This paper will assess how well children’s views are incorporated into child law decisions in England and Wales, specifically when a court is considering a care order, and whether there is any room for improvement.
Allowing children to express their views over decisions which greatly affect them is a principle that has grown substantially in the last several decades. However, the extent to which children can influence and participate in civil cases has been controversial. Both sociologists and legal scholars have been concerned whether allowing a child to articulate their views is truly in their best interest. Some believe that children cannot comprehend the importance of such life-altering decisions; whilst others argue that if children’s views were followed, it would challenge parental decisions and choices.
Table of Contents
1. INTRODUCTION
2. INCORPORATION OF CHILDREN’S VIEWS
2.1 Legislative Basis
2.2 Guardian ad Litem
2.3 Approach of the Courts
3. ROOM FOR IMPROVEMENT
3.1 Younger Children
3.2 Desirability of the Child’s Involvement
3.3 Lack of Information
4. CONCLUSION
Research Objectives and Core Themes
This paper examines how effectively the legal system in England and Wales incorporates the perspectives of children into decisions regarding care orders. It evaluates the legislative framework and the role of the court, while critically assessing whether current practices adequately balance the child's expressed wishes with their best interests and identifying areas where the system fails to sufficiently include children in decisions that fundamentally shape their lives.
- The legislative framework for child participation in England and Wales.
- The specific role and responsibilities of the Guardian ad Litem.
- The judicial approach to balancing a child’s views against their welfare.
- The impact of child age, vulnerability, and parental influence on legal outcomes.
- Barriers to effective participation, including lack of information and systemic over-protection.
Excerpt from the Book
Guardian ad Litem
In order to make sure the child’s wishes are expressed in care proceedings, it is mandatory for the court, invoking the services of CAFCASS, to appoint a guardian ad litem for the child, unless it would be unnecessary to do so. The guardian’s role is primarily to ‘safeguard the interests of the child’.
This duty demands conversing with and listening to the child. As the Government noted in their guidelines, ‘Working Together to Safeguard Children’, the importance of this cannot be emphasised. The children’s guardian will conduct further investigations in order to obtain additional information, such as from parents, which will assist them in drafting a welfare report on the interests of the child.
At each court appearance, the guardian must also convey the wishes of the child, the weight to be given to those wishes, and whether it is in the child’s best interest to attend. Where a child does not attend, it is normally the guardian who will represent his views. On the other hand, the guardian may appoint a solicitor to represent the child separately.
If a disagreement arises between the child and the guardian, the solicitor may take instructions from the child directly, if the child choses to do so. The guardian may then arrange for independent representation; although he will continue with his duty to the child.
Summary of Chapters
INTRODUCTION: This chapter outlines the growing recognition of children's rights to be heard in legal proceedings, citing key historical judgements and international conventions.
INCORPORATION OF CHILDREN’S VIEWS: This chapter examines the legislative foundation of the Children Act 1989 and the specific mechanisms, such as the Guardian ad Litem, used to facilitate child participation in court.
ROOM FOR IMPROVEMENT: This chapter critically evaluates systemic flaws, including the exclusion of younger children, the judiciary's reluctance to hear oral evidence from children, and the critical lack of information provided to children throughout the legal process.
CONCLUSION: This chapter synthesizes the findings, noting that while mechanisms for inclusion exist, there remains a difficult, unresolved tension between protecting a child's welfare and truly incorporating their voice.
Keywords
Children's Rights, Care Orders, Children Act 1989, Legal Decision-Making, Guardian ad Litem, Child Welfare, Judicial Discretion, Participation, Family Law, Child Protection, CAFCASS, Vulnerability, Statutory Checklist, Best Interests, Courtroom Procedure.
Frequently Asked Questions
What is the primary focus of this paper?
This paper investigates the extent to which the voices and views of children are integrated into legal care proceedings in England and Wales, and whether the current system effectively listens to them.
What are the central thematic areas?
The core themes include the legislative basis for participation, the role of professional guardians, judicial attitudes toward child attendance, and barriers such as age and lack of information.
What is the primary research goal?
The goal is to determine if current legal practices are sufficient or if there is a demonstrated "room for improvement" in how children's perspectives are valued in life-altering care order decisions.
Which scientific or legal methods are used?
The paper employs a legal and sociological analysis, utilizing case law, legislation, government reports, and academic research to evaluate the effectiveness of current child law.
What is covered in the main body of the text?
The main body covers the legislative duties of courts, the specific role of the Guardian ad Litem, and identifies key obstacles to effective participation, such as the perceived trauma of court appearances.
Which keywords best describe the work?
The paper is characterized by terms like Children's Rights, Care Orders, Legal Decision-Making, Child Welfare, and Judicial Discretion.
How does the legal system determine the "weight" given to a child's views?
According to the text, the weight attached to a child's view is primarily dependent upon their age, level of understanding, and overall maturity, with courts often favoring "full and generous" weight for mature children.
Why is the Guardian ad Litem role considered contentious?
The role is complex because the guardian must balance two often conflicting objectives: protecting the child’s welfare and representing the child's expressed wishes, which may not always align with the child's best interests.
- Citation du texte
- Samar Dehghan (Auteur), 2011, Incorporation of Children's Views in Legal Decisions in the UK, Munich, GRIN Verlag, https://www.grin.com/document/371878
