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

Mr Gardner: My Lady, the voices and rights of children and young people are often forgotten. This is all too easy because children may not have the information or platforms available to them to have their voices heard.

On Day 1 of this module sitting here in Cardiff this Inquiry played an incredibly moving impact film. The impact of the pandemic on those who spoke on that film was stark and the loss experienced cannot be measured. But this said, there was an important omission from that film: it did not include a child or young person discussing the impact of the pandemic on them.

Now, the pandemic had an immediate impact on all children and young people in Wales, inequalities caused by poverty and disability in children became more pronounced, children lost many activities that we all took for granted in childhood. As Professor Holland said, these are not nice to haves, but they are an important part of the development of children, and that’s recognised in Article 31 of the United Nations Convention on the Rights of the Child. Professor Holland also highlighted that we are seeing a longer-term adverse impact on children’s confidence, their school attendance and mental health since the pandemic.

Whilst the pandemic had an immediate and devastating impact on older generations, on the disabled and on those who require care, equally the impacts will be had on children for a generation.

So what was the risk and what was the impact on children? The Inquiry has received detailed evidence on risks generally. Dr Chris Williams stated that the risk from infection to children is low and it must be put in the context of the relatively low severity, the burden on children and the negative effects of school closures.

The evidence before the Inquiry also suggests that schools themselves were not environments driving transmission of Covid-19 at particularly great rates. That is shown in the SAGE advice of 16 October 2020 and again in the Public Health Wales advisory note for 1 November 2021.

The latter of those notes that the closure of educational institutions in the second wave only resulted in a 7% reduction in infections compared to business closures, which resulted in a 35% reduction.

Indeed, yesterday Counsel to the Inquiry referred the First Minister to a TAG report of 7 January 2021 which advised that schools should not be used as a control measure for reducing R, particularly if non-pharmaceutical interventions are being observed.

Now, of course any reduction in contact will reduce infections in some way, but the actual risks need to be considered against the hidden harms.

The TAC report dated 3 June 2020 identified that school closures were having a significant harmful impact on children. The impact included severe impairment to learning, adverse impact on those with additional learning needs, the digital gap exacerbating socioeconomic inequality, and the loss of social engagement, as well as the impact on mental wellbeing and the loss of the protective environment of schools for vulnerable children.

As the report noted, the longer that schools are closed, the more profound the difficulties will be and the greater the cost and challenge to overcome them.

With a view to understanding the impact of the pandemic on children, the commissioner conducted two surveys entitled “Coronavirus and Me” with children and young persons across Wales. They were in May 2020 and January 2021. The Commissioner also conducted a firebreak lockdown listening day with children. These surveys and interventions showed that the impact of Covid-19 on children in Wales was indeed profound. Children reported that they were feeling lonely and isolated by the restrictions that were put in place.

There was, however, an additional important piece of information arising from these initiatives. Many children had a strong sense of fairness. They thought it was fair that there were measures in place to protect older people, but they were also filled with 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 education and social needs. This was exacerbated at times when it wasn’t always clear to children when, how or why decisions had been reached.

As a group, it was apparent that children and young people were willing to make great sacrifices, not because Covid-19 was such a threat to them, but because if they did not it was a threat to others. This attitude is to the great credit of our youngest generation. When children and young people said that they were willing to make this great sacrifice, the commissioner asks: what was done in return to help them, and was it enough?

My Lady, I turn to the role and the experience of the commissioner in the pandemic and the liaison with the Welsh Government.

The commissioner considers that the liaison with the Welsh Government and its willingness to learn and adapt is a different and far more positive experience than that of her counterpart in England. The social partnership model and the willingness of the Welsh Government to listen and learn in order to inform decisions she says should be commended.

From mid-March 20 onwards the commissioner had regular engagement with ministers and officials, including weekly telephone calls. To the credit of the Welsh Government, as time went on officials and ministers saw that the commissioner could bring something to the table and displayed an eagerness and willingness to hear the experiences of children.

The commissioner commends to the Inquiry the model of the Social Partnership Council, which allowed ministers, officials and the Chief Medical Officer to explain the rules, the latest evidence and major decisions which were to be announced and allowed, and it allowed those stakeholders present to raise issues and concerns. This was an effective way to make sure leaders across all sectors were engaged and had input into vital decisions.

Nonetheless, the Commissioner would respectfully adopt the statement made in oral evidence by Professor Debbie Foster that what was lacking in the pandemic was proactivity, there was a lot of reactivity.

Whilst commending the Welsh Government’s willingness to engage with key stakeholders, there is still learning which can come from the handling and consideration of the rights of children during the pandemic and in particular in the initial days of the pandemic.

The commissioner’s written closing submissions will provide more detailed submissions on discrete issues such as face coverings, the clarity and application of guidance around contact with family in children’s homes, and for children in care and youth justice issues, but today the commissioner highlights some themes where improvement could be made.

Theme one is the timing of initial action and Welsh Government preparedness. Concerning evidence has arisen as to the Welsh Government’s preparedness and timing for its initial decision on 18 March 2020 to close schools.

Firstly, it is concerning that the decision to close schools was taken on 18 March 2020 without any legal advice. This is in contrast to the decisions to close businesses, caravan parks and even footpaths where legal advice was taken, as indeed confirmed by Mr Miles in his statement.

It is presumably due to this lack of legal advice that the decision to close schools was taken by the Welsh Government when, in the absence of the Coronavirus Act 2020, it did not have the power to do so.

I pause to note the collective response from the Welsh ministers who appeared before the Inquiry that there was no such decision, only clear advice.

The education minister’s published announcement on 18 March reads as follows:

“Today, I can announce that we are bringing forward the Easter break for schools in Wales. Schools across Wales will close for statutory provision of education at the latest on 20 March 2020.

“Today’s decision will help ensure an orderly closure …”

With that information, I leave it to the Inquiry to draw its own conclusions as to whether a decision had been made.

The lack of legal advice also denied the minister the opportunity to be reminded of her legal duties to children and the Rights of Children and Young Persons (Wales) Measure 2011, to which I will return.

Secondly, it is concerning the decision to close schools was taken at such a rushed pace. It is recognised that COBR was not recommending school closures as late as 16 March 2020. Nonetheless, it appears that there had been no contingency planning in the months of January and February 2020 despite, as the Inquiry was informed by Vaughan Gething in evidence, that school closures were a possibility under the response plan and discussions highlighting the possibility of school closures had been taking place since at least mid-February if not sooner.

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.

Further, if proper contingency planning had taken place, the Welsh Government would have had time to assess, understand and consider the impact on children and their rights by involving the commissioner in the decision and by undertaking a children’s rights impact assessment. A lack of early planning and conversation with the commissioner, who was in regular contact with children from diverse backgrounds, would have highlighted the need for mitigations relating to the digital divide, disabled children’s access to online lessons and the safety and wellbeing of children for whom school is a haven.

Several ministers have come before this Inquiry to suggest that these oversights were due to the pace at which decisions were having to be made. The commissioner does not doubt the pressures of that period, nonetheless the commissioner questions whether the necessity to work at such pace is largely self-inflicted and down to the lack of preparedness and planning. This was to be to the significant detriment to the children of Wales.

My Lady, theme two is the voice of children and young persons. Article 12 of the United Nations Convention on the Rights of the Child guarantees children and young persons the right to express their views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

This right and all other rights under the UNCRC must be given due regard in all decisions made by the Welsh Government as they affect children by virtue of the Rights of Children Measure.

The practical importance of listening to children was set out in the report “Protecting the mental wellbeing of our future generations”, July 2022, in which the executive summary states:

“Having opportunities to express views, and have their views valued is identified by young people as being beneficial for mental wellbeing and can lead to more effective policy responses.”

At the outset of the pandemic, it’s clear that the voices of children and young people in Wales were not being sought or considered. When the decision to close schools was taken on 18 March, where were the voices of children in that decision which would affect them so significantly? As was confirmed by Professor Holland in her oral evidence, the Children’s Commissioner was not consulted on the decision. Jane Runeckles confirms in her evidence that no consideration was given to whether to consult the commissioner. So to confirm, 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.

Communication with children and young people around restrictions requires their involvement. As Professor Ann John highlighted in her statement:

“Designing effective communication and interventions with young people will require an appreciation of young peoples’ own understanding of the situation and their losses. Outputs need to be age appropriate and there is a need for simple behavioural instructions framed in a contextually relevant way.”

As well as consulting the commissioner, an example of how this could be done is the listening day organised in response to the announcement of the autumn 2020 firebreak and indeed the “Coronavirus and Me” surveys.

My Lady, theme three is the consideration of the rights of young people and children’s rights impact assessments. In Wales the Inquiry will be aware that there is a duty under the Rights of Children and Young Persons (Wales) Measure 2011 on the Welsh Government to have regards to the rights of children under the UNCRC in exercising its functions. The Children’s Rights Scheme 2021, at paragraph 3.1, also requires the Welsh Government to undertake a children’s rights impact assessment (CRIA) to understand the social, economics, cultural and environmental effects of decisions on children.

Professor Holland observed in her oral evidence that a CRIA should be started as soon as a new policy or decision is being considered. It is a tool for thinking about the impact on children and their rights. It should think about mitigation of adverse impacts which are identified as part of the assessment. It should be an active, live document.

The CRIA document itself is important, but more important is the substantive consideration of rights and needs of children. The duty under the 2011 Measure is one of substance, not form. There is an obligation on the Welsh Government to consider children’s rights and doing so contemporaneously will lead to better decision-making. If this is done contemporaneously in a CRIA document, then that will help to assist evidencing compliance with the duty, but it is not definitive. It is consideration of the substantive rights and mitigation measures feeding into decision-making at the time that will constitute exercise of the duty.

This Inquiry has heard concerning evidence relating to failings in the use of assessments during the pandemic. In evidence a number of ministers and officials were asked in the absence of undertaking a contemporaneous CRIA whether they considered the duties under the 2011 measure. They repeated the same point: there was no time to prepare the forms but they had the issues on their mind.

The Inquiry will have to grapple with whether such vague, after-the-event assurances are sufficient in the absence of documentary evidence of the same.

We do know that for several major decisions no CRIA was created at the time. Four examples set out in Professor Holland’s evidence 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, as noted in Professor Holland’s evidence when CRIA were completed they were often completed late, they were far removed from the original decisions and reflected back.

They raised concerns that the CRIAs were being – weren’t being content – completed – I apologise.

The commissioner raised concern that the CRIAs were being completed retrospectively. A CRIA should not be about retrofitting children’s rights/considerations into decisions, that they never had this in mind at the time.

This defeats the purpose of the CRIA, which is to ensure that the rights of children are at the forefronts of minds of decision-makers and may lead them to consider and mitigate the impact of the decisions on children before those decisions are taken and implemented.

The Commissioner is concerned that these important duties as they apply in Wales are not sufficiently understood or consistently applied in either substance or a procedural sense within the Welsh Government. The Inquiry is asked to consider the significant and consistent evidence of failures to apply the 2011 Measure, and whether more substantive training and understanding of the same in the Welsh Government is required, and whether structural alterations are required to ensure these important duties are applied.

My Lady, my final topic is whether things could have been done differently, what lessons can be learnt, could children’s experiences have been different.

Now, in times of great adversity and significant pressure on decision-makers, it is all the more important the systems are in place to ensure the rights and protections of the most vulnerable in society are upheld, as they are the ones who will be most impacted by monumental shifts and pressures on society. In that light, the failings identified by the commissioner are important for two reasons.

Firstly, listening to the voices of children, contemporaneous and active consideration of children’s rights and contemporaneous CRIAs are important safeguards built into the law in Wales which, if adhered to as part of a timely and prepared decision, may have mitigated the impact of the pandemic on children.

In particular, adherence at the point of the first school closure would have reminded decision-makers that schools are more than educational and allowed time to put mitigation measures in place. The digital gap could have been addressed, financial and emotional support could have been put in place, safeguarding measures could have been introduced. Indeed, adherence when considering the easing of restrictions may have led to the re-opening of schools earlier than they were and certainly before businesses and hospitality were able to re-open. This would have lessened the educational, developmental, emotional and mental health harms inflicted.

Secondly, the failings identified are not simply a feature of the pandemic. Whilst giving oral evidence yesterday, the First Minister proudly announced that Wales introduced a scheme to provide free holiday school meals and this ran for longer than any other nation; he did not mention that on 27 February 2024, in the case of The King (on the application of RLQ) v Welsh Ministers, case number AC-2023-CDF-000107, the High Court declared that the Welsh Government’s decision on 28 June 2023 to end that provision was unlawful because in taking the decision the Welsh Government failed to consider the rights of children under the 2011 Measure and under the public sector equality duty.

When taking that decision, the Welsh Government left the announcement to the last minute, they did not consult with the commissioner, they did not obtain the views of children or young persons or any persons with protected characteristics, and they did not undertake an integrated impact assessment, a CRIA or an EIA.

The complaints sound worryingly familiar and illustrate that the problem is systemic and persists to date.

My Lady, in conclusion the commissioner respectfully recommends to the Inquiry the following lessons.

There is a need for CRIAs to be undertaken at the time of decisions and for the voice and rights of children to be considered when decisions are taken relating to children. This action is not simply reflective of legal obligations in Wales, it is a necessary conduit to better decision-making around children and mitigation of adverse measures which may impact them.

There is a need when making decisions about children and young persons to do things differently depending on age, living arrangements and existing inequalities. The impact of school closures is significant and decision-makers must, from the very beginning, and continuously, weigh the risk to life against the risks we know school closures pose to children.

Schools must be ready for online learning. Digital connectivity for pupils and staff is key and those who do not have it must receive support.

Finally, the Children’s Commissioner should be engaged and consulted early and used as a resource in good decision-making relating to children.

My Lady, the commissioner thanks the Inquiry for allowing her involvement as a core participant of this module and hopes her submissions and assistance help guide the Inquiry to make recommendations for a better decision-making system and support children better in the future.

My Lady, diolch yn fawr.

Lady Hallett: Thank you, Mr Gardener.

Just one thing: you mentioned that the impact film played at the beginning didn’t include the experience of a child. As you know, this module is focusing on key decision-making, and the Inquiry is very conscious of the impact on children and later investigations will put the focus firmly on children and young people and the loss of social development and the like from closing of schools as well as the loss of education.

And also the Inquiry team are working hard to capture the experiences of children now. From my work as a barrister and as a judge, I’m very conscious that you need to get these memories recorded before memories fade, so thank you very much.

Mr Gardner: My Lady, two quick observations.

One, no criticism was intended; it was

an illustrative tool.

Two, I have a seven year old son, Jacob, who I am

sure would be delighted to be in the film.

I’m grateful.

Lady Hallett: A lot of people offer to give evidence,

Mr Gardner, but I haven’t had a 7-year old yet.

Thank you, I will return at 11.40.

(11.25 am)

(A short break)

(11.40 am)

Lady Hallett: Mr Jacobs.