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Child Protection Law Essay

Extracts from this document...

Introduction

"The Children Act 1989, s 17 and the general duty on local authorities to safeguard and promote the welfare of children within their area who are in need (including children with mental and physical disabilities) has been a powerful tool in the children's rights armoury. But it's limitations have been shown by cases like R v Bexley London Borough Council, Ex Parte B 3 CCLR March 2000 ( decided on 31st July 1995)" Critically assess this observation. In a society permeated by child abuse, child pornography, child prostitution and a disregard for the innocence of childhood, it is important to ensure that rights of every child remain a priority. Even acknowledging children as individuals and therefore with rights to life, dignity and respect is a relatively new phenomenon (1). It is clear that children have traditionally been seen as disposable assets whose ownership might be the subject of dispute, much like property, for example in the context of divorce. (2) It took until the Children Act 1989 to attempt to change perspectives towards a much more child centred approach. Despite this, evidence remains to suggest that solicitors, courts and parents continue to view children as something to be argued over rather than as individuals to be valued (3). Furthermore, there are conflicting theories about whether or not children are holders of rights and, if they are, what rights they might legitimately require. The United Nations Convention on the Rights of the Child 1989 and the Children Act both grant the child participatory decision-making rights. However, according to Bowmont "to be meaningful, the rights of a child must be enforceable". (4) Although, Sweeting argues that the United Nations Convention on the Rights of the Child highlights the fact that children's participatory rights should be respected regardless of any legal definition of capacity (5). The aim of the Children Act 1989 was to simplify the law relating to children, making it more consistent and flexible. ...read more.

Middle

A fettering of discretion occurs when a public body applies a policy or rule so rigidly that no exceptions can be made. (24) The Human Rights Act 1998 integrated the European Convention on Human Rights into United Kingdom law in October 2000. Since that time, local authority and NHS decision making must be consistent not only with all the existing, relevant domestic legislation like the 1989 Act but also with human rights. Articles relevant to this include, for example, right to life (article 2), right not to be subjected to inhuman or degrading treatment (article 3) and right to respect for home, private and family life (article 8). Under article 8, a public body can interfere with this right to respect if the interference is in accordance with the law (for example the Children Act 1989) is necessary in a democratic society and on the grounds of the protection of health or morals, protection of the rights and freedoms or others, or the economic well-being of the country. An example of a case where these issues were identified involved the local authority failing to intervene during a four year period to prevent extreme abuse and neglect of four children by their mother. In this case the European Court of Human Rights held that failure by the local authority meant that the children had been subjected to inhuman and degrading treatment under article 3 of the Convention (Z v United Kingdom) It is not just children with disabilities where limitations on children's rights can be identified. According to the Refugee Council despite the implementation of the 1989 Act and the duty under section 17, asylum-seeking children continued to be placed in unsuitable accommodation without support following their arrival into the UK. Many had fled "horrific" situations having witnessed torture or murder, according to a report commissioned by Save the Children.(25) When they arrive in the UK they face immense difficulties and inconsistencies in accessing service provision due to a "general lack of co-ordination" (26) ...read more.

Conclusion

The Children Act 2004, pushes forward the main proposals of the green paper which include electronic children's files; children's directors; and a children's commissioner. But it allows local authorities more flexibility in organising their children's services, with the amalgamation of education and social services no longer mandatory. The 2004 Act forms the legislative framework that establishes the direction for a programme of change in the delivery of services that support children, young people and their families. The programme of change driven by the 2004 Act is set to transform and establish a new status for children's services and in the long term hopefully improve services for children. . From the discussion in this essay conflicting views have been discussed regarding whether in fact children are holders of rights and, if they are, what rights they might legitimately require. The 1989 Children Act clearly grants children participatory decision-making rights but it has been argued that rights are only meaningful if they are enforceable. It has also been suggested that the Children Act 1989 simplified the law relating to children and served to make it more consistent and flexible. Alongside this, the Children Act 1989 imposed new duties on local authorities and in doing so provided children in need with legal rights. Throughout this essay the limitations have also been highlighted by examining relevant case law relating to the rights of disabled children and also looked after children in the care of the local authority. In 2005 the Convention on the Rights of the Child marked it's fifteenth year , the landmark treaty that guarantees children the right to be free from discrimination, to be protected in armed conflicts, to be protected from torture and cruel, inhuman, or degrading treatment or punishment, to be free from arbitrary deprivation of liberty, to receive age-appropriate treatment in the justice system, and to be free from economic exploitation and other abuses, among other rights. Achieving these rights remains a challenge. ...read more.

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