One of the principle aims of the Children Act

one of the principle aims of the Children spotOne of the principle aims of the Children Act 1989 was to ensure that more attention was paid to the babys voice.critically examine to extent to which this aim has been achieved.IntroductionBridgeman and Monk argue that the development of sister impartiality is becoming progressively more distinct from family law. In their take this development can be beneathstood as a reflection of the influence of s meetrrens rights and feminist positions of the law that have encouraged a tike centred focus where babyren be non simply seen as family persons besides as individuals in their own right (Bridgeman and Monk, 2000, p. 1), a point reiterated by Muncie et al. who point to the perception of rights of children as now existence considered as distinct from the rights of the family as a whole (Muncie at al., 2005).The Children Act 1989 which came in to force on 14th October 1991 was annunciate as the most important legislation pertai ning to children in living memory. Lord Mackay called itthe most comprehensive and far reaching form of child law which has cope earlier Parliament in living memory.Prior to the Act the law relating to children in the UK had been driven by a plethora of divergent pieces of legislation, melt downing to immense complexity and inconsistency. Although European law has come to an increasing level of prominence in domestic law, in practice the Children Act remains the single muniment most referred to (Prest and Wildblood, 2005, p. 311).The strength and scope of the Act have been reflected by the considerable body of shimmy law that evolved in a relatively short head of time.The Act fulfilled two functions as highlighted by AllenIt brought together all the existing law under the umbrella of one piece of legislationThe Act acknowledged the limits of the law in family relations. musical composition it was seen as a land mark piece of legislation, it did not contain a magic formula to push-down list with family problems.(Allen, 2005, p.1).The main thrust of the Act was to enable all those involved with the c ar of children to further their outperform interests whether living with their families, in local authority care or in respect of protection from abuse.Private and Public rightThe private legislation relating to childrens law does not concern public bodies. It refers to issues that are mingled with individuals, usually family members.The public law relating to children concerns legislation pertaining to intervention by public authorities. This encompasses voluntary agencies as well as social operate. The State is typically a party to proceeding.Purpose of the ActIt was also hoped that through the Act children would fabricate more central to proceedings concerning their welfare and would be given a easily stronger voice. womens rightist analysts have questioned the effectiveness of this, arguing that the law is often give at protecting the interes ts of adults than children.Common rectitude Before the ActHistorically, in normal law paternal rights were traditionally with the tyro in the case of legitimate children. It was not until 1886 that m new(prenominal)s were given guardianship under the Guardianship of Infants Act and the welfare of the child was to be taken into account when hearing rough(prenominal) claim.Developments in this area of the law truism an increasingly important go through given to the welfare of the child. This evolved into the novel idea of paramnountcy, enshrined in the 1989 Act.The Law Leading to the ActBefore the Act there were a number of different aspects of childrens law, described by Allen as chaotic in its character (Allen, 2005, p.3). The law relating to children had evolved in a somewhat haphazard way, and was becoming increasingly difficult for professionals to interpret. In 1984 a comprehensive review was undertaken in an attempt to integrate the law.The White Paper published in 198 7, The Law on Child care and Family Services, stated that government proposals would involve a major overhaul of child care law intended to provide a clearer and fairer framework for the provision of child care services for families and for the protection of children at risk.1Scope of the ActThe Act covers m all areas including pre-school day care, child protection, local authority provision for children, the care of children in independent schools, children involved in fall apart or custody proceedings, children with disabilities, child patients in long stay hospitals and children with learning difficulties (Hendrick, 2003, p.196-107).Intrinsic to the legislation were four main principles(1)The paramountcy principle this was not really a new idea but added considerable weight to ideas about child welfare, making it clear that this was always to be paramount in all ends. This manoeuver principle has, however, been criticised in some quarters because of its vagueness.The childs welfare is the paramount consideration in respect of(a)the up delivery of the child(b) the administration of a childs property or any income arising from it (s 1 (1)).2(2) A checklist was introduced to assist mashs in applying the welfare principle when considering certain categories of club.(3)The delay principle which states that proceedings should be expedited with minimum delay as any such delay is regarded as being to the childs disadvantage unless proven otherwise (s 1 (2))3.(4) Intervention by the State in the life of the child or the childs family should only occur when it could be shown that on balance the bringing of proceedings is likely to be in the best interest of children. This is the no order principle where no order shall be made unless it is considered to be better for the child than making no order at all.4 slightly new concepts were introduced. One of the main ones was parental responsibility. This emphasised the rights of parents in the context of their paren tal responsibility. If parents exercise their responsibility with the necessary level of diligence, certain rights in law are afforded, in effect promoting parents as authority figures. The Act also saw something of a swing back in emphasis to parents as opposed to the state being responsible for their children. Parents could only relinquish their responsibility to their children through formal, juristic adoption. The term accommodation replaced voluntary care meaning, in effect that local authorities would care for children on their parents behalf only until such times as they could hook on their proper role (Eekelaar and Dingwall, 1989, p.26).Parental ResponsibilitiesThe Children Act gave courts wide ranging and flexible functions to regulate the exercise of parental responsibility, introducing some sweeping changes in this area.The Childs WishesOne of the central ideas was that the childs wishes be taken into consideration, to a level which was appropriate in any proceedings. The issue has arisen in relation to care proceedings, medical examination treatment and so on. In the case of local authority accommodation, there is a clear distinction in law between children over and under sixteen familys old. The Children Act provides that neither the parental right of objection not the parental right of removal applies where a child of sixteen agrees to being provided with accommodation.5This was tested in Re T (Accomodation by Local Authority)6. A seventeen year old lady friend had been informally accommodated by friends, an arrangement which she desire to formalise so that both parties would be eligible for benefits under section 24 of the Act which would stop when she reached age 18 otherwise. The director of social services ref apply this take taking the view that her welfare was not likely to be seriously prejudiced if she were not accommodated. This decision was quashed at court, the judge taking the view that social services had no way of ascertaini ng her future needs and there was no way of establishing whether the local authority would continue to exert the discretionary power it had done up to this point.The issue of the childs wishes is a much more contentious area when younger children are involved. Some very affectional case law, particularly in respect of medical arrangements and treatments, has developed in this area.The childs age should be taken into consideration when making any decision, but this is dependent on the individual child concerned . It is well recognised that children have the capacity to engage in acts and make decisions which can be dependent on chronological age or the attainment of a level of maturity beyond the chronological age. Precedent concerning a childs age was starting line established in the land mark case of Gillick v. West Norfolk and Wisbech Health Authority7.The Gillick CaseIn 1980 The Department of Health and Social auspices asserted that, while it would be most unusual, it would be lawful in some component part for a doctor to give contraceptive advice to a girl under sixteen without prior consultation with her parents. Victoria Gillick, a parent with strongly held religious views, sought assurances that none of her daughters would receive such advice.Her claim was ultimately rejected by the House of Lords, the decision coming to be known as Gillick competence. Lord Scarman proposed that a high level of registering would be required, extending beyond the medical issues.Lord Scarman notedIt is not enough that she should understand the nature of the advice which she is being given she must have sufficient maturity to understand what is involved.Critical was the question in respect of whether, once a child has reached a certain level of maturity, whether in chronological or maturational terms, the rights of the patents to be involved, should be terminated or should co-exist with the childs.The Gillick decision was contrary to popular opinion and controversial . When faced with the dilemma of Gillick competence again, the courts adopted a somewhat different view. Later case law served to muddy the waters and adolescents were not given clear advice over their right to reach decisions for themselves in the event of family disputes or other issues.Re R8 concerned the competence of adolescents to refuse medical treatment.R was a fifteen year old girl who had been suffering from mental illness which had caused her to be hospitalised under the Mental Health Act. At various times during the course of her treatment she was regarded as being a suicide risk. The unit in which she was hospitalised used sedatives as a last resort as part of the treatment regime. The hospital said that they would not retain R in hospital unless she were brisk to engage in treatment, including taking sedatives.They put this to the local authority who had parental responsibility for R. The local authority initially agreed to the hospitals request but, following convers ation between R. and a social histrion, withdrew its consent. R indicated to the social worker that the hospital were trying to give her drugs which she neither wanted nor needed. The social workers opinion was that R. was lucid and rational during the conversation, an assessment subsequently confirmed by psychiatric evaluation. The authority made R. a ward of court to finalize the argument. This is demonstrative of the responsibility to make the childs voice heard, through the consultation process, a responsibility placed on local authorities by the Act.The solicitor acting as guardian ad litem argued that, where a child has capacity to withhold consent to treatment based on sufficient understanding, any parental right to give or withdraw consent terminated.Lord Donaldson reopened the whole discussion in respect of the relationship between a capable minors capacity and a parents right to consent on a minors behalf.The romance of Appeal upheld the decision of Waite J., that R. failed the test of competence and that, in her best interests, the treatment should be authorised.The most substantial issue was whether the court had the power to over rule the decision of a competent minor. The court held that such an ability existed because the Gillick principles did not have effect in wardship proceedings. It was argued that the court had wider powers than those of normal parents, being derived from the Crown. The court saw no yard not to override the wishes of a competent minor if it believed that to be in the childs best interests.The judgement demonstrated that the finishing of the welfare and the Gillick tests could lead to different results.The courts power to override the decision of a minor were again illustrated in Re M. (Medical Treatment Consent)9. A fifteen year old girl needed a heart transplant to save her life but refused to give her consent. Her reasoning was that she did not want to have some one elses heart and did not want to have to take me dication for the rest of her life.In the solicitors notes taken at interview, it could be clearly seen that she had considered conservatively her decisionDeath is final I know I cant change my mind. I dont want to die but I would rather die than have the transplant and have someone elses heart, I would rather die with fifteen years of my own heart.While acknowledging the gravity of overriding M.s decision, and the associated health risks, the operation was authorised.Children in CourtEnglish law has not traditionally given minors right of image in legal proceedings, but this was one of the main issues that the Children Act 1989 sought to address. The usual procedure has been for courts to require welfare reports in respect of children rather than to elicit the views of children themselves or of other interested parties or representatives.The Children Act considerably changed that nature of representation for children in public proceedings in court. In care proceedings the Act cr eated the presumption of the appointment of a guardian ad litem (Childrens guardian). The child will also automatically be party to the proceedings.Childrens guardians are individuals who are required to have a thorough knowledge of both social work and child law. Their role is to ensure that the court is fully advised of the relevant facts which relate to the childs welfare and that the wishes and feelings of the child are clearly established.10 Their role is to be proactive in its nature and ensure that the wishes of the child are given their due weight in the proceedings.The issue in respect of private law is markedly different with children rarely being be in this context. These are generally in relation to divorce and while welfare reports are submitted on occasion, this is not often the case, simply because of the volume of these types of proceedings. misuse to childrenOne of the main purposes of the Children Act was to ensure that children be protected from harm.Newham capi tal of the United Kingdom Borough Council v. AG11. reflects the difficult choice with which the courts are often faced regarding whether it is better for a child to stay with members of his/ her elongated family or other, outside carers. In Newham the Court of Appeal held that placing the child with grandparents would be unsatisfactory as they would be unable to protect the child from the serious risk that was posed by the childs mother who suffered from severe schizophrenia which manifested itself in her inability to look after the child and to give way her.The test case for the risk of significant harm is Re M. (A minor)( contend Order Threshold Conditions).12 A father had murdered the childrens mother in present of them, after which they were taken into emergency protection. The father was convicted of the mothers murder and was sentenced to life imprisonment with a recommendation that he be deported to Nigeria, his home country, on release. Three of the four children were pla ced with Mrs W., the mothers cousin, but she felt unable to cope with the youngest child, M. who was placed with a temporary foster mother. Eventually Mrs W. wanted to offer M. a home with his siblings. The father sought to influence the decision from prison, as he was M.s biological father. The local authority, the guardian ad litem for M., and the father all wanted a care order to be made for M. outside the extended birth family.Bracewell J. made the care order in the first instance but the Court of Appeal favoured Mrs W., substituting a care order in her favour. The question for the courts was whether, in considering if a child is suffering from significant harm, is it permissible to consider the situation when custodial measures were introduced, or does this test have to be satisfied at the time of the hearing at which the application is being considered. At the time of the hearing M. was no longer suffering, nor was he likely to suffer significant harm because, by this time, h e was being in good order looked after and the danger had passed.The House of Lords held that there was jurisdiction to make a care order in these circumstances. Lord Mackay argued that the court was entitled to have regard to the full length from the protection to the disposal of the case. Brackwell had been entitled to, and indeed correct, to look back to the time when the emergency protection was taken. She had been entitled to infer that, at that time, M. had been for good deprived of the love and care of his mother which constituted significant harm. The care given by the father was not what could reasonably have been expected from a parent, although it could reasonably be argued that the anger and violence was directed to the mother rather than M. The only limitation in the process of looking back was that the initial protective arrangements had remained continuously in place. Lords Templeman and Nolan pointed out that to restrict evidence to that which was available at the h earing could mean that any temporary measures which removed the risk could preclude the court from making a final care order which could not have been Parliaments intention.Separated FamiliesContactA great deal of case law relates to families where divorce or separation is a factor. Section 8 of the Act deals with the sink in orderan order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.13The contact order has become very important in the sphere of childrens law as it is the most common type of order made. Men, who tend not to be the residential parent in cases of divorce, are increasingly applying for contact orders with their children.Payne v. Payne is one of the leading cases in respect of contact. The mother, originally from New Zealand wanted to light there with the couples four year old child following her divorce. Mr Payne argued that, to allow the mother to remove the child from the country, would infringe his right to contact, and that this incursion would be contrary to the principles of the Children Act 1989. The Court of Appeal argued that the childs happiness was bound up in the happiness of the mother , the primary carer, and any move to separate them might be that her unhappiness, sense of isolation and depression would be exacerbated to a degree that could well be damaging to the child.The judgement in Payne v. Payne was not a denial that the father had a right to contact. It was a demonstration of the application of the welfare principle, protecting the best interests of the child which were, in the courts opinion, inextricably linked to the mother. The decision makes clear that contact is a qualified right which will always be superseded by the welfare of the child.PaternityThe paramountcy principle has been criticised as being too limited in its scope. Where the issue of paternity has come before the courts it has been held that this only has an indirect impact upon the childs upbringing and so falls outside the scope of the test. Freeman has argued that since maternity is rarely in doubt, this stance in respect of paternity allows men to shirk to some degree their paternity in the English Legal system (Freeman, 2000, p.33).Foster ParentsWhile the law relating to children has always had scope in respect of biological families, this is clearly extended to foster parents by the Children Act. The term foster parents covers a variety of care arrangements, but is most usually thought of as parents who look after children to whom they are not related. The main distinctions in foster care arrangements are in private or local authority arrangements and short and long term rearing arrangements.Arrangements and case law have shown that foster carers will not automatically be afforded parental responsibility, legal steps must be taken before this can happen.In Gloucest ershire County Council v. P14 the childs guardian ad litem persuaded the court that a residence order in favour of the foster parents, rather than an order freeing the child for adoption or residence order in favour of the extended family, would be appropriate. A majority of the Court of Appeal held that the Court did, in fact, have the power to do this even though the foster parents had cared for the child for less than three years.More than one childProblems with the paramountcy principle have occurred when there is more than one child and their interests appear to be at odds. In Birmingham CC v. H15 the case concerned a mother, herself a minor, and her child. It was believed to be in the mothers best interests to maintain some contact with her baby as she may self harm otherwise. It was not held to be in the best interests of her baby. The law said that the interests of both was paramount. The House of Lords held that it was necessary to identify the child who was the subject of the application and make their welfare paramount, in this case the baby. This logic has been apply in subsequent cases on this egress when the interests of siblings have been thought to be in conflict.ConclusionIt is generally agreed that the Children Act represents a consensus among interested parties, notwithstanding of course for children, who were not consulted (Hendrick, 2003, p.198). The concept of welfare or best interests of children reflects a desire to protect children. Some theorists have argued that because the input of children into changes in the law has been neglected, the law may be ineffective in protecting them from harm which may be very different from the harm and pain felt by adults (Bridgeman and Monk, 2000, p.7).Some aspects of the Act have been problematic. The paramountcy principle has been very difficult in both a practical and an ethical respect. There is considerable tension between a childs welfare and a childs voice. The weight of the law is given to the former but many argue that the childs opinion and wishes should carry more weight than they do at the moment. There are also, as has been seen, questions concerning when the childs wishes should supersede those of his/ her parents and be respected as valid in their own right.The law in relation to children has seen more change in recent years but the Children Act still has considerable force in practice. While there has been increasing emphasis placed on childrens individualism, autonomy, capacity and competence (Hallett, 2000, p.389), it has been seen that it is often the case that no matter how lucid or mature a child appears to be, the courts have been reluctant to allow the child to have a full voice in issues of a serious and life changing nature. The complex nature of families and their increasingly diverse nature in society means that these difficult issues will probably become more, rather than less complex in their nature and present themselves with a greater degree of frequency.ReferencesAllen, N. (2005) Making Sense of the Children Act 1989. Chichester John Wiley and Sons.Bainham, A. (1990) Children The New Law. Bristol Jordan issue Ltd.Bainham, A. (2005) Children The Modern Law. Bristol Jordan Publishing Ltd.Bainham, A., Day-Sclater, S. Richards, M. (Eds)(1999) What is a Parent? A Socio-Legal Analysis. Oxford Oxford University Press.Bridgeman, J. Monk, D. (2000) Reflection on the relationship between feminism and child law in J. Bridgeman D. Monk (Eds) Feminist Perspective on Child Law. capital of the United Kingdom Cavendish Publishing.Corby, B. (2002) Child Abuse and Child Protection in B. Goldson, M. Lavalette and E. McKenchie (Eds) Children, Welfare and the State. London Sage.Eekelaar, J. (1991) Parental Responsibility State of nature or nature of state? Journal of Welfare and Family Law, 1, 37-50.Eekelaar, J. and Dingwall, R. (1989) The Reform of Child Care Law A practical Guide to the Children Act. London Routledge.Farson, R. (1978) Birthrights. London Penguin.Fortin, J. (2003) Childrens Rights and the Developing Law. London Reed Elsevier.Freeman, M. (2000) Feminism and Child Law in J. Bridgeman D. Monk (Eds) Feminist Perspective on Child Law. London Cavendish Publishing.Gibson, C., Grice, J., James, R. Mulholland, S. (2001) The Children Act Explained. London The Stationery Office.Hallett, C. (2000) Childrens Rights Child Abuse Review, 9, 389-393.Harris, P.M. Scanlan, D.E. (1991) Children Act 1989 A Procedural Handbook. London Butterworths.Hendrick, H. (2003) Child Welfare Historical Dimensions, Contemporary Debate. Bristol. The Policy Press.Herring, J. (2004) Family Law. London Pearson.Hoggett, B.M. (1987) Parents and Children The Law of Parental Responsibility. London Sweet and Maxwell.Horwarth, J. (Ed)(2001) The Childs World Assessing Children in Need. London Jessica Kingsley Publishers.Masson, J. (1990) The Children Act 1989 Current Law Statutes Annotated. London Sweet and Maxwell.Muncie, J. Wetherall, M., Dallos, R. Cochrane, A. (Eds)(1995) Understanding the Family. London Sage.Prest, C. Wildblood, S. (2005) Children Law An Interdisciplinary Approach. Bristol Jordan Publishing Ltd.White, R., Carr, P. Lowe, N. (1995) The Children Act in Practice. London Butterworths.Wyld, N. (2000) The Human Rights Act and the Law Relating to Children. Legal Action, September, 17-18.1Footnotes1 Family Law Review of Child Law (Law Com No. 172, 1988), para 2.4.2 There are some exceptions to the paramountcy rule.3 The delay principle is a general principle not an absolute one. There are circumstances in which a planned and purposeful delay may be in the childs interests.4 This is consistent with the main philosophy that there should be minimum intervention in family life and that parents should exercise responsibility for their children.5 Section 20 (11).6 1995 1 FLR 159.7 1986 AC 112.8 Re R (A Minor) (Wardship Consent to Treatment) 1992 Fam 11.9 Re M (Medical Treatment Consent) 1999 2 FLR 1097.10 Children Act Advisory Committee Annual Report 1992/1993 (Lord Chancellors Department, 1993) at p.14.11 Newhan Borough Council v. AG 1993 1 FLR 281.12 RE M (A minor)( Care Order Threshold Conditions) 1994 3 WLR 558.13 Section 8 (1).14 Gloucestershire County Council v. P 1999 2 FLR 61.15 1994 1 FLR 224.