In mid-December, the London Boroughs of Greenwich, Waltham Forest and Islington sought to close schools for face-to-face teaching except for children of key workers and those designated as vulnerable. The government responded with strong criticism of this “unilateral action” and proceeded for the first time to deploy its education-related powers under the Coronavirus Act 2020, forcing the authorities to back down.
Further strife was to come over the school holidays. On 30th December, having announced a two-week delay to the opening of secondary schools in England, Education Secretary Gavin Williamson stated that primary schools in 50 local authorities in London and south England would end in-person teaching for most students, only to expand the closures under pressure of legal action and intense lobbying by interested parties. A week later, the national lockdown required all schools in England to stop face-to-face teaching for the majority of students.
Several unions are now pushing for early years pre-school education, including nurseries, to close to most children, while the Early Years Alliance is demanding the government explain why it is safe for early years settings to be open to all children when schools are not. The situation has frequently been presented as one of a conflict of interests: those of children—their wellbeing, education and mental health—against the concerns of education workers and the broader community. However, a deeper and certainly more productive way of viewing the matter is as a classic conflict of human rights.
School closures impact on a wide range of children’s rights set out in international human rights treaties. These are rights that the UK government must comply with under international law, although they cannot be relied on directly as the basis for legal actions before the national courts unless incorporated into domestic law.
The United Nations Convention on the Rights of Child (which the UK ratified in 1991) is key here. Closing schools for face-to-face teaching has an immediate impact on children’s right to education, one that is particularly severe for those who face digital exclusion or for whom online learning is neither accessible nor appropriate. During the last lockdown, losing access to school meals deprived many children of their right to adequate nutritious food. Children living in poor-quality housing spent extensive time in conditions inconsistent with their right to a standard of living adequate for their development. Social isolation undermined their right to the highest attainable standard of mental health, while school closures increased vulnerability to different kinds of abuse at a time of reduced child protection services. This ran contrary to the protection from all forms of violence, injury or abuse that children are entitled to under international human rights law. Nor were these effects experienced equally: poor, disabled and socially vulnerable children suffered disproportionately.
Despite all this, the current closure of schools is undoubtedly justifiable in human rights terms: the UN Committee on the Rights of the Child—the body responsible for monitoring the implementation of the Convention, including by the UK—has stated that “international human rights law exceptionally permits measures that may restrict the enjoyment of certain human rights in order to protect public health.” These restrictions must be imposed only when necessary, be proportionate and kept to an absolute minimum. There can be little doubt that the government’s decision to close schools in England met this requirement, given the infection rate and the risks posed to the rights of children, as well as school staff.
Why isn’t the simplest solution to these child rights issues to reopen schools? Because early reopening without adequate risk mitigation and protection measures raises clear threats to children’s rights to the highest attainable standard of health, and, in a few cases, to life and development. Given that the health risks faced by certain groups of children appear higher than for others (including BAME children and those with underlying health conditions), questions of non-discrimination and the requirement that states take targeted measures to protect children in vulnerable situations during Covid-19 also arise. Government plans with regard to mass testing may ameliorate the some of the human rights risks posed but such testing raises human rights issues itself—around informed consent, the potentially stigmatising effects of false positives and threats to human rights caused by false negatives—assuming it can even be rolled out efficiently.
Unfortunately, there is also ample evidence that opening schools for face-to-face teaching for all children will also have implications for the health and wellbeing—and potentially the survival—of school staff, parents and household contacts. All of these individuals also enjoy the rights to life and the highest attainable standard of health under international human rights law. Education staff have the right to safe and healthy work conditions. Then there is the threat posed to the rights of the broader community as a whole by the resultant increased infection rate.
So how do we address this conflict of rights?
All decision-making involving tensions or conflicts between rights requires a balancing exercise.
Thankfully, human rights law provides key steers for decision-makers. Children’s rights in the context of school access cannot be used to justify avoidable harms to the rights to life, health and freedom from discrimination of others. Human rights law does not conceptualise children’s rights as trumps. That said, children’s social vulnerability and their extremely limited opportunities to take part in decision-making on education (despite their human right to express their views) mean their rights have to be given special attention and priority, in line with Convention requirements that children’s best interests should be a primary consideration in all actions concerning them. Furthermore, children are embedded in their communities. They and their rights do not exist in isolation from other right-holders and should not be considered in isolation from them.
Like good government, striking a balance between human rights requires decision-making to be based on the best possible evidence, whether health, social or economic. Policies must be carefully justified in light of alternatives. Losses to particular groups must be explicitly acknowledged and mitigated to the greatest extent possible.
Rather than dismissing them as beating sticks wielded in court, the government should seize the opportunity human rights present as a framework for proactive, reasoned decision-making. They can and should be used to shape and evaluate government efforts to render schools safe for a spring reopening—as well as the measures necessary to secure the rights of children, their families, education staff and the broader community in the interim.
