The unintended consequences of school closures during COVID-19 on children and young people’s physical health rights -what are they and how can they be mitigated?

ABSTRACT

This paper examines the unintended consequences of emergency school closures during the COVID-19 pandemic and explores the impact of these closures on children and young people’s United Nations Convention on the Rights of the Child (UNCRC) and wider physical health rights. It addresses how States Parties should address and balance these rights during a crisis. It then contextualises the school closures, using global data mainly collated by the Royal College of Paediatrics and Child Health (RCPCH), exploring the direct health risk to children and young people from COVID-19 and the risk they posed to the wider community, finding both low. It then draws on findings from the Children and Young People’s Commissioner, Scotland’s COVID-19 Independent Children and Young People’s Rights Assessment (ICRA) and wider literature identifying numerous unintended rights breaches, focusing on the rights breaches experienced by three particularly vulnerable groups of children and young people, namely those (i) at risk of physical or sexual violence; (ii) with additional support needs; and (iii) experiencing poverty and deprivation. Recommendations are made as to how to avoid breaching children and young peoples’ physical health rights in future emergency school closures.

KEYWORDS:

• UNCRC
• children
• young people
• health
• COVID-19
• school closures

Introduction

At the peak of the COVID-19 pandemic, 190 countries closed schools.¹ Schools, as recognised by the World Health Organisation Technical Advisory Group on Schooling during COVID-19,² provide children and young people with far more than education, particularly those living in vulnerable situations. For example, they protect children and young people against food insecurity; provide protection to children and young people at risk from violence and provide vital therapy support for disabled children and young people.² This paper explores the extent to which children and young people’s physical health rights to these protections were met during the Covid-19 pandemic. In doing so it adopts the definition of physical health rights used by the UNCRC Committee, namely the provision of:

timely and appropriate prevention, health promotion, curative, rehabilitation and palliative services, but also to a right to grow and develop to their full potential and live in conditions that enable them to attain the highest standard of health,³

as these rights relate to a child or young person’s body rather than their mind.⁴

The international law child framework, as will be seen, should have ensured this protection continued throughout the pandemic and provided children and young people protection from breaches of their physical health rights, but a combination of uncertainty as to the impact of COVID-19 on children and young people and the voices of children and young people not being heard when policy was being quickly developed, seems to have contributed to unintended but avoidable rights breaches.

International law child rights framework

The legal focus of this paper is the United Nations Convention on the Rights of the Child (UNCRC),⁵ but it should not be forgotten that children and young people are also protected alongside adults by other international human rights treaties, for example, the United Nations Convention on the Rights of Persons with Disabilities,⁶ by regional rights treaties⁷ and by domestic legislation.⁸ The UNCRC contains 54 Articles covering the civil, political, economic, social and cultural rights of everyone up to the age of 18 years and includes four core principles of: non-discrimination; best interests of the child; the right to life, survival and development; and the right to be heard. It is the most widely ratified human rights treaty having been ratified by 196 countries including every United Nations member except the USA. An international committee of independent experts monitor States Parties’ implementation of the UNCRC through a programme of periodic reports submitted by both the governments and civil society in each State Party. The UNCRC Committee also publish general comments explaining how the UNCRC should be implemented⁹ and statements on matters of particular concern, for example their April 2020 statement on COVID-19 (UNCRC Statement).¹⁰

The UNCRC Statement gets to the heart of addressing how States Parties should act in times of crisis. It recognises that international human rights law ‘exceptionally permits measures which restrict enjoyment of certain human rights in order to protect public health’.⁹ However, such measures must ‘only be imposed when necessary’, be ‘proportionate’ and ‘kept to the absolute minimum’.⁹ As will be seen, whilst there was significant uncertainty, legitimate questions remain as to whether the closure of schools, at least within the UK, met these three criteria. The importance of respecting the best interests of the child and the child’s right to be listened to, in both allocation of resources and measures taken, are also stressed in the UNCRC statement.⁹

The UNCRC Committee’s General Comment No.14 on best interests of the child¹¹ provides further guidance as to how States Parties should act when balancing the rights of children and young people against the competing rights of others. They stress:

the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned.¹⁰

Moreover, the decision-maker must weigh up the rights of all concerned bearing in mind that ‘the best interest of the child is a primary consideration’.¹⁰ The committee makes clear that the best interests of the child are a high priority ‘not just one of several considerations’. They conclude ‘a larger weight must be attached to what serves the child best’.¹⁰ The UNCRC Committee make clear that ensuring the best interests of children and young people should be at the forefront of States Parties planning and funding priorities even in times of emergency.

Contextualising the unintended consequences of school closures on children and young people’s physical health rights

Having established the international child rights duties States Parties face, three questions need addressing to contextualise the unintended consequences of school closures on children and young people’s physical health rights and to establish whether measures taken were necessary, proportionate and kept to the absolute minimum. These are: firstly, the direct risk posed to children and young people’s health by COVID-19; secondly, the risk children and young people pose to the community as spreaders of COVID-19; and thirdly how effective school closures are in preventing COVID-19 from spreading amongst the community. Whilst the picture is still evolving¹² these questions have been explored by scientists internationally throughout the pandemic. In the UK the RCPCH helpfully collected and evaluated that data. This paper starts by summarising and discussing their key findings.

Prevalence and severity of COVID-19 amongst children and young people

A clearer picture as to children and young people’s susceptibility to SARS-Cov-2 the virus that leads to COVID-19 has emerged during the pandemic, but uncertainty remains. As at 10th January 2021, the RCPCH reported that those under the age of 18 years, comprised 1–5% of total UK cases. They reported that few children and young people were infected by COVID-19. The RCPCH also reported that community surveillance suggested teenagers are more susceptible than younger children but still much less so than adults. Global studies also suggested that children and young people exposed to COVID-19 within the home are less likely than adults to contract the illness.¹¹ As at March 2021 the RCPCH were reporting that evidence globally suggested children and young people ‘may be less likely to acquire the disease.’¹³ A more nuanced picture had emerged by July 2021, with a global systematic review and meta-analysis drawing on ten international databases and including 90 studies conducted between December 2019 and April 2021showing that whilst children under the age of 10 years showed lower susceptibility to COVID-19 than adults, young people over the age of 10 years had comparable risk to adults.¹² As data suggested the numbers of children and young people affected by COVID-19 was low, prevalence of the disease amongst them would not seem to justify school closures. Severity of disease, however, needs consideration.

The RCPCH concluded as at March 2021 that when infected children and young people have milder symptoms or are asymptomatic, with very few (c.1%) developing severe or life-threatening disease.¹² They reported that child deaths from COVID-19 had been ‘extremely rare’, with mortality levels similar to child deaths from seasonal influenza when schools usually remain open, at around 0.01–0.1%.¹² The low risk of death from COVID-19 to both children and young people was also reported in the July 2021 global systematic review and meta-analysis.¹⁴ The available data would not seem to justify the global widespread school closures.

Children and young people from certain ethnic groups do, the RCPCH reported, seem to be both more at risk from contracting COVID-19 and of becoming seriously ill. A study published in the British Medical Journal looked at paediatric admissions to 260 hospitals in Scotland, England and Wales between January and July 2020, and identified 651 children and young people with COVID-19. Eighteen percent of the children and young people were admitted to critical care. Six died, all of whom were described as having ‘profound comorbidity’.¹⁵ Black children and young people were overrepresented, being ten percent of study participants, compared with 4.7% of children and young people in the general population across England and Wales and 1% in Scotland.¹⁴ Whilst noting this is in keeping with adult studies the authors acknowledged that the relatively high number of Black children and young people in the study may have been attributable to the prevalence of Black children and young people in the regions where the hospitals studied were located.

Global data supported by widespread community testing, analysed by the RCPCH, suggested that children and young people were less likely than adults to be infected with COVID-19.¹² An English study conducted between January and May 2020 swabbed 35,200 children and young people for SARS-Cov-2, the infection that leads to COVID-19. Four percent (1408) of the children and young people tested positive.¹⁶ During the latter part of 2020 the new variant of SARS-Cov-2, VOC 29212/01emerged. Whilst early results suggested this new variant was more infectious to the population as a whole, the RCPCH found, as at January 2021, no evidence suggesting that children and young people were more likely to contract the new variant than adults or be more severely infected.¹²

Children and young people’s role in spreading COVID-19

The RCPCH analysed global data to consider whether children and young people played a significant role in spreading COVID-19 to adults. The answer seemed to be ‘no’, although the RCPCH acknowledged that the exact role they played in transmitting COVID-19 was difficult to judge because child carriers are often asymptomatic.¹² The RCPCH reported several international studies, including studies in China,¹⁷ Israel,¹⁸ Switzerland,¹⁹ and an Australian multistate literature review²⁰ all suggesting that children and young people were unlikely to be the index cases, meaning at the centre of any cluster. Indeed, they reported that a child who tested positive for COVID-19 in a cluster in France was judged not to have infected anyone despite contact with more than 100 people.¹²

The evidence available perhaps begs the question as to why, at least in the second half of 2020, once data emerged that children and young people were not at significant risk of contracting COVID-19, becoming significantly ill or spreading it to adults, was a policy adopted internationally of closing schools? The question remains whether school attendance increased the risk of spreading COVID-19. The RCPCH data also addressed this question.

As the RCPCH reported an Irish study where 1155 contacts of six COVID-19 positive children and young people were traced found no evidence of onward transmission.²¹ Similar results were found in a Singaporean study.²² Indeed, RCPCH data seemed to suggest that schools posed a low risk of COVID-19 spread even when children and young people inadvertently attended whilst infected. A German study where the contacts made in-school by children and young people at least one day before 137 of them had symptoms of illness, (a time when they can be assumed to be infectious despite asymptomatic), were traced and tested. It found that six children and young people infected eleven others but no onward transmission beyond the eleven was found.²³ As the RCPCH reported Public Health England (PHE) collected data when 1.6 million mostly primary school children in England returned to school in June 2020. PHE identified 198 cases of COVID-19. When the index case was identified as a child a maximum of two further cases were identified compared with nine when the index case was an adult.

Despite this seemingly positive finding the RCPCH urged caution due to the risk posed of the virus being spread by asymptomatic children and young people and because of the difficulty of clearly establishing from whom an individual had caught the virus.²⁴

The UK government justified the closure of schools as necessary to reduce the R rate (the rate at which COVID-19 reproduced through the population) and to ‘protect the NHS’.²⁵ The UK government also cited the RCPCH acknowledging that the ‘overwhelming majority of children and young people still have no symptoms or very mild illness only.’²⁴ No reference was made to the RCPCH’s conclusion that children and young people in school seemed to play a minimum, if any, role in spreading COVID-19. It does seem that the decision of UK governments and globally to close schools²⁶ was extremely cautious perhaps influenced by the difficulty in knowing how many children and young people were asymptomatic carriers of COVID-19, despite the RCPCH suggesting that even in this situation COVID-19 was unlikely to be passed to adults. Later in the pandemic concerns about the unknown impact of newly emerging variants also seemed to have influenced government policy. This uncertainty was reflected in the minutes of the UK government’s Scientific Advisory Group for Emergencies (SAGE)²⁷ and in UK government policy. Prior to the first UK lockdown announced by Prime Minister Boris Johnson on 23rd March 2020, Johnson announced on 12th March 2020 ‘scientific advice is that closing schools could do more harm than good’.²⁸ Six days later, the UK Government Education Minister announced that schools across the UK would close.²⁶ There is also evidence in SAGE minutes during the first UK lockdown suggesting concerns about the knock on effect on the adult population of schools re-opening including a fear that it would lead to people returning to work and unspecified negative behavioural changes,²⁹ highly pertitent to the important question of balancing children and young people’s rights. As the pandemic progressed the serious negative impacts of school closures on children and young people became clearer, for example on 23rd August 2020 a joint statement was issued by the Chief Medical Officers of all four UK nations³⁰ stressing the low risk of harm to children and young people directly from COVID-19 and the risk of harm from prolonged school closures.³¹

However, the uncertainty and swift changes in UK government policy continued into 2021. In January 2021, the House of Commons Education Committee³² scrutinised school closures³³ questioning Dr Jenny Harries, England’s Deputy Chief Medical Officer and RCPCH then President Professor Russell Viner and others.³⁴ Professor Viner reported a ‘lot of uncertainty in the role of schools’ in the transmission of COVID-19 and Dr Harries talked of ‘uncertainty in the data’. Policy wise on 4th January 2021, primary school children in England, other than those in COVID-19 hotspots, returned to school but those same schools were closed the very next day at the start of another nationwide lockdown.²⁹

The cautious approach taken not just in the UK but by 190 states provides important context as this paper now moves on to explore the unintended consequences to children and young people’s health rights of school closures.

Unintended consequences of COVID-19 school closures on children and young people’s physical health rights

The Independent Child Rights Assessment (ICRA) commissioned during the COVID-19 first wave by the Children and Young People’s Commissioner Scotland,³⁵ identified numerous unintended consequences arising from COVID-19 school closures breaching children and young people’s UNCRC and wider physical health rights. The ICRA focused on Scotland where all schools closed during the first wave of the pandemic on 20th March 2020 and re-opened on 11th August 2020.³⁶ Scottish schools closed again on 4th January 2021 immediately following the Winter holiday. Secondary school pupils required to complete practical work for examinations and primary years P1-3³⁷ returned to school on 22nd February 2021. All remaining primary children and young people returned to school full-time on 15th March and secondary pupils part time.³¹ Children and young people of ‘keyworkers’ and ‘vulnerable children’ could continue to attend school during the school closures. Scottish Government left local councils with the final say as to the definition of ‘keyworkers,’ but indicated these included healthcare workers, teachers, and workers ‘without whom there would be a significant impact on Scotland’.³⁸ ‘Vulnerable children’ were defined by Scottish Government to include:

… those on the child protection register, those who are looked after [by the state], and those on the edge of care; those in receipt of free school meals who cannot be provided with meals at home; those who have complex additional support needs; and those affected by poverty and deprivation.³⁹

Scottish Government estimate vulnerable children and young people to number about 97,000 representing 10% of the population under the age of 18 years.³³ As Scottish Government itself recognised³³ the hardships of the COVID-19 pandemic such as job losses, illness, bereavement, and isolation significantly increased pressures on families leading to increased numbers of children and young people falling within the definition. School closures meant children and young people did not come to the attention of support services. Others will have experienced breaches of their health rights but not come within Scottish Government’s definition of vulnerable, for example, children and young people with additional support needs requiring support not deemed ‘significant’.

While having a Scotland focus all the issues identified in the ICRA and discussed in this paper have relevance globally. This paper will now discuss key breaches⁴⁰ of physical health rights identified in the ICRA³⁰ and the children and young people impacted before making recommendations as to how to mitigate similar breaches in future emergencies.

Breaches of physical health rights: ICRA findings

The UNCRC establishes several rights protecting children and young people’s physical health. Moreover, as the UNCRC Committee make clear in their General Comment No.15, ‘the right to health is indispensable for the enjoyment of all the other rights in the Convention’.² Article 24 UNCRC, which contains the child’s right to the highest attainable standard of health, is just one UNCRC right directly protecting children and young people’s physical health. It encompasses several elements pertinent to school closures in addition to the right to the highest standard of health possible rights to adequate nutritious food and water and access to health education.⁴

The ICRA identified several ways children and young people’s UNCRC health rights and wider health rights were breached by COVID-19 school closures. There is not space in this paper to discuss all potential breaches. Three groups of children and young people who faced particularly significant breaches are discussed. These are children and young people (i) at risk of physical and sexual violence, (ii) with additional support needs, and (iii) experiencing poverty and deprivation. The intersectionality of children and young people vulnerable to rights breaches means that there is overlap between these three groups and within each group: for example, children and young people from Black, Asian, and Minority Ethnic backgrounds who are disproportionately likely to face rights breaches.

Children and young people at risk of physical and sexual violence

Being at risk of, and experiencing, physical and sexual violence during childhood not only causes immediate physical and mental trauma but also has serious long-term effects on children and young people’s physical health, increasing risk of physical illness such as heart disease and cancer.⁴¹ The ICRA found evidence of increases in violence and abuse towards children and young people during the COVID-19 pandemic,³⁰ for example, in the evidence given by Scottish Non-Governmental Organisation (NGO) Aberlour, to the Scottish Parliament’s Inquiry on Vulnerable Children in May 2020, which reported an increased risk to children and young people through a lack of direct contact with their usual support networks and a difficulty in assessing children at risk from violence remotely.⁴² Physical and sexual abuse not only breaches a child’s Article 24 right to the highest attainable standard of health, but also the Article 19 UNCRC right to protection from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’,⁴ with sexual abuse also breaching the Article 34 UNCRC right to protection from sexual exploitation.⁴ At the extreme, when abuse results in a child’s death, Article 6 UNCRC right to life will also be breached if the States Party has not taken all steps possible to avoid the death.⁴

With the UK being a party to the European Convention for Human Rights (ECHR)⁶ any physical or sexual abuse suffered by a child or young person would also be a potential breach of their ECHR rights. The ECHR provides no express right protecting an individual’s health, but the European Court of Human Rights has widely interpreted Article 8 ECHR,⁶ the right to a private and family life, to include the protection of an individual’s physical integrity and health including protection from violence.⁴³ Article 3 ECHR, a right to protection from torture and inhuman or degrading treatment, is also breached by physical and sexual violence.⁶ The European Court of Human Rights demands that treatment meet ‘a minimum level of severity’. Applications under Article 3 often fail to meet the requisite severity in the eyes of the Court. Child sexual abuse has, however, been held to breach Article 3 especially when prolonged and the States Parties were viewed as not doing enough to prevent it.⁴⁴ Like the UNCRC, the ECHR also gives a right to life in Article 2 ECHR which is potentially breached if violence to a child or young person resulted in their death and insufficient steps by the States Parties had been taken to prevent the death.⁶

School closures inevitably increased the amount of time children and young people at risk of physical or sexual abuse in the home were exposed to abuse. It also isolated children and young people from trusted adults within their school from whom they could seek help or who might recognise signs of abuse and take safeguarding measures. Children and young people found it both harder to report and harder to escape domestic abuse during COVID-19 school closures.³⁵

Children and young people with additional support needs including disabled children and young people

Despite disabled children and young people and those with significant support needs being identified by Scottish Government as needing additional support and services during COVID-19 school closures the ICRA³⁰ found evidence of significant breaches of their physical health rights arising from COVID-19 school closures. Children and young people needing physical, occupational and speech and language therapy often receive it in school. The Family Fund, who support families of disabled children and young people conducted two surveys in Spring 2020 into the impact of COVID-19 restrictions: the first of 1986 families raising 2700 disabled or seriously ill children; and the second of 2531 families raising 3279 disabled or seriously ill children. They found that 78% of families reported a reduction in occupational therapy for their disabled child or young person; 77% reported a reduction in speech and language therapy; and 76% reported a reduction in physiotherapy.⁴⁵ The potential short- and long-term impacts on a child or young person’s right to the highest attainable standard of health of not receiving therapy are too numerous for this paper. They will vary depending on the individual and the therapy missed. However, it could mean that windows of opportunity to develop skills such as fine motor skills are lost; it may lead to short- and long-term pain. Paediatricians reported that children and young people with neuro-muscular conditions were presenting in March 2021 with increased hip dysplasia and other signs of physical deterioration having missed physiotherapy during COVID-19 school closures.⁴⁶ Missing speech and language therapy could significantly impact on a child or young person’s ability to eat and drink, impacting long term on nutritional intake and wellbeing and also on their ability to communicate reducing their opportunity to be involved in health decisions, a further breach of Article 24 UNCRC⁴ as well as a potential breach of Article 12 UNCRC⁴ the right of a child or young person to express her or his views. This in turn with the child or young person’s views being excluded could make best interests health decisions more problematic, leading to potential breaches of Article 3 UNCRC.⁴

The inability of disabled children and young people to access therapy during COVID-19 school closures also breached their Article 23 UNCRC rights which protects the right of a disabled child to a ‘full and decent life,’ and ‘special care’.⁴ Disabled children and young people’s health rights under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)⁵ were also potentially breached, including Article 7 UNCRPD the right of a disabled child or young person to the full enjoyment of all rights⁵ and Article 25 UNCRPD the right to the highest attainable standard of health.⁵ Article 20 UNCRPD the right which ensures ‘personal mobility with the greatest possible independence’⁵ and Article 26 UNCRPD the right to habilitation and rehabilitation were also potentially breached.⁵ Both Articles 20 and 26 include the right to access assistive technologies and mobility devices, activities usually undertaken in school supported by speech and language and occupational therapists.

Children and young people living in deprivation and poverty

Children and young people living in poverty faced several potential breaches of their UNCRC physical health rights during COVID-19 school closures. Between January and May 2020 there was a 45% increase in households with children and young people claiming the state funded social security benefit, universal credit.⁴⁷ Across the UK, Gypsy/Traveller, Bangladeshi and Black pupils are disproportionately eligible for free school meals. In Scotland 89,000 pupils (17%) claim free school meals.⁴⁰ Free school meals are a hot meal provided by the State to state educated children and young people whose parents receive certain income related state benefits or if the child or young person receives the benefit themselves. Since 2014 free school meals have also been provided to all state educated children in the first three years of primary school regardless of income.⁴⁸ Since August 2021 they are also provided regardless of income to all state educated children in Scotland in the first five years of primary school.⁴⁹

The ICRA³⁰ found that even when families received food packages or direct financial support to replace school meals, these were inadequate.³⁵ The Family Fund Impact of COVID-19 study found that 46% of families struggled to access food.³⁸ Beyond the ICRA findings a UK-wide study of 635 children and young people eligible for free school meals found that 49% of children and young people did not receive a free school meal or equivalent during April 2020.⁵⁰ The study included 55 individual participants from Scotland 36 of whom (65.59%) received no meal or equivalent.

A lack of access to nutritious food is associated with long- and short-term negative health outcomes including: hunger leading to headaches; stomach aches and dizziness; increased hospitalisation; anaemia; asthma; dental caries and poor bone health.⁵¹ Children and young people who could not access free school meals were also found to be more likely to eat calorie dense, high fat and sugary foods, associated with long term risks of obesity, diabetes, and heart disease when able to access food.⁴⁴ Exposing children and young people to these health risks potentially breaches their physical health rights. It undermines their Article 24 UNCRC right, especially as the right contains the express right to access nutritious food.⁴ Article 27 UNCRC a child or young person’s right to an adequate standard of living is also potentially breached; indeed, this includes a duty imposed on States Parties to provide the food when necessary.⁴

Children and young people facing deprivation and poverty, especially fuel poverty,⁵² are also most likely to be living in poor housing conditions detrimental to health, especially those with long-term conditions such as respiratory illnesses.⁵³ The COVID-19 school closures meant children and young people spent more time in these poor conditions. This inevitably led to breaches in their Article 24 UNCRC⁴ rights and Article 27, a child or young person’s right to adequate housing.⁴

Disabled persons were among those disproportionately living in poverty.⁵⁴ A disabled child or young person’s right to support as a disabled child or young person (Article 7 UNCRPD) to their highest attainable standard of health (Article 25 UNCRPD) and to an adequate standard of living (Article 27) were all therefore potentially breached by COVID-19 school closures.

Having highlighted key potential breaches of physical health rights resulting from COVID-19 school closures and the impact on key groups of children and young people this paper will now consider how these potential breaches could have been and might in any future emergencies be mitigated.

Discussion and consideration of mitigating breaches of children and young people’s rights during school closures

As was seen earlier, available data seemed to suggest that whilst the risk to and posed by children and young people of COVID-19 was low there was a great deal of uncertainty. The minutes of the SAGE⁵⁵ meetings⁵⁶ suggest that whilst the negative impacts on children and young people’s health and health rights were a factor in UK government decision making, this seems to only to have happened from summer 2020 onwards and the picture then became uncertain as new variants emerged. It is also unclear how much weight was given to breaches of children and young people’s health rights in SAGE and wider deliberations. Whilst acknowledging SAGE are briefed by the Children’s Task and Finish Working Group (CTFWG), Professor Viner the RCPCH then president, a member of both groups, appears to be the one SAGE member out of eighty-seven⁵⁷ with expertise in children and young people. Indeed, Professor Viner also seems to be the only CTFWG member with any obvious expertise in children and young people.⁵⁸ Scottish Government has also received additional scientific advice throughout the pandemic from the Scottish Government COVID-19 Advisory Group. Again, none of the Group appears to have any obvious expertise in children and young people.⁵⁹ This group also received additional information from June 2020 when the Scottish Government established its COVID-19 Advisory Sub-Group on Education and Children’s Issues with its Chair sitting on Scottish Government’s COVID-19 Advisory Group.⁶⁰ However, there seems to be no evidence in the sub-groups’ minutes that children and young people were involved in this process.⁵⁰ It is perhaps then not surprising that there were significant unintended consequences of COVID-19 school closures on children and young people’s health rights. Suggestions are made later as to how this might be remedied in future.

The impact of COVID-19 on government finances has been widely reported.⁶¹ The UK Office of National Statistics reported that public sector net borrowing ‘is estimated to have been £8.8 billion in January 2021, £18.4 billion more than in January 2020 … the highest January borrowing since monthly records began in January 1993’.⁶² Whilst Article 4 UNCRC recognises that lack of resources can hamper implementation of the UNCRC, this provision is for developing nations not wealthy ones like the UK. The UNCRC Committee also make clear in General Comment No. 5 that ensuring children and young people’s rights under the UNCRC is a legal obligation and should not be seen as ‘charitably bestowing favours on children and young people.’⁶³ The importance of the duty on States Parties under Article 2 UNCRC to ensure all UNCRC rights are upheld ‘without discrimination of any kind’ is also highlighted.⁴ Derogating from States Parties obligations due to the economic cost of COVID-19 was not permissible.

The UNCRC Committee recommend States Parties use child rights impact assessments (CRIA) to ensure new policies and legislation meet their obligations.⁵³ The ICRA found no evidence that either the UK or Scottish Government conducted CRIA before introducing legislation allowing school closures in March 2020.³⁰ Scottish Government did conduct a subsequent CRIA in July 2020 in respect of COVID-19 school closures and the imminent re-opening of schools. This notably recognised the unintended negative impacts on children and young people’s physical health rights.⁶⁴ Whilst acknowledging Scottish Government was acting in unprecedented circumstances, arguably, as China announced closures on 26th January 2020⁶⁵ and as at 4th March 2020 more than two weeks before the first Scottish school closures, 290 million children and young people across twenty-two nations⁶⁶ were out of school world-wide, Scottish (and indeed the UK) Government should have perhaps anticipated the need for a CRIA. A recommendation is made later as to how CRIA might be made in a tight timescale.

Whilst unintended, the negative impacts of COVID-19 school closures on children and young people’s physical health rights were not unforeseeable. Indeed, the breaches documented here are all outcomes which, if asked, professionals and voluntary organisations working with children and young people, child rights experts, and parents and young people with lived experience would all have been able to predict enabling Scottish and UK government to more effectively prevent the breaches which occurred.

Recommendations

The author makes the following recommendations as a starting point to prevent breaches of children and young people’s physical health rights in any future emergency school closures:

1. Mention was made above of the limited professional expertise in children and young people on the UK SAGE and CTFWG committees and Scottish Government COVID-19 Advisory Group and Advisory Sub-Group. It is recommended that States Parties’ emergency committees include experts in children and young people’s rights. Including at least one of the four UK Children and Young People’s Commissioners on each committee would be a good start. Including more scientists with a child focus would also help ensure that children and young people’s rights are not overlooked in discussions.

2. The Scottish Government cited lack of time as the reason why a CRIA was not conducted prior to school closures in March 2020. Whilst this paper has argued that this is perhaps a weak argument it is recommended that standing committees be established by States Parties of teams of experts, including young people with lived experience, who can be called upon at short notice, if needed within hours, to advise on the potential child rights implications of government policy and proposals.

3. States Parties should ensure personal protective equipment is available to therapists working with disabled children and young people and COVID-19 safe transport, allowing therapy sessions to continue during school closures. Provision will also be needed if parent-carers cannot escort and support their child due to caring for other children.

4. States Parties should provide clearer pathways of support for children and young people at risk of abuse and violence and mechanisms for identifying such children and young people, including those at risk for the first time. The detail of such pathways should be designed by suitably experienced experts including young people with lived experience.

5. States Parties should provide more effective methods of both identifying children and young people going hungry due to lack of a school meal and living in unhealthy living conditions and much more effective solutions. Again, experts working with in this area and young people with lived experience are best placed to identify appropriate solutions.

6. States Parties should only close schools when strictly necessary and proportionate, and when in the best interests of the child. To keep schools open COVID-19 safe measures now widely used⁶⁷ and those recommended by the WHO Technical Advisory Group2 should be adopted. These include, for example: physical distancing; appropriate testing of young people; weather permitting, outdoor teaching; and teaching in bubbles to avoid multiple interactions.

Whilst available evidence to-date suggests the direct impact of COVID-19 on children and young people’s physical health was minimal, the unintended consequence on children and young people’s physical health and health rights was considerable and potentially long-term. It is not clear that measures taken, at least in the UK were ‘necessary’, ‘proportionate’ and ‘kept to the absolute minimum’.⁹ The lessons of COVID-19 for States Parties will be many, but perhaps the single most important lesson from a child’s rights perspective is that listening to the voice of children and young people with lived experience and experts and others advocating for children and young people early on and throughout the emergency has the potential to avoid, or at least mitigate, breaches of children and young people’s rights caused by emergency school closures.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Zoe Picton-Howell

Zoe Picton-Howell is a tutor of medical education at University of Edinburgh Medical School, a solicitor and healthcare law academic and director of the Adam Bojelian Foundation which works directly with NHS organisations and staff to help improve their understanding of healthcare law and ethics. Zoe has a PhD from University of Edinburgh Law School which explored health professionals understanding of law and ethics when making end-of-life decisions for disabled children and a LLM in Human Rights from the Glasgow Graduate Law School. Zoe has severed on numerous national child health and rights advisory, investigative and professional guidance drafting committees.

Notes

1 UNESCO, UNESCO Figures Show Two Thirds of an Academic Year Lost on Average Worldwide to COVID-19 School Closures (2021).

2 WHO, European Technical Advisory Group on School during COVID-19, Recommendations, June 2021.

3 Committee of the Rights of the Child, ‘General Comment No.15 (2013) on the right to the enjoyment of the highest attainable standard of health (art 24)’, United Nations, CRC/C/GC/15, 17 April 2013, para II A.

4 Mental health rights are address [insert details of relevant paper in special journal].

5 UN General Assembly, ‘Convention on the Rights of the Child’, 20 November 1989, United Nations, Treaty Series, vol. 1577.

6 UN General Assembly, Convention on the Rights of Persons with Disabilities, United Nations, adopted by the General Assembly 24 January 2007.

7 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 & 14, 4th November 1950.

8 HM Government, The Equality Act 2010, C.15.

9 Committee of the Rights of the Child, ‘General Comment No.15 (2013) on the right to the enjoyment of the highest attainable standard of health (art 24)’, United Nations, CRC/C/GC/15, 17 April 2013.

10 Committee of the Rights of the Child, Statement: ‘The Committee on the Rights of the Child warns of the grave physical, emotional and psychological effects of the Covid-19 pandemic on children and calls on States to protect the rights of children’, United Nations, 8th April 2020.

11 Committee of the Rights of the Child, ‘General Comment No.14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art 3)’, United Nations, CRC/C/GC/14 (2013).

12 C. Stokel-Walker, ‘What We Know About COVID-19 Reinfections so Far’, BMJ 372, no. 99 (2021), https://pubmed.ncbi.nlm.nihm.gov/33468457/ (accessed March 30, 2021).

13 Royal College of Paediatrics and Child Health, Research evidence summaries (RCPCH, 2020), last updated 12th March 2021, https://www.rcpch.ac.uk/resources/covid-19-research-evidence-summaries (accessed March 30, 2021).

14 O. Irfan and others, Risk of Infection and Transmission of SARS-Cov-2 Among Children and Adolescents in Households, Communities, and Educational Settings: A Systematic Review and Meta-analysis’, Journal of Global Health 11 (2021): 05013.

15 O. V. Swann, and others, ‘Clinical Characteristics of Children and Young People Admitted to Hospital with Covid-19 in United Kingdom: Prospective Multicentre Observational Cohort Study’, BMJ 370 (2020): m3249. doi:10.1136/bmj.m3249.

16 S. N. Ladhani and others, ‘COVID-19 in Children: Analysis of the First Pandemic Peak in England’, Archives of Disease in Childhood 105, no. 12 (2020), https://adc.bmj.com/content/105/12/1180 (accessed March 30, 2021).

17 X. Pan and others, ‘Asymptomatic Cases in a Family Cluster with SARS-CoV-2 Infection’, The Lancet Infectious Diseases 20, no. 4 (2020): 410–1, http://www.thelancet.com/journals/laninf/article/PIIS1473-3099(20)30114-6/fulltext (accessed March 30, 2021).

18 E. Somekh and others, ‘The Role of Children in the Dynamics of Intra Family Coronavirus 2019 Spread in Densely Populated Area’, The Pediatric Infectious Disease Journal 39, no. 8 (2020), https://journals.lww.com.pidj/Fulltext/2020/08000/The_Role_of_Children_in_the_Dynamics_of_Intra.30.aspx (accessed March 30, 2021).

19 K. M. Posfay-Barbe and others, ‘COVID-19 in Children and the Dynamics of Infection in Families’, Pediatrics 146, no. 2 (2020), https://pediatrics.aappublications.org/content/pediatrics/146/2/e20201576.full.pdf (accessed March 30, 2021).

20 Y. Zhu and others, ‘Children are Unlikely to Have Been the Primary Source of Household SARS-CoV-2 Infections’, Researchgate (2020), https://www.researchgate.net/publication/340287986_Children_are_unlikely_to_have_been_the_primary_source_of_household_SARS_CoV2_infections (accessed March 30, 2021).

21 L. Heavey and others, ‘No Evidence of Secondary Transmission of COVID-19 from Children Attending Schools in Ireland’, European Communicable Disease Bulletin 25, no. 21 (2020), https://pubmed.ncbi.nlm.nih.gov/32489179/ (accessed March 30, 2021).

22 C. F. Yung and others, ‘Novel Coronavirus 2019 Transmission Risk in Educational Settings’, Clinical Infectious Diseases 72, no. 6 (2020): 1055–1058, https://pubmed.ncbi.nlm.nih.gov/32584975/ (accessed March 30, 2021).

23 J. Ehrhardt and others, ‘Transmission of SARS-CoV-2 in Children Aged 0–19 Years in Childcare Facilities and Schools after their Reopening in May 2020, Baden-Württemberg, Germany’, Eurosurveillance 25, no. 36 (2020), https://www.eurosurveillance.org/content/10.2807/1560-7917.ES.2020.25.36.2001587 (accessed March 30, 2021).

24 S. A. Ismail and others, ‘SARS-CoV-2 Infection and Transmission in Educational Settings: Cross-sectional Analysis of Clusters and Outbreaks in England’, The Lancet Infectious Disease 21 (2020): 344–53, https://www.thelancet.com/pdfs/journals/laninf/PIIS1473-3099(20)30882-3.pdf (accessed March 30, 2021).

25 UK Gov, ‘Restricting Attendance During the National Lockdown: Schools, Guidance for all Schools in England’, Department for Education, Feb 2021, p. 6.

26 As education is a devolved matter the decision to close schools in Scotland, Wales and Northern Ireland were made by the devolved administrations in each of those nations.

27 Gov.UK, ‘SAGE 4–74 Minutes Coronavirus (COVID-19) Response,’ 4th February 2020–22nd December 2020, SAGE minutes, https://www.gov.uk/government/collections/scientific-evidence-supporting-the-government-response-to-coronavirus-covid-19#meeting-minutes-and-supporting-papers (accessed March 28, 2021).

28 Mercer D and others, ‘COVID Crisis Learning the Lessons Timeline’, Sky News, February 2021.

29 Gov. UK, SAGE 31 minutes Coronavirus (COVID-19) response 1st May 2020, https:www.gov.uk/government/publications/sage-minutes-coronavirus-covid-19-resonse-1-may-2020 (accessed March 30, 2021).

30 England, Scotland, Wales, and Northern Ireland.

31 Gov.UK, ‘Press Release Statement from the UK Chief Medical Officers on schools and childcare reopening’, Department of Health and Social Care, 23rd August 2020, https://www.gov.uk/government/news/statement-from-the-uk-chief-medical-officers-on-schools-and-childcare-reopening (accessed 30th March 2021).

32 As education is a devolved matter within the UK, the Westminster government, overseen by the House of Commons, decides education policy within England only.

33 House of Commons, ‘Education Committee Scrutinises the Science Behind School Closures’, House of Commons Education Committee Formal Minutes of the Committee Session, 2019–21.

34 Osama Rahman, Chief Scientific Adviser, Department of Education and Dr Douglas Hargreaves, Deputy Chief Scientific Adviser, Department of Education.

35 Children’s and Young People’s Commissioner Scotland, Independent Children’s Rights Impact Assessment on the Response to COVID-19 Scotland, (2020), appendix 1.

36 STV, ‘Key Dates in Scotland’s Covid Battle a Year on from First Death’, STV, 13th March 2021, https://news.stv.tv/Scotland/key-dates-in-scotlands-covid-battle-a-year-on-from-first-death?amp (accessed March 30, 2021).

37 Children aged 5–7 years of age.

38 Scottish Government, Childcare provision for key workers, 20th March 2020, https://www.gov.scot/news/childcare-provision-key-workers/ (accessed March 30, 2021).

39 Scottish Government, Advice and Guidance, Coronavirus (COVID-19) School and early learning closures – guidance about key workers and vulnerable children, 31st March 2020, https://www.webarchive.org.uk/wayback/archive/20200816084856/http://www.gov.scot/publications/coronavirus-guide-schools-early-learning-closures/pages/closures/ (accessed March 27, 2021).

40 It is only possible in a paper of this length to consider some of the health rights breached and the children impacted. Physical health rights identified early in the pandemic by civil society as having been breached and these breaches having significant impact on children are chosen for discussion.

41 P. Lanier and others, ‘Adverse Childhood Experiences and Child Health Outcomes: Comparing Cumulative Risk and Latent Class Approaches’, Maternal and Child Health Journal 22 (2018): 288–287, https://doi.org/10.1007/s10995-017-2365-1 (accessed March 30, 2021) & K. Moore and others, ‘Adverse Childhood Experiences & Adolescent Well-being: Do Protective Factors Matter?’, Child Indicators Research 9 (2016): 299–316, https://doi.org/10.1007/s12187-015-9324-4 (accessed 30th March 2021).

42 Scottish Parliament, ‘Aberlour Response to the Scottish Parliamentary Education and Skills Committee Inquiry, Vulnerable Children During the Coronavirus Outbreak’, 6th May 2020, https://archive2021.parliament.scot/S5_Education/General%20Documents/20200507Aberlour.pdf (accessed March 30, 2021).

43 Campbell and Cosans v The United Kingdom, ECHR 25, 25th February 1982, Application 7743/76.

44 Z and Others v The United Kingdom, 2001, Application 29092/95.

45 Family Fund, Impact of Covid-19 Research, UK Findings, May 2020, https://www.familyfund.org.uk/Handlers/Download.ashx?IDMF=0dcffffe-f803-41de-9a4a-ccc8fef282d4 (accessed March 30, 2021).

46 K. Horridge, ‘Equal Outcomes for All Disabled Children?’, The sixth Adam Bojelian Memorial Talk, March 2020, https://theadsfoundation.org/adam-bojelian-memorial-talks/ (accessed October 27, 2021).

47 BBC News, Reality Check, Free School Meals, How Many Children Can Claim Them?, 26th October, 2020, https://www.bbc.co.uk/news/54693906 (accessed May 17, 2021).

48 House of Commons, Library Research Briefing: School Meals and Nutritional Standards (England), 23rd June 2021.

49 Scottish Government, News, Free School Meals, 5th June 2021, https://www.gov.sot/news/free-school-meals-1 (accessed October 27, 2021).

50 A. A. Parnham and others, ‘Half of Children Entitled to Free School Meals Did Not Have Access to the Scheme during COVID-19 Lockdown in the UK’, Public Health 187 (2020): 161–164, ISSN 0033-3506, https://doi.org/10.1016/j.puhe.2020.08.019 (accessed March 28, 2021).

51 M. Aceves-Martins and others, ‘Child Food Insecurity in the UK: a Rapid Review’, Public Health Research 6, no. 13 (2018): 1–162, https://doi.org/10.3310/phr06130 (accessed March 25, 2021).

52 Fuel poverty is defined by Liddell having to spend more than 10% of the family income to heat the living room to 21°C and bedrooms to 18°C.

53 C. Liddell, Policy Briefing-The Impact of Fuel Poverty on Children (Belfast: Ulster University), https://pure.ulster.ac.uk/ws/files/11789864/The_Impact_of_Fuel_Poverty_on_Children_Feb_09%5B1%5D.pdf (accessed 11th May 2021).

54 NHS Health Scotland, Child Poverty: Scale, trends and distribution in Scotland, June 2019, www.healthscotland.scot/publications/child-poverty-scale-trends-and-distribution (accessed March 30, 2021).

55 The Scientific Advisory Group for Emergencies (SAGE) provides scientific and technical advice to support UK government decision making during emergencies.

56 Gov.UK, SAGE 4–74 Minutes Coronavirus (COVID-19) response, 4th February 2020–22nd December 2020, https://www.gov.uk/government/collections/scientific-evidence-supporting-the-government-response-to-coronavirus-covid-19#meeting-minutes-and-supporting-papers.

57 Gov. UK, Transparency data. List of participants of SAGE and related sub-groups, updated 22nd February 2021, https://www.gov.uk/government/publications/scientific-advisory-group-for-emergencies-sage-coronavirus-covid-19-response-membership/list-of-participants-of-sage-and-related-sub-groups (accessed March 30, 2021).

58 Seven participants of the Children’s Task and Finish Working Group have not given the UK government permission to name them, so potentially one or more of these seven could have relevant expertise.

59 Scottish Government, COVID-19, Advisory Group, undated, accessed 27th March 2021, https://www.gov.scot/groups/scottish-government-covid-19-advisory-group/ (accessed March 30, 2021).

60 Scottish Government, Coronavirus (COVID 19): Advisory Sub-Group on Education and Children’s Issues minutes: 23 June 2020.

61 King B, ‘Budget 2021: How Much Will it Cost the UK and How Will We Pay?’ BBC News, 3rd March 2021, https://www.bbc.co.uk/news/business-52663523 (accessed March 30, 2021) and D. Harari and M. Keep, House of Commons Library, Coronavirus Economic Impact, House of Commons Library, 24th September 2021, https://researchbriefings.files.parliament.uk/documents/CBP-8866.pdf (accessed October 27, 2021).

62 Office of National Statistics, Public sector finances, UK: January 2021, Gov, UK, 19th February 2021, https://www.ons.gov.uk/economy/governmentpublicsectorandtaxes/publicsectorfinance/bulletins/publicsectorfinance/january2021 (accessed March 28, 2021).

63 Committee on the Rights of the Child, General Comment No.5 (2003) General Measures of Implementation of the Convention on the Rights of the Child, United Nations, 27th November 2003, CRC/GC/2003/5.

64 Scottish Government, Impact Assessment Coronavirus (COVID-19) Closure and reopening of schools- children’s rights and wellbeing impact assessment, 30th July 2020, https://www.gov.scot/publications/childrens-rights-wellbeing-impact-assessment-closure-reopening-schools-part-covid-19-recovery-process-scotland/ (accessed March 30, 2021).

65 X Hong, ‘China’s state council extends spring festival holiday’, China Daily, 27th January 2020, https://www.chinadaily.com.cn/a/202001/27/ws5e2e0f0ea31012821727356b.html (accessed March 29, 2021).

66 UNESCO, 290 million students out of school due to COVID-19: UNESCO releases first global numbers and mobilises response, 4th March 2020, https://en.unesco.org./news/290-million-students-out-school-due-covid-19-unesco-releases-first-global-numbers-and-mobilizes (accessed March 27, 2021).

67 Scottish Government, Publication- Advice and Guidance, Coronavirus (COVID-19) guidance on reducing the risks in schools, 24th March 2021, https://www.gov.scot/publications/coronavirus-covid-19-guidance-on-reducing-the-risks-in-schools/ (accessed March 30, 2021).