The tug of war between MPs and Lords over the Children Act 2004
is over but winning the peace with children’s groups is proving as
tough a battle.
Heralded by education secretary Charles Clarke when it was
published in March as “the most far-reaching reform of children’s
services for 30 years”, the bill last week received royal assent.
It follows nine months in which it was shunted between the Houses
of Parliament and pummelled into shape through a series of
amendments and re-amendments.
But the final manifestation that emerged from the Lords has
disappointed many of the children’s agencies and groups that were
Although most have applauded its aim to place the needs of children
and their families at the heart of services, there has been
widespread concern over the act’s envisaged children’s databases,
its definition of reasonable chastisement and its watered-down
proposals for a children’s commissioner for England.
Even the final reading of the bill in the Lords went to the wire,
with a late cross-party attempt to bolster the powers it gives to
the proposed children’s commissioner only narrowly defeated by 105
votes to 117.
The amendment would have given the new commissioner the power to
promote and safeguard children’s rights. This would have reversed a
previous move in the Commons by children’s minister Margaret Hodge,
who last month deleted five references on children’s rights from
“It’s terribly disappointing to lose this vote, especially by such
a close margin,” says Annette Brooke, Liberal Democrat spokesperson
for children. “It’s such a shame because we support a great deal of
this act. But, in many areas, the government has ignored
recommendations made by leading children’s organisations and has
undone many of the dramatic improvements to the act made in the
House of Lords.”
Without a rights-based role, the English commissioner may be unable
to join the European Network of Ombudsmen for Children and will be
denied powers already exercised by those in Wales, Northern Ireland
and Scotland. The NSPCC claims the English model is “by far the
weakest in the UK, suggesting a government listening officer rather
than a powerful champion for children”.
Brooke warns: “It means that England will get a children’s
commissioner on the cheap and an inferior model compared with the
rest of the UK.”
According to the shadow children’s minister, Tim Loughton, the post
holder will be “uniquely toothless” compared with the 26 other
children’s commissioners in Europe.
He said: “If the children’s commissioner cannot stand up for the
rights of children he will be a pale imitation of his counterparts
and we will have missed a chance to promote the life chances of all
children as we were promised in this bill.”
The government argues that a rights-based role would result in the
commissioner becoming bogged down in individual cases and deflect
from other aspects of the job.
“If we focused simply on rights, it would limit the work that the
commissioner could do on behalf of children,” Margaret Hodge told
MPs during the bill’s Commons committee stage. “That is why I
believe we are establishing a much better commissioner than those
Lord Laming echoed this theme during the bill’s final reading in
the Lords. “I have never thought that it was a function of the
children’s commissioner to be involved in helping children and
young people in legal proceedings,” he said.
“We are not creating a bill of rights. We are creating a bill for a
children’s commissioner, not a rights commissioner or an ombudsman,
and we need to bear that in mind.”
Lord Laming’s contribution has angered children’s advocacy groups
who feel that, having chaired the inquiry into the death of
Victoria Climbi’, he ought to be more sympathetic to the idea of a
children’s rights champion.
Carolyne Willow, national co-ordinator of the Children’s Rights
Alliance for England, says: “I would have thought spending two
years considering the horrendous treatment and death of Victoria
Climbi’ would have sensitised Lord Laming to the need for
children’s rights to be properly understood, respected and put into
Willow is equally scathing of the “commissioner-lite” role
envisaged by the bill. “It is remarkable that, in 2004, we have a
government that cannot bear to give children a champion to promote
and safeguard their rights,” she says.
“Hundreds of children’s charities, the House of Commons health
select committee, the parliamentary joint committee on human
rights, the UN Committee on the Rights of the Child, and children
and young people themselves advocated a rights-based commissioner.
The government refused to listen. This week, we should be
celebrating and looking forward to a strong champion for babies and
children. The government has cancelled the party.”
The furore over the children’s commissioner followed an equally
contentious debate over the act’s proposal to allow the creation of
a database with details of every child in the UK which would link
to NHS medical records and social services databases.
Many amendments were tabled on this issue during its passage
through parliament, and details remain sketchy on whether the
envisaged database will be at a national, regional or local level
and what information it may contain. Critics fear that the
proposals could infringe young people’s right to privacy and even
contravene the European Convention on Human Rights.
Loughton said: “The government’s proposals would give the secretary
of state the power to set up numerous databases containing details
on every child in the country, whether deemed vulnerable or
“Professionals would be obliged to notify what they interpret as
’cause for concern’ which has no standing in legal or social care
vocabulary. It is not clear how this information will be collected
or acted on and who has access to it. Given the examples of
expensive failures of IT projects under this government, it gives
serious cause for concern as to who will be doing what with
potentially sensitive information.”
The third main bone of contention is the act’s definition of what
constitutes reasonable chastisement of children. This caused a mini
rebellion when 47 Labour backbenchers voted for an outright ban on
smacking rather than the measure to allow mild smacking but outlaw
any punishment that causes visible bruising.
One rebel, Hilton Dawson, said he was disappointed that the bill
did not have time to return to the Commons “so that we could have
had another go at it”. But now he admits it is time to move
He said: “This act is still the best opportunity any of us has had
to really transform the lives of vulnerable children. The Children
Act 1989 was undermined by lack of finance, lack of commitment and
a lack of people on the ground to make it happen. I think we have
to learn the lesson of history and make sure that this time we get
Act’s Key Points
- Statutory local safeguarding children boards to replace area
child protection committees and bring a tighter focus on child
protection through a duty on key agencies to safeguard children and
promote their welfare.
- The power to set up a database or databases with basic
information about all children.
- A director of children’s services and lead council member for
children’s services to be in place in each local authority by
- Children’s trusts to enable local authorities, primary care
trusts and others to pool budgets, share information and commission
- An integrated inspection framework for all children’s
- New powers to intervene in children’s social services where an
area is failing.
- A children’s commissioner to be a voice for all children and
young people, especially those who are most vulnerable.