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Listen

'Voice of the Child' Under the Children (Scotland) Act 1995: Volume 1-Mapping Paper

Chapter Three: Part II of the Children (Scotland) Act 1995, Chapter 1

Which decisions require children's views to be considered?

Basic Principles: Sections 16 and 17

3.1.1 Section 16 requires children's hearings and sheriffs to take account of the views of children in certain circumstances. The application of this section is considered later in relation to Chapters 2, 3 and 4 of this Part of the Act.

3.1.2 Section 17 obliges the local authority to listen to a child who is, or may become, 'looked-after' by them:

"(3) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the views of -

(a) the child; …

(4) In making any such decision a local authority shall have regard so far as practicable -

(a) to the views (if he wishes to express them) of the child concerned,
taking account of his age and maturity;…."

This section applies in two ways the legal principle of listening to children's views. First, the Section defines a wide category of 'looked-after' children ¹. Section 17 (6) specifies that 'looked-after' children include: those for whom accommodation is provided under Section 25; those on a supervision requirement (including those on home supervision); those subject to an order, authorisation or warrant under emergency orders in child protection, children's hearings or similar orders etc. made elsewhere in the UK, for whom the local authority have responsibilities; and those subject to a parental responsibilities order. Second, local authority is defined 'corporately' within the Act. Such local authority services as school education, community learning, recreation and leisure, as well as social work services, should technically seek to ascertain a 'looked-after' child's views and give them 'regard'. In state schools, for example, teachers should consider the views of a 'looked-after' child before making any decision. While such services may consult children as a matter of good practice, it is unlikely that most 'mainstream' services are aware of this duty (e.g. Maguire and Marshall 1999; SCF 1999 and 2000).

3.1.3 Although this section is reasonably comprehensive, there are gaps. For example, Section 17(6)(c) includes within the definition of 'looked-after' a child:

"…who is subject to an order made, or authorisation or warrant granted, by virtue of Chapter 2, 3 or 4 of this Part of this Act, being an order, authorisation or warrant in accordance with which they have responsibilities as respects the child."

The Act allows for the possibility that child protection orders under Section 57, or emergency protection measures under Section 61, might be initiated and implemented by 'any person'. Whilst this is unlikely to be a frequent occurrence, it does mean that some children in emergency protection situations will fall outside the definition of 'looked-after'. The provisions of the Emergency Regulations mitigate this difficulty by requiring some early consideration of the views of the child. Section 17 applies to local authority decisions but not to parents' decisions. Parents' requirement to have regard to children's views under Section 6 applies to any major decision but not any decision; it is thus more constrained in its requirement than Section 17.

3.1.4 The principle of listening to children is gradually becoming accepted in other service legislation that affects children. Health services do not have an explicit duty to consult children; however, the Age of Legal Capacity (Scotland) Act 1991 allows 'competent' children under the age of 16 to give or refuse consent to medical treatment, examinations etc. Where the right to consent rests with the parents, Section 6 of the 1995 Act applies, requiring them to take account of the views of the child as regards "major" decisions. More recently, the Standards in Scotland's Schools etc. (Scotland) Act 2000 (referred to here as "the Schools Act") provides that children and young people must be consulted by education authorities about their annual statement of improvement objectives (Section 5) and about the content of schools' development plans (Section 6). The development plans must state how and to what extent headteachers will consult pupils and seek to involve them when decisions are being made on the "everyday running of the school". This provision is not worded as strongly as the Section 17 (3) and (4) of the 1995 Act. For example, a school development plan might legally state that pupils will not be consulted. Section 2 of the Schools Act requires the local authority to "have due regard, so far as is reasonably practical, to the views (if there is a wish to express them) of the child or young person in decisions that significantly affect that child or young person, taking account of the child or young person's age and maturity." Whilst this is an important innovation, it is also less strongly worded than Section 17 of the 1995 Act, in respect that it applies only to decisions with a "significant" effect, rather than "any decision". Section 41 of the Schools Act extends the right to appeal against school exclusion to those pupils judged to have a general understanding of what that means. Where that criterion is not fulfilled, school exclusion guidance (The Scottish Office Education and Industry Department (SOEID) 1998) will still apply a recommendation that children's views be considered. The Scottish Executive Education Department (2000) has proposed that this guidance be put on a statutory footing by regulations.

3.1.5 Children with special educational needs are also affected by the Schools Act. They will fall within the general provisions of Section 2 with reference to having due regard to the views of the child in significant matters. Further, Section 15 requires local authorities to take account of the views of children as regards mainstream schooling, in cases where the criteria for special schooling might be fulfilled. Guidance on special educational needs (SOEID 1996) also refers to listening to children within the recording process and reviews.

3.1.6 Section 17 (5) does allow for due regard to a 'looked-after' child's views - as well as the paramount importance of the child's welfare - to be ignored. To protect members of the public from 'serious harm', local authorities may disregard such duties. The process leading up to or following such a decision to disregard is not specified, nor the possibilities for appeal, nor a time frame for review. How this section is being applied within Scotland is presently unknown. In a survey of English child care managers in social services departments (Tisdall et al, 1998), a large majority (78%) had never known of a situation where the parallel section was used. Over half (58%) of respondents felt the section required clarification, particularly in its relationship to secure accommodation.

3.1.7 The overarching principle of due regard to a 'looked-after' child's views is determined by the definition of a 'decision'. A 'decision' presumably covers making care plans and placements, reviewing care plans and terminations of placement - but how comprehensively? What is a 'decision' by other local authority services, such as education, which would be covered by Section 17? How can children raise an issue not on 'the agenda', so that it becomes something a decision is made about? Where do children's views come into the various elements of the process that may add up to a decision?

3.1.8 The table below concentrates on requirements under regulations that deal with the details of care plans, placements and reviews: The Arrangements to Look After Children (Scotland) Regulations 1996; The Fostering of Children (Scotland) Regulations 1996; and The Residential Establishments - Child Care (Scotland) Regulations 1996. It notes where a requirement to consider children's views is specifically made - or is not.

Table 3.1 Analysis of Decisions under Part II, Chapter 1, and Associated Regulations

Numerous gaps and differences are noted when the regulations are solely considered. For example:

• no specific requirement is made that children's wishes, feelings or views are recorded as part of care planning, review and termination;
• children receive neither information on nor copies of their care plans, as a legal right;
• measures to address a child's religious persuasion are subject to due regard for a child's views, and health examinations and treatments are subject to the Age of Legal Capacity Act, but no specific mention is made of children's views in educational arrangements;
• a child can only initiate a care plan review, under the regulations, if the child is under supervision and requests a review of this by a children's hearing.

In considering these, the question then returns to those raised above. Are such matters considered 'decisions' and thus covered by Section 17 (3-4), or merely part of procedures and processes?

Going beyond Section 17 - gaps for children receiving other services under Part II, Chapter 1

3.1.9 The legal principle of 'due regard' to a child's views is not applied to children receiving local authority services under Chapter 1, Part II, who are not 'looked-after'. While welcome, there appears to be a misapprehension in some official documents - and more generally with those providing services - that the principle is enshrined in law for such children (e.g. Riddell Committee 1999). This is not to negate the power of the overarching principle described in Scottish Office Guidance (1997). Guidance, however, does not have the same legal status as primary legislation. This results in the following gaps in legislation for:

• planning for children's services, under Section 19 - while voluntary organisations that represent the interests of people who use services must be consulted, there is no requirement for organisations that represent young service users to be consulted nor children and young people to be consulted directly. The Secretary of State does have the power to make directions on who should be additionally consulted (Section 19 (5) (f)) but has not done so;
• a 'child in need' receiving services under Section 22 (unless the child is also 'looked-after' in terms of Section 11(6));
• more specifically, a child 'affected by disability' assessed under Section 23 and/ or 24. The requirement to assess under Section 23 is based on a parent's or guardian's request, and carers' assessments under Section 24 are available for people aged 16 or over;
• in determining the welfare of a child in hospitals and nursing homes, without parental contact (Section 36);
• when a child is in a 'safe refuge' under Section 38 (a child, however, must request a safe refuge, which was an amendment inserted into the Act as it went through Parliament to ensure that safe refuges were a child-initiated service).

3.1.10 Guidance on these sections does recommend that children be consulted. As mentioned above, the guidance's foreword states an essential principle behind the Act: "each child who can form a view on matters affecting him or her has the right to express those views if he or she so wishes" (Scottish Office Guidance, Vol.1, p. vii). Details are included within guidance. For example:

• Children's services plans: local authorities may wish to consult on how to ascertain the views of children and their families. It is 'necessary' that local authorities take account the views of users and potential users. (Scottish Office Guidance, Vol.1, Ch.2, Paras. 21-23 ²).
• Children in need: under the title 'delivering services', the guidance states that local authorities should listen to children and take account of their views (Scottish Office Guidance, Vol.1, Ch.1, Para. 22) and similarly in the chapter on children and disability (Scottish Office Guidance, Vol.1, Ch.6, Para. 21). This is not specified within the preceding section on individual assessment of need (Scottish Office Guidance, Vol.1, Ch.6, Paras. 11-19).
• Children affected by disability: the guidance states that it would be 'good practice' for a local authority to consider any request for help made directly by a child (Scottish Office Guidance, Vol.1, Ch.6, Para. 5). When undertaking assessment for such children, a child's views should be listened to and respected (Scottish Office Guidance, Vol.1, Ch. 6, Para. 21).
• Children in safe refuges: substantial details on the process of listening to children are given for two elements of safe refuges: to ascertain whether a child asking for help would like a 'safe refuge', and when deciding on whether to reveal the child's 'safe refuge' to others, such as a parent (Scottish Office Guidance, Vol.1, Ch.8, Paras. 16, 22).

Guidance thus asserts the principle of listening to children strongly, but the principle is not given the same legal strength as it is for 'looked-after' children.

Which children are included in any such requirements? What weight is given to their views?

3.2.1 The presumption that a child 'aged 12 or above has sufficient age and maturity to form a view' is not applied under Sections 17-38. Age and maturity are frequently referred to in connection with listening to children, but with different phrasing. For example:

• a local authority must have regard to a 'looked-after' child's views "taking account of his age and maturity" (Section 17 (4) (a));
• the home supervision plan should be agreed to by "the child (where of sufficient age and maturity), the parents, the local authority…" (Scottish Office Guidance, Vol.2, Ch.2, Para. 16);
• before a 'looked-after' child emigrates, a local authority should ensure the child "if he or she is old enough to form an opinion" wishes to emigrate (Scottish Office Guidance, Vol.2, Ch.1, Para. 157);
• a local authority should take account of the child's views "subject to his or her age and understanding", including foster care. "The more mature the child, the more fully the child will be able to enter into discussions about plans and proposals." (Scottish Office Guidance, Vol.2, Ch.3, Para. 89);
• young people aged 16 and above can insist on staying within local authority accommodation, under Section 25, even if their parents wish the young people to leave. Similarly, young people of this age would have a right to a carer's assessment under the Carers (Recognition and Services) Act 1995.

These differences can be typified as either a 'sliding scale' of competency or a binary division between competent and incompetent. Examples of the 'sliding scale' are Section 17 and the foster care situation. All children's views should be considered, but their weight will be subject to a view on "age and maturity". A binary division is exemplified by agreements to home supervision plans and emigration, for children considered sufficiently old (and mature) - and conversely this implies that agreements are not for those children not considered old enough. The age of 16 is used to divide young people who can make certain decisions from younger ones who cannot.

3.2.2 Terminology also differs. Local authority must have regard to a 'looked-after' child's views; a child should agree to a home supervision plan; a young person of 16 can make a decision against his/her parents' wishes under Section 25. Such terms seem to correlate with increasing power for the young people and decreasing power for local authorities and/or parents. 'Views' is the most common term but at times 'wishes' and/or 'feelings' is used instead or alongside (e.g. 'wishes' is used in relation to 'looked-after' children's contact with their families, in guidance (Scottish Office Guidance, Vol.2, Ch.1, Para. 44)). 'Views' would seem the stronger term, while 'wishes' and 'feelings' have a lesser status. Do such differences have an impact on practice and the experiences of children? The age of 16 provides an absolute age line, which presumably does make a difference in young people's ability to choose. Research would need to be undertaken in the other situations, to determine how involving children in decision-making is understood and experienced.

3.2.3 Ascertaining children's views is found in 4 situations that raise questions about their potential inclusion/exclusion in other areas under the Act, and how they frame children's rights. First, a 'looked-after' placement should be chosen congruent with a child's religious persuasion after "having ascertained so far as practicable the views of the child…" (The Arrangements to Look After Children (Scotland) Regulations 1996 Regulation 5 (3)). Similarly, managers of residential establishments should ensure every accommodated child is able to attend religious services and receive religious instruction "having regard to the child's wishes and feelings" (Residential Establishments - Child Care (Scotland) Regulations 1996 Regulation 14). Such phrasing recognises a potential conflict between a child's cultural background (and potentially the parents' wishes) and the child's own evolving and developing choices.

3.2.4 Second, the necessity to consider different means of communication, particularly for disabled children, is raised not only for services for children affected by disability but also, for example, in guidance for foster care and after care. Local authority service providers are advised to be proactive in ascertaining children's views. (Note similar emphasis on stage-appropriate methods of ascertaining children's views is not given the same prominence.)

3.2.5 Third, the guidance at times refers to siblings. The views of potential foster siblings should be considered in preparing a family for a foster child (Scottish Office Guidance, Vol.2, Ch.3, Paras. 23-24); 'looked-after' case records should distinguish between siblings (Scottish Office Guidance, Vol.2, Ch.1, Para. 127). Family ties are thus recognised as potentially more varied than those between parent and child, also including sibling relationships. Children are seen as individuals, connected but yet not merged with their families. However, The Fostering of Children (Scotland) Regulations 1996 do not specifically require other children within a foster family to be considered in approving foster parents and placements.

3.2.6 Fourth, the collective views of children should be included in planning about throughcare and aftercare (Scottish Office Guidance, Vol.2, Ch.7, Paras. 23-24), external management of residential care (Scottish Office Guidance, Vol.2, Ch.4, Para. 56) and children's services planning (Scottish Office Guidance, Vol.2, Ch.2, Para. 22). Due regard to children's collective views, however, is not specified in the primary legislation. The 1995 Act and ensuing regulations and guidance are predominantly focused on the individual and not the collective child.

What processes are specified for ascertainment of children's views?

3.3.1 At certain points within the guidance, numerous details are provided on the necessary components for listening to children and involving them in decision making:

• adequate information and an awareness of the consequences of decisions;
• ensuring welcoming, convenient and comfortable locations for meetings;
• advocacy, as a role of social workers but also the possibility of independent advocates ³;
• privacy for the child, in which to speak to the professional or to use confidential helplines;
• means of communication, with particular mention of disabled children's needs;
• knowledge and support about complaints procedures ².

Such extensive detailing (although not comprehensive for each group) can be found for children affected by disabilities, 'looked-after' children, and children accessing safe refuges and after-care.

3.3.2 Different elements of confidentiality are mentioned within the guidance: confidentiality of records, the opportunity to speak to an independent professional; protecting identity and location; and confidentiality in decision-making. For children with and affected by disabilities, the confidentiality of records is mentioned. Of note is the phrasing "families' and parents' consent should be sought" before information is shared, which does not exclude children but does not specify them (Scottish Office Guidance, Vol.1, Ch. 6, Para. 14). Regulations require the confidentiality of records for children in a range of 'looked-after' living situations. Confidentiality is stressed for children accessing safe refuges - having the opportunity to speak to someone independent of a local authority on their reasons for running away and the need to protect the identity and location of the child (Scottish Office Guidance, Vol.1, Ch.8, Paras. 42, 46) - and for 'looked-after' children, particularly those in foster care (Scottish Office Guidance, Vol.2, Ch.1, Para. 76 and Ch.3, Paras. 94-95). Confidentiality within decision-making is addressed in making arrangements to look after a child. Information should normally be shared with parents or carers and the child. It should only be withheld when a child is unable to understand the assessment due to the child's age or maturity, or when disclosure to parents, carers or child would breach confidentiality or cause harm (Scottish Office Guidance, Vol..2, Ch.1, Para. 9). Regulations may require confidentiality, but they do not require children's views on whether or not they wish information to be shared to be considered (see Table C).

3.3.3 The process of listening to children and involving them in decision-making is also covered for some groups of children. Guidance applying to 'looked-after' children, for example, details the requirements and process for listening to children at numerous stages, such as when making and reviewing a care plan, or deciding on a placement or contact. Guidance - but not regulations - emphasises recording children's views and the process of decision-making in care plans and case records. Guidance on reviews for 'looked-after' children details attention to venue, people attending and a chairperson's responsibility to facilitate children's participation (Scottish Office Guidance, Vol.2, Ch.1, Paras. 20-23).

Is there provision for feedback to the child about the decision and the consideration given to the child's views?

3.4.1 While considerably more print is expended on the gaining of children's views, some attention is given to feedback. For example, "If a local authority makes a decision about a child that is at odds with his or her views, the child's social worker or equivalent should take care to explain the reasons why this is necessary to the child" (Scottish Office Guidance, Vol.1, Ch.6, Para. 27). Children with and affected by disabilities, if "of sufficient age and understanding", should be informed in writing and verbally of the outcome of any assessment concerning the child or the child's carers (Scottish Office Guidance, Vol.1, Ch.6, Para. 17). 'Looked-after' children should receive a copy of their care plan (Scottish Office Guidance, Vol.2, Ch.1, Para. 13). Again, feedback is at the level of guidance, and not primary or secondary legislation.

Comment on the above

3.5.1 In particular situations, the complexities of ascertaining children's views and involving them in decision-making are raised. A "fine balance" is required between ensuring children have the option of being involved but are not overburdened by the responsibilities of decision-making (e.g. children affected by disability (Scottish Office Guidance, Vol.1, Ch.6, Para. 27) and 'looked-after' children in relation to contact (Scottish Office Guidance, Vol.2, Ch.1, Para. 44). For 'looked-after' children considering contact, children involved in 'after care' or children considering safe refuges, social workers should help the child to clarify his or her views (Scottish Office Guidance, Vol.2, Ch.1, Para. 44 and Ch.7, Para. 27; Scottish Office Guidance, Vol.1, Ch.8, Para. 22). Children's evolving views are referred to within contact for 'looked-after' children and after care, providing recognition of child development and change.

3.5.2 In summary, guidance contains numerous elements that emphasise the process of listening to children. The need for information, advocacy, a welcoming environment, confidentiality, help in developing one's views, different communication means and feedback are all recognised in different portions of the guidance. These elements are not consistently applied to all situations.

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