*/
Wales has gone further than England in the recognitition of children’s rights, enshrining the UN Convention on the Rights of the Child in central decision-making. But how is it working in practice? David Gardner investigates
The law on children’s rights in Wales is, in theory at least, more progressive than in England. It sets a different tone. That tone is one of putting internationally recognised rights of children at the heart of decision-making such as it relates to children.
In England, when decisions are made by central government there is no statutory duty to comply with or have due regard to the rights of children as set out in the United Nations Convention on the Rights of the Child (UNCRC). In Wales, there is such a duty, imposed by The Rights of Children and Young Persons (Wales) Measure 2011 (‘the 2011 Measure’).
Section 1 of the 2011 Measure is important:
1. Duty to have due regard to Convention on the Rights of the Child
(1) … the Welsh Ministers must, when exercising any of their functions, have due regard to the requirements of –
(a) Part I of the Convention.
Thus, whenever the Welsh Ministers (or civil servants in their name) make a decision they must have due regard to the 54 articles of the UNCRC that cover all aspects of a child’s life.
The 2011 Measure is certainly groundbreaking legislation. Julie Morgan MS’s foreword to the Children’s Rights Scheme 2021 makes clear the Welsh Ministers’ progressive intent:
Wales is a country where children’s rights are a fundamental entitlement and not an optional extra. We have led the way in children’s rights by enshrining them in law…
The legislation applies only to the Welsh Ministers, not all public bodies in Wales. Crucially, the 2011 Measure is not direct incorporation of the UNCRC in the same way that s 6 of the Human Rights Act 1998 incorporates the European Convention on Human Rights. It is a duty to have due regard.
The Children’s Rights Scheme 2021 sets out the staged approach to having due regard to the rights (p 7):
The Measure places the due regard duty on Welsh Ministers and they must be fully aware of this duty when they make decisions…
The term ‘due regard’ requires a balanced consideration of issues. This means that Welsh Ministers, when exercising their functions, must think about how what they are doing relates to the rights and obligations of the UNCRC. In identifying any negative impact on children and young people Welsh Ministers must consider whether any action can be taken to avoid or minimise this impact...
Having considered this, the outcome needs to be given balanced consideration (due regard) against the other factors that the Welsh Ministers must take into account in making the decision in question.
This explanation of the duty is largely in line with case law, in particular R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, R (Bridges) v Chief Constable of South Wales Police [2020] 1 WLR 5037 and R (Marouf) v Secretary of State for the Home Department [2023] 3 WLR 228.
There is an expectation that in complying with and showing compliance with the due regard duty, the Welsh Ministers will undertake a Children’s Rights Impact Assessment (CRIA). That expectation arises out of para 3.1 of the Children’s Rights Scheme 2021.
In 2024, I was involved in two matters which brought the 2011 Measure and children’s rights in Wales into focus.
First came the case of R (RLQ and SLQ) v Welsh Ministers (AC-2023-CDF-000107) in the Administrative Court in Wales. This was a judicial review of the decision of the Welsh Ministers to end Holiday Free School Meals (HFSM). HFSM was the provision of funding to local authorities across Wales to ensure that children who were entitled to free school meals would also have access to food during the school holidays. It was introduced during COVID-19 and continued in Wales until the summer holiday of 2023.
Second came the intervention of the Children’s Commissioner for Wales at module 2B of the UK COVID-19 Inquiry examining governmental decision-making and preparedness in Wales. (Module 8 considering the impact of the pandemic on children across the UK will take place in September and October 2025.)
The Inquiry sat for three weeks in Cardiff. Much of the focus, understandably, was on those who were lost during the pandemic and whether more could have been done to save them. An important element was the impact on children and young persons.
The pandemic had an immediate impact on all children and young people. Inequalities caused by poverty and disability in children became more pronounced. Neither children nor the Children’s Commissioner for Wales were consulted in the decision to close schools. For several major decisions no CRIA was completed (including in the initial decision to close schools). Further, when CRIAs were undertaken they were often completed late and reflecting back upon decisions already taken.
Despite the 2011 Measure apparently enshrining children’s rights in law, when stress was put upon that system it very quickly fell apart and children were left substantially disadvantaged for the failure. There was a clear implementation gap between the progressive regime and the actual practice.
The problems which were illustrated in the Inquiry may be explained (but not excused) by the exceptional circumstances of COVID-19. The case of RLQ, however, highlighted that the implementation gap remains real.
On 27 February 2024, in RLQ, the Welsh Minsters conceded the case without a hearing. The High Court declared that the Welsh government’s decision to end HFSM was unlawful. The accepted basis for the unlawfulness was that in taking the decision the Welsh Ministers failed to consider the rights of children under the 2011 Measure (as well as those with protected characteristics under the Public Sector Equality Duty, per s 149 of the Equality Act 2010).
When taking the decision to end HFSM, the Welsh government did not consult with the Children’s Commissioner, did not obtain the views of any children or young persons or any persons with protected characteristics, and did not undertake a CRIA.
There is no doubt that the 2011 Measure is progressive and groundbreaking legislation. Its intentions and its tone are admirable and should be widely praised. England does not have such protections for children. Notably, Scotland has gone further, with direct incorporation of the UNCRC in the UNCRC (Incorporation) (Scotland) Act 2024.
Nonetheless, the implementation gap remains. As well as the matters discussed above, the issue has reared its head in the Senedd recently in a debate on the prohibition on puberty blockers.* Without change the Measure will not come close to achieving its important aims. It will be for ministers and officials to close the implementation gap. It will be for lawyers and public interest groups to hold them to account if they do not.
*See Motion to annul the National Health Service (General Medical Services Contracts) (Prescription of Drugs Etc.) (Wales) (Amendment) (No. 2) Regulations 2024, Plenary Meeting, Senedd, 10 December 2024, 673-718. The regulations are currently subject to a challenge by way of judicial review in R (ATB by their litigation friend ATL) v Welsh Ministers (AC-2025-CDF-000020), which at the time of writing awaits a decision on permission to apply for judicial review. The author is junior counsel for the claimant in that claim.
David Gardner is a public law barrister at No.5 Barristers’ Chambers. He is also the Treasurer of Public Law Wales and Secretary to the South West Administrative Lawyers Association.
The law on children’s rights in Wales is, in theory at least, more progressive than in England. It sets a different tone. That tone is one of putting internationally recognised rights of children at the heart of decision-making such as it relates to children.
In England, when decisions are made by central government there is no statutory duty to comply with or have due regard to the rights of children as set out in the United Nations Convention on the Rights of the Child (UNCRC). In Wales, there is such a duty, imposed by The Rights of Children and Young Persons (Wales) Measure 2011 (‘the 2011 Measure’).
Section 1 of the 2011 Measure is important:
1. Duty to have due regard to Convention on the Rights of the Child
(1) … the Welsh Ministers must, when exercising any of their functions, have due regard to the requirements of –
(a) Part I of the Convention.
Thus, whenever the Welsh Ministers (or civil servants in their name) make a decision they must have due regard to the 54 articles of the UNCRC that cover all aspects of a child’s life.
The 2011 Measure is certainly groundbreaking legislation. Julie Morgan MS’s foreword to the Children’s Rights Scheme 2021 makes clear the Welsh Ministers’ progressive intent:
Wales is a country where children’s rights are a fundamental entitlement and not an optional extra. We have led the way in children’s rights by enshrining them in law…
The legislation applies only to the Welsh Ministers, not all public bodies in Wales. Crucially, the 2011 Measure is not direct incorporation of the UNCRC in the same way that s 6 of the Human Rights Act 1998 incorporates the European Convention on Human Rights. It is a duty to have due regard.
The Children’s Rights Scheme 2021 sets out the staged approach to having due regard to the rights (p 7):
The Measure places the due regard duty on Welsh Ministers and they must be fully aware of this duty when they make decisions…
The term ‘due regard’ requires a balanced consideration of issues. This means that Welsh Ministers, when exercising their functions, must think about how what they are doing relates to the rights and obligations of the UNCRC. In identifying any negative impact on children and young people Welsh Ministers must consider whether any action can be taken to avoid or minimise this impact...
Having considered this, the outcome needs to be given balanced consideration (due regard) against the other factors that the Welsh Ministers must take into account in making the decision in question.
This explanation of the duty is largely in line with case law, in particular R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, R (Bridges) v Chief Constable of South Wales Police [2020] 1 WLR 5037 and R (Marouf) v Secretary of State for the Home Department [2023] 3 WLR 228.
There is an expectation that in complying with and showing compliance with the due regard duty, the Welsh Ministers will undertake a Children’s Rights Impact Assessment (CRIA). That expectation arises out of para 3.1 of the Children’s Rights Scheme 2021.
In 2024, I was involved in two matters which brought the 2011 Measure and children’s rights in Wales into focus.
First came the case of R (RLQ and SLQ) v Welsh Ministers (AC-2023-CDF-000107) in the Administrative Court in Wales. This was a judicial review of the decision of the Welsh Ministers to end Holiday Free School Meals (HFSM). HFSM was the provision of funding to local authorities across Wales to ensure that children who were entitled to free school meals would also have access to food during the school holidays. It was introduced during COVID-19 and continued in Wales until the summer holiday of 2023.
Second came the intervention of the Children’s Commissioner for Wales at module 2B of the UK COVID-19 Inquiry examining governmental decision-making and preparedness in Wales. (Module 8 considering the impact of the pandemic on children across the UK will take place in September and October 2025.)
The Inquiry sat for three weeks in Cardiff. Much of the focus, understandably, was on those who were lost during the pandemic and whether more could have been done to save them. An important element was the impact on children and young persons.
The pandemic had an immediate impact on all children and young people. Inequalities caused by poverty and disability in children became more pronounced. Neither children nor the Children’s Commissioner for Wales were consulted in the decision to close schools. For several major decisions no CRIA was completed (including in the initial decision to close schools). Further, when CRIAs were undertaken they were often completed late and reflecting back upon decisions already taken.
Despite the 2011 Measure apparently enshrining children’s rights in law, when stress was put upon that system it very quickly fell apart and children were left substantially disadvantaged for the failure. There was a clear implementation gap between the progressive regime and the actual practice.
The problems which were illustrated in the Inquiry may be explained (but not excused) by the exceptional circumstances of COVID-19. The case of RLQ, however, highlighted that the implementation gap remains real.
On 27 February 2024, in RLQ, the Welsh Minsters conceded the case without a hearing. The High Court declared that the Welsh government’s decision to end HFSM was unlawful. The accepted basis for the unlawfulness was that in taking the decision the Welsh Ministers failed to consider the rights of children under the 2011 Measure (as well as those with protected characteristics under the Public Sector Equality Duty, per s 149 of the Equality Act 2010).
When taking the decision to end HFSM, the Welsh government did not consult with the Children’s Commissioner, did not obtain the views of any children or young persons or any persons with protected characteristics, and did not undertake a CRIA.
There is no doubt that the 2011 Measure is progressive and groundbreaking legislation. Its intentions and its tone are admirable and should be widely praised. England does not have such protections for children. Notably, Scotland has gone further, with direct incorporation of the UNCRC in the UNCRC (Incorporation) (Scotland) Act 2024.
Nonetheless, the implementation gap remains. As well as the matters discussed above, the issue has reared its head in the Senedd recently in a debate on the prohibition on puberty blockers.* Without change the Measure will not come close to achieving its important aims. It will be for ministers and officials to close the implementation gap. It will be for lawyers and public interest groups to hold them to account if they do not.
*See Motion to annul the National Health Service (General Medical Services Contracts) (Prescription of Drugs Etc.) (Wales) (Amendment) (No. 2) Regulations 2024, Plenary Meeting, Senedd, 10 December 2024, 673-718. The regulations are currently subject to a challenge by way of judicial review in R (ATB by their litigation friend ATL) v Welsh Ministers (AC-2025-CDF-000020), which at the time of writing awaits a decision on permission to apply for judicial review. The author is junior counsel for the claimant in that claim.
Wales has gone further than England in the recognitition of children’s rights, enshrining the UN Convention on the Rights of the Child in central decision-making. But how is it working in practice? David Gardner investigates
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