Saturday, October 17, 2009

Badman's Recommendations infringe UNCRC Mandated Rights of Child

Just in case this is helpful to anyone yet to fill in their consult responses, a quick run-down of how the Badman recommendations will infringe children's rights:

The implementation of the recommendations in the Home Education Review to register and monitor the educational provision and attainment of the home educated child would infringe a number of UNCRC-mandated rights (1) of the child:

  • The enactment of a universal monitoring scheme involving uninvited intrusion into the home and inspection of the child and his work when there is no reason to suspect that there is a problem and yet with the vague implication that his family may be abusive will violate a child's rights under Article 16 of the UNCRC which states that "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. The child has the right to the protection of the law against such interference or attacks." Given that police and social workers have to argue for rights of entry to homes and have to apply for a warrant to do so in individual cases where there is a reasonable appearance of need, legal precedent suggests that the law recognises that scrutinizing an entire population on the basis that a few members of it will have committed a crime, would represent arbitary interference and thereby an infringement of Article 16.
  • The proposal to monitor and inspect HE children will not respect the UNCRC-mandated right of the child to be heard. Article 12: " States Parties shall assure to the child who is capable of forming his or her own views the right to express those 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. " Polls (2) demonstrate that the majority of HE children do not want to see LA personnel. Given that they do not want to meet with a virtual stranger who has the power of judgment over their entire life, and who could put a stop to their way of life and who would offer nothing of value that they couldn't access without this assessment, the child's view does not seem irrational and therefore he should have the right to have this opinion heard and respected.
  • The proposal to allow state officials to interview the child alone without any further application to establish proper need would not allow for the UNCRC-mandated right of the child to remain unseparated from his parents. Article 9: "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence." It is not clear from the proposals in the Home Education Review how the judgement to see the child alone by the official will be subject to any sort of judicial review process. Instead it looks as if officials are just given the de facto right to use this power as they please, without any necessary due cause, and without being subject to any judicial process such as the requirement to seek a warrant or other form of legal permission.
  • The proposal to meet with the child in the process of monitoring his education will violate the child's right to freedom of association as inscribed in Article 15: . "States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." Please note the AND here. It is necessary that the law is proven to be necessary in the interests here for the protection of the rights and freedoms of others. Given that families where there is absolutely no reason to suspect problems will be intruded upon and inspected, children will be forced without due cause, to associate with people they have not freely chosen to associate with and Article 15 will therefore have been violated.
  • The proposal to monitor and inspect will, in the majority of cases, override Article 3 of the UNCRC "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." Given that all the above rights of the child will have been violated, and given that there will be no observable benefit to the child to see an LA inspector, his best interests cannot possibly be said to have been served by this intrusion. Consideration must also be given to the fact that state-mandated education and state interference have failed a large number of home educated children, in which case, it seems extremely unlikely that the best interests of these children will be served by having to submit to it all over again.
  • Article 5 of the UNCRC: "States Parties shall respect the responsibilities, rights and duties of provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. " Parents will not be able to give appropriate direction in assisting their child to maintain their rights, because the state will forcibly prevent them from doing so when all the above rights are violated by the state.


2. Poll results:


Anonymous said...

Genius, thankyou.


mum6kids said...

They are so selective in which 'rights' can be protected and which can be binned to suit the state.
I've started fisking some of the meeting-starting with the Registration question. Sometimes I don't know whether to laugh or cry at what was said!

Kelly said...

It would appear that compulsory education also violates the UNCRC. Badman's proposals also violate the UN Universal Declaration of Human Rights, which states that parents have the right to choose the education their children shall receive.

Anonymous said...

Article 14 comes into it too.

"Article 14 - discrimination
Article 14 contains a prohibition of discrimination. This prohibition is broad in some ways, and narrow in others. On the one hand, the article protects against discrimination based on any of a wide range of grounds. The article provides a list of such grounds, including sex, race, colour, language, religion and several other criteria, and most significantly providing that this list is non-exhaustive. On the other hand, the article's scope is limited only to discrimination with respect to rights under the Convention. Thus, an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Convention (e.g. discrimination based on sex - Article 14 - in the enjoyment of the right to freedom of expression - Article 10). Protocol 12 extends this prohibition to cover discrimination in any legal right, even when that legal right is not protected under the Convention, so long as it is provided for in national law".


Carlotta said...

Oh blimey, yes, there's yet another one! Thanks Danae. Will append it in various places.