Y Pwyllgor Plant, Pobl Ifanc ac Addysg - Y Bumed Senedd

Children, Young People and Education Committee - Fifth Senedd


Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dawn Bowden
Hefin David
Janet Finch-Saunders
Lynne Neagle Cadeirydd y Pwyllgor
Committee Chair
Sian Gwenllian
Suzy Davies

Y rhai eraill a oedd yn bresennol

Others in Attendance

David Pearce Pennaeth y Gangen Plant, Llywodraeth Cymru
Head of Children's Branch, Welsh Government
Julie Morgan Y Dirprwy Weinidog Iechyd a Gwasanaethau Cymdeithasol
Deputy Minister for Health and Social Services
Karen Cornish Dirprwy Gyfarwyddwr, Is-adran Plant a Theuluoedd, Llywodraeth Cymru
Deputy Director, Children and Families Division, Welsh Government
Professor Sally Holland Comisiynydd Plant Cymru
Children’s Commissioner for Wales
Rachel Thomas Pennaeth Polisi a Materion Cyhoeddus, Swyddfa Comisiynydd Plant Cymru
Head of Policy and Public Affairs, Office of the Children’s Commissioner for Wales

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Sarah Bartlett Dirprwy Glerc
Deputy Clerk
Sian Thomas Ymchwilydd
Tanwen Summers Ail Glerc
Second Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

1. Cyflwyniad, Ymddiheuriadau, Dirprwyon a Datgan Buddiannau
1. Introductions, Apologies, Substitutions and Declarations of Interest

Good morning, everyone, and welcome to the Children, Young People and Education Committee. We've received no apologies for absence this morning. Can I ask Members if they'd like to declare any interests, please? No. Okay, thank you.

2. Ymchwiliad i Hawliau Plant yng Nghymru: Sesiwn Dystiolaeth gyda’r Dirprwy Weinidog Iechyd a Gwasanaethau Cymdeithasol
2. Inquiry into Children's Rights in Wales: Evidence Session with the Deputy Minister for Health and Social Services

Item 2 this morning, then, is our final evidence session for our inquiry into children's rights in Wales. I'm very pleased to welcome Julie Morgan AM, Deputy Minister for Health and Social Services; Karen Cornish, deputy director, children and families division at Welsh Government; and David Pearce, head of children's branch at Welsh Government. Thank you all for attending, and thank you, Minister, for the paper that you provided in advance.

If you're happy, we'll go straight into questions from Members, and the first questions are from Janet Finch-Saunders.

Thank you, Chair. Good morning. 'Prosperity for All' and 'Taking Wales Forward' are the Welsh Government’s key strategic documents. So, why don't they mention children's rights nor the Rights of Children and Young Persons (Wales) Measure 2011 or the United Nations Convention on the Rights of the Child in any way?

Good morning. Bore da. And thank you for the question. The UNCRC and children's rights are implicit in 'Taking Wales Forward' and 'Prosperity for All', and children's rights are at the heart of the Government priorities.

'Prosperity for All' sets out how the whole of Government will work together to ensure that every child in Wales has the best start in life and that they're able to achieve their potential. And the aim of the strategy is to help and support everyone to live healthy, prosperous and rewarding lives, and obviously this includes children and young people. And our early years priority area focuses on, amongst other things, the first 1,000 days, adverse childhood experiences and parenting—all important aspects of a good start to life.

A strategic integrated appraisal was published alongside 'Prosperity for All', which sets out how statutory and non-statutory impact considerations were made, including children's rights. The commitment set out in 'Prosperity for All' were further strengthened in the First Minister's leadership manifesto, '21st Century Socialism'. And so, although you draw attention to the fact that children's rights weren't actually written in, it is actually implicit in all those documents.

And also, I think it's very important to look at the Government's actions, because those are their proposals, but if you look at the fact that we are bringing in votes for 16 and 17-year-olds, we are bringing in the Bill to get rid of the defence of reasonable punishment, and we're bringing in a curriculum that is based on children's rights—so I think I can absolutely say with confidence that children's rights are at the heart of the Government's thinking.

Okay. So, how would you respond to the children's commissioner's views that,

'despite calls to do so, the Government has missed an opportunity to portray its absolute commitment to children’s rights'?

Well, all I can do is really reiterate the Government's commitment. I think it's well recognised that the Welsh Government has a long-standing commitment to children's rights, including through the Measure, which the Equality and Human Rights Commission has emphasised has had a really significant impact on policy making in Wales. So, I think that it is implicit, and I don't think the commissioner need really have any worry about the fact that the children's rights are at the heart of the Welsh Government.

Okay, thank you. Can you clarify whether your role as Deputy Minister includes responsibility for ensuring the due regard duty is implemented across all Welsh Government Cabinet portfolios? And if it's not your responsibility, where does that responsibility lie?

Well, the important thing about the Measure is that it means that children's rights are everybody's rights [correction: responsibility]—the rights [correction: responsibility] of all the Ministers. But, obviously, as the Deputy Minister, I hold the ring for children and young people's rights and entitlements, including the UNCRC, and I'm responsible for the Welsh Government's relationship with the children's commissioner.

The First Minister also has functions relating to the appointment of the children's commissioner and formally responding to recommendations made by the children's commissioner in the commissioner's annual report. So, the First Minister also has a specific role, as well as me. The First Minister expects Welsh Government officials and ministerial colleagues to exercise the due regard duty with rigour and with an open mind, and make evidence-based and informed decisions. And there's not really any difference in any requirement for any of the Ministers. The basic requirement is that children's rights are the responsibility of everybody in the Government, the responsibility of all Ministers.


Okay, thank you. Therefore, how would you respond to the suggestions made to us that re-establishing a Cabinet sub-committee on children could be a key lever to embed the due regard duty across Government portfolios?

As I say, I reiterate that the Welsh Government is committed to furthering the rights and welfare of children and young people in Wales, and I am pleased at the way the legislation operates. It means that children's rights are everybody's rights, every Minister's rights [correction: responsibility], and, obviously, the First Minister and I have a very close working relationship with the children's commissioner and meet with her regularly and listen to what she says.

But I would say, as a Government, we are focused on delivering practical actions that make it better for children and young people. Establishing a Cabinet committee, of itself, would not achieve anything. I think possibly there are more effective ways of ensuring cross-Government action. For example, in the future, the Cabinet will be meeting to discuss a whole-Government approach to family poverty, particularly in responding to citizens who are in debt, and looking at family poverty as a whole. And that involves everybody, the whole of the Cabinet, and so that's the way that the cross-cutting themes are being addressed by the Cabinet.

The Minister for Housing and Local Government is leading a review into the child poverty programmes and services, and her officials are working closely with the children's commissioner on this. And in preparing papers for Cabinet, officials will consider the impact of the decisions on children's rights and provide appropriate advice to Ministers. That's also the case for every new policy decision made. So, the consideration of children's rights is embedded in the decision-making processes of the Welsh Government, so it is a matter for all. I think those ways are some of the ways that we are addressing the issues that the Member raises.

Okay. So, Deputy Minister, since taking up the ministerial positions, how many of the 14 members of the Welsh Government's Cabinet have received specific training to help them deliver their legal responsibility to give due regard to children's rights when making decisions within their portfolios?

Thank you for that question. I'll just say a little bit about the training that is available. Welsh Government officials and Ministers are already able to access a wealth of training, information and resources to help embed children's rights in the development of policy and the delivery of services, and we've recently updated our training package on the UNCRC for officials, and we've relaunched the Welsh Government children's rights website. Ministers do receive appropriate advice from officials in relation to the impact on children's rights of each decision sought. Mandatory training is not in place for Ministers on children's rights. Obviously, some of us have had training on children's rights, but this mandatory training is not in place, but I would actually be open to speaking to Ministers to see if they would welcome such training.

So, as of today, how many do you believe have actually undertaken any training?

I haven't got the information about who's actually undertaken any training on children's rights. I know I've had training on children's rights in the past, but, as I say, I'm open to discussing this with Ministers.

Okay. Do you think that that could be a possible weakness—the fact that we don't know?

Well, I think training is always a help. I think it's definitely a help. But I do believe that operating in the way that we do in Wales in terms of putting children's rights high up on the agenda is deeply embedded in what we do. But I think training always does help, yes.

Maybe we could have a note, Minister, on that. That would be very helpful.

Okay, we'll move on now to a question from Hefin David.

With regard to the specific budget this year, it's not just about deciding policy priorities and strategy, it's also about where the money goes. How has the due regard duty influenced this year where the money goes, in a way that it might not have last year, and can you give me a specific example?


Well, I was not part of the budget process last year as much as I am now, so this is my first experience of the budget process. But, obviously, as part of that budget process, we have a responsibility to consider our decisions through a number of lenses, because, as you know, we have got duties on us to look at—well, we have to look at equal opportunities issues, we have to look at biodiversity. You know, we have these duties on us when we make decisions and, obviously, children's rights is one of those key decisions that we have to take into account.

An integrated assessment enables us to understand the impact of decisions on different groups of people and how they affect different issues. So, we have to look at how these decisions affect children. So, impact assessments are a key element of our policy-making principles, and they are conducted as part of our ongoing policy development and review.

Individual policy teams, in preparing for the budget and in coming forward with proposals, look at whether we need an impact assessment. It's part of a process, and it helps to inform decision making. So, that is already happening right throughout the Welsh Government, before we reach the stage where the decisions are made about how the budget allocations are made.

Obviously, I can't tell you an individual example, because the budget process is not completed, and, obviously, I'm not at liberty to say that. But I can assure you that it's embedded in the process. I don't know if one of the officers would like to say how they work on the process before it comes to Cabinet.

Certainly. So, you specifically said what's been different this year to last. 

So, my experience this year, which is different to last, is that there are specific Ministers who have responsibility for each of the themes within 'Prosperity for All'. They're not necessarily the lead Minister in that area, so there's a level of independence. They have asked for cross-cutting work to take place looking at those themes, looking at policies, looking at evidence, looking at analysis, considering where we go next in terms of the budget.

So, I've been involved in quite a number of different discussions and meetings behind the scenes to help inform where we go with budgets, considering, obviously, impacts on different groups, including children.

So, was there a point at which you might've thought, 'We could be paying more due regard here. Can we change that decision, or change that recommendation?'

I'm not sure whether we would say that we need to give more due regard, because we are giving due regard as part of the process. But what we have been able to do, and what you would expect someone like myself and my other colleagues to do, is to challenge other people's assumptions and decision making, and we have definitely been doing that.

So, in one of the groups that I was involved in—and, again, because of the budget process, I can't really go into detail, as you would appreciate—in one particular group session, when we were talking about one of the themes, there was a big push to go in one direction, and a number of us challenged that, based on children's rights, due regard and other issues. As a result of that, some of that thinking has now changed, and that information will have gone to Ministers as they make decisions on where to go with the budgets in the future. Does that help?

Yes, it does. I understand how you're being a little bit opaque about the process because you have to be—I understand that—at this point.

Doesn't that ring alarm bells for you, though—that somebody was even thinking of doing something that was going against children's rights in the first place? It shows that there's a lack of understanding within the Cabinet of the issues and the training et cetera.

I would say 'no'. It wasn't that they were going against children's rights—it would be incorrect to say that—however, sometimes, when you're looking at evidence and you're looking at analysis and you're considering where to go with policy, it's very much an iterative process and, therefore, you might come up with ideas and options that need to be challenged and quite rightly should be challenged, as part of that policy development process. Because other people may draw on other evidence bases and other information. There are things that they might be doing in their policy portfolio that, at the time the other individual is considering their options, they may not be aware of. And so, what are really important are those broader, joined-up, cross-Government discussions by officials, to consider in depth the type of activity, the type of response to what we would call the 'exam question'. So, what is it that we are trying to do? What is the issue? What are we trying to achieve? And what are the best approaches, based on evidence, that would enable us to move forward in that particular area? Does that help?


It does, but it does suggest to me that children's rights aren't fully embedded in the decision-making process from day one.

Children's rights are considered in their broadest range during discussions and, therefore, it would depend on what the initial question is that would then start you thinking, 'What do I need to be doing here?'

So, shouldn't it be in your mindset anyway? If you're a Cabinet Minister in a country that is clearly in favour of children's rights—and we've got legislation to back all that up—surely, before you start doing anything, you think, 'Right, gosh—.' You know, it's embedded in your mindset.

It is embedded in the—

So, what you're saying is that it's not fully embedded in everybody. 

It is embedded in the mindset, it's just that we might come at a particular issue from different perspectives, based on the portfolios within which we work. So, this is way before Cabinet would necessarily have a discussion. Obviously, there are discussions with Ministers that take place that we have—Ministers to officials. It's an ongoing iterative discussion, within which we will consider a range of issues, of which children's rights are one of them. I can definitely speak from my own experience, children's rights, obviously, are at the forefront of what we do, because they are so fundamental in terms of taking forward critical priorities set out within 'Prosperity for All'. So, it is there.

Just a very quick supplementary. We're in this interesting UK-wide election period now, which we are, in a way, separate from, but, nonetheless, some of these pre-election decisions are going to possibly impact, for example increased spending promises. It's changing, but, Minister, how do you fight the corner for children's rights when possible increases in consequential funding might be happening from a UK level?

I think we've covered some of that, really—the process. But, obviously, when the consequentials come—

Yes. If the consequentials come, as you know, they're not designated to any particular area—it's up to us here in Wales how that money is spent. And then we are in the process, which I think people have already described, where children's rights are embedded. But as Karen has described the process that happens with the officials, people do debate and discuss ways of going forward, and that doesn't mean that children's rights aren't embedded, but people come at things from different departments with different perspectives. But I think the important thing about children's rights is that they should be embedded in every department.

But I think the operative word used there was 'if', so I'll leave it at that, I think.

Okay, thank you. We've got some questions now from Dawn Bowden.

Thank you, Chair. It's kind of following on from how children's rights influence Government spending, and I assume that the whole process of impact assessments is a key part of that. So, everything you're doing, you're considering the impact of that on children's rights. So, can I ask you about something that was highlighted to us by the Noah's Ark Children's Hospital for Wales? They told us that we don't have an early cancer medicines unit for children in south Wales, but we've got three for adults, and they were asking, really—. I mean, they specifically said that they had requested the figure for what is currently spent by Welsh Government on paediatric research, and, actually, you may have been in the Chamber yesterday when I asked for a statement from the Minister, a Government statement on palliative care for paediatric services. So, it's in that sort of area. But they've been unable to get hold of that information and they're concerned about a lack of transparency. So, how do you respond to that? We've clearly got a need. Article 4 tells us that we need to take due regard to children's health in those children's rights requirements as well, and yet organisations that are dealing with children's health are finding it very difficult to get to the bottom of how Welsh Government is spending—


This is Noah's Ark in particular that raised this, yes. 

Well, obviously I can't respond to that particular issue of what has happened with Noah's Ark because I haven't got any information about that, but in a general sense, we are very concerned about stimulating paediatric research in Wales and Health and Care Research Wales fund Dr Philip Connor as a research speciality lead for children. And Dr Connor's role is to champion paediatric research across the NHS, stimulating interest and uptake of research and bringing paediatric research studies to Wales. This is good news, really. Health and Care Research Wales will be making increased investments in children's research in its 2020-25 infrastructure funding through research centres, such as CASCADE, DECIPHer and the National Centre for Population Health and Wellbeing Research. That will be looking into—. Specifically, this will be research into children's health. So, that's very good because of the increased investments. And I understand that a new set of recommendations are expected to be submitted to Welsh Government in November that propose bringing in a more responsive and agile approach to distributing research delivery funding, particularly for children.

So, we are, sort of, grasping this issue on research into children's health. And this would mean that when decisions are made to undertake studies on children, study teams can plan ahead, aware that funding will be attributed on actual research activity taking place, which is, obviously, a good step forward. 

Health and Care Research Wales recognises the challenges with undertaking research on children with clinical trials in complex NHS treatment settings and within sensitive social care environments, and we'd be happy to meet researchers to discuss challenges and solutions. So, in terms of research into paediatric children's health, we are increasing our investment and increasing that provision.

That's good news, and, obviously, we'll come back and see how that—. But it's about the transparency that was more the issue. Sorry, Chair.

And also, it was Philip Connor who gave us the evidence that expressed—

—the very serious concerns. So, we will go back to Philip Connor now and raise what you've said with him. The concerns were about transparency but also a very real impact on children's lives. We heard about children who were having to be treated in England with their families because the cancer treatments couldn't be provided in Wales because they weren't having access to clinical trials. So, it was having a very direct impact on some of our most vulnerable children.

Yes, well, I'd be very pleased if you went back to Dr Connor because, obviously, this increased investment is fairly recent. So, I'd be very pleased to hear about his views on this, particularly the increased funding to CASCADE, DECIPHer and the National Centre for Population Health and Wellbeing Research, because this is a significant increase. And, obviously, his post—the fact that he is doing this role—it's very important that we do fund this. But I think that point you make is very important because I've certainly, in my constituency work, had children and families coming to me who have to travel outside Wales for treatment, and it is a huge emotional strain as well as a financial strain. So, the more that we can do in Wales, the better. And I particularly have children coming because, of course, we can't get to complex heart surgery in Wales because Bristol was chosen as the place that's got the amount of population to go there. So, there are some issues in terms of having a critical mass of patients that do define these things as well. But, obviously, I think that this research that we're doing will help there to be more developments and more availability in Wales. But I really agree very strongly on this.


But you don't have any plans specifically for a unit for children, then, in Wales, to undertake this research? Because that was the point, specifically, that Noah's Ark were raising. Well, it was two things: it was that and the transparency of knowing where the money's going and how the money's being divvied up, really. So, I think it's those two things as well. 

So, you would be looking to see a children's unit in Wales, at some point, to deal with this.

Yes. I don't have any information that we are planning a children's unit. I've got this information about the research that we're planning to do that's specifically on children's issues, which is a big step forward. But I certainly recognise the points that the children are making about trying to be clear about what money is going to benefit children.

And the fact that we've got three cancer centres for adults and none for children is a serious concern, really. Yes. Okay. Dawn.

Okay. Yes. Can I just move on to ask you a little bit about some of the tools that you've got to support the duty for due regard? Now, the children's commissioner told us that there was this practice of completing children's rights impact assessments towards the end of the development phase, which reflects the decisions that are already taken rather than them fitting the decisions around what is needed. Is that something you recognise?

Well, it'd be interesting to see the evidence of what exactly she's referring to, where that actual evidence is. But I can see that the paperwork might be the end of a process, whereas the discussions will have taken part during the process. Because I think it's really important that we look on children's rights and the CRIAs as being something that isn't limited to one bit of paper at one stage, but it's an ongoing process—something that goes on the whole time. And just to say, I think perhaps we can get too fixated on the CRIAs rather than the whole process.

We have done a significant level of training on developing the CRIAs. Certainly we did that when the Measure was first introduced, and that has been supplemented regularly ever since. And the children's rights scheme makes clear that an early decision that officials have got to make is whether a CRIA is actually required or not. And if it is required, there is clear guidance and support to help officials to develop the CRIA to ensure that officials are able to support Ministers to comply with their duty to have due regard. So, there is a process in place, and CRIAs are carried out in order to advise Ministers about the potential impact that policies, programmes, legislation on children and young people, will have so that they can take that into account when decisions are made.

And also, the CRIAs may highlight areas that might not have otherwise been considered. They are a very important part of the policy process, so I'm not denying that they're very important, but they're not an end in itself. And I don't think developing a CRIA should be solely a paper-based exercise, but part of a wider policy-making process, which obviously would include thinking, analysis, research, the whole background, consultation and discussion. I think that's how children's rights should be embedded, and I think that's what we need to emphasise really.

Also, the children's rights advisory group and people like the commissioner are often part of these discussions through direct engagement on the submissions they make to policy teams and responses to consultations. So, I don't know if you had anything you wanted to add to that, or is that—?


We've got a couple of supplementaries. I mean, just before Suzy comes in, you referred to evidence. If I could just ask about the target to reduce the number of looked-after children, which is something the committee has raised concerns about, I asked in Plenary about a CRIA for that and there was, seemingly, at that point, no CRIA available and now a CRIA has become available. So, at what point in the development of what is a very significant policy for children was the CRIA undertaken on that policy?

I suppose the point I'm making is that the CRIA in itself is part of a whole discussion. I mean, I think that policy—. Well, as you know, I am deeply committed to that policy and think it's very important for the children in Wales that we do carry out that policy, and the whole of the discussion about the policy has been based on the children's rights agenda and, 'What do we want children in Wales to receive in their lives?' We feel very strongly that they should have every opportunity of staying with their own families, living with their own families and being supported when we can do that safely. So, that has been the whole basis of the discussion. That's what we've been doing the whole time. And, obviously, the CRIA is a part of that, but it's not the whole part. So, right from the very beginning, we've had absolutely children's rights as, really, it's children's rights that are making us do this.

Okay. And the committee doesn't quarrel with the objective. It's the means by which you're seeking to achieve it that the committee's got a problem with. Suzy. 

That's very apposite to what I'm going to ask. I mean, this idea of a CRIA being a piece of paper does worry me slightly because while it's a tool of policy development, it's also a tool for us to scrutinise not just what Government does and how it develops its policy, but how that policy is then often implemented by other bodies, local authorities, health boards and so forth. So, for us, it's a matter of, 'Show us the workings as you go along.' And I know that's not necessarily very easy, but, actually, I don't find it satisfactory to have a CRIA at the end of the process that summarises some discussions that were successful and gives us no indication of ideas that weren't successful. It's actually got a function for us all, not just for policy development. So, I was just disconcerted to hear you call it a piece of paper, that was all. It's actually a real instrument for us. 

No, I'm not decrying it. I'm saying it's part of the whole thing; it's not the only thing. No, it's very important, and obviously our development of the CRIAs has been very important. 

It needs to be fulsome about the evidence that you have considered. That was the point I was making. 

Thank you. There certainly have been some very positive examples, and I think the Chair has already touched on that. Do you think there would be any value in you routinely publicising CRIAs, so that we could see as they're done what they look like in terms of the due regard? And, really, what else do you think that you as the Minister could do to instil some confidence in the process, I guess?

Well, all CRIAs that accompany legislative changes, they are published. So, they are made public. And anyone can search for and request CRIAs from the Welsh Government website, which would direct them to the CRIA mailbox in the Welsh Government. So, you can go to the website to get the CRIAs. So, they are publicly available. And what we do is we try to identify CRIAs that would be of use to others and highlight good practice. So, we do that, and we showcase those internally where other officials can access them, and, for example, the CRIAs supporting the abolition of the defence of reasonable punishment and the elective home education are being shared with teams across the Welsh Government currently. My officials are frequently asked to advise on CRIAs. However, they do not necessarily see every CRIA that is completed, and, interestingly, I think you said recently that there was a discussion with agriculture and fisheries, wasn't there? I don't know if you want to say any more about that because that's showing how wide this discussion can go.

Yes. So, we do get requests for support and advice from right across the Welsh Government. So, we've recently had inquiries from agriculture departments and fisheries team to help support them with the development of their policy and their CRIAs. So, I think that gives us some confidence that children's rights are being considered right across the Welsh Government, not just in those areas like ours where we're thinking about children's issues day after day. 


Yes, so it's going across all the portfolios. So, what should organisations do if they request a CRIA and it's not available? Can I just give you an example, because that might sound a bit of a vague question? For example, again with Noah's Ark, they told us that the Measure's not being used to influence the culture of health research funding and delivery. And they suggested that, despite requesting a CRIA on a decision to change the funding model for health research, they haven't yet been provided with one to date. So, it's either not available or it hasn't been done. What advice can you give to organisations in those circumstances?

Well, I think I've answered the first thing they said about the research. So, we are—. That is a good news story, really. But, as I said, I can't comment on what's actually happened with their request for a CRIA. But there are ways—as I've said, there are ways of getting them, but I think perhaps it's best if we write to you about that and take that up as an individual, unless the officers have got anything they can say about that now. 

It's probably worth saying, though, that there is a pre-CRIA stage. So, as officials, in the same way with other impact assessments, of which there are around 17 that we have to consider, we have to first of all look at and consider whether a full children's rights impact assessment needs to be completed. And it could be that, in some cases, a decision has been taken that a full children's rights impact—. I can't comment on this particular one, but a full children's rights impact assessment may not be needed in some cases. And therefore it's not that the CRIA hasn't been made available or that there is a lack of potential transparency; it could well be that, as part of that initial process, there is a clear decision that a children's rights impact assessment may not be needed. 

No, it might not be the case with this one, but—.

I've got a supplementary from Suzy on what Karen just said.

We would make those decisions in the round. There are checklists and a range of tools that we use to take decisions on whether a full children's impact assessment is required, but, in all of those things, we are having due regard to children's rights. So, a decision may be taken through the policy teams, but that decision would be discussed with Ministers. 

Okay. It was just exactly where in the process that happens and who makes that decision. Thank you. 

Thank you. We did hear some concerns that the team on the Measure, the implementation team, might actually not have sufficient capacity to be able to ensure that the rights Measure is fully implemented. How do you feel about that? What are your thoughts on that, on the capacity of the team that you're working with? That's a difficult one, perhaps, for the officials to answer, maybe—[Laughter.] You'll have to directly answer this one, Minister. 

Well, I think it's certainly true to say that there's been a significant change in members of the team. That is, actually from the time that this started, there's been a huge change in members. But I'm sure you'll be pleased to hear that, this year, we have taken steps to increase the number of staff in the children's rights team, to support the important work in this area. 

Has that changeover of staff been one of the reasons for the delay in the implementation of the revised scheme, or is it just—?

Well, on the children's rights scheme, obviously, this is a very important document, and we are working very closely with the children's rights advisory group to develop a new version of the children's rights scheme. Obviously, it does take time to work collaboratively, but it is slower than we'd hoped; I'd have to acknowledge that. The new children's rights scheme is due to be published in spring 2020, so it will be published fairly soon. We would have liked to have done this earlier, but the team has faced, really, some exceptional circumstances that have prevented them from finalising the new scheme. 

So, you acknowledge that there have been some issues, but you've—


I feel those issues are resolved, and so spring 2020 we will have a revised scheme, and I just want to emphasise that it is very important for us to do that, and—. 

Okay. My final question, Chair, if I might, is just around the complaints process, and the fact that we haven't had any complaints. Now, that may be a positive, but it seems highly unlikely that there wouldn't be anything to complain about. Have you got any thoughts or views on why we haven't received any complaints under this scheme? 

First of all, I suppose it's important to say that it is a relatively new scheme. It is—. I think we are the first country in the UK to have such a scheme, and so it is unique. I think it's important to say that Wales has led the way in doing this. So, in terms of complaints, I'm sure we will get them, but we certainly haven't had any so far, and I'm sure that's not because there wasn't anything to complaint about, because there's bound to have been something that there could have been complaints about. But we have produced a summary version of our corporate complaints procedure for children and young people and their representatives to use, so there is a summary version for people to see how they do it. 

Both our current children's rights scheme and the draft version of the revised scheme, they include information on the support that is available to children and young people to complain when they feel that Ministers haven't met the due-regard duty. So, there is support there available for complaints, and this includes the Children's Commissioner for Wales, advocacy providers and the Meic helpline. That's there to help children who want to complain. But I do think that, if the committee's got any suggestions about how we could support children to come forward with complaints, that would be very useful, because I think it's not an easy process to complain, and certainly it's not that easy for children to complain. 

But the other thing I keep thinking about—because I thought you would ask something about why there weren't any complaints—is look at all those children who asserted their rights about the climate. When you think of all the mass of children we had outside this building, and they're asserting their rights, aren't they, in terms of wanting a carbon-free environment; they're asserting their right for the future. So, you can't say that children can't act very strongly and very forcefully. And, to be fair, the Welsh Government has responded in declaring a climate emergency, and I know that—. I think the Minister met the children and certainly I, and I'm sure you, have been involved in meetings here in this building. So, we have tried to respond to that, but I was just thinking about that when I thought how difficult it may be for children to do something in a formal way, but their strength in protesting about the environment and the future of the environment I think has been tremendously impressive.

So, how do we harness that strength that children have to protest in a formal way? And I think that's what we really need to work at, and so I'd be very grateful if any of you had any ideas on how we—

So, are you suggesting that, by exercising that right to complain about climate change in that particular example, that is, in a sense, a group of children complaining? 

So, they wouldn't necessarily write to you and say, 'Dear Minister, I wish to complain', but you see that as a physical embodiment of children complaining. 

Yes. I thought it was a tremendous way of showing how children can feel so strongly about something and try and bring it to our attention in such a strong way. And that is about their rights, isn't it—their right to a future life. So, children are able to complain and are able to get their views over in a way that suited them how to do it, but I can see that, for the sort of stuff that we're dealing with here, it would be good if they felt able to complain through the formal process. And maybe we need to do some more work about how we can enable them to do that. 

Yes. And that's one of the things we can look at. 

So, if you had any ideas about we could get—. The support is there and it's written down, but it's making it happen, you know. 

That brings us on very nicely to Hefin David's questions about the views of children and young people about children's rights. 

So, just with regard to that protest you mentioned, how representative do you think that kind of process is of communities across Wales?


I really don't know how representative it is. Certainly, I know that a lot of children from Cardiff were there—the ones that happened here—but whether they came out from across Wales—. But I think there were—. I think it's quite a widespread movement.

Okay. I just—. I don't know, but I suspect it might be concentrated along major population centres and cities, rather than in the areas that I represent. I haven't seen as much of that. 

Right. You don't know if any children came down from the Valleys to—

Not that I'm aware of, no. And there's a representation issue there, I think. But, with regard to my specific question, two thirds of young people who gave us evidence had heard of children's rights, but only a third knew about the United Nations Convention on the Rights of the Child. Is that a concern?

Well, I think it's good that—you know, the number that had actually heard. We are doing what we can to promote children's rights, and, as this is the thirtieth anniversary of the United Nations Convention on the Rights of the Child, we are making a particular effort to promote a knowledge and awareness of children's rights this year. And so I think we're doing—. I've been doing a lot of social media, trying to reach out to children. We've had a film company round, going and working with children—this is what the Government is doing, now. And we've had music making in schools, where children have talked about their rights, and I've been to some of those sessions; they've been absolutely fantastic. So, these are our efforts to try to reach out. And we have got a lot of events going on on 20 November, which marks the 30 years. So, I was hoping perhaps that some of the members of the committee might be able to come to some of those events. 

But I do think it behoves us to try to make all this much more widely known, and we're trying to use 20 November, and the 30 years anniversary as a way of doing this. 

As indeed the committee are. We've got some children coming in to do work with us that day. 

Yes. Sorry, I was just looking at my diary for 20 November, to make sure that that's in— 

—and, you're right, we've got that. We've got that. [Laughter.] And I think there are also opportunities as individual Assembly Members to do that kind of work as well. 

Yes, it's something that you could do in your own constituencies. 

Well, I think the committee's doing that work anyway for us. [Laughter.]

So, with regard to that, the Wales UNCRC monitoring group says the Minister should consider developing a national strategy. So, not just these events, and these piecemeal occasions, but maybe a national strategy for promoting not only what the right is, but how it actually interacts with children's realities, how they live and how they can use this to gain a foothold in the society in which they want to develop and influence. Do you think the Welsh Government could lead the way in providing a strategy to achieve that?

Well, we're obviously absolutely committed to article 12, and we're committed to—. And the Measure requires us to take appropriate steps to promote knowledge and understanding amongst the public. So, obviously, we are already taking that commitment very seriously. And, as you say, we're using the opportunity of the anniversary. But we are working in close partnership with experts in communication to try to look at what longer-term promotion we can do to reach children, and we're working as well with Children in Wales, who are working with children to prepare our celebrations of the United Nations. But I think one of the keys to this is working with children to find out how we reach children generally, and, certainly, we are considering how we can do that. Whether you call that a strategy or not, I'm—.

I think what you said about the children influencing anything you do is really important. How often do you meet with children in the course of your work to discuss this specific issue?

Well, I meet with children a lot, but it's to discuss lots of aspects of work. I have met with children quite a bit recently about this particular issue, but that's because they've been doing filming and social media, and there's been a particular focus. But I meet with children all the time when I'm not discussing these issues. I've had a lot of meetings with young carers, a lot of meetings with children who are looked after, and I wouldn't necessarily be discussing, in a formal way, about how children's rights impacted on their lives. But, fundamentally, it's all set in the context of what their rights are.


Okay, thank you. Right. We've got some questions now from Suzy Davies.

Thank you very much. Yes, I just wanted to talk about how legislation can help in this field, really. You've already got some powers to change the Measure within that Measure, but, we, as an Assembly, I think, have had some concerns about the piecemeal way in which the 'due regard' seems to be finding its way into public life. We have some statutes that have the duty reinforced on the face of the Bill, some that don't, some that are very specific that public bodies have to also follow due regard—other statutes don't do that. Have you given any consideration to amending the Act to get some consistency going here?

I'm open to consider further reform, but I'd have to take legal advice, I think, on that, about what could be done. The Measure places a duty on the Welsh Ministers to have due regard to the UNCRC when exercising their functions and we think that the duty is pitched at the right level and need not be repeated in subsequent legislation. But I—. We want to be sure that any further duties wouldn't place our public services at risk of litigation on grounds of any procedural failures—

We would want to be sure—. We would want to be sure that we wouldn't place them unnecessarily at the risk of litigation. So, that's something that we would have to look at. But I'm open to reform—I'm just putting down the reasons that you would be concerned. Also, we would want to look at having a level of bureaucracy—we would want to look at that, and financial resources, and measure all that against what you could do directly to help children and young people. But I am open to more reform. But those are the sort of issues that I think we have considered in other areas when you consider whether you would have further reform. 

Okay. Well, I just want to press that one a little bit, because if the exam question is protecting children's rights and promoting them, of course, there's no point placing a due regard on, let's say, a local authority—just as a random example—and then not giving those children and their families the opportunity to necessarily litigate against them, if they fail them in their duties. I'm a bit confused by that as a particular reason. I understand there's a question of proportionality, but, if you're placing a due regard on Ministers and Assembly Members to consider this, the delivery of all of those policies and that legislation is done by other people, and, if they're not also following a due regard, there's a serious risk of the policy intention, the legislative intention, failing in delivery. So, actually, I think it's not just a procedural burden; it's a necessity for Government policy to work, actually. 

But can I just ask you—? You may not feel able to answer this question, then. I feel strongly that, if this does change, it needs to be done by primary legislation rather than through secondary legalisation, but perhaps that's a question I could ask in the Constitutional and Legislative Affairs Committee at some point.

—advice about that, but I think the points that you make are very well made and I'm sure—I've been in this committee before when we've had these discussions about them, and, as I say, I am open to further reform, but those are the reasons why—I think they've been brought up before—there's been a reluctance from the Government to move forward.

Well, thank you for that steer anyway—that's very helpful. 

Other Governments, of course, are looking at fully incorporating the whole of the UNCRC into the legislation. Scotland is the case in point here. Have you had any indication of what's actually meant by full incorporation and has Welsh Government thought along these lines themselves?

Well, obviously, there's more than one way of incorporating an international treaty in domestic law, and, in Wales, we've incorporated the UNCRC by using the Measure to place a duty on Welsh Ministers. So, we have to take regard of the UNCRC when we're making new legislation, new policies and a review or change to existing policies. And I do believe that this is having an impact on policy making in Wales, and I hope it will continue to have even more of an impact on policy making in Wales. 

But other countries are doing it in other ways. I've been to Scotland, and I've had discussions with Scotland, and of course the children's commissioner did come here and gave a lecture here—some of you may have been there—which talked about incorporation and what it meant in Scotland. And I believe our officials have actually been involved in discussions with Scotland, because we've actually brought the Measure in. So, I don't know if you'd like to say—if you were involved in those discussions—about what full incorporation would mean.


Yes. So, we're in regular discussions with Scottish colleagues. As you know, they've issued a consultation paper and they're committed to doing full incorporation. I think it's fair to say they're working through some of the issues that the Deputy Minister described earlier on. Those are quite significant in terms of finding a way to legislate to bring full incorporation of the UNCRC. But we are in conversations with them. It's worth noting as well, I think, that they value our duty of due regard so much they're actually going to, I think, introduce a duty of due regard, a children's rights scheme, along the lines of what we've done, because they can see the value of having that policy discussion and that requirement for officials and Ministers to consider, when they're making policy, the issues of children's rights and the UNCRC. So, they're taking a lot of things from Wales as they try to move forward in what they're doing. 

I didn't realise they were as far behind as they seem to be, actually, so that's good to hear. Can you tell us a little bit more about this steering group that the children's commissioner is on? Is that the group that's in conversation, then, with Scotland, or is it something else?

I think there's an advisory group that—. I don't know if the commissioner is on it, but certainly Professor Simon Hoffman, who's given evidence to the committee, is on that.

Her office is represented on it, is the evidence we had.

Okay, yes. I think they are giving advice in the same way as the children's rights advisory group give us advice on CRIAs and children's rights policy and the communication efforts that we're doing at the moment. 

Okay, thank you. They're looking at other treaties as well, are they, or is this specifically about children? I think I'm a bit mixed up on that. 

I think it's important to draw the committee's attention to the fact that the leader of the house is also conducting a review into advancing equality and human rights in Wales, and obviously consideration of children's rights is in there as well. So, she may be coming forward with some proposals as well. But I think there's no doubt that other countries are looking to us about how we're implementing the Measure. So, that's why it's very welcome, really, that you're probing into it and we can highlight the different issues that are arising. But I do want to emphasise that I am open to considering the merits of further legislative reform, but we'll obviously have to balance that against those issues that I've already raised. 

Okay, and thank you for raising those as well. As part of this openness, and, actually, as part of the discussions with Scotland, really, I'm curious to know whether the question of to whom the children's commissioner in those nations is accountable has arisen at all. Obviously, you've had Welsh Government's own review a few years ago that recommended that the children's commissioner should be accountable to the Assembly not Welsh Government. The children's commissioner herself thinks that's a good idea. I'm wondering if you can, here, tell us what you think the advantages to children are of keeping the children's commissioner accountable to Government rather than the Assembly?

Well, I don't actually see any disadvantages. I can't see any disadvantages of the arrangements remaining as they are. I think that the children's commissioner does operate independently. I think, in fact, she's said that she doesn't feel in any way inhibited by the Government. We welcome, and I certainly really welcome, her independent, robust way of challenging us, because it certainly keeps us on our toes and she's always got something very positive to say to us that we want to respond to. So, as it actually operates, I don't see any reason to change it, because I can't see that there are any actual problems.

Well, the review itself suggested that there were advantages to, particularly, the perception of independence in the transfer of accountability and, of course, financing to the Assembly.


Well, the chances are she might get more through an Assembly—I don't know. But, if your own review said that there were advantages to it, I would rather talk about those than the lack of disadvantages.

Yes. I know that she is—. She will be coming here to you, won't she?

Also, she will be discussing her annual report with you. Every year, she comes to the committee to do that, and, obviously, we introduce it to the Assembly every year. But it's not something that I feel strongly about, and so I don't see any reason for change, really.

Okay. Thank you. The final questions are from Siân Gwenllian.

Diolch. Mae fy nghwestiynau i ynglŷn ag argymhellion y Cenhedloedd Unedig yn sgil eu hadroddiad nhw yn 2016. Oes gan Lywodraeth Cymru gynllun gweithredu cenedlaethol fel ymateb i argymhellion y Cenhedloedd Unedig?

Thank you. My questions are about the recommendations of the UN in the wake of its report in 2016. Does the Welsh Government have a national action plan in response to the recommendations of the UN? 

Well, we have a plan in terms of planning to respond to them, and I'm sure—. Well, I've already mentioned some of the ways that there has been a response in Wales. If you go through the concluding observations that were—the last concluding observations from the UN—. Introducing a statutory obligation to conduct a children's rights impact assessment: we've been discussing a lot about those impact assessments today, so we have developed that.

Votes for 16 and 17-year-olds: that is under way, so we're actually doing that. By the next Assembly election and the next local government elections, 16 and 17-year-olds will be able to vote. So, I think that that's a great move forward—a great vote of confidence in our young people in Wales. Establishing a national youth parliament: that has been established by the Commission here, which is fantastic. So, we've got a national youth parliament.

Changing the law to give equal protection from assault: that is, again, something that we are in the process of doing. Then, the reduction of funding for childcare and family support: well, we're certainly looking towards improving the amount of money spent on childcare and family support. Child poverty: I think I said earlier on that we'll be having a cross-cutting Cabinet before Christmas to look at child poverty. The Minister for Local Government and Housing is leading now a strategy to tackle child poverty.

And investing in child and adolescent mental health services is something that I know is very important to this committee, and such a lot of work has been done on it from here, and I think that you have driven an increased emphasis on that spending, and I think that that is really great progress. So, those are some of the—well, those are the concluding observations and I think that we are responding to them all.

Ond does gennych chi ddim cynllun ffurfiol. Rydych chi'n ymateb i rai o'r argymhellion fesul un. Does dim cynllun ffurfiol, ac mae'r comisiynydd plant yn credu bod hynny'n colli cyfle. Pam na wnaethoch chi ddod â fo ynghyd mewn cynllun? 

But you don't have a formal plan. You're responding to some of the recommendations case by case. You don't have a formal plan, and the children's commissioner believes that that's a missed opportunity. Why didn't you bring it together in one plan? 

Well, all I can say is that we are responding to them all. We're not not responding to any of them. I think that the UNCRC has always felt that, in Wales, we have been working on children's rights, promoting rights, in a way that's been held up to other countries. So, whether we have a strategy or not, we've certainly got a response to all of those proposals. Personally, I think that there has been huge progress. It has taken years to get here, but we are making progress now, particularly with these legislative measures that we're taking at the moment. So, I think, you know—we're addressing them. 

A beth fyddech chi'n dweud ydy—? Beth sy'n eich poeni chi fwyaf ynghylch yr holl faterion sydd wedi dod i'ch sylw chi? Mae tlodi plant yn amlwg yn un o'r meysydd sydd angen cynnydd sylweddol arno fo yng Nghymru. Ydych chi'n credu bod digon o flaenoriaeth yn cael ei rhoi i hynny gan y Llywodraeth, heb gynllun penodol i daclo tlodi?

And what would you say is—? What is your greatest concern in terms of all of the issues that have been drawn to your attention? Child poverty is obviously one of the areas that needs significant progress in Wales. Do you think that enough priority is given to that by the Government, without a specific plan to tackle poverty?

Well, as I said, the Minister for Local Government and Housing has now taken on the responsibility of child poverty, and they will be looking at it in a cross-cutting way, across the Government. So, it is one of the priorities for the Government, and I think it is one of the most important issues that we do have to tackle. I also think it's very important that we do talk to children and have children's views about what poverty meant to them, because I'm sure this committee has had children talking to them about what it means, and I think must drive us as an agenda to tackle poverty.


Diolch. Dwi'n meddwl ein bod ni wedi delio efo'r un olaf ynglŷn â lleisiau plant yn barod. Diolch.

Thank you. I think we've dealt with the final question on voices of children. So, thank you.

Okay, thank you very much. Well, that concludes our questions. Can I thank the Minister and her officials for attending this morning? We've had a wide-ranging and comprehensive discussion. As usual, you'll be sent a transcript to check for accuracy following the meeting. But thank you again for attending, and the committee will break until 10.45 a.m.

Gohiriwyd y cyfarfod rhwng 10:36 a 10:47.

The meeting adjourned between 10:36 and 10:47.

3. Craffu ar Adroddiad Blynyddol Comisiynydd Plant Cymru 2018-19
3. Scrutiny of the Children's Commissioner for Wales Annual Report 2018-19

Welcome back, everyone. Item 3 this morning is our scrutiny session of the Children's Commissioner for Wales's annual report. I'm very pleased to welcome Sally Holland, Children's Commissioner for Wales, and Rachel Thomas, who is head of policy and public affairs in the office of the Children's Commissioner for Wales. Thank you very much for attending. We've got a lot of ground to cover, so we'll go straight into questions, and I'll start by just asking about the increase you've seen in the numbers of individual cases that you've dealt with in the year covered by your report. Is there any reason you can point to for the increase? Are there any particular trends that your cases are showing?

We've looked at this carefully, because, as you rightly say, there was quite a jump up in our casework that year, 2018-19. It's very hard to give any reason behind it, actually. The types of cases that came forward rose in the same proportion as we've had in previous years. So, we had a big increase in our additional learning needs cases, but also in our social services cases. They are always our two biggest areas. I think, in terms of a longer term trend, over the last four years we've seen a doubling of our additional learning needs cases, which we presume is around the publicity, around the reforms and people coming forward to seek clarification and support for children with additional learning needs. But we keep a careful eye on trends. We monitor monthly through our management team and link closely to our policy work, but we're now halfway, of course, into the next year and we haven't seen a continuation of that rise. We had 671 cases last year; we're expecting it to be a bit lower this year— back to our norm. So, we think it may have been a one-off spike, but I'm afraid we cannot identify a particular reason.

Okay, thank you. Can I just ask about your role itself and the report in 2016 that recommended that the commissioner should be moved over to the Assembly for accountability purposes? That was emphatically rejected by the Welsh Government. You've said that

'the fundamental conflict of interest is not something that can be ignored.'

We had the Deputy Minister in just before you, and she reiterated that she didn't see any reason to change the current arrangements. Can I just ask what discussions you've had with the Welsh Government about a possible change, especially given that we're now, sort of, approaching that lead-in time for the appointment of your successor?


As you'll be well aware, this is one of the United Nations committee's recommendations to the Government—that my position should be independently appointed by the legislature and accountable to the legislature. That's the gold standard internationally—the Paris principles. So, therefore, of course, I support that and have done all along.

During my time as commissioner, there have been pockets of opportunities where we've expected there to be a chance for us to put forward the case. For example, the equalities and local government committee were looking at one point at the roles of all the commissioners, and we expected to have the opportunity at that point for the anomalies between the roles to be looked at, around the legislation, but also the appointment, which, as you'll be aware, is different in the different roles of different commissioners. That didn't really go anywhere—those discussions—so we've been looking for opportunities since. We gave evidence about it to the commission on justice, and it certainly fits with the wide-ranging reforms that they were recommending last week.

The equalities and human rights working group that's now in place, which we're strongly pushing the incorporation of the UNCRC through, again, has got the opportunity to look at the roles of the commissioners. Any discussion I've had with Government over the years—they've given the line you heard this morning that they think it works as it is and they don't see a reason to change. I'm actually expecting now—it's one of the things we'll be going to all the parties to ask them to put in their manifestos for the next election. I don't particularly see a prospect of a change.

So, you haven't seen any change, then, with the different First Minister, because, obviously, the report's recommendation was rejected by the previous First Minister?

I haven't discussed it with the current First Minister. The two meetings we've had so far have been absolutely packed with mainly discussions around child poverty and other issues. So, I'm afraid I don't know his particular position on this.

It's probably fair to say that we do agree that, in practice, it has worked fine, in that we haven't come across any blockages to our work, but the principle is that those could easily be put in place under the current system. So, it's fortunate that the relationships are constructive and working well at present, but there's always the opportunity for that unless the system is changed.

Okay, thank you. We've got some questions now about elective home education from Siân Gwenllian.

Diolch. Bore da. Dwi'n gwybod eich bod chi wedi bod yn ymgyrchu i sicrhau nad ydy plant sy'n cael eu haddysgu gartref yn anweledig a'u bod nhw'n cael eu hawliau, a'ch bod chi wedi bod yn rhwystredig ynglŷn â diffyg cynnydd. Ond, erbyn hyn, ydych chi'n meddwl bod yna gynnydd yn mynd i ddigwydd o du y Llywodraeth, ac a ydy'r meini prawf yma roeddech chi wedi gosod allan yn mynd i gael eu hymateb iddyn nhw?

Thank you. Good morning. I know that you have been campaigning to ensure that children who are home educated aren't invisible and that they do have their rights, and that you've been frustrated by the lack of progress. But, by now, do you think that progress is going to happen in terms of the Government, and are those criteria that you set out going to be responded to?

I've discussed this with the committee before, and particularly last year. This time last year, I was sat here saying how frustrated I was, really, at the lack of progress. At that point, as you know, I was seriously considering using my legal powers to review the Government's progress on the issue. And I raised the issue again, asked for an acceptance of my three tests—that all children should be known about and seen in Wales, that they should get all of their rights, including, of course, the right to an adequate education, a suitable education. And to do those things, we need to see children and meet with them.

There was a turnaround, following my last committee appearance, with the Government—the First Minister, indeed, fully accepting of three of those tests and saying, 'This is now our policy position', which I was pleased to see. There then followed quite a protracted period in which I was intensively discussing with Government and officials what that could look like in terms of implementation, which culminated in the consultation that has just closed. Of course, I've given a very full response to the consultation. I'm sure you'd like to know what my view is of the current suggested draft guidance.

I think, when we look at where we were, just over a year ago, there has been a big shift—there's no doubt about it—a big shift towards meeting my three tests. In particular, I think that the draft guidance would make it far more likely that children will be seen. [Laughter.]

And we've got a far clearer idea of how that would happen and what would happen if they weren't seen. We have pointed out areas that we think are loopholes within that that we would like to see tightened and, of course, in terms of my first test, of knowing where children are, we've had policy statements about what the Government's intentions are there, and there's some of it in the draft guidance around developing a database. And rather—. They've decided to go along that route—so, to strengthen requirements on public bodies to make sure they're aware of all children in their area and what form of education they're receiving, whether it's through a state school, an independent school or being home-educated. And they intend to provide stronger mechanisms to do that. But the detail of that has not yet been published, so I cannot say that that first test, whether it has been met or not, because those details are not there yet. We expect that to be published imminently. I haven't seen the draft of that in advance, so I cannot say yet. My judgment's reserved on that aspect. 


Okay. What you said there was that it's much more likely—

y bydd plant yn—bydden nhw ar y radar. Ond ydych chi'n hyderus bydd pob plentyn yn cael ei adnabod o fewn y canllawiau newydd yma?

—that children would be on the radar, therefore. But are you confident that every child will be accounted for within the new guidance?

I think, to be honest, under any system, it would be hard to guarantee that, just as our child protection systems, for example, cannot guarantee, however robust they are, that every child will be safe, in other contexts. So, I think that—. I do have some sympathy for the Government's argument, for example, that, if they were to simply implement a register, which would be a requirement for parents to come forward, then some—a small number, I expect, but some—parents would also resist that requirement too. However, we have laid out very clearly to Government where we think there are some loopholes in the guidance as it's been published, the draft guidance that's been published. And I have asked what the prospects are of improvement before it's published, and they're working to quite a tight timescale. I'm aware that they've had a very high volume of responses, and I believe the analysis is going to be done independently. I'm waiting for—. Obviously, we'll wait to see what the Government comes back with, but we are concerned that, within the guidance, there are indications that there may be occasions where a local authority may be able to assess the suitability of education without seeing a child, still, and I don't think myself that that's possible. 

Rydym ni wedi cael gohebiaeth—wel, dwi wedi cael gohebiaeth—gan fudiad sydd yn honni, ar ôl iddyn nhw gael barn gyfreithiol, fod y canllawiau yma, fel y maen nhw ar hyn o bryd, yn erbyn y gyfraith ac y byddai hi'n anghyfreithiol i awdurdodau lleol ddefnyddio'r canllawiau yma. Ac rydych wedi sôn yn fanna am ei wneud yn orfodol i gynnal cyfarfodydd efo teuluoedd neu efo plentyn ar ei ben ei hun, a'r math yna o beth. Mae yna honiadau dydy hynny ddim yn gyfreithiol. A oes gennych chi farn ar hynny?

We have received correspondence—well, I have had correspondence—from an organisation that claims, after they had legal advice, that the guidance, as it currently stands, is unlawful, and that it would be unlawful for local authorities to use this guidance. You've already mentioned making it obligatory to hold meetings with families or with the child individually, and that kind of thing. There are claims that that is not lawful. Do you have a particular view on that?

Yes, I'm aware of those claims. Obviously, the Government will have had their own legal advice before they put out their draft guidance, and I'm sure they'll be working on a response to that. The key issue, and the key discussions I've had with the Minister, when I've had the chance to discuss this with her, has been how much they can do under secondary legislation—which is what they're attempting to do this under, which was an attempt to do it quickly. It hasn't actually been very quick, but it was an attempt to do this more quickly and proportionately—and what would need primary legislation. So, my understanding is that they've worked hard to make sure that the guidance uses the full extent of what can be done through secondary legislation, but, clearly, there are different legal interpretations and I'm sure there are going to be robust legal discussions about that. But I made it clear in my response to the Government that if the assessment—if they go ahead with this guidance and the assessment is that it is not effective in this sense, then they'll need to move swiftly towards primary legislation to make sure that we have proportionate and suitable regulation of this area, which is a very, very under-regulated area, and won't—


We may need primary legislation for other reasons—the reasons laid out in these letters, that it's not actually lawful to do it through the secondary process—and that could kick the whole thing into the long grass for ages.

Which would be really concerning. So, I want the Government to do everything it's got the legal power to do at the moment, but they're going to have to give serious consideration as to whether primary legislation should go forward alongside, or in quick succession. I am continually concerned about how this has all unfolded over the years, how long it's taken. There's been talk about this going forward for a number of years since the child practice review recommendations on the death of Dylan Seabridge. It's very complex; I'm not at all suggesting to the Government it's easy. It's a very complex area to work in, as we all know. It's a highly emotive area. People feel very personally pro or against it, a bit like many other areas that this committee considers. So, it is very complex. It's been a very difficult area, I think, for the Government to work up their guidance on. However, it's a shame that it still remains so controversial and so opposed by sections of the home educating community, who I don't think speak for everyone who's home educating.  

It may have been easier to introduce primary legislation from the outset. 

Absolutely, if you look back.

Thank you. We've got some questions now on the new curriculum from Hefin David. 

What are your views on the new curriculum? [Laughter.

Again, we've had a very busy year responding to Government drafts, especially in education, actually, and we've given a very extensive and long response to the Government on the curriculum. On the whole, I welcome the direction and content of the draft curriculum. I think that the holistic nature of the new curriculum fits really well with the aims of education as set out in the UNCRC under article 29. I'm also pleased with the extent to which human rights education and children's human rights education is embedded within the draft curriculum. I wrote to the Minister, actually, after it was published to say that, if carried through, and with more—and there is more that I want them to do—Wales could be absolutely world-leading on this. My team has worked very hard to enable the Government to get that into their drafts.

We did cover a number of areas in our response that we think should be strengthened. If I could just summarise those into three key themes, the first one is equalities. We are really keen to see attention paid to how children from different backgrounds and with different abilities will respond to the new curriculum, and to make sure that, as it's planned and implemented and evaluated, we're really paying attention to children with additional learning needs, children from different socioeconomic backgrounds, for example, making sure—girls and boys—that the new style of teaching works for every child and helps every child with attainment. Deaf children—we think there's a lot of work to be done there to make sure deaf children have suitable provision as well, and that must be quickly and—. The evaluation must be planned right from the start. 

The second area is there are a lot of issues to resolve around assessment, as you'll all be aware, both the assessment that goes on throughout schooling, from—. We know the yearly testing of primary school children, in particular, is quite controversial, and it's come out as a key worry in our surveys of primary children—the top worry, actually, for primary school children. So, how testing will be done throughout to be something that supports and enables children's learning, and that being its primary purpose, but also the age 16 assessment and what that will look like, how it will fit with the curriculum, but also how it will enable Welsh children still to have qualifications that will travel beyond Wales, and then the post-16 assessment too; there's still a lot of thinking around that.

And the third area is around participation. Finally, after a lot of pushing from our office and others, there was some quite good engagement of children and young people in the consultation, and that was enabled by the Government, and that was good to see. We thought it was a bit late at that point, and we really hope that, at the implementation stage now, schools and colleges will be encouraged to involve their children and young people in developing the curriculum. We know that children and young people have a lot to give in terms of—as well as it's only right to do that, they've got a lot to give in terms of feedback, both about the style and nature of teaching and learning, as well as the content. So, they're the three areas that we've given lots of feedback on. 


There's an awful lot there that you've talked about, and I think we won't have time to explore all of that. But there's the first area you mentioned that I did want to look at. We're taking evidence next week from the Wales Institute of Social and Economic Research, Data and Methods, who have done some research into teachers' and children's views about the new curriculum, but also there was an Institute of Welsh Affairs article, written by the director of the Institute of Education at University Wales Trinity St David's, in which he said that a concern is that the principle of subsidiarity in the curriculum, which devolves decision making to teachers at the appropriate level for the delivery of what the curriculum should deliver, has the added risk of leading to an entrenchment of inequality. And one of the things he said was that the process owes too much to chance and could lead to generations of learners falling behind their peers—where there is already inequality, it could deepen and entrench that inequality. Can you give us a view on that, and what you think about that particular perspective?

Absolutely. So, that's something we gave a lot of attention to in our response. So, we've asked for there to be minimum considerations for every school to have in place on the curriculum. We agree with the principle of subsidiarity in general, but there should be minimum considerations. And if you look at other research that WISERD have done, for example, around the implementation of the foundation phase, what they found was that, where the foundation phase principles and practices were properly implemented, then there wasn't any widening anywhere of the attainment gap, and children generally did well. Where there was a much less consistent implementation of the principles of the foundation phase, then there was no narrowing of the attainment gap, and there were issues around both socioeconomic backgrounds and, actually, the gender gap between boys and girls there. So, I think that we've got to learn from the implementation of the foundation phase as we look at the curriculum, and that research is crucial there. 

That's quite interesting to know, and in that is the principle of co-construction, where children and teachers are involved in a lateral way. Do you think that is likely to happen in the delivery of the curriculum, or do you think that there's a danger that, as I mentioned, the embedded inequality will counteract and prevent that?

Well, that's why we've asked for there to be clearer requirements on schools to do exactly that. We think that to really engage groups of children who sometimes become disengaged with education, then they really need to feel that they've got a stake in the school, and that it's their school as much as anyone else's. And we're doing a lot of work on that as an office now, because our rights surveys of schools have found some interesting disparities, particularly around secondary school, actually, where children feel less listened to and have less of a stake in school than they do in primary schools. So, we think—. There's still quite a lot of work to do, but we know schools that do this so well, so we've got some great examples to draw on, but it's making sure we get that consistency right across Wales. 

But I'm detecting general optimism about the curriculum, that it can resolve those issues. 

Yes. The next stage is going to be absolutely crucial, isn't it—properly resourced, properly implemented, and giving people the confidence to move forward. But, in general, I would say particularly in primary schools, but, more and more, secondary schools too, which I visit very, very regularly, people are excited about the new curriculum and the opportunities it will give to them and their students. And students who are having the chance, pupils who are having the chance, to test out aspects of the new curriculum are excited and engaged and involved in their learning. So, I think if those—. It's a huge challenge, but I really get that excitement from schools that are already implementing aspects of it.


Okay. That's very helpful and a very comprehensive answer. And what are your expectations of how the Welsh Government will respond to your recommendation that there should be a duty on all relevant bodies to pay due regard to the United Nations Convention on the Rights of the Child on the face of the curriculum and assessment Bill?

Well, my expectation is that they should take seriously the advice of an independent commissioner. Whether they will or not, I'm afraid I don't know at the moment, but I would really value this committee's support in encouraging the Minister to do that.

Just to remind you that this is not just about children learning about their rights, which does appear to, certainly in the content of the curriculum now—it's about children experiencing their rights in school as well. That, actually, is a gift to the Government, really. It's an enabler for the Government in terms of getting their goals for education through.

So, all the things that the Government are working on hard at the moment—obviously, the aims of the curriculum, but also off-rolling, bullying, safeguarding, all of these aspects, and mental health—are all about children's rights. It gives that coherence to the Government's aims for education and will encourage schools to see that coherence across. This is about enabling all of children's rights. So, it is an absolutely vital, I think, part of how we move forward.

We've also got the fact that there's a duty under the Additional Learning Needs and Education Tribunal (Wales) Act 2018, and it wouldn't be logical for some children to have the protection of that duty and not others. So, we really now need to broaden that out to all of our pupils in Wales, and it would give the Government yet another and an absolute underlying opportunity to be world-leading. I think we would be the first nation to do it quite so comprehensively across our education system. And I think our schools are ready and able to do it and would welcome it too.

We've got some questions now on bullying from Janet Finch-Saunders.

Thank you, Chair. Hello, again. How likely is the draft guidance, which the Welsh Government consulted on earlier this year, to be effective in tackling bullying in schools in Wales? You say that it

'isn’t a strong enough response from Government'.

In what ways?

Okay, well, you've had a very busy morning, as a committee, so you may not have seen the announcement the Minister made today on the bullying guidance, but I'm absolutely thrilled because the Minister has announced today that the guidance will be statutory, which has been a key call from my office for a number of years, and that schools will be required to record and monitor bullying incidents. They will be required to monitor the effectiveness of their interventions to prevent bullying and to tackle bullying. They'll be required to look at the outcomes on bullying incidents. Local authorities will also have statutory requirements to look at the effectiveness of anti-bullying strategies across a local authority.

I can't say really how pleased I am. This is something that children put at the top of my agenda in my first year as commissioner. Adults didn't put it at the top; adults said other things. Children said, 'You must pay attention to bullying.' We brought forward the views of thousands of children though our 'Sam's Story' work on their experiences of and views on bullying. Those experiences and views have gone into the Government guidance, so that gives it a real richness, I think, and a reality based in children's experiences.

But our response was, as you rightly said, Janet, that it wasn't good enough in the draft, because the draft was non-statutory. This is a really good example, I think, of a Minister actually—because the draft didn't even give the option on statutory—really listening to feedback and it being a really genuine consultation, because she's responded to that feedback and has announced today the advanced anti-bullying work that's going forward. So, I think it's got a much bigger chance now of being consistently effective.

What we found when we did our 'Sam's Story' work was that the previous guidance, 'Respecting Others', sat on a shelf. Most teachers we spoke to didn't even know about it—the children certainly didn't.

I've had to ask a few schools for their bullying policies, and they haven't come back straight away.

Well, governing bodies will now be required to have a separate and comprehensive anti-bullying policy. There'll be plans for how they're enabled and supported to do that. We'll of course be working hard to make sure that children and young people and their parents have a good understanding of what all this means as well. What we hope to be doing is really making sure that there's consistent good practice, because of course some schools are already doing this well. But as my casework shows, and I'm sure all of your casework too, it's not always dealt with well enough in schools, and it links to the home education discussion we've just had, because some people are withdrawing their children from school when they've not been happy with responses to bullying. So, I have to say, it's come in the nick of time for our evidence today. I'm really chuffed about this.


Well, I look forward to reading it, I won't push anymore to—

We will be looking for how this will be monitored, obviously. We think there's a real opportunity with Estyn's new framework for this to be a strong part of their monitoring as well, because, obviously, guidance is only as good as its implementation.

And just to say, it also links back to the discussions we were just having around equalities in the curriculum, so there's also a statutory expectation to monitor whether there's discrimination or disproportionate impact on particular groups within the school population, and again to use that data to actually change the policies so that they can tackle those inequalities.

And that was a call we made with the EHRC around schools having much clearer guidance around how to respond to the public sector equality duty, which, again, is a fundamental children's human right, and it would fit with the due regard—you know, if schools are getting this right, then they're going a long way towards implementing due regard to children's rights. It's a key plank of it. So, you know, one step forward.

Excellent. Right, we'll move on, then, to talk about additional learning needs and transport—Hefin.

With regard to additional learning needs, the enactment of the Bill, and the introduction of the system, I obviously represent many constituents who are going through the process of, for example, statementing for their children. I'm actually going through it myself with my four-year-old autistic daughter who is currently in this system. I have to say, both from experience of representing constituents and from my own experience, there's a degree of uncertainty with regard to the delay in the system from 2020 to 2021. Can you give us your views on that and the implications that it has?

Yes. I think the delay—when we look at the whole thing in the round, I think the delay is probably necessary. It was yet another consultation that we gave a very, very lengthy and detailed response to the Government on the code of practice, and apparently many other people did too, and they felt that, in order to give proper consideration to the responses, they did need longer, to make sure it would be properly implemented. This is going to be a big change for schools, some of whom are already embedding, actually, quite a lot of the principles of the ALN Act. You're seeing difference in language and you're seeing a more child-centred approach, but it is, for some schools, going to be quite a leap and quite a change, and for other professionals who have new duties, such as health professionals. So, I think it was probably the right thing to do, but I don't think it's been communicated out very clearly. A lot of people still think it is coming in next year, so we have fed that back to Government.

Do you think it's affecting the behaviour of schools towards the existing system and how they operate the existing system, knowing that a new system is coming in but the existing system is still operating? Therefore, do you think it's having a difficult effect in that system?

I think that, while we're in this in-between stage, inevitably it's going to be complex, because schools are concentrating—I hope, actually, they are thinking hard about what's to come next. But they do need to meet current guidelines now. They have statutory obligations now, and I'm well aware from my casework that many schools and local authorities currently aren't meeting their statutory obligations now.

Yes, so our casework is often challenging and saying, 'This child's got a statement, they have a right to this', or whatever—you know, all the different layers of the system.

Are they not meeting that because of the delay? Is that what's going on, or is that a problem with the old system?

No, I think that's a long-standing issue, but, of course, it's an extra challenge, if schools are implementing this, and of course looking to the new curriculum—all the various reforms we've been talking about today. So, I don't underestimate the challenges and the change process that schools are going through at the moment, and local authority education departments as well. But, yes, it's given us a lot longer, having this sort of parallel understanding. I am seeing some schools really embracing the new principles already, but they have to still meet their statutory obligations now under the current system, but embracing the new system. We've given some quite detailed feedback on aspects of the code—many aspects of which we think were very welcome, but it wasn't right yet.


Can you give us some specific ideas around what those changes to the code should be?

Okay, so we think that it's not yet clear enough for practitioners exactly what they'll need to do, which, of course, is the point of a code—that they should know what they have to. So, we've asked for clearer instructions for practitioners, so that we get that consistency across schools, because we still see a real variation in practice.

While the Act requires a shift to a needs-led perspective—not just a diagnosis-led one, for example—we think that the code still had quite a long way to go to make sure that that really happened in practice. There's quite a lot of good examples of links to children's rights, there's a due regard duty in the Act, but we've given lots of examples of where people could really understand what a due regard to children's rights would mean in practice in your everyday interactions with children and their families.

The code moves us forward a bit on Welsh-medium provision, but we saw areas where we thought it needed more. And I suppose, overall, resourcing—have they fully thought through the resourcing implications of all of this? And then the area that we highlighted, when we published our annual report, around transport, that there are real issues around transport.

So, just before we get on to transport, which Dawn will pick up, with that in mind, do you think 2021 is going to be too soon?

I think your first question highlighted the difficulty of being in a state of suspension, really. I think that they will need to get on with it, but it is going to be a process for everyone to get it right. I think to make it any longer would just be too long from the enactment of the Act to the actual change for children.

And given the confusion that we're already seeing through the casework about the current system perhaps not being applied correctly, there are elements of that current system that will continue and be developed under the new system. We've fed this back to Government already—now's the time for them to a bit of myth-busting, to say, 'This is what the new duties are. These are the duties that you already have—schools and others. You should already be doing this, and this is how you build on it in the new system'—to bring people with them along that journey through this period of uncertainty. Because if there are things that aren't being done particularly successfully now, then being able to build on those in future isn't going to work unless there's clear messaging from Government—'These are your existing duties. This is how they'll be extended. But, as at November 2019, these are the things that you can be doing.'

Okay, thank you. We've got a question now from Dawn.

Thank you. I just wanted to ask quick a question on the learner travel guidance, and what your expectations are for the Welsh Government's refresh of it, and what are your asks. What do you think need to be in it that are not already in it? So, I'll just kind of put that one out there.

Well, what I want is much more than a refresh. A key issue is that we do need a wholesale review of learner travel. I'll talk first of all about additional learning needs, but not just, actually, about additional learning needs. I made a recommendation in 2016, actually, for the Learner Travel (Wales) Measure 2008 to be reviewed, and that was based on extensive casework coming into our office, and that's been on our red/amber/green ratings—that's been red ever since. It hasn't been yet reviewed.

Now, when we were all scrutinising the ALN Act when it came through and, for example, when this committee was considering amendments, I know that there were concerns raised about how this new legislation would meet transport needs for children and, actually, an amendment was considered by this committee at Stage 2 around transport, making the Act stronger in relation to provision of transport. Now, I know that this committee received reassurances at that point, from the relevant Minister, that the revisions to the learner travel Measure and the code would be able to provide for those needs.


Yes. So, our expectation has been to see that both in the code of practice and in a revision to the learner travel Measure.

So, over the summer—

—over the summer, we were quite disappointed, really, to see not only was there not a strong enough embedding of transport in the code—so local authorities can consider transport but don't have to put it in the IDP—but also there was word that there would be a refresh of the learner travel Measure, rather than a wholesale revision. So, what we need is stronger requirements for transport to be considered as the IDP is developed and, when it's required, for it to be provided—for transport to be provided, suitable transport to be provided. At the moment, the letter I had back from the Minister reminded me that, under the learner travel Measure, local authorities can, are enabled and encouraged to, look at additional learning needs of children. But, of course, we all know that's not as strong as that they must.

And the learner travel Measure as a whole is based on education up to the age of 16. Something we see over and over again in different aspects of policy is this sort of hangover, really, from when lots and lots of children used to finish their education at 16, and we know that very few do now. Now, the ALN Act has really increased expectations about post-16 provision as well as early years provision and the expectation of transport needs to fit with that, however much—. For many children with additional learning needs we'll have aims to encourage them to start using transport independently. Some will always need that additional support, and that's not a statutory requirement. And as local authorities are very squeezed, as you know, around their budgets, they're pulling back from things that are not statutory requirements. Now, that, of course, affects all children, actually—all young people over the age of 16 as well—and that's where a learner travel Measure could look at the whole. Particularly where children are travelling a distance to continue with the education they've been having, whether that's a faith school or Welsh-medium provision, for example, we're increasingly seeing the funding for that post-16 transport being pulled, and in big rural areas in particular. That can actually be a disincentive for children to continue with those forms of education.

So, can I ask you, Sally, are you specifically saying that you're looking for more compulsion in this, that we shouldn't just be issuing guidance, that we should be saying, 'No. This is what needs to happen, and, actually, it doesn't only just need to happen, it needs to be expanded'? Is that—?

Yes. We need—. For children with additional learning needs, we need to make sure that, if we've got new requirements and new expectations on their education, then we can get them there safely, and, if we leave that up to guidance that's non-binding, then, in an age of austerity, local authorities will not be consistently applying that across Wales. So, we'll see children getting different provision—

—across Wales. I understand there's going to be a big cost to that, but, if we're going to pass legislation that raises our expectations for high-quality education for all of our children, then we need to look at all of the resource implications around that.

In terms of the whole of learner travel, for all children, I think that a wholesale revision would lead us to have really in-depth conversations, policy discussions, around what we expect to provide for all of our children across Wales. There will be cost implications, but we need a good, honest discussion about what our expectations are, different experiences of children from rural areas and urban areas, for example, and I think we can't just keep ignoring that because the vast majority of our children do continue with education post 16 and it costs a lot to send children on the bus a long distance. And, when we're thinking again about fundamental human rights in terms of education, we can't have some children who can afford to get to their education more than others. So, it needs a fundamental discussion and rethink and refresh—more than a refresh, revision.