Rights are entitlements, freedoms and protections which are defined and protected by law. England’s current legal framework does not guarantee access to independent advocacy to every child or young person who may need it. While some groups of children have their right to access advocacy explicitly set out in law, others cannot count on the same level of legal protection.
Legal entitlement to advocacy for different groups of children and young people is found across different sources, from primary to secondary legislation, international law and statutory guidance. Below we set out the rights (in law and statutory guidance) of children and young people in England to access help from an independent advocate in a variety of situations.
Article 12, United Nations Convention on the Rights of the Child (1989)
Article 12 grants all children (up to age 18) the right to express their views freely in all matters affecting them and to have these views given due weight in accordance with their age and maturity. In particular, children must be given the opportunity to express their views in any judicial and administrative proceedings* that affect them, either directly or with the help of a representative.
*The Committee on the Rights of the Child explains that meaning and scope of any judicial and administrative proceedings as follows:
- The right to be heard applies to proceedings which are initiated by the child and those started by others.
- The right to be heard applies to “all relevant judicial proceedings affecting the child, without limitation”, including care and protection, criminal justice, health and social care, housing and immigration.
- Where this right is breached, children must be able to complain or appeal against relevant decisions without the risk of punishment for doing so.
The Committee further stresses that:
- Where the environment is “intimidating, hostile, insensitive or inappropriate” for the child’s age, the child cannot be heard effectively.
- Processes for eliciting children’s views must be accessible, age-appropriate and supported by appropriately trained staff.
- Children should be supported to engage in self-advocacy.
Articles 6 and 8, European Convention on Human Rights / Human Rights Act 1998
All children and young people (and adults) have the right to participate in proceedings and decision-making which impacts on them personally.
Children’s Commissioner for England (Section 2 Children Act 2004)
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.
Children in receipt of health services who wish to make a complaint
Section 223A, Local Government and Public Involvement in Health Act 2007
Section 223A places 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 independent advocacy set out in the Local Government and Public Involvement in Health Act 2007 extends to complaints and health services made to the Parliamentary and Health Service Ombudsman.
Children and young people in receipt of social care services who wish to make a representation (including a complaint)
Section 26A, Children Act 1989
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 about any of the following:
- Part III of the Children Act 1989 – which relates to 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.
- Some aspects of special guardianship orders and adoption support.
It’s important to keep in mind that statutory guidance – Getting the best from complaints: Social care complaints and representations for children, young people and others (2006) – 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.
The same statutory guidance sets out the role of advocates, as below:
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
Special educational needs and disability code of practice: 0 to 25 years Statutory guidance for organisations which work with and support children and young people who have special educational needs or disabilities (2015)
Special educational needs and disability code of practice contains a number of provisions regarding advocacy:
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. (Paragraph 1.10)
In relation to children with Education, Health and Care Plans, the Code states:
Local authorities must ensure that the EHC plan review […] includes a focus on preparing for adulthood. […] 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. (Paragraph 8.9)
In relation to older young people, the Code states:
Some young people will need support from an independent skilled supporter to ensure that their views are acknowledged and valued. They may need support in expressing views about their education, the future they want in adult life, and how they prepare for it, including their health, where they live, their relationships, control of their finances, how they will participate in the community and how they will achieve greater autonomy and independence. Local authorities should ensure young people who need it have access to this support. (Paragraph 8.18)
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. (Paragraph 2.15)
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. (Paragraph 11.11)
In relation to mediation, the Code states:
Young people with learning difficulties, in particular, may need advocacy support when taking part in mediation. (Paragraph 11.38)
The Code of Practice also reminds that local authorities must provide independent advocacy for young people undergoing transition assessments where the conditions set out in Section 67 of the Care Act 2014 are met (see next section of this guide).
Article 7, the United Nations Convention on the Rights of Persons with Disabilities (2006)
Article 7 of the Convention relates specifically to the rights of disabled children. Mirroring Article 12 of the UNCRC (which applies to all children up to the age of 18), Article 7 guarantees the right of disabled children to express their views freely on all matters affecting them and to have these views given due weight in accordance with their age and maturity, on an equal basis with other children, and to have help to enjoy this right.
All looked after children and young people
Regulation 45, The Care Planning, Placement and Case Review (England) Regulations 2010
Regulation 45 says that 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.
See also section above, ‘Children and young people in receipt of social care services who wish to make a representation (including a complaint)’
Children and young people in contact with child protection services
Working together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children (2018)
Where there are concerns that a child or young person has suffered significant harm, or is likely to suffer significant harm, 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.” (Page 45)
It is also important to keep in mind that Section 47(5A) of the Children Act 1989 places a duty on local authorities to ascertain and give due consideration to the child’s wishes and feelings while undertaking Section 47 (Children Act 1989) enquiries.
Where a child may need continuing care and support in adulthood
Section 67 Care Act 2014
Local authorities must arrange an independent advocate to represent and support a child to help them understand information and/or express their views, wishes and feelings. This duty applies to supporting a child who:
- Is the subject of a (transition*) needs assessment (when they don’t have anyone else independent and appropriate to assist them); or
- Is the subject of a young carer’s assessment (when they don’t have anyone else independent and appropriate to assist them).
*‘Transition’ refers to moving from children to adult care and support services.
Children and young people living in children’s homes
Regulation 7, The Children’s Homes (England) Regulations 2015
The registered person of every children’s home must ensure each child is given appropriate advocacy support. (Regulation 7(2)(b)(iii))
Soon after the child’s arrival at the home, the registered person must ensure an explanation has been given to them about:
- 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.
Looked after children and young people who go missing
Statutory guidance on children who run away or go missing from home or care (2014)
Statutory guidance requires that an independent return interview should be offered when a missing looked after child is found and the person conducting the interview should be independent of the responsible local authority and the place where the child currently lives. As part of this process, the child should be offered the option of speaking to an independent representative or advocate. (Paragraph 69)
Additionally, the guidance requires local authorities to agree a protocol (together with the police and other partners) for responding to children who run away or go missing in their area, including additional arrangements relating to looked after children. As part of these additional arrangements, the protocol should include the details of any agencies providing independent advocacy services to looked after children. (Paragraph 20)
16 and 17 year-olds who are homeless or threatened with homelessness
Prevention of homeless and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation (2018)
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
Section 130B gives independent mental health advocates a range of powers. Independent mental health advocates have the legal rights to:
- Visit and interview a child or young person in private;
- Visit and interview any person who is professionally concerned with the child’s medical treatment; and
- Obtain and inspect hospital and social services records relating to the child.
16 and 17 year-olds who lack mental capacity
Section 35, Mental Capacity Act 2005
Section 35 places a duty on local authorities to make independent mental capacity advocates available to represent and support any person (including children aged 16 and 17) in connection with decisions made under the Act. This includes decisions about care, treatment and provision of accommodation.
Children and young people in custody
Rule 44, The Secure Training Centre Rules 1998
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 (YOIs) and secure training centres (STCs). 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.