How do children rights issues impact on this debate?



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The principle that the child’s welfare is paramount when court decisions are made is one of the main underpinning principles of the Act (Brayne and Martin, 1990) and this is compatible with the concept of ‘child centred practice’. The Act recognises the right of children to participate in decisions about their own welfare, depending on age and understanding, and gives children a ‘voice’ when decisions are made about them. The Children Act however sets the welfare of the child as the issue which is to be the paramount consideration in court proceedings.

This means that there may be a divergence between the wishes of the child and what is deemed by the court to be in the child’s best interest. Kay (2001:16) makes the point: “therefore, in theory and practice, the child’s views could be ascertained, considered and then ignored”. One of the roles for a social worker in such proceedings might be to ascertain the feelings and wishes of the child and then to make recommendations to the court, taking these wishes and feelings into account but not necessarily concurring with them. It could be argued that in cases such as these, a child centred approach is not adhered to.

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The counter-argument to this however could be that given the age of the child and level of cognitive development and experience, some children may not have a full understanding of the implications which their decisions may have on their lives. A child centred approach would seek to balance a child’s right to make decisions with their right to have their welfare protected. The term ‘Gillick competent’ is used to describe a child under the age of 16 who is judged to be of a “sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision” (Smith, 1996: 52).

The practice implication for this is that when taking into consideration the opinions and wishes of the child, it must first be established what those wishes and views are and then whether those wishes and views are to be considered, or acted on, based on whether the child is deemed to have a full enough understanding of the implications of their decisions. Farnfield (1998:53) talks about “children as consumers” and the difficulty which many social workers have in balancing the rights of the parents with the rights of the child.

Given the drive towards working in partnership with parents in childcare and inclusion of all relevant parties when working within a social care field, it may be difficult, when working with families, to remain focussed on the issue of who the client is and whose interests are best being served by any particular course of action. Trevithick (2000) discusses a particular case where she was having difficulty in establishing a good relationship with parents in a child protection case.

The issue of having the ‘agenda’ of protecting the children was identified as a stumbling block in the establishment of a rapport with the parents. Brayne and Martin (1999) however argue that, from a legal perspective, in child protection cases the primary client must always be the child. This is borne-out by the policy document ‘Working Together to Safeguard Children’ (Department of Health, Home Office, Department for Education and Employment, 1999) which states that professionals should: “work co-operatively with parents unless this is inconsistent with the need to ensure the child’s safety.

” This is also compatible with the ethos of child centred practice in placing the child first. The need to protect the welfare and rights of children in court proceedings has resulted in the appointment of independent guardians ad litem (re-named ‘children’s guardians’ since April 2001) under section 41 of the Children Act (1989) to represent the interests of the child. A guardian ad litem will be appointed by the court to act as advocate for the child unless satisfied that it is not necessary for the best interests of the child to do so.

Dalrymple and Burke (1995) discuss guardians ad litem and the value that their reports have when implementing a child-centred approach, given that they are in the “privileged position of advising the courts” (pg 153). Anti-oppressive practice is promoted by the use of advocates to represent people who are in positions of relative powerlessness, as children arguably are, in court proceedings, so this also promotes a child centred practice.

Although there have been great improvements in child centred practice and consideration of children’s rights since the Children Act was first implemented there are still further improvements which could be made. According to Smith (1996) social work has been criticised for “lagging behind legal expectations of consultation with children” (pg 55). Criticisms have including failing to take the wishes of the child into consideration when carrying out assessments and failing to consult and involve children in proceedings.

Other criticisms have been centred around failure to consider adequately the needs of children from different cultural backgrounds and of children with disabilities. Despite the ratification of the Convention on the Rights of the Child, nearly ten years ago, there are still areas where the UK is still lagging behind in implementing the guidelines. Social work policy and practice guidelines acknowledge the benefits of a child-centred approach in the outcomes for children in need and looked after children and in the court system.

Further research is also being carried, both by statutory and voluntary agencies out to see how far guidelines are adhered to. Recommendations from these reports need to be followed in order for there to be a more child-centred approach to children’s provisions in future so that children really do have their rights addressed.

References Brayne, H and Martin, G (1999) Law for Social Workers – sixth Edition. London: Blackstone Children’s Rights Alliance for England (CRAE) http://www. crights. org. uk/about/about. html (2002, 9th March) Dalrymple, J. and Burke, B. (1995) Anti Oppressive Practice.

Buckingham: Open University Pres Department of Health; Home Office; Department for Education and Employment, (1999) Working Together to Safeguard Children London: HMSO. Available online: http://www. doh. gov. uk/pub/docs/doh/safeguard. pdf (2002, 3rd March) Department of Health (2000) Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974. Available online: http://www. doh. gov. uk/lostincare/20102. htm (2002 1st March) Farnfield, S (1998)

‘The rights and wrongs of social work with children and young people’ in Cheetham, J.and Kazi, M. A. F (eds. ) The Working of Social Work. London: Jessica Kingsley Kay, J (2001) Good Practice in Childcare. London: Continuum Mullally, M. (1994) Law and The Family. London: Hodder and Stoughton Parrott, L. (1999) Social Work and Social Care. Sussex: Gildridge Press Smith, P. M. (1996) ‘A Social Work Perspective’ in Davie, R. , Upton, G. , and Varma, V. (eds. ) The Voice of the Child: A Handbook for Professionals. London: Falmer Press Trevithick, P. (2000) Social Work Skills. Buckingham: Open University Press.

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