Children Act 1989 and a child’s rights thirty years later

6 November 2019 by Guest Contributor

Child rights in 2019

The Children Act 1989 (CA 1989) received Royal Assent on 23 November 1989 (30 years ago); and it was in force from October 1991. It was a major reform of children law which required everyone – parents, children (when of ‘understanding’), judges, social workers, health professionals and lawyers – to learn a new set of legal concepts and attitudes. But what about children’s rights? And what has happened to the law’s regard for those rights since 1989?

The Act required courts to consider a child’s ‘wishes and feelings’ when that child’s welfare was in issue in a court. In parallel with this, United Nations Convention on the Rights of the Child 1989 Art 12.1 – though not formally part of the Act – says:

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.

Amongst its more radical reforms – as seen in 1989 – the Act included the following:

• A provision to give children the right, if of sufficient understanding, to take part in litigation under the Act about them; or to start their own family proceedings (with permission of the court);
• One overarching statute setting out the private aspects of children proceedings alongside the administrative (which became known as ‘public law’: local authority care proceedings) components;
• An obligation to adopt a consistent set of welfare principles to govern both private and administrative proceedings;
• An obligation to define parental responsibility as responsibility, not as parents’ rights.

Child’s views, wishes and feelings can be seen in the still highly influential 1985 Gillick case [Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112]. The House of Lords recognised the fact of a child’s understanding (in Gillick the ‘understanding’ was whether a doctor could provide contraceptive information to a child under 16 without her parent’s consent: the answer was, yes). Parent’s rights must yield to a child’s right to make decisions as the child ‘reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’.

What does the mature child know of her or his rights?

Case law on children’s rights, since then, has been rare. How far is this because children do not know or understand their rights? In a 2006 case Lady Hale (as a Law Commissioner, Brenda Hoggett (now Lady Hale) was closely involved with the development of the Act) considered whether an eight year old Romanian child should be returned to Romania. Of a child’s views she said:

[57] … As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants. Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides…. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

In cases in 2006 and 2016 the Court of Appeal and in 2010 the Supreme Court (Lady Hale, again) have recognised the importance of children’s views; but the extent of this recognition is limited in day-to-day children cases before the family courts.

And the recognition of children’s rights in how a child gets to court to enforce their rights is, I am afraid, a jumble of rules and of confused law. It is not a credit to rule-makers or modern law reformers. The contexts in which a child’s understanding is critical to proceedings, and to their views coming into account, may crop up as follows:

• For children to make their own application to the court, whether or not with their own legal representation;
• To make a separate application, with or without representation, in existing proceedings;
• Within existing private proceedings, to dispense with their court-appointed guardian and to proceed alone or represented by the child’s own lawyer;
• A child whose instructions in care proceedings to an instructed solicitor conflict with those of the children’s guardian; and the child wants to proceed on the child’s own instructions; and
• A child who wishes to pursue fresh applications alongside a care order made in earlier care proceedings and wants to instruct a solicitor where the child’s views conflict with the children’s guardian.

Case law should show how these rights are exercised; but it is sparse, probably because child’s rights are not being understood by children ‘of age and understanding’ and are not being recognised by family judges. One 2016 case actually shows the Court of Appeal failing to get right the ‘complex’ – as the judges described them – rules.

And exercise of rights?…

The fact is, any of us – and a child is no exception – only has rights if we can understand what our rights are, and how we can get access to courts to exercise them. This must be more so in the case of a child, in terms of their understanding of what their rights are. So how does a child in each of the five categories above make application to the court? How does she find out what her rights are to apply to the court? How does she find out about legal aid and how find out how to apply to the court?

By any normal standard the rules for children proceedings are obscure (‘complex’ said Lady Justice Black in 2016). For example, category (1) in the list above: the child who wants to move to another home or have something to say about parental contact looks for procedure in two places: CA 1989 s 10 and in procedural rules. If a child believes she is of ‘sufficient understanding’ she can apply for an order. But who is to say if a child in ‘of understanding’ (answer: nobody really knows whose assessment job that is)? Yes, the child can make her own application to the court and if a judge gives permission; or if she can find a solicitor who will take on her case and obtain legal aid for her.

So where are children’s rights 30 years on from the 1980s which gave child law the Gillick case, the UN Convention and Children Act 1989? Children law as a whole has moved on massively. But children’s rights? I am not so sure. Go back to Art 12.1 and to ‘assure to the child … [a] right to express views freely’? To ‘assure to the child’ she must know of any right she has, and of how her views can be expressed.

The mature child’s views should surely be critical to any proceedings which affect that child? We are an appreciable way from having a procedural framework in the family courts to ‘assure [that] to the child’.

David Burrows is a solicitor advocate, trainer and writer. His previous posts are here:

• ‘Subsistence’ and modern slavery
• Reporting restrictions and the James Bulger murder
• Are English marriage laws consistent with the Human Rights Convention