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The laws of England, Wales, Northern Ireland and Scotland

The laws of England, Wales, Northern Ireland and Scotland when carrying out research are similar but they do vary. For this reason, as both Masson (2004) and Alderson’s (2004) papers refer more to laws passed mainly in England and Wales, these will be the laws I will discuss in detail. It should also be noted that what is legal and ethical in research is being continually reviewed and updated. This essay will examine the statement made by Masson (2004) that ‘everything that is legal is not necessarily ethical’ by showing that ethical requirements go further than what is legally required. It will discuss specific areas of research such as consent, confidentiality and the responsibility held by researchers towards the children and young people involved in their research. I will use examples from research papers by Thorne (2004), Sutton (2004) and Aldgate and Bradley (2004) to illustrate how what is legal is not always necessarily sufficient to fulfil ethical requirements.One important issue to consider before beginning research is consent, which is one area where it is without a doubt that all that is legal is certainly not ethical. In order to conduct research with children and young people, it is a legal requirement to gain signed consent, normally through ‘gatekeepers’, such as parents, or educational bodies, which have responsibility for children’s welfare until children or young people are of an age or deemed mature enough to give consent themselves. Whether or not the young person is mature enough is based upon the extent to which the child understands all aspects of the research. In Gillick v W Norfolk and Wisbech AHA (1985) in Masson (2004) a child who demonstrated ‘sufficient understanding’ was permitted to consent to medical treatment against her parent’s wishes. One further point to consider is that researchers also need to be aware that legally, a gatekeeper’s role is to allow access for the research to happen, not to give consent for the children to participate – this must be gained from a parent or legal guardian.There are other issues, which may arise when trying to obtain consent, such as the fact that parental responsibility is not automatically given to fathers unless they are married to the child’s mother, or where the child’s birth is jointly registered. Furthermore, if parents are separated, consent from only one parent is necessary. However to comply only with these requirements would be unethical as ethical guidelines require researchers to consider both parents and in situations where parents are not in agreement, then researchers must comply with the wishes of the parent who provides the day-to-day responsibility for the child. In such cases if the parent who is against the research being carried out is the parent who does not have day-today responsibility, they can legally prevent the research from taking place by going to court. Additionally, when gaining consent, methodological issues have to be considered such as how to establish the marital status of the parent, as it would be unethical and possibly offensive to ask this outright. This example shows that what is legal would not be ethical as there are greater requirements to be met ethically.In addition to gaining legal consent, ethical guidelines state that researchers must also get informed consent; Masson (2004) highlights four areas, which a child must understand before doing so. Firstly, the child needs to be able to differentiate between his/her involvement with the researcher and the involvement they have with other adults, such as teachers. The child must also be made aware that the researcher has no power issues or hold over them and Masson suggested that they interact in some ‘rapport building’ activities in order to establish this. This is an important part of the research (although time consuming) as it will encourage the child to relax and in turn will obviously benefit the research. Secondly, the child must be aware that the data collected in order that the researcher can understand the particular topic being researched better and thirdly, that no one will make decisions about the child based upon the information which they share with the researcher. The final point Masson made was that the child must also understand that the researcher cannot take action that would alter the child’s life in any way due to their involvement in the research. It is important that as far as possible, informed consent be given from the participants themselves and without it; the validity of their research may be called into question.One research paper where the legal requirements of research with children and young people were clearly adhered to but where it was obvious that ethical requirements went much further was Aldgate and Bradley’s (2004). Legal consent was gained from both parent and social workers but Aldgate and Bradley’s took the necessary ethical step obtaining informed consent from the children themselves.This was not the case in Sutton’s (2004) paper, where although he gained legal consent we can surmise that he failed to get informed consent from the children from the fact he states in the commentary that he asked the teachers not to tell the children why he was present in their class.Similarly, although Thorne (2004) gained legal consent from the school she failed to gain informed consent from the children themselves, which is clear from the fact that during her research, one child asked her if she was recording bad behaviour to ‘report’ them. These examples show that although both the researchers followed legal requirements, this was not necessarily ethical as they failed to gain informed consent from the children themselves.In Focus clip 4 (EK310 FOCUS II clip 4 ‘The strange situation’), Ainsworth studied the attachment bond between a mother and her child during an episode where the mother leaves the child with a stranger and then on her own in a room. Although legal consent would be gained before the mother and child entered into the experiment, informed consent of the child can obviously not be gained due to the age and lack of competency in the child. In this case, ethically researchers should always make sure to acknowledge signs of assent in the child and halt procedures immediately.One other important legal aspect surrounding research is that of confidentiality, which applies to adults and to children who are mature enough to give consent themselves. However for those children who are too young or lacking in maturity, parents or other gatekeepers legally have the right to the information that has been gained from the child.Carrying out these legal requirements alone is unsatisfactory, as ethical requirements stipulate that researchers must go further by protecting the confidentiality of all participants, even small children. An example of this was evident in Aldgate and Bradley’s (2004) paper, where the researchers made the participants aware that information given to them would be kept in confidence although they also made it clear that the children were free to discuss anything should they wish to do so with their parents or other gatekeeper. In Audio band 3, (06:28) Masson states that when carrying out individual interviews, for example with family members, it is useful to have separate interviewers so that researchers are honestly unable to repeat information they have received should they be asked.Legal and ethical issues overlap to an extent regarding confidentiality for example when issues of abuse come to light. Today, in the United Kingdom, there is no legal requirement to report abuse, although many local authorities have child protection procedures and professional codes of conduct, which require their employees to do so. Furthermore, if employees fail to report abuse, they run the risk of disciplinary action or having their employment terminated. Ethically, when researchers are seeking informed consent, they must inform participants that confidentiality has limits in areas such as these. This is one area where all that is legal is ethical when issues of abuse are brought to court; researchers are required legally as well as ethically to divulge this information.One other important aspect of confidentiality where all that is legal is also ethical is that of anonymity. Legally, researchers are required by the Data protection Act to protect the anonymity and identity of the participants. When discussing matters of bullying with teachers, Sutton (2004) was careful to keep confidentiality by raising these issues in general terms without mentioning the children by name. The legal requirements for this aspect of confidentiality also fulfil ethical requirements sufficiently as researchers have an ethical duty to protect the anonymity of their participants, which is important in children’s cases should the school wish to read the post-research report. This can be overcome by using pseudonyms as was seen in Takei’s (2001) research with young babies and changing place names which Aldgate and Bradley (2004) did in order to protect the identity of the four councils in their research.The final area I shall consider is the researcher’s responsibility towards the children and young people involved in the research. There are three concepts, which Alderson (2004), highlights as being important for researchers to consider when carrying out research with children – respect, rights, and achieving the best outcomes. It is only right that researchers should respect the time children have spent taking part in their research, and in Audio band 3, (15:50) Masson suggested one way to do this to pay them some money. In order for this not to become an incentive however, this should be offered after the research. This raises ethical issues such as the fact there could be a risk that young people might spend this money on alcohol or drugs, and this could be encouraging them to break the law. One useful suggestion made by Alderson (audio band 3) was to give vouchers as a token of appreciation to overcome this.As well as having the right to be respected, children also have the right to protection. This means that researchers are held accountable for any physical injuries, which the child might sustain in the course of the research. Children also have the right to be protected from harm, and legal checks are in place for this such as the Criminal Bureau Register (CRB) in order to gain access to schools and such likes which researchers should fulfil before carrying out research. In this respect all that is legal is ethical as researchers also have an ethical duty to protect their participants.Due to the nature of their research, Aldgate and Bradley (2004) had to have a Criminal Records Bureau (CRB) check in order to gain access to the children. The ethical requirements in this situation are similar as researchers are also expected to protect participants from harm, which involves amongst other things, taking care when choosing the location and insisting that participants be chaperoned during the process. In audio band 3, (20:02) Olsen suggested interviewing children in a neutral place such as McDonalds where they may feel more free to say what they want, and in addition to protecting the children, it also offers protection for the researcher from accusations of abuse.The above issues should be carefully considered whilst trying to ascertain whether carrying out the research outweighs any harm children might come to either during or as a result of the research – this is known as Alderson’s (2004) ‘best outcome’.These requirements did not seem to be met in Ainsworth’s research ‘The strange situation’ shown on Focus clip 4 (EK310 FOCUS II) where the child appears to become distressed, whereupon the researcher should have been legally and ethically bound to stop the experiment. Although of course, the point of this experiment was to examine the distress level itself it must be considered that causing distress, even for a short period of time, whether the child will remember it or not is unethical. Furthermore, it is likely that similar information could be gained from examining children left in childcare establishments from a young age perhaps whilst mothers were returning to work. One further point with regards to the “Strange Situation” which shows that all that is legal is not necessarily ethical is that the researcher treated the child as an ‘object’, rather than a ‘subject’ or ‘participant.’ This shows how the strange situation, although legal was certainly by no means ethical.One other area where the researcher has responsibility is with regards to issues of abuse. Although legally, there is nothing to prevent them from counselling a child, ethically this would be unacceptable. Researchers must be aware that their role is limited to that of researcher and keep in mind that children have the right to the best possible care, which means directing children to professional agencies equipped to deal with issues such as this.These issues were considered by Sutton (2004) who was aware of limits in his role of researcher and did not attempt to counsel any children, but rather directed any upset children to a third party who had specific training. However, one dubious aspect revealed in his paper was where he shared his concern that some of the children may have been experiencing repercussions as a result of the research and although not legally he was not required to half the research, ethically he would have been required to do so.By examining issues such as consent, confidentiality and the researcher’s responsibility towards participants, this essay has shown that all that is legal is not always necessarily ethical as ethics often make further demands of researchers. When conducting research, legally consent has to be gained from one parent only, which is insufficient to fulfil ethical requirements. Furthermore, the ethics that govern researchers state that not only must consent be obtained from the parent, but researchers must extend this and where possible obtain informed consent from the children themselves. However this is not always possible, so researchers must be alert to signs of assent and halt the procedure immediately, which highlights that to simply comply with legal requirements would not be good ethical practice.I also looked at the researcher’s responsibility towards the child, which again demonstrates that legal requirements do not fulfill what is necessarily ethical. It is not illegal for researchers to counsel distressed children, but it is certainly unethical, as ethically researchers must recognize that their role has limits and that the child has the right to the best possible care. It can be said therefore in conclusion that there are certain situations where all that is legal is not necessarily ethical but one should take into consideration that both laws and ethics in the UK are continually being reviewed and are changing.

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