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Children Left In The Dark In Care Proceedings

A new report published today raises serious concerns about the extent to which children in care proceedings are kept in the dark about the legal processes happening around them. The research by the University of Warwick's School of Law and The National Society for the Prevention of Cruelty to Children (NSPCC) is published today in a book entitled Out of Hearing: Representing Children in Care Proceedings.

One of the areas examined by the two researchers, Professor Judith Masson, and Dr Maureen Winn Oakley, was the role of children's representatives. Children subject to care proceedings generally have a representative appointed for them by the court known as a guardian ad litem (usually a qualified social worker) and a solicitor. The children do not choose their guardians, and rarely choose their solicitors, but the children rely upon these people to challenge the local authority in the court proceedings. The researchers had a number of concerns about this situation including:-

Guardians and solicitors were acutely aware of the limitations of court powers and the pressures on the child's social worker. Although some were able to achieve improvements in children's situations by liaising with social services not all did so. One 12 year old ran away to relatives because he opposed the arrangements planned for him.

Negotiation and conciliation were important tools in promoting children’s wishes and interests.

By final hearing, there was no conflict between the adult parties (parents etc) and the local authority in any of the cases in the study, as is the case in the majority of care proceedings. The guardians had limited opportunities to raise any outstanding concerns about the child's future care in final hearings. In addition, raising issues at this point was seen as counter-productive, as it might only serve to delay the final order and increase conflict with social services. As a consequence at the end of the proceedings it was often not clear where and with whom the child would live, where the child would go to school and when these arrangements would be made. One boy of 14 years was so desperate to be found the foster placement planned for him that he approached a family who had fostered his sister and begged them to take him in.

Where concerns remained unresolved after the final order, guardians and solicitors were powerless because their appointments had terminated. Goodbye visits to children might provide one last opportunity to inform them of their rights, but guardians and solicitors were only too aware that children could rarely take matters further on their own, and they were concerned not to be seen to undermine social services.

Children interviewed in the research were not satisfied with the limited access they were given to the guardian ad litem's report. Children should have the right to see and retain the document as other parties do.

Lord Justice Butler-Sloss once said

"the child is a person not an object of concern".

The researchers conclude that children are still not given the rights and respect they are due by the courts. Although children may be too young to understand all of the consequences of the court's decision it can never be in the child's interests that the outcome is concealed from them. All the children in the study were aware that decisions were to be made about them by the court. Their anxiety to know the decision was not reflected in clear arrangements to tell them without delay, what had been decided. At the end of any hearing which is not attended by the young person the court should direct that one of the professionals involved, the guardian ad litem, solicitor or the social worker, should immediately inform the young person of the decision and provide appropriate support. Solicitors who have represented young people should always write to their clients to confirm the outcome of the proceedings and explain the effect of any decision.

Out of Hearing: Representing Children in Care Proceedings, is published by Wiley ISBN 0471 98642 9 contact Rebecca Robinson for Review copies 01243 770674.

Professor Judith Masson, School of Law, University of Warwick Tel: 01203 523172
Dr Maureen Winn Oakley, NSPCC Research Fellow School of Law, University of Warwick Tel: 01203 524938

Peter Dunn, University Press Officer  01203 523708

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