The Children Act

Published: Friday 24th August 2018

The Children Act, starring Dame Emma Thompson, opens in UK cinemas today (24 August), and explores how society treats children and how decisions about their welfare are made in complicated contexts and circumstances.

Kamena Dorling, Group Head of Policy and Public Affairs at Coram comments on the issues raised in the film, and the complexities of cases in the family justice system:

“Coram Children’s Legal Centre promotes and protects the rights of children in the UK and internationally in line with the UN Convention on the Rights of the Child (UNCRC).

Much of our work centres on two of the core principles of the UNCRC:

  • The child’s best interests must be a primary consideration in all decisions affecting them (Article 3)
  • Children have the right to express themselves freely on matters that affect them, and to have their views given due weight in accordance with their age and maturity (Article 12)

Section 1 of the Children Act 1989 makes clear that ‘When a court determines any question with respect to … the upbringing of a child … the child’s welfare shall be the court’s paramount consideration’. However, determining what is in the best interests of any child can often be a complex process. Family court judges regularly face difficult decisions, for example when balancing parents’ sincerely held beliefs about how children should be brought up against societal expectations and the rights of the child, or finding the balance between respecting a child’s views whilst also properly considering the reasons why a child might be biased in a particular way.

This country has a strong legal framework for the protection and support of children and young people, but if they are unable actually to enforce their rights then those rights are worth little more than the paper they are written on. Key decisions about a child’s future can be made without their views being put forward, or all the relevant information being considered. Coram believes that in all important decisions concerning children (which are made by public bodies or a judicial processes), children should have an appropriate opportunity to participate in the decision-making process.

A judge can consider the views of the child in a variety of ways: these could be ascertained from the child and included in a report to the court compiled by a Cafcass (Children and Family Court Advisory and Support Service) adviser after speaking to the child and their parent/s; through separate legal representation; through talking to the judge directly; and through the child giving evidence in court.

The latter happens rarely and there is no automatic right for a child to attend or speak at court. In recent years, there has been debate as to how the family justice system can both safeguard children and ensure that they are able to participate meaningfully in legal proceedings. The previous President of the Family Division, Sir James Munby, has highlighted the lack of visibility of children within the system.

Coram is committed to ensuring that children are encouraged and supported to express their views – not just with a legal framework that allows theoretical access to the court, but within the entire system. Children must understand their rights, the legal process they are going through and should be supported by their parents and/or the state every step of the way. They should be able to get legal advice if they need it. All support should be tailored to the individual child, with their welfare the top priority.

Coram is calling for the mandatory provision of an independent advocate enshrined in law for all children and young people receiving or seeking care or support from the state. There is also a clear need for an increase in the scale of and long-term investment in open access to free legal information and advice for children, young people and families. This would help ensure greater resolution of legal issues without cases going to court.”

Find out more about Coram Children's Legal Centre's work here.