The child in law and policy

Session aims

Identify legal and ethical questions about children and childhood

Explore controversies surrounding the idea of childrens rights

Describe childrens rights in English law

Compare the treatment of children in criminal and civil law The child in law and policy

ChildChildChildChildChilda person not an object of concernButler-Sloss LJ, Report of the Inquiry into Child Abuse inCleveland 1987 Cm 412(1988) HMSO,Recommendations, para. 2 p 245

a person underthe age of 18ChildrenAct 1989 s105The child in law and policy

How does the media portray children and young people?

Can you think of any recent public debates about children?

What assumptions and messages do they carryabout children, parents, others? Seven Deadly Stereotypes http://www.headliners.org/storylibrary/stories/1998/thesevendeadlystereotypes.htmThe child in law and policy

The child in social policy :Threat (in need of control)

Victim (in need of protection) Investment (in need of education)

(Hendrick, 1994 cited in Daniel and Ivatts, 1998)The Outcomes Frameworkhttp://www.everychildmatters.gov.uk/_files/F9E3F941DC8D4580539EE4C743E9371D.pdf The child in law and policy

BoundariesChildhood beginsends?Divisions

stages?phases?The child in law and policy

Read through the Handout At what age can I?

Consider the following questions:

When does childhood begin and end?

How does the law divide up childhood?

What are the rights and duties of children?

How consistent are legal expectations of children?

Can you relate any of these issues to a situation you have encountered?The child in law and policy

Two Versions of Childhood in English Law

Developing Child

Unruly Child

Keating (2007)The child in law and policy

LawConcept of child

Civil (family) Developing

Criminal Unruly

(Keating, 2007)The child in law and policy

The Unruly Child The young people of today love luxury. They have bad manners, they scoff at authority and lack respect for their elders. Children nowadays are real tyrants, they no longer stand up when their elders come into the room where they are sitting, they contradict their parents, chat together in the presence of adults, eat gluttonously and tyrannise their teachers. (Socrates, circa 300 BC)Source of evilembodiment of original sin (Jenks, 2001 in Fionda)

Hooligan (Pearson, 1983)

untrained and in need of control (Keating, 2007)

He that spareth his rod hateth his son (Proverbs, 13-24)

The child in law and policy

Criminal Law

Young people who commit offences must face up to the consequence of their actions for themselves and for others and must take responsibility No young person should be allowed to feel that he or she can offend with impunity Punishment is important as a means of expressing societys condemnation of unlawful behaviour and as a deterrent.Home Office (1997) White Paper - No More Excuses: A New Approach to Tackling Youth Crime in England and Wales, Cm 3809 (London: HMSO) pp1-2

age of criminal responsibility =

doli incapax (incapable of evil): rebuttable presumption previously applied to children aged 10-14, removed by Crime and Disorder Act 1998

welfare consideration court required to have regard for the welfare of the child CYPA33 s44(1)

(Brammer, 2007, Brayne and Carr p467-8)The child in law and policy

a blank canvasbecoming

traditional approaches to the study of children The Developing ChildBiologyPsychology Darwin, Freud, Piaget, Vygotsky, Klein, Winnicott, Bowlby, Ainsworth, EriksonThe childs contribution?

Context? historicalculturalsocial

The child in law and policy

Underestimate childrens abilities

Underplay common child/adult experience e.g. reactions to loss & change

Underrate significance of adult expectations on childrens behaviour

Undervalue positive (as opposed to negative or destructive) peer interactions

(Hodgson, 1995)Approaches to child study have tended to The child in law and policy

Childhood -------------- Adulthood Beingbecoming becomings.

(Lee, 2001, after Qvortrup, 1990)

Children, parents and the parental stateThe child in law and policy

Civil (family) Law

Parents Professionals

Childparental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child, and towards other children in the family.Lord Fraser, Gillick v West Norfolk and Wisbech Area Health Authority and another [1985] All ER 402, at p. 170 The child in law and policy

Civil (family) Law

The Gillick Case: Gillick v West Norfolk and Wisbech Area Health Authority and another [1985] All ER 402

http://news.bbc.co.uk/onthisday/hi/dates/stories/july/26/newsid_2499000/2499583.stm

1. Is a child under 16 entitled to seek help in confidence?

2. Is a child under 16 competent to consent to treatment?

Treatment without consent is unlawful: trespass (civil), assault (criminal)

By a majority of three to two, it was held by Law Lords that children of sufficient maturity were entitled to confidential medical treatment by a doctor, depending upon the doctors assessment of their degree of maturity and level of understanding. (Jenkins, 2007, p153)

The child in law and policy

Civil (family) Law The Gillick Case

Two leading judges - different emphasis:

1. Lord Fraser judgement about the childs best interests (welfare)

The only practicable course is, in my opinion, to entrust the doctor with a discretion to act in accordance with his view of what is best in the interests of the girl who is his patient (Lord Fraser at para. 413).

Fraser guidelines (action without parental knowledge or consent):1. child understands the advice2. professional cannot persuade the child to inform parents or allow professional to inform parents3. child is very likely to have sexual intercourse without contraception4. childs physical or mental health (or both) is likely to suffer unless advice or treatment is given5. childs best interests require advice or treatment or both without parental consent

The child in law and policy

Civil (family) Law The Gillick Case

2. Lord Scarman judgement about childrens capacity to make decisions

The law relating to parent and child is concerned with problems of growth and maturity of the human personality. If the law should impose upon the process of growing up fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change (para. 188)

Mature Minor or Gillick PrincipleA child is capable of making decisions when of sufficient understanding and intelligence to enable him to understand fully what is proposed (para. 184) and sufficient discretion to enable him to make a wise choice in his or her own interests (para 187).

Can you identify provisions of the Children Act 1989 that reflect this principle?

The child in law and policy

Retreat from Gillick

Consent Child

Parent

Court

X

X

X

x

A mature child may give consent to treatment but doesnt have an equivalent right to refuse.The child in law and policy

Reversing the Retreat from Gillick?The Axon Case (2006)http://news.bbc.co.uk/2/hi/uk_news/england/manchester/4412354.stm

Is a child under 16 entitled to seek help in confidence?

Dept of Health guidance 2004 equal duty of confidence to children and adults

Mrs Axon: Doctors should consult parents of children under 16 seeking abortion unless childs welfare would be prejudiced.She argued guidance undermines parents Article 8 rights to family life in principle and in practice.

The court upheld childs right to seek help in confidence.(and indicated that parents had no rights to family life where a competent child consents to the procedure.)

http://news.bbc.co.uk/1/hi/england/manchester/4636666.stm

The child in law and policy

Case Examples

Kareena, aged 14 is having a relationship with Jo aged 15. She tells her Connexions worker that she needs information about contraception but doesnt want her parents to know as they would kill me.

What legal rights does the child have? What should the worker do?

George, aged 10, lives with his mother and younger sister. He tells his teacher he is unhappy at home and wants to live with his father, who has care of his older brother. He doesnt want his parents to know.

What legal rights does the child have? What should the teacher do?

In conversation with one of the supervisors in the playground, Ricky, aged 9, gets upset describing the horrible rows his mum and dad after he has gone to bed.

What legal rights does the child have? What should the supervisor do?The child in law and policy

Not in front of the children - the language of law and childhood

childin need CA89, s17(10)

childs welfare CA89, s1(1)

child wellbeing CA04, s 10(2)

childs right ?

What do these terms indicate about ethical approaches to children?The child in law and policy

Childrens RightsChildrens RightsThe child in law and policy

Advantages

Respect for children as individuals recognition of their views and wishes

Children learn from having freedom to make decisions, including mistakes

Avoiding the false assumption that adults always know best

Placing clear obligations on government, courts, professionals Rights-based Approaches Disadvantages

Children should be free from burdens and responsibilities

Children can be damaged if allowed to make their own decisions

The authority of parents is undermined if children have rights

Work with children and parents should focus on relationships and mutual understanding rather rights The child in law and policy

What is a right?

Human Rights Act 1998

Freedom from interferencenegative

Entitlement to standardspositive

Representation in neutraldecision processes

Absolute & Qualified Rights

Mechanisms to enforce RightsThe child in law and policy

Classifying Childrens Rights

Welfare

Participation

Autonomy

Jenkins (2003b)The child in law and policy

Classifying Childrens RightsCare and Protectioneg. LA duties to inquire & takeaction related to significant harm CA89 s47

Identityeg. LA duty to consider religious persuasion, racial origin & cultural and linguistic background CA89 s20(6), s22(5)Court duty CA89 s1(3),ACA02 s1(5)

Informationeg. LA duty to provideinformation aboutfamily support servicesCA89 Sch.2.1(2)

Choiceeg. mature minor principle,qualified right to refusemedical examination or other assessmentCA89 s43(8), 38(6),44(7)

Challenge eg. right to make representations and complaints, includingprovision of advocacyCA89 S26, 26A

Consultationeg. LA duty to ascertainchilds wishes & feelings & give due consideration in relation to decisions about - services s17(4A), - accommodation s20(6),while looked after s22(4) protective action s47(5A)Hodgson (1988)The child in law and policy

United Nations Convention on the Rights of the Child 1989http://www.ohchr.org/english/law/index.htm

regional international law

ratified by the UK in 1991

rights: 4 Ps protection prevention participation provision

enforcement: periodic reports to UN Committee by states parties http://www.everychildmatters.gov.uk/uncrc/

independent reports young peoplehttp://www.crae.org.uk/cms/index.php?option=com_frontpage&Itemid=1

The child in law and policy

**Question: How has interest in children developed and changed historically and, specifically, over the last 50 years?The child is the focus of increasing interest in science, legal, policy, research and practice, although traditionally as an object or as a subject rather than as a person. Nor has this interest in children been sufficient always to lead to guarantee that their interests and perspectives do not become lost.**According to Hendrick, the child has been portrayed in limited ways that serve particular political and ideological ends in social policy. These three caricatures of childhood justify particular kinds of state intervention by defining the needs of children and specific ways of meeting these needs. Hendrick says all of these ideas have a common theme of regarding children as an entity of investment that treats them as constituting the future (Hendrick, 2003, p1).*****

**In the first half of the 20th Century, childrens lives were examined almost exclusively through the lenses either of human (or in Piagets case animal) biologists or developmental psychologists. It is arguable that biological and psychological perspectives remain central to the study of childhood today. We should add to this picture the contribution of the psycho-dynamic tradition from Freud through to Bowlby and Ainsworth. These approaches have tended to focus on individuals and engage with social processes primarily at the level of interpersonal relationships. (We might recognise Vygotsky and Erickson as exceptional in their engagement with the impact of broader cultural and social phenomena on children).

The study of children (from Charles Darwin to Jean Piaget) has roots in natural science. Mayall (1996) argues that the legacy of this tradition is that the study of children remains based on certain assumptions: that the child is primarily viewed as biological entity (with development seen characterised in a linear way as progress from infanthood to adulthood) that the child is a passive recipient or recepticle (of sensory stimulation from adults predominantly mothers).

*Here is a one view of the apparently contradictory impact that this tradition of child study has had on expectations of children. *Nick Lee (2001) uses a sociological perspective to look at changes in the way that childhood and adulthood are commonly perceived and understood. He argues that historical shifts in economic, political and technological arrangements in Western societies have been accompanied by alterations to the conventional distinction between children as incomplete persons and adults as the finished article. He argues that new boundaries and challenges place adults alongside children in the category of becomings. This perspective suggests that as characterisations of childhood and adulthood change, expectations of parents and parenthood will alter as well.*************