by Dr Laura Janes – Consultant solicitor, GT Stewart Solicitors
This article appears in our latest newsletter (Summer 2023) which can be downloaded here.
The problem with the law is that it tends to galvanise around legal events rather than the person at the heart of the issue. This is especially problematic for children in forensic mental health settings. The principle of the best interests of the child means that children should come first. Their care should not be determined by the skills and interests of the adults around them. Yet this is often exactly what happens.
The application of rights under the Children Act 1989 to children in secure forensic mental health settings has been sorely neglected. Many children will be legally “looked after” under the Children Act.
Even if they are not, many would qualify as “children in need” under the Children Act, and they would be “any child:
- who is disabled;
- appears to be unlikely to achieve or maintain a reasonable standard of health or development;
- whose health or development is likely to be significantly impaired, or further impaired;”
All children from the above categories would be without the provision of services by a local authority.
It is a very low threshold.
All too often, the focus on the duties under mental health legislation pushes Children Act rights into the background.
The law is clear that all rights operate subject to the requirements of detention and should continue to apply (R(Howard League for Penal Reform) v. SSHD [2003] 1 FLR 484). In fact, they are often critically important to discharge planning as the local authority will have a duty, alongside explicit duties legislated for those detained under one of the UK’s mental health acts, to make provision for children to whom they owe a duty.
Mental health practitioners have often struggled to get local authorities to comply with these duties in a timely way. Research has shown that knowledge of children’s rights under the Children Act 1989 is poor, when compared to the knowledge of people’s rights (aged 16 and over) under the mental health legislation (Mears et al, 2000[1]).
Further in-depth qualitative research on children’s rights in mental health care settings could pave the way for greater adherence to these duties. It may also indicate a need for specialist education on children’s rights for advocates, in-patient social workers and psychiatrists working with children in forensic mental health settings.
Research can transform lives. We want to support discoveries about what helps people with mental disorder who have been victims of criminal behaviour, or perpetrators of criminal behaviour, and their families, and the clinicians and others who treat them and, indeed, the wider community when its members are in contact with these problems. More effective prevention is the ideal, when this is not possible, we need more effective, evidenced interventions for recovery and restoration of safety.
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References:
1] Mears, A wet al (2000) An Evaluation of the use of the Children Act 1989 and the Mental Health Act 1983 in Children and Adolescents in Psychiatric Settings (CAMHACAPS)
see: https://www.academia.edu/423793/An_Evaluation_of_the_Use_of_the_Children_Act_1989_and_the_Mental_Health_Act_1983_In_Children_and_Adolescents_In_Psychiatric_Settings
