Introduction

The law on children’s rights in Wales is, in theory at least, more progressive than in England. It sets a different tone. That tone is one of putting internationally recognised rights of children at the heart of decision making such as it relates to children.

In England, when decisions are made by central Government there is no statutory duty on Ministers or their civil servants to comply with or have due regard to the rights of children as set out in the United Nations Convention on the Rights of the Child (“UNCRC”) In Wales, there is such a duty, imposed by The Rights of Children and Young Persons (Wales) Measure 2011 (“the 2011 Measure”).

The 2011 Measure

Section 1 of the 2011 Measure is important:

  1. Duty to have due regard to Convention on the Rights of the Child

(1) … the Welsh Ministers must, when exercising any of their functions, have due regard to the requirements of—

 (a) Part I of the Convention.[1]

Thus, whenever the Welsh Ministers (or civil servants in their name) make a decision they must have due regard to the 54 articles of the UNCRC that cover all aspects of a child’s life and set out the civil, political, economic, social and cultural rights. The overarching right is set out in Article 3, which provides:

(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The 2011 Measure is certainly groundbreaking legislation. Julie Morgan MS’s foreword to the Children’s Rights Scheme 2021[2] makes clear the Welsh Minister’s progressive intent:

Wales is a country where children’s rights are a fundamental entitlement and not an optional extra. We have led the way in children’s rights by enshrining them in law…

 

Limits of the Legislation

There are no doubt limits to the impact of the legislation in its design. Firstly, it applies only to the Welsh Ministers, not all public bodies in Wales (and there are many). Secondly, the 2011 Measure is not direct incorporation of the UNCRC in the same way that s.6 of the Human Rights Act 1998 incorporates the European Convention on Human Rights 1950. It is a duty to have due regard to the rights under the UNCRC.

The Children’s Rights Scheme 2021, on page 7, sets out the staged approach to having due regard to the rights as follows:

The Measure places the due regard duty on Welsh Ministers and they must be fully aware of this duty when they make decisions. The due regard duty applies even where Welsh Government officials are carrying out functions on behalf of the Welsh Ministers…

The term ‘due regard’ requires a balanced consideration of issues. This means that Welsh Ministers, when exercising their functions, must think about how what they are doing relates to the rights and obligations of the UNCRC. In identifying any negative impact on children and young people Welsh Ministers must consider whether any action can be taken to avoid or minimise this impact…

Having considered this, the outcome needs to be given balanced consideration (due regard) against the other factors that the Welsh Ministers must take into account in making the decision in question.

This explanation of the duty is largely in line with how the due regard duty has been set out in case law, in particular in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 and R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, albeit perhaps understandably not as detailed.

There is an expectation that in complying with and showing compliance with the due regard duty, the Welsh Ministers will undertake a Children’s Rights Impact Assessment (“CRIA”). That expectation arises out of paragraph 3.1 of the Children’s Rights Scheme 2021. The CRIA is to be prepared alongside the decision making in question and evidences the substantive thought given to the impact of any decision on children and whether and how any negative impacts may be mitigated. It is of course the substance of the decision making and consideration of children’s rights at the time which is important rather than the form.

Recent Judicial consideration

In 2023-2024, I was involved in two particularly important cases which brought the 2011 Measure and children’s rights in Wales into sharp focus.

Firstly, I was instructed to advise on and prepare grounds[3] in the case of R (RLQ and SLQ) v Welsh Ministers (AC-2023-CDF-000107) before the Administrative Court in Wales. This was a judicial review of the decision of the Welsh Ministers to end provision of ‘Holiday Free School Meals’ (“HFSM”). HFSM was the provision of funding to local authorities across Wales to ensure that children who were entitled to free school meals would also have access to food during the school holidays. It was introduced during Covid and continued until the summer holiday of 2023. The challenge and impact of the cuts was reported on by the press (see Wales’ holiday free school meal axe faces legal challenge – BBC News).

Secondly, I was instructed to act as counsel for the Children’s Commissioner for Wales at module 2B of the Covid Inquiry. This was the public inquiry at which Governmental decision making and preparedness in Wales related to Covid-19 would be examined.

These two cases came to culmination in March 2024 when both the final hearing in RLQ was listed and the Covid Inquiry began sitting in Cardiff.

The Implementation Gap

The inquiry sat for three weeks in Cardiff. Much of the focus, understandably and properly, was on those who were lost during Covid and whether more could have been done to save them. An important sub-plot was the impact covid had on children and young persons. By way of examination of vast amounts of written evidence and questioning of key civil servants, advisers, and Ministers (see for example my questioning of Vaughan Gething: (Core UK decision-making and Political Governance – Wales (Module 2B) – Public Hearings – UK Covid-19 Inquiry (covid19.public-inquiry.uk); day 9, afternoon session, from 2:28), we came to a number of startling truths, put (in summary) as follows in my closing submission to the Inquiry (my submission can be watched in full on the Inquiry website here: Core UK decision-making and Political Governance – Wales (Module 2B) – Public Hearings – UK Covid-19 Inquiry (covid19.public-inquiry.uk); day 12, morning session, from 1:03):

a)   The pandemic had an immediate impact on all children and young people. Inequalities caused by poverty and disability in children became more pronounced. Children lost many activities we all took for granted in childhood.

b)   Schools were not themselves drivers of infection, the risk from infection to children was low, and the risk must be put in context given the relatively low severity and the negative effects of school closures which had a significant, harmful impact on children.

c)   Many children had a strong sense of fairness. They thought it was fair there were measures put in place to protect older people, but there was also a sense of injustice linked to the appearance that economic necessities, such as opening businesses and hospitality, were being given priority over their long-term educational and social needs.

d)   The decision to close schools was taken by the Education Minister on 18 March 2020 without any legal advice, in contrast to the decisions to close businesses, caravan parks, and even footpaths, where legal advice was taken. It is presumably due to this lack of legal advice that the decision to close schools was taken when, in the absence of the Coronavirus Act 2020, the Welsh Ministers did not power to do so (the power lay with local authorities).

e)   There had been no contingency planning by the Welsh Ministers in the months of January and February 2020. If proper contingency planning had been started at that time, school closures may have been shorter or even avoided, they may have been implemented in a smoother way, with legal advice, and putting in place support for children and young people which they would need for a long-period of time away from school.

f)   Neither children nor the Children’s Commissioner for Wales were consulted in the decision to close schools. Thus, the statutory advocate of children’s rights in Wales under the Care Standards Act 2000 was not consulted in the most significant decision affecting children in living memory.

g)   For several major decisions no CRIA was completed at the time. Four examples are the initial decision to close schools, support for children with additional learning needs, the use of face masks in schools, and the impact of self-isolation on children. Further, when CRIA were completed they were often completed late, were far removed from the original decisions, and reflecting back.

Despite the 2011 Measure apparently enshrining children’s rights in law and the Children’s Rights Scheme 2021 setting out a procedural framework to do so, when stress was put upon that system it very quickly fell apart and children were left substantially disadvantaged for the failure. There was a clear implementation gap between the progressive regime and the actual practice.

The problems which were illustrated in the Inquiry may be explained (but not excused) by the exceptional circumstances of Covid. The case of RLQ, however, highlighted that the implementation gap remains real and entrenched.

At the penultimate day of the Covid Inquiry, the then First Minister, Mark Drakeford, proudly announced that Wales introduced HFSM and this ran for longer than any other UK nation. He did not mention that on 27 February 2024, in the case of RLQ, the Welsh Minsters having conceded the case without a hearing, the High Court declared that the Welsh Government’s decision of 28 June 2023 to end that provision was unlawful. The accepted basis for the unlawfulness was that in taking the decision, the Welsh Ministers failed to consider the rights of children under the 2011 Measure (as well as those with protected characteristics under the Public Sector Equality Duty, per s.149 of the Equality Act 2010).

When taking the decision to end HFSM, the Welsh Government left the announcement to the last minute, did not consult with the Children’s Commissioner, did not obtain the views of any children or young persons or any persons with protected characteristics, and did not undertake a CRIA. The concession and order of the Court was reported on by the BBC: School meals: Welsh government admits failing to follow law – BBC News.  

This was a decision taken in 2023, not during the height of and pressures of Covid. The complaints were worryingly familiar and illustrated that the problem of the implementation gap being systemic and persisting to date. It is all well and good having a progressive children’s rights regime but if it is not exercised in practice then the legislation is pointless and toothless.

Perhaps most concerningly of all, the Welsh Government’s press release on the case was as follows:

The Welsh Government received a judicial review claim in respect of the provision of free school meals over the school holidays in September 2023. This has now been settled by agreement between the parties by way of a consent order. As the claim related to a procedural issue, the current position has not changed: the provision of free school meals during the holidays ceased in 2023, as funding unfortunately remains unavailable within the current budgetary constraints. 

In reaching a settlement, the Welsh Ministers accepted that in June 2023, further equality assessment work needed to be completed.

These procedural issues were addressed by taking a further decision in October 2023 after consideration of a comprehensive impact assessment…”

Written Statement: Holiday Free School Meals Provision (29 February 2024) | GOV.WALES

The repeated reference to ‘procedural issues’ is a concerning denigration of the importance of the duties under the 2011 Measure which are intended to uphold the rights of children and eliminate or mitigate adverse impacts which Welsh Government decisions may have on children. It is more than procedural.

At a seminar at Swansea University on 19 June 2024 arranged by Public Law Wales, the Children’s Commissioner for Wales, and the Children’s Legal Centre Wales, I suggested the press release should have read as follows:

The Welsh Ministers recognise and apologise for the failure to consider the impact which ending holiday free school meal provision would have on children across Wales in line with their legal duties.

The Welsh Ministers recognise the importance of considering the best interests of children in any decision they make, especially when the decision will have an impact on large numbers of some of the most-disadvantaged children across Wales, as this decision did.

The Welsh Ministers remain proud to have enacted the 2011 Measure. Steps will be taken to ensure the duty is complied with in the future.

That would have been a proper reflection of the importance of the duties and the scale of the failure.

Conclusion

There is no doubt that the 2011 Measure is progressive and groundbreaking legislation. Its intentions and the tone it sets are admirable and should be widely praised. However, whilst the clear implementation gap remains, as exposed by the two recent cases on which I have been fortunate to be instructed, the legislation will not come close to achieving its important aims. It will be for Ministers and Officials to put this into practice. It will be for lawyers and public interest groups to hold them to account if they do not.

David C. Gardner

No5 Chambers

12 July 2024

Acknowledgments:

David and No5 Chambers would like to thank Matthew Court (Public Law Project), Michael Imperato (Watkins and Gunn), and Rachel Thomas (Office of the Children’s Commissioner for Wales) for their instructions in the cases mentioned in this article and for reviewing the article in advance of publication.

[1] United Nations Convention on the Rights of the Child (see s.8(1)(a) of the 2011 Measure)

[2] Preparation of the scheme is also a legal duty under the 2011 Measure, see s.2.

[3] I would later go on to be led by Gwion Lewis KC of Landmark Chambers.