Abstract
The United Kingdom (UK) has a dualist approach to international treaties and has not yet legislated to incorporate the Convention on the Rights of the Child (CRC) in UK domestic law. Nonetheless, there are various ways in which the CRC, like other unincorporated treaties, can influence the decisions of the courts: by means of a rule of construction, by means of developing established legal notions and by absorption into criteria for the legality of administrative decision-making. In England and Wales, which continue as a joint legal system despite devolution of legislative and executive powers to Wales, the CRC’s impact can be seen in a number of areas of both substantive and procedural law. These include areas where underlying policy considerations are not traditionally inclusive of children’s rights. However, judicial implementation can deliver only incremental change in response to such cases as reach the senior courts, and, in the Anglo-Welsh legal system, judicial deference to the legislature, and to executive agencies exercising statutory discretion, remains strong. Legislative incorporation is vital to deliver the necessary systemic changes. In Wales a novel legislative model is in place, using the concept of ‘due regard’ to require the devolved administration to think proactively about implementation. Further progress in implementation will be enhanced by a combination of such legislative measures and effective enforcement mechanisms, including but not limited to litigation and judicial enforcement.
I am indebted to my colleague Dr Simon Hoffman and to the editors for their comments. Any errors or omissions remain my own responsibility.
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- 1.
The United Kingdom is State Party to the CRC. However, implementation of the treaty obligations in Wales, Northern Ireland and Scotland falls to a substantial degree to the quasi-autonomous, or ‘devolved’, governments and parliaments for those areas. Scotland and Northern Ireland each also have their own legal systems, while the legal system of England and Wales remains joint. The process of devolution facilitated by UK legislation in 1998 is ongoing, and further, incremental change is likely.
- 2.
Section 2A Children Act 2004.
- 3.
The Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly.
- 4.
The Scottish Executive, the Welsh Government, the Northern Ireland Executive, in each case comprising the Ministers and their officials.
- 5.
The Scotland Act 1998, the Northern Ireland Acts 1998, and the Government of Wales Acts 1998 and 2006.
- 6.
Section 1 Rights of Children and Young Persons (Wales) Measure 2011.
- 7.
Children and Young People (Scotland) Bill, introduced to Parliament on 17 April 2013.
- 8.
Rt. Hon Sir Alan Ward, in Re P-S, 2013 (discussed further below under ‘Family Law’).
- 9.
From 1 October 2009 the Supreme Court replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom.
- 10.
Children’s Rights Bill 2009, presented by Baroness Finlay of Llandaff.
- 11.
At para. 78, [2006] UKHL 35.
- 12.
For example, in the Social Services and Well-being (Wales) Bill 2013.
- 13.
At para. 25.
- 14.
At para. 28.
- 15.
The provisions on mediation and on the presumption of involvement were enacted in sections 10 and 11 Children and Families Act 2014.
- 16.
R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497.
- 17.
CF v Secretary of State for the Home Department and another [2004] EWHC 111(Fam).
- 18.
The High Court of Justice and the Court of Appeal are England and Wales courts. The Supreme Court is the highest appellate court and its jurisdiction is UK-wide. Administrative law cases in England and Wales often start in the Administrative Court, a division of the High Court. Appeal lies from there to the Court of Appeal and, ultimately, on a point of law of general significance, to the Supreme Court.
- 19.
The reservation, which was withdrawn in 2008, reserved the right of the United Kingdom to apply such legislation, insofar as it relates to the entry into, stay in, and departure from the United Kingdom, of those who do not have the right under UK law to remain in the UK, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.
- 20.
The Children Act 2004 imposed obligations on public health bodies, police, probation and prison authorities, as well as on local authorities in England and Wales, to make arrangements to exercise their functions and deliver services having regard to the need to safeguard and promote the welfare of children.
- 21.
The first such case was a decision of the Upper Tribunal (Immigration and Asylum Chamber): LD (Zimbabwe) v Secretary of State for the Home Department [2010] UKUT 278 (IAC).
- 22.
Lord Hodge, at para. 10 of the judgment.
- 23.
Miss Behavin’ Ltd v. Belfast City Council [2007] UKHL 19, at para. 31.
- 24.
A v Secretary of State for the Home Department [2002] EWCA Civ 1502.
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Williams, J. (2015). England and Wales. In: Liefaard, T., Doek, J. (eds) Litigating the Rights of the Child. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9445-9_4
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