1. Rights Responsibilities and Advocacy Module: 6cf005 Session Eight ‘Best interests’ of the child

2. Learning Outcomes Discuss the complexities of determining ‘best interests’ Analyse factors in relation to the treatment of children in the criminal justice system Use Foucault’s concepts of discourse and power to analyse ‘regimes of truth’

3. ‘Best interests’ Think about a time when a decision was made for you and you were told it would be ‘good for you’ How was it not being involved in the decision-making? Did you agree? Was it good for you? How might this influence your thinking?

4. http://www.youtube.com/wat ch?v=QD3I2BsQb90 So what are the issues?

5. Archard and Skivenes (2009) Two central commitments Article 3: best interests of the child shall be a primary consideration Article 12: State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child

6. Gillick competency 1982: Mrs Victoria Gillick Wanted to stop doctors giving contraceptive advice or treatment to under 16 year olds without parental consent Her claims dismissed Court of Appeal 1985 House of Lords – in favour of original judgement http://www.nspcc. org.uk/inform/rese arch/questions/gill ick_wda61289.ht ml#How_is_Gillick _competency_ass essedhttp://www.nspcc. org.uk/inform/rese arch/questions/gill ick_wda61289.ht ml#How_is_Gillick _competency_ass essed?

7. "...whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent."

8. Parents’ versus children’s rights Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision." Since the Gillick case, legal, health and social work professionals continue to debate the issues of a child’s rights to consent or refuse treatment, and how to balance children’s rights with the duty of child protection professionals to act in the best interests of the child.

9. Hannah Jones 2008 http://www.telegr aph.co.uk/health/ 3443659/Hanna h-Jones-Its- hard-at-13-to- know-Im-going- to-die.html http://articles.washingtonpost. com/2008-11- 14/world/36770341_1_heart- transplant-second-transplant- new-heart http://www.theguardian.com/uk/ 2009/jul/21/hannah-jones-heart- transplant http://www.bbc.co.uk/news/uk- 14592420

10. Archard and Skivenes (2009) A and B Child’s welfare – essentially paternalistic – what we (adults), not necessarily the child, think is best for child Listening to child’s own views – doing what the child, not necessarily we (adults), thinks is best for the child Possible to reconcile the two?

11. In legal cases England Courts have regard to ‘ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding’ CA, 1989 Norway Age 7 – express view Age 12- ‘significant weight’

12. Some of the issues…….. Reasonable to disagree on any judgement of best interests as based on values – and cultural views differ on a good childhood Outcome of any choice is indeterminate – how can we know how things might turn out? How are child’s views known? Directly solicited or represented? How are views of child to be ‘weighted’? Same person who judges best interests?

13. Equity with competent adults Unfair to ask children to be more competent in decision-making than adults who have freedom to decide Reasons to doubt the child? Gillick competency – surely beyond many adults: English courts then violate principle of equity of treatment of children and young people (Archard and Skivenes, 2009)

14. The nub of the issue…..? Basic rights of individuals who have their own views (who are capable of forming them) to express those views A right to be involved in a process whereby future is determined even if that view has no weight in any final determination of matters Even if no hope of persuading others of their ability to make their own decisions Many reasons for hearing the child

15. Checklist of Archard and Skivenes (2009) 14 points 13. Why are the views sought? To demonstrate possible competence to decide for self? To play a consultative role in helping adult decision-makers re. overall best interests? Or, is the expression of the child’s views seen as having an independent value as an essential element in the decision- making process? See ‘Josh’ in Boylan and Dalrymple (2009, p. 9)

16. Guided task/ reading Read the very readable document by Ofsted (2010) Children on Rights and Responsibilities: A report of children’s views by the Children’s Rights Director for England – see webfolio where the document is embedded for you. I have also devised some questions that may aid your reading of it – remember focused and critical reading is best at L6

17. 1. Lansdown and Lancaster (2001) discussed the 'welfare model' and the 'rights based model’. Having read the views of these children and young people, which model do you think might be applied to them and why? 2. To what extent do you feel that the views expressed by these children and young people reflect the discourse on childhood (ways of talking about children and young people today) that is to be found within contemporary media reports? (for instance: children 'in danger' or children 'as dangerous'?) 3. What is the value, do you think, of this document in contributing to any future UK Act, Bill or Charter of Rights for children and young people? 4. Take a look at the 'final words' on the last page of the document. Which comment 'speaks to you' most forcefully and how does it impact on your thinking about this particular module?

18. OOCA Archard and Skivenes (2009) Balancing a Best Interests and a Child’s Views. International Journal of Children's’ Rights, 17, pp.1-21. Use feedback on the formative to begin to work on your summative task!