In this appendix, we have briefly described
some of our outstanding issues in relation to children's rights
Incorporation of the UN Convention on the Rights
of the Child
The UNCRC enshrines the three principles of
Participation, Protection and Provisionparticularly in
two key articles
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:
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 3the "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
Article 12, also, is incorporated in section
1, stating that:
". . . a court shall have regard in particular
(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.
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
pointin 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 surveyMy Vote
Counts Tooreveals 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 facedin 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.
Childrennot surprisinglysee things differently.
They have a strong interest in the current provision of public
goods, public services and public spacesemphasising physical
safety and a better environment.
12 July 2001