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In Defence of the Children Act

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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.
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