An inquiry into the relationship between the state and the family in the upbringing of children
Core Question 1: How and to what extent should the state intervene in the care and upbringing of children, and what kind of corresponding responsibility, if any, does it have to support families?
The state should intervene in families only in exceptional cases where there is evidence that a child is suffering, or is at risk of suffering, significant harm. Guidance issued by the Department of Health, Home Office and Department for Education & Employment specifies:
‘Only in exceptional cases should there be compulsory intervention in family life: for example, where this is necessary to safeguard a child from significant harm.’[1]
‘The Children Act 1989 introduced the concept of significant harm as the threshold which justifies compulsory intervention in family life in the best interests of children. The local authority is under a duty to make enquiries, or cause enquiries to be made, where it has reasonable cause to suspect that a child is suffering, or likely to suffer significant harm’[2]
The guidance goes on to recognise that ‘enquiries into suspicions of child abuse can have traumatic effects on families’.[3] It is therefore of vital importance that the threshold at which the state intervenes in individual families should not be lowered.
The privacy of the family must be safeguarded in line with Article 8 of the European Convention on Human Rights:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
In terms of public policy, the state should give due recognition to the substantial body of research which demonstrates that marriage provides the best environment for raising children according to every indicator. As far as serving the best interests of children is concerned, all family structures are not equal. Official resistance to recognising this and reflecting it in public policy has contributed to a culture in which marriage is regarded merely as a lifestyle choice and a temporary contract which can easily be ended by divorce.
As a result of the downgrading of marriage, growing numbers of children are experiencing increasing levels of disruption in their lives. Cohabiting relationships are always more likely to break up than marriages entered into at the same time, irrespective of age or income, and cohabitations with children are even more likely to break up than childless ones. It is therefore a matter for public concern that over 40 per cent of births now take place outside marriage. We are enclosing as part of our submission a copy of The Facts Behind Cohabitation, which summarises some of the research data in this regard.[4]
The negative consequences for children associated with being brought up in a lone-parent household are also well-documented. The enclosed report, Experiments in Living: The Fatherless Family, highlights the relevant research findings.[5] Our report, Broken Homes and Battered Children,[6] demonstrates the fact that the two-parent married family is by far the safest environment for children and that children brought up outside this setting are disproportionately at risk of being abused by the people closest to them. Yet 26 per cent of families with children are now headed by a lone parent, and if present trends continue, 36 per cent of babies born to married parents are likely to see their parents divorce by the time they are 16.
While there are clearly limits to what the state can do to address this problem, one thing it can do is to re-affirm the status of marriage as an institution central to the wellbeing of society. Since the abolition of the married-couples allowance, income tax policy has failed to distinguish between marriage and cohabitation, thus sending out the false message that the two are of equivalent value to society. The benefit system also provides a disincentive to marriage and committed fatherhood by favouring parents who live separately.[7] In addition to reforming the benefit system to the advantage of married couples who choose to live together, there is a case for introducing a transferable system of tax allowances between spouses to reflect the importance of the marriage-based family for the welfare of children and the stability of society.[8]
Core Question 2: To what extent is it right for parents to be held responsible for the actions of their children? Where should their responsibilities begin and end?
The law recognises the unique role and responsibilities that parents have towards to their children. ‘Parental responsibility’ entails ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’[9] Parents are, for example, responsible for feeding, clothing and housing their children and are liable to prosecution for neglect if they fail to provide adequate standards of care. They are also legally responsible for ensuring that their children of compulsory school age receive ‘full-time efficient education, suitable to [their] age, ability and aptitude and to any special needs [they] may have’.[10]
It is important that parents should retain these responsibilities as the primary providers and protectors of their children. It is also important that they should remain responsible for ensuring that their children receive an efficient education, in accordance with their religious and philosophical convictions,[11] whether by attendance at a state or independent school ‘or otherwise’.[12]
However, if parents are to be held responsible in law for the care and education of their children, care must be taken not to undermine their authority and responsibilities in other areas of public policy and law. Current government policy on the family has led to a crisis of identity among parents. On the one hand they are held responsible for their children’s behaviour at school and in the community, while on the other their role is being undermined by growing pressure on mothers to work outside the home, official disapproval of effective methods of discipline, and the confidential provision of contraception and abortions without the knowledge or consent of parents.
For example, in its recent guidance to health professionals on the provision of contraceptive services for under-16s, the Department of Health stated:
‘All services providing advice and treatment on contraception, sexual and reproductive health should produce an explicit confidentiality policy which…makes clear that young people have the same right to confidentiality as adults.’[13]
In recent years there has been a growing number of health clinics operating on school premises where pupils under the age of consent to sexual intercourse are able to access contraception and the morning-after pill, even though provision of the morning-after pill without parental agreement runs counter to the government’s good practice guide with regard to the supply of any other medical treatment in schools. Official guidance states that:
• ‘Parents or guardians have prime responsibility for their child’s health and should provide schools with information about their child’s medical condition.’
• ‘Parents’ cultural and religious views should always be respected.’
• There should be ‘prior written agreement from parents or guardians for any medication, prescribed or non-prescription, to be given to a child’.
• ‘School staff should generally not give nonprescribed medication to pupils [e.g. aspirin and paracetamol]. They may not know whether the pupil has taken a previous dose, or whether the medication may react with other medication being taken.’
• ‘No pupil under the age of 16 should be given medication without his or her parent’s written consent.’[14]
The provision of contraception and the morning-after pill to young people both on and off school premises without parental knowledge or consent is frequently defended by reference to criteria set out by Lord Fraser in his judgment in the case of Gillick v West Norfolk and Wisbech Area Health Authority and the Department of Health & Social Security. Lord Fraser ruled that contraception may be supplied to a girl under the age of 16 without reference to her parents, provided: (i) that she will understand the advice given; (ii) that she cannot be persuaded to tell her parents; (iii) that she is likely to begin or continue in a sexual relationship; (iv) that her physical or mental health may suffer if contraceptive treatment is denied her; and (v) that it is in her best interests.
However, the law lords were insistent that under all normal circumstances the child’s parents should be informed and in agreement with the supply of contraceptive treatment to an underage girl. Lord Fraser insisted that his criteria:
‘ought not to be regarded as a licence for doctors to disregard the wishes of parents on this matter whenever they find it convenient to do so. Any doctor who behaves in such a way would, in my opinion, be failing to discharge his professional responsibilities, and I would expect him to be disciplined by his own professional body accordingly.’
He also stated that:
‘Nobody doubts, certainly I do not doubt, that in the overwhelming majority of cases the best judges of a child’s welfare are his or her parents. Nor do I doubt that any important medical treatment of a child under 16 would normally only be carried out with the parents’ approval. That is why it would and should be most unusual for a doctor to advise a child without the knowledge and consent of parents on contraceptive matters.’
Lord Scarman concurred with this position:
‘…a doctor is only in exceptional circumstances to prescribe contraception to a young person under the age of 16 without the knowledge and consent of a parent… Only in exceptional cases does the guidance contemplate [a doctor] exercising his clinical judgement without the parents’ knowledge and consent.’[15]
However, what was envisaged as the exception has become the rule, so much so that Professor David Hall, President of the Royal College of Pediatrics and Child Health, could tell the Joint Committee on Human Rights that it was legitimate for a GP to give contraception to a 12 year-old girl involved in a sexual relationship with a 22 year-old man. Professor Hall felt that in assessing whether the girl was ‘making a mature and considered decision’, most doctors would ‘consider her very competent by the very act of having come to seek advice on contraception’.[16] Press reports earlier this year highlighted the way in which parents are now even being excluded from their child’s decision to have an abortion.
In its press release announcing the revised guidance on confidential serices for under-16s, the Department of Health quoted Dr Vivienne Nathanson, the Head of Science and Ethics at the British Medical Association, who asserted that:
‘it is essential that competent young people’s autonomy continues to be recognized and respected in this way, to ensure a good doctor-patient relationship, based on trust, within which young people feel they are able to seek advice’.[17]
However, in its attempt to enhance the trust between a doctor and patient, it is to be feared that the guidance is breaking down the trust between parents and their children, which we would maintain is a far more important relationship to safeguard. Parents are the primary protectors of their children, yet they are increasingly being undermined and sidelined in the name of ‘the right of the child to confidentiality’.
We are concerned that children and young people are increasingly being regarded and treated as autonomous individuals rather than members of a family, and that parental responsibilities are being usurped by those whose interest in them is professional rather than personal. Of far greater importance than recognising and respecting young people’s autonomy is the need to pay due regard to the autonomy of the family unit.
Core Question 3: Should the role of the state in supporting and intervening in families be formalised and made transparent? If so, how far and in what way?
In a free society, it is important that compulsory intervention in the family should be limited to exceptional cases, such as where it is necessary to protect a child from significant harm.[18] We are therefore wary of moves which would have the effect of imposing a particular view of family life and child-rearing. For example, parents should retain their freedom to withdraw their children from sex education classes in school, and should not be criminalised for the moderate physical correction of their children.
Family relationships are very personal and individual matters, and each family is shaped and influenced by certain social, cultural, religious and philosophical factors which are not common to every other family. Values and standards will therefore differ from family to family and this will be reflected in the way children are brought up.
As one commentator has put it:
‘[We should be] very cautious of recommendations decreasing the role of parents and increasing the role of the state in family life… Children’s rights theory claims to promote the welfare of children. But in reality it throws children into the arms of state professionals – who may be filled with big ideas but empty of the bonds of family love.’[19]
In The Fight for the Family, Lynette Burrows writes:
‘State intervention into family life is feared and loathed by most children more than anything. They are more troubled by the state interfering than they are reassured by the protection offered. Children do not want rights, they want love and protection and the majority of them do not want social workers or anyone else coming into their families and telling their parents they are not behaving properly.’[20]
We have been concerned at the lack of attention devoted to the family unit in recent debates about the establishment of children’s commissioners in the UK. The emphasis on children as citizens of the state has been such that we are in danger of forgetting that children are first and foremost members of a family. It is not the role of the state, but rather the responsibility of parents to enable children to enjoy a happy, safe and secure childhood.
In the vast majority of cases, children have parents who are well able to represent their interests, and we find it disturbing that the assumption is being made by some that a commissioner will fulfil this advocacy role more adequately than parents. For example, in his oral evidence before the Joint Committee on Human Rights, Michael Leadbetter, president of the Association of Directors of Social Services, referred to ‘a legacy of “children must be seen and not heard”’ and expressed the view that the appointment of a ‘powerful’ children’s rights commissioner, ‘with access to children’ and ‘able to change guidance or legislation’ was a priority if the whole culture were to be changed to one where children were both seen and heard.[21] As far as we are aware, however, no one is denying that children are capable of making rational decisions and should be encouraged to develop their decision-making skills, but we would submit that it is better that they should do so under the loving guidance and protection of their parents rather than by order of an impersonal state-funded office.
At grassroots, parents are continuing to protect, guide, care and provide for their children. They are the unsung heroes, hidden from the public eye, but available to their children 24 hours a day, seven days a week during their most vulnerable and formative years. The overwhelming majority of parents do far more to promote and protect the rights and interests of their children than any statutory office will ever do. Most children do not need a ‘champion’ at all because they already have one; indeed, many children have two champions, more commonly known as a father and a mother. They live with them, they are known personally to them, they are related to them, and they are loved and cared for by them. Parents are far better placed and equipped to represent the interests of their children than any impersonal state mechanism.
We are conscious that families are feeling very vulnerable to those who are pursuing an agenda focused on the ‘rights of the child’. In our publication, The Fight for the Family, Lynette Burrows argues that the ‘rights’ which are frequently claimed for children are little more than the ‘desires’ of some adults to exercise more power over people’s private lives:
‘The assertion of children’s rights in their current form is both bogus and inconsistent. They do not, for example, propose to raise children to the level of adults where they would be named, prosecuted and punished for violent and disorderly behaviour. Neither are they proposing that children be allowed to choose if they drink, smoke or attend school… In other words, we are not talking about genuine children’s rights at all. We are talking about the right of some adults – and certainly not ordinary parents – to decide what children shall and shall not be allowed to do. Children themselves are just the means by which they achieve their aims.’[22]
The pursuit of a children’s rights philosophy has tended to lead to adults with no family bonds and no long-term personal commitment to children gaining access to them without the knowledge and consent of their parents. In this context there is considerable risk of exploitation. We would consider the availability of contraceptive advice and supplies to children and young people under the age of consent and the pressure to override the wishes of parents on the kind of sex education their children receive at school as examples of this. It is precisely because children are vulnerable to manipulation, ill-treatment or abuse by those more powerful than themselves that they need the protection of their parents.
We are not persuaded that the creation of a ‘rights culture’ will serve the best interests of children and families. ‘Rights-talk’ invariably fosters a feeling of ‘them’ and ‘us’ and, rather than building bridges, has the effect of driving people further apart. With particular reference to ‘children’s rights’, there is a danger that the ‘generation gap’ will grow even larger than it is currently perceived to be. Certainly within the home, any talk of ‘rights’ will always lead to a spirit of conflict between parents and children which will damage relationships within the family. This is the case whether we are thinking of ‘parent’s rights’ or ‘children’s rights’. The focus should rather be on the family as a whole, and the responsibilities of parents towards their children and children towards their parents.
With regard to state support for families, we would also sound a note of caution. In its section on ‘Supporting parents and carers’, the Green Paper, Every Child Matters emphasised the importance role of parents:
‘The bond between the child and their parents is the most critical influence on a child’s life. Parenting has a strong impact on a child’s educational development, behaviour and mental health.’[23]
It also recorded that:
‘Research suggests that parenting appears to be the most important factor associated with educational attainment at age 10, which in turn is strongly associated with achievement later in life. Parental involvement in education seems to be a more important influence than poverty, school environment and the influence of peers.’[24]
However, in spite of this recognition of the central importance of the parent-child relationship, other sections of the document militated against it and undermined the position of parents. For example, the government’s goal to ‘make working with children an attractive, high status career’[25] suggests a tendency to downgrade the role of parents. Likewise, the government’s plan to increase the provision of childcare and out of school care in all areas and to extend free part-time education to all three year-olds[26] is encouraging a culture where children spend vast amounts of time away from their parents during their early years. The effect of enhancing professional childcare is to limit the influence of parents, with a potentially damaging impact on children.
Professor Jay Belsky of the Institute for the Study of Children, Families and Social Issues at London University’s Birkbeck College, records that children who spend long periods in daycare from an early age tend to be less compliant, more aggressive, less popular and more likely to experience behavioural problems than children cared for by their mothers:
‘Children who spent more time in childcare during their first five years scored lower on a composite measure of positive adjustment (i.e. peer popularity, teacher-rated peer competence) and higher on a composite measure of negative adjustment (i.e. teacher-rated behaviour problems, peer dislike, observed aggression) than children with less childcare experience.’[27]
There is therefore good reason for the government to exercise caution before embarking on programmes aimed at expanding childcare provision and investing in training and the development of career structures which would have the effect of reducing the amount of time children spend with their mothers.
Conclusion
We would urge that in any consideration of issues affecting children and the family, that:
(a) due respect should be paid to the views of parents as those who have the primary responsibility for the care and nurture of their children, taking care to avoid the imposition of any particular parenting philosophy and style;
(b) children should be viewed first and foremost as members of a family, rather than independent citizens of the state. We are concerned by the growing tendency among public policy-makers to divorce children from their parents in their thinking.
Children are people with individual needs which are most effectively met in a personal way within the family. They should therefore not be viewed as subjects of the state in isolation from the family. They need parents to guide, direct and protect them. When a society begins to lose sight of the importance of parents and the family unit, children are placed at risk of being treated as objects rather than as people.
It is important that the state should not seek to exercise authority where it has no responsibility. It is parents and not the state who are responsible for the discipline and protection of their children; they should not therefore be deprived of the authority they need to fulfil their task. The more the state usurps the role of parents and undermines them, the less responsibility they will be inclined to take for their children, which will inevitably contribute to adverse consequences in terms of health, crime and social disintegration.
October 2004
References
1 Department of Health, Home Office, Department for Education & Employment (1999),Working Together to Safeguard Children, para 1.5
2 ibid, para 2.16
3 ibid, para 2.25
4 The Facts Behind Cohabitation, London: Civitas, 2001
5 O’Neill R, Experiments in Living: The Fatherless Family, London: Civitas, 2002
6 Whelan, R, Broken Homes & Battered Children: A study of the relationship between child abuse and family type, Oxford: Family Education Trust, 1994.
7 The Lone-Parent Trap: How the Welfare System Discourages Marriage, London: Civitas, 2002
8 De Burgh H, Whelan R, The Necessary Family and How to Support It, Oxford: Family & Youth Concern, 1996. While the figures are now dated, the underlying principles still apply.
9 Children Act 1989, s.3(1)
10 Education Act 1996, s.7
11 European Convention on Human Rights, Article 2 of Protocol No 1
12 Education Act 1996, s.7
13 Department of Health, Best Practice Guidance for Doctors and Other Health Professionals on the Provision of Advice and Treatment to Young People Under 16 on Contraception, Sexual and Reproductive Health, 29 July 2004.
14 Department for Education & Employment, Department of Health, Supporting Pupils with Medical eeds: A good practice guide, London: HMSO 1996.
15 Gillick v West Norfolk and Wisbech Area Health Authority and the Department of Health & Social Security, 1985, 3 All ER 402.
16 Joint Committee on Human Rights, Twenty-second Report of Session 2001-02, The Case for a Human Rights Commission: Interim Report, EV60.
17 Department of Health, Press Release 2004/0290, 30 July 2004.
18 Department of Health, Home Office, Department for Education & Employment (1999),Working Together to Safeguard Children, para 1.5
19 Colson C, A Dance with Deception, Word, 1993, p179
20 Burrows L, The Fight for the Family, Oxford: Family Education Trust, 1999, p54
21 Joint Committee on Human Rights, Twenty-second Report of Session 2001-02, The Case for a Human Rights Commission: Interim Report, EV23, 24.
22 Burrows L, op cit, p74
23 Every Child Matters, paragraph 3.1
24 ibid, paragraph 1.12
25 Every Child Matters, Executive Summary, p10
26 Every Child Matters, paragraph 2.8
27 Belsky J, ‘Developmental Risks (Still) Associated with Early Child Care’, Journal of Child Psychology and Psychiatry, 2001, quoted in: Kirby J, Choosing to be Different: Women, work and the family, London: Centre for Policy Studies, 2003.