1. The child in English law
Key learning points:
Defining the child in law
Distinguishing ‘fixed age’ and ‘developing capacity’
Distinguishing criminal and civil law
Applying law on consent and confidentiality
Identifying statutory responsibilities to consult
with children and/or allow mature child to decide
Starter questions:
Why is it important to consider how the law regards children?
Eg. because sw’s need to be able to advise young people and parents on their rights and responsibilities; because sw’s are susceptible, like others, to assumptions and stereotypes about children and young people. See findings from serious case reviews that may reflect assumptions that young children rather than older children are victims.
How might this information be useful for social workers?

2. The child in law ‘a person under the age of 18’
Children Act 1989 s105
The welfare of unborn children
‘The procedures and timescales set out in this chapter should also be followed when there are concerns about the welfare of an unborn child.’
Working Together to Safeguard Children, 2010, para. 5.16
The beginning and end of childhood.
When does childhood begin?
When do you think it ends?
When does a child become a grown up?
[Are there any stages in between? If so, what are they and how are they defined?
What does the law say about the beginning and end of childhood? ]
The fact that a child has reached 16 years of age, is living
independently or is in further education, is a member of the
armed forces, is in hospital or in custody in the secure estate
for children and young people, does not change his or her
status or entitlement to services or protection under the
Children Act 1989.
Working Together to Safeguard Children, 2010, para. 1.19 2

3. ‘Fixed age’ and ‘developing capacity’
The child in law
‘Fixed age’ and ‘developing capacity’
Divisions
stages?
phases?
The law takes two distinctive approaches to the status and potential autonomy of the child.
Firstly, there is a ‘fixed age’ or ‘status’ approach in relation to specific areas of activity, which specifies the age at which children can make particular decisions and choices.
See ‘At What Age Can I’ quiz & linked information on Law Stuff site, Children’s Legal Centre, for further information. [Individuals complete the quiz, then tick answers online. See details of answers and scores.]
The first approach has the benefit of clarity and certainty but can be criticised for setting arbitrary limits and for being contradictory. Fionda (2009) cites examples: you can drink alcohol in private from age of 5 but can’t buy it until 18; consent to sexual intercourse (gay or straight) at 16 but can’t marry without parental consent until 18; criminally responsible from 10 but not allowed to own a pet until 12. Some of the rules appear to assume the exercise of parental discretion.
The ‘fixed age’ approach can be contrasted with a more fluid approach to childhood in law that focuses on the developing capacity of children, also known as the ‘competence’ approach. In this case, the task of the law is to set out rules by which the growing capacity of the child can be judged. There is also the question of who is to make these judgments about child’s capacity (for example, depending on the circumstances it might be parents, professionals, judges or other people).
The second approach could be viewed as having the benefit of being flexible and adaptable to the characteristics of the particular child but may be criticised for reluctance to cede decision making power to children. An adult who must make a judgement about the child’s capacity and the person may find it difficult to reach an impartial judgement because of other responsibilities (for example, to safeguard and promote the child’s welfare).
Boundaries
Childhood begins…ends? Children’s Legal Centre 3

4. Law Concept of child Approach Civil Developing Competence
The child in law
Law Concept of child Approach
Civil Developing Competence
(family) ‘developing capacity’
Criminal Unruly Status
‘fixed age’
Adapted from Keating, 2007
Slide
Commentators (Fionda, 2001 and 2009; Keating 2007) have argued that each of these two approaches to the legal position of the child (status and competence) are prominent in two different areas of law: the civil and the criminal.
Keating argues that the two distinct areas of the law reflect contrasting concepts of the child as ‘developing’ on the one had and ‘unruly’ on the other. 4

5. The Unruly Child The child in law
‘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 evil…embodiment 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)
Slide
The idea of the unruly child is not new and has its roots in some well established philosophical and religious traditions from Socrates to the Bible. On this view, children are seen to embody original sin. A more modern expression of public anxiety surrounding unruly children is exemplified by the ‘hooligan’ (Pearson, 1983). 5

6. Criminal Law The child in law age of criminal responsibility =
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 society’s 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 considerations Court required to have regard for welfare of the child
(Children and Young Persons Act 1933 s44(1))
Police, Probation, YOTs, Youth Offender institutions, Secure Training Centres
duty to ‘have regard to the need to safeguard and promote the welfare of children’
(Children Act 2004, s11)
(Brayne and Carr, 2008, ch.14, Keating, 2007)
Keating (2007) explores the concept of ‘responsibility’ applied to children in civil and criminal law. The author contrasts the current approach in criminal law, which focuses on child responsibility and culpability, with assumptions in civil law that emphasise a developmental view of childhood.
Keating points out that removal, by the Crime and Disorder Act 1998, of the presumption known as doli incapax (incapable of evil), previously applied to children aged 10-14, increased the contrast between the criminal and civil law. Proof that a criminal offence has taken place is based on two ideas: actus reus (the prohibited act) and mens rea (guilty state of mind corresponding to the act).
The doli incapax presumption rested on the idea that children within this age range, though capable of carrying out the prohibited actions, were not to be assumed capable of understanding fully the nature and consequences. Thus, the prosecution to produce evidence to rebut the presumption or, in other words, show that the child in the particular case fully understood that the act was seriously wrong. Removing this presumption put 10 year olds into a position similar to adults as far as evidence of guilt was concerned. According to Smith (1994, quoted in Fionda, 2009), ‘[the law] holds that a person is completely irresponsible on the day before his tenth birthday, and fully responsible as soon as the jelly and ice-cream have been cleared away the following day’.
(It should be noted that there are differences of procedure / process and outcomes / disposals for children and young people. The court is also required to have regard for the welfare of the child, although the primary consideration is the interests of justice.) 6

7. The Developing Child The child in law a blank canvas …becoming
vulnerable, dependent
traditional approaches to the study of children
Biology
Psychology
Darwin, Freud, Piaget, Vygotsky, Klein, Winnicott, Bowlby, Ainsworth, Erikson
Question for students: what do we mean by ‘the developing child’? Where do ideas come from?
The developing child can be traced to the philosophical ideas of John Locke (the child as a blank canvas which will be filled out with experiences and learning) (Archard, 1993, ch.1) and psychological (as distinct from physiological models) theories that are referred to as ‘child development’ (Mayall, 1996).
According to Keating (2007, pp184), ‘This concept of childhood sees the child as vulnerable, dependent and in need of protection; the child may also be seen as incompetent in legal terms and his or her welfare the focus of concern. As the child develops so this concept may be replaced by one of the child as autonomous’.
In the first half of the 20th Century, children’s lives were examined almost exclusively through the lenses either of human (or in Piaget’s 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. (Vygotsky and Erickson might be seen 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).
The child’s contribution?
context...historical…cultural…social… 7

8. Civil (family) Law The child in law
Family Law Reform Act 1969 – Consent by persons over 16 to surgical, medical and dental treatment.
8.-(1) The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age ; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.
(2) In this section " surgical, medical or dental treatment “ includes any procedure undertaken for the purposes of diagnosis, and this section applies to any procedure (including, in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment.
(3) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.
Slide
In civil law, children have a different (inferior) legal status from adult persons, firstly, in that they are presumed incompetent to make significant decisions (except when it comes to specific rules about criminal liability applicable to children from the age of 10 as already discussed and other exceptions that we have already seen in the ‘At what age can I…?’ quiz).
Secondly, children are subject to the authority of their parents or other holders of parental responsibility.
Parental Responsibility (PR) includes parental rights in common law which included possession rights, although the concept of PR was devised to highlight responsibilities to children rather than rights of ownership. Lord Fraser in the Gillick case underlined the point that parental rights exist for the benefit of child, not the parent. Nevertheless, PR holders rights include the right to exercise reasonable control and to make significant decisions concerning the care and upbringing of the child.
[In English law, contact is regarded as an issue which must be primarily for the benefit of the child, rather than for the parent. This approach contrasts with Scottish law which explicitly recognises contact as potentially for the benefit of both parties.]
So what happens when the state (through professionals or through the courts) becomes involved in issues affecting parental responsibility and the status of the child? We will focus on question of consent and decision making involving children. For this purpose, we need to refer to both statutes (Acts of Parliament) and case law (rules laid down by the courts in particular cases – we will refer primarily to Gillick case). 8

9. Civil (family) Law The child in law
The Gillick Case:
Gillick v West Norfolk and Wisbech Area Health Authority and another [1986] 1 AC 112
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 doctor’s assessment of their degree of maturity and level
of understanding.’ (Jenkins, 2007, p153)
Slide
The idea of the child’s ‘developing capacity’ was put to the test in the Gillick case. The Family Law Reform Act 1969 s8 had reduced the age of consent to medical treatment from 18 to 16.
The DHSS had published a circular that informed doctors that they would be acting lawfully if they prescribed contraception to girls under 16, even without parental consent. This approach was influenced by public policy concerns about health and teenage pregnancies (notably that young people under 16 might not seek help if the principle of doctor-patient confidentiality was not upheld). Mrs Gillick, a committed Roman Catholic with 5 daughters, asked the court to declare that the circular was illegal.
The issue was not just about the relationship between the child and the parent. Prescribing medical treatment (for example related to contraception) without valid consent leaves the medical professional liable to action in civil law (for trespass) or criminal law (for assault). So the professional needs to know whether she has authority to act.
By a majority of 3/2, the House of Lords upheld the lawfulness of the DHSS guidance. The two leading opinions reflected different emphasis, one (Lord Fraser) focusing on judgements about the child’s best interests, the other (Lord Scarman) giving particular attention to the question of the child’s capacity to make decisions. This difference has given rise to controversy about the precise implications of the judgement in the case (see, for example, the account of different perspectives in Gilmore, 2009).
Hannah Jones age 13 choice about treatment Channel 4 News 11/11/08
BBC News 11/11/08 Girl wins right to refuse heart 9

10. The child in law Civil (family) Law – The Gillick Case
Two leading judges - different emphasis:
1. Lord Fraser – judgement about the child’s best interests (welfare)
…parental 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 (at para. 170)
‘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’ (para. 174).
Fraser listed five conditions (for action without parental knowledge or consent):
1. child understands the advice
2. professional cannot persuade the child to inform parents or allow
professional to inform parents
3. child is very likely to have sexual intercourse without contraception
4. child’s physical or mental health (or both) is likely to suffer unless advice or
treatment is given
5. child’s best interests require advice or treatment or both without parental
consent
Slide
Lord Fraser, highlighted the importance of the professional’s judgement about what will promote the welfare or best interests of the child.
‘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).
He listed five conditions that defined the exceptional circumstances under which the doctor may act without parental knowledge or consent: The child understands the advice; the professional cannot persuade the child to inform parents or allow professional to inform parents; the child is very likely to have sexual intercourse without contraception; the child’s physical or mental health (or both) is likely to suffer unless advice or treatment is given; the child’s best interests require advice or treatment or both without parental consent. 10

11. Civil (family) Law – The Gillick Case
2. Lord Scarman – judgement about child’s capacity to make decisions
Mature minor principle
‘…I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law’ (paras ).
‘It is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved. There are moral and family questions, especially her relationship with her parents; long-term problems associated with the emotional impact of pregnancy and its termination; and there are the risks to health of sexual intercourse at her age, risks which contraception may diminish but cannot eliminate (para. 189).
Slide
While agreeing with Lord Fraser’s opinion, Lord Scarman asserted the existence of a more explicit principle, (which has become known as the ‘mature minor doctrine’ or ‘Gillick principle’), specifying that the ‘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’.
Lord Scarman argued that the law should recognise the developing capacity of the child.
‘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. 186)
Applying this general principle to the particular issue of contraceptive advice and treatment, Lord Scarman set quite a high standard. Read the detail of the first quote (paras ).
Lord Scarman (referring to earlier case law judgements), emphasised the need to be satisfied that the child ‘sufficient discretion to enable him to make a wise choice in his or her own interests’ (para 188). In clarifying what ‘understanding fully what is proposed’ would involve, Lord Scarman referred to several dimensions.
See detail of the second quote, which continues after this as follows: ‘It follows that a doctor will have to satisfy himself that she is able to appraise these factors before he can safely proceed upon the basis that she has at law capacity to consent to contraceptive treatment. and it further follows that ordinarily the proper course will be for him, as the guidance lays down, first to seek to persuade the girl to bring her parents into consultation, and if she refuses, not to prescribe contraceptive treatment unless he is satisfied that her circumstances are such that he ought to proceed without parental knowledge and consent’ (para. 189). 11

12. Other factors judged to be relevant to ‘Gillick competence’
The child in law
Case
Other factors judged to be relevant to ‘Gillick competence’
Gillick (1985)
Understanding of medical, moral and family issues involved in the treatment
Re L (Medical Treatment: Gillick Competency) (1998)
Life experience. Child raised as Jehovah’s Witness found to be incompetent because of her ‘sheltered upbringing’
Re R (A Minor) (Wardship: Consent to Medical Treatment) (1992)
Stable competence. A 15 year old girl suffering mental illness and fluctuating between competence and incompetence would not be regarded as Gillick competent.
Re E (A Minor) (Wardship: Medical Treatment) (1993)
Appreciation of impact on others. A boy who was refusing life-saving treatment did not appreciate how distressed parents would be if he died was not competent.
Herring (2007, p97) points to other factors highlighted in case law as criteria for judging the competence of children.
In the Gillick case, emphasis was placed on the ability to understand but the complexity of the issues and the gravity of the situation were also highlighted as important considerations (so a judgement about actual understanding rather than merely the ability to understand was necessary). Impact on / consequences for others can be taken into account. Breadth/depth of life experience is relevant. Finally, a consistency or stability of mental capacity is important.
Freeman (2001 in Fionda, ed.) has highlighted a concern that the language in case law judgements involving children increases the tendency to confuse knowledge and understanding with wisdom. In other words, if the decision of the child is not considered a good decision, it can lead adults to judge the child incapable of making decisions. This tendency has possibly been reinforced by BMA guidance which emphasises that ‘the graver the impact of the decision, the commensurately greater the competence needed to make it’ (quoted by Keating, 2007, p. ). The approach reflects a benevolent regard for the welfare of the child but, as Freeman has pointed out, the result may be that children in these cases are required to be more competent than adults. (Note: The principles of the Mental Capacity Act 2005 explicitly state that capacity is not to be discounted just because a decision may not a wise one.)
The ‘mature minor principle’, as outlined by Lord Scarman, had a significant influence on parts of the Children Act Can you identify provisions in the Children Act 1989 that reflect the mature minor principle?
Herring, 2007, p97 12

13. The child in law Retreat from Gillick? Consent Child Parent Court  X X  X x 
Subsequent cases (eg. Re R (A Minor) (Wardship: Consent to Medical Treatment (1992); Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64), involving children refusing treatment in serious or life threatening circumstances, led the courts to revise the idea that parents’ rights tapered off as the child reached maturity. Instead, in cases where serious harm or even the death of the child were possible outcomes, emphasis was placed on the need for consent for treatment to be in place from one source or another, thus also protecting medical professionals from prosecution for administering treatment.
In Re W, Lord Donaldson concluded that parental responsibilities run concurrently with the child’s capacity and that the effect of the Gillick judgement was to enable doctors to give treatment as long as they had the consent of either the child or the parent. In addition, courts could override the refusal of both children and parents to give consent to treatments judged to be in children’s interests.
These judgements have left an apparent anomaly whereby the mature child may give valid consent but may not have a corresponding right to refuse treatment.
The action of the courts in these cases has been characterised as a ‘retreat’ from the Gillick principle of child autonomy towards a more cautious position regarding children’s interests. Gilmore (2009), however, argues that the focus on child welfare is consistent with the positions of the leading judgements in the Gillick case.
Shaw (2002) argues that the judicial approach to children who refuse treatment reflects the high value society places on children's lives. However, the effect is to "‘fudge’ the issue by setting an unrealistically high level of competence or by bypassing the young person in favour of their parent’ (p43). Shaw is in favour of a revised approach by professionals and courts to the issue of consent involving children. He advocates a) dispensing with the idea that the parent has a right to override a refusal of consent by a competent child, b) applying the concept of 'significant harm' in judging what action to take in any particular case rather than the looser notion of 'welfare' or best interests; c) greater use of mental health law where applicable in children cases in order to provide safeguards for children’s civil rights.
A mature child may give consent to treatment but refusal
to consent to treatment judged to be in his / her interests
may be overridden by a parent or the court 13

14. Reversing the ‘Retreat’ from Gillick?
R (Axon) v Secretary of State for Health (Family Planning Association intervening) [2006] EWHC 37 Admin
Is a child under 16 entitled to seek help in confidence?
Dept of Health guidance 2004 – asserted an equal duty of confidence to children and adults
Mrs Axon said doctors should consult parents of children under 16 seeking abortion unless child’s welfare would be prejudiced. She argued guidance undermines parents’ Article 8 rights to family life in principle and in practice.
The court upheld child’s right to seek help in confidence (and indicated that parents had no rights to family life where a competent child consents to the procedure.)
Fraser’s five conditions have legal authority and must be applied + Lord Scarman’s test for capacity
A more recent case (R (Axon) v Secretary of State for Health (2006) revisited the question of whether a child has a right to a confidential relationship with a doctor. Mrs Axon applied for judicial review of updated 2004 Department of Health guidance for health professionals, which stated that the duty of confidentiality owed to a young person was the same as that owed to any other person.
She claimed the guidance misrepresented the decision in the Gillick case, made professionals the sole arbiters of what was in the child’s best interests, excluding parents from these important decisions in most cases and infringed parents’ rights under Article 8 of ECHR. She argued a mother should be consulted by the doctor if a daughter under 16 was seeking an abortion, unless this would prejudice the child’s physical or mental health.
However, the court considered that the Guidance contained no misrepresentation of the Gillick case or infringement of parents’ Article 8 rights and upheld the view that a young person had an equal entitlement to respect for his or her confidentiality. The judge said that if was difficult to see why a parent should retain an Article 8 right to parental authority where the young person understands the medical advice and its implications.
Even if the Guidance did infringe parents Article 8 rights, such interference could be justified under Article 8(2) on public health grounds (the positive take up among teenagers of advice and treatment in relation to sexual health and contraception). Silber J asserted (at para. 110 & 111) that Lord Fraser’s five conditions had legal authority and must be applied. He redrafted the conditions, particularly the first condition, to incorporate Lord Scarman’s test for capacity
Silber J stated that the approach taken in the Gillick case was applicable to all forms of medical advice and treatment, including decisions about abortion (para. 90 & 95). 14

15. Classifying Children’s Rights
The child in law
Classifying Children’s Rights
Hodgson (1988)
Quiz exercise:
Starter question: Do children have any legal rights under the Children Act 1989?
What specific legal rights do children have or what responsibilities do social workers have to recognise the position of children?
There are specific obligations on social workers and others to (respect and) take account of the views and wishes of children.
It is important to distinguish between provisions related to ascertaining and taking account of views, wishes and feelings (referred to as consultation) and those that allow children to make decisions.
However, the principles established in the Gillick case apply to social work practice.
The six fold classification of children’s rights can be used to identify areas of legal provision that might be viewed as rights for children under these categories. Other provisions could be highlighted such as the court’s duty under s1(3) to have regard to the ascertainable wishes and feelings of the child (considered in the light of the child’s age and understanding). 15 15

16. Classifying Children’s Rights
The child in law
Classifying Children’s Rights
Hodgson (1988)
Care and
Protection
Identity
Information
Choice
Representation
Consultation
Quiz exercise:
Starter question: Do children have any legal rights under the Children Act 1989?
What specific legal rights do children have or what responsibilities do social workers have to recognise the position of children?
There are specific obligations on social workers and others to (respect and) take account of the views and wishes of children.
It is important to distinguish between provisions related to ascertaining and taking account of views, wishes and feelings (referred to as consultation) and those that allow children to make decisions.
However, the principles established in the Gillick case apply to social work practice.
The six fold classification of children’s rights can be used to identify areas of legal provision that might be viewed as rights for children under these categories. Other provisions could be highlighted such as the court’s duty under s1(3) to have regard to the ascertainable wishes and feelings of the child (considered in the light of the child’s age and understanding). 16 16

17. Classifying Children’s Rights
The child in law
Classifying Children’s Rights
Hodgson (1988)
Care and
Protection
eg. The court under s1;
Local auths. under
CA89 Pts III, IV & V
Family support, LAC
child protection & care
Identity
eg. 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)
Information
eg. LA duty to provide
information about
family support services
CA89 Sch.2.1(2)
Choice
eg. mature minor principle,
qualified right to refuse
medical examination
or other assessment
CA89 s43(8), 38(6),
44(7)
Representation
eg. right to make
representations &
complaints, incl. provision
of advocacy, CA89 S26, 26A,
Role of IRO
Party status in care
proceedings
Consultation
eg. LA duty to ascertain
child’s 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)
Quiz exercise:
What specific responsibilities do social workers have to recognise the position of children? or
What legal rights do children have under the Children Act 1989?
There are specific obligations on social workers and others to (respect and) take account of the views and wishes of children.
It is important to distinguish between provisions related to ascertaining and taking account of views, wishes and feelings (referred to as consultation) and those that allow children to make decisions.
However, the principles established in the Gillick case apply to social work practice.
The six fold classification of children’s rights can be used to identify areas of legal provision that might be viewed as rights for children under these categories. Other provisions could be highlighted such as the court’s duty under s1(3) to have regard to the ascertainable wishes and feelings of the child (considered in the light of the child’s age and understanding). 17 17

18. The Children Act 1989 – Welfare Checklist 1(3)
The court is under a duty to have regard to:
the ascertainable wishes and feelings of the child (in the light of the child’s age and understanding);
the child’s physical, emotional and educational needs;
the likely effect on the child of any change in their circumstances;
the child’s age, sex, background and any characteristics of his which the court considers to be relevant;
any harm which the child has suffered or is at risk of suffering;
how capable each of his parents, and any other relevant person, is of meeting the child’s needs;
the range of powers available to the court under this Act
in the proceedings in question.
To what extent does statute law (in this case the Children Act 1989) recognise the position of the child? What provisions exist for consultation with children, for representation of children in decision making processes and even for children to make decisions? What specific responsibilities are placed on social workers?
Welfare Checklist
The checklist s1(3) spells out what the court is required to consider in applying the welfare principle. Note that the court is only obliged to apply this list in specified proceedings (and has discretion to refer to in all circumstances) – see handout p4
Optional exercise: how comprehensive is the list? Would you add anything? 18

19. S8 orders – permission to apply (child)
A child is not one of those listed as entitled to apply for an order under s8 but may be one of those eligible to apply for leave (permission) to make an application BUT
10(8)
Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.
s8 orders – application by a child.
A child may make an application for a s8 order but only if the court is satisfied (s)he has sufficient understanding to make the application. 19

20. Children in need – consultation
s17(4A) Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare –
(a) ascertain the child's wishes and feelings regarding the provision of those services; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
5. Looked after children – s22(4) duty to consult. 20

21. Children in need – consultation about provision of accommodation
s20(6)   Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare —
(a) ascertain the child's wishes [ and feelings] regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes [ and feelings] of the child as they have been able to ascertain.
5. Looked after children – s22(4) duty to consult. 21

22. Looked after children – consultation
s22(4)     Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of —
(a)     the child;
(b)     his parents;
(c)     any person who is not a parent of his but who has parental responsibility for him; and
(d)     any other person whose wishes and feelings the authority consider to be relevant,
regarding the matter to be decided.
5. Looked after children – s22(4) duty to consult. 22

23. Looked after children – consultation and identity
s22(5)     In making any such decision a local authority shall give due consideration—
(a)     having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;
(b)     to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and
(c)     to the child's religious persuasion, racial origin and cultural and linguistic background.
6. Looked after children – consultation and identity. 23

24. consultation with the child
Duty to investigate –
consultation with the child
s47(5A) For the purposes of making a determination under this section as to the action to be taken with respect to a child, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare –
(a) ascertain the child's wishes and feelings regarding the action to be taken with respect to him; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
5. Looked after children – s22(4) duty to consult. 24

25. Child’s refusal to submit to examination or assessment
s43(7) A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order. BUT
(8) Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment
s44(6) Where the court makes an emergency protection order, it may give such directions (if any) as it considers appropriate with respect to—
(a) the contact which is, or is not, to be allowed between the child and any named person;
(b) the medical or psychiatric examination or other assessment of the child.
(7) Where any direction is given under subsection (6)(b), the child may, if he is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment. 25

26. Child’s refusal to submit to examination or assessment
s38(6) Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment. 26

27. The child in law Case studies
Charlie, who is 10 years old, lives with his mum and younger sister. He tells his teacher that he is not really happy at home and would like to live with his dad, who has care of his older brother. He says he doesn’t want the teacher to tell his parents about their conversation. What should the teacher do?
Kylie, who is 14 years old is having a relationship with Joe aged 15. She tells her Connexions worker that she needs information about contraception but doesn’t want her parents to know as ‘they would kill me’. What should the worker do?
These case studies are intended to raise various issues related to the legal position of child, parents and professionals.
Simon – the most obvious point is the age of criminal responsibility. However, there are also questions about police powers that arise in the ‘At what age’ handout, as well as possible disposal. These questions will be covered in more detail later in the module. The other key issue implied here is the question of parental responsibility for children’s behaviour. [See Leng R (2009) ‘Parental responsibility for Juvenile Offending in English Law’, in Probert, Gilmore and Herring, eds.]
Charlie – this case study raises questions about confidentiality involving children and professionals. The problem concerns an aspect of parental responsibility (the residence of the child) and it might suggest an issue of safeguarding. However, the intention is to explore whether or not the child in principle is entitled to confidentiality.
Kylie – this example is also intended to highlight questions about confidentiality and to provide an opportunity for exploring the Gillick and Axon cases in more detail. There is also the question of a criminal offence arising if sexual intercourse has taken place. (see introduction to criminal law notes from Law and Citizenship). 27 27

28. Recap - general law on confidentiality
The child in law
Recap - general law on confidentiality
Common law duty of confidentiality is owed by employees in relation to information obtained in course of employment
Personal information (that which allows a living person to be identified) is subject to data protection law.
Data Protection Act 1998 (DPA) specifies that before sharing personal information, the consent of the person to whom data refers (the ‘data subject’) should normally be obtained.
Information already in the public domain is not subject to considerations of confidentiality.
Circumstances which permit or require disclosure of information:
- where the person consents to sharing of information,
- where a court orders it,
- where a statute (explicitly) requires it
- where it is in the public interest
Consent to share personal information should be: 1. informed; 2. voluntary;
3. implied or explicit (oral/behaviour/written); 4. continuing.
This slide provides a reminder of the general law in relation to confidentiality and information sharing.
It is important to note that regulations were passed in July 2007 in relation to the establishment of children’s information database (now known as Contact Point) under section 12 of the Children Act The regulations require agencies to supply basic information to a centrally established database and include a provision that effectively overrides the common law duty of confidence. 28 28

29. - Capacity is a legal concept
Basic Principles:
- Capacity is a legal concept
Capacity is a legal concept - the fact that a person is mentally disordered
does not necessarily mean that (s)he is legally incapacitated.
Whether a person has capacity or not is decided on the basis of legal criteria,
now found in the Mental Capacity Act 2005 (MCA), and relevant evidence.
- General presumption of capacity
There is a general presumption that an adult has full capacity. This is only
displaced where it is shown that the person lacks capacity: s.1(2) MCA.
- Capacity confers rights and responsibilities
- Capacity varies according to the nature of the issue - must look at particular
activity in question and decide whether person has capacity in relation to it,
applying the statutory test.
Slide
A recap on legal issues related to capacity and consent, previously referred to in introduction to law relating to mental health and mental capacity.

30. Basic Principles cont’d: - Test is one of understanding
CAPACITY
Basic Principles cont’d:
- Test is one of understanding
s.3 MCA provides that a person is unable to make a decision for himself if
he is unable to
- understand information relevant to that decision
- retain that information
-use or weigh up that information as part of the decision making process or
– communicate a decision
s.1(4) MCA - A person is not to be treated as unable to make a decision
merely because he makes an unwise decision.
Slide
In order to be legally valid consent must be obtained by a person who is:
competent to make the particular decision
acting voluntarily (ie. not under pressure or duress)
in receipt of sufficient information to allow them to make the decision
[Dept of Health (2001) Good Practice in consent implementation guide: consent to examination or treatment London: Department of Health pp13].
The test of competence was further described in Re R (1994):
'first comprehending and retaining information, secondly, believing it and thirdly, weighing it in the balance to arrive at a choice'. (Thorpe LJ, cited in Shaw, 2002)

31. The child in law
Information Sharing: Guidance for practitioners and managers
HM Government, 2008, available from:
1.1 Information sharing is key to the Government’s goal of delivering better, more efficient public services that are coordinated around the needs of the individual. It is essential to enable early intervention and preventative work, for safeguarding and promoting welfare and for wider public protection. Information sharing is a vital element in improving outcomes for all.
Key questions for information sharing (flow chart)
Question 1: Is there a clear and legitimate purpose for sharing information?
Question 2: Does the information enable a living person to be identified?
Question 3: Is the information confidential?
Question 4: Do you have consent to share?
Question 5: Is there sufficient public interest to share information?
Question 6: Are you sharing information appropriately and securely?
Question 7: Have you properly recorded your information sharing decision?
The Government issued non-statutory guidance in 2008 alongside a range of other materials designed to improve understanding and practice in relation to information sharing. The guidance is concerned with the effective implementation of policies to encourage information sharing among professionals.
A flow chart of key questions is provided, together with ‘7 golden rules’ which equate with these questions.
7 Golden rules for information sharing
1. Remember that the DPA is not a barrier to sharing information; 2. Be open and honest with the person or family;
3. Seek advice if you are in any doubt; 4. Share with consent where appropriate; 5. Consider safety and well-being;
6. Necessary, proportionate, relevant, accurate; timely, and secure; 7. Keep a record of your decision and reasons 31 31

32. The child in law
Information Sharing: Guidance for practitioners and managers
Sharing information where there are concerns about significant harm to a child or young person
1.10 It is critical that where you have reasonable cause to believe that a child or young person may be suffering or may be at risk of suffering significant harm, you should always consider referring your concerns to children’s social care or the police, in line with your Local Safeguarding Children Board (LSCB) procedures.
1.11…you may be unsure whether what has given rise to your concern constitutes ‘a reasonable cause to believe’. In these situations, the concern must not be ignored. You should always talk to someone to help you decide what to do – a lead person on safeguarding, a Caldicott guardian, your manager, an experienced and trusted colleague or another practitioner who knows the person. You should protect the identity of the child or young person wherever possible until you have established a reasonable cause for your belief.
Guidance is provided in relation to concerns about significant harm, highlighting the importance of making a decision about referring any concerns to appropriate agencies. It is notable that the guidance emphasises the need for ‘reasonable cause to believe’ the child is suffering or at risk of suffering significant harm. The same form of words appears as part of the grounds for an emergency protection order.
(How does this form of words differ from the grounds that trigger the local authority to investigate possible significant harm under s47? Answer: the threshold is lower – ‘reasonable cause to suspect’ the child is suffering or likely to suffer significant harm. It should also be noted that the regulations governing the operation of ContactPoint, the database which holds basic information about all children and contact details of professionals working with them, allows professionals to disclose information about the involvement of a sensitive service with reasonable cause to ‘suspect’ Reg. 12(3) Children Act 2004 Information Database (England) Regulations 2007 SI. 2182).
The guidance highlights the need to consult with an informed person while maintaining confidentiality wherever possible. 32 32

33. The child in law
Information Sharing: Guidance for practitioners and managers
Whose consent should be sought – children and young people
3.23 Children aged 12 or over may generally be expected to have sufficient understanding. Younger children may also have sufficient understanding…When assessing a child’s understanding you should explain the issues to the child in a way that is suitable for their age, language and likely understanding. Where applicable, you should use their preferred mode of communication.
3.24 (criteria for assessing understanding)
Can the child or young person understand the question being asked of them?
Do they have a reasonable understanding of:
• what information might be shared; • the main reason or reasons for sharing the information; and • the implications of sharing that information, and of not sharing it?
Can they:
• appreciate and consider the alternative courses of action open to them;
• weigh up one aspect of the situation against another;
• express a clear personal view on the matter, as distinct from repeating
what someone else thinks they should do; and
• be reasonably consistent in their view on the matter, or are they
constantly changing their mind?
Specific guidance is provided about seeking consent from children and young people to share information, referencing the Fraser guidelines (para. 3.25). However, the validity of the assertion that ‘children aged 12 or over may generally be expected to have sufficient understanding’ (para.3.23) is contested in a 2009 report by Action on Rights for Children (ARCH) which argues that no such age related presumption exists in law (Dowty and Korff, 2009). The authors are concerned about unwarranted sharing of information associated with current policies for integrated working and the use of national databases (ContactPoint and eCAF). The report, based on research involving consultation with eminent lawyers and a survey of local authorities, recommends among other things that parents should be involved decisions about information sharing even if the child is competent, unless the child specifically objects.
[The relevant regulations, Children Act 2004 Information Database (England) Regulations 2007 Reg. 11(3), expressly allow information about the use of ‘sensitive services’ to be shared with the consent of the child – there is no specific reference to the child’s competence in the regulations.] 33 33

34. The child in law
Information Sharing: Guidance for practitioners and managers
When consent should not be sought
3.36 There will be some circumstances where you should not seek consent from
the individual or their family, or inform them that the information will be
shared. For example, if doing so would:
• place a person (the individual, family member, yourself or a third party) at
increased risk of significant harm if a child, or serious harm if an adult; or
• prejudice the prevention, detection or prosecution of a serious crime; or
• lead to an unjustified delay in making enquiries about allegations of
significant harm to a child, or serious harm to an adult.
3.37 You should not seek consent when you are required by law to share
information through a statutory duty or court order. In these situations,
subject to considerations set out in paragraph 3.11, you should inform the
individual concerned that you are sharing the information, why you are
doing so, and with whom.
The general guidance (not child-specific) indicates where practitioners should not seek consent or even notify individuals that information will be shared. 34 34