Children's advocacy guidance

Contents

• Introduction
• Good children's advocacy
• Being an advocate
• Understanding advocacy
• Confidentiality
• Practical advice
• Systems for supporting children
• Right to be heard
• Explaining advocacy

Introduction to children's advocacy

What is advocacy?

Advocacy is about supporting a child to express their own needs and views and to make informed decisions on matters which influence their lives. Advocates do not make choices for children – instead, they support children and young people to make their own choices.

Advocacy will most often be required where a child is engaging with a service, such as health, education, police, social work etc.

Who can advocate for a child or young person?

Anyone can act as an advocate for a child or young person. However, they should only take on the role if they properly understand what advocacy does and does not involve.

For most children, parents take on the role of advocate. For others, a friend will support them in this way. Teachers, social workers, youth workers and professional advocates can also provide this support for children and young people.

In some instances, children are entitled to independent advocacy support. This is described in more detail in the section Understanding advocacy.

Why is children's advocacy important?

Every child in Scotland has certain rights. Those rights are recognised internationally through the United Nations Convention on the Rights of the Child (UNCRC).

Article 12 of the UNCRC makes very clear that every child has the right to say what they think in all matters affecting them, and to have their views taken seriously. Advocacy helps to make that right a reality for those children and young people who, for whatever reason, would not otherwise be able or allowed to share their views about something.

Advocates can provide children and young people with the knowledge, confidence and support that they need to influence the decisions which affect their lives.

A number of steps have been taken to recognise the importance of children's voices being heard in Scotland – read more about them in the section Right to be heard.

Taking account of children's rights

It is crucial that advocates have a strong understanding of children's rights. This will allow them to both inform the child about those rights and to support children in taking decisions about how they want to exercise their rights.

The rights of all individuals up to the age of 18 are set out in the United Nations Convention on the Rights of the Child (UNCRC). It is an international agreement consisting of 42 articles detailing the human rights of children. It aims to support children in all areas of their lives.

The UNCRC reflects the fact that children require additional rights due to their age and circumstances. These rights fall into four broad categories:

• Survival
• Development
• Protection
• Participation

All of the rights are underpinned by four general principles:

• that all the rights guaranteed by the UNCRC must be available to all children without discrimination of any kind (Article 2)
• that the best interests of the child must be a primary consideration in all actions concerning children (Article 3)
• that every child has the right to life, survival and development (Article 6)
• that the child's view must be considered and taken into account in all matters affecting him or her (Article 12)

Advocacy plays an important role in promoting all four of these principles and is central to the realisation of Article 12 for many children.

Finally, it is important to remember that, as children grow, their rights will be best met in different ways and decisions about how to support them will need to reflect this fact. A decision which supports the realisation of a five-year-old child's rights may not have the same positive impact on a 15-year-old. Children's 'evolving capacity' should always be kept in mind.

Taking account of parental rights and responsibilities

When working with children, it is important to recognise and understand the rights and responsibilities of their parents. These rights are designed to complement children's rights and should be balanced in a way which delivers the best possible outcomes for all those involved. Parents have the responsibility to look after their children, ensuring that they are given healthcare when required, and encouraging their growth, development and welfare. Indeed, it is a child's right to receive this support from their parents.

Parents also have the responsibility to ensure their children are given suitable education. Except in specific circumstances, they have the right to have their children live with them or the right to decide where their children should live. They have the responsibility and the right to decide how their children should be brought up, and be in charge of actions and behaviour until the child is 16.

If they are not living with their children they have both the responsibility and the right to stay in touch with and be involved with the lives of their children unless otherwise directed by legal authorities in certain circumstances.

Finally, they have both the responsibility and the right to act as a legal representative for their child. In some circumstances, there may be a conflict between the child and their parent(s). It is important to recognise when such conflicts arise and for separate representation to be found for the child and the parent(s).

When decisions are being made that will affect children, parents should seek the child's views on these changes and ensure that they are involved in decision making processes, effectively acting as their child's advocate.

Advocates should be mindful that parents themselves may have a need for advocacy support in order to express their wishes in relation to decisions affecting their children.

What does good children's advocacy look like?

High quality children's advocacy should always have the same key features, no matter who provides the support.

Advocacy puts the children who use it first

Advocates must:

• be aware of the rights of children and young people
• act on the issues agreed with a child or young person and not be influenced by others
• not let their personal opinions influence the child or young person's choices
• be aware of their own prejudices
• help the child or young person to access the information they need
• be clear that information about the child will not be shared without the agreement of the child or young person, except in very specific circumstances
• understand the different laws that apply to what they do
• not do anything the child or young person does not want them to do, except where the law requires it

Advocates must understand their role and responsibilities

Advocates must:

• be aware of and act within the law at all times
• be aware that they might have to break the child or young person's confidentiality, if the law requires it
• know how to respond where they are concerned about a risk to the child's wellbeing

Advocacy is as free as it can be from conflicts of interest

Advocates must act only as an advocate and should not represent the views or wishes of any other person

Advocacy is accessible

Advocates must:

• promote the importance of children's voices being heard
• highlight the role of advocates in making this a reality

Being an advocate... and only an advocate

Irrespective of who is providing advocacy to a child, it is crucial that everyone is clear about the boundaries of the role.

An advocate must never promote or support any other individual or organisation's needs or wishes (including their own) when they are advocating for a child. To do so would result in a conflict of interest.

If an advocate feels unable to support the child because of the above, someone else should be asked to provide advocacy support.

Supporting a child to understand and agree to advocacy

It is important that a child fully trusts the individual who is advocating on their behalf. If that trust does not exist, then it is unlikely that a child will be confident about sharing their views.

In order for that trust to be developed it is crucial that the child or young person understands what the advocate's job is and agrees to an individual acting as their advocate. The child must always have a choice in the matter and must be supported to understand who is best placed to support them, whether that be a friend, parent, teacher, youth worker or professional advocate.

There are circumstances where certain guarantees exist around the provision of advocacy for children. The Mental Health (Care & Treatment) (Scotland) Act 2003 identifies that every person with a mental disorder has a right to independent advocacy. The term 'mental disorder' includes any person with a mental illness, a personality disorder or a learning disability. People with dementia and acquired brain injury are also covered by the Act. People do not have to have a medical diagnosis to access independent advocacy.

Further information: Independent advocacy: a guide for commissioners

The Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) placed a legal duty on the Scottish Ministers to provide an advocacy service on request and free of charge to families and young people who make a reference to the Additional Support Needs Tribunal against an education authority's decisions regarding the provision of educational support.

Dr Alasdair Allan, Minister for Learning, Science and Scotland's Languages appointed Let's Talk ASN, a partnership of Govan Law Centre and Kindred Advocacy, to provide this service from 1 April 2014.

Confidentiality and information sharing

"Information that is considered confidential is usually of some sensitivity; is neither lawfully in the public domain nor readily available from another public source; and is shared in a relationship, where the person giving the information understood that it would not be shared with others." Perth & Kinross CPC – Practitioner's Guide to Information Sharing, Confidentiality and Consent in Child Protection

Information given by a child or young person to an advocate would normally be considered confidential. Confidential information should not normally be shared, except in limited circumstances where:

• the law requires information to be shared
• there is a public duty to share information
• the young person consents to the information being shared

It follows that, as a general rule, advocates should not share any information given by a child without their knowledge and consent. There are however some exceptions.

Where an advocate is concerned that a child is at immediate risk of significant harm, they should follow the advice set out in the National Guidance for Child Protection in Scotland.

Where the advocate has a concern which is less serious, they will wish to consider whether information should be shared with the child's Named Person (usually the child's health visitor, for pre-school children, or their head teacher).

Information and advice about how and when to share such concerns.

Supporting a child to express their views: practical advice

Advocates might find the following practical advice helpful when supporting children:

Supporting a child to understand and agree to advocacy

An example of a tool that can be used to help inform a child about advocacy, and demonstrate that the child has understood and agrees to advocacy, is available to download on this page as a pdf.

Engaging with children

There are a number of key rules which should always be remembered when an advocacy worker is engaging with a child or young person:

• the advocate must have a good understanding of the child's rights
• the child should always be supported to understand their rights
• the child should always be supported to understand the importance of their voice being heard
• children should be given the choice to participate in decisions (this can mean children choosing not to be involved)
• children should be involved as early as possible when decisions are being taken
• advocates must always be honest about what difference a child's view will make, and be clear about what is possible
• children should be encouraged to ask questions and supported to get the information they need
• children need to feel that they are being taken seriously and that their views are being listened to
• children should be supported to understand how their views are being taken into account when decisions are being made
• if a child needs extra help to engage in a matter, they should get that help
• never assume that a child understands what is being said to them – always check
• as part of their work, advocates should consider using activities which are fun and creative and which suit the child's ability
• advocates must view the child as an individual, thinking about their age, ethnicity, ability, language, culture, religion, where they live and anything else that is important

Any advocacy should be led by the child, allowing them to take part in decisions in the way that is right for them.

Children's capacity to make decisions

Legal capacity is mainly governed by the Age of Legal Capacity (Scotland) Act 1991. At 16, a young person has full legal capacity. Under 16, capacity depends on the circumstances, and on the relative maturity of the child. In general, a child under 16 has legal capacity to enter into a transaction 'of a kind commonly entered into by persons of his age and circumstances', provided the terms of the transaction are 'not unreasonable'. The following special provisions apply:

• a child of 12 has capacity to make a will
• a child of 12 has capacity to consent to his or her own adoption
• a child under 16 has capacity to consent to 'any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment'. There is no presumption of maturity at age 12
• a child under 16 has capacity to instruct a solicitor in a civil matter, where the child has 'a general understanding of what it means to do so'. There is a presumption of sufficient age and maturity at age 12

Capacity to access records is set out in the Data Protection Act 1998. The 'data subject' (i.e. the person about whom records, whether manual or electronic, are held) has the right to consent to, or refuse, access to his or her records. In Scotland, children under the age of 16 who are deemed to have the necessary capacity have that same right of consent or refusal. Children of 12 and over are presumed to be sufficiently old and mature to have a general understanding of what it means to exercise that right, therefore they have the required capacity.

If a child is deemed to have capacity, it is for them to make a request for access to records (or to consent to a parental request). The 'data controller' or person holding the record should reply to the child in that case.

In considering whether a child under 16 has capacity to instruct advocacy, it will be relevant to consider whether instructing advocacy would be something a child of that particular age and circumstances would commonly be expected to do. The capacity of the child will depend on an assessment by the advocate of factors such as age, developmental stage, maturity and understanding.

The existence of a duty of confidentiality, however, does not depend on a child's capacity. If a child has the necessary capacity, the duty is owed to the child. If a child does not have capacity, the duty still exists, and is owed to the child and to the child's legal representative, that is, someone with the parental right to act as the child's legal representative.

Supporting children who are concerned about the consequences of speaking up

There may be issues that a child raises with their advocate which they say they do not wish to be shared more widely. If this does happen, advocates must consider whether the child is at risk. If they are, then steps should be taken to share their concerns in line with the relevant guidance.

Supporting disabled children

Disabled children and young people may have a range of complex needs which include communication support and support for cognitive ability and capacity to understand. Advocates may need specialist training to enable them to work with children with particular needs (for example, children with autism, a learning disability or a mental health need).

Advocacy has an important role to play in supporting disabled children and young people to express their views. Disabled young people can struggle to develop friendships and wider social networks independent of parents and paid carers (though parents frequently strive to facilitate this process), so it is particularly important that advocacy identifies and faithfully articulates their views. It may be particularly important that their views are distinguished from those of parents and carers, who may have taken most decisions on behalf of the child in the past. Genuinely listening to young people and including their voice in decision-making should help achieve this. Disabled young people may need support to raise issues about access to a wide range of services including leisure and social activities (such as respite care and short breaks) and when moving from primary to high school and making the transition to young adults' services.

Supporting groups of children

This is known as collective advocacy. Collective advocacy can occur when a group of people who are all facing a common problem come together to support each other. The individual members of the group may support each other over specific issues. The group as a whole may campaign on an issue that affects them all. If you are supporting a group of children involved in collective advocacy, the same rules generally apply as if you are supporting a single child. All of the children being supported must understand your role and agree to your involvement.

Systems for supporting children

Getting it right for every child

Getting it right for every child (GIRFEC) is the national approach to improving the wellbeing of children and young people. Through policy and the delivery of services at both national and local level, the GIRFEC approach:

• puts the best interests of the child at the heart of decision making
• takes a holistic approach to the wellbeing of a child
• works with children, young people and their families on ways to improve wellbeing
• advocates preventative work and early intervention to support children, young people and their families
• believes professionals must work together in the best interests of the child

The Children and Young People (Scotland) Act 2014 is rooted in the GIRFEC approach, and puts a number of key initiatives into statute, including the Named Person and the single Child's Plan. Other Scottish Government initiatives underpinned by GIRFEC principles include the Children's Hearings System, the Early Years Collaborative, Early and Effective Intervention / Whole Systems, and the Family Nurse Partnership.

Read more about the GIRFEC approach.

Additional Support Needs Tribunal

The Additional Support Needs Tribunals for Scotland (ASNTS) was established in November 2005 by the Education (Additional Support for Learning) (Scotland) Act 2004, which made provision for the establishment of the Tribunals to hear appeals (references) made by parents and young people against decisions of education authorities regarding the provision of additional support.

Broadly the matters which can be appealed are:

• decisions the education authority has made about a child or young person's co-ordinated support plan (CSP)
• failure to provide the additional support contained in a CSP
• placing request refusals
• failures to carry out their planning duties before young people leave school

Further information on the Additional Support Needs Tribunal.

Children's Hearings System

The Children's Hearings System is Scotland's unique, integrated approach to child care and justice for children and young people under 16, and in some cases under 18, who are in need of care and protection or have committed offences.

In keeping with the vision and philosophy of the Kilbrandon Report of 1964, a children's hearing is a lay tribunal of three panel members. The hearing must seek, listen to and take account of the views of children, young people and other specified 'relevant persons', as defined in the Children's Hearings (Scotland) Act 2011. Ultimately, having considered the available information and views, the hearing must make its decision in the best interests of the child or young person. In particular, the hearing must decide if compulsory measures of supervision are needed for the child.

Children attending Hearings may require the support of an advocate to help them to understand the process and to express their views.

More information on the Children's Hearings System:

• Children's Hearings Scotland
• Scottish Children's Reporter Administration

Making sure children and young people are heard

The need for high quality advocacy for children and young people is being increasingly recognised across Scotland. At a national level, the Government's approach to supporting children and young people – Getting it right for every child (GIRFEC) – emphasises the importance of children being placed at the centre of services and being listened to when decisions are being taken which affect them. If this is to work effectively, then it is crucial that children, young people and families are supported to understand what help is possible and what their choices may be.

Our partners at Clan Childlaw have helpfully put together a list of domestic laws which promote and protect a child's right to be heard:

Children (Scotland) Act 1995

Major decisions by parents

A parent must have regard to the views of the child concerned. A child is presumed to be of sufficient age and maturity at age 12.

Court orders

In considering an application relating to parental responsibilities, parental rights, guardianship or administration of child's property, a court must:

• give a child the opportunity to indicate whether he or she wishes to express a view
• give a child who wishes to express a view the opportunity to do so
• have regard to the child's views

A child is presumed to be of sufficient age and maturity at age 12.

How can views be expressed? The child may:

• speak directly to the Sheriff
• complete a court form
• give their views to a Curator ad litem or Court Reporter
• be legally represented

Looked after child

Before making any decision in relation to a looked after child, a local authority must ascertain (so far as reasonably practicable) and have regard to the views of the child concerned, taking account of their age and maturity.

Standards in Scotland's Schools etc Act 2000

Education authority

An education authority must have due regard to the views (if there is a wish to express them) of the child in decisions that significantly affect that child, taking account of the child's age and maturity. (section 2)

Mental Health (Care & Treatment) (Scotland) Act 2003

Mental disorder

Every person with a mental disorder has a right of access to independent advocacy. (section 259)

Education (Additional Support for Learning) (Scotland) Act 2004 (as amended)

Additional Support Needs

Scottish Ministers must provide a free advocacy service to conduct discussions with or make representations to the Additional Support Needs Tribunal or any other person involved in the proceedings on behalf of a child's parent, or a young person. (section 14A)

Vulnerable Witnesses (Scotland) Act 2004

Giving evidence in court

In court proceedings, any person calling a child witness must take into account the views of the child. Similarly, when determining whether special measures are necessary, a court must take into account the views of the child in question. A child is presumed to be of sufficient age and maturity at age 12 and any views expressed by the child should be given greater weight than the views of their parent. (sections 1 and 15)

Adoption and Children (Scotland) Act 2007

Adoption and permanence proceedings

The court (and adoption agency if applicable) must have regard to the child's views. A child is presumed to be of sufficient age and maturity at age 12. (sections 4 and 84)

How can views be expressed? A child may speak directly to the Sheriff; give their views to a Curator ad litem or Reporting Officer; or be legally represented. An adoption order may not be made in respect of a child who is aged 12 or over unless the child consents. (section 32)

Children's Hearings (Scotland) Act 2011

Children's hearings proceedings

Children's hearings, including pre-hearing panels, and the sheriff must, so far as is practical and taking account of the age and maturity of the child:

• give a child the opportunity to indicate whether he or she wishes to express a view
• give a child who wishes to express a view the opportunity to do so
• have regard to the child's views

A child is presumed to be of sufficient age and maturity at age 12. (section 27)

How can views be expressed?
A child may:

• speak directly at the Children's Hearing
• complete an 'All about me' form
• communicate views to a hearing by telephone, video link or other means of communication in limited circumstances
• share their views with a Safeguarder or other report writer

Patient Rights (Scotland) Act 2011

Patients using health services

The Act aims to improve patients' experiences of using health services and to support people to become more involved in their health and healthcare. Individuals have a right to give feedback, comments, concerns and complaints about the healthcare they have received. The Act requires that Health Boards encourage, monitor and learn from the feedback and complaints they receive.

Social Care (Self-directed Support) (Scotland) Act 2013

Social care assessment

Under the Act, children and families are empowered to make a choice as part of their social care assessment, with various options offered for the provision of support. Taking account of the child's maturity, the child must:

• be given an opportunity to indicate whether he/she wishes to express a view
• if so, be given the opportunity to express a view

Regard must be had to any view expressed by the child. The statutory body must 'give effect' to the child or family's choice. (sections 8 and 11)

Children & Young People (Scotland) Act 2014

Information sharing

When considering whether to provide information concerning the child's wellbeing to or by the Named Person, the information holder should ascertain and have regard to the views of the child or young person, taking account of the child's age and maturity. (section 26)

Child's plan

The authority preparing a child's plan is so far as reasonably practicable to ascertain and have regard to the views of the child, taking account of the child's age and maturity. (section 35)

Explaining advocacy

An example of a tool for explaining advocacy to children and young people:

As your advocate, I will:

• come and speak with you about your issue
• help you to get the information you need
• support you to think about who is best placed to help you share your views. You might have a right to independent advocacy or there may be particular circumstances which mean someone else is better placed to support you
• help you to express your views on a matter
• help you to understand any decisions which may impact on you and will explain why those decisions were taken.

Everything we discuss will be confidential, unless we think that you are in a dangerous or life threatening situation, or are likely to be a serious danger to others, or the law tells us to pass on information, in which case we may have to tell someone who will look after you. (I have more information explaining this, if you would like).

For completion by the parent/child (subject to maturity)

I understand how you, as an advocate, will support me and I agree to you helping me in this way.

Signed:

Date:

Parent or child (depending on maturity)