UNCRC - briefing from PAS and Together
This briefing highlights what the United Nations Convention on the Rights of the Child (UNCRC), the UN Committee and case law have said about children’s rights to adequate housing and family support, and how poverty denies them these and other rights.
The UNCRC supports families to bring up children: families are placed at the centre of the UNCRC. It mentions the word ‘parents’ more times than it mentions the word ‘children’. It emphasises that families need to be supported in order to support children.
Its preamble states:
‘Convinced that the family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding…’
Scotland intends to incorporate the UNCRC into domestic law as far as it is able to do so. It passed the United Nations Incorporation on the Rights of the Child (Incorporation) (Scotland) Bill in 2021. This Bill has not yet become law because the UK Government asked the UK Supreme Court (UKSC) to rule on it. In September 2021 the UKSC ruled that parts of the Bill were not for the Scottish Parliament to decide on. The Scottish Parliament will amend the Bill so that it covers the Scottish remit only, and not matters that have a UK remit.
The UNCRC aims to protect children’s rights and make sure that they are not denied in the first place. This means that ‘duty-bearers’ (States – that is governments, local authorities and so on) must pay attention to children’s rights, protect them, and not take them away from children. That includes taking children’s rights into account when they make decisions about things that could affect children and their families. Scotland has decided to incorporate the UNCRC into its domestic law because that’s an important way of making sure that children’s rights are part of Scots law.
The UNCRC sets out children’s rights relating to poverty, housing and family support in its Articles and in UN Committee General Comments. The UKSC has interpreted these at law, for example when it’s been asked to make judgements about welfare benefits.
This briefing summarises these Articles and General Comments, and gives examples of case law.
2. Adequate housing
Right to adequate housing
The right to adequate housing is a human right. We all have the right to an adequate standard of living.
Right to adequate housing under the UNCRC
The state and condition of a home such as how fit it is to live in, its size, location and stability can affect children’s safety, health (physical and mental), education and relationships. Lack of adequate housing, forced evictions, temporary accommodation and homelessness affect children’s wellbeing, growth, development and enjoyment of other human rights. Cramped, crowded, noisy or run-down housing affect children’s development, increase mortality rates for children under five, and affect other rights such as the right to education, play and healthcare. It is a risk to their safety. Homelessness affects children’s growth, development and security. Forced evictions affect children’s development in similar ways to armed conflict.
Certain children are far more likely not to have adequate housing such Gypsy/Traveller, care experienced and asylum-seeking children.
Because the lack of adequate housing is so damaging to children, the UN Committee has said that the right to adequate housing is EVERY child’s right. In 2016, the UN Committee was concerned about the UK: the increase in the number of homeless households with children; the number of homeless families staying in temporary accommodation; and the effects of social security reforms on children.
Children exist within families. The UNCRC specifies that it’s up to parents (in the widest sense), States (government, local authorities, public agencies and so on) and others to ensure that children live in adequate housing.
Relevant Articles of the UNCRC include:
- Article 27: States should ensure that every child has a standard of living that allows them to develop fully – physically, mentally, spiritually, morally and socially. While recognising parents’ responsibilities, governments must ensure that they help families so that children’s essential needs are met, particularly food, clothing and housing
- Article 2: protects children from all forms of discrimination. This includes discrimination based on their parents’ property and inequalities in basic standard of living
- Article 4: public bodies should ensure that all children have an adequate standard of living
- Article 16(1): protects children from arbitrary or unlawful interference with their privacy, family, home or correspondence
General Comments of the UN Committee
The following are relevant to the right to adequate housing:
- The right to adequate housing is not ‘merely having a roof over one’s head or views shelter exclusively as a commodity’. It is ‘the right to live somewhere in security, peace and dignity’
- There are seven essential components of adequate housing: secure tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy
- Forced evictions must take place only in exceptional circumstances and in accordance with international human rights law. States must ensure that people are protected from forced evictions which result in their homelessness. This is particularly relevant for children living in temporary accommodation which is often unsuitable for children and often not temporary at all
- For children living in a ‘street situation’, States must help parents and others responsible for children’s housing. Children most have adequate housing that is safe, with access to safe drinking water, sanitation and hygiene facilities
Case law on the right to adequate housing
The UKSC has discussed children’s right to adequate housing in several cases.
For example, it ruled on a local authority’s decision to house a homeless family a long way from where it used to live. The court considered the welfare of the children, and stressed that children will almost always be affected by a local authority’s decision about where to house a homeless family. It judged that a local authority must ensure the welfare of each child in each household when being housed.
In 2016, the UKSC considered the impact of the ‘bedroom tax’ (which capped Housing Benefit) on the Rutherford family. The family needed a regular overnight carer for their grandson who had severe disabilities. They were taxed on their third bedroom: the bedroom that the carers stayed in overnight. The Housing Benefit regulations allow for an additional bedroom if a disabled adult needs overnight care, but not a disabled child. The court found that this discriminates against children with disabilities, and that the UK Government had not considered the best interests of children when devising the Housing Benefit regulations. The Scottish Government makes Discretionary Housing Payments to prevent families in Scotland from being affected in this way. But the tax continues to disproportionately affect families in which there is disability.
3. Family support
Children need family support to have their rights. This is emphasised throughout the UNCRC through the state-family-children relationship.
Family support as a right of children
The UNCRC says that parents/guardians/carers have the main role in raising children. Whatever happens in a family affects children. It also says that States must support families by providing social security, housing, health visiting, midwifery, early learning and childcare, and education. This is so that families thrive rather than just ‘survive’.
Family support under the UNCRC
The Scottish Parliament has passed a Bill to incorporate the UNCRC into Scots law. Scottish Government policy is set out in The Promise and Getting it right for every child (GIRFEC).
- Preamble: [a family] ‘…should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community…’
- Article 18: describes support to parents and carers
- Article 18(1): recognises that parents and legal guardians ‘have the primary responsibility for the upbringing and development of the child’
- Article 18(2): States must help parents and legal guardians and ensure they develop institutions, facilities and services for children’s care
- Article 27: States must help families so that they can feed, clothe and house their children
- Article 2: there is no one kind of family. Support must be available to children and families equally while taking into account the different types of families that children live in
- Article 5: family support is a right of children. States must respect the responsibilities, rights and duties of parents and legal guardians, but they are also responsible for ensuring children’s rights
- Article 9: if children have to be separated from their parents, States must ensure that children have direct contact with both parents regularly unless this would be harmful to the children
- Articles 20 and 21: if children don’t have a family environment, States must provide alternative care for them, primarily in another family (for example, kinship care/foster care) or through adoption
General Comments of the UN Committee
- General Comment No. 7: emphasises the importance of children’s relationship with their parents and legal guardians. This relationship gives them physical and emotional security, consistent care and attention and enables children to develop their identity, skills, knowledge and more
- General Comment No. 14: States must help parents to be responsible parents before removing children from parental care. States should not separate children from families on the basis of poverty or disability unless there is a risk to children’s safety
Case law relevant to the right to family support
In 2015, the UKSC considered a case in which the Department for Work and Pensions (DWP) had suspended Disability Living Allowance (DLA) for a child who had been in hospital for more than 84 days. The court said that this violated the child’s human rights under the European Convention of Human Rights (ECHR). It found that the DWP had not considered the impact of the decision on the child before suspending the DLA. This went against the right of disabled children to have their best interests taken into account when decisions such as this are made.
Support for asylum seekers and the children is reserved to (the responsibility of) the UK Government rather than the Scottish Government. In 2019, the Court of Session in Scotland refused a challenge to the UK Government about support for children. It agreed that the UK Government could reduce the rates payable to children of asylum seekers because free accommodation, heat, light, healthcare, education, and cash to meet essential living needs met the best interests of children. It did not think that not having items such as computers, toys and entertainment deprived children of their rights.
Poverty as a human rights issue
Poverty denies human rights.
Article 27 of the UNCRC says that States must ‘recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’. If a child doesn’t have this right, they are living in poverty.
Poverty means that children and families are denied their right to an adequate standard of living. This affects their rights to health, adequate housing, food and education.
Child poverty under the UNCRC
Child poverty breaches:
- Article 26: ‘the right to benefit from social security’
- Article 27: the right to an adequate standard of living, including the duty on States to ‘provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing’
- Articles 28 and 29: the right to education and development
- Article 24: the right to the best health possible including the right to adequate and nutritious food (a right that is affected by poverty)
- Article 31: the right to rest, leisure, play and participation in cultural and artistic life
- Article 3: children’s best interests should be a main consideration (particularly relevant to decisions about welfare and support that affect families)
- Article 4: States must ‘undertake all appropriate legislative, administrative and other measures for the implementation of the [UNCRC] rights’
- Article 6: governments must ensure children’s survival and development to the maximum possible extent
- Article 12: children’s right to meaningful participation
- Article 18(2): States must (1) ‘render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities’ and (2) ‘ensure the development of institutions, facilities and services for the care of children’
General Comments of the UN Committee
The UN Committee has repeatedly said that it’s concerned that States aren’t doing enough about child poverty. For example, in 2016 the UN Committee criticised the UK Government’s changes to tax credits and social benefits which increased child poverty. It also called on the UK to eradicate child poverty, and to report on what was being done to reduce poverty UK-wide and in Scotland, Northern Ireland and Wales.
- General Comment No. 7: poverty affects children’s wellbeing, social inclusion, self-esteem, learning opportunities and development
- General Comment No. 20: particular effects of poverty during adolescence such as extreme stress, insecurity, social and political exclusion. States should protect adolescents and their families through basic income security, economic protection and access to social services
- General Comment No. 21: what States should do about the causes of poverty and income inequality
- General Comment No. 9: on poverty and disability
- General Comment No. 19: UNCRC is not properly understood or applied in child rights-oriented anti-poverty work. States should be raising the standard of living of families living in poverty strategically, including children’s participation
Case law relevant to child poverty
In 2015, the UKSC considered whether the benefits cap, which limits the amount a family can receive regardless of the number of children in the family, breaches Article 14 of the ECHR and Article 3 of the UNCRC. While the minority of the court thought that the cap would deprive children of their basic needs and that this cannot be in children’s best interests, the majority thought that the cap could be justified and, therefore, that it was lawful. The court concluded that the UNCRC had no role in the case as it is not part of UK law. This judgement raises interesting questions about what will happen once the UNCRC is incorporated in Scots law. It could mean that, if children’s rights are breached because of poverty, this could result in court action.
The European Court of Human Rights considered child poverty in one of its judgements. In the case of Soares de Melo v Portugal, a woman was deprived of parental responsibility and contact with her ten children after they were taken into care with a view to adoption because of poverty. The court said that this went against the woman’s right to family life under Article 8 of the ECHR, and that the State had to create conditions that would develop parent-child bonds. The court referred to the best interests of the child under Article 3 of the UNCRC and observations by the UN Committee. This ruling shows that (1) child upbringing is not a private matter, (2) someone should not be punished for poverty, (3) poverty does not equal neglect and (4) children must not be separated from their families simply because they are poor.
 QUB Budget Analysis Project. (2010). Budgeting for social housing in Northern Ireland: a human rights analysis. QUB School of Law: p.4.
 UN Habitat. (2014). The right to adequate housing. Fact Sheet No. 21 (rev 1).
 United Nations. (2009). The human right to adequate housing. Fact Sheet No. 21: pp.19-20.
 Rahmatullah T. (1997). The impact of evictions on children: case studies from Phnom Penh, Manila and Mumbai. United Nations Economic and Social Commission for Asia and the Pacific and The Asian Coalition for Housing Rights 60.
 Together (Scottish Alliance for Children’s Rights). (2019). State of children’s rights in Scotland: p.93, 111 and 139.
United Nations (n 3) at pp.19. Available at <https://www.ohchr.org/documents/publications/fs21_rev_1_housing_en.pdf>
 Committee on the Rights of the Child. (2016). Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland. UN Doc. CRC/C/GBR/CO/5: paragraph 71.
 Aoife Nolan, ‘Children’s Economic and Social Rights’ in U.Kilkelly, T. Liefaard (eds.), International Human Rights of Children, International Human Rights at page 3.
 Committee on Economic Social and Cultural Rights. (1991). General Comment No.4. The right to adequate housing (Art. 11(1) of the Covenant). UN Doc. E/1992/23 annex III at 114: paragraph 7.
 Ibid: paragraph 8.
Committee on Economic Social and Cultural Rights (1997). General Comment No. 7. The right to adequate housing (Art. 11(1) of the Covenant): forced evictions. UN Doc. E/1998/22.
 Human Rights Watch. (2020). Every child in the UK deserves a safe and secure home: government needs to ensure adequate housing for homeless families: https://www.hrw.org/news/2020/12/14/every-child-uk-deserves-safe-and-secure-home
 ‘Street situation’ is the language used by the UN Committee. To be interpreted fairly broadly (that is, includes children who periodically (but not always) live/work on the street or in public spaces like train stations and so on. Committee on the Rights of the Child. (2017). General Comment No. 21. Children in street situations. UN Doc. CRC/C/GC/21: paragraph 4.
 Ibid: paragraphs 49 and 51.
 Nzolameso (appellant) v City of Westminster (respondent). (2015). UKSC 22: paragraph 29.
 R (on the application of Rutherford and another) (respondents) v Secretary of State for Work and Pensions (appellant). (2016). UKSC 58.
 Ibid: paragraph 47.
 Scottish Government. (3 March 2020). Discretionary housing payments to mitigate the bedroom tax in Scotland. FOI release: https://www.gov.scot/publications/foi-202000014853/
 Citizens Advice Scotland. (2021). Disabled Scots bearing the brunt of bedroom tax. Available at: https://www.cas.org.uk/news/disabled-scots-bearing-brunt-bedroom-tax
 Dolan, P. Zegarac, N. and Arsic, J. (2019). ‘Family support as a right of the child’. Social Work & Social Sciences Review 21(2): 18.
 Together (Scottish Alliance for Children’s Rights). (2018). Parenting and the United Nations Convention on the Rights of the Child (UNCRC): p.2: https://www.togetherscotland.org.uk/pdfs/UNCRC_parenting_23-04-2018_FINAL.pdf
 Parenting across Scotland. [N.D.]. Family support and parenting: https://www.parentingacrossscotland.org/info-for-practitioners/policy/family-support-and-parenting/
 Committee on the Rights of the Child. (2005). General Comment No. 7. Implementing child rights in early childhood. UN Doc. CRC/C/GC/7/Rev.1: paragraph 16.
 Committee on the Rights of the Child. (2013). General Comment No. 14. Right of the child to have his or her best interests taken as a primary consideration. (Art. 3, para. 1). UN Doc. CRC/C/GC/14: paragraphs 60-61.
 Committee on the Rights of the Child (n 23) at paragraph 63.
 Mathieson v Secretary of State for Work and Pensions. (2015). UKSC 47.
 Opinion of the court in the reclaiming motions by Natasha Tariro Nyamayaro and Olayinka Oluremi Okolo. (2019). CSIH 29.
Children and Young People’s Commissioner Scotland. (2021). Child poverty: https://cypcs.org.uk/positions/child-poverty/
 Committee on the Rights of the Child. (2016). Concluding observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland. UN Doc. CRC/C/GBR/CO/5 (2016): paragraph 70.
 Ibid. Paragraphs 71(a) and (b).
 Committee on the Rights of the Child. (2005). General Comment No. 7. Implementing child rights in early childhood. UN Doc. CRC/C/GC/7/Rev.1: paragraph 26.
 Committee on the Rights of the Child. (2016). General Comment No. 20. The implementation of the rights of the child during adolescence. UN Doc. CRC/GC/C/20: paragraph 66.
 Ibid. Paragraph 67.
 Committee on the rights of the Child. (2017). General Comment No. 21. Children in street situations. UN Doc. CRC/C/GC/21: paragraph 51.
 Committee on the Rights of the Child. (2006). General Comment No. 9. The rights of children with disabilities. UN Doc. CRC/C/GC/9: paragraph 3.
 Committee on the Rights of the Child. (2016). General Comment No. 19. Public budgeting for the realization of children’s rights. (Art. 4). UN Doc. CRC/C/GC/19.
 Committee on the Rights of the Child. (2005). Day of general discussion: children without parental care. UN Doc. CRC/C/153: paragraph 659.
 R (on the application of SG and others (previously JS and others)) (appellants) v Secretary of State for Work and Pensions (respondent). (2015). UKSC 16.
 Soares de Melo v Portugal. (Application No. 72850/14). (ECtHR judgment). (16/05/2016): https://childprotectionresource.online/the-judgement-of-the-european-court-against-portugal/