The Children Act 1989

The Children Act 1989 legislates for children in England and Wales. The intention of the legislation is that children's welfare and developmental needs are met, including the need to be protected from harm. Key principles of the Act do reflect certain aspects of the UNCRC; protection from harm, respect for a child's race, culture and ethnicity, parents’ responsibility for bringing up children and for the first time the duty to take account of a child’s wishes and feelings in decisions taken that affect them.

The fundamental premise however that decisions are taken on the welfare principle i.e. that the court/adult’s determination of best interests are paramount can actively restrict children's autonomy and ability to exercise their rights independently.

The courts under the current welfare checklist are expected to achieve a result which most accords with adult notions of children's best interests, whether or not it accords with the child’s wishes. A children's rights based approach recognizes that although consulting with children is very different from delegating decision-making to them entirely on each occasion, there must be a delicate balancing act between article 3 right (best interests) of the UNCRC and giving full consideration to a child’s article 12 right (right to participate in matters that affect him/her) of the UNCRC.

There should be increasing recognition given both in practice and law to the child’s status as a human being in his own right. It is inadequate if courts are making judicial decisions which give no consideration to a child’s views or choose to ignore them completely. There should be a more systematic approach to considering a child’s wishes in each case.

For a further analysis on this issue see Fortin J (2009) Children's Rights and the Developing Law. Third Edition. Cambridge University Press