Legal Position Of Children With Disabilities In Family Courts

This essay will look at the themes of participation, discrimination/exclusion and protection; discussing the legal and conceptual position of children in family courts and disability. Similarities will be discussed conceptually, as children are often positioned as dependent on adults, however, within participation, the concept of autonomy is challenged with the contrasting legal frameworks and rights that support these perceptions. The contrasting theme of discrimination experienced by disabled children highlights the different social constructs that are implemented legally and socially, as although disabled children have rights, the extent to which this is reflected in legal and conceptual positions, across both domains is complex.

The concept that children should be able to participate is outlined in the United Convention of the Rights of a Child (UNCRC) Article 12, stating that children have ‘the right to a voice’ (Family Justice Council, 2008). Family court proceedings, both public and private, propose that children should not feel ‘excluded’ or ‘powerless to influence’ decisions, and if they do not feel comfortable to directly participate, then social workers or Cafcass officers are involved (Family Justice Council, 2008:2). However, in certain cases judges face a ‘difficult balance between respecting a child’s views but also properly considering the reasons why a child might be biased in a particular way’ (Haine, 2007:1).

The ‘paramountcy principle’ outlined in the Children Act 1989, understands that within the law the ‘best interests’ is always considered with decisions made, with a child’s welfare being the priority in all legal cases (Parker, 1994:27). In family courts, this is a significant principle to which decisions are made by Cafcass workers, that have the ‘primary responsibility of ascertaining the needs, wishes and feelings of children’ (Family Justice Council, 2008:2). The concept of ‘best interests’ can be contested as it is subjective to each case, however, the ‘attachment theory’ and the ‘needs it constructs, holds many useful concepts that assist social workers in making decisions that take account of children’s affectional bonds’ (Keddell, 2017:337). As discussed by Keddell (2017), the removal of children from their ‘biological families’ is considered ‘an option of last resort for children who have been abused and neglected’ (p325). With private family court proceedings that involve domestic violence, there is concern that a child’s voice is not heard which results in some children ‘being forced to maintain contact with violent, abusive parents against their wishes (O’Quigley, 2000:8). The extent to which a child participates in cases raises questions about child protection, indicating that the ‘negotiated agreements between adults may be inadequate or extremely dangerous for the children involved’ (Lyon et al., 1998:13 cited in O’Quigley, 2000:8). Legally, this dependence upon a child’s position in a family structure, potentially in circumstances where this may not consider a child’s ‘best interests’ is problematic and complex.

The Children Act (1989) states that children with ‘severe learning disabilities or very limited expressive language’ can still ‘communicate preference’, highlighting the importance for their voice to be heard, equal to children without a disability (p). Similar to ‘best interests’ within family courts, The UN Disability Convention (CRPD) (2006), Article 7 states that the ‘best interests’ of a disabled child ‘shall be primary consideration’, as it is considered disabled children should also have the ‘right to express their views freely on all matters affecting them’ (UN, 2006). The ‘social model of disability’ is an important model that shape’s social constructions of disability, indicating that the ‘various barriers to participation that society places in the way of people with impairments to be removed’ (Sandland, 2017:96). As the CRPD ‘is premised on the view that all persons require support to be free and autonomous, which both serves to dissolve any firm barrier such as that between “able” and “disabled” (Sandland, 2017:97).

Underpinning the legal position of children in both domains is the conceptual view that children are dependent upon adults. As discussed within participation, the role of Cafcass is to support children … though, this entity represents the view that children are reliant upon an adult’s influence to express their views, suggestive that they need to be protected within a legal setting, and or, are incompetent to contribute. Supported by O’Quigley (2000), ‘it is dangerous to assume that parents will always act responsibly with regard to their children’ emphasising the problems with positioning children as dependent upon adults, especially with regards to decisions made (Murch et al., 1998:122).

This concept is important to discourse’s in the law of disabled children where disability and children are viewed separately, and disability is viewed singularly in ‘terms of dependency’ (Corker & Davis, 221). For example, children with ‘restricted mobility’ are frequently in ‘need of assistance in their everyday lives’ and this can include ‘escort services’ whether this is in a school setting or outside of it (Skar & Tamm, 2001:917). Leonard et al., (1992) identifies that disabled children are dependent upon adults financially, it is expected that disabled children require ‘more medical services than other children’ thus, increasing pressures for disabled children’ families (p302). Woolfson (2004) discusses the perspective of parents, stating that the long-term belief of parents with a disabled child is that they ‘always will be dependent on them for help and that their role is to protect them from situations’ (p10). Additionally, the concept of disability is said to produce ‘a culture of overprotection and dependency in which disabled child grows to view him/her as passive and dependent and may be less likely to preserve with tasks or develop good problem-solving skills’ (Woolfson, 2004:10).

Different from children in family courts, discrimination and exclusion is a significant theme prevalent throughout the legal and conceptual studies involving disabled children. Whilst ‘discrimination can take on many forms’ it is expressed that disabled children are often subject to being ‘treated differently or unfairly because of their impairment or health condition’ (Porter, 2010:998). Porter (2010) specifically discusses this discrimination in a school setting, whereby ‘schools may fail to make reasonable adjustments to their policies and practices to facilitate the children’s participation’ (p998). In legal cases involving disabled children and discrimination, the ‘tribunal system is underutilised’ and is argued to be a ‘system unfit for purpose, requiring time, resources and detailed knowledge to pursue a claim’ (Porter, 2010:1007). To support this, it has been argued that the law is often ‘ineffective when dealing with forms of discrimination that are institutionalised’ (Corker & Davis, 234). Mepham (2010) argues that despite initiatives to protect the rights of disabled children, and changes in the law, ‘there has been a failure to ensure compliance and hence a lack of progress in eliminating discrimination and inequality’ (p32). This highlights that whilst children are viewed as in need of protection, the extent to which this is exercised is not always visible.

However, The Equality Act (2010), legally identifies the need to reduce discrimination towards disabled children and sets provisions whereby public and private services, and employers should have the ‘same access as people who are not disabled’ (CRAE, 2010). Defined as making ‘reasonable adjustments’ the Act identifies the need for assistance to disabled students, and this may be in the form of ‘providing a support worker’ or specific equipment, (CRAE, 2010). However, despite the legal definitions in the Equality Act (2010) to prevent and protect disabled children from discrimination, the implementation of these measures can be questioned as discrimination and exclusion is still present throughout aspects of a disabled child’s life.

Whilst the Equality Act (2010) outlines protection measures for disabled children facing discrimination, it is evident that within family courts, children are also perceived as in need of protection. In the setting of a family court, children are not regarded as ‘criminal(s)’, they are viewed as ‘dependent on the family’ and ‘the child rarely has a positive separate legal identity’ (Sawyer, 2006:1 cited in James 2008:55). This ‘reluctance to recognise the child as a social and legal actor with agency’ is viewed to be ‘deeply rooted in the way law thinks about children’ suggesting their dependence upon adults in legal cases (James, 2008:55; King & Piper, 1990) This is supported by the legal term ‘paramountcy to children’s wishes’ to which the ‘State and its agents’ should protect children as they ‘cannot protect themselves’ (Littlechild, 2000:405). The ‘Interim Care Order, places children into a period of supervision during family court proceedings and indicates the requirement for children to be monitored and protected when experiencing legal circumstances.

This suggests the problems that can arise from positioning disabled children as dependent upon adults, as it indicates the limitations towards a child’s development of important life skills. It also indicates the assumption that disabled children are viewed as vulnerable due to the ‘overprotective’ role of the parent (Woolfson, 2004). Therefore, a model should be suggested where both from the legal and conceptual position, similar to family courts, children should be able to participate and autonomous in decision-making.