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Introduction
Participation in Principle
The participation of children and young people in decisions which affect them is a principle that has found much support in recent years on an international, national and local level. At its broadest international level, support and motivation for the participation of children and young people in all aspects of their lives is most clearly provided through the United Nations Convention on the Rights of the Child ( UNCRC). Article 12 of the Convention provides that:
1. 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.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
(General Assembly of the United Nations 1989)
Since being passed by the General Assembly of the United Nations in November 1989, the Convention has been ratified by over 170 states, including the United Kingdom (in 1991). Ratification involves a commitment by states to bring their law, policy and practice into line with the standards set by the Convention with implementation monitored by an international committee of experts. Whilst the UNCRC still provides the dominant philosophy behind child participation, the principle has more recently received further international support from the Committee of Ministers in the Council of Europe. In Recommendation No. R(98)8 on Children's Participation in Family and Social Life, the Committee asserts that "Participation of children is crucial in influencing the conditions of their own lives" and recommends that governments of Member States take steps to promote children's participation in family and social life and to further remove barriers to this participation (Council of Europe: Committee of Ministers 1998).
In Scotland, the principle of participation of children and young people in decisions which affect them, particularly welfare decisions, is supported through provisions in the Children (Scotland) Act 1995 ( CSA 1995) which brings together aspects of family, child care and adoption law that affect children, and provides the statutory base for the operation of the Children's Hearings System. The Act incorporates three key principles of the UNCRC into Scottish legislation and practice: non-discrimination (Article 2), a child's welfare as a primary consideration (Article 3); and, crucially, listening to children's views (Article 12) (Marshall et al, 2002). In short, the Children (Scotland) Act 1995 recognises within primary legislation the right of children and young people to be consulted about decisions in their lives and for those views to be taken into account in decision-making. The Act embodies a set of key fundamental principles which apply generally to the operation of the Children's Hearings System, including:
- That the child's welfare should be paramount in all decisions
- That children should have the opportunity to express views and have these views taken into account in decisions which affect them.
The first principle above, known as the paramountcy principle, is considered by many to be dominant. In simpler terms this principle means that all decisions made should be in the 'best interests' of the child. The second principle, requiring the interactive participation of children in Hearings actually pre-dated the 1995 Act and is recognised as a foundation stone of the Children's Hearings System. However, despite the participation of children and young people being grounded both in statute and, perhaps more importantly, in the broader philosophy of the Hearings System, the extent to which this participation is realised in day to day operation has come under scrutiny in the context of the Scottish Executive's current review of the Children's Hearings System.
Review of the Children's Hearings System
Getting It Right for Every Child, the first comprehensive review of the Children's Hearings System since its inception in 1971, was launched by the Scottish Executive in April 2004. This review comprises two phases: phase one was a national public consultation exercise. The aims of this stage of the Review were to listen to the views of Scottish people on the Children's Hearings System and to "… open discussions on the issues facing the Hearings System, its principles and its objectives" (Scottish Executive, 2004:1). The aim of the second phase, beginning in 2005, is to "… work with those in the System and others to consider what detailed changes to structures and legislation might be necessary to bring about the type of system we want to see in place for Scotland's children" (Scottish Executive, 2004:1).
One of the primary issues which emerged from phase one was how the System engages with children and young people and how they participate in the Hearings process. The view that this was not fully effective was shared by a range of respondents, not least young people themselves. For example, Stevenson's and Brotchie's analysis of the phase one responses notes that there "… was a strong view amongst young people who participated in the consultation that Hearings needed to do more to demonstrate that they were listening to young people and being responsive to their needs and wishes" (2004:26). Given these concerns, a key issue being considered at phase two is what can be done to improve the participation of children and young people in the Hearings System and, in particular, the provision of advocacy and support for children and young people taking part in it.
This literature review is part of a wider research exercise jointly devised and supported by the Scottish Children's Reporter Administration, the Scottish Executive, Save the Children Scotland and Who Cares? Scotland. The research aims to contribute to discussion of the aforementioned issues during phase two of the review by examining the experiences of children and young people of existing advocacy arrangements, the effectiveness of these arrangements, and whether they could be improved or if there are alternative models that could be considered. It is intended that this information will inform the discussion and help shape the future provision of advocacy for children and young people.
The literature review is separated into two linked sections. The first section reviews existing research on the participation of children and young people in the Children's Hearings System with particular focus on research projects which sought the views of children and young people. This highlights the existing provisions and mechanisms for enabling children's participation in the Children's Hearings System, the problems associated with these specific provisions, and the wider problems associated with ensuring effective participation of young people in the Hearings System generally. The second stage of the literature review explores research on approaches to securing effective participation by children and young people in youth justice and child welfare decisions in contexts other than the Children's Hearings System with particular reference to international models, approaches and evidence where they exists. It seeks to describe forms of advocacy and identify examples of advocacy practice that exist elsewhere in order to provide information that may be used to inform the development of young people's participation in the Children's Hearings System.
Participation and Advocacy
Advocacy is a complicated concept which holds different meanings in different contexts. Because of this ambiguity a definition of advocacy has been agreed by the research partners. This definition encompasses a range of options provided flexibly by various people and which would be available to children and young people to enable them to understand, communicate and participate effectively in accordance with their age and understanding in hearing processes and, ultimately, in important decisions which affect their lives.
At its broadest, advocacy is understood as the provision of information, explanations, support, simple encouragement to participate, or direct advocacy by way of representation. Children and young people involved in the Hearings System experience a need for a mixture of these things at different stages of their involvement and to differing degrees depending on their particular needs.
The relationship between advocacy and participation is crucial. It is apparent in terms of Article 12 of the UNCRC that, if children and young people are to be able to participate in a meaningful way, they require information, support, sometimes encouragement to be their own advocate and at other times appropriate representation. The important issue is that children's and young people's needs in this crucial area are themselves seen as relevant and a right which others have a duty to fulfil.
The partners in this research exercise believe that advocacy in its many guises can serve as a means to achieve children's and young people's participation as required by Scottish legislation and the UNCRC and can help to ensure their Hearings experiences are both productive and positive.
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