Children’s Commissioner criticises Welsh Government over Covid failings

Martin Shipton

The Children’s Commissioner for Wales has strongly criticised the Welsh Government for failing to consult her over the decision to close schools during the Covid-19 pandemic or to take legal advice on the matter.

Barrister David Gardner, who represents Commissioner Rocio Cifuentes, addressed the UK Covid Inquiry, which is considering the impact of the pandemic on children and young people.

Mr Gardner said: “When the decision to close schools in Wales was taken by the then Education Minister for Wales on March 18 2020, it does not appear that consideration was given to the Children and Young Persons Wales Measure 2011, the Children’s Rights Scheme 2021 or the United Nations Children’s Rights Convention (UNCRC).

“The Commissioner was not consulted in the decision to close schools and so, to be clear, the Commissioner as the statutory advocate of children’s rights in Wales under the Care Standards Act 2000, was not consulted. Just as worrying, perhaps more worrying, the decision was taken without any legal advice. That is in contrast to decisions on closing businesses, caravan parks and footpaths in Wales when legal advice was sought.

“It is presumably due to this lack of legal advice that the decision to close schools was taken by the Welsh ministers when, in the absence of the Coronavirus Act 2020, at that time, they had no legal power to do so. The lack of legal advice also denied them the opportunity to be reminded of their duties to children under the 2011 measure.

“In the light of this host of failures, the Commissioner asks how were the educational, developmental and emotional harms which would impact children by being unable to attend school considered? How were the mitigating measures which could have been put in place to support children considered? The failure in process the Commissioner fears will have been to the detriment of the children of Wales.”

Inadequate consideration

Mr Gardner said the Commissioner was also concerned that inadequate consideration had been given during the pandemic to the use of face masks in schools and to guidance and planning around their use.

He said: “The Commissioner raised concerns over the use of face masks in the classroom in the Foundation Phase during the return to school in February and March 2021, and highlighted the impact on children with speech and language difficulties, those with hearing loss and those whose first language is not Welsh or English.

“The Commissioner raised concerns over the inconsistency of approach by schools and unclear messaging and guidance. The Commissioner also raised concerns that the use of face masks for children had, later in the pandemic, fallen out of step with the rights of adults when adults in Wales could sit in a pub with friends from six households and without wearing a face mask. Secondary school pupils were required to wear them in school whilst seated all day and every day.

“The inquiry may wish to consider the benefits and detriments of face masks for children in schools, as well as how their use was continually assessed with children’s rights in mind.”

Failings

Mr Gardner said: “The Commissioner recommends to the inquiry the use of Children’s Rights Impact Assessments or CRIAs in Wales. They are required by law in decisions taken by the Welsh Government which affect children. That is a result of the 2011 measure and the Children’s Rights Scheme 2021. They are a tool which may be properly adopted by the UK Government and all public bodies in the UK. Whilst the Commissioner commends the use of CRIAs to the inquiry, it must be noted that the inquiry heard concerning evidence in module two relating to failings in their use during the pandemic.

“These assessments are entirely designed to ensure decision makers have in their mind, whilst taking decisions, the impact of those decisions on some of the most vulnerable in our society. For some major decisions taken by the Welsh Government during the pandemic, no CRIA was completed at the time. Examples include the initial decision to close schools when the Welsh Government was considering support for children with additional learning needs relating to the use of face masks in schools and on the impact of self-isolation on children.

“Furthermore, when CRIAs were completed, they were often completed late, far removed from the original decisions and reflecting back. A CRIA should not be about retrofitting children’s rights considerations into decisions that never had this in mind. This defeats the purpose of the CRIA, which is to ensure that the rights of children are at the forefront of their minds and may lead them to consider and mitigate the impact of their decisions on children before those decisions are taken and implemented.

“The Commissioner is concerned that the Welsh Government did not acknowledge the efficacy of CRIAs or their duty to undertake CRIAs, to the detriment of children in Wales.”

Poverty 

Mr Gardner said the impact of Covid-19 was sharply felt by children and young people in Wales, where high poverty rates, large rural areas with stretched services and where large numbers who speak Welsh, not English as a first language, exacerbated the impact.

He added: “In times of great adversity and significant pressure on decision makers and their advisers, oversights may be understandable, but that is why systems must be in place to ensure that the rights and protections of children and young people are upheld. Children have a voice only if we help them to use it. Children are amongst those who will be most impacted by monumental pressures on society. The system must be able to withstand the greatest pressures or it is an ineffective system. The Commissioner encourages the Inquiry to consider the protection of children’s rights across the UK. At present, the UNCRC rights of children are enshrined in law in Wales. This creates a due regard duty which the Welsh Government must observe, but this leads to some important follow on questions which the inquiry may wish to consider.

“Firstly, were the due regard duties properly adhered to in Wales? “Secondly, had the due regard principles been properly adhered to in Wales, would the impact on children and young persons in Wales have been mitigated?

“Thirdly, had similar due regard duties applied and been adhered to across the UK, would the impact on children and young people across the UK have been mitigated?

“And fourthly, had those protections been stronger, such as by direct incorporation of the UNCRC in similar terms to the Human Rights Act 1998, would the impact on children and young people across the UK have been mitigated?

“The Commissioner takes the preliminary view that the due regard duties were not fully and properly followed in Wales, and that, had they been the impact of the pandemic on children and young people would very likely have been mitigated and further had those protections been stronger, such as by direct incorporation of the UNCRC in similar terms to the Human Rights Act as it has been in Scotland, the impact on children and young people across the UK may have been mitigated even further.”