The Children Act 1989

Putting it into Practice

Mary Ryan

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429802492
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Soziologie

First published in 1999, this book provides a practical guide to those parts of the Children Act 1989 that relate to the provision of services by local authorities to children and families, dealing in particular with the powers and duties of local authorities in such circumstances, care and supervision proceedings and child protection issues. It combines a discussion of the legal framework of the Act and the regulations and guidance with information about good social work and legal practice, relevant research and recent case law. It is grounded on the author's practical experience of providing an advice and advocacy service for families and training for social workers, lawyers and other child care professionals.

1      Setting the scene

Introduction

This book concentrates on those parts of the Children Act 1989 that relate to the provision of services by local authorities to children and families; the powers and duties of local authorities in such circumstances; care and supervision proceedings, and child protection issues. There is some consideration of the private law in so far as it relates to child care matters, and to the court system and the principles which govern it.

The book is intended for use by key frontline workers and managers involved in child care work, especially social workers, guardians ad litem, education welfare officers, teachers, probation officers, senior nursing officers, doctors, health visitors, and police officers working in juvenile bureaux or special assessment teams. It is also relevant for child care solicitors based in a local authority or private practice.

This second edition contains information from research into the implementation of the Act, up-to-date case law, relevant new legislation and guidance from the courts, and government and specially commissioned reports on various aspects of the child care system. Research studies have looked both at social work practice and at practice within the courts and contain many important findings that both legal and social work practitioners should be aware of.

History

In 1984 the House of Commons Social Services Committee produced a report on children in care. The report (known as the Short Report) did not doubt the good intentions of workers and agencies but it was critical of the lack of resources and skills made available to promote the well-being of children in the community and in care. The committee considered child care law to be in urgent need of reform. It stated that the aim of the review of child care law that they proposed should be

‘the production of a simplified and coherent body of law comprehensible not only to those operating it but also to those affected by its operation. It is not just to make life easier for practitioners that the law must be sorted out; it is for the sake of justice that the legal framework of the child care system must be rationalised.’ (House of Commons 1984)

The Government responded by setting up an inter-departmental working party which, between July 1984 and September 1985, carried out a detailed consultation exercise on all aspects of child care law. Their report made 223 recommendations for improving, clarifying and consolidating both child care law and health and welfare legislation relating to children DHSS 1985(1)).

This was followed in January 1987 by the publication of a White Paper which set out proposals for a new legislative framework largely based on the recommendations of the review DHSS 1987(1)).

At the same time, between 1985 and 1988, the Law Commission was issuing consultation papers on the law relating to children involved in custody, guardianship and wardship proceedings. Their final report (Law Commission 1988), issued shortly after the Cleveland Inquiry Report (DHSS 1987(2)), contained a draft bill which formed the basis of the Children Bill introduced into Parliament in November 1988.

There were other important influences on the Act. First, there were research studies into the circumstances of children in care. Nine separate studies looking at the child care service in 49 local authorities and covering some 2,000 children had been produced, and their findings brought together and published by the DHSS in 1985. These studies painted a sober picture of current practice, and concluded that ‘the gap between aims and achievements in the child care service is still distressingly wide’ DHSS 1985(2), p.22).

Second, there were enquiries into policy and practice in different local authority areas – Cleveland, Brent, Lambeth and Greenwich – in response to a particular case or set of cases. These attracted considerable public interest, and all made specific proposals for changes in practice and in legislation.

Third, important court cases in the 1980s established principles which were to find their way into the legislation. The Gillick case (Gillick v. West Norfolk Health Authority (1986) AC 112) established that parental rights, now replaced with parental responsibility, diminished as children grew in age and understanding, and that a child under 16 of sufficient understanding could give or withhold consent to medical treatment. A number of cases in the European Court successfully challenged the legal position in the UK on access to children in care, and emphasised that parents should be able to participate in planning and decision making concerning their children (O, H, W, B and R v. United Kingdom, case nos. 2/1986/100/148 to 6/1986/104/152, (1987) The Times, 9 July).

Key principles and philosophy

Many of the key principles underlying the Act emerged clearly from the findings of research and the process of consultation described above. Some of them were spelt out in the Government’s review paper and the resulting White Paper. More recently, the Department of Health (DOH) completed and published a comprehensive list of the principles governing social work with children and families which underpin the Act (DOH 1989(1)). The following list highlights the key principles, drawn from the above documents and from the Act itself, which are particularly relevant to the issues covered in this book:

• The primary responsibility for the upbringing of children rests with families, and for most children their interests will be served best by enabling them to grow up within their own families. Where children are separated from their families they should be enabled to maintain contact with them. The way the Act is drafted, with a number of specific references to ‘parents, relatives and friends’, clarifies that, within this principle, there is a recognition that ‘family’ means the wider extended family and includes close family friends.
• Race, culture, language and religion are crucially important when either the courts or local authorities are making decisions about children. The Act re-emphasises the requirements of the Race Relations Act in relation to service delivery, and specifically encourages the development of anti-racist family and child care practice.
• When children are receiving services from the local authority – whether living at home, or when being provided with accommodation, or when in care – the relationship between those children and their families and the local authority should be one based, wherever possible, on partnership and participation. Partnership and participation involve empowering children and families, providing information, encouraging active involvement in decision making and providing a system for resolving disagreements.
• Children should be involved as fully as possible in actions and decisions about themselves. This is emphasised in the requirements on courts and professionals to consult children and to take their wishes and views into consideration, in giving children themselves the right to apply for court orders, and in the recognition of their right to refuse consent to medical or psychiatric examinations or treatment, or other assessments. Regrettably this last principle has been undermined by court decisions since the implementation of the Act, most notably Re W (A Minor) (Consent to Medical Treatment) [1993] 1 FLR 1 (see page 93).
• The provision of substitute care should be seen as a service for children and families to help avoid long-term family breakdown. The provision of accommodation by a local authority on a voluntary basis should be seen as just one of the family support services available, and should be viewed positively rather than negatively. If, in order to protect them, children need to live away from their families, this should be arranged, wherever possible, on a voluntary rather than a compulsory basis.
• The approach to the provision of services to children and families by the local authority should be a corporate one, with the local authority as a whole having clear policies about service provision under the Act. The Act also recognises the importance of multi-agency, multi-disciplinary work, and co-operation between different agencies and authorities and different professions.
• There should be only one route for the state to intervene in family life: through the courts, and only on the basis that the child is suffering, or is likely to suffer, significant harm. Court procedures should be fair.
• There should be a rationalisation of the legal framework, including the bringing together for the first time of private and public law relating to children.

These principles will be examined in more detail in Chapter 2. The central underlying theme is that of partnership.

Partnership – the central theme

The word ‘partnership’ does not appear in the legislation and regulations, but it does occur many times in Government guidance on the Act and in the DOH list of principles that should underpin practice (DOH 1989(1)):

‘One of the key principles of the Children Act is that responsible authorities should work in partnership with the parents of the child who is being looked after and also with the child himself, where he is of sufficient understanding, provided that this approach will not jeopardise his welfare. A second, closely related principle, is that parents and children should participate actively in the decision-making process...

Planning and review of a child’s case, with the involvement of parents, will provide the basis of partnership between the responsible authorities and parents and child. The development of a successful working partnership between the responsible authorities and the parents and the child, where he is of sufficient understanding, should enable the placement to proceed positively so that the child’s welfare is safeguarded and promoted...

Although genuine partnership will be easier to achieve in the absence of compulsory measures, the same kind of approach should be taken in cases where a child is in the care of the local authority as a result of a court order. This will be achieved by:

1. Consulting and notifying the parents about decisions affecting the child;
2. Promoting contact between the child and his parents and family where it is reasonably practicable and consistent with the child’s welfare; and
3. By seeking to work with the parents to achieve a safe and stable environment for the child to return to (where this is judged feasible) or by finding a satisfactory alternative placement for the child.’

• (DOH 1991(3), Vol.3, paras. 2.10–2.12)

It has been argued that the term ‘partnership’ is an inappropriate one to use when talking about relationships between powerful agencies and the children and families in whose lives they intervene and to whom they provide services. A commitment to working in partnership with children and families is, however, one of the main principles underlying the Act. It is, therefore, crucially important that practitioners are prepared to shift and challenge attitudes and old ways of working so that partnerships are able to develop despite the unequal balance of power.

‘Partnership’ can be defined as working together towards a mutually agreed goal. Partners may have different amounts of power, but partnership will involve a genuine commitment to open negotiation with clients about how best to promote and safeguard the welfare of children. Clients need to be empowered to engage in this negotiation by having easy access to clear information about services and about ways in which services can be delivered.

2 Some general legal principles and the forum for cases

Introduction

This chapter comments first on the bringing together of private and public law. It then explores the principles which guide all courts in making decisions under the Children Act 1989, explains the principle of ‘parental responsibility’, and describes the private law orders available and how they link with the public law. The final section is about the court structure.

Public and private law

The private law governs relations between different individuals. Public law governs the powers and duties of local authorities and other organisations towards children and families, and it controls the extent of state intervention in family life. For the first time the public and private law relating to children is brought together in a single piece of legislation. Moreover, the Act incorporates into child care law certain aspects of health and public welfare law, relating primarily to children with disabilities. The Children Act also represents a final break away from the Children and Young Persons Act 1969 principle of grouping together delinquent and deprived children. The failure to implement CYPA 1969 fully meant that this principle has never been properly tested, and the way the legislation operated in practice pending implementation was found to be unsatisfactory for both groups of children. The Children Act makes a clear distinction between civil and criminal matters concerning children.

Principles which guide the courts

The following principles apply to all proceedings concerning the upbringing of children brought under the Act, whether they are private or public law proceedings.

Welfare principle

In 1987 the Government’s White Paper on child care law (DHSS 1987(1)) noted that: The lack of clarity is perhaps the most striking defect in the present law... An essential part of clarification is to rationalise and where possible simplify existing legislation’ (para. 7, p.2). Part of that simplification process is the introduction by this Act of a single welfare principle to apply in all cases concerning the upbringing of a child; the principle is that ‘the child’s welfare shall be the court’s paramount consideration’ (s.1(1)). It applies only to decision making by courts, and there are still some proceedings where another principle applies instead. For example, in adoption proceedings under the Adoption Act 1976 the child’s welfare is the ‘first’ consideration.

Decisions based on the welfare of the child are ultimately value judgements, albeit ...

Table of contents

• Cover
• Half Title
• Dedication Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Note on references and terms listed
• 1 Setting the scene
• 2 Some general legal principles and the forum for cases
• 3 Family support services
• 4 Child protection procedures
• 5 Emergencies and assessments
• 6 Proceedings for care and supervision orders
• 7 Contact
• 8 Planning for children
• 9 Placement
• Annex A Foster or residential placement agreement
• Annex B Useful organisations
• References
• Index