Given by Bruce Adamson, Children and Young People’s Commissioner Scotland on 26 October 2017.
Thank you very much for the invitation to address this important Conference— it is a real pleasure to be here. Being with you today gives me the opportunity to reaffirm my commitment to the rights of care leavers, and also allows me to take stock and look at how far we have come in making these rights a reality.
I have been asked to reflect on some of the policy and legislative changes which have taken place over the last decade which have impacted on care leavers and care experienced children and young people.
My starting point is always happiness, love and understanding.
There is a broad array of international instruments which set out the human rights of children, but the United Nations Convention on the Rights of the Child is the first legally binding international instrument to incorporate their full range of civil, cultural, economic, political, and social rights, as well as aspects of humanitarian law. It starts with the premise that children should grow up in a family environment of happiness, love and understanding.
If you remember anything from what I say – it should be that.
The UNCRC builds on the Charter of the United Nations (1945) which recognised that the inherent dignity and the equal and inalienable rights of all members of the human family are the foundation of freedom, justice, peace and social progress. The UNCRC breathes life into the Universal Declaration of Human Rights of 1948, which proclaimed that childhood is entitled to special care and assistance.
The UNCRC is the most rapidly and widely ratified international human rights treaty in history. It changed the way children are viewed and treated in international legal terms. It proclaims children’s status as human beings with a distinct set of rights, not just as passive objects of care and charity.
The rights contained in the 54 articles of the UNCRC are universal, interdependent and interrelated. The articles cover all aspects of a child’s life and explain how those in power must work together to make sure all children and young people can enjoy all their rights.
The rights can be grouped into four categories: Survival, Development, Protection and Participation, as well as a set of Guiding Principles and additional provisions – articles 43 to 54 – explaining how governments and international organisations will work to implement the UNCRC.
The Office of the Children and Young People’s Commissioner for Scotland was established in 2003 to promote and safeguard all of the rights of children and young people. That includes everyone up to 18, and those up to 21 if they have been in care— an important recognition of the additional duties we have to ensure the rights of care experienced young people.
My Act was passed in 2003, but the origins of the office go back much earlier— to a time when the world was coming together – after the horrors of the early 20th Century – to put in place the foundation for what would become the international human rights framework. I think we sometimes forget that the legal framework which supports our rights was born out of a global commitment to change. The world is watching… the things that we do here in Scotland to ensure the rights of care leavers throughout their lives is based on international commitments. You are human rights defenders.
In fact, this week – as well has having been Care Leavers’ Week – is also United Nations Week. It is an important link. On Tuesday we celebrated the anniversary of the entering into force of the UN Charter on 24 October 1945. In 1971, the United Nations actually passed a resolution calling on all Member States to make 24 October an international public holiday… I don’t usually criticise the UN, but I think that not securing the implementation of a global public holiday is an outrageous failure…
I have a poster of the UN Charter on the wall in my office, just above my desk, next to my poster of the UNCRC…
The Preamble to the UN Charter says:
“WE THE PEOPLES OF THE UNITED NATIONS determined to save succeeding generations from the scourge of war,
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person,
to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,
AND FOR THESE ENDS
to employ international machinery for the promotion of the economic and social advancement of all peoples…
This is important… making these commitments real.
Right at the origin of those discussions in the late 1940s, as we started to breathe life into the human rights system through the Universal Declaration of Human Rights, there was already an understanding that we would need independent institutions working at a national level.
The Economic and Social Council as far back as 1946 called upon states to set up national bodies. Alongside a system of reporting and monitoring to international experts, there needed to be someone who was able to work domestically…
The importance has grown as the core treaties came into being. The UN General Assembly adopted the Paris Principles in 1993, setting out the requirements for such institutions, and in 2002 general comment number 2 of the CRC said:
Additional justifications exist for ensuring that children’s human rights are given special attention.
These include the facts that children’s developmental state makes them particularly vulnerable to human rights violations;
their opinions are still rarely taken into account; most children have no vote and limited economic power – cannot play a meaningful role in the political process that determines Governments’ response to human rights;
children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; and children’s access to organizations that may protect their rights is generally limited.
I start with all of this background as it’s important to understand what my office is. The Commissioner isn’t part of government. Successive Governments in Scotland have given priority to children’s rights— but there is a challenge of turning some of the rhetoric into real change. And it’s the Commissioner’s role to ensure that there is accountability of Government against its international obligations— through investigating, reporting to Parliament, mobilising civil society, working with the media and bringing the voice of children directly to decision makers at all levels.
The Children’s Commissioner doesn’t take away responsibility away from all of the essential public bodies delivering children’s rights. The job is to complement and strengthen their ability to deliver real improvements for children, through the provision of tools that work to put children at the centre of decision making. Ensuring that all corporate parents meet their obligations.
It is not a civil society organisation— in Scotland we have a vibrant, active, and effective children’s sector, and world leading academics. The Children’s Commissioners isn’t another voice amongst many. It is doing the things that civil society can’t: my statutory mandate, the fact I can’t be reappointed, the protections I have from being removed from office, my protected budget, reporting directly to Parliament, my strong investigation powers, my influence on decision makers, and my providing of a link to the international human rights framework.
The reason that the UN encourages states to have Children’s Commissioners is the knowledge that children’s rights need to be protected domestically by someone who can bring the weight to those international obligations to the places were children live and where decisions are made.
It is this bridging role that is the key to an effective Commissioner. They seek to bring together different parts of the political and institutional system and society in the best interests of the child. Empowering, building ability, and ensuring accountability.
The focus of my work is on all human rights, but as I said earlier the UN Convention on the Rights of the Child is special. Ratified by the UK in 1991, it commits the UK to bringing its laws, policy and practice into line with the Convention. While not yet fully incorporated into domestic law, we are making some progress…
Also – we have direct reference in the Scotland Act to make clear that the implementation of international obligations is devolved to Scotland.
The European Court of Human Rights, increasingly refers to the Convention in its judgments. Section 2 of the Human Rights Act obliges UK courts to take account of jurisprudence in making their own decisions.
The CRC is directly relevant to care experienced young people, Article 20 says:
A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
That special protection and assistance needs to be informed by the guiding principles of the conventions:
- Non-discrimination (article 2) ,
- That the best interests of children being a primary consideration in all actions concerning them (article 3) ,
- the right to survival and development (article 6) , and
- article 12, the right of the child or young person to express their views freely in all matters affecting the child, the views of the child being given due weight in accordance with age and understanding, beautifully illustrated in Who Cares Scotland’s? 1000 voices campaign.
The rights of care experienced young people are underpinned by Article 4 of the Convention , which requires the State to undertake all appropriate legislative, administrative or other measures for the implementation of the Convention rights, and, where they cover economic, social and cultural rights, to the maximum extent of their available resources. That is important – the maximum extent of available resources – resources aren’t unlimited, but they are required to be prioritised to the rights of children.
Other articles cover the right to the highest enjoyment of health ( article 24 ) – including mental health. We heard shocking statistics this morning from Professor Mike Stein about the levels of mental health problems for care experienced young people. Article 26 refers to the right to benefit from social security and article 27 ensures the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development… again… more needs to be done in this regard.
Also – as Mike said earlier – care leavers aren’t a homogenous group – so additional focus needs to be put on support tailored around disability, sexual orientation and gender identity.
The Convention is indivisible and interdependent – if one right is not fulfilled, it can impact on other rights: a failure to provide a decent standard of living can for example impact on a young person’s mental and physical health.
As some of you may be aware, I worked for the first Commissioner, Professor Kathleen Marshall, some ten years ago, when the age of leaving care was sweet 16. Returning 5 months ago as Children’s Commissioner, I found myself faced with a rather disturbing sense of déjà vu. Whilst it is fair to say that there has been considerable progress, there is sadly far too much that is all too familiar. Issues we were working on a decade ago are still alive and well today.
One of the best things I have done was attend the Who Cares? summer camp and I had a great time– kicking a football around and being thrown into the river. In rural Perthshire. I love my job. It took place in an environment where children told me they felt accepted, they didn’t have to explain themselves… and by creating that environment with the hugely skilled staff from Who Cares? who had built and supported those loving relationships… it really brought out that “ordinary magic”.
And they talked about their experiences, a consistent message that I heard was around the feeling of not feeling loved, or listened to, or secure, of not understanding their rights. I heard similar issues— the age of leaving care, poor understanding from (some) professionals of young people’s entitlements to throughcare and aftercare and, crucially, limited awareness from children and young people about their rights and how to access them.
We made the point then – and I make it again today – that leaving care should be a positive experience for every young person and that no one should be moved on without the proper preparation, support, love and guidance.
What was clear to us then was that young people didn’t know what they were entitled to, nor what their rights were when going through the leaving care process, nor indeed how to challenge a failure to deliver. This sadly remains the case for some young people. There is no doubt at all that a considerable amount of work has been done over this last decade (and indeed before) for care experienced children and young people.
This year, my office worked with Who Cares? Scotland to jointly produce resources to help young people in care, care leavers and the adults who support them.
The resource is a guide to their rights to Continuing Care and Aftercare, and we created it after consulting with young people and professionals working with care experienced young people.
Our resources include:
- a booklet explaining rights to Continuing Care and Aftercare, and
- a flowchart that can help young people make decisions about their care.
The printed resource is supported by extra information sheets for workers and powerful online videos made by young people working with Who Cares? Scotland. We launched the resource with colleagues from Who Cares? Scotland at the STAF conference in May and have been disseminating it across Scotland.
Our whole national and international framework is based on a commitment to care leavers: There has been a plethora of Scottish Government reports and guidance, including ‘Looked After Children: We Can and Must do Better’ back in 2007 which focused on improving educational outcomes of looked after children, ‘These are Our Bairns’ in 2008 which advised local authorities and Community Planning Partners on how to improve outcomes for looked after children and young people and care leavers through their corporate parent function.
We’ve also seen a Parliamentary Inquiry into the educational attainment of looked after children in 2011 and the Education (Additional Support for Learning) (Scotland) Act 2004 extended in 2009 to give legal force to the entitlement of looked after children and young people through additional support needs assessments.
Most recently and more specifically related to care leavers, the Children and Young People (Scotland) Act 2014 put into statute the policy aims of ‘These are Our Bairns’ and ‘Staying Put Scotland’ (2013). It also introduced duties to provide Continuing Care for young people up to 21 and placed Corporate Parents on a statutory footing. It is an exciting piece of rights-based legislation which is both bold and aspirational in its scope.
Barely a month goes by without an announcement on care experienced young people. In April 2016, Nicola Sturgeon’s response to the Commission on ‘Widening Access’ was to offer a free university place to care experienced young people who meet the minimum entry standards, and support them with a full bursary. At the recent SNP Conference, the Scottish Government announced council tax exemption for care leavers. Both of these show a recognition that care leavers cannot rely on parental financial support nor have the same family support as others. Both are welcome initiatives.
Over half of Scotland’s local authorities, MSPs, MPs and other influencers have signed up to the principles and actions in the Care Leavers Covenant.
Champions Boards within local authorities and CPP areas are springing up across Scotland, the most recent one being in Falkirk (one of my Young Advisers, Liam, is playing a prominent role in this). The Champions Boards provide an excellent example of corporate parents coming together and agreeing actions, and also offer opportunities to advocate for change at national level in order to progress these changes at a local level— council tax exemption for care leavers being a case in point. As one of the Life Changes Trust Advisors said to me only a fortnight ago:
‘I didn’t l know about this tax when I left care and then I was suddenly landed with a bill which I hadn’t planned for. I ignored it and got steadily into debt. I didn’t have the bank of mum and dad to turn to and got totally stressed out by it all, not knowing who to ask for help or advice.’
In the last year or so, we’ve seen the announcement and launch of the Root and Branch care review, an exciting development with care experienced young people playing a central role. There has been fantastic work being done by CELCIS and Who Cares? Scotland, such the 1000 voices campaign which is feeding into the care review, and by many professionals working in this area, some of whom are here today, an indication of your commitment to making real change happen. There are also exciting initiatives such as Street Legal, the Big Lottery funded work with Clan Childlaw and Street-Youth, an Edinburgh based homelessness support service. This is providing free legal advice and help to young people (up to the age of 26) who are either experiencing or at risk of homelessness in Edinburgh, and helping them to access and maintain accommodation.
Clan Childlaw have noticed a high incidence of care leavers and are aware that many of these young people had been entitled to Continuing Care. Some had said they didn’t want it, whilst others said that it just hadn’t been explained to them. I know that Clan Childlaw are keen to find out what is happening nationally and how widespread this is. What is clear, though, is that some 17 and 18yr olds are falling through the net and this should not be happening.
Another positive new service is the ‘Housing First for Youth,’ a 2-year project being piloted by Almond Housing Association and Rock Trust, for young people leaving care in the West Lothian area.
Recent government statistics show West Lothian Council has the largest increase in use of temporary accommodation in Scotland. Scottish Government statistics also suggest that at least 21% of care leavers become homeless within five years of leaving care, while practitioners estimate this as high as 30-50% due to issues with self-declaration.
The two partners feel that young people leaving care are being failed by current temporary supported accommodation models, noting that traditional ‘staircase’ routes to permanent accommodation rely on individuals having to prove readiness at each stage in order to move to the next. For young people leaving care and requiring high levels of support this can be difficult, as many of them will have experienced significant trauma, instability, multiple moves and insecurity throughout their lives and can have mental health difficulties and addictions.
‘Housing First’ focuses on housing as a basic human right and acknowledges that these young people have specific needs. Some young care leavers there are thus being offered accommodation on an immediate, permanent and unconditional basis. Five fully furnished tenancies are being provided by the Housing Association and additional holistic support provided to each young person, from Rock Trust. Their ‘whatever it takes’ philosophy in order to support the young people to maintain their tenancies is something I applaud, and I look forward to seeing the evaluation of this exciting new service and hope that can be adopted by the Council after the pilot ends. Alistair MacDermid, Operational Manager at Rock Trust said:
‘While the high intensity support provided by Housing First for Youth may equate to a more expensive service than some existing models, we are confident that preventing some the most vulnerable in our communities from entering the cycle of homelessness will ultimately provide savings – both financial and human’.
Despite these great policies, initiatives and legislation, we still hear of young people feeling pressured into leaving care at 16, unaware of their rights and entitlements, of being placed into unsuitable accommodation, because what they need is unavailable. In some authorities, they have to declare themselves as homeless to access services they need. There is also great variation across local authorities. Let me provide you with some examples to illustrate:
1. One young person my office has recently met is 17 years old and was looked after by a local authority from age of 11 to 16. This young person told me that she wanted to continue being looked after. Because she was able to access her right to continuing care, she remained in her existing residential accommodation for about 4 months until she was removed from it – a decision made by the social work department following an incident of self-harm. This young person was clearly not ready to leave care and the conditions which made this possible under Section 67 of the 2014 Act were not obvious, begging the question as to why a welfare assessment did not pick up on her vulnerabilities? The outcome of all this was that she was made homeless for a considerable period of time and was placed into a hostel – a 17-year-old with mental health issues. She has clearly expressed her views about needing more support and her support worker says that they’ve tried to raise this on numerous occasions. The Council has legal responsibilities to this young person both in terms of aftercare, continuing care and as a Corporate Parent. How can this be happening?
2. I recently heard of another 17-year-old in need of supported accommodation who has been on a waiting list for over a year. He is currently living in a hostel as more suitable accommodation for him is not available – nor is it likely to be. Is it right to have a 17-year-old with considerable needs going back and forward in the system, with all the uncertainly that this comes with it? If the bottom line is that there are not enough places in supported accommodation, then the issue is about making these available… This is a statutory right and local authorities must address their allocations policies.
3. Natasha at the Life Changes Trust: I met Natasha a couple of weeks ago. She is on the Care Experienced Young Advisors Board at the Life Changes Trust and she said that I could share her story with you. It goes to the heart of ‘relationships,’ what being a corporate parent should be about and how this is understood by some people working in the system.
Natasha is 23 years old and as she says, she is technically not in foster care. At a meeting a few months ago and within 10 minutes, she was reminded of that fact and told firmly that her foster carers should have become her supported carers at 18. Natasha says she was tempted to reply:
‘You don’t change your title for your own children. You don’t tell them ‘stop calling me Mum. You are now 18….’
She also spoke about a meeting she had been at the day before we met – it was a foster care review. She’d received the forms in advance and was a little perturbed to notice that the box that under the ‘what I like’ box, there was space for about three short bullets, but under the ‘what I don’t like’ box, there was reams of space. The supervisor said to her – ‘ well you could have attached a piece of A4 if you’d wanted to’. As Natasha said:
‘I’m 23, so understand how it works, but it must be really depressing for younger kids as it could send them down a route of negative thinking. In any event. I’d wanted to talk about it rather than put my feelings on a form.’
(Natasha has since emailed a copy of the form and it is most odd. )
‘I wanted to write loads about where I stay and how much I love it. How I’m just part of the family, how I really get on with my older brother and sister and how much I enjoy the relationships I have built up over the years. When I told the supervisor that, the reply was ‘But you’re in foster care. There is ‘scaffolding’ around that – like supervision orders, permanency…
(she was struck by the term ‘ scaffolding, as am I.)
She said she almost felt as if she didn’t have a right to be loved or a right to feel as she did.
The Continuing Care provisions are rights based and aspirational, as is the accompanying guidance, but they remain aspirational if there is an implementation gap. The bottom line is that a young care experienced person should never be presenting as homeless .
There must be a culture shift– young people should get this entitlement and it should be automatic. I know from many workers that they want to be doing more, to help these young people access and enforce these rights, but they are being stymied by the lack of resources and the allocations policies within their local authority, as well as blockages at management level.
Interestingly, there is also a lot of information out there about what these new rights mean, but very little on what a young person should be doing if they do not get their statutory entitlement. What concerns me is that there is practically no information about how to challenge or appeal, and this is something I hope to address. I heard recently that in some cases, support workers have asked local authorities to reconsider decisions, but when a solicitor then takes the case forward on behalf of the young person their one chance of appeal has been lost. In short, the statutory right is there, but the problems are around implementation, a lack of resources, a lack of awareness of how to enforce those rights and crucially leadership and culture. This must change.
Can I now turn to the UN Guidelines. The requirement for States to promote the rights of young people making the transition from care to adulthood is also central to the Guidelines for Alternative Care , adopted by the UN General Assembly in 2009. These recognise that State parties have responsibilities towards care leavers.
The issuing of these guidelines is an exciting development, and the sections on the three phases of leaving care are an important addition to that body of work. Munro et al. (2011) note that they have the potential to give a major boost to the State and the UN Committee’s own engagement with care leavers— and significantly, this includes what happens to children what happens to children in the aftercare period when they are over 18.
The Committee on the Rights of the Child which monitors implementation is now obliged under its own guidelines to consider States’ actions against these. The reporting process is also an important way of monitoring and assessing progress, and one in which I am actively engaged.
The Moving Forward Handbook in which CELCIS played a key role explains how these guidelines should be implemented, recognising the implementation gap and seeking to match intention and reality. It makes the point that there is a gap between our collective aspirations for children’s wellbeing and the realisation of these rights, recognising that these children and young people are amongst the most vulnerable people in our society to violations of human rights.
The ‘implementation gap’ features strongly in Kenny McGhee’s report which explored some of the barriers and enablers to implementing Staying Put and Continuing Care in residential child care.
It provides a useful insight into a complex and contradictory work environment for practitioners, where workers were often unclear on what they could and couldn’t do to promote Staying Put practice.
I was struck by his comment that many dedicated workers are doing this in spite of the system, rather than because of it. He cites reasons for this, not least a lack of formal or structured briefing or training on the Staying Put national guidance – despite it having been published in 2013 – or on the detail and implications of Continuing Care, which results in workers lacking knowledge, feeling conflicted, and losing confidence.
Kenny also talks of the pressures on placements and resources and how some workers were concerned about getting a ‘bit of heat from management’ if they were too proactive in promoting ‘Staying Put’ and Continuing Care. The idea that workers expressed unease about how much encouragement young people could receive, and how this could or should be formalised through reviews and planning meetings is deeply concerning.
In a time of cuts and austerity, there are clearly challenges for local authorities and other Corporate Parents, but interestingly some of the barriers were around leadership, learning and development, culture and practice, and the importance of relationship-based practice. Workers spoke of wanting their leaders to be courageous and embrace ‘Staying Put’ and ‘Continuing Care’ to radically change the landscape – and the lives of our care experienced young people.
In a recent visit to Shetland to discuss my forthcoming revised strategic plan, I was also told by young people that they wanted me as Commissioner to be ‘courageous’ and ‘savage’ in promoting and safeguarding their rights with law makers and people in power.
I know how much hard work has gone into the Care Leavers Covenant and I am delighted to see that it is gaining traction, with more and more organisations and individuals signing up to it, often after hearing from care experienced young people.
I do wonder however if the fine words and promises are always matched by actions. Signing up is one thing, delivering on your promises is another. It is also heartening to see it being used in corporate parenting plans by a wide range of Corporate Parents and I have heard a lot of examples of good practice here today.
Kenny states that closing the implementation gap is the main reason that the Covenant was developed and I do believe that this is happening. From what I have witnessed and read, closing the implementation gap is clearly linked to political will, and the commitment of managers and decisions-makers to implement the changes required.
Let’s ensure that the commitments and hopes of those who want the best for care leavers are matched by the actions of these people who can make change happen. Otherwise the actions contained within the Covenant, like the Continuing Care provisions, will remain ‘aspirational’.
We need to get these great policies and actions into practice, together. We owe it to our young people to do so. We need to work collectively, using every opportunity available to improve the lives of care experienced young people. Most of all we need a robust accountability system and ensure that those who are responsibility for implementing Continued Care are held to account should they fail.