Education Law - Nicholas Hancox Solicitors

First published by Birketts LLP in their journal "Public Opinion" in April 2008

There were, arguably, no Children's Rights as such, until the United Nations agreed its Convention on the Rights of the Child in 1989. What the UN Convention does is to set out 54 Articles, many of which are merely the UN equivalent of a local authority's Standing Orders. Some of the more interesting and useful Articles of the Convention include:

Art. 2. The right to suffer no discrimination (as defined)
Art. 3. The right to have the best interests of the child as a (not the) primary consideration in litigation.
Art. 6. The right to life
Art. 7. The right to a name and, as far as possible, the right to know and be cared for by his or her parents.
Art. 9. The right not to be separated from their parents, except when separation is in the best interests of the child.
Art. 13. The right to freedom of expression
Art. 14. The right to freedom of thought, conscience and religion.
Art. 17. The right to the production and dissemination of children's books.
Art. 18. The right to child-care services and facilities
Art. 19. The right not to suffer physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.
Art. 21. The right to adoption, where it is in the best interests of the child
Art. 23. The right to a full and decent life for mentally or physically disabled children
Art. 28. The right to an education
Art. 31. The right to rest, leisure and play
Art. 34. The right to protection from sexual exploitation and sexual abuse

The rights given to children under the UN Convention on the Rights of the Child are not enforceable in the Courts of England and Wales. There is, for Children's Rights, no equivalent to the Human Rights Act 1998, which of course implemented in English and Welsh law, the European Convention on Human Rights. Enforcement of the UN Convention on the Rights of the Child is low-key and done at UN and Government level.

The UK Government issued its “3rd and 4th Periodic Report to the UN Committee on the Rights of the Child” on 15 July 2007. The government was supposed to issue these two Reports separately, but No 3 was apparently delayed so long that they had to merge it into No 4. Anyway, the 2007 Report sets out the latest level of the UK government’s compliance with the Convention. It highlights the Children Act 2004 and mentions in particular:

the creation, in section 1, of the Children’s Commissioner for England to represent the views and opinions of children;
the duty in section 53 for local authorities to take into account the wishes and feelings of children in need when they make decisions; and
the duty on all local authorities and agencies in section 20 to work together in the best interests of the child to promote children’s well-being.

Some children’s rights have been recognised at common law. The well-known 1986 case of Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112 sees the Court formally recognising that children of a sufficient age, understanding and intelligence should be able, legally, to make their own decisions concerning their own medication (under a doctrine commonly known as ‘Gillick Competence’).

However, children’s rights even in that area are far from absolute and it is always the case in the field of Children’s Rights that the rights of parents and the rights of children’s services authorities and of the wider State sometimes overrule the rights of children. Parents, for example, have the right to indoctrinate their children with a view to enrolling them as members oft the parents’ religion. Religious freedom is not given to young children, despite what it says in Article 14 of the Convention. And the Children’s Right to an education, in Article 28, is supported, not compromised, by the obligation, in UK law, to attend school, or be ‘educated otherwise’.

All this leaves Professor Sir Al Aynsley-Green, the Children’s Commissioner with a hefty problem. He must support children’s rights, but he must also tell children that their rights are rarely absolute. He must tell them that there is a UN Convention on Children’s Rights but also mention that the Convention is not directly enforceable in the UK Courts. Whether or not he achieves all that is hard to judge. His very youth-oriented website, www.11million.org.uk operates a twin track policy. Part of the website oversimplifies the law and therefore gets it wrong, then other part sets out the UN Convention in full, so that it is legally correct and almost incomprehensible.

So, everyone now agrees that children have rights. What is more controversial is the extent to which children’s rights are limited by parents’ rights.









					Children's Rights







					Written by Nicholas Hancox BSc LLM Solicitor © 2008 First published by Birketts LLP in their journal "Public Opinion" in April 2008 There were, arguably, no Children's Rights as such, until the United Nations agreed its Convention on the Rights of the Child in 1989. What the UN Convention does is to set out 54 Articles, many of which are merely the UN equivalent of a local authority's Standing Orders. Some of the more interesting and useful Articles of the Convention include: Art. 2. The right to suffer no discrimination (as defined) Art. 3. The right to have the best interests of the child as a (not the) primary consideration in litigation. Art. 6. The right to life Art. 7. The right to a name and, as far as possible, the right to know and be cared for by his or her parents. Art. 9. The right not to be separated from their parents, except when separation is in the best interests of the child. Art. 13. The right to freedom of expression Art. 14. The right to freedom of thought, conscience and religion. Art. 17. The right to the production and dissemination of children's books. Art. 18. The right to child-care services and facilities Art. 19. The right not to suffer physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. Art. 21. The right to adoption, where it is in the best interests of the child Art. 23. The right to a full and decent life for mentally or physically disabled children Art. 28. The right to an education Art. 31. The right to rest, leisure and play Art. 34. The right to protection from sexual exploitation and sexual abuse The rights given to children under the UN Convention on the Rights of the Child are not enforceable in the Courts of England and Wales. There is, for Children's Rights, no equivalent to the Human Rights Act 1998, which of course implemented in English and Welsh law, the European Convention on Human Rights. Enforcement of the UN Convention on the Rights of the Child is low-key and done at UN and Government level. The UK Government issued its “3rd and 4th Periodic Report to the UN Committee on the Rights of the Child” on 15 July 2007. The government was supposed to issue these two Reports separately, but No 3 was apparently delayed so long that they had to merge it into No 4. Anyway, the 2007 Report sets out the latest level of the UK government’s compliance with the Convention. It highlights the Children Act 2004 and mentions in particular: the creation, in section 1, of the Children’s Commissioner for England to represent the views and opinions of children; the duty in section 53 for local authorities to take into account the wishes and feelings of children in need when they make decisions; and the duty on all local authorities and agencies in section 20 to work together in the best interests of the child to promote children’s well-being. Some children’s rights have been recognised at common law. The well-known 1986 case of Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112 sees the Court formally recognising that children of a sufficient age, understanding and intelligence should be able, legally, to make their own decisions concerning their own medication (under a doctrine commonly known as ‘Gillick Competence’). However, children’s rights even in that area are far from absolute and it is always the case in the field of Children’s Rights that the rights of parents and the rights of children’s services authorities and of the wider State sometimes overrule the rights of children. Parents, for example, have the right to indoctrinate their children with a view to enrolling them as members oft the parents’ religion. Religious freedom is not given to young children, despite what it says in Article 14 of the Convention. And the Children’s Right to an education, in Article 28, is supported, not compromised, by the obligation, in UK law, to attend school, or be ‘educated otherwise’. All this leaves Professor Sir Al Aynsley-Green, the Children’s Commissioner with a hefty problem. He must support children’s rights, but he must also tell children that their rights are rarely absolute. He must tell them that there is a UN Convention on Children’s Rights but also mention that the Convention is not directly enforceable in the UK Courts. Whether or not he achieves all that is hard to judge. His very youth-oriented website, www.11million.org.uk operates a twin track policy. Part of the website oversimplifies the law and therefore gets it wrong, then other part sets out the UN Convention in full, so that it is legally correct and almost incomprehensible. So, everyone now agrees that children have rights. What is more controversial is the extent to which children’s rights are limited by parents’ rights. Do we need a UN Convention on the Rights of Parents? No, we do not. nicholashancox.co.uk © Copyright 2007-2008 Nicholas Hancox Solicitors Regulated by the Solicitors Regulation Authority