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The United Nations Convention on the Rights of the Child 1989 and the Protection Rights of Children

Learning Aims

• To point out key Articles of the UNCRC that relate to the ‘protection’ of children.

• To identify domestic legislation and policy that promotes children’s right to protection from abuse.

• To analyse policy definitions of abuse in terms of their utility and limitations.

• To critique the scope of domestic legislation and its limitations in safeguarding children.

Fortin (2009:550)

• The state assumes that, because parents brought their children into the world, they will care for them and protect them from harm: Indeed, it trusts them to do so.

• However, The Committee on the Rights of The Child indicate deep concern with the UK’s record of child death and rising levels of neglect.

The Children Act 1989

• Is the most important piece of legislation and represents the UK’s attempt at realising the Articles of the UNCRC 1989

• Adopts an uneasy compromise between emphasising parents’ rights to autonomy and privacy and fulfilling children’s rights to protection. (Fortin, 2009: 553)

Which Articles of the UNCRC 1989 relate to protection?

• Article 4: Overarching requirement of State’s to protect children and provide services.

• Article 19: Right to be protected from abuse.

• Article 20: Children deprived of family environment.

• Article 21: Adoption

• Article 34: Sexual Exploitation

• Article 37: Detention and Punishment

• Article 40: Juvenile Justice

Which Articles of Domestic Law and Policy are Relevant?

• The Children Act 1989 s.17• The Children Act 1989 s.47• The Children Act 1989 s.20• The Children Act 1989 s.31• The Adoption and Children Act 2002 s.120• The Children Act 2004 s.11• The Children Act 2004 s.53• The Children Act 2004 s.58• Working Together 2013

Article 4

• This involves assessing their social services, legal, health and educational systems, as well as levels of funding for these services.

• They must help families protect children’s rights and create an environment where they can grow and reach their potential.

Article 19

• Children have the right to be protected from being hurt and mistreated, physically or mentally.

• Governments should ensure that children are properly cared for and protect them from violence, abuse and neglect by their parents, or anyone else who looks after them.

Article 19 (smacking)

• However any form of discipline involving violence is unacceptable. There are ways to discipline children that are effective in helping children learn about family and social expectations.

• Never-the-Less, ‘Smacking’ of children is not unlawful in England.

• Parents retain a right under section 58 of The Children Act 2004 , to use the defence of ‘Reasonable Chastisement’ against any charge of physical abuse amounting to common assault.

Article 20 (Children deprived of family environment):

Children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language.

Article 21 (Adoption):

• Children have the right to care and protection if they are adopted or in foster care.

• The first concern must be what is best for them.

• The same rules should apply whether they are adopted in the country where they were born, or if they are taken to live in another country.

There are two main routes into the looked after children system

• Being accommodated under section 20 of the Children Act 1989 or

• Being made the subject of a care order under section 31 of the Children Act 1989

Section 20: Voluntary Accommodation

• Under section 20 of the Children Act 1989, children and young people can be accommodated with the consent of those with parental responsibility.

• If the young person is 16 or 17 years old, they do not need the consent of those with parental responsibility in order to be accommodated by the local authority.

Regard for a Child’s Views

If a child or young person is being accommodated by the local authority, then the local authority MUST have regard to his or her views.

Consistent with:

UNCRC 1989 A:12 Respect for the views of the child

UNCRC A:5 Evolving Capacities

Section 31 of the Children Act 1989 (Care Order)

Under section 31 of the Children Act 1989, the local authority or any authorised person can apply to the court for a child or young person to become the subject of a care order.

Care orders can only be made by the court.

• The court will only make a care order if it believes that it is better for the child or young person than not making an order.

• A care order can only be made on young people below the age of 17 and cannot be made on a young person who is 16 years old and married.

UNCRC Article 34 (Sexual exploitation):

Governments should protect children from all forms of sexual exploitation and abuse. This provision in the Convention is augmented by the Optional Protocol on the sale of children, child prostitution and child pornography.

Article 37 (Detention and punishment) (Tasers?)

No one is allowed to punish children in a cruel or harmful way. Children who break the law should not be treated cruelly. They should not be put in prison with adults, should be able to keep in contact with their families, and should not be sentenced to death or life imprisonment without possibility of release.

Article 40 (Juvenile justice) Doli Incapax

Children who are accused of breaking the law have the right to legal help and fair treatment in a justice system that respects their rights. Governments are required to set a minimum age below which children cannot be held criminally responsible and to provide minimum guarantees for the fairness and quick resolution of judicial or alternative proceedings.

To make a care order, the court must be satisfied:

a) That the child concerned is suffering or is likely to suffer significant harm.

b) And that the harm, or likelihood of harm is attributable to:

c) The care given to the child, or

d) Likely to be given to him if the order were not made, or

e) The care not being reasonable or if

f) The child is beyond parental control

Walker (2011:66)

Concludes that, “Children’s rights are subsumed into a more powerful agenda, in which they are ‘safeguarded’ in order to ensure they do not cause social problems for future generations”.

Child Protection to Safeguarding

• The term ‘safeguarding’ first began to emerge around 2003 and the Every Child Matters agenda.

• It marked a shift in expectation in the type of language professionals were expected to use.

• Away from ‘child protection’ towards the use of ‘safeguarding children’ and ‘promoting their welfare’

The Children Act 2004

By April 2005 Local Authorities must establish Local Safeguarding Children’s Boards to replace Area Child Protection Committees with wider powers and responsibilities.

Significant Harm

The concept was introduced by The Children Act 1989.The legislation does not set absolute criteria for significant harm, guidance states that in reaching decisions, consideration should be given to: • The degree and extent of harm• Duration of harm• Frequency of harm• Extent of premeditation• Presence or degree of threat, coercion, sadism

and bizarre or unusual elements

Working Together to safeguard Children

• Guidance first published in 1991, the current version is 2013.

• Four categories of abuse describing different kinds of abuse that may constitute ‘significant harm’

Section 120 Adoption and Children Act 2002 (Domestic Violence)

Extends the legal definition of ‘significant harm' to children to include the harm caused by witnessing or overhearing abuse of another, especially in a context of domestic violence.

Section 53 The Children Act 2004

• Amended s.17 (Children in Need of Support) & s.47 (Children at Risk of Significant Harm) of The Children Act 1989 to require that before intervening ‘the wishes and feelings of the child should be ascertained as far as reasonable, and given due consideration’.

Walker (2011): 2 Problems

• Comparisons: How do social workers’ expectations of ‘normality’ impact upon their assessments i.e. ‘preventing the child from participating in normal social interaction’ (Emotional Abuse).

• Parental final say: Without the ‘diagnosis’ of ‘significant harm’ parents may reject support, whether or not the child would benefit or indeed requests the support themselves.

Conclusions

• The Children Act 1989 sets out in the main the states’ duties to protect and provide services for children.

• These duties have been augmented by The Children Act 2004; The Adoption and Children Act 2002.

• The guidance in determining abuse is Working Together… 2013

Conclusions

• What constitutes ‘child abuse’ is a contested term. • There are specific difficulties that relate to the detection of the four

different kinds of abuse.• Each definition of abuse is nuanced by individual and contextual

factors• Practitioners have to balance• Parental rights of autonomy,• Children’s rights of autonomy, • Children’s interest rights,• The child’s developmental rights• The child’s right to be heard • Awareness of the scope and limitation of statutory and policy

mandates to intervene.