The rights of the child
BACP Children, Young People and Families, September 2020

Exploring children’s rights may seem to be something of a luxury in a time of global crisis. However, the very concept of CYP rights was born out of a major humanitarian crisis, following World War I. Eglantyne Jebb, founder of Save the Children, published the first Children’s Charter in 1923.¹ One of its key demands was that, ‘The child must be the first to receive relief in times of distress’.¹ This theme can also be traced through the defining experience of Dr Janusz Korczak’s self-governing community of abandoned and orphaned children in the Warsaw Ghetto in World War II. The latter became the eventual trigger for the proposal by the Polish Government of the United Nations Convention of the Rights of the Child (UNCRC) in 1989.

Children’s rights are thus framed as a necessity , and not an option, in times of global crisis and social upheaval. Children’s rights are firmly back on the agenda, in light of the growing impact made by Greta Thunberg and the ‘school strike’ for climate change.² Even the rather staid Information Commissioner’s Office (ICO) is highlighting the new rights for children, brought into effect by the recent General Data Protection Regulation (GDPR).³ These new rights take on added significance as the bulk of CYP counselling shifts online in response to social distancing. Yet precisely how the rights of children relate to counselling may be somewhat less than clear. BACP’s Ethical Framework enjoins practitioners to ‘…demonstrate sound knowledge of the law relevant to working with children and young people and their human rights ’ (emphasis added).⁴ However, there is little clarity, as yet, regarding exactly what these human rights are, or how they connect with the world of therapy. The standard response, of simply referring to the UNCRC, is not sufficient on its own.5 It has virtually nothing to say about autonomy rights, which are critical for a young person’s engagement in therapy.

This article sets out a practical model of children’s rights and how they relate to children and young people in therapy. It is based on my experience of running 70 workshops for counsellors. The accompanying training pack has gone through three editions since 1993,6 enabling continuous updating, as the legal scene has developed and changed over time. I will address the following issues:

• What exactly do we mean by children’s rights?
• How do these vary, according to age and different legal jurisdictions across the UK?
• Must children’s rights always be overridden by safeguarding concerns? 
• What are the implications for therapists working in different settings, such as schools, NHS, third sector, or private practice?

Defining children’s rights

A new academic industry has emerged since the ratification of the UNCRC in 1989. This is dedicated to exploring the changing legal status of children below the age of 18 on a world scale. Definitions of what is a ‘right’ may vary, but the simplest one is that it is ‘a claim to treatment’⁶ – which does not refer to medical treatment as such. It means, in practical terms, that a child or young person has a right, either in law, or via an authoritative code of practice, to be able to take action. For example, a child in care has a specific legal right, under Section 22 of the Children Act,⁷ to take part in a case conference deciding on their future care. This right is not something which depends solely on the goodwill of social workers, but is a formal legal claim or requirement. It can therefore be challenged, if wrongly denied. In practice, it may be that the child will need to rely on sympathetic adults to help them access their rights, depending on their age, level of understanding, and on any learning or communication difficulties they may have. But these aspects should not, in any way, diminish their entitlement to this right; namely to participate fully in the decision-making process.

UNCRC

Despite its limitations, the 1989 UN Convention marked a significant watershed in the way that children’s rights were perceived and acted upon. It contributed to the establishment of children’s commissioners in each of the four constituent parts of the UK. The UNCRC has been increasingly referenced in court decisions, even though it has the lesser status of ‘soft law’, rather than being legally binding. The Welsh Assembly is committed to comply with the UNCRC when considering new laws, and Scotland is shortly due to follow suit.

The UNCRC has a key principle, in the form of Article 12, providing children under 18 with the right to participate in decisions being made about them. This principle, or right, is central to the practice guidance produced by the Crown Prosecution Service (CPS) on access to pre-trial therapy.⁸ Here, a child can be a key potential witness for the prosecution case against their alleged abuser(s). However, the trial process is known to be a highly stressful process for witnesses. The guidance seeks to steer therapy away from revisiting the actual experience of the original abuse. However, if the child does not accept the limited focus of therapy, or no longer wants to go through with the trial at all, then their rights are to be acted upon under Article 12. This is one of the clearest and most striking expressions of the concept of a child’s right, as a claim to treatment, with regard to counselling.

Age and children’s rights

Age is a key factor in terms of defining CYP rights. Firstly, a child in England and Wales is defined in law as a person under the age of 18.⁷ However, the British Medical Association (BMA) suggests making a distinction between children, broadly defined as being of primary school age, and young people of secondary school age. This is for the purposes of being considered capable of providing consent to medical treatment.⁹ Given the influence of medical case law on the law relating to counselling, particularly the Gillick case,¹⁰ then this may be a useful distinction to bear in mind by counsellors, although it does have its limitations. For example, young people may be receiving counselling in secondary school, sixth form college or further education. According to the Family Law Reform Act,¹¹ young people aged 16–17 can consent to medical procedures. They are, therefore, entitled to the same level of confidentiality as an adult. Secondary schools with a wide mix of ages, may be reluctant to acknowledge this right and are more likely to treat students as non-adults, unlike sixth form and FE colleges.

CYP rights in the different jurisdictions of the UK

In practice, children’s rights can also vary according to the specific jurisdiction in which they live; England, Wales, Scotland, or Northern Ireland. The training material I use focuses specifically on CYP rights in England and Wales, but broad principles of entitlement will apply, to some extent, in other legal jurisdictions, although often finding different expression in legal terms. For example, the Gillick principle was established as case law in 1986 for England and Wales. This ruling affords young people under the age of 16 the right to consent to confidential medical treatment, without a need for parental knowledge or consent. Accessing this right requires the child to demonstrate ‘sufficient understanding’ to the relevant health practitioner, or, arguably, to their counsellor. This influential piece of case law on adolescent autonomy finds much stronger expression in Scotland in the form of the Age of Legal Capacity (Scotland) Act 1991.¹² Gillick is generally held to hold ‘persuasive authority’ in Northern Ireland.

Gilllick and rights to autonomy

The Gillick principle – often incorrectly reduced to a bowdlerised version in the form of the ‘Fraser Guidelines’ – is crucial to the development of childcentred counselling. It consists of two separate elements: the right to consent to medical or therapeutic treatment, if showing capacity to make such a decision; and the right to keep such a consultation confidential from the parents of the decision-maker. The Gillick decision was challenged in the courts by Sue Axon in 2006, following a controversial case of a 14-year-old schoolgirl who had a medical termination, arranged by a school nurse, without parental consent. The Axon challenge failed in the courts, as the judge ruled that ‘Gillick remains good law’.¹³

More recently, Gillick has once again been in the headlines. The practice of the Portman Clinic, which specialises in work with transgender teenagers, is to be challenged by means of a judicial review. The clinic prioritises the right of teenagers undergoing hormone-blocking treatment to make their own autonomous decisions, again based squarely on the Gillick ruling. There are complex ethical and medical issues raised by transgender treatment. However, CYP rights to autonomy and confidentiality could well become the collateral damage of any new rulings on Gillick, in this highly specialised field of treatment.

Problems in articulating CYP rights

Despite the pressing need to build on CYP rights, there are some significant barriers to doing so. One is that these rights are expressed in differing terms across the UK, despite the overarching UK commitment to the UN Convention. One example involved young people’s lack of rights to abortion in Northern Ireland.¹⁴ The case example, which helped to force a change in the law, also graphically demonstrated the lack of confidentiality for young people in the province. Medical practitioners there are required to report potential criminal offences to the police. Accessing medication for a termination of pregnancy came within this category. CYP rights therefore need to be extended and generalised between different legal jurisdictions in the UK, so that children are not denied access to counselling simply for reasons of geography. Young people in Wales have a statutory right to secondary school counselling, according to the School Standards and Organisation (Wales) Act,¹⁵ which could be extended in law to other parts of the UK.

Safeguarding and children’s rights

One of the major constraints on the development of children and young people’s rights to counselling has been promoted by counsellor and agency anxieties about safeguarding. There has been a widespread, rapid rise of a perceived mandatory ‘culture of reporting’^16,17 within CYP counselling. This is not based on any significant changes in the law. Child abuse reporting in the UK, with the possible exception of Northern Ireland, is based on legal responsibilities set at local authority level, by the Children Act⁷ and the Education Act.¹⁸ This is likely to set the terms of a counsellor’s contract of employment, or the requirements of agency policy on reporting abuse.

Counsellors are in danger of assuming that they have a legal requirement to report all child abuse, which poses two potential risks to children’s rights. The first is that a young person may hold back from disclosing abuse where they know that onward reporting is obligatory. Secondly, ‘blanket reporting’ may override children’s rights to participate in the ensuing process, and their right to autonomy, where they might have been judged as not being at risk of immediate harm. 

Clearly, children and young people have a right, not least under the UNCRC, to be protected by adults from physical and sexual abuse. However, their right to confidentiality may be radically compromised where counsellors and agencies assume that such rights are automatically eclipsed by an overriding legal imperative to report. It is therefore vitally important that counsellors are well informed about the law, in order to protect the therapeutic frame and to be able to make complex and difficult decisions without feeling compelled to act in a certain way, based on a misunderstanding of the law on reporting abuse. The most recent example of this is in the form of the Social Services and Wellbeing Act (Wales).¹⁹ This is widely reported as having effectively introduced mandatory reporting of child (and adult) abuse within Wales. However, this duty to report abuse applies only to ‘relevant partners’, which are: the police, other local authorities, probation, local health boards and NHS trusts. This does not mean that others should not report, but that they do not have a statutory duty to do so under this Act.²⁰

CYP rights in different settings

There is an additional problem in promoting CYP rights within the field of counselling and psychotherapy. This arises because children’s rights are heavily bound by the organisational context in which they apply. Children in care have specific rights under social work legislation. Children and young people are entitled to a high level of rights under medical case law, such as Gillick. Children within mental health care are similarly entitled to a high level of confidentiality and respect for their rights to consent to treatment, under the Code of Practice for the Mental Health Act,²¹ heavily influenced by Gillick. However, CYP have very few rights within the education system, as it is parents, not children, who are designated as the consumers of education. For example, some secondary school counselling services require evidence of parental consent before students can access counselling. This effectively affords parents the power of veto, if they are in any way resistant to counselling. CYP can thus appear to have very different levels of rights, according to whether they are trying to claim them within the social care system, health service, mental health system, or education.

Counsellors in private practice are protected, to some extent, by the process of setting out their contractual terms with parents. Melanie Klein, for example, was a firm advocate for defending the child’s right to confidentiality within therapy and was adamant in protecting this right against parental intrusions, ‘In every case I refuse absolutely to report any details of the analysis to them. The child who gives me its confidence has no less claim to my discretion than the adult.’²² Even here, parents can be adept at seeking to challenge CYP rights to confidentiality within therapy. This seems to be particularly the case when seeking to gather evidence for contested proceedings for contact or custody. In all these contexts, CYP access to rights seems to depend, rather confusingly, on the professional ‘hat’ worn by the adult in authority with whom they are communicating. 

Implications for counsellors

So, what are the practical implications for counsellors working with children and young people? Firstly, detailed knowledge of the ‘human rights’ of this group is not widely held by young people themselves and, perhaps even more worryingly, not by practitioners. The standard reference to the UNCRC does not resolve the issue, however welcome it may be as a starting point. The UNCRC’s main weakness is that it embraces only rights to provision, protection and participation, but not to privacy and autonomy as such. The shift towards adopting a mandatory ‘culture of reporting’ abuse, in the absence of any formal, legal requirement to do so, runs the appreciable risk of eclipsing children’s rights to privacy and autonomy on a large scale. In some situations, this may occur when there is no immediate risk of significant harm. Counsellors working in certain organisational contexts, such as education, may also be in danger of adopting specific policies and values about access to counselling and levels of confidentiality, without appreciating the wider entitlements of young people to these hard-won rights.

Counsellors need to become passionate and well-informed advocates of CYP rights. We need to be able to argue persuasively for them, in sometimes unreceptive settings, if we are going to be able to protect and enhance the therapeutic space for which young people are so clearly searching.