5. Submissions on Behalf of the Children’s Commissioner for Wales by Mr Gardner

Mr Gardner: My Lady, I appear before you on behalf of the Children’s Commissioner for Wales.

The office of the Children’s Commissioner for Wales was established via the Care Standards Act 2000 following the Waterhouse Inquiry. This was a judge-led Inquiry which concluded that the children in Wales needed an independent champion to ensure that their rights are respected and upheld.

Wales was the first country of the UK to establish the post of Children’s Commissioner. The Children’s Commissioner for Wales is a national human rights institution compliant with the Paris principles. Independence from government has always been a key tenet of the office’s role. The Inquiry will hear evidence about how the working relationship between the Commissioner’s office and the Welsh Government altered during the pandemic, but the Paris principles, particularly around independence, remained an important aspect for the commissioner to maintain in scrutinising and holding the government to account.

This module will hear evidence from Professor Sally Holland, who was the Children’s Commissioner for Wales throughout the period with which the Inquiry is concerned.

My Lady, the Office of the High Commissioner for Human Rights recognises that in humanitarian crises, including pandemics, human rights issues will often arise. This is both because of the crisis itself and that measures to manage the crisis are likely to have a greater impact upon more vulnerable groups within the population, which includes of course children and young persons.

During the response to any humanitarian crisis protecting and upholding human rights should be an overarching and key aim of the state. It is essential after the event that human rights are adequately considered and reflected upon in order to strengthen the nation’s resilience against future crises.

The Commissioner’s legal points include the ability to review how the Welsh Government has exercised its functions. The Commissioner is required to have regard to the United Nations Convention on the Rights of the Child, or CNCRC(sic), in doing so.

It is through this power that the Commissioner’s office advises government on draft guidance and legislation through consultation processes and dialogue with officials and ministers. The urgent nature of decision-making in the pandemic necessitated that the office worked closely alongside government to discharge this responsibility and hold the government to account on behalf of children and young people across Wales.

In practice, this meant that the Commissioner’s office was asked to comment on draft guidance and public messaging at very short notice throughout the pandemic. For the avoidance of doubt, the Commissioner and her office were not a part of the formal decision-making process at any point. But through the document review process, the Commissioner and her team were able to question to what extent and how the potential impact of decisions on children’s rights were considered. Where this review process didn’t result in greater clarity, the Commissioner would follow this up in writing with officials, ministers or the Chief Medical Officer.

The Commissioner had decided at the start of the pandemic that the office had an important role to play in ensuring that children’s rights were actively considered in a fast paced decision-making process. At such a crisis point she wanted the government to get things right for children rather than potentially getting things wrong or miss key considerations and then be critical from the sidelines.

I turn then to children’s rights in Wales.

The Rights of Children and Young Persons (Wales) Measure 2011 requires the Welsh ministers to have due regard to the children’s rights under the CNCRC – sorry, I apologise, the UNCRC – in exercising all of their functions. In this way, the individual articles of the UNCRC are incorporated into Welsh law through the Measure. The Brown principles set out how due regard should be exercised in practice, requiring decision-makers to be actively aware of their duties, and to be actively aware in advance of taking decisions as well as having this in mind when taking the decision.

It requires a conscious approach and state of mind. Crucially, a duty bearer cannot satisfy the duty by justifying a decision after it has been taken. Regard to equality generally will not be sufficient to discharge the duty, and it is not a matter of just ticking boxes.

It is good practice to keep an accurate and timely record of decision-making and how relevant questions have been considered but the record in itself may not satisfy or demonstrate how the duty has been exercised if the principles have not been complied with.

The primary way in which due regard under the Measure is demonstrated in Wales is through a children’s rights impact assessment, or CRIA. The Welsh Government’s children’s scheme which accompanies the Measure describes a CRIA as “the tool officials are expected to use to support Welsh ministers in ensuring the due regard duty is fulfilled”.

The scheme also requires the Welsh Government to undertake and publish CRIAs on the government website in order to promote transparency. Officials are expected to record their reasons if a CRIA has not been undertaken. The duties under the Measure would have applied to all decision-making processes, actions and omissions that fall within the scope of this module.

The experience of the Children’s Commissioner, as noted in Professor Holland’s written evidence, is that CRIA were often completed late, were far removed from the original decisions, and reflected back on the relevant decision. Retrofitting CRIA analysis to fit a decision already taken was not a unique phenomenon to the pandemic, but this was exacerbated by the condensed timeframes for decision-making during the pandemic. For some major decisions, such as school operations, no CRIA was completed at the time.

A fully completed template setting out the articles of the UNCRC and available research evidence completed many, many months after the decision had passed would not advance or uphold children’s rights in decision-making processes as this did not feed into the decision at the time. This does not satisfy the Brown principles of due regard, nor does it make decision-making compliant with the duties on Welsh ministers under the Measure.

The Commissioner’s team gave initial advice to the Welsh Government to this effect in both April 2020 and again in May 2020.

Decisions around opening or partial opening of schools and the use of face coverings within schools are examples of where it was sometimes difficult to follow the rationale behind governmental decision-making, or even what had actually been decided.

The Commissioner did not and does not suggest the scientific evidence should not be used to make decisions of this nature. Nonetheless, the Commissioner expected all decisions to carefully and consistently consider the potential impact on children’s rights and to clearly communicate the rationale behind any measure that may impede children’s actions to their rights where this was deemed unavoidable.

It was more apparent for decisions directly affecting children that their rights had been considered during the decision-making processes. Now, this includes decisions such as to fund free school meal equivalents during the school holiday periods and the re-opening of libraries, which many children had said were of great benefit and importance to them.

However, where decisions were in respect of the whole population, such as decisions to re-open hospitality settings in summer 2020 prior to re-opening schools, it was less clear how children’s rights had been considered. The practice of completing a CRIA as part of a decision-making process that is compliant with and proactively takes account of children’s rights is of prime importance to the Commissioner, and it is anticipated and hoped that it will be further explored by this Inquiry.

I turn to public health considerations.

During the pandemic, public-facing guidance was issued from both the Welsh Government and Public Health Wales. The Commissioner considered it was a difficult process at times to ascertain whether decision-making sat with the government or with Public Health Wales. Queries would be raised by the Commissioner’s office with the government, who would say that this was a public health matter. Meetings with public health officials, however, would say that they needed the government to take decisions and direct them in issuing guidance.

When seeking to scrutinise or influence decisions and the resulting guidance at this time, it was difficult for the Commissioner to understand who held responsibility for what and therefore where to take the concerns that children and families across Wales were bringing to the Commissioner and her team.

This was particularly the case around children’s homes. The Welsh Government would issue general guidance pursuant to the legislation around social distancing and other mitigating measures. However, Public Health Wales issued guidance to professionals around their role in managing coronavirus infections.

In practice, this meant that children’s care homes were in receipt of guidance from both institutions that was not worded the same, leading to confusion over the rules that they should be applying. This at times led to a more restrictive interpretation being followed to ensure compliance and without necessarily actively considering children’s rights and experiences. This is a matter that could usefully be clarified through the Inquiry process to aid communications in future public health crises.

I turn to the crossover between reserved and devolved matters, because there were increased areas where the jagged edge of devolution caused practical difficulties when implementing new legislation and guidance in Wales.

One sector in which this became apparent was youth justice, specifically youth custody settings. In Wales, there is one youth offending institution, HMP Parc in Bridgend, and there is one secure children’s home, Hillside in Neath Port Talbot. Guidance for all justice settings was issued by the UK Government in March 2020 at the outbreak of the pandemic. It essentially confined inmates, including young offenders, to their cells for 23 hours a day. This failed to take into account children’s human rights.

The Commissioner was involved in discussions with the Youth Custody Service, who instituted a different regime in HMP Parc, and they did so swiftly, whereby the boys were grouped into family cohorts, to allow them to have exercise, showers and association time in limited and managed groups. This was in March 2020, well before the bubbles concept had arisen for the population at large. It showed what could be done if thought was given to how the health risk profiles might differ in smaller settings of young people, and if primary thought was given to how to safely manage the public health risks but with children’s rights being factored in.

More practical difficulties arose and persisted for Hillside Secure Children’s Home, as they provide both youth justice places and secure welfare beds. They straddle the guidelines between justice, under the UK Government, and welfare, under the Welsh Government and local authorities. Practically this impacted upon staff in the setting and also directly upon the welfare of young people placed in their care.

The setting should be commended on the efforts they made to manage these constraints as best they could to support the young people during the time, but a confusion between jurisdictions inevitably caused confusion on the ground.

Previous modules and witnesses have explored the possibility of reverting control over decision-making in public health events like a pandemic to the UK Government to achieve consistency. In the view of the Commissioner, this risks oversimplifying the existing devolution settlement. The approach to youth justice is just one example that illustrates how the approach in Wales to children’s health and care is inherently different. Guided by the UNCRC rights-based approach, it would not be straightforward, or desirable for children in Wales, to row back on the devolution settlement in a pandemic.

The issues seen in youth justice settings also come back to the decision-making processes and resultant guidance not proactively considering or taking into account the differing health risk profiles for children and young people in small group children’s homes as compared to large residential care or nursing homes accommodating the elderly and vulnerable. A one-size-fits-all approach has been shown throughout the Covid pandemic not to be suitable or to meet children’s individual needs and rights.

I turn to the divergence in governmental approaches.

Social partnership is a foundational principle the Welsh Government’s approach. It is a common – it is common for public sector organisations such as the Children’s Commissioner to be actively involved and consulted during policy and legislative development. This continued into the pandemic and beyond and is a key feature of the approach here in Wales. The size and scale of the public sector in Wales allows this to be done in a manageable way. This allowed for the Commissioner to be proactively consulted in response to a range of issues affecting children in Wales. Within days, weekly calls had been set up with senior government officials and the Commissioner. This evolved into proactive sharing of matters arising whereby the Commissioner’s office was feeding in families’ experiences and queries in real time to the government, allowing for these to be reflected upon, and this in turn did allow for appropriate changes in Welsh Government’s legislation and guidance. The Inquiry may wish to weigh up to what extent this was beneficial and should be preserved, maintained or even extended in the future.

Notwithstanding the difference in approach here in Wales, it is apparent that many of the primary decisions were taken by the UK Government, and the Welsh Government were either expected to or chose to fall into line with those decisions. Clear examples in this regard relate to the proposed suspension of social care protections and safeguards and support for children with additional learning needs. The Welsh Government initially proposed to follow the decisions in England relating to fostering and adoption medical assessments and the support for additional learning needs, and sought to inform rather than consult the Commissioner’s office on its decision.

To its credit, the Welsh Government pulled back on these proposals following constructive challenge but the initial decision had only involved local authorities not children and families or those who work on their behalf such as the Commissioner’s office. Had a CRIA been undertaken as part of this initial decision-making process, this may have prompted consideration of wider viewpoints and children’s rights issues at that initial stage.

I turn to the convergence of care settings and risk profile.

Now, Module 6 will specifically focus on the care sector, but in relation to decision-making as falls within this module, it is important to reflect on the generic approaches to risk profiles.

The Commissioner wishes to highlight that a one-size-fits-all approach to the legislation and guidance fell short of due regard for children’s rights. A care or nursing home for the elderly or those with additional vulnerabilities is a clear risk factor when dealing with a public health emergency. However, the majority of children’s homes in Wales are small settings, often two to four beds, usually accommodating teenagers. Larger or group providers may have their own education provision, meaning that the young people are only mixing in limited and consistent groups, much like the bubble system or the rule of six. Requiring children in these settings through official guidance to self-isolate for a minimum of 14 days upon every contact with Covid and to have their contact with their families completely stopped for lengthy and repeat periods of up to 28 days following any sort of outbreak was inconsistent with their risk profiles and their human rights.

Despite many professionals in Welsh Government, Public Health Wales and other public sector agencies recognising this, the guidance was not changed or amended as matters developed and understanding of transmission and risks evolved. Again, we invite the Inquiry to consider whether or not this blanket approach to all paid due regard to children’s specific and unique rights and whether it was proportionate to continue with this approach throughout the pandemic.

I turn to the voice of children and young people, because Module 2 heard evidence from the former Children’s Commissioner for England, Anne Longfield, reflecting her frustrations or disappointment at the UK Government not listening to the need to hear from and speak to children directly. She described governmental indifference to children and their needs. By contrast, there were a number of ways in which the Welsh Government did actively engage with children and young people in sharing messages and listening to their views, such as televised press conferences with the then education minister, Kirsty Williams, two large-scale nationwide surveys of children and young people, organised by the Commissioner’s office, and ministerial meetings with children and young people facilitated by the Commissioner’s office.

None of this would have happened without the direct involvement and support of the Commissioner’s office but it is notable that the government was open to working in this way and to listening to children and young people in making their decisions. The Commissioner encourages the Inquiry to consider how this practice can be protected and sustained or even built upon.

I turn to my final point on scientific evidence and messaging, because it is clear that both the UK and Welsh Governments had access to scientific data and advice to inform their decision-making processes, but the Commissioner and her team were frequently called upon to comment on or advise on decisions and guidance at very short notice, where scientific evidence on which decisions were made was often not available at that point or at all, which meant that actual decisions themselves could not be adequately scrutinised.

The Commissioner was always careful to put out clear and reassuring messages to children and young people at every available occasion but at times this was hampered by a lack of clarity around the basis of government decisions.

Governments will hold all of the information and advice that has led to their decisions and they are therefore best placed to provide clarity and transparency. This Inquiry may wish to consider how that clarity and transparency may assist in clearer public messaging going forward.

In conclusion, my Lady, children’s lives were affected in every way by the decisions of the pandemic. Whilst efforts to reach out to them, to hear their voices and to listen to their needs were made by Welsh Government, often following encouragement or support of the Commissioner to do so, the Commissioner remains concerned as to whether, when and how their rights were properly considered and fed into the decisions which were made which directly affected them. The Inquiry will weigh up how well this was done and whether this could or should be done differently in the future.

I’m grateful, my Lady.

Lady Hallett: Thank you very much indeed, Mr Gardner.

Right, we’ll take a break now. Shall I be generous or not generous? 3.40. I’ll be generous.

(3.22 pm)

(A short break)

(3.40 pm)

Lady Hallett: Mr Jacobs. I’m not going to look over to the right as I would normally do.