Children and Families Bill; Energy Bill report published

27 June 2013

The Joint Committee on Human Rights (JCHR) today publishes its legislative scrutiny Report on the Children and Families Bill

The Report deals with issues to do with adoption and looked after children (Part 1 of the Bill), family justice (Part 2), Special Educational Needs (Part 3), the Children’s Commissioner (Part 5) and statutory rights to shared parental leave and pay (Part 6). The Report also includes an analysis of two issues connected with the Energy Bill.

With regard to Special Educational Needs, the Committee welcomes those provisions in the Bill which enhance the UK's implementation of the United Nations Convention on the Rights of the Child (UNCRC) and the UN Disabilities Convention.  However, the Committee believes that the commitment the Government has made to increase access to mainstream schools and staff should be expressly stated in the relevant "general principles" clause in the Bill. 

The Committee welcomes the Government's amendments to the Bill to impose a duty in relation to health care provision but is not persuaded by the Government's justification for not making similar provision in relation to social care provision in an Education Health and Care Plan ("EHC Plan").  The Committee recommends that the Bill be amended both to impose an equivalent duty in relation to the social care component of the EHC Plan and to ensure that there is a single avenue of redress in relation to all EHC plan provisions. 

The Committee also considers it a retrograde step for the Bill to exclude detained children and young people from all the improvements to the provision for special educational needs that it will otherwise bring about and recommends that the Ministry of Justice makes rapid progress on its proposals to use EHC Plans to support children and young people in custody so that the Bill can be amended to include detained children and young people. 

With regard to adoption and looked after children, the Committee welcomes the Minister's reassurance that the Government does not intend kinship carers to be overlooked as a consequence of the clause in the Bill concerning fostering for adoption.  However, the Committee expresses concern that such may be the effect of the clause as the Bill is currently drafted; and it therefore welcomes the Minister's indication at Report Stage in the House of Commons that he is considering amending the clause.

The Committee is not satisfied that the Government has demonstrated by reference to evidence that the current statutory provision, that local authorities in matters of adoption must give due consideration to religious persuasion, racial origin and cultural and linguistic background, has led to delays in adoption of ethnic minority children and should be repealed.  It also concludes that removing from the legal framework any reference to "religious persuasion, racial origin and cultural and linguistic background" would be incompatible with Article 20(3) UNCRC, and therefore recommends that those considerations be added to the welfare checklist to which local authorities are required to have regard.

The Committee welcomes the reforms to the Office of the Children's Commissioner for England as significant human rights enhancing measures.  It however recommends that the Commissioner should be required to "promote and protect" the rights of children in the UNCRC rather than just "have regard" to the UNCRC.  The Committee also welcomes the Government's indication that the forthcoming periodic review of the UK’s record under the UNCRC will provide an opportunity for raising parliamentarians' awareness of children’s rights, and looks forward to the Government's proactive engagement with Parliament on that matter.

The Committee also expresses disappointment that the Bill does not make the more ambitious provision for shared parental leave reserved for the father that was foreshadowed in the Modern Workplaces consultation and recommends that the Government keep the take-up of parental leave by fathers under annual review and ascertain and make publicly available its best estimate of the cost to employers, and particularly small businesses, of introducing 4 weeks of paid paternity leave reserved for the father on a "use it or lose it" basis. 

With regard to the Energy Bill, the Committee raises a concern about the proposed use of secondary legislation in relation to information powers, especially in how they may apply to individual consumers.  The Report also recommends that the Bill should include an explicit provision for a right to appeal for energy providers with regard to capacity incentives imposed upon them.

Dr Hywel Francis MP, Chair of the Committee, said:

"This is in many respects a welcome Bill.  There are a number of important provisions in it which we support wholeheartedly, and progress has been made in that part of the Bill dealing with the Office of the Children’s Commissioner for England since we examined the draft clauses last year.  More should be done, however, to strengthen the Bill in terms of how it deals with children and young people with special educational needs.  We also believe with regard to adoption that the Government’s current plan to remove from the relevant legal framework any reference to religious persuasion, racial origin and cultural and linguistic background is a backwards step and will not properly address the problem of delays in adoption experienced by black children which urgently needs addressing."

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