Childcare and Children Rights: Law and Policy - Essay Example

 Childcare Law and Policy Introduction Children, just like all other beings, have inalienable rights since they are vulnerable and need protection. Making decisions while giving care to young people calls for a critical balancing of the rights and needs of the child as well as the rights of the parent. The court asserts a parent’s decision concerning the child’s primary and secondary needs just as long as this accords to the child’s wellbeing. Young people also have a right to be consulted to issues concerning their welfare and this occurs where the minor requires a confidential treatment or need that does not necessarily have to involve the consent or decision of the parent (Ackers & Stalford 2004, p.67) The balance between the child’s consent to their needs and the rights of the parent remains debatable. Some states have adopted a mature minor rule, which allows the sufficiently intelligent minors to consent to certain needs or treatment without having to consult with the parent’s or guardian’s permission. When caring for the minors, one has an overriding duty to respect and act towards the interest of the minor. While making decisions for the child or the young person, they should exclusively be involved as much as possible. This should always be dependent upon the level of understanding of the minor (Ackers & Stalford 2004, p.99). In cases where the child is not able to consent themselves, a person with a parental responsibility’s consent is called upon or sometimes the court is involved before any form of treatment is taken upon them. Consent Consent laws are usually designed to offer protection to the young people from exploitation and abuse. These laws clearly determine that young people below the age of consent as not mature or competent enough to make critical decisions out of the provided knowledge. An example of such is where by a child below the age of consent may be willing to interact with an adult sexually, but since they are not able to give consent in accordance to the law, such interactions are regarded as abusive (Ackers & Stalford 2004, p.78). Competence Competence refers to the mental capability of an individual to make specific decisions. Depending on the environment, age, mental functionality and some other factors, one may not be able to make specific critical decisions. Therefore, children may be referred to as incompetent in decision making due to their age and lack of knowledge to specific fields. Just because one is over sixteen years of age does not make them competent at all. A competent person is that who has a logical understanding to the situations at hand and the nature of possible consequences of the proposed treatment or the consequences of not having any treatment at all, and is able to communicate their wishes (Allen 2005, p.89). When a child is deemed not competent, a person with parental responsibility or a guardian should be able to give consent on their behalf. If disputes arise and the people close to the child are not able to consent, legal consent or advice should be sought immediately. When an individual is over the age of 18 years and no one can give consent on their behalf because they are not competent, treatment and care should be provided with the assumption that, it is in the person’s interest (Allen 2005, p.90). Parental Responsibility Parental responsibility refers to the right of the parent to consent to treatment on behalf of a child who is not competent enough to make a valid consent for themselves. From the children’s Act 1989, a mother will always have a parental responsibility as well as a legal right to access their children’s health records (Fortin 2009, p.87). The father has a parental responsibility if he is married to the mother when the child is delivered or has assumed statutory responsibility for the child. In case the mother of the child is below the age of sixteen years of age, their parental responsibility is not automated and they need to deemed Gillick competent before they can give consent on behalf of their children. All parents have a duty to support the child financially whether they have parental responsibility or not. Doctors sometimes may deem the consent offered by the parent as not valid or not for the interest of the child. In such a case, they are required by law to seek legal consent while saving life or deterioration of the child, and this is only through the court. In England, a child that is below the age of 16 years can consent to any form of treatment if they do understand the subject proposal at hand (Ryan 2009, p.32). It is upon the parent, guardian, authority or the court to decide if the child has the maturity and the intelligence to fully understand the nature of the proposal inclusive of the risks and the benefits involved. Therefore, in such a case where the child is considered Gillick competent, the parent or the guardian is not expected to overrule the decision or the judgment of the minor. For example, a child can have an affirmative consent to polio vaccination even if the parent or the guardian is not in accord with it (National Children's Bureau 2008, p.23). In the United Kingdom, the bringing up of a child is straight and the assumption is that the matters of bringing up a child lie at the hands of the guardian or the parent. The state also sets up the guidelines for parental duties and responsibilities, achieved through offers of health care, education and financial benefit. Moreover, the state has powers to intervene where concerns regarding o the welfare of the child arises (Fortin 2009, p.123). The Children Act 1989 outlines that the welfare of children is of paramount importance and that their views must be represented in all circumstances. This provides principles or guidelines especially when dealing with the young people so as to protect their general wellbeing or actions that are at their best interests ((Fortin 2009, p.119). The act therefore describes those who have parental responsibility or guardianship and if they are eligible to make decisions on behalf of the minor. According to the United Nations convention on the rights of children, it has formerly declared that childhood is entitled to special care and assistance. The family being the fundamental unit of the society that provides well-being to all its members, especially the children, should be secure so that it can assume a full responsibility to the growth of children. For the full development of the child, they should grow in a harmonious environment, an ambience of happiness, love and understanding. According to the United Nations, children should be brought up in an environment of peace, equality and solidarity with freedom of expression and right to be represented within the society. In the universal declaration of human rights, everyone is entitled to all the right and freedom set up in the International Covenant on Human Rights. The child has a right to primary and secondary needs form the parent regardless of the social status of the unit family. Human Right Act 1998 The Human Rights Act 1998 is a bunch of laws that have been passed to bring to effect certain human rights which is the first step to an effective bill of rights. The laws included in the human rights act already existed in the European Convention of Human Rights and therefore the. The Human Rights Act 1998 only upholds the existing laws. The act is in force in Wales and Scotland. The human rights act 1998 came into force in England on 2nd October 2000. Since the act must be read as a living instrument to protect the lives of the citizens of the United Kingdom, the Human Rights Act 1998 must explain on the protection of the current issues of children (Grisso & Appelbaum 2008, p.67). The Human Rights Act covers everyone living in the United Kingdom regardless of their citizenship or their immigration status. Children rights organization play a similar role in the protection of the lives of the children since, even thought the children are not directly covered in the Human Rights Act 1988, these organization are involved if the rights of children are breached, but as a “friend of the court.” This only happens if the organizations are able to prove that they are organizations of children fighting for their well being and protection. The Human Rights Act gives a description on how the Articles within can be used in the upholding of the children’s lifestyle through legal protection and cover. This can be described in the following aspects; a) The right to life The state in this act is under obligation to save the lives of its citizen within its jurisdiction. This prevents one’s life from being taken by another, and this is where the issues of abortion come in. it is likely that the life of the unborn and the born children is protected under this act (Grisso & Appelbaum 2008, p.145). b) Freedom from torture, inhuman and degrading treatments. This article is described as one of the most effective in protecting the children’s rights. Treatment is considered inhuman if it causes pain and discomfort or simply physical or mental suffering. Degrading treatments refers to when the victim is subjected to fear, inferiority and humiliation. The state therefore has a responsibility to protect such suffering from children. The state does not only prohibit such treatments but also extends this to physical punishment as a mechanism of protection in favor of the protection of children (Grisso & Appelbaum 2008, p. 26). c) Freedom from forced labour The Human Rights Act describes that, no one shall be subject to forced labour or held in slavery or servitude. This act does not forbid labour at all but described forced labour or slavery as, the situation where there is no agreement between the worker to work. The fact that the work is payed does not prevent it from being a forced labour but, whether the work is done under any threat or penalty. Children are weak in terms of consent and are more vulnerable to exploitation. The state has a duty to intervene when it comes to the working conditions and term of the children. d) The right not to be unlawfully detained Everyone has a right to freedom and security. The Act calls for a protective procedures in the detention of the minors. These procedures include the following legal principles (Grisso & Appelbaum 2008, p.122). Detained children should be kept away from adults The detained children should be constantly checked. Due to their special issues, refugee children should not be detained. e) Freedom of religion, thought and conscience. Everyone has the right to religion, thought and conscience and this is inclusive of the freedom to change religion and the manifestation of their religious beliefs. This covers both the adults and the minors. f) Freedom of expression and the freedom to receive information. This is an important article since it enables children’s voices to be heard and represented in the community. It is therefore the right of a child to receive information through public institution, for example schools. UN Convention on the Right of Children The United Nation proclaims that everyone is entitled to all the human rights without any kind or form of differentiation whatsoever in terms of race, sex, age or color. According to the Universal Declaration of Human rights, the United Nations has depicted that children are entitled to special care, protection and assistance. The United Nation further describes that the children should be brought up in a family environment, with love and understanding. Taking due account to the importance of the harmonious development of the child, the United Nation calls for the nationwide co-operation in the improvement of the living condition of the children in every country. This is achieved through the upholding of the following basic children rights; The right to security The rights to be educated The right to provision of basic needs The right to fair treatment The right to be heard and represented. The United Nations convention of the rights of children is described as the most complete, recognized and approved human rights pact in the entire world (White 2004, p.56). Consent to Treatment in Minors The English law governing the young people’s consent to treatment and competence is very complicated and sometimes is even contradicting. An example of this is such a case where a minor can consent, but their refusal can be overruled by a person with a parental responsibility or the court. The general idea inferred by the law on competence is centered to the approach on consent. Consent therefore, is a necessary requirement for the treatment of any young person. In this case, consent refers to a person’s willingness or continuing permission to receive a particular form of treatment based on an adequate knowledge on the nature, risks and the benefits of the treatment (Melton, Koocher, & Saks 2003, p.34). The family law act 1969 gave the young people at the age of 16 and 17 the right of consent as that of the adults. This law described that the consent of a sixteen year old as being effective as that of an adult. For such a minor to be given any form of treatment, they don’t require the permission from their parents or guardians. Therefore, the law simply affirms that if a sixteen or seventeen year child consents to any form of treatment, the consent of their parents or guardians would be considered unnecessary. Young children may consent to contraceptives or abortions and that is only if they are competent enough to do so. Such an action lacks ethical competence and should be carried out by professionals or relative authorities like clinicians or doctors. Any form of discussion on children’s dismissal to treatment should be viewed in ethical, legal and philosophical point of view (Melton, Koocher, & Saks 2003, p.34). Conclusion The Children Act 1989 describes child’s welfare as of paramount importance. The act further gives detailed principles that should be kept in mind when dealing with issues involving children so as to uphold their general welfare and therefore guiding them into the interest of the children. Children’s assessment using the Gillick’s competence tool should be utilized to the uttermost degree. This enables the authority to take care of children, and thereby giving the authority the parental responsibility. The state and the community have a responsibility to take care of the children, uphold their protection and report any suspicion of child abuse to the local authority or the relevant child rights organizations. Children rights conventions should be innovative instruments to protect children against any form of discrimination, neglect and abuse. Such treaties should cover economic, social, cultural and civil rights in the implementation of the conditions to protect and promote the child rights. The childhood period is notably a human’s vulnerable phase and thus, the state, families and organizations should act as a whole in the provision of special care and protection to the children. Bibliography Ackers, L., & Stalford, H 2004, A community for children?: Children, citizenship, and internal migration in the EU, Burlington, VT: Ashgate. Allen, N 2005, Making Sense of the Children Act: And Related Legislation for the Social and Welfare Services, Chichester: John Wiley & Sons. Fortin, J 2009, Children's rights and the developing law, New York: Cambridge University Press. Grisso, T., & Appelbaum, PS 2008, Assessing competence to consent to treatment: A guide for physicians and other health professionals, New York: Oxford University Press. Melton, G. B., Koocher, G. P., & Saks, MJ 2003, Children's competence to consent, New York: Plenum Press. National Children's Bureau 2008, Human rights are children's rights: A guide to ensuring children and young people's rights are respected, London: National Children's Bureau. Ryan, M 2009, The Children Act 1989: Putting it into practice, Aldershot, Hants, England: Ashgate. White, BC 2004, Competence to consent, Washington, DC: Georgetown Univ. Press. Read More