State, Parent and Child: (2) The Welfare State and Child Care Legislation
The State, Parent and Child: (2) The Welfare State and Child Care Legislation
Introduction1
In 1943, the Ministry of Health set up an informal committee2 to consider what arrangements should be made for children left homeless when the wartime evacuation schemes were finally wound up. The Committee concluded that an ‘urgent examination’should be undertaken of the machinery needed for the ‘general care of children and adolescents’. Another Committee was considering the impact of the recommendations made in the 1942 Beveridge Report for the abolition of the Poor Law; and that Committee eventually produced detailed proposals for legislation intended to bring under a ‘single well-qualified and sympathetic administration’3 all provision for children in need.
These proposals were not quite as uncontroversial as they might seem: in particular, the Ministry of Health considered that there should be no association of any kind between the provision made for orphans and children whose parents were unable or unwilling to look after them properly and the authorities responsible for the police and the prevention and punishment of crime. This view was not welcome in the Home Office (which was the Department responsible not only for the administration of the Children and Young Persons Act 1933 but also for the police, and prisons and other penal establishments). The ground had been prepared for a grand battle between Departments of State.
(p.672) The Curtis Committee
There was a bureaucratic need for reform of the administrative machinery; but there was also strong public pressure (associated in particular with a campaign initiated and led by Lady Allen of Hurtwood)4 for improvements in the arrangements for care of the needy and neglected; and on this occasion the public pressure overbore any institutional opposition (or inertia). In March 1945, the Government set up a Committee of Inquiry, chaired by Miss Myra Curtis (a former civil servant, at the time Principal of Newnham College Cambridge).5 The Committee was to
’ inquire into existing methods of providing for children who from loss of parents or from any cause whatever are deprived of a normal home life with their own parents or relatives; and to consider what further measures should be taken to ensure that these children are brought up under conditions best calculated to compensate them for the lack of parental care’.
The Committee’s Report, published in 1946, led directly to the enactment of the Children Act 1948 which remained the foundation of State provision for children in need for the next quarter of a century and can properly be regarded as an integral and important part of machinery of the post-World War II Welfare State.
More than two-thirds of the Committee’s 182-page Report was given over to a detailed descriptive analysis of the existing arrangements, and (as the Finer Report6 put it more than a quarter of a century later) the account of the physical emotional and intellectual deprivation suffered by some of the children in care ‘shocked public opinion’. For example:7
in the children’s ward of one workhouse, ‘was an eight year old mentally defective girl … she could not use her arms or legs, There were two babies with rickets clothed in cotton frocks, cotton vests and dilapidated napkins, no more than discoloured cotton rags. The smell in this room was dreadful. A premature baby lay in an opposite ward alone…. The healthy children were housed in the ground floor corrugated hutment which had been once the old union casual ward…. The children fed, played and used their pots in this room. They ate from cracked enamel plates, using the same mug for milk and soup. They slept in another corrugated hutment in old broken black iron cots some of which had their sides tied up with cord. The mattresses were fouled and stained…. The children wore ankle length calico or flannelette frocks and petticoats and had no knickers…. Most of [the children] had lost their shoes; those who possessed shoes had either (p.673) taken them off to play with or were wearing them tied to their feet with dirty string. Their faces were clean; their bodies in some cases were unwashed and stained’.
The death of Dennis O’ Neill
The public had already been prepared for shocks by the publicity given to the case of Dennis O’ Neill, a 12-year-old boy in local authority care who had been boarded out with foster-parents at Bank Farm Minsterley Shropshire. He died there in January 1945 from acute cardiac failure following (as the coroner’s jury recorded) violence applied to the front of the chest and being beaten with a stick. The jury added a rider that there had been a serious lack of supervision by the local authority. It was certainly true that the local authority placing official’s statement that ‘the lad has gone to a very good home and will be brought up well’8 was sadly over optimistic. It is often thought that it was the publicity given to the O’ Neill case which prompted the establishment of the Curtis Committee, but in fact the decision had been announced a month before Dennis O’ Neill’s death. However, the case (and the Report into it carried out by Sir Walter Monckton)9 is repeatedly referred to in the Curtis Report and seems to have served as the justification for the new and positive ideology and the radical restructuring of child care services advocated by the Committee, whilst the decision to legislate was strongly influenced by politicians’ perception of the climate of opinion which the O’ Neill case had done much to create. Dennis O’ Neill can fairly be described as the victim whose death put reform onto the urgent agenda of practical politics.
The Curtis Committee’s recommendations
The Curtis Report contained 62 recommendations. The underlying themes can be summarised as follows.10
(1) The need for personal care
Public child care arrangements completely failed ‘to provide any kind of individual interest or notice’11 for a child. Substitute homes should compensate to the greatest possible extent for the psychological and material advantages derived by the ordinary child from a family background;12 and the comprehensive scheme (p.674)recommended by the Committee was intended to achieve this objective so far as it was possible to do so.
(2) Local involvement
Central Government responsibility for child care should be vested in a single department which would have the important responsibility13 of defining requirements, maintaining standards, advising and assisting those immediately responsible for the care of children, and acting as a clearing house for progressive ideas. Central Government would make rules governing such matters as boarding out procedures, and a central inspectorate would inspect children’s homes. But the Curtis Report rejected any suggestion that children in need of care should be the direct responsibility of a department of the Central Government. Constant ‘local interest in the children of a locality’ was a very important element in ensuring the children’s welfare.14 To this end, every local authority should be required to appoint a single Children’s Committee responsible for all the Council’s child care functions.15 This rationalisation would also avoid the dangerous confusion of the existing system.
(3) Appointment of Local Authority Children’s Officers
The belief that no office staff dealing with children simply as ‘cases’ could establish this vital personal link was the foundation on which the Curtis Report based its central conclusion that every local authority should be required to appoint a Children’s Officer of high standing and qualifications
’… highly qualified academically, if possible a graduate who has also a social science diploma. She16should not be under thirty at the time of appointment and should have had some experience of work with children. She should have marked administrative capacity…. Her essential qualifications, however, would be on the personal side. She should be genial and friendly in manner and able to set both children and adults at their ease. She should have a strong interest in the welfare of children and enough faith and enthusiasm to be ready to try methods new and old of compensating by care and affection those who have had a bad start in life. She should have very high standards of physical and moral welfare, but should be flexible enough in temperament to avoid a sterile institutional correctness.’17
This paragon was to be the pivot18 of the whole organisation of child care:
’She … will be a specialist in child care as the Medical Officer of Health is a specialist in his own province and the Director of Education is in his; and she will have no other duties to distract her interests’.19
The Committee saw the Children’s Officer as solving problems by personal contact and direct methods (such as talking to people rather than writing official memoranda).20 In this way all the persons who dealt with the child would be known personally to the ‘officer of the authority to whom the care of that particular child has been assigned’.21
(4) Preferred means of caring for children
The Committee had no doubt22 that every effort should be made to keep a child in the family home.23 But if this was not possible, the aim of the local authority had to be to ‘find something better—indeed much better. ‘.24 In order of preference, the Committee favoured adoption, then boarding out with foster-parents, and last, residential care in a children’s home.25
Curtis’s preference for adoption is often overlooked. But the reason why adoption does not figure in the Children Act 1948 (and was thus for long not regarded as a central part of the child care system) had nothing to do with the merits. It is rather that adoption was regarded as primarily concerned with legal status and thus not within the scope of a child welfare Bill26—a remarkable illustration of the way in which policy may effectively be determined by considerations of legal classification and departmental responsibility. It was to be nearly 30 years before the Children Act 1975 recognised that adoption constituted a technique vital to the provision of public care for the needy child.
The Curtis Committee’s preference for boarding out was based on the belief ‘that in the free conditions of ordinary family life with its opportunities for varied human contacts and experiences, the child’s nature develops and his confidence in life and ease in society are established in a way that can hardly be achieved in a larger establishment living as it must a more strictly regulated existence’.27 But this would only be true if the foster home were entirely satisfactory: under no circumstances should sub-standard homes be accepted (as was said to have been done in the O’ Neill case).28 The Committee had considerable faith in what could be achieved by administrative measures in ensuring good standards; but even so it was a bold step to commend the principle of boarding out when that had so disastrously failed Dennis O’ Neill.
(p.676) The Committee accepted that institutional (or ‘residential community’ care) would necessarily still have a continuing role in the child care system. The Committee made detailed recommendations about the general principles to be adopted (and enforced by inspection) in such homes. It also emphasised the need for effective inspection, supervision and enforcement of proper standards in all aspects of child care.
(5) Training
The Committee noted that staff caring for children were often without any special training for the task; and identified this as a factor in part responsible for unsatisfactory standards.29 A Central Training Council in Child Care should be established; and proper training should be given to the staff of children’s homes and to Boarding Out Officers.
(6) Voluntary homes
’ Voluntary homes’, often with a religious inspiration and management, cared for large numbers of children, and some (such as Dr Barnado’s) had established a favourable public image30 as doing good to the disadvantaged at a time when State provision was not developed.
But had such institutions outlived their usefulness? There were certainly some who associated voluntary homes (which were only subject to Government inspection if they solicited contributions from the public or received Poor Law children)31 with low standards of care, whilst the fact that many voluntary homes were exempt from inspection was a source of disquiet. There was also a more general conflict of ideology (particularly noticeable at a time when a Labour Government espousing socialist principles was in office with a large parliamentary majority) between those favouring the principle of centralised state planning and control on the one hand and those taking a more traditional attitude towards the proper function of government on the other. Lady Allen, for example, believed that since the State was to be responsible for the sick, the old and the unemployed it should equally assume direct responsibility for children in voluntary homes: all children deprived of a normal home life should become (p.677) ’ wards of the state’, albeit the direct responsibility of the an identified individual.32
The Curtis Committee was not sparing in its criticisms of some voluntary homes;33 but concluded that ‘as a group’ the voluntary homes did not fall below ‘the general level of child care now obtaining throughout the country’ and indeed that in ‘many instances they were well above it’.34 Hence the Committee adopted one of those compromises which have for long characterised the provision of welfare services in this country: such homes (whatever their status) should be required to comply with Regulations made by the responsible Minister, and they should be registered with and inspected by the relevant department of Central Government; but, provided that they could be brought up to the appropriate standard, they should be allowed to continue their activities in the care of children.35 If not, they should be closed down.
(7) Child neglect: compulsion
The Curtis Committee’s Terms of Reference required it to deal with children who had in fact been deprived of a normal home life with their own parents and not with the circumstances in which a child might be removed from home. The Committee accepted that children suffering from neglect, malnutrition or other evils might well be said to be deprived of a ‘normal’ home life, yet ‘the difficulty of drawing the line among children in their own homes is obvious’; and the Committee concluded that it was not its function to consider how to provide for children still in their own homes under their parents’ care but suffering from neglect, malnutrition or other evils.36 The Curtis Committee did regard the question of providing for the neglected child as one ‘of the utmost importance’ which it hoped would be given ‘serious consideration’. But the Committee was clear that this was not the problem with which it had been asked to deal; and accordingly it did not consider the basis upon which the courts could order that a child be removed37 from his parents against their will, nor did it consider how to improve the lot of disadvantaged children in their parents’ homes. The Curtis Committee was clear that it was exclusively concerned with what should (p.678) happen once a child was in the care of the State,38 not with defining the circumstances in which the State should be entitled to intervene in the family and take a child into its care. In short, the Committee was concerned with the world of social administration rather than legal action.39 Another 20 years would elapse before a government was prepared to bring forward legislation seeking to remedy the defects in the statutory provisions governing the circumstances in which a child could be removed from the home;40 and statutory provision specifically focussing on preventive work also had to wait for another committee41 and other legislation.42
(8) Guardians for the orphan?
Although the Curtis Committee was not concerned with the circumstances which might justify removing a child from the family, it was concerned with the question of legal authority in respect of the child who had in fact come into care. It followed from its view that an identifiable person should be (and be seen to be) responsible for the child’s care that it recommended that every orphan or deserted child maintained or supervised by a local authority should have a legal guardian—preferably a relative, but otherwise the Head of an approved voluntary home, or the local authority itself43—able to take the major decisions in the child’s life and ‘to feel full responsibility’ for the child’s welfare.
The Committee accordingly recommended that county courts and magistrates’ courts should be empowered to appoint a guardian for any child who had no natural or testamentary guardian, and it considered that the authority should ensure the question of guardianship was addressed in all cases in which it took responsibility for a child’s welfare.44 The Committee thought that its proposed guardianship procedure would help to give foster-parents a measure of security: ‘if this simple procedure were available it might often make possible a stable (p.679) relation short of adoption between a good foster parent and a child’.45 But as we shall see, the implementation of this policy gave rise to difficulty; and the question of how best to create a secure legal status for the long-term foster-parent still remained troublesome at the end of the century.46
(9) Assumption of parental rights: ‘Poor Law adoptions’
The Committee, in a somewhat confused passage in its Report47 seemed to suggest that the appointment of a guardian by the court under the procedure it recommended would also supplant the ‘poor law adoption’ procedure derived from the Poor Law48 whereby local authorities could by administrative means assume the parents’ rights over a child49 in their care in certain circumstances.
This procedure for dealing with the children of the poor may have been acceptable at the beginning of the twentieth century50 and had (as we have seen) been viewed favourably by various official bodies. The Curtis Report found that authorities in fact used their power ‘with discretion and a proper sense of responsibility’;51but in the post-1945 world complaints by parents about the use of the power had become ‘not uncommon’, and the Curtis Report accepted that public opinion was critical of interference with parental rights and personal liberty. The Committee believed that any additional publicity and work involved in court proceedings to deprive a parent of his rights ‘would be more than counterbalanced by the value of an impartial and detached judicial inquiry at the outset directed to the paramount welfare of the child’52 and concluded that to (p.680)extinguish the rights of a parent or other guardian by a mere resolution of a Council was fundamentally objectionable. But unfortunately the Committee’s views on court-appointed guardians and Parental Rights Resolutions were not fully worked out;53 and the procedure whereby parental rights could be assumed by administrative action not only survived until 199154 but was given an extended application by the Children Act 1975.55
THE CHILDREN ACT 1948
The Curtis Report was signed in August 194656 and there was strong press and parliamentary57 pressure for legislation. Government ministers described the report as a ‘landmark in the history of the collective care of children’58 and gave assurances that the Report would not ‘languish indefinitely’ in Whitehall pigeon-holes.59Although many of the Curtis Report’s recommendations could be implemented by administrative action60 it was clear that there would have to be legislation if only to deal with the consequences for child care of the ending of the Poor Law.61 But there was in fact considerable disagreement about the scope of the projected legislation and in consequence significant delay in bringing a Bill forward. The reason was that Curtis had recommended that a single Government Department should be responsible for child care but had—in response to some Whitehall pressure62—deliberately not recommended whether (p.681) this Department should be the Home Office, the Ministry of Health, or the Department of Education. A bitter Whitehall battle was fought behind closed doors,63and was only resolved (in favour of the Home Office) in March 1947. Until the issue of departmental responsibility had been settled there was little serious discussion of the contents of the legislation to be introduced. Even then, there was a strong (albeit in the end not effective) body of Official and Ministerial pressure to restrict the legislation to provisions essential in light of the abolition of the Poor Law.64
In spite of all this, and the many difficulties which had preoccupied the draftsman,65 the 62-clause Bill had a generally trouble-free passage through Parliament.66 It would, after all, be politically unappealing to attack provisions intended to ensure that children cared for by the State should get the personal sympathy and human understanding necessary to the well-being of children who lacked the love and affection of parents;67 and, although there might be reservations about the growth of State activity in this as in other areas, the Labour Government could point to a clear principle: the State was going to ensure, through the centralised administration of the National Assistance Board, that adequate financial resources were available to wipe out poverty as it had been known; and local authorities would bring ‘warmth and humanity’68 to caring for needy children.69 Only the question70 of the religious upbringing of children in care gave rise to much debate.71
(p.682) The Bill was attractively drafted to make the policy clear. Part I imposed a duty on local authorities to provide for children in need;72 and Part II dealt with the treatment of children who were in the care of a local authority. The Act73 provided that it was the duty of a local authority to ‘exercise their powers so as to further the child’s best interests, and to afford him opportunities for the proper development of his character and abilities’;74 and it expressly embodied the Curtis preference for boarding out with foster-parents (rather than institutional care). Only where boarding out was not practicable or desirable was the local authority to place the child in a home (either one provided by the authority itself75 or a suitably approved and inspected home provided by a voluntary organisation).
The Act also tried to eradicate the stigma of ‘being in a home’, for example by a provision that local authorities make use of facilities and services available to children in the care of their own parents so far as appeared reasonable,76 and by empowering authorities to pay for the further education and training of young people who had been in their care.77 These provisions seemed to justify the claim that if a child in local authority care wished and had the aptitude to become a doctor, a lawyer, or a musician, or to pursue any other career of his choice, ‘the local authority would see him through …’;78 and certainly the Act seemed to be inspired by a radically different philosophy from the provision which had previously required the authorities to ‘set to work’ orphans and destitute children.79 In short, the Children Act not only greatly widened the circumstances which justified providing public help for a child;80 it also greatly extended the kind of provision which could be made.
The Act also embodied (albeit under the unpromising heading of ‘Administrative and Financial Provisions’)81what was in ideological grounds perhaps the most striking of the Curtis recommendations—the requirement(p.683) (giving effect to the policy that children’s care should be in the hands of an identified human being) that each local authority should appoint a properly qualified children’s officer.82 Finally, the Act83 included provisions greatly extending the provisions for registration and inspection of children’s homes on which theCurtis Report relied as the best way to ensure good standards without inhibiting charitable organisations from continuing to play a full part in child welfare work; and it made important provision84 for the training of social workers and for the establishment of an Advisory Council on Child Care to advise the Government about child care issues.85
The 1948 Act was (as already emphasised) primarily concerned with the provision of help for children in need. It was no doubt sensible for the Lord Chancellor to reassure Parliament that the Act would not permit children to be removed from parents against the parents’ will;86 but questions of legal status and authority played little part in the public discussion. However, they had occupied a great deal of attention whilst Parliamentary Counsel was seeking to translate the Curtis recommendations into statutory form. How, for example, could a local authority care properly for a child unless it had parental authority? The answer was found in a delicate compromise: a local authority which had received a child into care was under a duty to keep the child in care for so long as the child’s welfare required,87 and the local authority’s statutory powers and duties then applied;88 but the legislation specifically provided that this provision was not to authorise a local authority to keep a child in care against the wishes of a parent or guardian.89
The legislation could in this way be presented as intended to safeguard the rights of parents against the encroachments of the State.90 But what was to (p.684) happen if a parent insisted on exercising the right to remove a child from care in circumstances which the local authority judged to be inconsistent with the child’s welfare? The solution which finally91 emerged92 from the drafting process was a reformulation of the power which Curtis had wanted to scrap: the local authority was to be empowered to assume parental rights over a child in care93 by resolution.94 But something approaching a right of appeal to the court was introduced: the authority was required to inform the person whose rights95 were to be acquired in this way of the fact that the resolution had been passed;96 and that person could then apply to the juvenile court. If such an application was made, the resolution would lapse97 unless the local authority satisfied the (p.685) court that the applicant had abandoned the child or was ‘unfit to have the care of the child by reason of unsoundness of mind or mental deficiency or by reason of his habits or mode of life’.98 In this way (it could be said) the legislation carefully preserved the principle that a parent was not to be deprived of his rights without having the opportunity to bring the matter before a court;99 and the Children Act tried to set a happy mean between interfering with legitimate parental rights100 and ensuring that local authorities were able to act effectively against neglect. But some years later, as parents (often supported by legal aid) became readier to challenge local authority decision taking,101the issue returned to prominence.
Child care after Curtis: social work values and the legal framework
The Children Act 1948 gave statutory recognition to the principle that it was the State’s duty to provide for children in need (and not merely, as had been the case under the old law, for children who were in need because they were destitute). But the fact that the administrative machinery which the Act created made the care of such children the concern of professional social workers and that over the years practice increasingly came to be seen as a matter for professional expertise102 exposed some tensions between what was recognised as good social work on the one hand and a legal system which in part continued to reflect the values of an earlier period on the other. The most obvious of those tensions was in relation to adoption, traditionally viewed by lawyers as primarily a matter of legal status rather than as a means of providing care for needy children;103 and (p.686)these different approaches were evidenced by the fact that adoption law, travelling in a compartment of its own marked ‘legal status’, was departmentally the concern of a different department of state104 from the department concerned with providing care for needy children.105
Helping families: preventive social work
One of the consequences of professionalising child care and recognising its practitioners as professionals with a specific expertise was to encourage the emergence of interest groups of various kinds; and it was not long before some of the pressure groups began to chafe at the restrictions of the legal system within which they had to operate. For example, although the Home Office106 had urged local authorities to ‘keep in mind the desirability of doing anything that may be possible’ to rehabilitate and educate neglectful parents the Children Act 1948 did not give authorities any power to give financial help, and the extent to which they could properly employ staff in Children’s Departments simply to help families was doubtful.107 Again, the grounds upon which a court order could be made in respect of a child neglected in its parents’ home remained as formulated in 1932108 and were thought by some inadequate.
In 1949 some of these concerns were raised in the House of Commons by Mrs Ayrton Gould109 who claimed that local authorities were unable to act in most cases of parental neglect unless the neglect could be shown to have caused a degree of suffering such as would justify prosecution of the parent;110 and a number of other MPs made it clear that they had absorbed the message that emotional deprivation could be as damaging for children as physical abuse. The Home Office made valiant efforts to improve the situation by encouraging greater co-ordination between voluntary agencies and local authorities;111 but the effectiveness of these attempts was questionable.
In 1952 a Conservative MP drew a favourable place in the ballot for Private Members’ Bills; and the Children and Young Persons Act 1933 was amended112 (p.687) in two main113 respects. First, the grounds upon which the court could make a ‘care and protection’ order were slightly extended;114 secondly (and potentially of much greater significance) the Act placed a specific duty on the local authority to make enquiries if it received information suggesting that a child was in need of care and protection.115
These changes in the law did not do much to meet the demands of increasingly vocal, committed and organised social workers for wider powers to undertake preventive work. In this view, the main need was to make ‘skilled help’ available to prevent the breakdown of the family and the reception of children into local authority care.116But the Government was under pressure from other interests too. In particular, the apparent increase in juvenile delinquency (which could no longer plausibly be attributed to the disruptions of World War II) made the authorities confront the question whether the juvenile courts had been as effective as had once been believed and whether anything could be done to prevent juvenile offending. In 1956 the Conservative Government responded in the (at the time almost inevitable) way. The Committee on Children and Young Persons, chaired by Lord Ingleby,117 was to inquire into the working of the law relating to juveniles brought before the courts as delinquent or as being in need of care and protection, the functioning of the juvenile courts, the remand home and approved school systems, the prevention of cruelty to children and whether local authorities should be ‘given new powers and duties to prevent or forestall the suffering of children through neglect in their own homes’.