Balancing Children's Welfare and Autonomy: the Health System versus the Justice System

25 MAR 2010

DR WILSON CHENG, Specialty Registrar, Northern Forensic Mental Health Service for Young People

All children are entitled to be protected by society, particularly those who are in vulnerable positions. Under both the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) and the United Nations Convention on the Rights of the Child 1989 (UNCRC), states have a duty to protect the life of every child. The UK government is committed to safeguard and promote the welfare of children. Under the Children Act 1989, when deciding the upbringing of a child the welfare of the child should be the court's paramount consideration. Section 100 also allows the inherent jurisdiction to be invoked by local authorities with leave, when necessary, for the protection of a child. It is clear that the society has an interest to protect all children from harm.

It is not a surprise to discover that both children and adolescents want to make decisions about their own lives as they grow up. Fortin suggested that the society should assist them by respecting their decisions as far as possible (J Fortin, Children's Rights and the Developing Law (Butterworths, 2nd edn, 2003), at p 71). However, it is unrealistic to expect all children of any age to make the ‘right' decisions for themselves even if they are developmentally ready to do so. Sometimes they might take some decisions, which could be harmful to others or even to themselves. For example, some teenagers make reckless decisions believing themselves to be immune from any dangerous outcomes.

To read the rest of this article, see April [2010] Family Law journal. To log on to Family Law journal Online or to request a free trial click here.

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