In recent decades, modern societies have witnessed a growing enthusiasm for the concept of the ‘child voice’. Questions concerning the extent to which children’s views should influence issues affecting them have been addressed in research, and the degree to which The Government in England are accommodating the input of children in legal proceedings affecting them. In this essay, legislation that refers to children’s rights to express their views will be reviewed (United Nations Convention on the Rights of the Child 1989, Article 3, 12; Children Act 1989, s. 7, 22); I will then address the discovery of the relationship between maturity and the ability to make significant decisions (Fortin, 2009). Furthermore, I will examine research findings that propose the appointment of an advocate to children in relation to promoting the representation of children’s views in court proceedings and evidence to support these claims (Bilson, 2005; Littlechild, 2000). I will then assess the impact that limitations to participation in the decision-making process have led to for children in the care system (Leeson, 2007), in comparison with research that has implications for the ability of abused children to make decisions concerning their future care (Fortin, 2009). Finally, I will investigate The Government’s response to children’s need for gradual autonomy in making decisions about their lives (Ministry of Justice and Department for Education, 2012).
Although the United Nations Convention on the Rights of the Child (UNCRC) is not a part of English law, the UK is under the legal obligation to comply with the main principles of the UNCRC in legal proceedings. The UNCRC Article 12 states that State Parties must give children the right to express their views concerning matters that will affect them, and must give these views ‘due weight in accordance with the child’s age and maturity’ (UNCRC 1989, Article 12).
The emphasis that Article 12 places on the consideration of the child’s age and maturity stems from research findings that tells us that development is a gradual process that is caused by changes in the brain (Sowell et al. 1999 cited in Fortin, 2009) and that environmental influences impact our social and emotional development (Fergusson, 2004 cited in Fortin, 2009). Fortin (2009) argues that younger children are therefore unable or ‘unequipped’ to make decisions that would have a significant impact on their future. The author therefore suggest that younger children should be given the opportunity to exercise their right to express their views by participating in the decision-making process, but should not possess equal rights to self-determination in matters that will affect them. In relation to older children, research findings seem to indicate that older adolescents possess the maturity that is needed to make complex decisions (Coleman & Hendry, 1999 cited in Fortin, 2009). In accordance with such findings, the UNCRC Article 5 requires that parents take into account the ‘evolving capacities of the child’ when providing their child with advice, meaning that adolescents should be granted gradual independence when making decisions about their lives as they become increasingly mature.
In legal proceedings that involve children, a legal guardian is appointed to be the child’s representative in court. Under section 7 of the Children Act (1989), the appointed guardian is responsible for safeguarding the interests of the child during legal proceedings. This coincides with the UNCRC Article 3 that instructs the judiciary to view the child’s best interests as the primary consideration. Because the legal guardian of the child is committed to assessing the child’s best interests as the main priority in court proceedings, it has been argued that the views that are communicated by the child are considered to be a secondary priority (Bilson, 2005). Even children that have used the guardian service consider it to be the guardian’s role to protect their best interests rather than to represent their wishes in court (Ruegger, 2001 cited by Bilson, 2005).
It has been proposed that it would be more appropriate that an advocate that has no vested interest in the legal proceedings is responsible for the representation of a child’s views and wishes in court (Schofield and Thoburn, 1996 cited in Littlechild, 2000; Hardy, 1999 cited in Littlechild, 2000; Cashmore 2002). It has been anticipated that this could result in more effective participation by the child and a fuller implementation of the child’s rights to have their views given due weight in legal proceedings affecting them (Bilson, 2005). Littlechild (2000) goes on to recommend a series of participative procedures that might improve the manner in which children’s views are represented, including the development of information about the legal process that is given to children in age- and maturity-appropriate format. In addition to this, Littlechild (2000) suggests that a model that measures children’s participation in court is devised in order to allow the evaluation of the court’s performance in upholding children’s rights to express their views and have these considered in legal proceedings.
The reasons behind some of the legal proceedings that children participate in revolve around concerns about whether the child’s rights are being breached by their birthparents. In cases where the biological parents have failed to uphold children’s rights, the child is removed from the home and the state take on the parenting role of the child. The state is from that point on compelled to fulfil the same duties as were expected from the birthparents (Fortin, 2009). One of the duties that the local authorities have in relation to looked after children is to balance the wishes and feelings of the child against the child’s age and understanding (Children Act 1989, s 22 (4, 5)).
But taking measures to ensure that children’s views are made a part of the decision-making process on matters affecting their lives may not be a priority to social workers and other child practitioners; local authorities in the UK have been under a great deal of scrutiny due to emerging research findings on the dissatisfaction of children in the care system. In one study, young people that had been placed in care reported feelings of helplessness, low self-esteem and poor confidence following the lack of opportunities made available to them in making decisions about their future (Leeson, 2007).
However, it is worth mentioning that only four participants took part in this study, all of which were boys between the ages 12 – 14 years. One could argue that this is not a true representation of children that are in care in the UK. Furthermore, all of the participants in this study were under the age of 6 when taken into care; in accordance with Fortin’s (2009) views that younger children lack the maturity to make major decisions about their lives, it would seem unreasonable to allow a child at the age of 6 or younger to choose whether to remain at home or to enter care. With regards to other research portraying similar findings, limited opportunities to be a part of decision-making processes affecting their lives causing the negative outcomes that children in the care system experience is not definite; there is no way of proving that these findings are correlational.
Additionally, it is important to consider the psychological state of a child that comes from an abusive home, which is the reason behind many children entering care. Schofield (1998) explains that abused children tend to have mixed feelings about the abusive parents, leading the child to present conflicting evidence (Schofield, 1998 cited in Fortin, 2009). Sexually abused children are according to the author particularly prone to minimize or deny the abuse altogether, and have a strong desire to return home. To allow such a child to decide to return to a home where social workers or other practitioners consider the risk of abuse re-occurring to be significantly high would infringe on the child’s right to protection and care by the state as is required by the UNCRC Article 3 (2). Fortin (2009) concludes that abused children’s rights to protection by the state would in such circumstances outweigh any rights to self-determination. Moreover, although much of research on the care system in the UK focuses on the negative aspects of care, it has been highlighted that there is also recent research that shows more positive outcomes for the majority of neglected and maltreated children who remain in care or are adopted than children who remain at home, in terms of well-being and stability (Wade et al. 2010, cited in Family Justice Review Final Report (3.24)).
Following recommendations that have been made by the Family Justice Review, the current UK Government has agreed that children who are involved in legal proceedings in England should receive age-appropriate information which will help them to understand the process. The task of developing and distributing such information has been assigned to the Family Justice Board. Furthermore, the Government advocate that older children should be offered a menu of options that list various ways in which they can make their views known to the court. These commitments made by the Government correspond with the idea that the maturing process is a gradual one, and address the issue by ensuring that children exposed to the law understand what is happening, and their options to participate in the decision-making process.
In order to ensure that children’s views and wishes are represented effectively in court proceedings, the Government may in addition wish to consider assigning an advocate to the child in line with research findings that suggest that children’s views rather than their ‘best interests’ are more likely to come to light when represented by an advocate instead of a legal guardian in court (Bilson, 2005; Littlechild, 2000). The Government should also consider how a child’s attachment relationship with an abusive parent might be affecting the view that children express in court, whereby the child’s rights to protection by the state should take precedence over the child’s right to autonomy (Fortin, 2009).
To conclude, children have the right to have their views listened to and included in decision-making processes on matters affecting them. However, the extent to which children’s views determine the final outcome is dependent upon the child’s age and maturity. In order to ensure that children’s views are represented in an effective manner to the judiciary, the UK Government has approved recommendations to provide children with age-appropriate information during court proceedings, helping children to understand the process and how their views might impact their future. It has also been suggested that the Government consider appointing an advocate and not a legal guardian to represent children, so that the child’s views rather than their ‘best interests’ are made known in court proceedings.
Contrasting findings have emerged on the outcomes of children in the UK care system. To claim that negative outcomes are caused by child’s limited opportunities to participate in decision-making processes involving their future care is not feasible as one cannot certify whether this is the definite and unique cause of the negative outcomes experienced by children later in life. Furthermore, it is important to note that children that enter the care system at a young age and children that have experienced abuse would not necessarily be expected to make the most reasonable choices concerning their care, due to lacking maturity and the having mixed feelings about the abuser. Child practitioners and the legal system should therefore take into account the age, maturity and background of a child when deciding the degree to which a child’s views should influence matters affecting them. Future research should investigate whether children have a greater understanding of legal proceedings as a result of receiving age-appropriate information about the process, and whether this will cause children to develop more negative perceptions of the legal guardian’s focus on their best interests rather than the child’s views.
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accessed 2nd October 2012.
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United Nations Convention on the Rights of the Child 1989