Consent, in varying forms, is a major casework issue for us. We have to make sure children consent to us working with them, otherwise they are unlikely to participate fully. We have to make sure that vulnerable parents, such as those with learning disabilities, have freely consented to a local authority taking various steps in relation to their children. This includes where there are proposals for voluntary care arrangements and even adoption. Consent means a full understanding of what is involved, with extra support going in if there are capacity issues. We have to be aware that sometimes consent is coercive control in disguise. An agreed court order should be proofed against that risk. Finally, a children’s rights perspective means probing whether decisions or proposals by local authorities or by parents have the consent of the child or children concerned. By consent, I mean that their emotional and developmental needs will be met in the longer-term by what is being proposed on their behalf, especially in terms of attachments and relationships.
The concept of freely given and informed consent is an important concept of our time, like transparency. Gone are the days of backdoor, behind the scene deals – or at least they should be gone. And these days, people are far less likely just to go along with an arrangement because someone says they should.
Every time you let someone into your house or your life, or into your personal space, you are consenting to that. For a child, agreeing to live with one or other parent is an important consideration for professionals when determining what is best for them. But we must be mindful that some children apparently ‘consent’ under emotional pressure and out of fear of losing a loved one if they refuse. This should always be re-framed as coercive control – and called for what it is, emotional abuse and manipulation.
It is important to weigh up the various consent issues in a case. Professionals and courts need to be satisfied that what we are proposing meets with sufficient consent from the people whose consent can reasonably be expected. This is in order to be procedurally fair.
This can be professionally challenging. For example, helping a parent to let their child go, when it is clear this needs to happen for the child to grow up safely, has to be handled carefully. This is so as not to apply undue pressure and so that the evidence base for a proposal to relinquish in the child’s best interests is made clear to all concerned. Enough time has to be given to the process. Often a parent needs independent legal advice as a protection and to ensure the accepted principles of justice and fairness under the UK rule of law are followed.
In terms of our casework, practitioners should ask themselves towards the end of each case, have all the necessary consents been obtained from everyone who should be asked to consent? This is why it is important, wherever possible, to resolve disputes and to sort out matters of detail by the end of the case. Care plans, or indeed any ordered contact arrangements in private law cases, which are resisted by one or more participants to the process are likely to flounder. This does not mean that consent can always be obtained. It does mean that applications to court to dispense with consent should be kept to the unavoidable minimum.