Below we set out the rights of children and young people to access help from an independent advocate in a variety of situations.
- All children;
- Children in receipt of health services who wish to make a complaint;
- Children and young people in receipt of social care services who wish to make a representation (including a complaint);
- Children with special educational needs and disabilities;
- Child protection;
- Where a child may need continuing care and support in adulthood;
- Children and young people living in children’s homes;
- Looked after children and young people who go missing;
- 16 and 17 year-olds who are homeless or threatened with homelessness;
- Children and young people in England who are detained under the Mental Health Act or are being considered for Electro Convulsive Therapy;
- 16 and 17 year-olds who lack mental capacity;
- Children and young people in custody.
All children (up to age 18) have the right to express their views freely and to have these views given due weight in accordance with their age and maturity. Children further have the right to help from a representative to protect their right to be heard.
Article 12, United Nations Convention on the Rights of the Child
All children and young people (and adults) have the right to participate in proceedings and decision-making which impacts on them personally.
Articles 6 and 8, European Convention on Human Rights / Human Rights Act 1998
The Children’s Commissioner for England, in discharging her primary function of promoting and protecting the rights of children, must promote awareness of the views of children. She is empowered by law to investigate the availability and effectiveness of advocacy services for children.
Section 2 Children Act 2004
Independent reviewing officers (IRO) must ensure looked after children have been informed of their right to bring proceedings under the Children Act 1989 (e.g. in relation to placements, contact with parents and siblings or discharge of a care order) and their right to make a representation (including a complaint) and access advocacy services. When a looked after child wishes to bring proceedings under the Children Act 1989, the IRO must support the child to obtain legal advice, or identify another appropriate adult to support the child.
Regulation 45, The Care Planning, Placement and Case Review (England) Regulations 2010
Children in receipt of health services who wish to make a complaint
The right to independent advocacy in health was first established in 2006.
In 2012, the law was amended to place a duty on local authorities to ensure there are independent advocacy services in their area for children and young people (and adults) who wish to make a health complaint – whether this is about the NHS or an independent provider. This right to advocacy extends to complaints to the Parliamentary and Health Service Ombudsman
Section 223A Local Government and Public Involvement in Health Act 2007; The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009
Children and young people in receipt of social care services who wish to make a representation (including a complaint)
Local authorities must make arrangements for advocacy provision for children, care leavers up to age 25 and those who were looked after before they became the subject of a special guardianship order. This advocacy duty relates to representations to the local authority concerning the following:
- Part III of the Children Act 1989 – all support for children and families. This includes all aspects of decision-making and services for children in care and care leavers up to age 25.
- Aspects of Part IV and V of the Children Act 1989 – relating to care and supervision orders, parental contact with children in care, child assessment orders and emergency protection orders.
- Aspects of special guardianship orders and adoption support are also included.
Section 26A Children Act 1989
Statutory guidance provides a wide definition of representations:
“Representations may not always be complaints; they might also be positive remarks or ideas that require a response from the local authority. Enquiries or comments about the availability, delivery or nature of a service which are not criticisms are likely to constitute representations, for example, children and young people should be able to put forward ideas or proposals about the service they receive, or the establishment they live in, without having this framed as a complaint.”
It also sets out the role of the advocate:
“The role of the advocate in the complaints procedure is:
- to empower the child or young person by enabling him to express his views wishes or feelings, or by speaking on his behalf;
- to seek the resolution of any problems or concerns identified by the child or young person by working in partnership with child or young person and only with his agreement;
- to support the child or young person pursuing a complaint through every stage of the complaints procedure and to provide him with information about his rights and options, helping him clarify the complaint and the outcomes he is seeking; and
- to speak for or represent the child or young person at any stage of the complaints process, including at the informal stage or at any formal hearing or interviews.”
Children with special educational needs and disabilities
The statutory Special Educational Needs and Disability Code of Practice states that:
“Local authorities should consider whether some young people may require support in expressing their views, including whether they may need support from an advocate (who could be a family member or a professional). Local authorities must not use the views of parents as a proxy for young people’s views. Young people will have their own perspective and local authorities should have arrangements in place to engage with them directly.”
In relation to the local authority’s duty to provide children information, advice and support relating to their special educational needs or disability, the Code states:
“Young people must have confidence that they are receiving confidential and impartial information, advice and support. Staff working directly with young people should be trained to support them and work in partnership with them, enabling them to participate fully in decisions about the outcomes they wish to achieve. Young people may be finding their voice for the first time, and may need support in exercising choice and control over the support they receive (including support and advice to take up and manage Personal Budgets). Advocacy should be provided where necessary.“
In relation to children with Education, Health and Care Plans, the Code states:
“Local authorities must ensure that the EHC plan review at Year 9, and every review thereafter, includes a focus on preparing for adulthood. It can be helpful for EHC plan reviews before Year 9 to have this focus too. Planning must be centred around the individual and explore the child or young person’s aspirations and abilities, what they want to be able to do when they leave post-16 education or training and the support they need to achieve their ambition. Local authorities should ensure that children and young people have the support they need (for example, advocates) to participate fully in this planning and make decisions.“
In relation to disagreement resolution services, the Code states local authorities should:
“establish protocols and mechanisms for referring parents and young people to disagreement resolution and, where necessary, provide advocacy support to help them take part“
In relation to effective mediation, the Code states:
“Young people with learning difficulties, in particular, may need advocacy support when taking part in mediation“
Where a child is judged to have suffered significant harm, or is likely to suffer significant harm, statutory guidance states social workers should:
“help prepare the child if they are attending [a child protection conference] or making representations through a third party to the conference. Give information about advocacy agencies and explain that the family may bring an advocate, friend or supporter.”
Where a child may need continuing care and support in adulthood
Local authorities must arrange an independent advocate for a child who:
- Is the subject of a (transition) needs assessment (when they don’t have anyone else independent and appropriate to assist them).
- Is the subject of a young carer’s assessment (when they don’t have anyone else independent and appropriate to assist them).
Section 67 Care Act 2014
Children and young people living in children’s homes
The registered person of every children’s home must ensure each child is given appropriate advocacy support. Soon after the child’s arrival at the home, the registered person must ensure an explanation has been given to him or her as to what advocacy support or services are available; how the child may access that support or those services; and any entitlement the child may have to independent advocacy provision.
Regulation 7 The Children’s Homes (England) Regulations 2015
Looked after children and young people who go missing
The law states that local authorities must with local partners make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children. As part of this, Department for Education statutory guidance states an independent representative or advocate should be offered to a missing looked after children once found.
Section 11 Children Act 2004; Department for Education (2014) Statutory guidance on children who run away or go missing from home or care
16 and 17 year-olds who are homeless or threatened with homelessness
Statutory guidance states that local authorities should ensure access to independent advocacy:
“Young people should have access to independent advocacy and support to assist them in weighing up the advantages and disadvantages [of being looked after by the local authority or provided accommodation under housing law] and coming to a balanced decision and understanding and navigating the housing system. Independent advocacy and support services can play a key role in supporting 16 and 17 year olds who are homeless or threatened with homelessness.“
Children and young people in England who are detained under the Mental Health Act or are being considered for Electro Convulsive Therapy
Local authorities must make arrangements for the provision of independent mental health advocates.
This is the only legislation to give powers to advocates. The independent advocate has the legal right to:
- Interview a child or young person in private;
- Interview any person who is professionally concerned with the child’s medical treatment; and
- Obtain hospital and social services records relating to the child.
Section 130A Mental Health Act 1983; The Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008
16 and 17 year-olds who lack mental capacity
Local authority must make arrangements for provision of independent mental capacity advocates.
Section 35 Mental Capacity Act 2005; and The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006
Children and young people in custody
There is no statutory duty to ensure children and young people in custody have access to independent advocates. However, the Youth Justice Board and the Ministry of Justice have interpreted the Secretary of State’s power to appoint ‘independent persons’ to visit secure training centres and receive representations as a duty to provide advocacy (Rule 44 The Secure Training Centre Rules 1998).
Children’s charity Barnardo’s was awarded the latest national contract – for the period 2019-2023 – to provide advocacy to children in young offender institutions and secure training centres. The Ministry of Justice set out the following five goals in its contract announcement:
- Children and young people in STCs and YOIs are able to identify and freely access independent children’s rights and advocacy services;
- Children and young people in STCs and YOIs are provided with the skills to enable them to advocate for themselves and are supported at every opportunity to do so;
- Children and young people in STCs and YOIs, who have complex needs and are unable or not wishing represent themselves, are supported;
- The voice of children and young people in STCs and YOIs is heard in particular at key periods where the service provider has been made aware of those who are vulnerable and in crisis, through access to proactive children’s rights and advocacy services; and
- Raising awareness of the issues facing Children and Young People in custody in order to promote resolution and prevention at a local and systemic level.
Her Majesty’s Inspectorate of Prisons publishes its expectations of child prisons (young offender institutions and secure training centres), which is the framework for inspecting these institutions. The document includes many expectations around advocacy (extracts below):
- Children who allege abuse or mistreatment are offered the assistance of an independent advocate;
- Children or parents who allege harm are given a written response which sets out the action that has been, or will be, taken. Children are consistently reminded of their right to assistance from an independent advocate;
- Children understand why they are being strip-searched and the process for doing so. They are offered assistance from an independent advocate to record any questions or concerns they have about why they were strip-searched, or how it was carried out;
- Disciplinary proceedings are conducted in age-appropriate surroundings in a clear and fair manner, and the child is able to meaningfully participate. The child is supported by an independent advocate and/or their legal representative;
- Children are told they can receive support from an advocate and/or legal representative in sufficient time before disciplinary procedures begin, and this is recorded. If requested, proceedings do not begin without an advocate or legal representative present;
- When a child has been restrained, they are offered the opportunity to speak to an advocate or make a complaint about the incident without fear of repercussions;
- When children are temporarily separated from others, parents/carers and relevant professionals, including social workers, youth offending team (YOT) workers and advocates, are engaged where appropriate;
- Information about complaints, including how to access the Independent Monitoring Board (IMB), the Prisons and Probation Ombudsman (PPO) and advocates, is reinforced through notices and posters displayed prominently across the establishment in a range of formats and languages;
- In relation to prison health services, patients are kept safe, are safeguarded from abuse and have access to independent advocacy services if required.
Our Children and Young People’s Advocates Network seeks to uphold the legal and human rights of children and young people in England through promoting and supporting excellent advocacy.
If you are an independent advocate working with children and young people in England, we’d love you to join us.
- Help the Network grow into a thriving advocates’ community with peer support and advice;
- Keep up-to-date with national developments in law, policy and practice and share ideas and solutions to advocacy challenges;
- Hear about and have the opportunity to be part of Article 39’s children’s rights campaigns;
- Help Article 39 develop great training courses, connect advocates with specialist lawyers and raise awareness of the unique value of independent advocacy.