This chapter charts the changing legal position of children. It starts by considering the former importance of the status of legitimacy and its near complete abolition. It then discusses the changing nature of the parent–child relationship and the development of the law from paternal authority to shared parental responsibility. Finally the chapter considers the developing notion of children’s autonomy and independent rights which has both limited the scope of legitimate parental authority and emphasised that the interests of children are a matter of public, as well as private, concern. This latter point is well illustrated by the growing importance of the role of the Children’s Commissioner.
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N V Lowe, G Douglas, E Hitchings, and R Taylor
This chapter considers the increasingly important question of children’s participation in proceedings concerning them. It evaluates children’s right to participate in proceedings both as a matter of domestic and international law. It then assesses the complex law as to how children’s views are ascertained and the circumstances in which children will be represented both in private and public law. It then turns to children’s direct participation in family proceedings including children’s ability to initiate proceedings.
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N V Lowe, G Douglas, E Hitchings, and R Taylor
This chapter considers the meaning and function of parental responsibility. It examines the content and limits of parental responsibility including in areas such as: education; medical treatment; corporal punishment; religious upbringing; and naming the child.
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The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter considers children’s rights and private law relating to children. The first essay question focuses on the rights of the child to make his or her own decisions and to participate in private law proceedings, whilst the second examines how the law ensures that children have a relationship with both parents after separation. The third question is a problem scenario that requires discussion of orders under s. 8 of the Children Act 1989, the welfare principle, and the welfare checklist. The final problem question concerns inherent jurisdiction and the right of a child to refuse medical treatment.
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This chapter moves on from the previous chapter to ask: Do adults always know best? That is an important assumption that needs to be addressed in this area of family law. To what extent, and under what circumstances, do the opinions of children count? This chapter considers the legal principle upon which most cases relating to children are decided. That is, the welfare principle. The chapter considers whether this principle is compatible with an approach that respects children's rights. The chapter begins by defining what is meant by the welfare principle and considers in what cases the welfare principle applies and, conversely, in what cases the welfare principle does not apply. The spectrum of issues here might seem quite narrow but in fact they are much broader than might be first imagined. There are multiple considerations, theories, and contradictions at play.
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The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter considers children’s rights and private law relating to children. The first essay question focuses on the rights of the child to make his or her own decisions and to participate in private law proceedings, whilst the second examines how the law ensures that children have a relationship with both parents after separation. The third question is a problem scenario that requires discussion of orders under s. 8 of the Children Act 1989, the welfare principle, and the welfare checklist. The final problem question concerns inherent jurisdiction and the right of a child to refuse medical treatment.
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Helen Stalford, Seamus Byrne, and Nazia Yaqub
This chapter explores children’s rights in the context of family law and family life. It aims to look at family law through the lens of the human rights of children and the associated theoretical, doctrinal, and empirical scholarship. It begins with a brief overview of the international children’s rights framework underpinning this area, including the UN Convention on the Rights of the Child and the European Convention on Human Rights. It then points to some of the cultural, legal, and practical obstacles to the protection of children’s rights in the context of family law. The updated chapter responds to changes in the law arising as a result of Brexit and the recent legislative changes on corporal punishment across the different UK jurisdictions.
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This chapter considers how the Children Act 1989 provided a legal framework within which the state can support children to remain with their families through difficult situations and intervene to protect them when they face unacceptable risks. The chapter starts by giving a brief history of child protection law. The chapter then looks at the inherent tension in protecting children while aspiring to support their life with their families, before considering local authorities' powers and duties, resources, and the ever-increasing numbers of children who are involved with social services, whether as c hildren in need, looked after children, or as subjects of child protection investigations or applications.
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This chapter examines the issues of capacity and parties in tort law. It explains that capacity refers to the status of legal persons and their ability to sue or be sued in tort and that a claimant’s injury might be caused by more than one person. Examples are given of the capacity to sue and be sued of companies and children. This chapter discusses also the point that any person successfully sued in tort can seek contribution from other joint or concurrent tortfeasors and this can be done in the course of the original action commenced by the claimant, or in separate proceedings between tortfeasors.
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This chapter examines the role of local authorities in protecting the child from harm and the orders available under the Children Act 1989, which are used in cases of alleged harm to children. It explains the nature of public child law proceedings and goes into detail to discuss the definition of the ‘threshold criteria’—the standard that the court uses to decide whether an order should be made. It also discusses the investigations which can be carried out by the local authority in relation to a child and parental contact with children in care, and compares a care order and a supervision order.
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Helen Stalford and Seamus Byrne
This chapter explores children's rights in the context of family law and family life. It aims to look at family law through the lens of the human rights of children and the associated theoretical, doctrinal, and empirical scholarship. It begins with a brief overview of the international children's rights framework underpinning this area, including the UN Convention on the Rights of the Child and the European Convention on Human Rights. It then points to some of the cultural, legal, and practical obstacles to the protection of children's rights in the context of family law. It also discusses the issue of corporal punishment.
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This chapter first considers the range of civil orders available to the courts in responding to anti-social or criminal behavior by children and young people. It therefore focusses on the criminal behaviour orders and injunctions as well as the community remedy. It then looks at the options available to the sentencing court in relation to criminal offending and so refers in particular to the referral order and the Youth Offender Panel, the youth rehabilitation order and the detention and training order. We note the welcome fall in the number of children in prison but note the increase in the average custodial sentence length. The chapter also discusses selected aspects of conditions in secure accommodation and reviews the role and achievements of using rights in responding to problematic issues.
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N V Lowe, G Douglas, E Hitchings, and R Taylor
This chapter considers the courts’ powers under Part II of the Children Act 1989 to resolve family disputes concerning the upbringing of children. These disputes, commonly labelled ‘private law disputes’, are normally between the parents following divorce or separation but can involve other family members. It first discusses the original scheme of Part II; changes made by the Children and Adoption Act 2006; and changes made by the Children and Families Act 2014. It then considers section 8 orders; family assistance orders; and section 37 directions.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate; providing able students with a stand-alone resource. This chapter discusses children’s medical treatment. It looks at the limits of parental decision-making, and cases in which the courts have overruled parental wishes in order to protect the child’s best interests. Where parents cannot agree with each other about serious medical treatment, or where the treatment is especially controversial, decisions might also need to go before a court. Cases involving withdrawing or withholding life-prolonging treatment are also covered. In relation to mature minors, it discusses the concept of Gillick-competence and the difference that has arisen between the child’s right to consent to medical treatment and her much more limited right to refuse.
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Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in McFarlane v Tayside Health Board [2000] 2 AC 59. The document also included supporting commentary from author Craig Purshouse.
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Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in McFarlane v Tayside Health Board [2000] 2 AC 59. The document also included supporting commentary from author Craig Purshouse.
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This chapter looks at some special considerations relating to the evidence of witnesses. It first sets out to sketch the way in which this branch of law has changed over time. The chapter then deals with the procedures for taking testimony in the standard case and, in particular, appropriate measures for dealing with witnesses who are fearful. Next, this chapter discusses factors peculiar to particular categories of witness, such as children, spouses, and offenders. In a number of cases, special rules have been devised to cater for these special categories. Sometimes special rules of competence and compulsion, rules requiring supporting evidence, and rules of practice dictating the form of direction are given to the jury when considering such evidence. Finally, the chapter deals with the nature of supporting evidence.
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This chapter discusses the use of separation and maintenance agreements, the essential features of both types of agreements, and the advantages and disadvantages of separation and maintenance agreements. A separation or maintenance agreement can help parties avoid expensive and drawn-out litigation. Separation agreements essentially record that the parties wish to live apart and can include terms about children, property, and maintenance. Maintenance agreements deal with the payment of maintenance to or for the benefit of spouses, civil partners, or children, but do not deal with the separation of the parties. The form of separation and maintenance agreements is discussed, as well as enforcement.
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When a child is in imminent need of protection, the order used to protect the child is an emergency protection order (EPO) under s44 of the Children Act 1989. This chapter discusses the use of emergency protection orders in public law for children and examines the factors a court will consider when asked to make an emergency order. It looks at contact when an EPO is in place, duration and discharge of an application, and procedure. Case-law is used to provide guidance. It also looks at the powers available to the police when faced with a child in need of protection.
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6. Witnesses
Competence and compellability; oaths and affirmations
This chapter is divided into two parts. The first part discusses the law on witness competence and compatibility. The general rule of law in England and Wales is that all witnesses, including children, are competent (able to give evidence) and witnesses are also compellable (liable to be required to give evidence subject to sanction for contempt). Particular rules apply to children and persons under disability, the accused in a criminal case, and spouses and civil partners. The second part deals with oaths and affirmations, covering the requirement of sworn evidence; the effect of oaths and affirmations; and exceptions to the requirement of sworn evidence.
