The silence of the Children’s Commissoners

This is a post by Sarah Phillimore

Children’s Commissioners were established by Part 1 of the Children Act 2004 following recommendations made by Lord Laming in the Victoria Climbie Inquiry.  Victoria died in February 2000 after months of appalling ill treatment by Marie-Therese Kouao and Carl John Manning. This was despite Victoria being known to at least two housing authorities, four social services departments, two child protection teams of the Metropolitan Police Service (MPS), a specialist centre managed by the NSPCC, and had been admitted to two different hospitals because of suspected deliberate harm. The Inquiry found an urgent need for more effective inter-agency co-operation and sharing of information about children.

The Commissioner has statutory obligations to to encourage decision makers to take children’s best interests into account, along with powers to gather data and to enter premises. The Children and Families Act 2014 further strengthened this remit. The Commissioner operates with a team of staff, and works with various advisory and children’s groups, stakeholders and specialists.

All four offices of the UK Children’s Commissioners work closely to promote and safeguard the rights of children and young people in the UK, including submitting joint reports on the status of children’s rights in the UK to the UN Committee on the Rights of the Child. 

So one might assume that the recent decision of Bell v Tavistock and the implications for children would be something within the remit of the Children’s Commissioner?

I looked at the websites of the four Commissioners in turn. 

Looking at the Northern Irish Children’s Commissioner’s website https://www.niccy.org/about-us/ it has 8 ‘High level Corporate objectives’ (HLCOs) including HLCO 5 – Children’s right to health and protection from violence or abuse

Searching the site for ‘Keira Bell’ ‘The Tavistock’ or ‘Puberty blockers’ returned no results. A search for ‘transgender’ produced three. A blog from 2015 commenting that it was difficult for transgender children to feel safe as who they were, approving comment in November 2019 on the publication of the Guidance for Schools, EOTAS Centres and Youth Service on Supporting Transgender Young People by the Education Authority, and then way back in January 2004 Comments By The Commissioner For Children And Young People At The Launch Of The Youthnet Report “Shout” On The Needs Of Young People In Northern Ireland Who Identify As Lesbian, Gay, Bisexual Or Transgender where the then Commission Nigel Williams commented: 

… we are simply talking about the freedom to discover who you are, what your identity is and to do that without being bullied, without being verbally abused, without being so tortured by society’s attitude that you contemplate suicide.

So the linking between homosexuality and transgender identities goes back a very long way indeed, thus cementing the idea that a child who identifies as transgender is simply discovering their authentic self.

The English Children’s Commissioner https://www.childrenscommissioner.gov.uk/ describes her role as: 

She speaks up for children and young people so that policymakers and the people who have an impact on their lives take their views and interests into account when making decisions about them.

She does this by first gathering evidence: talking to children and young people, requesting information from public institutions and then carrying out research and compiling information on the wide range of things that affect children’s lives.

She is the ‘eyes and ears’ of children in the system and the country as a whole and is expected to carry out her duties ‘without fear or favour’ of Government, children’s agencies, and the voluntary and private sectors.

I searched the English site for the terms ‘Keira Bell’ ‘Tavistock’, ‘puberty blockers’ and ‘transgender’. There were no results for any term. Let’s have a look at Scotland https://cypcs.org.uk/. Nothing found. Wales? https://www.childcomwales.org.uk/ Nothing. 

 This was a surprise. Considering the remit of the various Children’s Commissioners I had expected at least some comment. However, it is clear that at least some of the Children’s Commissioners had been giving this matter some thought after I was contacted by someone who had made a Freedom of Information Request to the Scottish Commissioner. 

 FOI request to the Scottish Children’s Commissioner

A request was made on 7^th January 2021 to the Children and Young People’s Commissioner Scotland for information held on the Keira Bell High Court judgment of 1^st December 2020:

1.    Correspondence and other relevant material between the Commissioner/staff and other UK Commissioners/staff

2.    Internal communications between the Commissioner and staff

3.    External communications from the Commissioner’s staff to external organisations. 

This was refused and an internal review of that refusal was sought on 30^th March 2021 on the basis that:

1. It is in the public interest to disclose the information that was withheld
2. The reasons for refusing disclosure were not credible
3. There has been stalling at every turn and information released only when pressed
4. This goes against the spirit of transparency and openness 

This was also refused on 27^th April 2021 relying on the statutory exemptions to disclosure that would cause ‘prejudice to effective conduct of public affairs’. The reasons for refusal are worth examining. 

There was an email chain showing that the Children’s Commissoner for Wales had forwarded to the Scottish Commissioner a request for legal advice in relation to the Bell v Tavistock judgment. The Scottish Commissioner commented in its refusal to disclose:

‘The rights of transgender children and young people in the UK is a highly sensitive matter and the Bell v Tavistock judgment is currently under appeal and therefore a live legal issue. The Chldren’s Commissioner for Wales chose to share with us their initial legal advice with an expectation that this would not be disclosed beyond the officer of the Children and Young People’s Commissioner Scotland’

The concern was that disclosure of this advice would ‘substantially inhibit’ collaboration between the various Commissioners and this would be ‘material and substantial’ prejudice. 

The Scottish Commissioner did not dispute the public interest in the issues raised by the Bell judgment. But that nature of these issues and the manner in which they are discussed were a strong argument against disclosure. 

Regarding the Keira Bell judgment, a safe space is essential due to the extremely and unusually toxic nature of the debate around these issues, which are regarded by individuals on both sides of the debate as impacting on existential matters of personal and group identity.

Such concerns had been raised before, in a response to the Gender Recognition Reform (Scotland) Bill Consulation:

All those participating in the debate should be  mindful of the need to keep the discussion focused on the issues and on the law rather than personalising them. Failure to ensure that these conditions exist is, in our view, highly unlikely to result in effective, rights compliant law and poses a serious risk to the rights and interests of many children and young people

I don’t disagree with that at all. But it is concerning to see this used as an argument to REFUSE to share correspondence and advice between the various Commissioners’ offices. Surely there can be no chance that these communications would inflame tensions by using abusive language? Surely they are simply focusing on the law and ensuring it is compliant with children’s rights?

It seems likely that there have been some ‘robust’ views by various members of staff as the letter of refusal goes on to say 

‘…public bodies must be mindful of their positive obligation not to inflame matters. It is therefore imperative that any public comment by our office (or Wales) is very carefully drafted to avoid exacerbating this toxic environment for children and young people. This means we must ensure we can discuss, debate and consider issues from several angles before deciding whether to make public comment on them, and what the nature of that comment should be’

Reliance was also placed on claims of confidentiality of communications between a legal adviser and their client, and disclosure of personal information. 

So all that we know is this. On 9^th December 2020 Sally Holland from the Welsh office forwared to Bruce Adamson in Scotland an email from Rachel Thomas saying ‘not sure when you’re speaking to Bruce about this case’. The next three paragraphs are redacted as exempt from disclosure. The email ends ‘If you’d rather me speak to Bruce about it to save you getting up to speed on it all I’d be happy to so – appreciate he might want a Commissioner discussion of course but the offer is there if it assists’. 

On 16^th December 2020 emails were then exchanged between members of the Scottish officer to say ‘yes, let’s discuss. I’m clearer on what he’s looking for now I think’. Then a heavily redacted email which ends ‘Can we discuss tomorrow please?’

Conclusion

I have some sympathy with the need to exempt from disclosure material which represents the necessary ‘to and fro’ as people raise, discuss and refine issues of importance. I also understand the importance of maintaining confidentiality around legal advice. But it is very concerning that an organistion with the status of a Children’s Commissoner is clearly concerned that the nature of the discussion within its organisation and with the other offices may risk contributing to the ‘toxic nature’ of the debate. How could this be possible given that all who work there must be alive to the need ‘to keep the discussion focused on the issues and on the law rather than personalising them’?

I suspect there are two problems here. Given the nature and extent of institutional capture in the UK, individual staff members may have gone way beyond a focus on the law and engaged in moral castigation of those ‘hateful bigots’ who would seek to impede a child’s identification of their ‘authentic selves’. OR there is a realistion that simply commenting on the relevant law will be seen and seized upon by many as a ‘hateful’ ‘bigoted’ attack on the rights of an ‘exceptionally vulnerable’ minority. 

The person who made the request will now take it to the ICO. I will be interested to know if the reasons for refusal are upheld – I suspect they will be. It is fair enough to note that Bell v Tavistock will be the subject of further hearing before the Court of Appeal at the end of June. The time for detailed and thoughtful comment from the Commissioners will be when they have had time to process and understand the decision. 

But the comments made in the refusal letter are worrying as we see that the toxicity of this debate is clearly having a damaging impact on the ability of many to discuss the actual law and its impact on children. The ‘toxicity’ of course I believe comes from one ‘side’ only – the side which did not wish to discuss any of this, the side which cried ‘no debate’ at every opportunity, the side which is happy for children to submit to experimental medical treatment with long term consequences in order to support the validation of adult decisions about their ‘gender identity’. 

Victoria Climbie was tied up in a bin bag and left to die in a bath. After her death the doctors examining her could find not one part of her body that was left unmarked. She was murdered by two adults who were supposed to be looking after her and no one did anything to help her until it was far too late. Adults do terrible things to children. Sometimes they tell themselves that what they are doing is right and proper. Children need ALL of us to step up and protect them, and we ought to be confident in the reliance we place on those statutory bodies who are under legal obligation to do so. I hope that very soon after the Court of Appeal judgment in Bell v Tavistock– which ever way it goes – we will see clear commentary and recommendations in a joint report from all four of the Commissioners.