Therapy with Children

Children′s Rights, Confidentiality and the Law

Debbie Daniels, Peter Jenkins

• Publisher: SAGE Publications Ltd
• Year: 2010
• ISBN:
  9781446246344
• Edition: 2
• Topic: Psicologia
• Subtopic: Psicoterapia

Therapy with Children is a vital resource for any practitioner navigating the legal minefield of working with children and young people. Prioritising the needs of the child as the client, the authors explore the legal and professional dimensions of working therapeutically with children.

This long-awaited second edition responds to significant shifts in policy and the revised text additionally addresses:

- the importance of confidentiality in establishing a working alliance and maintaining a secure environment for therapy with children

- the conflicting pressures faced by therapists concerning issues of parental involvement and children at risk

- changes in light of the Children Act 2004, Mental Health Act 2007, and the Axon case

- changes in the organisation of child protection

- increased provision of therapeutic services for children, particularly in school settings, and the growing numbers of counsellors working with children

- the relevance of psychoanalysis in development of child-focused therapy, as well as reference to other therapeutic approaches to child therapy

- the urgent case for developing ?confidential spaces? within therapeutic services for children and young people.

Illustrated with vivid case examples, Therapy with Children provides stimulating reading and is an excellent source of reference for all psychotherapists and counsellors working with children. The issues here will also be of direct relevance to youth workers, teachers, social workers and health professionals.

Part 1

Theoretical Frameworks

Introduction

This book has grown out of the convergence of two distinct, but over-lapping themes – the enormous therapeutic potential of working with the child as the immediate client in counselling and psychotherapy, and the increasing impact of law and literature on the issue of children’s rights. Following a career in education, Debbie Daniels has worked as a counsellor in a number of school settings, both in the UK and abroad. She brings direct experience of trying to negotiate a secure framework for providing children in school with space for a therapeutic relationship. Debbie has a Certificate in Education and an MA in Psychotherapy and Counselling. She is registered as a psychotherapist with the United Kingdom Council for Psychotherapy (UKCP) and adheres to the psychoanalytic approach. Peter Jenkins is a Senior Lecturer in Counselling at the University of Salford, works as an honorary student counsellor on a part-time basis, and has published widely on the topic of children’s rights and on legal aspects of therapy. The combination of these two approaches sheds light on the many dilemmas facing those counselling children. This book presents case material, anonymised to protect the individual client’s identity, and links it to discussion of the issues facing Debbie as the therapist directly involved in each situation. The concerns include key practice and professional issues, the scope and outcome of the therapy involved, and the legal framework and options available to the child, therapist and parents.

This focus on the value of work with the child as the immediate client derives from the pioneering practice of therapists working within the psychoanalytic tradition, therapists such as Melanie Klein, Anna Freud, Donald Winnicott and even, in a more qualified manner, Sigmund Freud himself. This is not to ignore or minimise the important work of later therapists or those working from other approaches, such as the person-centred approach or cognitive behavioural models, but simply to trace the development of the child-focused work back to its roots. The crucial importance most therapists place on confidentiality, boundaries and the maintenance of a secure framework for therapy, derives ultimately from the psychoanalytic tradition. The lasting impact of these principles is developed in the first chapters, as the basis for establishing a working alliance with the child as client for sound therapeutic reasons.

This emphasis on the child as client is not an implied criticism of the behaviour or role of parents, as supposedly unwelcome intruders in therapy with children. In some cases an approach involving parents directly in therapeutic work, such as family therapy, may be called for. Nor is it the case that parents are assumed to be the cause, directly or indirectly, of whatever problems the child is exploring in therapy. This would be no more than an extension of the common process of blame, or mal de mère, which locates the ultimate causes of children’s behaviour in poor child-rearing practices. The particular case argued here is that effective therapeutic work with the child requires a secure and confidential space for the work to take place. External pressures from parents or other adult authority figures will, it is argued, limit and ultimately undermine the value of whatever work may be carried out.

Some brief explanation of terms is called for. The term ‘therapist’ is used in a generic sense, to include counsellors, psychotherapists and counselling psychologists. It does not include teachers or social workers, valuable as these roles are in other contexts, unless their primary activity involves contracted therapeutic work with a client. Therapy in this sense is seen as distinct from situations where teachers and social workers may be using counselling, or interpersonal skills, as an adjunct to, or support for, their primary professional role. Having said that, however, there is much within this book which may be of interest, or direct relevance, to members of professional groups such as teachers, social workers, nurses and doctors.

The term ‘child’ is used throughout the book to describe a young person under the age of 18. In reality, much of the therapy covered in the book will relate to young people in their teens, where using the term ‘child’ may seem rather clumsy, or even inappropriate. Despite this possible objection, the term child is used because it carries a specific legal meaning, based on the definition under the Children Act 1989, which refers to a person under the age of majority. It is used throughout in this sense to provide consistency, rather than constantly using the broader and all-inclusive phrase ‘children and young people’.

‘Children’s rights’ are at the core of the argument developed here for an approach to therapeutic work, which prioritises the needs of the child as client. This term is used to denote where a claim can be made for treatment, either by the child, or on their behalf, based on established legal or quasi-legal authority, such as an Act of Parliament, international convention, code of practice, case law, or official policy document. A vast and increasingly significant number of rights for children now exist in the UK, or more specifically England and Wales, which need to be brought together and understood by all those working with children as a matter of urgency.

The concept of ‘confidentiality’ is situated right on the contested borders of therapy and the law. Confidentiality is a strongly held professional responsibility for therapists, based on ethical principles and codes of practice. Therapists learn through their training that client material is to be contained securely within the therapeutic framework, in order to establish the fundamental trust necessary for the work to take place and to promote the client’s ability to make autonomous choices. The conflict that arises concerns the requirement, or discretion, on the therapist’s part to break confidentiality, with or without the client’s permission. These issues assume a heightened importance in a culture where public and professional awareness of child abuse has grown in the last three decades to become an ever-present background. On occasions, child abuse is a more immediate concern for therapists. The duty to maintain a client’s confidence in therapy arises where this would be a legitimate expectation, given the special nature or degree of trust involved in the relationship. However (and this is a major qualification), therapists in England and Wales do not enjoy the sort of privilege which, for example, is held by a solicitor, who confers with a client for the purposes of giving legal advice. On the other hand, however, mandatory child abuse reporting laws do not apply to therapists in England and Wales as they do to many of their colleagues in the USA (Hoyano and Keenan, 2007: 444). There are many circumstances in which the therapist’s ability to provide confidentiality in work with children is variously constrained and supported by the law. These situations are outlined in detail in earlier publications (Daniels, 2006; Jenkins, 2007) and are further explored here.

There is a growing trend towards recognising the rights of children and young people to high levels of confidentiality in the therapeutic situation, consonant with the law entitling them to exercise their parallel rights to autonomy, as far as possible. This approach probably finds its clearest expression in the Children Act 1990, not from the UK, but from Germany.

Children and young people can be counselled without the knowledge of the legal parent or guardian if the counselling is necessary due to need or conflict of interest and as long as the aim of the counselling is undermined if the parent or guardian is informed. (Kinder und Jugendhilfegesitz 1990, para. 8, sect. 3)

Briefly, this piece of law expresses, perhaps bluntly and somewhat inelegantly, some of the main themes and arguments of this book. Firstly, there is the need to recognise that children and young people have needs and rights, which are distinct and separate in law from those of their parents. Secondly, there is clearly the potential for a conflict of interests between children and their parents, which may be expressed, at one level in ethical terms, as a conflict between the principles of autonomy and welfare. Finally, the integrity of therapeutic privacy is of considerable social value and worth, even (or perhaps especially) in the case of children and young people who have limited access to alternative sources of help. Breaching the therapeutic frame, via seeking parental permission or oversight, is highly likely to have adverse social and individual consequences for those children and young people who are seeking help outside of the family in privacy from a therapeutic source.

This particular piece of legislation from Germany may have no immediate counterpart in UK law, but it will be argued that there is now extensive case law which supports a parallel provision for the principle of respect for therapeutic confidentiality for children and young people. This is not a utopian or impractical stance, but one rooted in good therapeutic practice, derived from the psychoanalytic tradition, and which is decisively in tune with developing human rights law and the rapidly developing law on privacy and confidentiality in the UK.

The format followed by this book is to set out the necessary theoretical frameworks of law and the psychoanalytic tradition of work with children in the first four chapters. The second half of the book then provides a detailed examination of legal, practice and therapeutic issues raised by specific case studies of therapy with children. The book concludes by considering the need to focus on the issue of empowerment for children.

The authors’ shared concern to maintain confidentiality in the therapeutic relationship also has implications for the use of ‘live’ case material for the purposes of this book. The danger of the client’s identity being realised by either the client or by a third party is one that is, unfortunately, seemingly inherent in the use of realistic case material. This requires particular vigilance on the part of the therapist in disguising identifying features of the client. Freud recognised this problem in his earliest work:

It would be a grave breach of confidence to publish material of this kind, with the risk of patients being recognized and their acquaintances becoming informed of facts which were confided only to the physician. (Breuer and Freud, 1985/1991: 47)

Every effort has been made, therefore, to avoid any inadvertent breaches of confidentiality through this same process of ‘deductive disclosure’ or ‘jigsaw identification’, by changing key identifying features of the child’s characteristics and situation.

With regard to methodology, the case studies are simply intended to illustrate the authors’ movement towards adopting a position of prioritising autonomy and confidentiality in therapeutic work with children. The use of case studies can only provide evidence towards an argument and clearly does not constitute an argument in itself, as some critics of the first edition rightly pointed out. While the use of case studies is rightly enjoying something of a revival at present in therapeutic research circles, the authors are fully aware of their limitations, from a strictly methodological point of view (Spence, 1989).

Securing a safe framework for confidential therapeutic work with the child as client needs to be based on full knowledge of the relevant law, as opposed to convenient or ill-founded assumption. In working therapeutically with children, as with adult clients, therapists will increasingly discover that ignorance of the law is no defence. This book is intended, therefore, to provide a background of information and discussion, which will hopefully promote safe and effective therapy with children.

1

Children’s Rights: From Dependence to Autonomy

This chapter looks at some of the historical background to the issue of children’s rights. Children have been subject to widespread forms of restraint and subjected to arbitrary authority by adults in the past, and continue to suffer this in many parts of the world today. It is only comparatively recently – during the last hundred years – that children have been afforded rights of protection in the UK. The process of conferring rights on children gathered pace during the twentieth century, with the development of children’s entitlement to services, providing them with health, education and protection from abuse in the community. The recognition of the child’s right to express their views and have these views considered by adults is much more recent still, as a development which has mainly taken place since the mid-1970s. Clearly, acknowledgement of children’s growing involvement in decision making and their access to a fuller range of civil rights needs to be qualified by obviously limiting factors such as their age, level of understanding, and degree of physical and emotional vulnerability. However, the automatic, unthinking adult stance of rejecting this growing degree of entitlement is increasingly hard to sustain, due to a wider appreciation that there are different levels of decision making, rather than it being an all-or-nothing issue. There have also been shifts in legal thinking on this topic, which recognise children’s competence as being linked to their level of maturity and understanding, rather than simply being related to a fixed chronological age. This approach is endorsed by findings about children’s ability to handle apparently complex dilemmas regarding health care and to express considered views on difficult decisions in court settings. This historical background is, therefore, necessary to place in context the debate about children’s specific rights to confidentiality and to partnership within the therapy, a debate which is developed in the chapters that follow.

History of childhood

Childhood is frequently presented in terms of romantic and idealised images. The reality of childhood for many of the world’s children, both now and in the past, is often very different. On a global scale, children continue to die at the rate of 27,000 a day from preventable causes (UNICEF, 2007: 4). In the Western world, children may be protected in terms of immediate threats to their health but the scale of other threats to their well-being, such as physical and sexual abuse, has been a growing concern during the 1980s and 1990s. According to commentators such as De Mause, far from being a rosy experience, ‘the history of childhood is a nightmare from which we have only recently begun to awake’ (De Mause, 1991: 1). His psychogenic theory of history, which suggests that parent–child relations are an independent source of historical change, may not be entirely persuasive. However, his approach identifies distinct modes of child-rearing which have held sway at different historical periods. His views are useful in challenging any temptation to see childhood and the status of children from an unquestioningly optimistic and progressive perspective. He identifies the major child-rearing modes as including the infanticidal, abandonment, ambivalent, intrusive, socialisation and helping modes.

• Infanticidal mode This mode of child-rearing was widespread in Ancient Greece and Rome, particularly with regard to female children, or children with a perceived disability. Children are killed or disposed of to limit family size or manage population growth and to restrict the numbers of ‘undesirable’ children, that is those who are female, have a disability, or who are otherwise judged to be unacceptable in some way.
• Abandonment mode This mode includes the policy of severing the parent–child bond, through sending children to be brought up or fostered elsewhere – with the children holding the status of hostages, pages or servants. It also covers the practice of sending very young children for ‘wet-nursing’, described as ‘the form of institutionalised abandonment most prevalent in the past’ (De Mause, 1991: 34).
• Ambivalent mode The ambivalent mode of child-rearing relies on the popular metaphor of children as being pliable: open to control through a variety of measures. De Mause refers to the popular imagery of the ‘physical moulding of children, who were seen as soft wax, plaster or clay to be beaten into shape’ (1991: 51). Children in this mode of child-rearing are thought of as raw material for adults to shape, according to their own moral values and preferences.
• Intrusive mode Control over children is here exercised through direct physical methods, including threats, punishment, beatings, and through the use of psychological domination – such as inducing guilt, for example over masturbation – as an internalised form of social and individual control.
• Socialisation mode Relying on psychological theories, both from a behavioural background (for example Skinner and Watson) and ...

Table of contents

• Cover Page
• Title
• Copyright
• Contents
• Legal references
• List of boxes
• Foreword
• Acknowledgements
• Part 1 Theoretical Frameworks
• Part 2 Case Examples
• Part 3 Therapy with Children – Some Conclusions
• Appendix 1: Summary of the United Nations Convention on the Rights of the Child (CRC) 1989
• Appendix 2: Resources
• References
• Index