The Voice Of The Child

A Handbook For Professionals

Graham Upton, Ved Varma, Ron Davie

• Publisher: Routledge
• Year: 2003
• eBook ISBN:
  9781135792275
• Topic: Education
• Subtopic: Education General

This collection provides a guide to the legal requirements surrounding children's rights. The book discusses the practicalities and problems of listening to the child in educational, social and health settings.

Part I
Professional Perspectives

1
The Law in Relation to the Wishes and Feelings of the Child

Michael Sherwin

The Children Act 1989, which came into force on 14 October 1991, was the product of a great deal of thought and research, and brought about the most fundamental change of child law this century. There is frequent reference to the wishes and feelings of the child involved in civil proceedings. All parents are familiar with the difference between what a child wants and what is in its best interests; the legislators recognize this too but it is not always easy either for legislators or for those entrusted to make decisions on behalf of children to get the balance between the two right. This chapter will attempt to set out the ways in which the voice of the child may be heard in legal proceedings today. It is not offered as a comprehensive analysis; that would be impossible within the available space, in an inter-disciplinary text, but it is hoped that the points made in this chapter will be of assistance to professionals of other disciplines in putting particular problems in a legal context.

In Victorian times, children were said to be‘seen and not heard’. At the time of the Supreme Court Act 1873 children were regarded by the law, along with married women and lunatics, as‘persons under disability’, unable to bring or defend legal proceedings without a‘next friend’ or‘guardian ad litem.’ The thought that they might have a voice in legal proceedings concerning their future was unheard of.

The legal position of married women improved as society developed in a less paternalistic way, as to some extent did the position of mentally handicapped persons as society became more sensitive, but the position of children was quite slow to change. By 1970 there were two main ways in which children could come into the compulsory care of a local authority — by the local authority assuming parental rights, in respect of children in their voluntary care (Children Act 1948, S2) or by application to the court for a care order under Section 1 of the Children and Young Persons Act 1969. I do not propose to discuss children being remanded into care by a criminal court since this chapter is primarily concerned with the child’s voice in civil proceedings.

Parental rights resolutions could be challenged by the parents; the contest in court was between the local authority and the parents and the voice of the child was not separately heard.

Under the 1969 Act, a solicitor was appointed to represent the child; the parents could be represented but legal aid was not available for them. On the whole the child’s solicitor tended to represent the views of the parents. Applications to discharge care orders were contests between the parents and the local authority.

In November 1971 a juvenile court granted an application to discharge a seven year old child named Maria Colwell from care. Fourteen months later she was battered to death by her stepfather. From the report of the subsequent enquiry¹ came the involvement in such cases of an independent guardian ad litem to investigate the circumstances and prepare a report with recommendations based on the child’s needs, wishes and feelings.

The practice then developed whereby in most public law proceedings concerning children, the court would appoint a guardian ad litem to represent the child. The court would often appoint the child’s solicitor. The court rules were amended in 1984, enabling parents to be full parties to care proceedings, which meant that they could have their own representation if necessary paid for by the legal aid fund, and the influence of guardians ad litem meant that solicitors gradually began to recognize that the interests of the child may be different from those of the parents.

There were many cases concerning children which required a more flexible approach than was available under the Children Act 1948 (by then the Child Care Act 1980) or the Children and Young Persons Act 1969 (for example until 1984 parents had no right to challenge a decision by a local authority to refuse them access to a child in their care), and in the 1980s local authorities and to a lesser extent, family members resorted increasingly to the ancient parens patriae jurisdiction of the High Court by having a child made a ward of court.

The Official Solicitor to the Supreme Court, an office which has existed since 1876 to represent the interests of litigants not able to represent themselves, found himself increasingly being asked by the court to represent the interests of the children who were the subject of wardship proceedings. The Official Solicitor regarded his function as representing to the court a solution which he considered to be in the child’s best interests.

The Law Society decided in 1986 to establish a panel of solicitors approved by the Society as being competent to represent children in legal proceedings. Admission to the Child Care Panel (now the Children Panel) was by proven experience and demonstration of knowledge of the law, procedure and need to handle such cases with sensitivity.

Despite all these improvements cases continued to occur throughout the 1980s of children killed despite the involvement of the welfare services and the reports into these deaths, together with the Cleveland Report² contributed much to the thought which was to go into the Children Act 1989.

Under the Children Act 1989 the courts apply uniform principles when dealing with private and public law cases concerning children. Private law cases are cases between two or more individuals concerning a child. Public law cases are cases in which the State in the form of a local authority or the NSPCC is a party. How is the voice of the child heard?

Fundamentally, the court is enjoined by Section 1(1) to regard the child’s wel.tare as its paramount consideration when it determines any question with respect to the upbringing of a child or the administration of a child’s property. The court is given guidance, when dealing with a public law case or a disputed private law case, in what has become known as the ‘welfare check list’ in Section 1(3) which requires the court to have regard in particular to —

• (a) The ascertainable wishes and feelings of the child concerned (considered in the light of his (sic) age and understanding);
• (b) his physical, emotional and educational needs;
• (c) the likely effect on him of any change in his circumstances;
• (d) his age, sex, background, and any characteristics of his which the court considers relevant;
• (e) any harm which he has suffered or is at risk of suffering;
• (f) How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
• (g) the range of powers available to the court under this Act in the in question.

Similarly, when a child is being looked after by a local authority (whether accommodated or subject to a care order), the local authority is under a duty, before making any decision with respect to a child, so fu as is reasonably practicable to ascertain the wishes and feelings of (among others) the child regarding the matter to be decided (Section 22(4)) and, in making any decision, to give due consideration (having regard to age and understanding) to the child’s wishes and feelings, and to the child’s religious persuasion, racial origin and cultural and linguistic background (Section 22(5)).

Section 26 enables the Secretary of State to make regulations requiring the case of each child looked after by a local authority to be reviewed periodically. The regulations may make provision requiring the authority, before conducting any review, to seek the views of (among others) the child, to notify the child of the result of the review and to establish a complaints procedure which enables the child, among others, to make representations. Thus, the statutory complaints procedure provides a means whereby the older child can try to affect change in the way a local authority proposes to discharge its obligations towards him or her.

These statutory obligations and attendant regulations are designed to ensure that the local authority who is looking after a child does not lose sight of the wishes and feelings of that child, and the legislators expected that they would have a powerful impact on the way local authorities discharge their responsibilities. In practice, a child is not in a powerful position because it takes enormous courage to complain about the care system from within it. The independent element is only a small part of the complaints procedure, and the legislation is worded in such a way as to give local authorities a great deal of discretion as to the use of resources. The child’s only remedy after rejection of a complaint under Section 26 is an application to the High Court for a judicial review, a procedure fraught with technical difficulty.

The local authority’s obligations probably have most impact when the child is the subject of a public law application. Whilst the proceedings are pending the court exercises control over the matter. Its leave is required before a child undergoes a medical or psychiatric examination where the results of that examination are to be used in evidence in the proceedings. It expects the local authority to put forward a detailed care plan for the child which can, where necessary, be criticized by other parties to the proceedings.

The child’s protection does not, however, extend as far as allowing children to claim damages in respect of breach of the statutory duties imposed on local authorities and others under the Children Act 1989 or its predecessors, nor does any action lie in negligence in respect of a local authority’s failure to exercise its statutory duties. These points were established by two cases decided in 1994.³ In one of these, the Bedfordshire case, the Court dismissed a claim by five children against their local authority for damages for breach of duty arising from an alleged series of failures in the discharge of the authority’s statutory functions under the relevant child care legislation, resulting in personal injury to themselves; in the Newham case the child unsuccessfully sought to claim damages against the local authority in whose care she had spent almost one year on the basis of allegations, which turned out to be unsubstantiated, that she had been sexually abused. The House of Lords has upheld the Court of Appeal’s decisions (The Times, Law Report, 1995, June 30).

The voice of the child will be specifically heard in public law cases under the Children Act 1989, since by Section 41 the court is obliged in such proceedings to appoint a guardian ad litem for the child unless satisfied that it is not necessary to do so in order to safeguard his or her interests. One of the guardian ad litem’s duties is to appoint a solicitor to represent the child (although in some areas the solicitor’s appointment is still made by the court); in either case the child’s solicitor will be a member of the Law Society’s Children Panel. Thus the child will have a formidable team concerned to safeguard his or her interests in the proceedings, with one professional carrying out most of the investigation and the other putting forward the child’s case in court, and the two working together in partnership.⁴ A guardian ad litem is entided to examine and copy the local authority’s records and have them admitted into evidence in the proceedings (Section 42).

The Act, however, has thrown up one or two anomalies; for example, there is no provision for the appointment of a guardian ad litem for proceedings concerning an education supervision order, even though the child’s interest are paramount and the welfare checklist applies; on the other hand a guardian is likely to be appointed in proceedings for a child to be kept in secure accommodation although in such proceedings the child’s welfare is not paramount.

Free legal aid is now automatically available to children, and to parents with parental responsibility, for applications for care or supervision orders (although means and merit tests are applied on applications for contact with the child in care or application to discharge a child from care).

Problems can arise when an older child takes a view of the case different from its guardian ad litem. From whom does the solicitor take instructions? The solicitor’s professional rules are quite clear — if the child is old enough to give the solicitor instructions, the solicitor must act on those instructions, and in court he must act as advocate for the child client’s case. This leaves the guardian ad litem unrepresented by an advocate unless the local authority agrees to pay.

The position of the child’s voice in private law proceedings is less straightforward. The child is not, as in public law proceedings, automatically made a party to the proceedings. The duty to appoint a guardian ad litem unless this is unnecessary (Section 41(1)) is not applicable; one difficulty is that no fund has been established out of which the expenses of a guardian ad litem in private law cases can be paid. In most cases the courts rely on the services of court welfare officers to investigate and report on disputed matters (Section 7).

Before the Children Act 1989 most legislation enabled the court hearing an application concerning a child to make a care order or supervision order to the local authority if, in an exceptional case, that was felt to be appropriate. Since the Children Act 1989 was passed, the criteria in Section 31 provide the only route by which such orders can now be made. If the court hearing a private law case concerning a child (or certain other applications as well) takes the view that it may be appropriate for a care or supervision order to be made with respect to the child, it may direct the appropriate authority to undertake an investigation of the child’s circumstances (Section 37). The local authority is obliged, when undertaking the investigation, to consider whether to apply for a care or supervision order in respect of the child, and if they decide not to apply, they must inform the court of their reasons for so deciding. The court has jurisdiction to appoint a guardian ad litem when directing a local authority to undertake an investigation, and is likely to do so if it feels that an interim order should be made there and then⁵ and the court will revi...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Introduction: Partnership with Children: The Advancing Trend
• Part I Professional Perspectives
• Part II Generic Issues
• Notes on Contributors
• Index