Children’s rights legal digest – March 2020

We dedicate this issue to the importance of international law in protecting human rights in the UK, looking at how ‘incorporation’ of international treaties makes them directly applicable here at home. We reference two examples of alleged breaches of human rights and how domestic and international mechanisms can be used to draw attention to suspected human rights violations.  

Legal challenge to protect the rights of people with learning disabilities and autism 

The Equality and Human Rights Commission has launched a legal challenge to the Secretary of State for Health and Social Care claiming human rights breaches by the Department of Health and Social Care (DHSC). The Commission’s challenge is based on what it describes as “a systemic failure [by the Government] to protect the right [of people with learning disabilities and autism detained under mental health legislation] to a private and family life, and right to live free from inhuman or degrading treatment or punishment”.

These rights are enshrined in Article 8 (right to respect for private and family life) and Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights (ECHR). The Human Rights Act 1998, which incorporates the ECHR into UK law, places a duty on all government departments (and other public bodies) to act compatibly with the ECHR.  

More than 2,000 people with learning disabilities and autism are currently detained in secure hospitals. Due to a shortage of places, many people, including children, are placed in inpatient care far away from their homes, families and local support networks. 620 (28%) of all those with learning disabilities and/or autism in institutions have a care plan which states they do not need inpatient care.  

According to NHS figures, there were 235 children in these settings in November 2019, more than double the number in March 2015 (110). 

16 children file a group complaint to the UN Committee on the Rights of the Child for human rights beaches connected to climate change

This case is a little different and it goes back a few months. Formally known as a ‘communication’, it involves a group of 16 children from several countries, including Argentina, France, Turkey and Germany, claiming that they are “victims of climate change” and that their countries are responsible for failing to prevent foreseeable human rights violations caused by climate change and delaying actions needed to protect the lives and welfare of children. The specific rights set out in the UN Convention on the Rights of the Child (UNCRC) and named in this complaint as being breached are:  

  • Article 3: the best interests of the child shall be a primary consideration in all actions concerning children
  • Article 6: right to maximum survival and development
  • Article 24: right to highest attainable standard of health
  • Article 30: right of children from minority or indigenous groups to enjoy their culture (this right was identified because of the impact of climate change on indigenous communities).

The outcome of the complaint will not be known for quite some time because of a long queue of complaints awaiting review by the Committee. It is nevertheless important to recognise the significance and value of this process as a means of seeking redress by children and young people for human rights violations perpetrated by states.

The UK Government has not ratified this third Optional Protocol to the Convention (known as Optional Protocol on a communications procedure) despite the Committee on the Rights of the Child urging it to do so. This means that children and young people in the UK are unable to access this remedy for breaches of their UNCRC rights.

You can learn more about the complaint here.   

Incorporation

Incorporation of international human rights treaties, such as the European Convention on Human Rights or the UN Convention on the Rights of the Child, is a process which strengthens the effect of such treaties by making them part of the domestic legal system. A treaty becomes ‘embedded’ into and directly applicable into a country’s legal system – so it becomes domestic law, and breaches of it can be challenged through domestic courts. An example of incorporation is the Human Rights Act 1998, which made the European Convention on Human Rights part of our own UK law. Children and adults living in the UK can challenge violations of their ECHR rights through our own courts (all the way to the Supreme Court), whereas before cases could only be taken to the European Court of Human Rights in Strasbourg, France.

Along with many others, Article 39 wants the UN Convention on the Rights of the Child to be incorporated into UK law.