Joint Committee On Human Rights Appendices to the Minutes of Evidence


  In this appendix, we have briefly described some of our outstanding issues in relation to children's rights and law.

Incorporation of the UN Convention on the Rights of the Child

  The UNCRC enshrines the three principles of Participation, Protection and Provision—particularly in two key articles

  Article 3

    1.  In all actions concerning children, the best interests of the child shall be a primary consideration.

    2.  States Parties undertake to ensure the child such protection and care is necessary for his or her well-being.

  And Article 12 which states:

  Article 12

    1.  States 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.

  Unfortunately the UNCRC rights are not directly enforceable in British courts, although the Children Commissioner for Wales will work within the framework of the UNCRC. Moreover with respect to asylum seeking children and juvenile offenders the UK government has simply placed a reserve on relevant articles, most notably in relation to the use of detention. Thus those children who are among the most vulnerable and most in need of special legal protection are specifically denied it.

  A stronger version of Article 3—the "paramountcy principle"—has been incorporated into domestic law in section 1 of the Children Act 1989, which states that

  (1)  When a court determines any question with respect to—

    (a)  the upbringing of a child; or

    (b)  the administration of a child's property or the application of any income arising from it,

  "the child's welfare shall be the court's paramount consideration".

  Article 12, also, is incorporated in section 1, stating that:

  ". . . a court shall have regard in particular to—

    (a)  the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding) . . ."

  Although these clearly incorporate articles 3 and 12 of the Convention, they are unfortunately somewhat narrow in their application. While "good practice" in most work and decision-making with children is generally held to include the adoption of the principles and "spirit" of the Children Act, there is no requirement in law for agencies and individuals other than the court to be bound by these principles. For example, the views of the child are not required by law where the local authority is considering child protection registration, nor is the paramountcy principle a statutory concern in relation to children at school, or asylum-seeking children. They do not cover remanded or sentenced children in prison, nor do they cover tribunal decisions about social security and housing for children. And they do not even apply to all children whose parents' divorce comes through the courts (see section on Legal Aid, later). In some senses the exclusions would seem to outweigh the inclusions.

Legal Capacity

  The child's right to participate in decisions affecting them (A 12 of UNCRC) was most generously interpreted, in relation to their capacity to consent, by Lord Scarman in the Gillick ruling (Gillick v. West Norfolk and Wisbech AHA 1986). He found that the "parental right yields to the child's right to make his own decision when he reaches a sufficient understanding and intelligence to be capable of making up his own mind". But this case itself applied only to the giving of consent to medical (contraceptive) treatment by those aged under 16. In Scotland the principle that legal capacity increases with a child's growing maturity, and clarification of the specific ages at which children can be considered to have the legal capacity to consent to a variety of interventions and activities for themselves, are given statutory footing in the Age of Legal Capacity (Scotland) Act 1991. In England and Wales the law itself remains piecemeal, with subsequent case law giving rise to complex exceptions and interpretations. This leaves children and the professionals who work with them, to make their own judgements and assumptions, based on a "lay" interpretation of the relevance of the Gillick Ruling and subsequent case law, in making decisions about whether and when a child has the right to make autonomous decisions about their own lives.

  In a broad sense, the transition from childhood to adulthood is an area of the law riddled with inconsistencies and a confused view of children and young people's capacities. For example, from the age of ten a child is held to be fully criminally responsible for their own behaviour; but until she is 16 it is her parent who is held legally responsible if she is not attending school. Breach of a "young offender contract" or an anti-social behaviour order (soon to become an "acceptable behaviour contract" for young people) can result in a child being criminally sanctioned, however the same child cannot enter into a legally binding contract with another party (and therefore cannot seek remedy for its breach by the other party) until she is 16. From the age of ten she can be arrested for the criminal offence of soliciting, but she is not considered to have the legal competence to consent to the sexual intercourse she solicits until she is 16. At any age, a child who earns enough money to qualify can be taxed on her earnings, but she cannot vote on how her taxes are spent until she is 18. At 16 she may fly a plane, but not till 17 drive a car. At 16 she loses her right to live in her parent's home, but not till 18 can she have her own tenancy and not till 25 will she be eligible for full rates of income support.

  Currently it is fashionable to see rights as having reciprocal responsibilities. It would seem however that in many cases children and young people are given responsibilities first and their rights later. A thorough review and overhaul is clearly needed, based on some consistently applied principles about children's capacities for reasoning and understanding.

Legal Aid and representation

  Formal legal rights are of little use if people cannot access the law. Children are discriminated against as compared with adults in their entitlements to legal aid as well. Broadly speaking they are entitled to both representation and legal aid in the criminal courts and public law cases. However in family proceedings they are not automatically entitled to representation or legal aid. They may secure this right if there is dispute between the parents. In our view any parental divorce should be considered a court action that affects and concerns the child at least as much as either parent. Therefore the child should always have a right to have their views heard by the court (through a legal representative where they wish or need one) regardless of whether the parents are in agreement or not. This is not a minor technical point—in a country where 25 per cent of children will experience the divorce of their parents by the age of 16, and a significant proportion of divorce settlements go uncontested by either parent, there are many children for whom the paramountcy principle (section 1 of the Children Act 1989) does not apply as it should.

  The Government's CAFCASS reform does not meet this need. We have asked the LCD if they could show separately in their budget what funds go to children. Unfortunately they cannot do this. Giving children full rights to representation and legal aid in any case affecting them would undoubtedly have some financial costs, but these should be set against the costs associated with their unhappiness about current processes.

What Children Say

  The Children's Society regularly surveys older children about their concerns. A broad survey, based on the views of 600 children was published last year. The survey—My Vote Counts Too—reveals a generation of children as law-abiding and environmentally-conscious citizens with an overriding concern for cleaner parks and footpaths and to get rid of dog mess, especially where children play. A more detailed consultation with 110 children and young people living in difficult circumstances was also undertaken. These children were worried about the high levels of violence they faced—in their communities, families and schools. They also raised drugs, racism and the need to work as issues for them.

  Children are important stakeholders in our society and yet decisions on how £60 billion of public money is allocated are taken without consulting them.

  Children are often seen by adults as "adults in preparation" hence the heavy emphasis placed on education. Children—not surprisingly—see things differently. They have a strong interest in the current provision of public goods, public services and public spaces—emphasising physical safety and a better environment.

12 July 2001

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