Therapy with Children: Children's Rights, Confidentiality and the Law

Books

Debbie Daniels & Peter Jenkins

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  • Ethics in Practice Series

    Ethics in Practice edited by Tim Bond is a series of short, practical guides to ethical issues which confront counsellors, psychotherapists and other professionals every day. Suitable for both students and practitioners, the books are designed to give a clearer understanding of issues which are often considered complex and contentious.

    Books in the series:

    Pastoral Care & Counselling

    Gordon Lynch

    Legal Issues in Counselling & Psychotherapy

    Peter Jenkins

    Dual Relationships in Counselling & Psychotherapy

    Gabrielle Syme

    Copyright

    View Copyright Page

    Legal References: UK

    Table of Cases
    • Adenjii v. Newham LBC (2001) QB, 16 October 2001 135
    • Agar-Ellis v. Lascelles (1883) 24 Ch 317, 53 LJ Ch 10, 50 LT 161, 32 WRI, CA 11
    • Axon, R (on the application of) v. Secretary of State for Health and Anor [2006] EWHC 37 (Admin) 19, 72, 85–9, 145, 162
    • Campbell v. MGN Ltd [2004] UKHL22 135, 162
    • Duncan v. Medical Practitioners' Disciplinary Committee [1986] NZLR 513 162
    • Gillick v. West Norfolk AHA [1985] 3 All ER 402; [1986] AC 112 17–20, 22–4, 60, 63, 67–77, 84–9, 99, 102, 138–45, 149–50, 158–62
    • Hewer v. Bryant [1970] 1 QB 357 CA 12, 84
    • Mabon v. Mabon [2005] 3 WLR 460 12
    • Nielsen v. Denmark (1989) 11 EHRR 175 143, 145
    • Re C (A Minor) (1997) Law Reports, The Times 5 March 143–5
    • Re E [1993] 1 FLR 386 143
    • Re R [1991] 4 All ER 177 CA 72, 142, 145
    • Re S (A minor) (1994) Guardian Law Report 22 July 68
    • Re S [1994] 2 FLR 1065 143
    • Re W [1992] 3 WLR 758 CA (Also reported as Re ‘J’ in The Independent 14 July 1992; Guardian 22 July 1992) 72, 142, 145
    • Rich v. London CC [1953] 1 WLR 895 89
    • South Glamorgan CC v. B and W [1993] 1 FLR 386 145
    • Williams v. Eady (1893) 10 TLR 41 CA 59–60, 89
    Table of Statutes

    List of Boxes

    • Box 1.1 Degrees of children's active involvement in decision making 16
    • Box 1.2 Parental responsibilities and authority 18
    • Box 1.3 Using the developmental counselling and therapy (DCT) model 22
    • Box 2.1 Melanie Klein: key concepts in therapy with children 29
    • Box 2.2 Anna Freud: key concepts in therapy with children 32
    • Box 2.3 Donald Winnicott: key concepts in therapy with children 34
    • Box 3.1 Approaches to confidentiality in therapy with children and young people 39
    • Box 3.2 Robert Langs: key concepts of the therapeutic framework 47
    • Box 3.3 Ethical principles for therapeutic practice 52
    • Box 3.4 Relationship of ethical principles to the articles of UN Convention on the Rights of the Child 1989 54
    • Box 3.5 Health Professions Council Standards of Conduct, Performance and Ethics: avoiding harm to children and young people 57
    • Box 4.1 Ethical principles for teachers in relation to children's rights 65
    • Box 4.2 The ‘Fraser guidelines’ 69
    • Box 4.3 Assessing competence to consent by children and young people 70
    • Box 4.4 Definition of consent 71
    • Box 5.1 Approaches to confidentiality in therapy with children and young people 82
    • Box 5.2 Levels of parental involvement in therapy 83
    • Box 5.3 The therapist as mediator: the impact of external relationships on the therapeutic frame 84
    • Box 5.4 Rights of parents in school settings 87
    • Box 5.5 Rights of the child in school settings 88
    • Box 5.6 Forms of therapist mediation and liaison with external agencies, following a decision to report alleged child abuse 93
    • Box 6.1 Factors in deciding whether to report child abuse 99
    • Box 6.2 Legal and therapeutic factors affecting the therapist's decision to report alleged child abuse 102
    • Box 6.3 Outcomes of child protection investigations Under s. 47, Children Act 1989 for 2006–7 in England 104
    • Box 7.1 ‘Every child matters’: key outcomes for children and young people 114
    • Box 7.2 ContactPoint: children's database for professionals working with children and young people 115
    • Box 7.3 Comparison of current and potential future patterns of counselling provision for children and young people 118
    • Box 7.4 Timetable for child protection investigation Under s. 47, Children Act 1989 120
    • Box 7.5 Summary of the main provisions of the Children Act 1989 122
    • Box 7.6 Key criteria for the provision of pre-trial therapy for young people who are witnesses in a criminal trial 124
    • Box 7.7 The rights of children and of parents within the child protection process 126
    • Box 8.1 Liaison between school counselling services and child and adolescent mental health services 136
    • Box 8.2 Principles of mental health service provision for children and young people 137
    • Box 8.3 Definition of ‘Gillick-competence’ 138
    • Box 8.4 Summary of children's rights and parental responsibility for consent to informal admission and psychiatric treatment under the Mental Health Act 1983 139
    • Box 8.5 Main provisions for compulsory treatment under the Mental Health Act 1983 140
    • Box 8.6 Definitions of key terms under the Mental Health Act 1983 141
    • Box 8.7 The rights of children and young people in psychiatric care 144
    • Box 8.8 Legal context for decision making for children and young people receiving psychiatric treatment 145
    • Box 8.9 Factors to be considered by the therapist when working with children and young people at risk of deliberate self-harm or suicide 146
    • Box 8.10 Main features of borderline personality disorder (as defined in DSM-IV) 147

    Foreword

    Debbie Daniels and Peter Jenkins approach the complex issue of the rights of children to seek and sustain psychotherapy with skill and sensitivity. They provide a lucid and accurate account of psychoanalytically oriented counselling and psychotherapy and illustrate how the needs of the child for a place of confidential safety is essential for any child to trust a therapist, and eventually, for the society of ‘childhood’ at large to appreciate the sanctuary provided by this trust.

    The authors take the reader through the history and arguments of statutory legislation and common law decisions which bear on the child's right to therapy. This is an exceptionally important research, which will be of immediate use to therapists and counsellors as well as those in the law and local and national government who struggle day in and day out with the vexing questions of balancing the rights of the child with society's need to protect children who may be in harm's way.

    In the heart of the book are several deeply moving examples of the fate of children who sought therapy, but who suffered the unfortunate consequences of understandable but misguided interventions on the parts of social services and the police. What is the actual fate of public intervention in the life of a child who seeks therapy? Although the public may feel assured by vigorous intervention in a child's therapy, mandating the therapist's co-operation with the authorities, does it actually work?

    Daniels and Jenkins' book arrives at a crucial moment in the history of the therapeutic treatment of children and adults. It is fair minded, exceptionally informative, well written and compelling.

    ChristopherBollas

    Acknowledgements

    The start of this book came from a chance telephone discussion about children's rights which transformed a dissertation idea into a book for publication. The original idea for my part began as a dissertation title while I was a student at Regent's College. I would like to thank Alessandra Lemma, my dissertation supervisor at that time, for helping me to formulate these ideas in the early stages of writing. Brett Kahr, my tutor and mentor, was also instrumental at that time in encouraging me to transform my experiences into a dissertation and publication, and I am grateful for his support. I would also like to thank head teachers, Alessandra Wilson and Victor Burgess, who have trusted my professional judgement to act in the best interest of the child client. Over a period of difficult years in exploring the complex issue of confidentiality when working with children, I have been grateful for the opportunity to discuss these ideas with my supervisors. I would therefore like to thank Michael Morice, Caroline Helm and Andrea Sabbadini for their support and interest.

    Thanks also to family members, namely my sister Diane, who is a counsellor and has allowed me to use her as a sounding board over the years to thrash out the ideas for the book. My warmest thanks also to my parents-in-law for their constant support and interest in the book and all areas of my professional work. Above all, my most heartfelt thanks go to Tony for his endless love and support and not least of all for his dynamic input in my early struggles with the word processor. Finally, I would like to thank all those children who have been my clients and have taught me that what they really want from a therapeutic encounter is nothing more than to be heard and understood.

    DD

    Acknowledgements are due to a number of people who have helped to make this project a reality, through their encouragement, or more practical forms of help. Ray Woolfe, former tutor at Keele University, and Mary Berry, Senior Lecturer at Manchester University, have both provided much-valued support for writing and research as part of professional development. Professor Tim Bond, of Bristol University, former chair of the British Association of Counselling and Psychotherapy, has been a source of both critical and supportive editorial comment throughout the project. Colleagues in the Directorate of Psychology, Counselling and Psychotherapy at the University of Salford have been supportive, together with many students on counselling courses. Other colleagues who have contributed support in various ways include Kate Benson, Jill Collins, Maureen Keane, Susan McGinnis, Janette Newton, Joanne Palmer, Dr Filiz Polat and Gudrun Stummer.

    Thanks also to my family, near and far, but particularly Jane, Rachel, Xavier and Lisa, for creating the space to make this possible.

    PJ

    Promises, Promises

    Written by a 12-year-old girl

    I asked you for help

    And you told me you would if I told you the things

    my dad did to me

    It was really hard for me to say all those things

    But you told me to trust you

    Then you made me repeat them to fourteen different strangers.

    I asked you for privacy and you sent two police men to my school

    In front of everyone, to go downtown for a talk in their black and white car

    Like I was the one being busted.

    I asked you to believe me and you said that you did

    Then you questioned me over and over again

    And took me to court where lawyers put me on trial

    Like I was a liar.

    I can't help it if I can't remember times and dates

    Or explain why I couldn't tell my mum

    Your questions got me confused

    My confusion got you suspicious.

    I asked you to put an end to the abuse

    You put an end to my whole family

    You took away my nights of hell

    And gave me days of hell instead

    You've exchanged my private nightmare

    For a very public one.

    Taken from a longer poem first published in: Meston, John (1989) ‘Child Abuse in Canada’, pp. 171–190 in Hepworth, H. Philip, Canadian Seminar on Childhood Implications for Child Care Policies, Gananoque, Ontario, Canada, June 29–30, 1988. Vienna: European Centre for Social Welfare Policy and Research.

  • Appendix 1 Summary of the United Nations Convention on the Rights of the Child (CRC) 1989

    The Convention sets out basic standards for the care and treatment of all children throughout the world. A child is defined as any person under the age of 18, unless he or she has legally become an adult at a younger age. The Convention protects the child, parents or legal guardians from discrimination on the grounds of race, religion, political or other opinion, nationality, ethnic or social origin, property, disability, birth or other status.

    The Convention is an international legal agreement, which is to be signed and respected by governments, which then agree to implement the Convention and report back to the United Nations on a regular basis. The Convention was ratified by the UK government in 1991, with certain exceptions.

    Broadly, the Convention sets out the rights of the child to:

    • provision of basic human rights and services;
    • protection from harm;
    • participation in society.
    Provision of Basic Human Rights and Services
    • States are to implement the Convention to the greatest extent of their resources.
    • Both parents have the main responsibility for the upbringing and development of the child, supported by the state.
    • States are to respect the rights and duties of parents, and of the extended family.
    • Children are not to be separated from parents against their will, or to be denied contact with them, unless this is necessary in the best interests of the child.
    • Children and parents have the right to leave and enter a country for purposes of family reunion, subject to the law.

    Children have a right to:

    • the highest standard of health, the removal of traditional practices harmful to children and the provision of special care for disabled children;
    • social security, benefits and a standard of living adequate for the child's development;
    • education, which is to be compulsory and freely available at primary level, provided on the basis of equal opportunity, to develop children to their fullest potential;
    • play, recreation, culture and artistic life;
    • help and support for victims of neglect, abuse, torture and armed conflict;
    • fair treatment before the courts if accused of breaking the law.
    Protection from Harm

    Children have a right to such protection and care as is necessary for their well-being, on the basis of the best interests of the child. They have a right to:

    • life, survival and development;
    • be cared for as far as possible by their parents, or via appropriate alternative care by the State, subject to periodic review;
    • a name, identity and nationality.

    Children are to be protected:

    • from discrimination or punishment on the basis of the status, activities or beliefs of parents or legal guardians;
    • in terms of their privacy, family, home and correspondence;
    • as refugees, or as members of minority ethnic, religious, linguistic or indigenous groups;
    • from violence, injury, abuse, illicit transfer abroad, sale, trafficking, illegal drug use and sexual exploitation;
    • from economic exploitation or hazardous work, via a minimum age for employment;
    • from torture, cruel, inhuman or degrading treatment or punishment, including the use of capital punishment or life imprisonment for crimes committed under 18;
    • from direct involvement in armed conflict if under 15.
    Participation in Society

    Children have a right to:

    • express their views in all matters affecting them, depending upon their age and maturity;
    • freedom of expression, and to receive diverse information and ideas via the mass media, subject to the law;
    • freedom of thought, conscience, religion, association and peaceful assembly;
    • information on the Convention, which is to be made widely known to adults and children alike.

    Source: UNICEF, 1989; adapted for use in Jenkins, 2003: 140–2

    Appendix 2 Resources

    Official Organisations

    CAFCASS (Represents interests of children in Family Proceedings) 6th Floor, Sanctuary Buildings, Great Smith Street, London SW1P 3BT; 0844 353 33500; Fax: 0844 353 3351; http://www.cafcass.gov.uk; webenquiries@cafcass.gov.uk

    Care Quality Commission

    Citygate, Gallowgate, Newcastle upon Tyne NE1 4PA; 03000 616161; http://www.cqc.org.uk; enquiries@cqc.org.uk

    Children's Commissioner (England)

    11 Million, 1 London Bridge, London SE1 9BG; 0844 800 9113; http://www.childrenscommissioner.org; info.request@11million.org.uk

    Children's Commissioner (Northern Ireland)

    Millenium House, 17–25 Great Victoria Street, Belfast BT2 7BA; 028 9031 1616; Fax: 028 9031 4545; http://www.niccy.org; info@niccy.org

    Children's Commissioner (Scotland)

    85 Holyrood Road, Edinburgh EH8 8AU; 0131 558 3733; Fax: 0131 556 3378; http://www.scypcommissioner.org; info@sccyp.org.uk

    Children's Commissioner (Wales)

    Oystermouth House, Charter Court, Phoenix Way, Llansamlet, Swansea SA7 9FS; 01792 765 600; Fax: 01792 765 601; or Pehrhos Manor, Oak Drive, Colwyn Bay, Conwy LL29 7YW; 01492 523 333; Fax: 01492 523 336; http://www.childcomwales.org.uk; post@childcom.org.uk

    Criminal Injuries Compensation Authority

    Tay House, 300 Bath Street, Glasgow G2 4LN; 0141 331 2726; Fax: 0141 331 2287; http://www.cica.gov.uk

    Crown Prosecution Service

    50 Ludgate Hill, London EC4M 7EX; 020 7796 8000; http://www.cps.gov.uk

    Equalities and Human Rights Commission (England)

    3 More London, Riverside Tooley Street, London SE1 2RG; 020 3117 0235; http://www.equalityhumanrights.com; info@equalityhumanrights.com

    Equalities and Human Rights Commission (Scotland)

    The Optima Building, 58 Robertson Street, Glasgow G2 8DU; 0141 228 5910; Fax: 0141 228 5912; scotland@equalityhumanrights.com

    Equalities and Human Rights Commission (Wales)

    3rd Floor, 3 Callaghan Square, Cardiff CF10 5BT; 02920 447 710; Fax: 02920 447 712; wales@equalityhumanrights.com

    European Court of Human Rights (hears cases involving breaches of ECHR)

    Council of Europe, 67075 Strasbourg-Cedex, France: 33(0) 38 841 20 18; Fax: 33(0) 38 841 27 30; http://www.echr.coe.int; webmaster@echr.coe.int

    Information Commissioner

    Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF; enquiries: 01625 545 745; Fax: 01625 524 510; http://www.ico.gov.uk

    Northern Ireland Human Rights Commission

    Temple Court, 39 North Street, Belfast BT1 1NA; 028 9024 3987; Fax: 028 9024 7844

    Official Solicitor (represents interests of children in key cases)

    81 Chancery Lane, London WC2A 1DD; 020 7911 7127; Fax: 020 7911 7105; http://www.officialsolicitor.gov.uk; enquiries@offsol.gsi.gov.uk

    Therapists' Organisations

    Association of Child Psychotherapists

    120 West Heath Road, London N3 7TU; 0208 458 1609; Fax: 0208 458 1482; http://www.childpsychotherapy.org.uk; angie.lee-lazone@childpsycho-therapy.org.uk

    British Association for Counselling and Psychotherapy

    BACP House, 15 St John's Business Park, Lutterworth LE17 4HB; 0870 443 5252; http://www.bacp.co.uk

    British Psychoanalytic Council

    West Hill House, 6 Swains Lane, London N6 6QS; 020 7267 3626; Fax: 020 7267 4772; http://www.bcp.org.uk; mail@psychoanalytic-council.org

    British Psychological Society

    St Andrew's House, 48 Princess Road East, Leicester LE1 7DR; 01162 549 568; http://www.bps.org.uk

    COSCA: Counselling and Psychotherapy in Scotland

    18 Viewfield Street, Stirling FK8 1UA; 01786 475 140; Fax: 01786 446 207; http://www.cosca.org.uk; cosca@compuserve.com

    General Medical Council

    44 Hallam Street, London W1N 6AE; 020 7580 7642; http://www.gmc-uk.org

    Independent Practitioners Network (IPNOSIS)

    http://www.ipnet.org.uk

    Royal College of Psychiatrists

    17 Belgrave Square, London SW1X 8PG; 020 7235 2351; Fax: 020 7245 1231; http://www.rcpsych.ac.uk

    United Kingdom Council for Psychotherapy

    2nd Floor, Edward House, 2 Wakley Street, Islington, London EC1V 7LT; 020 7014 9966; http://www.ukcp.org.uk; http://www.psychotherapy.org.uk

    Children's Counselling Service Provider Organisations

    Childline

    Weston House, 42 Curtain Road, London EC2A 3NB; 020 7825 2500; Fax: 020 7825 2525; For children: 0800 1111; http://www.childline.org.uk

    National Society for the Prevention of Cruelty to Children

    Weston House, 42 Curtain Road, London EC2A 3NB; 020 7825 2500; Fax: 020 7825 2525; http://www.nspcc.org.uk

    Place2Be

    13–14 Angel Gate, 326 City Road, London EC1V 2PT; 020 7923 5500; http://www.theplace2be.org.uk; enquiries@theplace2be.org.uk

    Relate

    Premier House, Carolina Court, Lakeside, Doncaster DN4 5RA; http://www.relate.org.uk

    Children's Rights Organisations

    Action on the Rights of Children

    62 Wallwood Road, London E11 1AZ; 020 8558 9317; http://www.archrights.org.uk; archrights@aol.com

    Child Rights Information Network

    East Studio, 2 Pontypool Place, London SE1 8QF; 020 7401 2257; http://www.crin.org.uk; info@crin.org.uk

    Children Are Unbeatable! Alliance

    94 White Lion Street, London N1 9PF; 020 7713 0569; Fax: 020 7713 0466; http://www.childrenareunbeatable.org.uk

    Children In Wales (promotes interests of children in Wales)

    25 Windsor Place, Cardiff CF1 3BZ; 029 2034 2434; Fax: 029 2034 3134; ciw@globalnet.co.uk

    Children's Rights Alliance for England (promotes UNCRC 1989)

    94 White Lion Street, London N1 9PF; 020 7278 8222; Fax: 020 7278 6046; http://www.crae.org.uk; info@crae.org.uk

    Specialist Advocacy or Support Organisations

    Action for Children

    85 Highbury Park, London N5 1UD; 020 7704 7000; Fax: 020 7226 2357; http://www.actionforchildren.org.uk; supporter.care@actionforchildren.org.uk

    Association of Child Abuse Lawyers

    Suite 13, Claremont House, 22–24 Claremont Road, Surbiton KT6 4QU; 020 8390 4701; Fax: 020 8399 1152; http://www.childabuselawyers.com; info@childabuselawyers.com

    Children's Law Centre (Belfast)

    3rd Floor, Philip House, 123–137 York Street, Belfast BT15 1AB; 028 9024 5704; http://www.childrenslawcentre.org; info@childrenslawcentre.org

    Children's Law Centre (Scotland)

    54 East Crosscauseway, Edinburgh; 0131 667 6333; Fax: 0131 6622 1713; http://www.sclc.org.uk; enquiries@sclc.org.uk

    Children's Legal Centre

    University of Essex, Wivenhoe Park, Colchester, Essex C04 3SQ; 01206 877 910; Fax: 01206 877 963; http://www.childrenslegalcentre.com

    Mental Health Foundation

    20–21 Cornwall Terrace, London NW1 4QL; 0207 535 7400; Fax: 0207 535 7474; mhf@mentalhealth.org.uk; http://www.mentalhealth.org.uk

    National Youth Advocacy Service

    Egert House, Tower Road, Birkenhead, Wirral CH41 1FN; 0151 649 8700; Fax: 0151 649 8701; http://www.nyas.net; main@nyas.net

    Stonewall (gay and lesbian rights)

    Tower Building, York Road, London SE1 7NX; 020 7593 1850; Fax: 020 7593 1877; http://www.stonewall.org.uk; info@stonewall.org.uk

    Trust for the Study of Adolescence

    23 New Road, Brighton BN1 1WZ; 01273 693 311; Fax: 01273 679 907; http://www.studyofadolescence.org.uk

    United Nations Children's Fund (UNICEF)

    30a Great Sutton House, London EC1V 0DU; 020 7490 2388; Fax: 020 7250 1733; http://www.unicef.org.uk

    Voice for the Child in Care

    320 City Road, London EC1V 2NZ; 020 7833 5792; Fax: 020 7713 1950; http://www.voiceyp.org; info@voiceyp.org

    Witness Support Programme

    Victim Support, Cranmer House, 39 Brixton Road, London SW9 6DZ; 020 7735 9166; Fax: 020 7582 5712; http://www.victimsupport.org.uk; contact@victimsupport.org.uk

    Young Minds

    48–50 St John Street, London EC1M 4DG; 020 7336 8445; Fax: 020 7336 8446; http://www.youngminds.org.uk

    Youth Access

    1–2 Taylor's Yard, 67 Alderbrook Road, London SW12 8AD; 020 8772 9900; Fax: 020 8772 9746; http://www.youthaccess.org.uk; admin@youthaccess.org.uk

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