on 25 September, although a handful have been extended until March 2021 following a three-week public consultation.

However, the report states that the committee “questions whether removing vital protections for children was a proportionate response to the challenges posed to the children’s social care system by Covid-19”.

The committee questions the Department for Education's decision not to consult the children’s commissioner for England before publishing the amendments.

The report states: “In correspondence, the children’s commissioner for England has told us that these regulations are of major concern and that she views them “as unnecessary, detrimental for children’s rights and a distraction from the much more fundamental issues about how to keep children protected during Covid-19.

“Her office was not consulted about the regulations prior to their publication, and while they were informed of the regulations two days before they were published, they did not have an opportunity to make changes to them. After publication, they shared their concerns with the DfE, but for the most part these have not been acted on.”

It comes as children’s rights charity Article 39 awaits the results of a Court of Appeal hearing following an unsuccessful judicial review calling for the changes to be revoked.

Despite dismissing the charity’s claims, judge Mrs Justice Lieven said had such changes been introduced in “normal times” that a lack of consultation, particularly failing to consult the children’s commissioner for England, may have been judged as unlawful.

The JCHR states that the government must now “justify its reasoning for the continuation of these powers, and they must only continue if they can be shown to be absolutely necessary and proportionate.”

Carolyne Willow, director of Article 39, said: “It’s not a surprise that the committee questions the proportionality of ministers removing vital protections from highly vulnerable children within weeks of lockdown.

"We maintain that the withdrawal of children’s safeguards was disproportionate and there was no justification at all for the Department for Education choosing not to seek the views of organisations specifically concerned with the rights, views and interests of children and young people.

"The radical deregulation executed in April without proper parliamentary scrutiny or public consultation is part of a pattern of government framing legal protections for vulnerable children as burdens and red tape. We hope ministers and advisers have learnt from this awful episode and that this is the last attempt at dismantling children’s social care law.”

Young offenders 

The report also questions changes to legislation relating to young offender institutions (YOIs) and secure training centres (STCs) that allowed children to be kept in cells for as long as 23 hours a day during the pandemic.

“Children should not under any circumstances be subject to lockdown restrictions which amount to solitary confinement,” it states, adding: “Given the risk of further waves of the pandemic, the Ministry of Justice should carry out a full evaluation of its Covid-19 policy in prisons, YOIs and STCs as a matter of urgency and issue guidance on how to respond to future outbreaks.”

It also calls for phones to be installed in every cell of YOIs and STCs and video calling facilities to be installed in each facility “as a matter of urgency”.