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Getting it right for children?Tara Caul aa Children's Law Centre ,Published online: 17 Jan 2008.

To cite this article: Tara Caul (2000) Getting it right for children?, Child Care in Practice, 6:2, 164-173, DOI:10.1080/13575270008413202

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CONFERENCE PROCEEDINGS

TARA CAUL, Children‘s Law Centre

GETTING IT RIGHT FOR CHILDREN?

Are we getting it right for our children in Northern Ireland in the context of our children going into, through and leaving the care system?

“If only those with power and who wished to exercise it well, would listen and incorporate the experience of those who have first hand knowledge of the reality of the situation on the ground - the result would transform ideas of leadership and decision-making. ’’

This statement was made by Mary Robinson, United Nations (UN) High Commissioner for Human Rights. Throughout this paper reference is made to both the United Nations Convention on the Rights of the Child and the Human Rights Act 1998. The UN Convention on the Rights of the Child was ratified by the UK Government in 1991 and a firm commitment has been given by Government to implement its provisions in laws, policy and practices relating to children. The United Nations Committee on the Rights of the Child examines the implementation of children’s rights under the UN Convention every five years, at hearings in Geneva. The Convention is not however arguable before our domestic courts.

The key articles under the UN Convention on the Rights of the Child are:

Article 2. Children shall not be discriminated against and shall have equal access to protection.

Article 3. All decisions taken which affect children’s lives should be taken in the child’s best interests.

Article 12. Children have the right to have their voices heard in all matters concerning them.

Article 20. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the state.

In October 2000, the Human Rights Act 1998 will incorporate most of the European Convention on Human Rights (ECHR) into our domestic law and will be enforceable before our domestic courts. Under the Human Rights Act 1998 there will be a new duty on public authorities to act in accordance with the provisions of the Act. The most relevant provisions under the Human Rights Act 1998 to children in care are Article 8, the right to family life, Article 6, the right to a fair hearing, Article 3, freedom from torture, inhuman and degrading treatment and Protocol I, Article 2, the right to education. These provisions will be referred to throughout this paper.

The Children’s Law Centre recently launched a report entitled ‘Getting It Right’, which closely examines the implementation or non- implementation of the UN Convention on the Rights of the Child in

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Northern Ireland. This report will form the basis of a formal report which will be lodged with the UN Committee on the Rights of the Child on behalf of non-governmental organisations who participated in the research and, most importantly, on behalf of the many children and young people who spoke to our researcher during the year.

Although there were many findings of a positive nature it was also apparent that some of the most basic rights in the Convention are not being adhered to by Government in the drafting of legislation and policy, and in practice by Government agencies.

There are three key principles raised in the research taken from the UN Convention on the Rights of the Child, which provide a useful backdrop to the more specific issues relating to children in care.

Firstly, all children and young people whether in a family setting, in our care system or in our justice system, should be entitled to the rights in the Convention if they are under 18. Our legislation within each of these areas should be harmonised to allow for proper protection and provision of services for these children and young people. All legislation should be based on the principle of the best interests of the child. How can we provide a co-ordinated service to our children when our juvenile justice legislation (the Criminal Justice Children (NI) Order 1998) considers a 10 year old to be at the age of criminal responsibility and a 17 year old to be an adult, whilst our Children (NI) Order 1995 considers a child/young person to be up to the age of 18 and further depending on background?

Secondly, children and young people should be afforded the opportunity, in accordance with Article 12 of the UN Convention, to express their opinions in all administrative and judicial decisions concerning them. This provision must be considered in light of the imminent implementation of the Human Rights Act, which incorporates the right to a fair hearing at Article 6 of the ECHR. This right to a fair hearing is not restricted to criminal proceedings and will apply in any situation where a child’s civil rights and obligations are under consideration. The child pursuant to this article is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law. You will all be aware that the European Court has decided in the case of T&V v UK(European Court Human Rights Judgement of 16 Dec 1999), which is the case about the two boys convicted of the murder of a toddler, that the publicity, the adult nature of the proceedings, the inability of the two boys to effectively understand or participate, and the placing of the children in a raised dock all amounted to an infringement of the right to a fair trial. This is a difficult case given the dreadful circumstances, but it is likely to raise very serious issues about children’s participative rights in our court system.

The third general principle is that all rights should be afforded to all children in a non-discriminatory way and again in our view, with the advent of the Human Rights Act 1998, advocates on behalf of children are likely to argue, for example, that children and young people have a right to effective education which should be provided on a non-

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discriminatory basis. This will be of relevance to children with special educational needs and their access to effective education. The provisions may also be relevant in the context of the education of children in care, given the low attainment rates of many children who have gone through our care system.

Turning specifically to children who are in care or leaving care; there are a number of points from the Children’s Law Centre report which should be highlighted.

Firstly, government spending throughout the UK is not consistent. Total expenditure on children and families here amounts to 17 per cent of the total personal social services budget as opposed to 26 per cent in England. Expenditure per capita of the child population amounts to f 181 in England but only f 121 in Northern Ireland.

Secondly, in the Social Services lnspectorate (SSI) report ‘Children Matter’ (1 997) the key message was that residential services should be placed firmly within an integrated child welfare system and that all Health and Social Service Boards and Trusts should urgently review their children’s residential facilities to ensure that the service is restructured into small scale domestic units which are not part of a larger campus. The child’s needs should be central to care planning and decisions to use residential care or to admit to a specific home should be based exclusively on an assessment of the individual needs of the child. The overall aim of residential care should be to ensure that there is a range of differentiated homes supported by a smaller number of specialist facilities catering for children who require secure accommodation, services responsive to complex disability, specialist psychiatric/psychological services and services for children who pose a risk to other children. Worryingly ‘Children Matter’ also highlighted the serious inadequacy of mental health services for children. During 1994/95, 233 children and young people under 18 were discharged from adult psychiatric wards. The SSI Report states that self-harm is one of the main reasons that children are placed in care.

Thirdly, the 1997 SSI report on fostering in Northern Ireland concluded that planning in a structured way is a process which involves clear consultation with the children and young people involved. The Report also indicated that there should be a clear procedure for representations to be made which ideally should be in child friendly form so that the childlyoung person knows how to lodge a complaint, and also the implementation of an independent visitors scheme and the publication by Trusts of their leaving and aftercare services.

Fourthly, it is apparent from research carried out by Goretti Horgan and Ruth Sinclair ‘Planning for Children in Care in Northern Ireland’ (1997), that many of the children and young people did not feel as if they were actively participating in the care planning process, with particular emphasis placed on care reviews. It is of course a statutory requirement to obtain the ascertainable wishes and feelings of children at all stages of the care procedure. Some suggestions from the young people were that they should be informed in advance of issues to be discussed, who was likely to be there and, in appropriate cases with

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older children, that time was spent in advance explaining the contents of reports. The Report concluded that a genuinely participative planning system is possible only where there is a wide range of services to meet the child’s needs. Areas of unaddressed need included family support, therapeutic services, alternative placements and leaving care services.

Fifthly, the UK Government have recently published a consultation document in response to the Children’s Safeguards Review entitled ‘Me, Survive, Out There?’ (1 999). This consultation document provides us with the stark statistics that up to 50 per cent of children and young people leaving care are unemployed, up to 20 per cent of them experience homelessness within two years of leaving care and as many as 75 per cent of these children leave with no educational qualifications at all. Are we getting it right for these children?

The proposals made by Government recognise the weakness of our current Children Act and Children Order legislation in terms of the provision of services to children in need, and specifically to children and young people leaving care.

The proposals for England and Wales, which are now contained in the Leaving and Aftercare Bill which is at the second reading stage in the House of Lords, are as follows:

1. The Children Act should be amended to ensure that local authorities have a new legal duty to assess and to meet the needs of all eligible 16 and 17 year olds leaving care.

2. Each young person should have a pathway plan.

3. New resources are to be made available.

4. A young persons adviser should be appointed for each young person.

5. Assistance with education may be provided for young people up to the age of 24 regardless of when they start the training.

This review does not as yet extend to Northern Ireland and the provisions in the Leaving and Aftercare Bill will not extend to this jurisdiction automatically. It is important however, that there is consultation on these issues in Northern Ireland as soon as possible, so that we can make efforts to improve and integrate legislation and services for children and young people in this jurisdiction, and to provide them with the same legal protection.

We need to look at the care system as a continuum which is comprised of many distinct parts, all of which should be grounded in the same principles and linked together in such a way as to provide a stable environment for the young person to grow up and mature in.

ASSESSMENT STAGE

The first part of the care process for a child really begins when a decision is made on the basis of assessment by social services that

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168 Child Care in Pr,

there is a need for public law proceedings to be taken to protect the child. Obviously it is essential that such an assessment is very clear, precise and co-ordinated. It should be clear from such an assessment how parentdfamilies and importantly the child/young person themselves were consulted and a clear assessment of the needs of the individual child, including not only the child’s health and education needs but also his/her cultural and religious needs and contact with family, including extended family. Any interference with family life must be in accordance with law, justified and legitimate under the Human Rights Act 1998 and it is therefore essential that the court is seized of all relevant facts at the early stages.

In terms of children’s rights we obviously welcome the recent amendment of the Children (NI) Order 1995 which allows for the removal of a suspected abuser with the consent of the carer rather than the child as this, if used properly, certainly strengthens the child’s right to family life. Also of crucial importance at all stages is the issue of contact with family, and the accessing of services which are specific to the needs of the child, not fitting the child to the services which are already there.

GOING INTO CARE / THE LEGAL PROCEEDINGS The second part of the process for the young person is when interim care proceedings or emergency protection proceedings are issued. The system of representation for children in terms of the appointment of an independent Guardian ad Litem and a solicitor to represent the views of the child is certainly an exemplary one and a model which the Children’s Law Centre would like to see transferred into other areas of children’s law, namely some of our education procedures. The Guardian ad Litem system provides a mechanism where the child/young person can express their own views and should also allow for the effective participation of children and young people in the proceedings affecting them.

The requirement for a written care plan for each child is obviously central to the planning process. The child or young person should be involved in the care plan from the outset, subject to age and understanding, and be signed by the child. The child’s assessed needs should remain central to the plan, including those arising from race, culture, religion or language, special educational or health needs, and very clear short, medium and long term goals set. The plan should clearly set out the child’s views, the arrangements for contact, the exact nature of services sought to match the assessed need, placement details, contingency plan, arrangements for notifying authority about disagreements/complaints, education and health arrangements, with clear timescales for each.

It is important that the child or young person is given the opportunity to express their views freely and also to participate in the proceedings should they wish to do so. In our view it is important that court facilities and waiting areas are adapted to allow for young people to attend the court hearing, or part of it, if they wish to do so. It is up to the many professionals who at this stage will be involved in the case to facilitate

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such involvement and ensure that participation is handled effectively, in a manner suitable to the child’s age and understanding. If a child is to attend court the time of the case should be adhered to, to prevent unnecessary ‘waiting around’.

THE CHILD IN CARE

Once a case is finalised and the care order has been made, the Guardian ad Litem and solicitor are discharged and the review procedures become crucial in terms of the implementation of the care plan. The purpose of the reviews are to ensure that the child’s welfare is safeguarded and promoted in the most effective way throughout the period she/he is looked after. The Review of Children’s Cases Regulations requires the trust to consult with the child or young person before the reviews and take their views into account. In terms of fair procedures and hearings, the significance of this requirement cannot be underestimated. Reviews are often of a complex multi-disciplinary nature and the research of Goretti Horgan and Ruth Sinclair would suggest that although the statutory requirement to consult may well be carried out and the child attends the review meeting, many children are not able to meaningfully participate and often feel that they have not had time to think about the issues which arise at the meeting at which important decisions about the child’s life are made. Again it is essential that the child’s racial, cultural and religious needs are appropriately dealt with.

Going back to basics all rights should be accorded to all children on a non-discriminatory basis. Suggestions such as informing the young person in advance about all the people who have been invited to the meeting, informing the young person about any new reports which will be available and any key decisions likely to be made, and allowing the young person to have an independent representative at the meetings if they wish, can only be of help in this regard.

In conjunction with the issue of the reviews, it is important that children in care are provided with an independent visitor service and that complaints procedures are set out in child friendly language with a list of helpful contacts for every child who goes into care in Northern Ireland. The Children Order complaints system appears to be about 25 pages long and certainly is not accessible in its present form to children or young people.

Of course the position in relation to the challenge of a major change, for example a placement change, in a care plan can have very damaging effects on a child’s life, particularly if placement after placement breaks down. We are pleased to note that there appears to be little evidence of non-implementation of care plans in today’s SSI ‘Planning to Care’ report, although it is acknowledged that only 23 per cent of the cases sampled were able to be used for the purpose of monitoring implementation of care orders after a year.

In relation to challenging changes to the care plan, legally the only effective remedy is by way of use of the Children Order complaints procedure and ultimately by way of judicial review, which is really

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focused more on procedure than substance. Again however, with the advent of the Human Rights Act 1998, there may be challenges made in this regard under Article 8 (the right to family life), or under Article 6 (1) (the right to a fair hearing) on behalf of a child in care who is unable to challenge a change in the care plan under our domestic law. The State is required to provide a right to challenge a decision which affects an individuals civil rights and obligations and this includes a child’s civil rights.

Interestingly, in the case of W v UK(10 EHRR 29), the European Court of Human Rights indicated that a parents’ right to judicially review a decision was insufficient to guarantee hidher rights under Article 6, because judicial review deals with the legality, reasonableness and fairness of the decision and not the merits of the decision itself, which the European Court considered should be capable of challenge. The child or young person may also be able to challenge decisions which restrict contact with family members or placements which make it geographically difficult to maintain contact.

The other major area which is presently being challenged in the European Court is in relation to the traditional immunity of social services in regard to negligence claims relating to child protection matters. The European Commission have concluded that the lack of redress in our courts in this respect amounts to a breach of the right to a fair hearing at Article 6 ECHR and the cases will now be heard by the European Court (see Z and Others v UK, No.29392/95, Comm Reps 10 9 99).

LEAVING CARE There needs to be greater harmony in our legislation and in our practice in Northern Ireland to ensure that a cohesive service is available for young people leaving care. As we are all aware, the issues which need to be addressed for each individual young person are varied and often complex. The development of quality standards and guidelines to complement the legislation would help to ensure that the obligations pursuant to the Children (NI) Order 1995 are uniformly and fairly applied throughout Northern Ireland. The role in Northern Ireland of social workers and of leaving and aftercare services in terms of building relationships of trust with young people and making links with other service providers, is essential and we are pleased to note a commitment in children’s services plans to develop these services.

There should be consultation in line with England and Wales in relation to amendment of the Children (NI) Order 1995 to place a legal duty on Trusts to assess and meet the needs of our young people leaving care. There needs to be careful planning on foot of Children’s Services Plans to ensure that there is a co-ordinated approach, particularly in relation to clarifying obligations in relation to housing for young care leavers who are homeless and the statutory obligations under the Children (NI) Order 1995 and the Housing (NI) Order 1988. We would like to see measures being taken to ensure that our young people who leave care do not under-achieve academically, and that those who do well are funded to enable them to continue in further education. We particularly

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welcome in this regard, moves in England and Wales to introduce additional funding of up to f 100 per week for vacation periods to cover accommodation costs for those leaving care, and hope that these will extend to Northern Ireland.

In respect of listening to the voices of young people who have been through the care system a number of key messages emerged from the recent conferences held by VOYPIC and First Key. Research conducted by John Pinkerton and Ross McCrea in 1996 showed that out of a sample of 110 young people leaving care, 55 per cent were aged 16 or 17. Six months after leaving care 47 per cent of these young people had no educational or vocational qualifications, 25 per cent were unemployed and 75 per cent were living on less than f40 per week.

The messages coming from the recent conferences from the young people were as follows:

1 .

2.

3.

4.

5.

6.

7.

8.

9.

Every young person should have a place in care until the decision to leave has been made in a planned way (the UK average age for leaving home is 22 years as compared to 16 years for our young people leaving care).

All agencies, such as the Northern Ireland Housing Executive (NIHE), the Social Security Agency and the Training and Employment Agency (T&EA), should establish joint protocols with social services and a senior member of staff should take responsibility for this.

The educational needs of young people in care must be properly addressed through partnership arrangements with the Departments of Education and Social Services.

The Social Security Agency and DHSS should clarify their financial responsibilities to care leavers.

The T&EA and Social Services should develop projects which specifically look at the needs of young people leaving care.

A regional through care and/or after care consortium should be established following a period of consultation.

In respect of residential care, the young people made recommendations that the review system should be less adult orientated and that there should be more house meetings and talking with staff.

In respect of foster care, the young people raised the issue of privacy and confidentiality, of the complexity of reviews and the need for a separate advocate.

The recommendations from the young people about leaving care were that a realistic planning timescale should be set with resources and responsibilities identified in advance. A leaving care plan should be established with one person responsible for this plan. A lack of consistency throughout Northern Ireland was identified in terms of financial help and it was recommended that

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there should be agreed policies in all Trusts on all aspects of leaving care, more services and accommodation options, and more information which is easily accessible about the options already there.

10. Specific recommendations were made in respect of independent living and the need was for support from all agencies with a 24 hour contact line and follow-up assistance if necessary.

11. In respect of mental health it was again highlighted that there is a chronic lack of places available for children and young people suitable to the child’s individual needs, with children being accornmodated in adult hospitals. There is no specific legislation in Northern Ireland dealing with children with mental health problems and there is a need to focus on children and young people as a separate group.

Returning to my opening remarks and to the three key provisions of the United Nations Convention on the Rights of the Child, to assess whether we are getting it right for children we must ask ourselves difficult and uncomfortable questions. Are we listening to children? Do we make time in busy schedules to make sure that children understand? Do we acknowledge that it is only through knowledge that children and young people can participate in decisions about their lives? Do we provide non-discriminatory services to children which ensure that children and young people have equal life chances? Are the decisions we make about children’s lives truly in their best interests and not driven by financial considerations?

From a legal point of view we will have to learn to recognise very quickly over the next few months that children’s rights are human rights, which will attract the protection of the Human Rights Act 1998 and will be arguable before our courts. There will be a new duty on public authorities to act in a way which is compatible with the Human Rights Act and this clearly includes the services we provide for children. We also have the equality provisions of the Northern Ireland Act 1998 which require public authorities to develop equality schemes that will include an obligation to promote equality between different ages (age being young as well as old) and to implement appropriate consultation methods which allow for meaningful consultation with children and young people.

There are a number of areas discussed today which require legislative change but many of the matters simply require a change in policy and practice. The Children (NI) Order 1995 brought about a very effective system of representation for children in the care system and should ensure that the child’s voice is heard and that the child participates in proceedings if he or she wishes to do so. There are also many examples of excellent practice in terms of planning for children in care which are very child focused and co-ordinated.

However, it is a long road through care and after care, and it is up to us to ensure that children and young people’s rights are given the recognition they deserve. Planning and co-operation between

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agencies is essential to provide a unified approach to the overall provision of the type of integrated service envisaged in ‘Children Matter’ and careful planning for each individual child on their assessed needs is the key to getting it right for our children in care in Northern Ireland.

REFERENCES

Department of Health (1999). Me Survive Out There? New Arrangements For Young People Living In And Leaving Care. London: DH.

Horgan, G. and Sinclair, R. (1997). Planning For Children in Care in Northern Ireland. London: National Children’s Bureau.

Social Services lnspectorate (1 997). Children Matter - A Review of Residential Child Care Services in Northern Ireland. Belfast: DHSS.

Social Services lnspectorate (1 997). Fostering in Northern lreland - Children and their Carers. Belfast: DHSS.

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