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On 23 June 2016 adults will decide on the future of the UK’s membership of the European Union. While proposals to extend the vote to 16 and 17 year olds were defeated in the House of Lords in December 2015, they reignited debate over the substance and scope of children’s democratic participation and their capacity to make informed political decisions. None of these discussions or, indeed, any of the wider debates surrounding the forthcoming referendum have considered the impact that the UK’s withdrawal from the EU might have on children’s rights and lives. This is in spite of the fact that children, who make up one fifth of the EU population and nearly one quarter (approximately 15 million) of the UK population, have the biggest stake in the outcome of the referendum. As current and future citizens, consumers, movers, workers, parents, and carers, children will bear the full brunt and, indeed, the benefits of any decision to either remain in or withdraw from the EU.
The EU has, in many ways, made gains with regard to children’s rights.
The absence of any consideration of the impact of Brexit on children is probably symptomatic of a general ignorance, indifference even, as to what the EU has and could achieve that is of any direct relevance or value to children. Certainly the average child (and, indeed, adult) would struggle to identify one area of EU activity that enhances their lives in any tangible way. Even those who work in the field of children’s rights or EU law and policy have bemoaned the failure of the EU to harness its considerable financial, legal, and political power to advance children’s rights, or to engage children more meaningfully in its decision-making processes. But those same critics acknowledge that the EU has, in many ways, made gains with regard to children’s rights and they express heightened expectations as to what more it could do in the years to come.
The impact of the EU on children
Nowadays, it is hard to conceive of a single area of EU law and policy that does not affect children’s lives in at least an indirect way. An abundance of EU legal provisions confer direct, legally-enforceable entitlement on children in their own right, particularly in relation to internal market or cross-border activities such as free movement, immigration and asylum, and cross-border family law. A range of legal obligations has also been enacted in the field of consumer protection such as toy safety, harmful media, and paediatric drug development. Other, more piecemeal EU legal rights in the field of education have been available to children since the 1970s, and in relation to employment health and safety since the early 1990s.
The UK’s exit from the EU could be catastrophic for children in terms of an inevitable and significant reduction in the economic, legal, and procedural provision currently available to them.
In more recent years, the reach of EU activity has progressed much further, seeping into issues that would have previously been closely guarded by domestic competence, including criminal justice, support for victims, protection against sexual exploitation, and even de-institutionalisation. Of course, children also benefit indirectly from EU protection in the field of employment equality, including parental leave, working time, maternity provision, and health and safety provision for pregnant and breastfeeding women. Equally, they benefit from myriad soft EU initiatives such as research, data collection, capacity building, exchange of good practice, standard-setting, monitoring, evaluation and policy guidance on perennial issues such as child poverty, obesity, online safety, anti-discrimination, and access to justice.
With this in mind, the UK’s exit from the EU could be catastrophic for children in terms of an inevitable and significant reduction in the economic, legal, and procedural provision currently available to them. EU child protection obligations provide a good illustration of this point. The EU’s directive on combating the sexual abuse and sexual exploitation of children and child pornography, for instance, obliges the UK to adopt measures to ensure that professionals can report suspicions that a child is a victim of child sexual abuse or exploitation. It also requires the UK to make information regarding convicted perpetrators available cross-nationally in order to minimise opportunities for abusers to perpetrate crimes against children in other member states. On a more mundane level, children in the UK benefit from EU laws that limit the extent to which they can be exposed to television advertising, violence, or other inappropriate images.
National law: an ill-fitting replacement
Of course, it could be argued that such provision has already been or could be incorporated into UK law, such that any entitlement originating from EU sources would survive the UK’s exit from the EU. But a key strength of EU child protection provision is not just the content of the measures themselves, but the accompanying accountability and sanction mechanisms ensuring that member states implement and maintain such measures.
It is EU law that has enabled unaccompanied children languishing in the Calais jungle to join their family members in the UK.
It is EU law, coupled with a decisive ruling from the Court of Justice of the EU, that has enabled unaccompanied children languishing in the Calais jungle to join their family members in the UK, notwithstanding the UK government’s refusal up until very recently to resettle any of the tens of thousands of unaccompanied children from the European region. It was the European Commission’s threat to initiate infringement proceedings against the UK (a process that could lead to an award of damages) that has prompted more robust implementation of the EU Trafficking Directive in the form of the Modern Slavery Act 2015.
The UK’s immunity from such accountability raises questions – given some of the stances it has taken in recent years – as to whether the moral imperative to protect our most vulnerable, marginalised fellow human beings would transmute into real, high-level protection for children. There is simply no other supra-national mechanism as forceful – economically, politically, and legally – as the EU when it comes to upholding children’s rights. EU law creates both directly enforceable entitlement and an obligation to amend domestic law to accommodate children’s needs in a way that can be much more effective than even the European Convention on Human Rights’ obligations working through the UK Human Rights Act.
The likelihood of the UK implementing adequate, alternative provision for children to replace what the EU currently provides, let alone any form of children’s rights ‘plus’, is somewhat remote for two fundamental reasons. First, many children’s rights issues addressed at EU level simply cannot be addressed by the UK acting alone. Indeed, that is why the EU assumed a mandate in areas such as immigration, free movement, consumer protection and other aspects of child protection, issues which are inherently international in nature. The legal, administrative, and political cohesion that accompanies EU membership responds to a need for a harmonised, co-ordinated response to a shared set of problems, and is conducive to fluid, regular cross-border exchange and collation of information in such areas.
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It is EU membership that brings member states within the scope of the EU’s extensive research, monitoring, and evaluation activities – processes which can themselves stimulate important legal and policy reform at the domestic level as well as EU financial investment. For instance, the EU’s fundamental rights agency and the European Commission have supported in-depth empirical investigation into children’s and professionals’ experiences of the justice process. This work has gathered important quantitative data on child trafficking, implemented a universal telephone hotline for children who go missing, and compared new models of guardianship and support for our most vulnerable children.
Such intelligence is vital in informing concrete procedural and policy changes at the domestic level. The EU regulatory framework underpinning cross-border family law has stimulated unprecedented levels of cooperation between members of the judiciary and succeeded in expediting outcomes for children who are abducted or caught up in battles over care, parental contact, and maintenance. Softer initiatives aimed at stimulating education, awareness raising, and exchange of best practice – notably in the field of healthy lifestyles – are instrumental in enabling the UK to respond to its childhood obesity epidemic, not to mention the disturbing increase in adolescent binge-drinking. None of this intelligence and support would be focused on the UK if it were not an EU member state.
The EU: forcing protection despite Downing Street’s priorities
A second, perhaps even more fundamental objection to potential withdrawal from the EU arises from well-supported, acute concerns about the willingness of the UK to deliver on its children’s rights obligations. We only need point to the government’s spectacular failure to deliver on even the most basic of children’s needs and interests since the global economic crisis took hold to question any faith we might have in their capacity and commitment to support children’s rights in the aftermath of EU withdrawal.
There are well-supported, acute concerns about the willingness of the UK to deliver on its children’s rights obligations.
It is well documented that children have, without a doubt, borne the brunt of the most excessive and damaging cuts to public services in recent years. In the UK alone, the UK Children’s Commissioners have estimated that 3.7 million children are living in poverty (27%), an increase of 3% since 2008. This figure is expected to increase further to 4.7 million by 2020, fulfilling dismal predictions by the Children’s Rights Alliance for England (CRAE) that this will be the first decade since records began in which absolute child poverty has not fallen.
Local authorities’ budgets for child protection have furthermore been essentially frozen since 2006/7 in spite of a 9% increase in rates of referrals. According to CRAE, The majority of local authorities in England have cut funding to youth services by up to 35% with even more dramatic cuts (up to 80% in some local authorities) to child and adolescent mental health budgets.
Legal developments in areas that are within the exclusive competence of the UK are following suit in terms of this downward trend in protection. One only needs to look to the new Immigration Act 2016. This allows for the withdrawal of asylum support and housing from families whose claim for protection has been refused, and to deny unaccompanied asylum-seeking children who do not have a pending asylum application access to vital support from the moment they reach the age of 18. The Children’s Society has warned that such hostile measures are likely to plunge up to 120,000 irregular child migrants into immediate destitution.
Training, support, and financial largess
Consider these facts alongside the current availability of EU funding, training, awareness raising, and sharing of best practice to stimulate and support domestic efforts to promote children’s lives. The European Commission’s preventative strategy, ‘Investing in children: breaking the cycle of disadvantage’ represents a comprehensive attempt to tackle child poverty and promote well-being by 2020, with a focus on ensuring that children receive: access to adequate resources, including child and family benefits; access to quality and inclusive services, such as childcare and education; and meaningful participation in decision-making.
The EU supports member states in achieving these priorities by collecting and disseminating best practice on anti-poverty action. It helps to monitor, evaluate, and chart progress. It also provides funding for various initiatives in the field. Specifically, European structural and investment funds are available to member states to enhance economic and social cohesion and reduce economic and social disparities, with a particular emphasis on correcting imbalances between the regions. England alone will receive a total allocation of €6.174 billion in regional development and social funding for 2014-2020.
England will receive a total allocation of €6.174 billion in regional development and social funding for 2014-2020.
Children are among the primary beneficiaries of this funding, particularly children in irregular living situations. According to the UK Alliance for Investing in Children, Wales, Scotland and Northern Ireland have invested a significant proportion of their European social fund budget in achieving improvements in care leavers’ education, improving the dental health of young children in the most deprived and remote areas, and enhancing affordable childcare provision. The fact that such funds support the development of employment opportunities should not go unnoticed, as children are three times more likely to be in poverty if they live in an unemployed family compared to where at least one adult is in work.
The European Commission has also set aside a €3.8 billion ‘Fund for European Aid to the Most Deprived’ for the period 2014-2020. This supports member states in providing food, clothing, and essential goods to the most materially-deprived children and adults, with the condition that member states themselves commit 15% in national co-funding. Part of the UK allocation (€4.27 million) has been invested in supporting breakfast clubs (subsidised breakfast programmes) across England, for instance. There is no doubt that such incentives for sustained investment in tackling the most serious cases of child poverty and social exclusion will be significantly curtailed if the UK withdraws from the EU.
The failed attempt to extend the EU referendum vote was something of a blow to 16 and 17 year olds, but that pales in comparison to the potentially harmful impact that withdrawal from the EU could have on the level of provision and protection available to all children in the UK. It is high time that the Brexit debate confronted critical issues around their welfare and entitlement, not simply because children benefit so significantly from the protective safeguards and legal entitlement put in place at the EU level, but because the future prosperity of the nation lies in their hands. The EU plays a significant role in ensuring that optimum resources and opportunities are in place to enable children to develop to their fullest potential in this regard. It is naïve to think for one moment that those opportunities will be readily available to children if the UK goes it alone. In fact, there is every indication that investment in and support for children will diminish even further in the years to come.