One of the principle aims of the Children Act 1989 was to ensure that more attention was paid to the child’s voice.
Critically examine to extent to which this aim has been achieved.
Introduction:
Bridgeman and Monk argue that the development of child law is becoming progressively more distinct from family law. In their view this development can be understood as a reflection of the influence of children’s rights and feminist views of the law that have encouraged a child centred focus where children are not simply seen as family persons but as individuals in their own right (Bridgeman and Monk, 2000, p. 1), a point reiterated by Muncie et al. who point to the recognition of rights of children as now being considered as distinct from the rights of the family as a whole (Muncie at al., 2005).
The Children Act 1989 which came in to force on 14th October 1991 was heralded as the most important legislation pertaining to children in living memory. Lord Mackay called it:
“the most comprehensive and far reaching form of child law which has come before Parliament in living memory.”
Prior to the Act the law relating to children in the UK had been driven by a plethora of different pieces of legislation, leading to considerable complexity and inconsistency. Although European law has come to an increasing level of prominence in domestic law, in practice the Children Act remains the single document most referred to (Prest and Wildblood, 2005, p. 311).
The strength and scope of the Act have been reflected by the considerable body of case law that evolved in a relatively short period of time.
The Act fulfilled two functions as highlighted by Allen:
It brought together all the existing law under the umbrella of one piece of legislation;
The Act acknowledged the limits of the law in family relations. While it was seen as a land mark piece of legislation, it did not contain a magic formula to deal with family problems.
(Allen, 2005, p.1).
The main thrust of the Act was to enable all those involved with the care of children to further their best interests whether living with their families, in local authority care or in respect of protection from abuse.
Private and Public Law:
The private legislation relating to children’s law does not concern public bodies. It refers to issues that are between individuals, usually family members.
The public law relating to children concerns legislation pertaining to intervention by public authorities. This encompasses voluntary agencies as well as social services. The State is typically a party to proceedings.
Purpose of the Act:
It was also hoped that through the Act children would become more central to proceedings concerning their welfare and would be given a considerably stronger voice. Feminist analysts have questioned the effectiveness of this, arguing that the law is often better at protecting the interests of adults than children.
Common Law Before the Act:
Historically, in common law parental rights were traditionally with the father in the case of legitimate children. It was not until 1886 that mothers were given guardianship under the Guardianship of Infants Act and the welfare of the child was to be taken into account when hearing any claim.
Developments in this area of the law saw an increasingly important regard given to the welfare of the child. This evolved into the modern idea of paramnountcy, enshrined in the 1989 Act.
The Law Leading to the Act:
Before the Act there were a number of different aspects of children’s law, described by Allen as chaotic in its nature (Allen, 2005, p.3). The law relating to children had evolved in a somewhat haphazard way, and was becoming increasingly difficult for professionals to interpret. In 1984 a comprehensive review was undertaken in an attempt to integrate the law.
The White Paper published in 1987, The Law on Child care and Family Services, stated that government proposals would involve “ a major overhaul of child care law intended to provide a clearer and fairer framework for the provision of child care services for families and for the protection of children at risk.”[1]
Scope of the Act:
The Act covers many areas including pre-school day care, child protection, local authority provision for children, the care of children in independent schools, children involved in divorce or custody proceedings, children with disabilities, child patients in long stay hospitals and children with learning difficulties (Hendrick, 2003, p.196-107).
Intrinsic to the legislation were four main principles:
(1)The paramountcy principle – this was not really a new idea but added considerable weight to ideas about child welfare, making it clear that this was always to be paramount in any decisions. This guiding principle has, however, been criticised in some quarters because of its vagueness.
The child’s welfare is the paramount consideration in respect of:
(a)the upbringing of the child;
(b) the administration of a child’s property or any income arising from it (s 1 (1)).[2]
(2) A checklist was introduced to assist courts in applying the welfare principle when considering certain categories of order.
(3)The delay principle which states that proceedings should be expedited with minimum delay as any such delay is regarded as being to the child’s disadvantage unless proven otherwise (s 1 (2))[3].
(4) Intervention by the State in the life of the child or the child’s family should only occur when it could be shown that “on balance the bringing of proceedings is likely to be in the best interest of children.” This is the no order principle where no order shall be made unless it is considered to be better for the child than making no order at all.[4]
Some new concepts were introduced. One of the main ones was “parental responsibility”. This emphasised the rights of parents in the context of their parental responsibility. If parents exercise their responsibility with the necessary level of diligence, certain rights in law are afforded, in effect promoting parents as authority figures. The Act also saw something of a swing back in emphasis to parents as opposed to the state being responsible for their children. Parents could only relinquish their responsibility to their children through formal, legal adoption. The term “accommodation” replaced “voluntary care” meaning, in effect that local authorities would care for children on their parents’ behalf only until such times as they could resume their proper role (Eekelaar and Dingwall, 1989, p.26).
Parental Responsibilities:
The Children Act gave courts wide ranging and flexible powers to regulate the exercise of parental responsibility, introducing some sweeping changes in this area.
The Child’s Wishes:
One of the central ideas was that the child’s wishes be taken into consideration, to a degree which was appropriate in any proceedings. The issue has arisen in relation to care proceedings, medical treatment and so on. In the case of local authority accommodation, there is a clear distinction in law between children over and under sixteen years old. The Children Act provides that neither the parental right of objection not the parental right of removal applies where a child of sixteen agrees to being provided with accommodation.[5]
This was tested in Re T (Accomodation by Local Authority)[6]. A seventeen year old girl had been informally accommodated by friends, an arrangement which she sought to formalise so that both parties would be eligible for benefits under section 24 of the Act which would stop when she reached age 18 otherwise. The director of social services refused this request taking the view that her welfare was not likely to be seriously prejudiced if she were not accommodated. This decision was quashed at court, the judge taking the view that social services had no way of ascertaining her future needs and there was no way of establishing whether the local authority would continue to exert the discretionary power it had done up to this point.
The issue of the child’s wishes is a much more contentious area when younger children are involved. Some very emotive case law, particularly in respect of medical arrangements and treatments, has developed in this area.
The child’s age should be taken into consideration when making any decision, but this is dependent on the individual child concerned . It is well recognised that children have the capacity to engage in acts and make decisions which can be dependent on chronological age or the attainment of a level of maturity beyond the chronological age. Precedent concerning a child’s age was first established in the land mark case of Gillick v. West Norfolk and Wisbech Health Authority[7].
The Gillick Case:
In 1980 The Department of Health and Social Security asserted that, while it would be most unusual, it would be lawful in some circumstances for a doctor to give contraceptive advice to a girl under sixteen without prior consultation with her parents. Victoria Gillick, a parent with strongly held religious views, sought assurances that none of her daughters would receive such advice.
Her claim was eventually rejected by the House of Lords, the decision coming to be known as ‘Gillick competence’. Lord Scarman proposed that a high level of understanding would be required, extending beyond the medical issues.
Lord Scarman noted:
“It is not enough that she should understand the nature of the advice which she is being given: she must have sufficient maturity to understand what is involved.”
Critical was the question in respect of whether, once a child has reached a certain level of maturity, whether in chronological or maturational terms, the rights of the patents to be involved, should be terminated or should co-exist with the child’s.
The Gillick decision was contrary to popular opinion and controversial. When faced with the dilemma of Gillick competence again, the courts adopted a somewhat different view. Later case law served to muddy the waters and adolescents were not given clear advice over their right to reach decisions for themselves in the event of family disputes or other issues.
Re R[8] concerned the competence of adolescents to refuse medical treatment.
R was a fifteen year old girl who had been suffering from mental illness which had caused her to be hospitalised under the Mental Health Act. At various times during the course of her treatment she was regarded as being a suicide risk. The unit in which she was hospitalised used sedatives as a last resort as part of the treatment regime. The hospital said that they would not retain R in hospital unless she were prepared to engage in treatment, including taking sedatives.
They put this to the local authority who had parental responsibility for R. The local authority initially agreed to the hospital’s request but, following conversation between R. and a social worker, withdrew its consent. R indicated to the social worker that the hospital were trying to give her drugs which she neither wanted nor needed. The social worker’s opinion was that R. was lucid and rational during the conversation, an assessment subsequently confirmed by psychiatric evaluation. The authority made R. a ward of court to resolve the argument. This is demonstrative of the responsibility to make the child’s voice heard, through the consultation process, a responsibility placed on local authorities by the Act.
The solicitor acting as guardian ad litem argued that, where a child has capacity to withhold consent to treatment based on sufficient understanding, any parental right to give or withdraw consent terminated.
Lord Donaldson reopened the whole discussion in respect of the relationship between a competent minor’s capacity and a parent’s right to consent on a minor’s behalf.
The Court of Appeal upheld the decision of Waite J., that R. failed the test of competence and that, in her best interests, the treatment should be authorised.
The most significant issue was whether the court had the power to over rule the decision of a competent minor. The court held that such an ability existed because the Gillick principles did not have effect in wardship proceedings. It was argued that the court had wider powers than those of normal parents, being derived from the Crown. The court saw no reason not to override the wishes of a competent minor if it believed that to be in the child’s best interests.
The judgement demonstrated that the application of the ‘welfare’ and the ‘Gillick’ tests could lead to different results.
The court’s power to override the decision of a minor were again illustrated in Re M. (Medical Treatment : Consent)[9]. A fifteen year old girl needed a heart transplant to save her life but refused to give her consent. Her reasoning was that she did not want to have some one else’s heart and did not want to have to take medication for the rest of her life.
In the solicitors notes taken at interview, it could be clearly seen that she had considered carefully her decision:
“Death is final – I know I can’t change my mind. I don’t want to die but I would rather die than have the transplant and have someone else’s heart, I would rather die with fifteen years of my own heart.”
While acknowledging the gravity of overriding M.’s decision, and the associated health risks, the operation was authorised.
Children in Court:
English law has not traditionally given minors right of representation in legal proceedings, but this was one of the main issues that the Children Act 1989 sought to address. The usual procedure has been for courts to require welfare reports in respect of children rather than to elicit the views of children themselves or of other interested parties or representatives.
The Children Act considerably changed that nature of representation for children in public proceedings in court. In care proceedings the Act created the presumption of the appointment of a guardian ad litem (Children’s guardian). The child will also automatically be party to the proceedings.
Children’s guardians are individuals who are required to have a thorough knowledge of both social work and child law. Their role is to ensure ‘that the court is fully informed of the relevant facts which relate to the child’s welfare and that the wishes and feelings of the child are clearly established.[10] Their role is to be proactive in its nature and ensure that the wishes of the child are given their due weight in the proceedings.
The issue in respect of private law is markedly different with children rarely being represented in this context. These are generally in relation to divorce and while welfare reports are submitted on occasion, this is not often the case, simply because of the volume of these types of proceedings.
Harm to children:
One of the main purposes of the Children Act was to ensure that children be protected from harm.
Newham London Borough Council v. AG[11]. reflects the difficult choice with which the courts are often faced regarding whether it is better for a child to stay with members of his/ her extended family or other, outside carers. In Newham the Court of Appeal held that placing the child with grandparents would be unsatisfactory as they would be unable to protect the child from the serious risk that was posed by the child’s mother who suffered from severe schizophrenia which manifested itself in her inability to look after the child and to neglect her.
The test case for the risk of significant harm is Re M. (A minor)(Care Order: Threshold Conditions).[12] A father had murdered the children’s mother in front of them, after which they were taken into emergency protection. The father was convicted of the mother’s murder and was sentenced to life imprisonment with a recommendation that he be deported to Nigeria, his home country, on release. Three of the four children were placed with Mrs W., the mother’s cousin, but she felt unable to cope with the youngest child, M. who was placed with a temporary foster mother. Eventually Mrs W. wanted to offer M. a home with his siblings. The father sought to influence the decision from prison, as he was M.’s biological father. The local authority, the guardian ad litem for M., and the father all wanted a care order to be made for M. outside the extended birth family.
Bracewell J. made the care order in the first instance but the Court of Appeal favoured Mrs W., substituting a care order in her favour. The question for the courts was whether, in considering if a child ‘is suffering from significant harm’, is it permissible to consider the situation when protective measures were introduced, or does this test have to be satisfied at the time of the hearing at which the application is being considered. At the time of the hearing M. was no longer suffering, nor was he likely to suffer ‘significant harm because, by this time, he was being properly looked after and the danger had passed.
The House of Lords held that there was jurisdiction to make a care order in these circumstances. Lord Mackay argued that the court was entitled to have regard to the full length from the protection to the disposal of the case. Brackwell had been entitled to, and indeed correct, to look back to the time when the emergency protection was taken. She had been entitled to infer that, at that time, M. had been permanently deprived of the love and care of his mother which constituted significant harm. The care given by the father was not what could reasonably have been expected from a parent, although it could reasonably be argued that the anger and violence was directed to the mother rather than M. The only limitation in the process of looking back was that the initial protective arrangements had remained continuously in place. Lords Templeman and Nolan pointed out that to restrict evidence to that which was available at the hearing could mean that any temporary measures which removed the risk could preclude the court from making a final care order which could not have been Parliament’s intention.
Separated Families:
Contact:
A great deal of case law relates to families where divorce or separation is a factor. Section 8 of the Act deals with the contact order:
“an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.”[13]
The contact order has become very important in the sphere of children’s law as it is the most common type of order made. Men, who tend not to be the residential parent in cases of divorce, are increasingly applying for contact orders with their children.
Payne v. Payne is one of the leading cases in respect of contact. The mother, originally from New Zealand wanted to return there with the couple’s four year old child following her divorce. Mr Payne argued that, to allow the mother to remove the child from the country, would infringe his right to contact, and that this infringement would be contrary to the principles of the Children Act 1989. The Court of Appeal argued that the child’s happiness was bound up in the happiness of the mother , the primary carer, and any move to separate them might be that her “unhappiness, sense of isolation and depression would be exacerbated to a degree that could well be damaging to the child.”
The judgement in Payne v. Payne was not a denial that the father had a right to contact. It was a demonstration of the application of the welfare principle, protecting the best interests of the child which were, in the courts opinion, inextricably linked to the mother. The decision makes clear that contact is a qualified right which will always be superseded by the welfare of the child.
Paternity:
The paramountcy principle has been criticised as being too limited in its scope. Where the issue of paternity has come before the courts it has been held that this only has an indirect impact upon the child’s upbringing and so falls outside the scope of the test. Freeman has argued that since maternity is rarely in doubt, this stance in respect of paternity allows men to shirk to some degree their paternity in the English Legal system (Freeman, 2000, p.33).
Foster Parents:
While the law relating to children has always had scope in respect of biological families, this is clearly extended to foster parents by the Children Act. The term ‘foster parents’ covers a variety of care arrangements, but is most usually thought of as parents who look after children to whom they are not related. The main distinctions in foster care arrangements are in private or local authority arrangements and short and long term fostering arrangements.
Arrangements and case law have shown that foster carers will not automatically be afforded parental responsibility, legal steps must be taken before this can happen.
In Gloucestershire County Council v. P[14] the child’s guardian ad litem persuaded the court that a residence order in favour of the foster parents, rather than an order freeing the child for adoption or residence order in favour of the extended family, would be appropriate. A majority of the Court of Appeal held that the Court did, in fact, have the power to do this even though the foster parents had cared for the child for less than three years.
More than one child:
Problems with the paramountcy principle have occurred when there is more than one child and their interests appear to be at odds. In Birmingham CC v. H[15] the case concerned a mother, herself a minor, and her child. It was believed to be in the mother’s best interests to maintain some contact with her baby as she may self harm otherwise. It was not held to be in the best interests of her baby. The law said that the interests of both was paramount. The House of Lords held that it was necessary to identify the child who was the subject of the application and make their welfare paramount, in this case the baby. This logic has been applied in subsequent cases on this matter when the interests of siblings have been thought to be in conflict.
Conclusion:
It is generally agreed that the Children Act represents a consensus among interested parties, except of course for children, who were not consulted (Hendrick, 2003, p.198). The concept of welfare or best interests of children reflects a desire to protect children. Some theorists have argued that because the input of children into changes in the law has been neglected, the law may be ineffective in protecting them from harm which may be very different from the harm and pain felt by adults (Bridgeman and Monk, 2000, p.7).
Some aspects of the Act have been problematic. The paramountcy principle has been very difficult in both a practical and an ethical respect. There is considerable tension between a child’s welfare and a child’s voice. The weight of the law is given to the former but many argue that the child’s opinion and wishes should carry more weight than they do at the moment. There are also, as has been seen, questions concerning when the child’s wishes should supersede those of his/ her parents and be respected as valid in their own right.
The law in relation to children has seen more change in recent years but the Children Act still has considerable force in practice. While there has been increasing emphasis placed on children’s individualism, autonomy, capacity and competence (Hallett, 2000, p.389), it has been seen that it is often the case that no matter how lucid or mature a child appears to be, the courts have been reluctant to allow the child to have a full voice in issues of a serious and life changing nature. The complex nature of families and their increasingly diverse nature in society means that these difficult issues will probably become more, rather than less complex in their nature and present themselves with a greater degree of frequency.
References:
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