In Defence of the Children Act

463 Arch Dis Child: first published as 10.1136/adc.83.6.463 on 1 December 2000. Downloaded from CONTROVERSY

In defence of the Children Act

In a recent issue of ADC (2000;82:192–6), we cised tragedies of Kimberley Carlile, Heidi published a paper by Speight and Wynne expresss- Koseda, and Tyra Henry.5–7 These sources ing their concern about certain aspects of child pro- resulted eventually in the government’s White tection procedures in the UK. This month we pub- Paper, published in 1987, before the Cleveland lished a response by the Rt Hon Lady Justice Hale crisis arose.8 The Cleveland crisis may have (formerly Professor Brenda Hoggett QC), who was been the catalyst which persuaded the govern- the Law Commissioner in charge of the programme ment of the need for legislation, but it did not of reform in family law from 1984–93. She was result in any substantial changes, and the also a member of the interdepartmental review of previous recommendations were endorsed by the Child Care Law published in 1985,which led to the inquiry report.9 This was the result of a very the 1989 Act. A bill that led to this Act was drafted thorough investigation chaired by Dame Eliza- mainly at the Law Commission before it became a beth Butler-Sloss, who is now President of the government bill during 1998–9. Family Division, with the assistance of both Dame Brenda Hale is now a High Court Judge social work and paediatric assessors. sitting in the family division, where she has ample In their section entitled Defects of the Chil- opportunities to experience the Children Act in dren Act, the authors quote the initial guidance practice. She is currently a member of the Court of on the Act, which states that the Act rests on Appeal. the principle that “children are generally best It was with sadness and concern that I read looked after within the family with both parents the recent article by Nigel Speight and Jane playing a full part and without resort to legal Wynne, as I have great respect for their work as proceedings”.10 They accept that this would be paediatricians.1 The sadness was that “physi- an unexceptionable aim in an ideal society cians committed to logical thought and evi- where child abuse and neglect do not exist. dence based practice” should have gone into They may have forgotten that the Act is print without, it seems, having checked some concerned with all children, and not just the basic facts or having read and understood the abused and neglected. One of the Act’s main Children Act 1989 which they criticise so aims was to integrate all the law relating to the severely. The concern is that if their “anecdo- upbringing of children, including disabled tal, impressionistic and subjective” comments children. Any civilised society has to start from http://adc.bmj.com/ reﬂect a real experience of practice under the the proposition that children are best brought Act, then others must have similarly misunder- up in their own families: it is the bedrock of stood and misapplied its basic principles. society that children belong in families and not In the discussion of the background to the to the state. Children Act, Speight and Wynne comment But that is only the starting point. The Act that the authors of the Act seem to have been sets a threshold for compulsory state interven-

more influenced by lobbying from parents’ tion in family life which is more precise but on September 23, 2021 by guest. Protected copyright. rights groups and that “at no stage during the wider than that of the Children and Young drafting of the Children Act does there appear Persons Act 1969 and the Child Care Act to have been any counterbalancing input from 1980. As Speight and Wynne acknowledge, it a lobby for the rights of abused children.” allows for intervention on the basis of future as Many of us who took part in the preparation of well as actual harm. Furthermore, such harm the Act will find that oVensive. It is also incor- need only be a serious possibility (rather than a rect. The Children Act was the product of an probability) to pass the test. extensive programme of consultation. The Speight and Wynne also argue that “in every Interdepartmental Review of Child Care Law case of significant abuse and neglect it should was established in 1984 in response to the be a completely open question as to what is in Report of the House of Commons Social Serv- the child’s best interests”. The Act provides a ices Committee on Children in Care.2 Twelve framework for this; courts cannot make care consultation papers were produced by the and supervision orders unless the child is Department of Health and Social Security and suVering or likely to suVer significant harm comments were received from a great many (section 31(2)), but once this has been shown, interested bodies and individuals. The terrible the welfare of the child is the court’s para- death of Jasmine Beckford3 was then at the mount concern (section 1(1)). The Act lays forefront of everyone’s mind. The review was down a series of relevant factors for the court to published as a Consultation Document in consider in order to decide what will be best for 19854 but its principles and recommendations the child (section 1(3)), but the only value survived largely unchanged in the Children judgment as to what will be best is that delay is Act. Many comments were received on the likely to be detrimental (section 1(2)). As the review. There were also the further well publi- welfare principle is highlighted at the beginning

www.archdischild.com 464 Controversy

of the Act (section 1(1)), it is wrong of Speight orders are made, which result in their being “in Arch Dis Child: first published as 10.1136/adc.83.6.463 on 1 December 2000. Downloaded from and Wynne to assert that “the Act has already care”. The aim was to emphasise the parental stated that in general children should be kept in responsibilities undertaken by the local author- their natural families so there is no escape from ity, and to draw a sharper distinction between the closed loop”. these children and— for example, disabled or The Act does impose a general duty upon refugee children, for whom the local authority local social services authorities “to safeguard provides accommodation or other services and promote the welfare of children within without any compulsory intervention. their area who are in need”, and “so far as is This is just one illustration of the underlying consistent with that duty, to promote the balance that the Act tried to strike. The authors upbringing of such children by their families” postulate “a young child ... subject to severe (section 17(1)). The local authorities are abuse or neglect by severely damaged parents” required to take reasonable steps to protect in whom “the prospects for constructive children from abuse and neglect and to reduce change are small” and where “the quality of the need to bring children into care and to care within the extended family leaves much to expose them to other proceedings (schedule 2, be desired”. The Act was designed to improve paras 4 and 7). But where the authorities have rather than to reduce the protection available reasonable cause to suspect that a child in their to such children, drawing a clear distinction area is suVering, or is likely to suVer, significant between them and the great majority of harm, they have a specific duty to make inquir- children who have not been subject to severe ies, which will enable them to decide whether abuse or neglect, who will be better oV at home to take action to protect the child and, if neces- but who may need some help from social serv- sary, to act (sections 47(1) and (8)). These ices, or who will be better oV with their duties are couched in somewhat stronger terms extended family with appropriate help and than the previous duties in the Children and support. Young Persons Act 1969 (sections 2(1) and It is equally unjust to blame the Act for rais- (2)). ing the threshold of proof of abuse. The Act When discussing the concept of partnership, states that the court must be “satisfied” that the Speight and Wynne may be forgiven for failing child is suVering or is likely to suVer significant to realise that this is not expressed in the Act; it harm. The standard of proof is the product of is certainly an underlying principle, but is one judicial decision making at the highest level. of working together in the interests of the child. For some time, there was a tendency to suggest It is also important to distinguish between the that the more serious the allegation, the higher decision making process and the decisions the standard, although this was never as high as themselves. It is only fair that parents should be “beyond reasonable doubt”. But the House of appropriately involved in any decision making Lords, the highest court in the United processes that concern their children and Kingdom, decided that the standard of proof which may fundamentally aVect their relation- was always the balance of probabilities (as ships. However, nowhere does the Act require Speight and Wynne say that it should be).11 It http://adc.bmj.com/ that parents dictate what those decisions also said that some things are inherently less should be. likely to have happened and therefore may The authors’ accusation that the Act “is require more cogent evidence to arrive at the trivialising child abuse by decriminalising it” is conclusion that, on balance, they have oc- incomprehensible. The Act has nothing to do curred. I have heard paediatricians make simi- with criminal prosecutions for oVences against lar observations about rare occurrences. children and does nothing to render those The real problem is quite diVerent: what to

oVences less serious or to reduce the chances of do about the case where you cannot be on September 23, 2021 by guest. Protected copyright. prosecution. Yet this was, of course, a point satisﬁed, even on the balance of probabilities, seized upon when Speight and Wynne’s article that abuse or neglect took place, but you was reported in the media. remain uneasy about the situation and believe The authors also argue that parents who that the child may be at risk in the future? have failed in their discharge of parental Would this be an acceptable basis for separat- responsibility should lose some, if not all, their ing that child from his family? And can you rights. Again, this is exactly what the act continue to believe that the child should be provides: if a local authority shares parental separated from its family if your only reason for responsibility under a care order, the local doing so is that while you are not convinced authority can decide “the extent to which a that abuse has taken place, you cannot be sure parent ... may meet his parental responsibility, that it hasn’t? The House of Lords was divided as long as they are satisﬁed that it this is neces- three to two on the latter point, but the major- sary to safeguard or promote the child’s ity thought that you could not support such a welfare” (sections 33(3) and (4)). The authors belief. Many family lawyers disagree. suspect some connection with the Child No one pretends that such decisions are easy Support Act, which was passed two years after to make or that the decision makers, whether the Children Act, and had not been conceived social workers, doctors, or courts, always get it (as far as I know) when the Children Act was right: but the Act itself is not to blame. Let us under discussion, and was the product of a very consider the case studies reported in the diVerent political and parliamentary process. article. The Act has not abandoned the terminology Case 2 concerned the problems faced by of “care”. Neglected or abused children are still relatives of a child’s mother, who sought the subject of care proceedings, in which care custody of the child after the mother had com-

www.archdischild.com Controversy 465

mitted suicide because of prolonged sadistic tion in the lives of children and their par- Arch Dis Child: first published as 10.1136/adc.83.6.463 on 1 December 2000. Downloaded from marital violence. The diYculties faced by the ents must be authorised by a court after relatives in obtaining custody of the child are due process of law. It is not and should not not the fault of the Act: the Act reduced their be open to social workers, doctors, teach- problems by making it possible for such ers, or anyone else simply to decree that a relatives to apply for residence orders when child should be removed into public care previously the child would have been made a or adopted into another family. In several ward of court (at great expense and with even respects, procedures before the Children greater delays). The real accusations should be Act were condemned by the European levied elsewhere: at the reluctance of courts Court of Human Rights and needed to be and professionals to acknowledge domestic amended. violence and to recognise the eVects upon the + The delay and expense of court proceed- child of violence towards the mother. That has ings are a great concern. For the past nine nothing to do with the Act: indeed, the Act years, the legal profession has been trying sought to replace some of the assumptions to operate eVective case management to about what was best for children with a more reduce delays but has not succeeded. This objective range of factors, only to find that the is amply illustrated by case 1, where it courts and others reimposed those earlier took 15 months to obtain a care order for assumptions. These situations are now being a baby fostered at birth, with a plan for taken much more seriously, and recent legal adoption. But the problem is recognised decisions reflect this, as has the recent report and we keep on trying to tackle it. Before from the Children Act Sub-Committee of the Lord Chancellor’s Advisory Board on Family the Children Act, the delays in wardship Law on Contact and Domestic Violence.12 were at least as bad but were not system- Case 3 complains that an adoption plan for a atically counted. There is a special need to child, who had been in foster care for four years provide a fast but eVective service for very while rehabilitation proved impossible, was young children changed without proper assessment, shortly + Some see it as a problem that the higher after the Children Act came into force. That is courts have lost their power to put children not the fault of the Act but of faulty in care without the local authority’s con- assessments and drift. sent, and to give directions to local Case 4 concerned a little girl who was failing authorities on how to look after the to thrive and who had signs highly suggestive of children. In practice, courts could only give penetrative anal abuse, but who was left in the directions to the local authorities in the family home for six months. This resembles a very broadest terms and there was little case I encountered where the inaction had noth- scrutiny or sanction for non-compliance. ing to do with the Act but rather with industrial The courts can scrutinise a care plan but action taken in protest at lack of resources. they cannot write it or see that is is put into Case 5 concerned a boy of 15 who did not eVect, any more than they can force a doc- http://adc.bmj.com/ want to go home from hospital but whose social tor or a health authority to provide a workers were unsympathetic. However, a particular treatment or programme of care paediatrician put him in touch with a solicitor for a patient, even if it is clear that it is who acted for him and forced the local author- needed. Do we really think that it would ity to help. It is the Children Act itself which give them power to do so? made this possible, by recognising that children + There are serious diYculties and delays in may take action in their own right. Ironically, finding appropriate permanent placements

this caused something of a furore when social for children. Fewer people want to foster, on September 23, 2021 by guest. Protected copyright. workers were accused of helping children to people prepared to adopt may want a defy their parents or run away from home. diVerent child, and residential placements No one can argue that everything in the gar- are both hugely expensive and potentially den is rosy. Let us acknowledge the real prob- dangerous. There are organisational issues: lems in such cases: transferring responsibility from large na- + Social workers are a hard pressed and tional adoption societies to local authorities underfunded profession who have to make may not have helped; setting up small uni- diYcult judgments without any of the pro- tary authorities may have increased the tection traditionally aVorded to doctors problems. Adoption procedures also need and lawyers. They are damned by the press to be improved (how about implementing if they intervene too soon or too often, and the 1992 Adoption Law Review rather than damned if they intervene too little or too reinventing the wheel?). late. They are subject to varying guidance We can all beneﬁt from acknowledging how from the government or their superiors as diYcult child care practice and decision to where their energies should be chan- making is, recognising when we have got it nelled. There is a risk that their expertise in wrong, and trying to learn from those mistakes assessment will be undervalued by courts to do it better next time. It is us, not the Act, and others, thus contributing to their own who are to blame if seriously abused children lack of conﬁdence and to delay and are not receiving the protection they deserve. expense in the courts. In a society governed by the rule of law (to + DAME BRENDA HALE say nothing of the European Convention Royal Courts of Justice, Strand, on Human Rights), compulsory interven- London WC2A 2LL, UK

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1 Speight N, Wynne J. Is the Children Act failing severely was positively dangerous in an Act that deals Arch Dis Child: first published as 10.1136/adc.83.6.463 on 1 December 2000. Downloaded from abused and neglected children? Arch Dis Child 2000;82:192–6. with abuse and neglect, whichever section it is 2 1993–94 HC 360. London: HMSO. in. 3 A Child in Trust. The Report of the Panel of Inquiry into the circumstances surrounding the death of Jasmine Beckford. We stand by everything we wrote regarding London: Brent Council, 1985. the bias in the Act towards natural families and 4 Department of Health and Social Security. Review of Child Care Law. Report to Ministers of an Interdepartmental Working the reinvention of the blood link. If this bias Party. London: HMSO, 1985. was not intended by the authors of the Act then 5 A Child in Mind.The Report of a Commission of Inquiry into the circumstances surrounding the death of Kimberley Carlile. perhaps there should be an oYcial announce- London: London Borough of Greenwich. ment to this eVect. 6 Report of the Review Panel into the death of Heidi Koseda. London: London Borough of Hillingdon, 1986 We entirely endorse Hale’s humane and 7 Whose Child? The Report of the Public Inquiry into the death of understanding description of the plight of the Tyra Henry. London: London Borough of Lambeth, 1987. social work profession. We would suggest that 8 The Law on Child Care and Family Services, Cm 62. London: the profession was left unprotected and vulner- HMSO, 1987. 9 Report of the Inquiry into Child Abuse in Cleveland 1987, Cm able after the Cleveland crisis and thus was 412. London: HMSO, 1988. more prone to interpreting the Act in favour of 10 An Introduction to the Children Act 1989. London: HMSO, 1989. natural families. 11 Re H (Minors) (Sexual Abuse: Standard of Proof) [1996]. Where the question of evidence arises, both Appeal Cases 563. 12 Children Act Sub-Committee of the Lord Chancellor’s sides of this debate are equally poorly Advisory Board. On Family Law, Contact and Domestic Vio- equipped. Apart from the crude ﬁgures for the lence. London: Lord Chancellor’s Department, 2000. reduction in care orders that we quoted, very few ﬁgures are available. Despite the vital nature of this area of work, there have been no attempts to audit the following important areas: + how often children with suspicious Speight and Wynne’s response bruises are not taken to a paediatrician + the number of cases of abuse when it is Weinvited Doctors Speight and Wynne to respond ... decided not to call a child protection case We are honoured that Dame Brenda Hale has conference responded to our article in such detail, and + how often local authority lawyers advise thank her for her kind introductory words. We social services that the grounds for care had intended to stimulate debate and whole- proceedings are not strong enough heartedly welcome her response. Overall, we + how many times health visitors and teach- feel a sense of common purpose with much of ers are discouraged by the failure of their her article and do not wish to be unduly defen- attempts to activate child protection sive. proceedings We entirely accept Lady Justice Hale’s + the number of sexually abused children in factual rebuttal regarding the sequence of school who refrain from disclosing their events leading up to the Act to the eVect that abuse to teachers because they sense that http://adc.bmj.com/ there was an extensive process of consultation they will not be adequately protected by before the Act and, indeed, before the Cleve- the system land crisis. However, we do not regard the mere + the number of times the courts reject occurrence of consultation as a counter argu- applications for care orders. ment to our statement that at present there is Our direct clinical experience of all the above no eVective lobby for the rights of abused chil- events occurring frequently is what led us to dren in this country. We made no criticism of take the position we did in our article.

the Butler-Sloss report which in our view, pro- We do have evidence that delays in Court pro- on September 23, 2021 by guest. Protected copyright. vided valuable evidence that the one sided ceedings are getting worse.2 Between 1993 and media view of Cleveland was misguided.1 1996, the length of proceedings increased from Unfortunately, the media failed by and large to 21 weeks to 29 weeks in Magistrates’ courts; acknowledge these truths and the public were from 30 weeks to 50 weeks in County courts; thereby denied the obligation to think again. and from 34 weeks to 64 weeks in the High We also accept (and indeed stated) that the Court. Delays are often due to poor court man- Children Act as it stands could, and perhaps agement and lack of court time. Furthermore, should, have been a valuable instrument to an increasing number of experts are being called protect abused children and promote their and the courts are demanding more thorough interests. However, we do not retract our basic assessments.2 The Children Act has failed to assertion (admittedly impressionistic) that the reverse the adversarial nature of court proceed- way in which the Act is being interpreted by ings, and judges still allow aggressive and hostile social workers and the courts frequently fails cross examination of witnesses and child victims children. In other words, Hale is justiﬁed in of abuse, to an extent that is a deterrent to the feeling “sadness and concern”. initiation of proceedings. In our view, the central issue is the question In general, we have received remarkably lit- of what the Act says or doesn’t say about natu- tle direct feedback on our article. A few ral families. We still believe that the Act’s paediatricians have commended us; others, initial guidance on this subject is the cause of together with social services, have maintained all the problems, and that its authors share a deafening silence. However, one senior social some responsibility for this. We believe that the worker in charge of child protection wrote that unqualiﬁed statement that “children are gen- she had had an uncanny feeling as she read our erally best looked after within the family....” article that she had already written it herself,

www.archdischild.com Controversy 467 Arch Dis Child: first published as 10.1136/adc.83.6.463 on 1 December 2000. Downloaded from word for word. She was planning to copy it to Department of Paediatrics, all her team and use it as the basis for a series Dryburn Hospital, of workshops. Durham DH1 5TW,UK Ultimately, we strongly endorse Lady Justice Hale’s ﬁnal paragraph and hope that the debate continues. 1 Butler-Sloss E. Report of the Inquiry into Child Abuse in Cleve- land 1987. London: HMSO, 1988. NIGEL SPEIGHT 2 Buckett C. Waiting for court decisions. Adoption and Foster- JANE WYNNE ing 2000;24:55–62.

STAMPS IN PAEDIATRICS

Congresses http://adc.bmj.com/ on September 23, 2021 by guest. Protected copyright.

National and international medical meetings are occasionally marked by the release of a stamp from the host country, and a few stamps have appeared over the years to commemorate paediatric congresses. One of the earliest is from Brazil for the 1st Brazilian Infant Welfare Convention and Paediatrics in 1947. In 1977, India released a single stamp to commemorate the 15th International Congress of Paediatrics held in New Delhi, the stamp depicting a Khajuraho sculpture “Mother and Child”. Two congresses are shown on the 1976 air stamp from Costa Rica—the 5th Pan American Chil- dren’s Surgery Congress and the 12th Central American Congress of Paediatrics. M K DAVIES AJMAYNE