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Listen

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

Chapter seven: Concluding thoughts - Issues and questions

7.1.1 The Children (Scotland) Act 1995, along with its parallel legislation the Children (Northern Ireland) Order 1995 and the Children Act 1989, have been held up by the UK Government as putting the UNCRC into UK legislation (1994, 1999). One of the key rights of the UNCRC so included was the right of a child to have his/her views given due consideration, in matters that affect him/her. Other key principles were also inserted into the Act: the primacy of a child's welfare (a stricter test than that required by the UNCRC) and due regard to a child's religious persuasion, racial origin and cultural and linguistic background. Ensuing regulations in many cases added to these requirements, principles or detailed procedures on how children's views should be included in decisions. Accompanying guidance (Scottish Office 1997), emphasises the need to listen to children's views across its three volumes.

7.1.2 Since the passing of the 1995 Act (and perhaps partially as a result of it), there has been a growing recognition of the need to listen to children's views in decisions that affect them. The Scottish Executive has demonstrated commitment to consulting with children and young people, as exemplified in its funding of consultations over policy initiatives (e.g. Improving Our Schools and the physical punishment of children) and the high ministerial attendance at a 'Youth Summit' (June 2000). The Standards in Scotland's Schools etc. Act 2000 requires children's views to be taken into account in significant decisions about their education. The principle of consulting, listening to and hearing the views of children and young people has now gained considerable official support. Practical questions remain, about how to consult them effectively and consistently, and what to do with children's and young people's views once these have been ascertained.

7.1.3 This mapping paper required extremely close reading of the Act, regulations and guidance, to ascertain when, where and how children's views require to be considered. This review suggests:

1. that there has been a dedicated attempt to include and think through how children's views should be heard; and
2. that the final result is a complicated collage that is not easily grasped, particularly in its details.

This complexity raises questions about what those interacting with the Act - legal professionals, service providers, parents and children and young people themselves - actually know about the requirements and procedures, particularly if they become involved in parts of the Act with which they are unfamiliar.

7.1.4 As Appendix A illustrates, there is not a great deal of Scottish case law focusing on the requirement to listen to children's views under the 1995 Act. Children's views are no doubt being considered in many situations; equally, there may well be breaches of children's rights to be heard but these are rarely revealed in reported Scottish case law. The views of children are arguably 'hidden' behind the reported case law, with few statements about them within cases that affect children under the 1995 Act. The focus tends to be on the other 'facts' and progress of the case.

7.1.5 One advantage of the mapping paper's breadth is the opportunity to compare and contrast how different Parts and Chapters of it - broadly applying to family law, child care, and adoption - incorporate children's views. The authors note eight issues that have significant conceptual or practical implications.

1. Coverage

7.2.1 The Children (Scotland) Act 1995 took a deliberately different approach than other parallel UK children's legislation, in promoting key legal principles of the UNCRC. The Children Act 1989 and the Children (Northern Ireland) Order 1995 begin with 'overarching' principles for courts. In contrast, the Government decided against an overarching statement for the Scottish legislation: "… a statement of overarching principles would add to the length of the Bill … without any very clear benefit in terms of substance" (Lord James Douglas Hamilton, House of Commons Hansard 1.5.95, Col. 93). It was argued that there was a potential strength in detailing the principles, section by section, in terms of ensuring its implementation. Further, this approach would prevent the need to amend the Act so as to state exceptions to listening to children (as was done in relation to 'public safety' in S. 17(5)). The end result was that the requirement to listen to children, along with other key legal principles such as the paramountcy of children's welfare and due regard to a child's religious persuasion etc., was included in particular sections with particular applications.

7.2.2 This approach has resulted in the principle of listening to children's views being inconsistently applied to decisions and processes within the Act. Within Part I of the Act, the principle is applied to major decisions within general family life. Where court processes are involved, there is a general requirement to give a child an opportunity to state views etc., and a specific requirement in the Rules of Court to give notice to children of applications for Section 11 orders (although notice may be dispensed with on application by the pursuer, if the sheriff agrees that it is "inappropriate"). Within Part II of the Act, the principle is not applied at all to the provision of services for 'children in need.' It does not apply to the actions of the Principal Reporter nor the Secretary of State. The approach taken to the application of the principle to sheriffs and children's hearings - that of identifying when children's views should be considered, rather than stating the general principle and then identifying any exceptions - means that they need not consider children's views in a range of situations identified within the body of this paper. Some of these exceptions were intentional; others are the unintended casualties of this particular approach. Neither did Part III of the Act extend to children a right to attend their own adoption panels.

7.2.3 Certain apparent legal gaps may be addressed by a generous interpretation of the existing law. Furthermore, there are some indications that service providers, unaware of the complexity of the Act, may mistakenly believe that there is a legal requirement to listen to children in some situations. This misconception may well lead to the principle being implemented in practice, despite its omission from the law. Moreover, such practice can be justified with reference to the UNCRC, which has a more general application than the 1995 Act. The Act does not prohibit the ascertainment of children's views. It may well be the case that practice is developing beyond the hesitations and inconsistencies of the Act, to a more general integration of the child's view into decision-making. This is something that might be explored through research.

2. Which children, and what weight is given to their views?

7.3.1 n The Act generally covers children up to the age of 16, with 16-18 year-olds being included for some purposes.

Some of these differences may well be useful as well as intentional; perhaps the day-to-day decisions and the relationship of local authorities to children they look after make the presumption of age 12 irrelevant. On the other hand, certain of these differences may be confusing, suggesting ideas about children's competency that are inconsistent across different aspects of their lives, that are not matched by research evidence, and that give insufficient emphasis to listening children's views in certain situations.

3. Process versus event

7.4.1 The legal provisions differ in their specification of procedures for ascertaining children's views. For example, courts and children's hearings under Sections 11 and 16 must first give children the opportunity to indicate whether they wish to express views, before actually ascertaining their views. This two-step process is not required for local authorities' decisions on 'looked-after' children (Section 17) nor parents in making 'any major decision' (Section 6). Regulations on 'looked-after' children require children's views to be considered in relation to particular aspects of the planning process - but not at all points.

7.4.2 A further process issue relates to recognition of the potential for children's views to change, either as an evolutionary and possibly emotional response to the dynamics of a particular situation or in terms of child development. The more general aspects of child development are discussed below. What is relevant here is the pace at which legal processes move towards a decision and the extent to which decisions are open to review.

7.4.3 While it is not written into the main body of the Children (Scotland) Act (although it does appear in Schedule 2.18 as regards adoption), there is an understanding that delay in reaching decisions is prejudicial to the interests of a child. The introduction of the Child Welfare Hearing, through Rules of Court, was designed to facilitate a speedy resolution of issues relating to children. However, it may also be relevant to explore whether the views of children ascertained at an early stage of the process, when emotions may still be raw, have the permanence and stability that the legal process might then accord to them. Whereas children looked after by the local authority will have regular internal reviews, and children subject to children's hearing supervision will have reviews at least annually, there is no such expectation of review of decisions made under Part I of the Act. While it might well be argued that the introduction of an automatic review would constitute too great an intrusion into family life, and possibly introduce a degree of instability, there might be merit in exploring the views of children on this matter, and their suggestions for mechanisms that would help them pursue legitimate changes to the early determinations.

4. Children's development

7.5.1 Only child care guidance recognises that children's views develop and change over time. Helping the child to clarify his or her views is recognised as a social worker's role in a handful of situations, within guidance. Children's change and development is explicitly recognised in decisions about contact for 'looked-after' children and implicitly in reviewing looked-after children's care plans and supervision requirements.

7.5.2 The use of 'age and maturity', qualifying the principle in several sections, can be seen as seeking to recognise children's development. Age, though, may be irrelevant in judging a child's competency if the child has a 'severe' learning difficulty. Defining maturity might benefit from the most recent psychological evidence, that suggests competency is inextricably linked to context and assessing it depends as much on the assessor's competency in determining it (Hogan and Gilligan 1998).

7.5.3 The growth of the children's rights movement, assisted and assisting the sociology of childhood, has tended to under-emphasise (if not attack) information on children's development gained through developmental psychology. Psychology now has accepted some of these criticisms and many psychologists have now themselves re-thought their theories (e.g. see Woodhead 2000 for overview). New research evidence is now emerging that provides a deeper understanding of children's competencies and their developmental stages, which could be vital to ensuring law and practice sensitively and effectively listen to children and young people.

5. Feedback to children

7.6.1 There is no consistent approach to informing children of decisions made, and the reasons for them, even where their views have been ascertained as part of the process. For certain decisions, children have no right to receive notice (e.g. assessment results for children affected by disabilities), while in other circumstances notice is discretionary (e.g. making of a child assessment order) or mandatory (e.g. making of a child protection order).

7.6.2 Research might explore the reaction of children and young people to such omissions, and to the intelligibility of such information as is received.

6. Best interests versus views

7.7.1 Only a legal representative has a remit primarily to represent a child's views. Curators ad litem, court reporters and safeguarders have an explicit remit to report on children's best interests. A child's representative at a children's hearing is there to provide a supporting role. Whilst these persons might also (and in the curator's case may be required to) seek to listen to children's views, there is a tension in representing both views and interests, which has been observed and criticised by several commentators, who conclude in favour of a clearer delineation of representation/ advocacy (e.g. see CRU 1994; SCLC 1994; SACR 2000).

7.7.2 Guidance for child care services at points refers to the 'fine balance' between ensuring children have the option of being involved but are not overburdened by the responsibilities of decision-making. The concern that listening to children would be against their welfare has long been a barrier to the first principle being implemented (see Marshall 1997). As discussed by Marshall, a child's 'best interests' can be used, due to its scope for wide interpretation, as an excuse for not involving or informing children, but it can also reflect some reasonable concerns. How do those with the power to hear and represent children's views decide on a child's best interests? On what criteria? In the short- or long-term?

7. Confidentiality and Access to Information

7.8.1 Practitioners and commentators have expressed considerable concern about whether children's views can be kept confidential, particularly in the areas of family law and children's hearings. Proceedings differ in their capacity to afford confidentiality to the views of a child. Absolute confidentiality cannot be promised for children's views in children's hearings: 'relevant persons' must receive all information provided for the hearing members, and must be told the substance of what was discussed, should they be excluded from part of a children's hearing to facilitate expression of the child's view. In court proceedings, however, sheriffs do have a power to require that the views of the child be kept confidential. The case law set out in Appendix A reflects an ongoing debate about whether such confidentiality is consistent with the requirements for 'due process'.

7.8.2 A further issue concerns children's access to formal reports. If children were to receive all of the information available to the adults involved, they might receive detailed information on their parents, if they become involved in court proceedings. This could result in a child being abruptly aware of something concerning the child or his/ her parents (e.g. marital affairs). While one may argue that certain information should not be kept from children, such as the fact that he or she was adopted, the timing and manner of it being told is presumably critical for children's wellbeing.

7.8.3 There is a need for further exploration of the appropriate balance between ensuring that children's views are taken into consideration (and the barriers identified by children to their expression of views), promoting their welfare, and identifying and satisfying the requirements of 'due process.'

8. The individual child, the child in the family or children as a group

7.9.1 The Children (Scotland) Act 1995 is largely concerned with the individual rights of a child rather than children as part of a family or with their peers. Thus, most references are made to decisions for an individual child. A few references are made within guidance to considering the collective views of children in planning for child care services (e.g. throughcare and aftercare and children's services planning). One or two mentions are made of siblings.

7.9.2 These exceptions raise issues in areas requiring exploration. Should children and young people more thoroughly be identified as 'stakeholders', along with parents and service providers? Virtually all children live within a social context, of their families and their peers. Does an individualised approach take sufficient notice of the importance of these relationships to them?

Further questions are raised by reflecting across the breadth of the mapping paper:

7.10.1

• What counts as a decision? Whether or not a child's views must be taken into account is dependent on what constitutes a 'major decision' (under Section 6) or a 'decision' (for 'looked-after' children). Do matters important to children count as decisions?
• What factors/expertise/values inform discretionary decisions? As regards the competency or maturity of the child, little specification is given within legislation or guidance on how such decisions are to be made, what contextual factors should be considered and what skills are required to do so. For instruction of a solicitor, a child must be considered to have a 'general understanding' of what it means to do so; for consent to surgical, medical or dental procedure or treatment, a child must understand the nature and possible consequences of the treatment or procedure (Age of Legal Capacity (Scotland) Act 1991 Section 2 (4)). But one must also ask about the competency of adults charged with making discretionary decisions about children, given especially that these might determine whether children are involved at all. For example, what criteria do sheriffs apply when deciding whether to dispense with intimations to children and separating parents, when making decisions outwith the courts, or when deciding whether to show children's hearing reports to their child; and the Scottish Legal Aid Board in deciding whether to grant legal aid for a child to be legally represented? All of these can prevent or facilitate children's views being gathered and taken into account. Further, what criteria do court reporters and safeguarders apply when formulating recommendations based upon their assessment of the child's interests?
• What facilitates or prevents children from participating? What information do they need and how might they best receive it? What support do they need? What feedback on decisions should they have? What account is taken of children's differing communication styles, abilities/ disabilities, backgrounds etc.?

Areas of future research and consideration

7.11.1 Ultimately, legislation, regulations and guidance should be judged on whether they make any positive difference for people - in this case, children, young people and their families. This mapping paper provides a detailed analysis that suggests how legislation, regulations and guidance may be helping or hindering the key principle of listening to children.

7.11.2 Its impact on children, young people and their families will be dependent on a range of factors. Do those responsible for implementing the policy know about the requirements relating to children's views? How do they interpret the legal requirements and guidance? What training have they had? How have their attitudes and practice been formed and informed? How do other realities such as resources and organisational structures support or work against implementation? These same questions can be asked for children, young people and their families. Do they know what their legal rights and responsibilities are, what formal procedures and opportunities exist? How do their situations, knowledge and personal capacities impact on their experiences and ability to realise their rights and responsibilities? What support and training do they need?

7.11.3 The mapping paper is part of a broader feasibility study, which aims to hear from children and young people about how best to conceptualise and evaluate listening to children under Part I of the Children (Scotland) Act 1995. The analysis here suggests particular avenues of possible exploration with the children and young people, as well as the web of 'decision-makers' that have been involved with them. The mapping paper also suggests further routes for exploration: what could be learnt from different practices and knowledge gained in different service and professional areas.

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