Listening to children: their rights
Child support abuse inquiry, significant harm, domestic violence, domestic abuse: what do words such as ‘abuse’ and ‘harm’ mean? I ask mostly in the context of listening to children (though in passing its pre-Beveridgeian legal aid Act the Tory government allowed itself to be enmired in a squalid debate about legal aid for domestic abuse, or the more domestic serious violence: legal aid was limited to the latter).
By what factors do we judge when harm to, or abuse of, a child demands action; and what are the child’s rights to be heard when harm occurs? First, a reminder of the great sound bite from the Cleveland inquiry ‘the child is a person, not an object of concern’. Children must be listened to for themselves not because they are the subject of some charitable exercise.
This followed on from the words of Lord Scarman – a great judge and very human philosopher – in Gillick v West Norfolk and Wisbech AHA  1 AC 112,  UKHL 7 (http://www.bailii.org/uk/cases/UKHL/1985/7.html ):
One finds plenty of indications [in the common law] as to the principles governing the law’s approach to parental right and the child’s right to make his or her own decision. Parental rights clearly do exist, and they do not wholly disappear until the age of majority. Parental rights relate to both the person and the property of the child – custody, care, and control of the person and guardianship of the property of the child. But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law, as I shall endeavour to show, is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.
That is, parental rights over a child must recede as the child – though still a child – gets older.
The aspirations of Cleveland and Gillick found statutory expression in Children Act 1989. That act specifically said that the ‘wishes and feelings’ of a child of age and understanding must be taken into account (CA 1989 s 1(3)(a)). Another main aim of the Act was to regulate the taking of children into local authority care. A care or supervision order should only be made if a family court considered that the child was suffering, or thought likely to suffer, ‘significant harm’ (CA 1989 s 31(2)).
‘Harm’: the starting point
Meanwhile, what is the meaning of ‘abuse’? Literally it means misuse (or miss-use), a use of something or someone which is outside the norm (ab = Latin for ‘from’). I had a teacher once who told us: ‘You haven’t used a book, till you’ve abused it): ie read it, put pencil notes in the margin and so on. He did not mean to tear up the book, or scribble in pen all over it.
It is a narrow semantic spectrum: ‘abuse’ or ‘harm’. That said, is it not best to start with the minimum concept of ‘harm’ of any sort (ie not ‘significant’ harm) as the relevant terminology for aberrant behaviour towards a child and in the context of when to listen to that child? Abuse of that child may be found to have happened; but any form harm to a child must surely be the minimum for listening? Having listened, the listener must move promptly – and appropriately to the child’s needs, and sensitive to his/her confidentiality – to act to protect and safeguard the child.