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1 The child in English law Key learning points: Defining the child in law Distinguishing ‘fixed age’ and ‘developing capacity’ Distinguishing criminal.

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Presentation on theme: "1 The child in English law Key learning points: Defining the child in law Distinguishing ‘fixed age’ and ‘developing capacity’ Distinguishing criminal."— Presentation transcript:

1 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

2 2 ‘a person under the age of 18’ Children Act 1989 s105 The child in law 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 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 Working Together to Safeguard Children, 2010, para. 1.19

3 3 Boundaries Childhood begins…ends? Children’s Legal Centre Divisions stages? phases? The child in law ‘Fixed age’ and ‘developing capacity’

4 4 Law Concept of child Approach Civil Developing Competence (family) ‘developing capacity’ Criminal UnrulyStatus ‘fixed age’ Adapted from Keating, 2007 The child in law

5 5 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.’ 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) (Socrates, circa 300 BC) The child in law

6 6 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 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) The child in law

7 7 a blank canvas …becoming vulnerable, dependent traditional approaches to the study of children The Developing Child BiologyPsychology Darwin, Freud, Piaget, Vygotsky, Klein, Winnicott, Bowlby, Ainsworth, Erikson The child’s contribution? context...historical…cultural…social… The child in law

8 8 Civil (family) 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.

9 9 Civil (family) Law The Gillick Case: Gillick v West Norfolk and Wisbech Area Health Authority and another [1986] 1 AC 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) The child in law Hannah Jones age 13 choice about treatment Channel 4 News 11/11/08 BBC News 11/11/08 Girl wins right to refuse heart

10 10 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 The child in law

11 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).

12 12 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 The child in law

13 13 Retreat from Gillick? Consent Child Parent Court X X X x 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 The child in law

14 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

15 15 Classifying Children’s Rights Hodgson (1988) The child in law

16 16 Classifying Children’s Rights Care and Protection Identity Information Choice Representation Consultation Hodgson (1988) The child in law

17 17 Classifying Children’s Rights 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) Hodgson (1988) The child in law

18 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.

19 1919 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.

20 2020 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. Children in need – consultation

21 2121 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. Children in need – consultation about provision of accommodation

22 2222 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. Looked after children – consultation

23 2323 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.

24 2424 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. Duty to investigate – consultation with the child

25 2525 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. Child’s refusal to submit to examination or assessment

26 2626 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. Child’s refusal to submit to examination or assessment

27 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?

28 28 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.

29 CAPACITY 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.

30 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.

31 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?

32 32 The child in law 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. Information Sharing: Guidance for practitioners and managers

33 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 (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?

34 34 The child in law 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 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. Information Sharing: Guidance for practitioners and managers


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