Chapter One: Introduction
Background
1.1 This research project was commissioned by the Scottish Executive to find out how advocacy for children in the Children's Hearings System compares with arrangements in other UK systems of child welfare and youth justice and those internationally, and what children and young people and the professionals who work with them think about advocacy arrangements in the Children's Hearings System and how these can be improved.
1.2 The research project was developed and managed by three organisations in Scotland:
- Scottish Children's Reporter Administration - is at the centre of the Children's Hearings System;
- Save the Children - works to promote children's rights in the UK and around the world;
- Who Cares? Scotland - provides independent, rights-based advocacy services to children and young people in public care.
Each of these organisations is involved in various ways promoting and providing advocacy for children and young people in the Hearings System. The research was conducted by an independent social researcher employed by SCRA for the specific purpose of this study in collaboration with research officers at SCRA and Save the Children.
1.3 The research will inform the Scottish Executive's current review of the Children's Hearings System 'Getting it Right for Every Child' which, amongst other provisions, proposes to improve the protection of children's rights including the extent to which children and young people can express their views in decisions made about them.
Structure of this report
1.4 This report introduces the legal background to children's and young people's rights to participate in decisions made about them in the Children's Hearings System, explains what is meant by advocacy, and discusses what is already known about how much children and young people can participate in the Children's Hearings System and other systems of child welfare and youth justice. The methods section describes how children and young people and professionals working with them were selected to take part in the research, what they were asked and how interviews were carried out, and how information obtained from these interviews was analysed.
1.5 The main part of the report discusses the findings from the research in relation to three key sections:
- Who provides advocacy support in the Children's Hearings System?
- What are children and young people's experiences of participating in Children's Hearings?
- What do children and young people want from advocacy support?
This enables us to compare and contrast children and young people's experiences and aspirations from a range of perspectives.
1.6 The final section draws together the evidence from the literature review of other research on children and young people's participation in child welfare and youth justice systems, and the findings from this research to draw conclusions and set out policy and practice implications for the Scottish Executive to consider as part of its review of the Children's Hearings System.
Legal background
1.7 The principle that children and young people are holders of human rights including their right to participate in decisions which affect them in all aspects of their lives is recognised worldwide (United Nations Convention on the Rights of the Child, ratified by the UK Government in 1991). In Scotland this is supported through provisions in the Children (Scotland) Act 1995, which recognises the right of children and young people to be consulted about decisions in their lives and for those views to be taken into account in decision-making. The Act embodies a set of key fundamental principles which apply generally to the operation of the Children's Hearings System, including:
- that the child's welfare should be paramount in all decisions;
- that children should have the opportunity to express views and have these views taken into account in decisions which affect them.
1.8 The first, known as the paramountcy principle, is considered by many to be dominant. In simpler terms this principle means that all decisions made should be in the 'best interests' of the child. The second, requiring the interactive participation of children in Hearings, pre-dated the 1995 Act and is recognised as a 'foundation stone' of the Children's Hearings System. However, the extent to which this participation is realised in day-to-day operations has come under scrutiny in the context of the Scottish Executive's current review of the Children's Hearings System 'Getting it Right for Every Child'.
What is advocacy?
1.9 For the purpose of this research a broad definition of advocacy was developed by the research partners at the outset of the research project. This definition reflected the complexity of options that could help children and young people understand, communicate and participate effectively according to their age and understanding in Hearings processes and in important decisions which affect their lives.
1.10 The definition of advocacy developed was:
'At its broadest, advocacy is the provision of information, explanations, support, simple encouragement to participate, or direct advocacy by way of representation. Children and young people involved in the Children's Hearings System experience a need for a mixture of these things at different stages in their involvement with the System and to differing degrees depending on their particular needs.'
1.11 The relationship between advocacy and participation is crucial. It is apparent in terms of Article 12 of the UNCRC that, if children and young people are to be able to participate in a meaningful way, they require information, support, and encouragement sometimes to be their own advocate and at other times to accept appropriate representation. The important thing is that the children and young people's needs in this crucial area are themselves seen as relevant and a right which others have a duty to fulfil. Where this is the case their need for advocacy will be prioritised, assessed and, wherever possible, explicitly matched to resources.
1.12 There are a number of important aspects associated with the realisation of effective participation for children and young people, though these are not mutually exclusive. To facilitate their involvement, some children and young people need information to enhance their understanding of their situation. Others identify someone to help them simply by being 'around' who can provide support and explanations, whilst others need a trained advocate or a representative. For example, Who Cares? Scotland very often helps children and young people to prepare written material for Hearings or simply helps them to work out what they wish to say and helps them to say it. At other times, and maybe in conjunction with other inputs, a solicitor will be the best person to assist them.
1.13 Advocacy in its many guises can serve as a means to achieve children and young people's participation as required by Scots and UK law, UNCRC and European case law and can help to ensure their experiences of the Children's Hearings System are both productive and positive.
What is already known?
1.14 A literature review was carried out as part of this project to find out:
- What other research has said on children and young people's ability to participate in the Children's Hearings System.
- How other systems of youth justice and child welfare in the UK and in other countries ensure children and young people's participation in decision making.
The conclusions from this literature review are given below, and the full report is attached at Annex 1.
The Participation of Children and Young People in Welfare, Justice and Family Legal Proceedings: A Comparative Review - Conclusions
1.15 The principle of participation is a key feature of the Children's Hearings System, entrenched in the both the philosophy and legislation which govern the operation of the System. However, this review of research on the participation of children and young people in the Children's Hearings System, focusing on projects which sought the views of children and young people, has shown that this principle is difficult to put into practice. It was found that there is a complex situation where children often feel left out of discussion and are confronted with a range of barriers which makes it very difficult for them to participate and effectively express their views. Although a number of provisions do exist to help overcome these barriers and thus facilitate the participation of children and young people, there is a distinct gap in the research evidence of models of advocacy which children and young people themselves would find useful in supporting their participation in the Hearings System.
1.16 Despite the limitations reported on children's participation in the Children's Hearings System, the research evidence suggests that the mechanisms that exist and the extent to which they enable children and young people to participate in the Scottish Hearings System are at least as extensive if not more so than in other UK proceedings and those of other countries. However, this review has shown that there are common barriers preventing the participation of children and young people in welfare, justice and family decision-making in different types of proceedings and across international jurisdictions.
1.17 The similarities in terms of barriers have highlighted common issues to be addressed to facilitate participation. These are:
- Children want to be listened to.
- Children must be given the opportunity to attend the proceedings concerning them.
- Confidentiality is essential to ensure that children will fully express their views.
- Children require to be kept informed. They have a right and a desire to be provided with information in a format suitable for them which explains processes, options, decisions and reasons for decisions.
Where an advocate is seen as necessary, they must be:
- Confidential.
- Knowledgeable about the system.
- Able to communicate effectively with children.
- Good listener.
- Be provided on a continuous basis to support a child throughout his/her case.
Research aims
1.18 It was found from the literature review that there has been little research which directly sought the views of children and young people on their experiences of advocacy in the Children's Hearings System (apart from the work of Hallett and Murray, 1999), and none which involved young children. There was also little research evidence on children and young people's opinions on how advocacy arrangements in the Children's Hearings System could be improved. Drawing on the findings from the literature review in terms of what is already known and to address the gaps in our knowledge of children's views and experiences of advocacy, the research project was designed to answer the following questions:
- What are children and young people's experiences of advocacy in the Children's Hearings System?
- How do children and young people involved in the Children's Hearings System think that advocacy arrangements could be improved?
- How do adults accounts of children and young people's experiences of advocacy and their views about how advocacy arrangements could be improved differ from those of children and young people?