To What Extent Does the Law of England and Wales Recognise a Childs Autonomy Interest - Coursework Example

To what extent does the law of England and Wales recognise a child’s autonomy interest? Has the law struck an appropriate balance between protecting childrens welfare and their rights in this context?   It cannot be gainsaid that children enjoy immense protection under the laws of England and Wales. It has long been established that it is the duty of every state to act in the best interests of the child and to provide a safe environment conducive to his development. 1889 was the first time that the United Kingdom acknowledged the necessity of intervention in cases of child abuse between parent and child. In a sense, it recognized the autonomy of the person of the child, and thus refuting the idea that the child is merely a property of his parents.1 The creation of the Children’s Charter expanded and added additional layers of protection for children and avenues for address. In 1974, following the death of Maria Cowell, there was a realization that the lack of coordination between child protection services imperiled the child. Hence Area Child Protection Committees (ACPC) were created for the purpose of ensuring greater coordination. In 1989, the Children Act came into force. One of its aims was to provide “a consistent framework for regulating all forms of substitute care”2. In 1991, the “Working Together Under the Children Act” was passed, which granted investigatory powers to the ACPC to look into cases of child abuse. The Victoria Climbie affair opened citizens’ eyes on how laws and policies are insufficient to protect children against abuse and maltreatment. Entrusted by her parents in the Ivory Coast to her great aunt Marie Therese Kouao so that she could be given a better life in the United Kingdom, little Victoria instead found herself in the hands of sadists --- Kouao and her boyfriend Carl Manning. When she died on 25 February 2000, she had 128 separate injuries on her body, cigarette burns, scars where she had been hit by a bike chain and hammer blows to her toes.3 The investigation also disclosed that she was forced to sleep in the bin liner in the bath. Hers is the story of institutions that have failed our children, a bureaucracy that has neglected the most vulnerable members of our society, and individual officials whose individual omissions have resulted in collective negligence. In the hearings subsequent to the death of Victoria Climbie, it was discovered that she was seen by dozens of social workers, medical practitioners and police officers but all of them failed to either detect signs of abuse or failed to act on them until it was too late4. The inquiry revealed that there were as many as 12 opportunities were the authorities could have intervened, but failed to.5 Indeed, child abuse is an issue of grave importance, and maltreatment, something more complex than we think6. But instances of child abuse and maltreatment are not the only areas where the State has recognized the need for its intervention. Worthy of note is the fact that children are the paramount consideration of British Law when it comes to the determination of financial arrangements of a divorced couple7. To quote from the Matrimonial Causes Act: It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 or 24A above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen. This is because of the recognition of the fact that children are the most vulnerable parties during the aftermath of a divorce and it is but right to give their needs – psychological, emotional, financial – primacy. Indeed, the costs of divorce are tremendous for a child.8 Hence, the court should use its parens patriae powers to cushion the devastating effects of marital discord. Also worthy of mentioning in this regard is the Children Act of 1989, which sets guidelines for courts to follow in coming up with orders that will impact on the child’s well-being. Among these are the wishes of the child; his age, sex or background; the capability of the parents; the likely effect on him of a change in his circumstances. It also reiterates the principle that the welfare of the child is the primary consideration.9 These are of course obvious cases wherein the welfare of the child is imperiled and the State is mandated to step in. In a sense, the right of the child in these particular cases involves the right not to get hurt. Here, there is no debate. The gray area is when the right spoken of is a more active right: one that involves the autonomy of a child and his or her capacity to make decisions or to participate in the community.10 This paper will examine the extent to which the current law recognizes the child’s autonomy interests. Are children to be considered rights-holders and therefore equal to adults? How does one balance protecting the child’s welfare and championing his rights? Are there cases when there is a conflict? Theoretical framework The United Convention on the Rights of the Child grants to children a whole gamut of rights designed to recognize them as a vulnerable class in need of protection against possible danger and discrimination. Primary of these rights is the right to have their “best interests” be a “primary consideration” (Article 3) in all actions that concern them. This same Convention defines a child as one below the age of eighteen years unless, ‘under the law applicable to the child, majority is attained earlier’ (United Nations 1989). In the United Kingdom, much controversy was generated when a bill was filed that would prohibit parents from smacking their children. When the bill eventually received Royal Assent, it did not completely prohibit smacking. Many had suggested that this constituted an undesirable whittling down of the autonomy of the child and it re-emphasized parental dominion over the child’s body. On the other end of the spectrum, there are those who argue that, upon examining the nature of children vis a vis the nature of rights, the conclusion to be had is that children are not entitled to have rights. This debate becomes clearer when one views rights as being classified into two. Expounds Archard11: What is it for someone to have a right? Here there are two competing theories whose respective virtues and vices have been extensively debated without either gaining evident or agreed supremacy. In one camp is the will or choice theory (Hart 1973; Sumner 1987; Steiner 1994); in the opposing camp is the welfare or interest theory (MacCormick 1982; Raz 1984; Kramer 1998). The first theory sees a right as the protected exercise of choice. In particular to have a right is to have the power to enforce or waive the duty of which the right is the correlative. What it means, on this theory, for me to have the right to education is for me to have the option of enforcing the duty of some other person or persons to provide me with an education, or to discharge them from the responsibility of doing so. The second theory sees a right as the protection of an interest of sufficient importance to impose on others certain duties whose discharge allows the right-holder to enjoy the interest in question. What it means, on this theory, to have a right to education is for me to have an interest in being educated which is so important that others are under an enforceable duty to provide me with an education. For the first category of rights, the “will” theory, it is a requisite that the holder of rights be capable of making competent and independent choices. Accordingly, critics of children’s rights maintain, children lack the cognitive abilities that adults possess to enable them to make the thoughtful choices. They may be compared to the seriously mentally-impaired who are denied a number of rights because of their personal limitations. Archard12 enumerates the objections made by child’s rights critics. He says that the firs argument is that children cannot be rights-holders in the way that adults are. Second is that one must take into account the nature of childhood and this includes the relationships of children with adults and how children behave. Third is that society can sufficiently protect children without taking a rights-based approach. While this paper does not intend to resolve or give a definitive answer to the competing schools of thought, what it will attempt to do is examine how the law in England and Wales attempts to address these tensions. The second classification of rights, the interest classification, is the right essentially to “be”. This includes the right to health, to shelter, to education – in sum, the right to thrive and develop to his fullest potential and not to be harmed. The first classification of rights, the will classification, is the right essentially to “do”. This involves the more contentious issue of the right to make decisions, the right to choose how to live his life, the right to participate in affairs. The question now is when a child’s right to “do” conflicts with his right to “be”. An easy and obvious example would be the issue of driving. Obviously, a child’s right to drive (do) could conflict with his right to be (as he could get killed, and would therefore cease to “be”) and the State would only be doing its duty when it forbids a fifteen-year-old to take the wheel. There is an undeniable restriction on the child’s autonomy interest, but this restriction is widely accepted to be valid because of the need to protect the child’s well-being. In this easy example, the argument of the child’s rights critics is well-taken. It is indeed valid to consider the nature of childhood. But in difficult cases, as when the danger to the child is speculative, or the argument in favor of autonomy is persuasive, what limits does the law set? Consent and Autonomy The concept of consent started out simply as a medico-legal requirement13, but it has its underpinnings in the notion of respect and autonomy springing from the deeper idea of human rights as enshrined in the United Nations Declaration of Human Rights and the European Convention on Human Rights. The law in the United Kingdom may well be considered as providing a liberal view of autonomy where children are concerned, acknowledging the right of minors to make decisions for themselves. The United Nations Covnention on Human Rights, which was ratified by this country in 1991, stated categorically that children have the same dignity and equal rights as adults, although it recognized the need for children to be guided, given their vulnerable years. In the United Kingdom, 16 and 17 year olds were permitted to give their consent to medical interventions and are as empowered as adults14. According to Kennedy and Grubb15 “the Children Act 1989 weighed the principle that childrens wishes should be sought and respected whenever possible against professionals perceptions of the childs best interests, and granted limited rights to refuse medical examination and treatment to children looked after by the local authority”. When a child’s life is placed in peril or when what is at stake is his health and well-being, perplexing issues arise that raise dilemmas on what should be prioritized -- a child’s welfare, or a child’s right to consent. According to Parekh16: “In order to consent to treatment, a child must be competent enough to do so, and this competence is judged usually by a doctor. Children can even consent to contraceptives and abortion if competent to do so. This concept perfectly lacks moral, ethical and emotional competence, and judgement of competence is carried out usually purely scientifically by pure science-orientated objective professionals like doctors.” In the United Kingdom, the law states that a practitioner may not give treatment to a child if not given permission by a person sufficiently cloaked with authority to give consent. If the treatment proceeds, he will be liable in civil law for trespass to the person and may also be guilty of a criminal assault.17 Anyone with parental authority in the Children Act 1989 can give valid consent to the treatment of a child. Adults, on the other hand, may refuse treatment for reasons that are "rational or irrational or for no reason"18. In the case of Gillick v West Norfolk and Wisbech Area Health Authority19, an interesting debate ensued as to whether or not a child below the age of sixteen years old may receive information on contraceptive without her parents’ consent. In the said case, the Department of Health and Social Security came out with a circular to area health authorities stating that a doctor need only to be acting in good faith in order to be protected from criminal liability should he provide contraceptives to a girl of sixteen years old. If his aim was to protect her against the harmful effects of sexual intercourse and nothing else, then he is acting within the bounds of the law. The circular further stated that, although a doctor should proceed on the assumption that advice and treatment on contraception should not be given to a girl under 16 without parental consent and that he should try to persuade the girl to involve her parents in the matter, the relationship between child and dcotro is still afforded the same mantle of protection given to a doctor-patient relationship where the party is an adult. This means that the rule of confidentiality will obtain. Stemming from this circular, the plaintiff, a parent who had five daughters under the age of 16, sought an assurance from her local area health authority that her daughters would not be given advice and treatment on contraception without the plaintiff s prior knowledge and consent while they were under 16. Because the local area health authority refused to do so, she filed this suit. How did the Court resolve this issue? The House of Lords affirmed the right of the 16-year-old to solicit services in relation to contraception even against the wishes of her parents. It further held that “The court would not hold the doctor liable for providing contraceptive facilities if the doctor had reasonable grounds for believing that the parent had abandoned or abused parental rights or that there was no parent immediately available for consultation or that there was no parent who was responsible for the girl. But exceptional circumstances and emergencies cannot be expanded into a general discretion for the doctor to provide contraceptive facilities without the knowledge of the parent because of the possibility that a girl to whom contraceptive facilities are not available may irresponsibly court the risk of pregnancy.” The case gave rise to the term “Gillick-competent”, which means that "the parental right to determine whether their child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable them to understand fully what is proposed". If one examines case law, it would seem that the courts have made a distinction between “consent” and “refusal of treatment.”20. In one case, a 15-year-old ward of court who was admitted because of mental illness attempted to refuse treatment. The court ruled that he could not be considered competent21. In another case, a 16-year-old girl diagnosed with Anorexia Nervosa, a mental illness involving intentional starvation, the court held that the parents still had the right to give parental consent on the child’s behalf, notwithstanding the passage of the Family Law Reform Act22. One can therefore see that the law and jurisprudence have a rationale for distinguishing between consenting to treatment and refusing treatment. The need to preserve a life should take primacy over the need to respect the wishes of an individual, particularly one who has yet to come into age and who has yet to be equipped with enough knowledge, experiences and tools to make proper decisions that could change the course of his or her life. How then does one test the competence of children? As yet, there is no formal legal standard. According to Ford23: There is no legal test of competence for children, but good practice guidelines published by the British Medical Association & the Law Society (1995) recommend assessing the young persons understanding that there is a choice, that choices have consequences, and that an ability to make choices exists. After assessing the childs comprehension of the nature and purpose of the proposed intervention, together with its risks, benefits and any alternatives, one should consider the young persons freedom from pressure to act in any given way. Certainly there are difficult issues that have to be dealt with. As when for instance, it is the primary care-giver who is not acting within the best interests of the child and the child is sixteen or seventeen years old. How then does one grapple with this? It would have the problem of straitjacketing the hands of medical practitioners. Conclusion There certainly are efforts that are being made to improve on the regulations pertaining to child protection. (Parton, 1997) There is too a greater recognition that child protection must be the result of a synergetic effort among institutions and players in society. The social worker and the other officials responsible for child protection must be cognizant of the milieu in which he operates and keenly aware of the vulnerabilities of the individual he is tasked to protect. The sense of disenfranchisement, the lack of access to institutions and state infrastructure, the lack of redress mechanism, the lack of participation in policy-making – these are more present in children than in adults. At the end of the day, we must be united in our goal to provide a better world for our children, where they can grow to the fullest of their potential and contribute to society as productive and well-rounded citizens. It involves striking a balance between promoting their welfare and championing their right to autonomy. References Alston, P., Parker, S., and Seymour, J. (eds.), 1992, Children, Rights and the Law, Oxford: Oxford University Press Archard, D. Children’s Rights. Stanford Encyclopedia of Philosophy. 2006. Brennan, S. and Noggle, R., 1997, ‘The Moral Status of Children: Childrens Rights, Parents Rights, and Family Justice’, Social Theory and Practice, 23: 1-26. Brennan, S., 2002, ‘Childrens Choices or Childrens Interests: Which do their Rights Protect?’ in The Moral and Political Status of Children: New Essays, D. Archard and C. Macleod (eds.),Oxford: Oxford University Press: 53-69. Brighouse, H., 2002, ‘What Rights (if any) do Children Have?’ in The Moral and Political Status of Children: New Essays, D. Archard and C. Macleod (eds.), Oxford: Oxford University Press: 31-52 Dickenson, D. (1994) Childrens informed consent to treatment: is the law an ass? Journal of Medical Ethics, 20, 205-206. Ford, T. Feeling the way: childhood mental illness and consent to admission and treatment. The British Journal of Psychiatry (2001) 179: 384-386. Gough, D. “Defining the Problem” Child Abuse and Neglect. Vol. 20 No. 11. (1996) 993-1102. Hale, Pearl, Cooke & Bates. The Family, Law & Society. London: Butterworths. 2002. Kessel, A. S. (1994) On failing to understand informed consent. British Journal of Hospital Medicine, 52, 235-239. Kennedy, I. & Grubb, A. (1994) Medical Law: Texts with Materials. London: Butter worths. Maccoby, E. & Mnookin, R. “Dividing the Child: Social and Legal Dilemmas of Custody.” Family Relations, Vol. 42, No. 3, Family Diversity (Jul., 1993): pp. 363-364 Laming, Lord (2003) The Victoria Climbie inquiry: report of an inquiry by Lord Laming. Cm 5730. Masson, J. “Implementing Change for Children: Action at the Centre and Local Reaction” Journal of Law and Society, Vol. 19, No. 3 (Autumn, 1992), pp. 320-338. O’Neill, “O. Childrens Rights and Childrens Lives”. Ethics, Vol. 98, No. 3 (Apr., 1988), pp. 445-463 Parekh, S.A. Child Consent and the Law. Child: care, health, and development. 2007 Jan; 33(1):78-82. Parton N. (ed) (1997) Child protection and family support: tensions, contradictions, and possibilities, London: Routledge Cases: Gillick v. West Norfolk and Wisbech Area Health Authority (1986) AC, 112. Sidaway v. Governors of Bethlem Royal Hospital (1985) AC, 871. Re: C (Adult: Refusal of treatment) (1994) I, WLR, 290. Re: R (A minor) (Wardship: Medical Treatment) (1991) 4, All ER 177, CA. Re: W (A minor) (Wardship: Medical Treatment) (1992) 4, All ER 627, CA. Read More