To what extent has the children act 1989 ensured that more attention is paid to the child's wishes. How has this been achieved?

To what extent has the children act 1989 ensured that more attention is paid to the child’s wishes. How has this been achieved?

The Children Act 1989 was implemented in 1991. Its aim was to revolutionise practises and proceedings concerning the welfare of children in England and Wales. The Act started from the principle that the primary responsibility foe the upbringing of the child rest with families, and that for most children their interests will be best served by enabling them to grow up in their own family. Although changes brought about by the act also reflected considerable concern and dissatisfaction with professional services for children following, for example, the Cleveland enquiry into child abuse and deaths of children such as Jasmine Beckford and Doreen Aston while in their parents’ care. Also the juvenile courts were deemed inappropriate for care proceedings, as also was the dominance of a rescue over preventive or respite approach to dealing with children considered to at risk in their parents care.

The Act therefore sought to accomplish a better balance between reinforcing the autonomy of the family and enabling the parents too exercise their parental responsibility without state interference, and state support and protection of children where parents were failing or unable to meet their needs. Thus it provided support from local authorities foe families where the children were considered ‘in need’.

Part five of the children act 1989 deals with disputes between parent and the state regarding the care and upbringing of the children, many of the changes introduced by the Act were a response to sustained criticism about the complexities, anomalies and injustice of previous legislation. Ryan outlined this (1994. P97): children could come in to proceedings via a variety of routes, with varying criteria for entry; the legal position of the children differed depending on which route had brought them in to care; local authorities could assume parental responsibility by an administrative procedure; children, parents, and other relatives were unable to challenge local authority decisions about contact with children in care, also there was unlimited access to the wardship jurisdiction of the High court. This demonstrates that prior to the enactment of the Children’s Act 1989, the child’s voice was disregarded.

Before the enactment of the Children Act 1989, both in public and private law lip – service only was paid to the child’s wishes and views. In common law prior to the decision in Gillick v West Norfork and Wisbeck Area Health Authority, the child’s views were considered to be irrelevant. However the courts did understand that it was futile for parents to try and force their opinions on a mature child, the child’s level of intellectual or emotional development was irrelevant in deciding the extent of parental authority. Although, the House of Lords in Gillick changed this by deciding that parents’ rights to take decisions “yield to the child’s rights to make his own decision when he reaches a sufficient understanding and intelligence to be capable of making up his own on the matter requiring decision”(per Lord Scarman). Whether or not a child is Gilleck- competent depends on their emotional and intellectual maturity. This means that the mature minor is able to make decisions on issues depending whether or not they truly understand the complexity of the issue. One would conclude that this also means that a mature minor also has the right to refuse or consent to medical treatment. Although Lord Donaldson stated that a parent is still able to give valid consent even if the mature minor refuses treatment. Also the courts can override the mature minor’s refusal or consent in the interest of the child’s welfare.

The Children’s Act 1989 holds a number of provisions which now give statutory recognition to the wishes of older children to have an independent say on the issues affecting them, and also a greater degree of involvement in the decision making process. The Act demonstrates the principles of respect for the child who is now in common law being seen as and individual and not as an object. The Act also recognises that both in public and private law cases the importance of taking in to account the wishes of the child commensurate with his age and understanding.

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In order to asses the extent in which the act permits more attention paid toward the child’s needs, it is important to examine a number of specific provisions which appear to support their statement.

Section 1 of the Act provides that when a court determines any question with respect to the upbringing of a child or the administration of a child’s property, the child’s welfare is to the court a paramount consideration. It also sets out the general principles that are to be applied in court proceedings, namely; regard is to be had to the general principle that delay in deciding any questions with respect to the child’s upbringing is likely to prejudice the child’s welfare. Also in contested ‘family proceedings’ and in all care or supervision proceedings, the court should, when applying the welfare principle, pay particular regard to certain specific matters, and, the court should not make an order to do so is considered better for the child than making no order at all, One could argue that this is the main message of the act.

Section 1 (3) contains a checklist of factors, which the court must consider when deciding whether or not to grant an order. There is no weighting to any particular factor but it does list key factors about the needs of the child and their views. The first point to consider (section 1(3) (a)) is the ‘ascertainable wishes and feelings of the child (considered in light of their age and understanding) this clearly allows the child a voice as they have the right to be consulted and to be informed of any decisions. Also more consideration is paid to the child’s perspective being first point he list does not give the child priority over other items. In order to discover what the child’s wishes are the court will rely on an investigation made by a welfare officer or guardian ad litem. The courts may not appoint a guardian ad litem if they believe ‘ it in not necessary to do so to safeguard his interest’ (section 41(1)). Guardians investigate the background to the case and read the local authority files to scrutinise the local authority'’ conduct of the case. They also have the right to copy any documents relevant to the child’s case and are under a duty to attend all direction hearings unless excused by the court. They can also be asked to produce any interim reports during proceedings and they must produce a final report, which must be served on other parties to proceed. Section 7 (1) of the act allows the court to request a report ‘on such matters relating to the welfare of that child as are required to be dealt with in the report’, except in ‘specified proceedings ‘where a guardian ad litem has been appointed

A crucial factor is the child’s age in determining how much weight is given to their wishes. In Re P (A Minor) (education: child’s wishes), the court of appeal considered the views of a 14 year old boy concerning this choice of school. Butler Sloss LJ stated that had the boy been 11 his opinion would have not carried as much weight. Other factors for consideration include the dangers of coaching the child, the relative importance of the issue, the factual bias of her views, and the danger of the child being asked to choose between their parents.

Section 1 of the Children’s Act also includes two other general principles, non- intervention (section 1(5) and delay section1 (2) can also be seen as listening to the child’s voice. the principle of non- intervention allows no order to be made unless it is in the best interest of the child. In comparison the welfare principle prioritises the child’s views, this principle tends to prioritise the adults’ view thus there is a degree of tension between the two in that the court may fail to consider the child’s’ wishes if, for example, on divorce proceedings the parents agree and no order is made (therefore the child’s wishes are ignored). The ‘delay is harmful’ principle recognises that a child’s sense of time is more acute than that of an adult and listens to what the child feels about having to wait when the outcome is uncertain,

The Children Act introduces an open door policy to the court's jurisdiction and anyone, including the child, can apply leave for one of the Section 8 orders, i.e. residence, contact, prohibited steps, specific issues. A child is now able to initiate action; he is permitted to instruct a solicitor and have legal aid, since 1990 children have been assessed on their own means making it easier to secure legal aid, as long as the ‘merits test’ is met. Children man therefore apply with leave for orders enabling them to live with whom ever they chose , and to have contact with those people they want to see. Leave will be granted only if the courts are satisfied that the child has sufficient understanding to make the application (section 10(8)). The judge must be convinced that the child understands the consequences of his action. Newspaper headlines have suggested that children can thus ‘divorce’ their parents, which is untrue, as it is not possible to divorce parents with parental responsibility. Only adoption can fully sever the parent/child link. Although there are a number of unreported cases where children as young as 11 have successfully brought proceeding’s for full or interim residence orders and prohibited steps orders, where there has been a sever breakdown in their relationship with their parents. Sir Steven Brown P stated that children cannot begin proceedings just because they don’t get their own way act home, however the Act does allow them a voice which the court’s will consider when making judgements for their best interest. Such applications should go to the high court . Thus even though there is some compliance with art.12 UNCRC – the opportunity to be heard in judicial proceedings affecting him – his voiced opinion may not be determinative.

In addition to the above there are other examples of situations where the child has access to the court. The child is a party in all public law cases. Under section 34, a child in care can apply for contact to be refused where the presumption of the contact operates and may question decisions relating to contact in court. They may also apply for a residence order to discharge the care order. A child may also challenge an emergency protection order on its merits by applying 72 hours after the order was made for its discharge (section 44).

The new provisions relating to guardians ad litem also ensures that the child’s wishes are better heard. By section 44 the court must appoint a guardian ad litem for a child unless it is not necessary to safeguard their interest. Guardian’s ad litem are now appointed at an earlier stage in a wider range or proceedings under the Children’s Act. The guardian ad litem’s role includes investigating the case, explaining matters to the child and advising the court on the child’s best interest and wishes, the child’s enhanced right to apply for orders has implications for the guardian ad litem who must fully advise him on his rights, and help him to make informed decisions, appointing a solicitor for him where necessary. If no guardian ad litem is appointed and the child has sufficient understanding to instruct and wants to, then the courts may appoint a solicitor to represent the child if it decides it is in the child’s best interest to be represented.

A number of other public law provisions embody the Gillick principle that a mature minor has the right to decide. Where a child assessment order (section43), an emergency protection order (section 44) or an interim care or supervision order (section 38) is made with a direction relating to examination or assessment, the mature minor has the right to refuse to submit to the assessment. The orders do not authorise medical or psychiatric examination or other assessment which a child of sufficient age and understanding refuses to undergo. Here, unlike other provisions of the Act, it seem that it is not just a case of ascertaining and giving consideration to the child’s wishes but that if the child is capable of making an informed decision then his wishes are conclusive. The right to refuse under these provisions had been held at first instance to be limited to the stage of assessment, and not to actual treatment, where the court could override the child’s decision.

Final examples of attention being paid to the child’s wishes are section 22 of the Act which requires a local authority to ascertain the wishes and feeling of the child being looked after and to give due consideration to them, depending on his age and understanding, before taking a decision which affects him. In addition, the child’s religious persuasion, origin, cultural and linguistic background must also be considered. Local authorities must give the child information and explanations so that he can make an informed choice. The child must know his rights and what is available and feel free that what he says is not being totally ignored. Each local authority has to establish a procedure for considering complaints and representations, which must be publicised and should be ‘user friendly’ (section 26). A child has the right to complain under this provision and must be told of the panel’s findings and what changes should result.

The Children Act 1989, seen from the provisions examined above, certainly pays more than lip services to the child’s wishes. The child is to be treated as an individual with a right to be consulted, kept fully informed a treated with respect commensurate with his age and understanding. Generally, with the exception of refusal to undergo medical examination or assessment, the child’s wishes are not conclusive as it is recognised that a child can be influenced by all sorts of factors when expressing his wishes. It is essential that it is not the child’s welfare, which is paramount, nor his wishes, and the ultimate decision should not be his. It is also recognised that a child wants say in matters affecting him and to feel that he is being listened to. The Children Act 1989 has gone a long way towards ensuring that more attention is paid to the voice of the child and thus appears to have achieved one of its principal aims. Yet the tensions amongst parental power, the child’s view and the welfare principle are likely to remain unresolved for the foreseeable future- and possibly as long as there are families.

WORD COUNT 3742

References

Hale, B., Pearl, D., Crooke, E. The family, law and Society, 5th den (London: Butterworths, 2002)

Cretney, S.M, Masson, J, and Bailey – Harris, r., Principles of Family Law, 7th edn (London: sweet and Maxwell, 2002)

Bainham, A., Children: the modern Law. 2nd end (family Law, 1998)

Bainham, A., Day, S., and Richards, M., (Eds), What is a Parent? A Socio- legal Analysis (Hart, 1999)

Bridgeman, J., and Monks, D., (Eds), Feminist Perspectives on Child Law (Cavendish, 2000)

Douglas, G., and Murch, m., ‘Taking Account of Children’s needs in Divorce’ (2002) CFLQ, Vol. 14, p.57.

Section 17 of the Children Act 1989

Gillick v West Norfork and Wisbeck Area Health Authority (1986) 1FLA224

Re R (A Minor) (Wardship: Medical Treatment) (1991) 4 ALL ER 177

RE S (A Minor) (Consent to medical treatment) (1994) 2 FLR 1065

Re j (A Minor)(1992) 2FCR 785

Re S (A minor) (1992) 136SJ206

Re P (A Minor) (education: child’s wishes)(1992) 1 frc145

Re T (A Minor) (Child representation)(1994) Fam49

Re F (contact: child in care)(995) 1FLR510

Re AD (A Minor)(1993) Fam Law 405 and Practice Direction (family proceedings orders: applications made by children) (1993) 1 ALL ER 820

per Thorpe J in Re J (A Minor) (1992) 2 FCR 785

To what extent has the children act 1989 ensured that more attention is paid to the child's wishes. How has this been achieved?

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