Perspectives in Child Care Policy

Lorraine Fox Harding

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317889427
• Edition: 2
• Topic: Diritto
• Subtopic: Diritto di famiglia

Child care law and policy issues generate very strong emotions and some crucial questions concerning the role of the state. For instance, under what circumstances should the state be able to intervene and use the force of the law to protect children? Do children have similar rights to adults? Such questions are matters of controversial debate and, in the light of well publicised child abuse cases, official inquiries and a government review led to the passing of the Children Act in 1989. Perspectives in Child Care Policy presents four different value perspectives on child care policy - laissez-faire; state paternalism; defence of the birth family and children's rights. These perspectives differ in their underlying values, concepts and assumptions concerning children, families, the rights and powers of parents and the role of the state.

CHAPTER 1

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The importance of child care law and policy

In modern societies it may be thought self-evident that the state should use its power to intervene between parents and their children in order to defend the children from various kinds of ill-treatment, inadequate care or poor upbringing. It is widely known and accepted that not all parents care for and socialise their children well. There is much evidence of various kinds of abuse. From time to time extreme cases of child cruelty leading to death hit the headlines and provoke much media condemnation of the agents of the state. The most famous examples in a British context would be Maria Colwell in the 1970s and Jasmine Beckford, Tyra Henry and Kimberley Carlile in the 1980s (Secretary of State for Social Services 1974, London Borough of Brent 1985, London Borough of Lambeth 1987, London Borough of Greenwich 1987). In the United States there was the case of Melisha Gibson in the 1970s (Goldstein, Freud and Solnit 1980) and in Canada Kim Popen in the 1980s (Levitt and Wharf 1985). In the 1980s sexual abuse of children by parents was discovered to be more common than was thought (see, for example, Creighton 1989). In the 1990s ‘satanic’ or ritual abuse began to emerge as a possible problem (see, for example, La Fontaine 1994). Becoming a parent in the biological sense hardly ensures that an adult will consistently maintain the standards of upbringing which are widely regarded in society as necessary or desirable.

It seems legitimate for society – through the force of law if necessary – to act, when such standards are not achieved. As suggested, in particularly severe cases of abuse leading to death there is often an outcry to the effect that the state and its legal machinery should have done more. This can be so marked that attention is deflected from the actual killer of the child. There is a strong popular sense of society’s duty to protect children, and social workers already involved with families where a child is killed may be bitterly accused of negligence and incompetence for not having anticipated the severe injury and death and for not having safeguarded the child by removing her or him. That is, they are criticised for not having used more fully and willingly the powers of the state. Sometimes the actual limits of these powers are misunderstood, but it appears – at first glance – that there must be a consensus here that the state should indeed have, and use, extensive legal powers to act against and overrule the apparently ‘natural’ powers of parents where there is a need to protect the child. Surely there can be no dispute about this?

Such a position, however, becomes increasingly problematic the closer we look at it, and some awkward questions arise. For example, just when is the state to intervene? Outright cruelty to, and neglect of, children shade into merely careless or casual care; unacceptable violence shades into methods of discipline accepted by some people; one person’s or culture’s notion of a ‘good upbringing’ is not another’s; and one person’s ‘good’ decision about a child’s life and future might be a fearful mistake from another perspective. Should the state act to protect only when harm to a child has occurred – or when it is likely to occur – and how is such harm to be decided and by whom? How can there be clear guidelines – so that everyone knows where they are – indicating when the state should use its coercive powers, when it should merely offer supportive help, and when it should stay out of the family altogether?

Secondly, how is the state to know when poor quality child care is going on and how are the mechanisms for identifying it to be applied throughout the population? Presumably the powers of the state should be applied consistently to all children, all parents, yet it can be argued that the system is haphazard: while some groups are under greater state surveillance and are more likely to suffer the loss of their family autonomy and integrity to the state’s control, others, protected by relative wealth and high social status, may get away, almost literally, with murder. Yet to identify and respond exhaustively to all child maltreatment would be likely to involve state surveillance on a scale which most people would regard as unacceptable in terms of civil liberties, the costs of which (both in financial and other terms) would be incalculable.

Thirdly, some poor child care is certainly due to circumstances over which parents have no control. They may be struggling with low incomes and/or jobs which militate against proper child care, living in appalling housing and deprived neighbourhoods, or be in poor mental or physical health. They may have been victims of poor child care and depriving environments themselves. Are these parents to be ‘punished’ by having their children taken away, perhaps permanently? What is the justification when parents are victims themselves?

Fourthly, is the action that the state takes in cases of improper care always helpful, and the alternative care that the state itself may provide necessarily superior to the birth parents’ care? It may be additionally damaging to children to split up the family and/or remove them to a ‘substitute home’, perhaps depriving them of all contact with their original parents. It is salutary to remember that one of the most notorious child abuse cases in Britain this century – and one that had some influence on the reform of law and practice – the case of Dennis O’Neill, who died in 1945, was of a child already in the care of the state because of parental mistreatment, placed with foster parents supposedly ‘chosen’ and ‘supervised’ by a local authority (although in fact seized on in desperation and supervised barely at all) (Monckton 1945).

These ‘awkward questions’, and many others, give rise to a situation where there can be no certainty as to what the state should do, when it should do it, or how. Consensus is illusory once the complexities are probed, and differing perspectives on the many problematic aspects of the state’s child care role can be identified, while the debate between the proponents of the various views is often heated and emotional. It is difficult to be detached: after all, everyone has been a child and most people have parented one. Disagreements are not merely intellectual therefore, but are bound up with personal feelings and experiences. The debates are significant, because of the serious dilemmas that arise in policy, and because different perspectives point to different policy consequences.

The study of child care policy

The study of child care policy and the debates surrounding it can be useful and important for a number of groups: first, for social scientists, secondly, for various professionals and policy-makers, and thirdly, for a wider audience. As far as social science is concerned, one aspect of the study of society is the study of childhood and its construction by society, of the place and condition of children in society, and by extension the study of age itself: questions of development and maturation over time, of how experience at different ages is defined, and of how society responds to differences in age. The meaning of age and the treatment of different ages are found to vary between societies, between social groups, and over time. Such meanings and practices may be argued to have only a limited connection with biological factors and much to do with the nature of society and the role of different age groups within it.

The study of child care law and policy may have much to contribute to the more general study of childhood. While it is true that the formal child care machinery of the state only involves a minority of children (in England, for example, well under 1 per cent of the under-18 population are actually in the care of the state at any one time – Department of Health 1991d – although others would be under supervision and helped in other ways), the role of the state – in providing care for children as an alternative to parental care, in intervening between parent and child in various ways, and in prescribing certain rules surrounding childhood – can tell us much about childhood in society and how children are perceived and treated. For example, in modern Western societies children are not seen as being as fully responsible for themselves as adults are. They are seen as dependent, vulnerable and in need of some protection. Their rights are recognised to a degree, yet are also highly circumscribed. They are seen as needing to be controlled. They cannot be passed from adult to adult in an unrestricted way. Childhood’s special status is reflected in the laws and policies which have been formulated over time, the changes which have been made in these, and the debates surrounding such changes and attempted changes. Where disagree-merits arise, they may reflect conflicting notions of childhood, as discussion of the four perspectives outlined in this book will attempt to show. Nevertheless, despite disputes, there seems to be a broad consensus about the importance of children and of safeguarding their welfare. This reflects something of the general position of children in society.

A second reason for an interest in child care policy in the social sciences concerns such policy’s relation to the family. The family may be seen as a central social institution, carrying inter alia the function of reproducing the next generation and hence the society of the future. The family has excited a great deal of recent interest and study. Two features of this interest have been, first, a focus on family change, in response to the many changes which are perceived to be occurring, and to be of significance, in Western societies, such as a markedly increased incidence of divorce and its consequences (for family change, see Fox Harding 1996); and secondly, a focus on diversity, not only of actual family forms, but of norms and beliefs concerning the family. Debates on family change and diversity have been particularly intense during the 1990s, generating many publications of a polemical kind (see, for example, publications from the Institute of Economic Affairs such as Dennis and Erdos 1992, Davies 1993, Dennis 1993, Morgan 1994). The interest for social science is perhaps essentially that there seems to be no universal consensus either on what ‘the family’ is, or on what it ought to be.

Children are central to most notions of the family unit. Here again there is both change and diversity of family patterns and approaches. For example, the increased fragmentation and realignment of parent couples may affect children’s experience and upbringing profoundly (for some recent findings on children and family disruption, see, for example, Burghes 1994, Cockett and Tripp 1994). Also children’s lives are probably also more heterogeneous than they were, and conflicting beliefs about what is good for the family, and for individuals in families, overlap with the question of what is good for children as a special group. The study of child care law and policy, then, can add another dimension to the understanding of shifting family forms and ideas about the family. Law and policy usually attempt, to some degree, to respond to changes in the family and to the rich variety of family forms and circumstances. They will also be informed by different concepts of, and beliefs about, the family; and the different child care perspectives discussed in this book will also reflect different family concepts and beliefs. For example, different views may be taken of whether the family is primarily a biological or a psychological unit, of the importance of early bonds and of stability over time, and of the relative importance of family autonomy as opposed to support and intervention from outside.

A third point concerns the role of the state and the inter-relationship between the state and citizens. As indicated, there is a widespread acceptance that the modern state should have some legal powers to intervene coercively between parents and children where there has been clear maltreatment. In England, for example, there have been such powers on the statute book for about a century. Intervention may take the form of both prosecution of the offender and removal (or supervision) of the child. Yet the popular concern about child welfare is balanced by a perhaps equally strong concern, which manifests itself in some circumstances, about the dangers of the state having excessive powers and making unwarranted intrusions into the privacy of domestic life. The family may be seen as some kind of ‘bastion’ against the power of the state. This is neatly illustrated in some cases where it appears that the state, acting through courts, social workers, medical staff and so on, has forcibly removed children from parents without sufficient justification. Here the public and media response is the mirror image of that in cases of child deaths – the agents of the state are execrated for doing too much. An example would be the Cleveland child sex abuse cases in England in 1987 (Secretary of State for Social Services 1988) and similar cases in Orkney in 1991 (Clyde 1992).

The inconsistency over state intervention arises in societies where there has traditionally been a marked distrust of too large-scale or authoritarian a role for state bodies. This distrust may be in tension with the desire to protect the most vulnerable. A further tension arises between this desire to protect the vulnerable and the reluctance to commit sufficient societal resources, via state or other bodies, to make such protection effective. The point to bear in mind here is that consideration of the workings of the child care laws and machinery of the state, and the ideas underlying them, may contribute to an understanding of the role of the state in general.

The importance of child care law and policy for those who are involved in the child care field as professionals, practitioners, decisionmakers, policy-makers and law-makers – those who create, analyse, discuss, influence and implement law and policy at every level – should be self-evidently clear. Within the category of professionals and practitioners might be included, most obviously, the social workers employed by local authorities and their managers, also social workers with voluntary bodies, doctors and other health professionals, education and other professionals working with children, and magistrates and judges called on to make decisions in a variety of child care cases. In so far as elected representatives in public authorities are involved in decisions in child care practice, they may also be included in this category. Those who train professionals and practitioners are another important group. That there is an overlap with the ‘policy-maker’ category should be clear. ‘Policy’ here is taken to mean the ongoing actions of the state of a significant kind and the thinking underlying them. The middle and higher levels of the state organisations responsible for child care may be involved in policy-making. Child care legislation in many respects leaves a wide area of discretion to the implementing authorities. For example, decisions and judgements have to be made as to when to bring into operation particular sections of the law, or as to how particular principles enshrined in the law (such as the ‘welfare of the child’) should be interpreted. Policy is created within agencies as well as at a more centralised level of the state. Similarly, courts which regularly deal with child care cases may evolve particular ‘policies’ or approaches. Elected representatives at a local and central level are policy-makers in a broader sense, particularly those at the level where laws are passed, along with the state employees who advise them. Various pressure groups and professional bodies may also have a role in policy-making. Members of investigating committees and enquiries, and other experts, specialists, advisers and commentators, also have a policy-making role.

Three specific aspects of a study of child care law and policy suggest themselves as helpful to these groups. First, there is the acquisition of factual knowledge based on, for example, research into child care, historical accounts of law and policy, and accounts of individual cases. Secondly, there is the analysis of the principles, values, beliefs, assumptions and preferences underlying policy and law, which might lead to greater clarity and more meaningful choices. It is in this second field that the analysis of the four competing value perspectives in this book will, it is hoped, make the greatest contribution. Thirdly, there is the more detailed analysis of particular pieces of legislation and decisions in individual cases which can help also to clarify values, assumptions and policy outcomes, while indicating both current trends and problems and possible likely developments in the future. And where wide publicity is given to individual ‘scandal’ cases, it is important for professionals and policy-makers to be able to disentangle in an informed and thoughtful way the arguments, ideas and criticisms embodied in the response. There is the same need where official enquiries investigate and report and when specific legislative changes are proposed. In particular, emotive and ill-informed social responses to single issues and cases require careful and knowledgeable dissection and evaluation.

However, it can be argued that an interest in child care law and policy cannot realistically be seen as solely the province of specialists. The actions of child care professionals, courts, legislators and so on, are clearly of interest to a broad section of the general public, or individual cases of children either killed/abused or taken away from home ‘unnecessarily’ would not attract the degree of media attention that they do. As indicated, the perception of child care issues is sharpened emotionally by the fact that everyone has been a child and most people have had one (or would like to have one). In the contemplation of particular problems and disputes, it appears that onlookers may emotionally identify with the interests of just one party in the dispute. This may, for example, be the child. It is suggested that the majority of media reports of severe child abuse cases in Britain both reflect and encourage an identification with the child, who is portrayed entirely as victim, while little or no identification is made with the abusing parent. Alternatively in some – though probably fewer – cases, the story is implicitly or explicitly presented entirely from the (supposedly innocent) parents’ point of view, encouraging identification with them. An example of an emotional identification by a stranger with the parents, to the exclusion of the child, was the Rayner case in Tameside in England in 1987. A local authority planned to take away a baby at birth from a family where there had been three unexplained child deaths already. A businessman who did not know the family was moved to offer financial aid to help meet their legal bills (Guardian, 18 November 1987). More rarely, perhaps, an onlooker in a child care case might identify emotionally with a foster or adoptive parent, with a non-resident or step-parent, or with the social worker responsible for the case. It might be hypothesised that factors in individuals’ own psychological histories would have a bearing on which party they feel closest to. Child care is an area of state policy where it is extremely difficult to remain neutral and detached, because of the emotional processes which appear to be involved.

This state of affairs appears to have two consequences. First, there is a high level of genera...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Foreword
• Chapter 1 The importance of child care law and policy
• Chapter 2 Laissez-faire and patriarchy
• Chapter 3 State paternalism and child protection
• Chapter 4 The modern defence of the birth family and parents’ rights
• Chapter 5 Children’s rights and child liberation
• Chapter 6 Convergences and divergences
• Chapter 7 Law, policy and practice: an uneasy synthesis
• References
• Further Reading
• Index