Child Protection: Legal Safeguards Overview

  • 7 Pages
  • Published On: 27-05-2024

Abstract

Children are vulnerable and are exposed to the risk of being maltreated, misunderstood and discriminated against. Discriminatory abuse of children is a result of perception that often leads to misconstruing instances as part of the children’s impairment or health condition. Various enforceable laws are in order, for example the Children Act 2004, the Children and Social Work Act 2017, the Human Rights Act 1998 and the European Convention on Human Rights among others. They provide for safeguarding and promoting the welfare and well-being of children. The judiciary have developed rights and have laid down enforceable precedents when applying the human rights standards found in the laws.

Introduction

Child abuse is a social problem and a concern. The Crime Survey for England and Wales (CSEW) estimated that ‘one in five adults aged 18 to 74 years have experienced child abuse before the age of 16 years. This is 8.5 million people. In the year ending March 2019, Childline addressed 19,847 counselling sessions to children where abuse was the primary concern. 1 in 20 of the sessions involved referral to external agencies (Office of National Statistics, 2019). The 2018 HM Government report child abuse as involving maltreatment, abuse, neglect, harm or prevent harm (HM Government, 2018)

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Instances of child abuse occur when they children are not treated equally by not adhering to relevant laws, their values and beliefs and cultures. Such inequalities could be seen in the individual and societal attitudes and institutional approaches. For example, the Department of Education (2017) found discriminatory individual and societal attitudes and assumptions towards children with disabilities. They are reluctant to believe that such children are abused and to minimise the impact of abuse on the children. Similarly, care professionals seem to not recognise the signs of abuse or neglect and may misconstrue behaviours, such as self-mutilation and repetitive behaviours as a part of the children’s impairment or health condition (The Department of Education, 2017).

Discrimination can be direct discrimination based on a protected characteristic; associated discrimination against somebody associated with a person has a protected characteristic, indirect discrimination treating somebody less favourably than others because of a protected characteristic, discrimination by perception against a person who has a protected characteristic, and harassment and victimisation, and (Rivlin, 2012). In terms of children, the individual, societal and institutional treatment do not seem to follow the equality rules while dealing with children. Evidence is that of significant inequalities in rates of children's services interventions that has risen to maltreatment and deprivation (Bywaters, et al., 2014; Sidebotham & Heron, 2006).

The signs and symptoms of child abuse may include poor care and support not meeting the needs, verbal abuse, disrespect or exclusion from activities and services. Child Abuse is a political theme, and, in that regard, children can be considered a social minority. Children may be systematically discriminated, as seen above regarding care intervention, on the basis of their location within the social structure (Wyness, 2015). For example, children belonging to households living in extreme poverty, disabled children, children from black and minority ethnic communities and LGBT children are more likely to be bullied than others. There are instances where the schools are not taking bullying seriously. Bullying is a form of discrimination that affects the mental health and well-being of children (Howard, et al., 2017). Further, it has been observed that the mental health gap between the advantaged and disadvantaged children has not reduced over more than a decade (Collishaw, et al., 2019).

Discriminatory abuse is prohibited by law. Irrespective, the existence of such abuse of children requires an urgent enforceable intervention.

Legislation

The United Nations Convention On The Rights of The Child, 1989, Article 19 and Article 3 provide for protection of children from violence, injury, abuse, neglect, maltreatment, and sexual and decisions affecting children must primarily focus on their best interest. The Children 2016 Amendments’ Clause 4 also provides for such comprehensive protection of their rights. The Children Act 1989 provides the legislative framework for child protection in England. Section 1(1) provides prime importance to the child’s welfare, especially subsection 1(1)(a) regarding the upbringing of a child. Section 17(1) imposes a duty on the local authority to safeguard and promote the welfare of the children. The local authority has the duty upon a court order to place a child under its care (Section 31(1)). Accordingly, under Section 11 of the Children Act 2004, the designated authority has the duty to make arrangements to safeguard and promote welfare. Hence. The local authority has parenting principles in regard to the welfare of children. The Children and Social Work Act 2017, Section 1 provides provisions to that effect. Section 12 provides for Child Safeguarding Practice Review Panel, which has the duty under Section 13 to identify serious child safeguarding cases that involve complex issues or issues of national importance and review those cases to take appropriate actions.

The Human Rights Act 1998 that gives effect to the European Convention on Human Rights. This Act gives effect to Article 3 that prohibits torture, inhumane, or degrading treatment. Children have the basic, developmental and autonomy interests (Eekelaar, 2006). The first two are necessary to sustain a healthy life. The last interest could be found in provisions that provide for the environment conducive for the welfare of the children, such as the duty imposed on the carers to that effect. Hence, the children’s best interest is of paramount nature (Eekelaar, 2006).

The children rights are closely linked with discrimination. Non-discrimination and equality before the law and equal protection of the law without any discrimination is the basic and general human rights principle. Since children are powerless, they are more vulnerable to indirect discrimination and multiple jeopardy (Invernizzi, 2016). Thus, it is the power and duty of the Child Safeguarding Practice Review Panel, under Section 13 of the Children and Social Work Act 2017 to identify discrimination and abuse of children as a serious and complex issues to review and take appropriate actions.

The Children Act 1989 has categorised children as those in need and at risk in order to provide preventive intervention (Section 1). Accordingly, intervention approaches are adopted at different levels. For example, in relation to cases in ethnic community, the diversionary approach can be adopted as is done by NSPCC that works to increase awareness of child abuse and cruelty (Dalrymple, 2006). Early prevention programmes such as the Childline or Parentline Plus work to offer a 24-hour helpline to children. Heavy-end prevention involves complex cases with destructive family behaviour resulting in emotional abuse of children in the household. The restorative prevention is to safeguard the welfare and interest of children who are already in care (Dalrymple, 2006).f

Cases

The courts have developed rights in personal law, especially when applying the human rights standards (Eekelaar, 2006). In (B (Children) (Sexual Abuse: Standard of Proof), Re, [2008] 3 W.L.R. 1 , 2008), a couple, father and mother had two children from their marriage, A, a girl aged nine, and B , a boy aged six, and the mother’s children of a previous marriage, C, a boy aged 17, and D, a girl aged 16. The husband left and subsequently applied for residence orders in respect of A and B. Instead, interim care orders were passed in respect of D as well as A and B. D claimed that the father sexually abused her. The care proceedings came to the High Court and the issues was whether, ‘the threshold criteria under section 31(2) of the Children Act 1989 1 for the making of a care order were satisfied’. Baroness Hale Of Richmond stated that children have the right to life under Article 2 of ECHR and under Article 3 the right not to be subjected to torture, inhuman or degrading treatment or punishment. However, the cases does not show that the authorities hafve failed the duty to protect the children from such treatment. The Section 31(2) of the Children Act 1989 threshold is intended to protect children and parents from unjustified intervention by the state, which is not the case in the current issue. The court held that a care order cannot be made based on mere suspicion, irrespective of the seriousness of the allegations of sexual abuse.

Similarly in the case of (re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12 , 2010), there were care proceedings in respect of A, aged 14, and her four younger half-siblings following A’s complaints of sexual abuse by her stepfather, who was the father of the siblings. The issue was whether to order a child to attend to give evidence in family proceedings. Lady Hale cited the approach stated by Smith LJ in (LM v Medway Council, RM and YM [2007] EWCA Civ 9, [2007] 1 FLR 1698, 2007, p. 44), that ‘The correct starting point . . . is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken. There will be some cases in which it will be right to make an order. In my view they will be rare’. Lady Hale states that there are two considerations. First is the advantages regarding the determination of the truth and the damage concerning the welfare of the children in this case. Second is the consideration of the principle of a fair trial subject to the issues which have to be determined. The proceedings must promote the welfare of the children and unless their interests are given weight, they cannot be fair.

Conclusion

Child abuse is a major social and policy concern. The lack of understanding of a child need and their behaviour seems to have contributed to the instances of discriminatory abuse. These instances have more negative detriments on those who are in disadvantaged social structure or positions. The existing legislation framework presents a strong mechanism, which the designated agencies and authority must use themselves and to empower social groups and families to enforce the rights of children.

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Bibliography

  • Bywaters, P., Brady, G., Sparks, T. & Bos, E., 2014. Inequalities in child welfare intervention rates: The intersection of deprivation and identity. Child & Family Social Work, 21(4), pp. 452-463.
  • B (Children) (Sexual Abuse: Standard of Proof), Re, [2008] 3 W.L.R. 1 (2008).
  • Collishaw, S., Furzer, E., Thapar, A. K. & Sellers, R., 2019 . Brief report: a comparison of child mental health inequalities in three UK population cohorts. European Child & Adolescent Psychiatry , Volume 28, pp. 1547-1549.
  • Dalrymple, J., 2006. Anti-oppresive practice: social care and the law. s.l.:Open University Press.
  • Eekelaar, J., 2006. Family Law and Personal Life. s.l.:Oxford University Press.
  • Howard, C., Burton, M., Levermore, D. & Barrell, R., 2017. Children’s Mental Health and Emotional Well-being in Primary Schools A Whole School. s.l.:SAGE Publications.
  • Invernizzi, A., 2016. The Human Rights of Children From Visions to Implementation. s.l.:Taylor & Francis.
  • LM v Medway Council, RM and YM [2007] EWCA Civ 9, [2007] 1 FLR 1698 (2007).

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