State, Parent and Child: (3) Child Care Legislation at a Time of Transition, 1969–1989

The State, Parent and Child: (3) Child Care Legislation at a Time of Transition, 1969–1989

The Children and Young Persons Act 1969: the legacy of ideological confusion

The 1969 Act had been intended to provide a comprehensive code apt to deal with all children, whether delinquent or in need of care and protection. The court had first to be satisfied that any one of a number of primary conditions was proved. If so, the court could make a care order1 if (but only if) it was satisfied that the child was in need of care and control which he was unlikely to receive unless the court did exercise its powers. The primary conditions2 were in part modelled on the provisions of the amended Children and Young Persons Act 19333 but some were new;4 and broadly the 1969 Act can be seen as extending the circumstances in which the court could take action. However, the Act stopped short of empowering the court to make an order simply because the child was at risk of harm5 much less on the ground that it would be in the child’s interests to make an order.6

The Conservative Government ’s decision to retain prosecution of young delinquents7 had consequences for the law governing the treatment of other (p.696) children in need which may not have been appreciated at the time. In essence, the difficulty was that the draftsman ’s assumption that care proceedings would replace prosecution was reflected in the structure and drafting of the legislation; and the consequences were sometimes unfortunate for the child victim (however appropriate the policy might have been in its application to the delinquent). For example, it was assumed that the child accused of delinquency would still be entitled to be protected by strict rules of evidence and a high standard of proof was required. Little thought seems to have been given to the fact that the application of those same principles to the child at risk could easily put him further at risk. Again, the fact that the Act was drafted in terms of the child being brought before the court—the natural way of dealing with someone accused of an offence—could have unfortunate consequences where the child was a victim and not the offender. For example, only the child was given the right of appeal, and he could only appeal against the making of an order. Nobody accused of crime would want a right to appeal against an acquittal; but it did not seem to have been appreciated that a child might well be advised to appeal against a refusal to make a care order founded on his parents’ failings. Again, in many cases in reality the contest was between the local authority and the parents, yet the rules did not reflect that fact. Finally, in practice the legal process contemplated by the Act seemed to be largely accusatorial and thus inapt to provide the objective examination of all the facts which was really needed; whilst the legislation seemed to sanction the view that the court should return a child to its birth parent once the court was satisfied that the parent was fit unless return could clearly be shown not to be in the child’s best interests.8

The accusation that the 1969 Act failed adequately to protect children at risk seemed to be supported by the facts of the Maria Colwell case in 1973.

Maria Colwell was the youngest of the five children of her mother ’s first marriage. After her husband ’s death, the mother ‘went completely to pieces’, and the children were frequently left alone and were found to be neglected and dirty. Maria was cared for by her sister-in-law for some years, but in 1966 her mother (who had married an ‘Irishman with quite a wild reputation’) removed her. The local authority obtained a care order in 1966 but allowed Maria to remain with the sister-in-law. The authority believed that it was inevitable that sooner or later the court would order that she be returned to her mother whose circumstances seemed to have improved; and the social workers tried to build up contact between Maria and the mother notwithstanding the fact that Maria physically resisted their attempts. The mother was advised by her solicitor to make an application to revoke the care order. This forced the hand of the local (p.697) authority: a social worker made a report to the court which did say that the authority’s decision not to oppose the discharge of the care order but to accept a supervision order in its place had been neither easy nor clear cut but did not indicate the extent of the concern. The sister-in-law was not informed about the hearing of the mother’s application which she would have opposed had she been able to do so. No one spoke for Maria. There was therefore no probing of the case which went through Virtually on the nod’.9 Maria was returned to her home; and the supervision which should have taken place was ineffective. Her step-father killed her. Had the court been fully informed the outcome might have been different.10 The ‘accusatorial’ tradition of magisterial justice was made to appear quite inapt to protect children at risk of harm.11

This case provoked a ‘highly emotional and angry’ public reaction.12 It seemed to demonstrate that the law failed to protect children in danger. But equally, from a different perspective, the law seemed to be unfair to parents who were at risk of having their child taken away from them. In particular, local authorities could (and increasingly did) invoke the inherent wardship jurisdiction of the High Court13 to remove a child believed to be at risk and on such an application the court would be guided simply by the question of what would best promote the child’s welfare.14 Judges sometimes urged local authorities to use wardship precisely to avoid having to ‘take unpleasant awkward decisions themselves’—decisions which could cause ‘great pain and anguish’.15 There were even cases in which local authorities, failing to make out their case for a care order in the juvenile court, simply applied to the High Court to ward the child. This procedure may well have been effective in assessing risk rather than allocating blame but could hardly seem fair to the parents.16 Moreover, once a juvenile court had made a care order the local authority seemed to have virtually unrestricted and unchallengeable powers to decide on how the child should be treated (and, crucially, on what contact the parents should be allowed). These grievances, as we shall see, did not go away.

(p.698) The organisation of social services for children: personal involvement as against resource management

The Children and Young Persons Act 1969 may, in the emasculated form in which it was brought into force, have embodied an ambiguous approach to the relationship between the State and the family; but there was nothing ambiguous about the provisions of the Local Authority Social Services Act 1970 which came to govern the provision of social work services. It had been fundamental to the Curtis Report that the State should provide care for children in need through the medium of identifiable individuals dedicated to the welfare of those whose interests they served; and over the years children’s officers acquired a status comparing favourably with any other social service professional.17 But the increasing professionahsation of social work was one of the factors which brought about a change of approach. No longer would anyone claim that ‘a good character and a little domestic experience’18 was sufficient qualification (at least for residential care staff). The need for training in what had become a complex discipline became well understood; and it was increasingly appreciated that ensuring children received the most appropriate form of help available from the social services was much more difficult than had been appreciated by the Curtis Report in the immediate aftermath of World War II.

In 1968 the Report of the (Seebohm) Committee on Local Authority and Allied Personal Social Services19 flatly rejected the assumption underlying the 1948 Act that catering for the needs of the elderly on the one hand and children on the other were fundamentally different tasks and that accordingly organisationally distinct structures were necessary to ensure proper arrangements for such different groups.20 The Seebohm Committee recommended the creation of a new local authority department, providing a community based and family oriented service available to all; and the Local Authority Social Services Act 1970 gave effect to this philosophy. The Act provided for the unification under one committee and one chief officer of the social services responsibilities previously divided between children’s, welfare and health services; and accordingly children’s committees and children’s officers were supplanted by Social Services Committees and the specialist children’s officer and boarding out officer by the generic social worker.21 The day of the children’s officer, with a personal knowledge of all her charges, was unceremoniously despatched into history.

(p.699) The Seebohm Committee also recommended that a single Central Government department should be responsible for providing the overall national planning of social services, social intelligence and social research;22 and it was axiomatic that Central Government should play a decisive role in deciding policy and that it should assume responsibility for ensuring the availability of trained personnel.23 The Committee’s approach was consistent with both the 1964–1970 Wilson Labour Governments’24 belief in the planned economy and with the business inspired management philosophy of the 1970–1974 Heath Conservative administration.25 It was clear that the Ministry of Health was in a strong position to claim responsibility for the social services,26 and (notwithstanding a determined fight by Wilson’s Home Secretary, James Callaghan27 to preserve the Home Office Children’s Department) those functions were transferred to the enlarged Department of Health and Social Security in 1971. Subsequent experience refutes the post-World War II Home Office fears that child-related work would be given low priority in so large a department. On the other hand, it seems that the implications at the local level of the extensive reorganisation recommended by Seebohm were not fully appreciated. Many social (p.700) service departments suffered chronic overload; and this caused practical difficulties over the years ahead. It is at least arguable that the children’s officers appointed under the 1948 Act were able better to protect the welfare of individual children than the social work teams created after 1970.28

The waning of parental rights

The 1948 Act had been careful to protect the legal rights of parents: they were to be entitled to allow children to take advantage of the child care service without running the risk that their child would be taken from them. For this reason, the 1948 Act had provided that nothing in the provision imposing the duty to receive needy children into care was to authorise a local authority to keep a child in their care if any parent or guardian wished to take over the care of the child. Indeed the Act29 imposed a duty on the authority, in all cases where it would be consistent with the child’s welfare, to ‘endeavour to secure’ that the care of the child be taken over by a parent or guardian or even by a relative or friend.30

In the late 1960s and early 1970s it began to be questioned whether this continued respect for parental rights was consistent with the protection of children’s interests’ and a Home Office survey31 confirmed that the problem of parents exercising their legal right to withdraw children from care in circumstances giving rise to concern was a real one. (In a single year32 455 children were reclaimed by their parents against the local authority’s strong advice.) Sometimes the fact that the parents were asked to contribute to their child’s maintenance, sometimes their being asked to agree to adoption, and in a few cases the fact that the child had reached working age, precipitated the request; but in many cases a change in the natural family’s circumstances—often a solution of the problem which led to the child being in care—accounted for the parents wishing to have their child back in their own care. Given that there were nearly 70,000 children in care at the time, this evidence might not have been thought of itself sufficient to suggest the need for urgent action to protect children (p.701)against arbitrary exercise of the parental authority which the 1948 Act had been careful not to disturb. But there were other, much more powerful, factors. The press frequently ran stories of so-called ‘tug-of-love’ cases in which birth and foster-parents were seen to be in conflict about the upbringing of a child, and these tended to suggest that the law was too solicitous of the parents’ rights. Both popular journalists and academic writers increasingly urged greater recognition of children’s rights and of the claims of psychological parents—those, such as foster-parents, who had actually cared for the child—as against those of the birth parents.

In 1969 the Government had set up the Houghton Committee on the Adoption of Children.33 The Committee was asked to interpret its terms of reference broadly and in particular to consider the position of long-term foster-parents who wanted to keep the child for whom they were caring against the will of the natural parent.34The Committee duly recommended that local authorities should have power to assume parental rights over any child who had been in their care for a period of three years; but this was only one of a large number of recommendations intended to create a comprehensive institutional framework giving priority to the long-term welfare of children who could not be brought up by their own parents. In particular, the Houghton Reporthighlighted the potential of legal adoption as a technique (albeit only one of the techniques) available to social work professionals as part of a comprehensive social service for children.35 The Committee’s recommendations were the basis for the Children Act 1975.

The Children Act 1975: the end of parental rights?

The Houghton Report was published at a time of intellectual and political ferment about the issues of child care and protection. Beyond the Best Interests of the Child (a book written by an American lawyer, an American child development specialist and a British child psychiatrist36 published in 1973) was widely publicised, as was its emphasis on the need for continuity in children’s relationships with their social (as distinct from their genetic) families. (The authors’ belief in the policy of minimum State intervention in family life was less frequently noted.) Research in this country evidenced the devastating impact of family and social deprivation on children and supported the Houghton Report ’s view of adoption as a means of providing substitute families where there had (p.702) been a total breakdown.37 The fact that a child who had been in the care of a local authority for six months seemed in practice to have little chance of returning to his birth parents (and that children in care often had little actual contact with their parents)38 coupled with an increased realisation that the child’s concept of time was notably different from the adult’s39 reinforced the belief in the need for what was sometimes called permanency planning.40 Judges who had suggested that there was a ‘blood tie’41 (ie a strong instinctual link between a birth parent and the child) were subjected to withering scorn by some commentators. The Finer Committee on One-Parent Families42 drew attention not only to the inadequacies of the contemporary court system as a framework for resolving family matters43 but also to the need for a more co-ordinated relationship between the legal framework and the needs of families.

The reorganisation of local authority social services into social services departments managed by Directors of Social Services44 led to considerable expansion of the numbers of those employed;45 but field social work loads remained heavy, and the reorganisation (which coincided with a reorganisation of the structure of local government) caused a considerable upheaval.46 It was (p.703) certainly not clear that the problem of bureaucratic failure of communication (which had been a theme common to the 1945 Monckton Inquiry into the O’ Neill case and the Maria Colwell case nearly three decades later)47 had disappeared with a wave of managerial wands.48 However, the political controversy helped to raise public interest in social service issues; and the finding of the Maria Colwell Inquiry (published in 1974)49 that ‘the system’ had failed the child in that case aroused strong public feeling.50 The press gave the Colwell case ‘prodigious exposure’51 and even broadsheets52 launched emotive campaigns for reform.

In November 1973 the Labour MP Dr David Owen,53 disappointed by the failure of the (Heath) Conservative government to announce legislation implementing the Houghton Report, decided to use his favourable place in the ballot for Private Members’ Bills to introduce a Bill intended to give effect to the main Houghton recommendations but also including further protection against what was coming to be called child abuse. Refusing to be bought54 off by the offer of Government support for a ‘short bill to implement the findings of the Colwell enquiry55 he and a team of helpers produced a 64-clause draft.56 This was never (p.704) debated because the Heath Government faced with a major economic and political crisis resigned and Parliament was dissolved. Polling in the General Election (often said to have been fought on the issue whether Government or Trade Unions governed Britain) took place on the day which had been allotted to the Owen Bill’s Second Reading.57 But the draft Bill (a remarkable achievement for a Private Member without official assistance) was to form the basis for the Children Act 1975. Possibly more to the point, the publicity given to the Bill increased the pressure for Government action; and in March 1974 the incoming Labour Government announced that it intended to introduce a comprehensive Bill dealing with adoption, guardianship, and fostering of children on the basis of the Houghton Report.58 Moreover, in response to the strong feelings59 engendered by the Colwell case, the Government decided to add to the Bill provisions (said to be ‘carefully circumscribed’ to avoid a mere diversion of resources from field social work to lawyers) for the separate representation of children. Where there was or might be a conflict of interest in care proceedings between the child and his parents the court was to have power to order that the parent was not to be treated as representing the child, that an independent guardian ad litem60 should do so, and in these circumstances the parents would become eligible for legal aid in order to help the presentation of their case. These provisions were to prove exceptionally significant for the future development of the family justice system.61

The Children Act 1975 on the statute book62

The key provision of the 1975 Act was to be found in its first section. This provided that local authorities should either provide an adoption service63 themselves or secure that it was provided by others. The Act defined the functions of this service very broadly: it was to include the provision of accommodation for pregnant women and mothers and children, making arrangements for the placing (p.705) of children and the provision of counselling about adoption for prospective adopters, birth parents, and children;64 and the Act also required the adoption service65 to act in conjunction with the other social services provided by local authorities, such as those relating to children in care and foster children. In this way the Act would have integrated adoption with other services relating to children in need; and the fundamental aspiration66 was that help should ‘be given in a co-ordinated manner without duplication, omission or avoidable delay’.

The 1975 Act also sought to shift the balance by giving greater prominence to the child’s welfare when decisions had to be made about adoption: the legislation required courts and adoption agencies to give ‘first consideration’67 amongst all the circumstances of the case to the need to ‘safeguard and promote the welfare of the child throughout his childhood’, and so far as practicable ascertain the child’s wishes and feelings and give ‘due consideration’ to them.68 At a practical level, the Act sought to reduce the stress to parents and adopters (and also to encourage adoption being seen as a possible option even in cases in which it was known that the parents would not agree) by creating the framework for a procedure (‘freeing for adoption’) whereby all issues relating to parental consent to adoption would be dealt with before the child was placed for adoption.69 In this way, no additional harm would be done to the child if the court upheld the parental refusal, whilst adopters could be more secure in the knowledge that the child placed with them was ‘free’ for adoption and that their plans could not be upset by a parental change of mind.

The professionalisation of the adoption process was to be underlined by prohibiting independent placements for adoption70 and the Act also contained provisions discouraging adoption by parents, step-parents or other relatives of the child.71 The legislation provided the statutory framework for an alternative legal institution (‘custodianship’) to provide legal security for those providing (p.706) long-term family care for a child.72 Not only foster-parents73 but step-parents and relatives who might otherwise have opted for adoption were amongst those at whom this new procedure was targeted.

A foster-parents’ charter?74

The Children Act 1975 shifted the balance against the birth parents in a number of other ways; and the new custodianship legislation was only one provision intended to give those caring for a child greater legal security as against a claim by the birth parents. First, the Act provided that once a child had been in local authority care for six months anyone wishing to remove him had to give 28 days’ notice of his intention. Secondly, the grounds upon which a parental rights resolution75 could be based were extended, notably to cover the situation in which the child had been in the care of a local authority or voluntary organisation for three years or more.76 Thirdly, foster-parents who had cared for a child for five years and wanted to seek a permanent adoptive relationship were given a measure of protection by a new rule prohibiting the birth parents from removing the child until the court had dealt with the foster-parents’ adoption application.77 These new provisions did not please some (who thought they went too far)78 but others thought they did not give sufficient weight to the primacy of the child’s interests.79 In practice, it was foster parents, and especially those who had cared for a child for some time, who most clearly had their legal position strengthened by the Act.

Adoption remains different

Although the 1975 Act was intended to remove obstacles to adoption and to encourage its use in long term planning for a child’s future it also contained provisions (p.707) which emphasised the difference between adoption (which effected a change of legal status) and other procedures for dealing with the care of a child (which did not have that effect). Thus, adoption was to put the adopted child in virtually the same position as the adopters’ birth child for purposes of entitlement to property.80 In this way, the fact that adoption severed the legal relationship between the birth parent and the child was emphasised; but the legislation accepted that the genetic facts could not be altered and it had increasingly been realised that many adopted children felt a strong need to find out the truth about their origins and genetic identity. The Act therefore gave effect to the Houghton Report’s recommendation that people who had been adopted should have the right of access to their original birth records.81 These provisions—surrounded by conditions and qualifications as they were—prompted a great deal of concern, but that did not surprise those familiar with the history of the adoption agencies’ concern for secrecy.82

Problems of implementing the Children Act 1975

Had the provisions of the 1975 Act actually been brought into force with only the delay necessary to allow appropriate administrative structures to be set up it is possible that it would have been seen as a landmark in the history of child law. But the enactment of the Children Act coincided with a period of severe economic difficulties and the Government had made it plain from the outset that those parts of the Act which involved public expenditure could only be implemented as funds became available. No less that ten years went by before the provisions relating to custodianship were brought into force on 1 December 1985; and there was an even longer delay in bringing into force the statutory requirement that local authorities secure the provision of a comprehensive adoption service. These did not become law until 1988.83 Of course, this did not mean that practice remained unchanged. The Department of Health issued Circulars to local authorities exhorting the various agencies concerned to follow good practice; and the Department took full advantage of the power to make delegated legislation—for example, the Adoption Agencies Regulations, made in 1983, laid down very detailed procedures intended to ensure so far as possible (p.708) that the child’s interests were properly assessed and met—whilst a great deal could be and was done by purely administrative means.84

The politicisation of child law

The decade following the enactment of the 1975 Act increased public and academic interest in child law and led to calls for further reform;85 but at the same time the different interests tended to become polarised. As the House of Commons Social Services Committee86 put it in 1984:

‘There has recently come into discussion of child care issues a new and disturbing stridency in the advocacy of [the respective rights of the child, his parents and the state] on behalf of one group or another. …

The emphasis of the 1975 Act had been on the position of the children and those who were caring for them; and it was not difficult to rouse support for birth parents faced with intervention by local authority social workers. First, once a care order had been made under the Children and Young Persons Act 1969 it seemed that the local authority was in a position to prevent a parent having any significant contact with the child; and the parent was legally powerless to do anything about it. Thus:

In A v. Liverpool City Council the local authority proposed restricting the mother’s access to her 2M-year-old son to a supervised visit once a month to his day nursery. The House of Lords held that the child care legislation had marked out an area in which decisions about what would serve the child’s welfare had been removed from the parents and from any supervision by the courts.

The consequences for the parents could be devastating. It is true that an adoption order could not be made unless the parents either gave their consent or the court dispensed with it on specified grounds.87 But it would be open to the local authority to argue (with some prospects of success) that since the parents’ contact with their child had been so limited a refusal by them to agree to the child’s (p.709) adoption was unreasonable;88 with the result that the court would dispense with consent and the link between parent and child would be conclusively, permanently, and irrevocably severed.

Secondly, it could be argued that the parents were at a serious disadvantage when a local authority decided to apply to the court for a care order. The juvenile court might find that the authority had not established one of the grounds specified in the Children and Young Persons Act 1969; but the local authority could then invoke the wardship jurisdiction of the High Court and seek to have the child entrusted to its care simply on the ground that the child’s welfare would be best served in this way. Apart from that, the fact that the child’s parents were not parties to care proceedings sometimes made it difficult for them to put their side of the story as they would wish.

It was all very well for the Government to repeat that the 1975 Act did not disregard the interests of parents; but it was also compelled to admit that some parents ‘understandably’ felt themselves to be at a disadvantage.89 It was easy enough for the Government to claim that the child’s welfare was ‘central to the thinking underlying the Act’. But local authorities, urged to plan the future of children in care ‘more vigorously’,90 may have made a different assessment than did the families involved not only of how the balance between their rights and interests and those of the child should be struck but also of where the child’s welfare lay. It has been said91 that the 1975 legislation ‘came to be viewed by some as unhelpfully tipping the balance away from “conciliation” with birth parents towards “confrontation”’.

It was not only parents who complained. Groups representing children in care had emerged; whilst the view that the law failed to give effect to the child’s own rights as an autonomous individual began to be urged in academic and other literature.92 The belief that establishing ‘family courts’ would solve (p.710) many of the difficulties was—at least outside the Government machine—widespread.93

Child abuse: social work failures

Parental grievances often seemed to suggest that social workers had been given too much power; but it was the publicity given to cases in which the child care system had nevertheless failed adequately to protect children which made the greatest contribution to keeping the topic on the political agenda. The names of John George Auckland, Richard Clark, Stephen Menheniott, Darryn James Clark and Paul Steven Brown94 should be added to those of Dennis O’ Neill and Maria Colwell in any memorial to those whose sufferings created the climate of opinion requiring that something be done.

Those cases were perhaps only the most dramatic. The 1970s saw an upsurge of interest in the phenomenon of domestic violence; and in 1977 a House of Commons Select Committee95 estimated that as many as 40,000 children each year were victims of abuse96 causing injury. The catalyst for further reform was the Inquiry carried out by the House of Commons Social Services Committee chaired by Mrs Renee Short,97 between 1982 and 1984 into the whole subject of children in care.98

The Short Inquiry did consider the substantive and procedural law, and made a number of recommendations. But historically its most important recommendation was this:

‘The time has arrived—indeed it arrived some time ago—for a thorough-going review of the body of statute law, regulation and judicial decisions relating to children, with a view to 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. Such a review goes well (p.711) beyond questions of legal technicalities but falls short of a fundamental examination of family courts, which must of necessity take longer, or of child care practices as such. We consider that such a review would be best carried out under the Department [of Health’s] policy direction, by a Working Party of lawyers, social work practitioners and others … It should work to a tight timetable, and should be expected to produce a draft codified child care law within nine months of its establishment.’

The Second Thatcher Government reacted speedily. In July 1984 it set up an Interdepartmental Working Party ‘to set out options for codification and amendment of child care law’.99

The 1985 Review of Child Care Law

The Group worked speedily and with great thoroughness, publishing no fewer than 12 detailed interim discussion papers and considering a mass of evidence (including specially commissioned research).100 Its task was eased by the fact that the Government excluded the way in which the law treated juvenile offenders from the scope of the enquiry thereby, almost casually, destroying the belief (axiomatic for more than half a century in informed circles both within Government and outside it) that delinquency on the one hand and deprivation on the other were merely two sides of the same coin. The Working Party itself decided to exclude adoption from detailed consideration. This greatly simplified the Working Party’s task, but at the price of reversing the progress made by the Houghton Report and the 1975 Act towards viewing the legal structure for children in need as a whole.

The Working Party’s Report, published in October 1985,101 contained no fewer than 223 recommendations; and the members of the Working Party—all but one102 Civil Servants—evidently did not share the traditional reluctance of the Civil Servant to abstain from making firm and public recommendations about future policy.103 The Government treated the Report as a Consultative Document, and in 1987 published a White Paper104 setting out the policy which it had adopted in the light of the reactions of professional and other groups’ responses to the Working Party’s Report.

(p.712) The Law Commission’s Review of the Private Law

At much the same time the Law Commission was carrying out a review of the law105 allocating responsibility for caring for children to individuals (for example, parents involved in divorce proceedings or guardians). Between 1985 and 1987 the Commission published four impressive scholarly and comprehensive Working Papers as a basis for consultation;106 and both the Working Party’s Review of Child Care Law (to which one of the Law Commissioners107 had been a prominent and evidently influential contributor) and the Government’s response to the Review were available as the Commission deliberated on the recommendations for reform of the private law it would make in its final report.108 The Commission, like the Review Working Party, did not consider adoption law.109

A bold vision: the Law Commission demonstrates the need for joined-up legislation

The Law Commission’s starting point110 was that the private law was confusing and unintelligible, but it also expressed its belief that the public law examined by the Review was not only ‘complicated, confusing and unclear’ but also in places unjust. The Commission concluded that ‘consistency, clarity and simplicity’ in the courts’ powers could best be achieved by a single set of statutory provisions dealing with all powers to put children into local authority care; and it believed that those provisions could be combined with the provisions necessary to deal with local authority provision of services for families and children.111 But the Commission went further than merely pointing out the desirability of change. Rather than paying excessive respect to a rigorous interpretation of its terms of reference, the Commission boldly seized what Lord Chancellor Mackay had described112 as the ‘historic opportunity to reform the English law into a single rationalised system as it applies to the care and upbringing of children’ and published draft clauses for legislation giving effect not only to its own proposals for the private law relating to the upbringing of children but also to the Government’s proposals for the public law dealing with (p.713) State intervention in the family. This demonstrated how a complete legislative code could be achieved, and the advantages which such a code would bring.113

Public pressure for reform: child abuse, the Beckford, Carlile and Cleveland Inquiries

There is always strong competition for space in the Government’s legislative programme, and legislation (especially legislation dealing with controversial matters, perhaps cutting across traditional party boundaries) will not be brought forward unless the case for doing so seems strong to the Government and the ruling political party. The mere fact that a body of legal experts such as the Law Commission found child law ‘confusing and unclear’ would of itself not seem a compelling ground for taking action. But there were other events which did have a decisive impact on the course of events.

The first was the death of a four-year-old girl, Jasmine Beckford, at her home in Kensal Rise in the London Borough of Brent (as it happened, in July 1984 as the Inter-Departmental Working Party was being established) at the hands of her step-father. Jasmine was in the care of the London Borough of Brent under a care order, but for two years prior to her death Brent had allowed her to be physically in the care of her mother and step-father. A Panel of Inquiry chaired (p.714) by the prominent reforming lawyer Louis Blom-Cooper QC114 was appointed to investigate. The Panel decided that the Inquiry should go beyond an examination of the events surrounding the fatality of a particular child in care and into ‘some of the broader issues that provide the framework … of the law of child care.’115 It heard 93 witnesses (and the 18 lawyers who represented some of them).

The Report of the Beckford Inquiry was completed in 1985 and covers more than 300 pages. It examines not only the facts of the Beckford case116 but also considers the underlying principles governing the State’s duty to protect children from abuse. The Panel stated117

‘… we have identified and isolated one fundamental aspect of professional response to child abuse that has been overlooked or discarded by modern social work training and practice. It is that the making of a Care Order invests Social Services with pervasive parental powers. By such a judicial act society expects that a child at risk of abuse from its parents will be protected by Social Services personnel exercising parental powers effectively and authoritatively on behalf of society. Such a child is a child in trust.’

The Panel made a number of detailed recommendations for the improvement of law and practice based on that premise.118 Of these, the recommendations dealing with court procedures were of particular significance. But the Beckford Report (in this respect like the O’ Neill Report 40 years previously) was perhaps of most significance not for its detailed recommendations but for the contribution it made to the climate of opinion. There was much public criticism of social workers for failing to act promptly and decisively; and more generally a feeling that something needed to be done.119 In particular, the Report was seized on as ammunition supporting the case for a so-called family court,120 and for a Private Member’s Bill which would have required application(p.715) to the court before a child in care under a care order could be allowed home On trial’ to its parents.121

The second event which seems to have added to the pressure for ‘something to be done’ was the death of another four-year-old girl, Kimberley Carlile, on 8 June 1986. The immediate cause of death was a blow to the head inflicted by her step-father; but the Commission of Inquiry—again chaired by Louis Blom-Cooper QC—found that Kimberley had been ‘tortured and starved for many weeks before her death’.122 The Inquiry detected failings in the conduct of a number of those professionally involved; and made more than 50 detailed recommendations.123 But the Kimberley Carlile Inquiry was especially notable for seeking to explain the reasons for the public response to cases in which a child died whilst in the care of a local authority or when social service departments seemed to have failed to protect a child from abuse or neglect:

‘Verbal abuse of social workers, bordering on the hysterical, abounds in the popular press; threats of violence have not been uncommon. Social workers have not found it easy to cope with such saturating media coverage devoted to each child abuse case’.124

—and the Commission pointed out that

those who undermined ‘the confidence and morale of the people that society is sending out in its name to protect our children should realise that what they are thereby doing is, unwittingly, to put at risk the children whom they wish devoutly to protect’.125

Reform of the system was necessary to make the child protection system effective in safeguarding children and providing the necessary support for those professionally involved.

In the 15 years following the death of Maria Colwell there had been more than 30 major child abuse inquiries126yet the subject refused to go away. It is possible that (as the Kimberley Carlile Inquiry suggested)127 there had ‘at last’ emerged some ‘glimmerings of public awareness that the problems of protecting children from abusing parents do not yield readily to simplistic situations’. But events in the North East of England in the summer of 1987 were to demonstrate the fragility of rationality in this area. They were also, however, to lead directly to legislation which could be shown to be based on a rational appraisal of the balance between the interests of children and the interests of their parents and other adults and the end of what the Kimberley Carlile Inquirycalled the (p.716) ‘constant pendulum-swinging’ which had characterised legislative policy over the previous 30 years.

The Cleveland crisis: child sexual abuse

Three months after the London Borough of Greenwich had set up the Kimberley Carlile Inquiry the Government ordered a statutory enquiry,128 to be chaired by Dame Elizabeth Butler-Sloss129 (a Judge of the High Court, Family Division) ‘to examine the arrangements for dealing with suspected cases of child abuse in Cleveland since 1 January 1987, including in particular cases of child sexual abuse, and to make recommendations’.130 The background was that between February and July 1987 two paediatricians in Cleveland had diagnosed 121 children as the victims of sexual abuse.131 At the height of the crisis prompted by this unprecedented rise in the diagnosis of child sexual abuse,132 the paediatricians told the Director of Social Services that the detection of abuse was a breakthrough in the care of children and could explain many problems of child health which had not previously responded to treatment.133 The number of cases brought to court threatened to overwhelm the system, not least because applications by the local authority were often opposed and the medical evidence hotly disputed.134 The events of the summer brought about a ‘fundamental breakdown in communication with and co-operation between’ the professional disciplines involved which had impeded the proper approach to the care and protection of children in the area.135 They also aroused deep passions136 and prompted huge media coverage and public controversy.137 One local Member of (p.717) Parliament made allegations of serious misconduct against the paediatricians who had diagnosed sexual abuse of young children,138 another local Member (from a different party) urged that the paediatricians concerned be suspended pending the outcome of an inquiry,139 whilst a third local Member of Parliament140 compared the conduct of the Social Services to that of the wartime German SS. The decision to set up an Inquiry was the least response that the Government could take141 to the ‘enormous concern’ voiced by nurses, the police, Members of Parliament and others;142 and, a decade later, it is clear that public concern about the effectiveness and fairness of the family justice system in protecting the interests of those concerned, both parents and children, was indeed justified. But whereas previous inquiries had in general provided ammunition to those critical of social workers for failing to intervene many of the complaints giving rise to the Cleveland Inquiry were of ideologically motivated and wholly unjustified intrusion by social workers into family life.

The Cleveland Report was in many respects unlike other child abuse inquiries. In particular, it was concerned to provide a working solution to a crisis and to restore confidence in the working of the agencies concerned with the care and protection of children; and it did not make specific findings about the truth of the allegations which had given rise to the crisis. But it was the fact that (p.718) the inquiry was (in contrast with the other post-World War II abuse inquiries which were concerned with neglect and what was at one time called ‘battering’) largely concerned with sexual abuse143 which seems to have heightened media interest.

Sexual abuse of children is nothing new144 and both the Punishment of Incest Act 1908 and the Age of Marriage Act 1929145 were (at least in part) responses to this phenomenon. The work of Sigmund Freud had given prominence in literary circles to issues of infant sexuality, and latterly prompted controversy about the extent of child molestation.146 Nor could this particular crime be regarded as the preserve of the traditional delinquent classes. There is, for example, compelling evidence that the distinguished British sculptor and typographer Eric Gill had habitually had sexual relations with his own daughters;147 whilst Virginia Woolf has left her own account148 of an incident with her half-brother:

‘Once when I was very small Gerald Duckworth lifted me onto [a slab outside the family dining room used for storing dishes]. I can remember the feel of his hand going under my clothes; going firmly and steadily lower and lower. I remember how I hoped that he would stop; how I stiffened and wriggled as his hand approached my private parts. But it did not stop. His hand explored my private parts too. I remember resenting, disliking it—what is the word for so dumb and mixed a feeling? It must have been strong, since I still recall it…’.

But recognition that such behaviour did take place seems only to have become widespread in the 1970s; and then, as the distinguished clinician Dr Hamish Cameron told the Cleveland Inquiry:149

‘Whenever a “new” illness or treatment is described a flurry of excitement develops amongst professionals. This has certainly been the case with child sex abuse. However, in addition to the normal excitement generated by any “new” condition, there is an added voyeuristic component arising from the universality of interest in sexual matters … [It is] well to bear in mind the complex forces which can affect judgment and action in dealing with emotionally powerful material’.

Amongst the factors which made the topic particularly emotive were the suggestions that such abuse was common within the family.150 Increasing numbers of adults complain that they were sexually abused as children, and statistical (p.719) material examined by the Cleveland Inquiry confirmed that there had been a significant increase in investigations of the possibility that a child had been the victim of such abuse.151 An eminent child psychiatrist152 told the Cleveland Inquiry153 that the reason for this increase was

‘increased diagnosis, the recognition that children who described abusive experience were not fantasising, and an increasing awareness of the pattern of physical and behavioural disorders of children’ who had been abused.

The question of diagnosis was crucial in the unfolding of events in Cleveland. A child who has been battered will usually have symptoms which will often be visible to the casual observer and almost always comprehensible by laymen on the basis of a medical examination. Moreover, battered children will sometimes complain about their injuries and can be asked about them; and their attitudes and behaviour will change in a way frequently apparent to a sensitive observer. In contrast, children who have been sexually abused often do not display symptoms apparent to the uninformed, and one of the striking features of the Cleveland cases was that the children generally said nothing, and there was often nothing in their behaviour which suggested to families or teachers that anything untoward had occurred.

Against this background, the main controversy centred on the reliance to be placed on comparatively novel diagnostic techniques used by the paediatricians involved in Cleveland. The senior police surgeon in Cleveland disagreed with the paediatricians, and became convinced that families whose children were removed on no other basis than the paediatrician’s diagnosis were suffering a grave injustice.154 Because of this, there was a breakdown of relationships between the police (responsible for investigating allegations of criminal behaviour) and the social workers concerned, the police advising officers to treat diagnoses by one consultant paediatrician with caution and not to take any positive steps based on those diagnoses unless there were substantial corroboration from other sources.155

The Cleveland Report concluded that because child sexual abuse has characteristics different from physical abuse it had been wrong for social workers to (p.720) ‘suspend disbelief and automatically to initiate compulsory intervention procedures solely on the basis of a paediatrician’s diagnosis. What was required in such cases (but had not been provided in Cleveland) was

‘cautious measured intervention which will allow the risks of a false positive finding to be balanced against those of a false negative and which will produce the evidence required by the court to secure the future welfare of the child concerned’.156

The Cleveland Inquiry lasted for 78 days; and the Cleveland Report was delivered on 6 June 1988. The Report’s 320 pages contain a full description of events and an analysis of the issues arising from them. It concluded that the authorities in Cleveland had made an honest attempt to address the problems of child sexual abuse; but that in the spring of 1987 things ‘went wrong’.157 The Report made careful findings about the conduct of the principal figures and the practices of the professional groups involved; and it made many recommendations for improvement (ranging from the establishment of specialist inter-agency assessment teams to the proper conduct of interviews with children thought to have been abused).158

In relation to the working of the legal system,159 the Report highlighted the importance of the initial stages when Place of Safety Orders160 were used to authorise the removal of children from their parents and parents denied access (p.721) to their children; and it highlighted the difficulties of magistrates’ courts faced with cases involving complex and disputed issues of fact. The Report also recorded the way in which the wardship jurisdiction of the High Court could be invoked.161 But the Report disappointed those from both ends of what had become a highly politicised spectrum who looked to it to establish the extent of child abuse in general and the question whether the paediatricians’ diagnosis (which had led to most of the 121 children concerned being separated for longer or shorter periods from their families) had been correct in particular. Instead the Report merely recorded the facts: at the time of the Inquiry 98 of those 121 children were at home with their parents (albeit some of them on terms which included requirements for supervision, medical examination and so on).162This was consistent with different interpretations about the extent of the problem.163

Nonetheless the Report, with its underlying assertion that the ‘voices of the children were not heard’ in Cleveland,164 and the philosophy it adopted that the ‘child is a person and not an object of concern’165 were warmly welcomed.166 But although the Report’s recommendations for practice on such matters as interviewing techniques and on the proper exercise of agencies’ discretion to invoke the legal system to remove children from their homes were widely disseminated and highly influential they were evidently not always immediately followed in practice. In 1989, for example, it seemed for a time that so called ritual or satanic abuse (a topic publicised especially by some North American sources) was set to replace sexual abuse as a topic for social work concern and media publicity, and in at least one case167 it became clear that the lessons of Cleveland had been widely ignored:

A schoolteacher in Rochdale Greater Manchester became concerned about the emotional and psychological state of a six-year-old boy who ‘seemed to live in another world’ and talked about a ‘family of ghosties’ and of flying and being given special drinks which made him fly. Later he said that he had been digging in a cemetery and had had to bury people and ghosts there. Social workers became involved, interviewed the boy, and (believing that there had been horrifying and frightening organised ritual abuse) decided to seek a place of safety order in respect of the boy and the three other children in his family. The police (p.722) searched the family home and arrested the father, subsequently releasing him without charge. The boy and his sister had claimed other children were involved. The local authority instituted wardship proceedings in respect of the children in three families; and in a ‘dawn raid’ the police and social workers removed them from their homes. After a 47-day hearing the judge held there was no evidence that any of the children had been ritually or satanically abused. Whilst accepting that the social workers involved were dedicated and warmhearted, devoted to the children’s welfare and skilled at dealing with children in a sympathetic way, the judge was highly critical of the procedures adopted by the local authority in handling the case, not least for traumatising the children by removing them from home when they were scarcely awake and in failing to apply the Cleveland Report ‘s guidelines for interviewing children.

The Government’s response to pressure: the Children Act 1989

As the Secretary of State had said in welcoming the Cleveland Report there is no ‘single, simple answer’ to the problem of child neglect and abuse; and it is certainly true that it takes time to change institutional cultures. The Secretary of State had given undertakings about the steps which were to be taken to deal with the administrative and other failings identified in the Report—in particular, specific guidance was published about inter-agency collaboration—but these took time to become effective.

In contrast, the substantive law can be changed immediately by statute, and the Secretary of State had come close to giving an undertaking that the Government would introduce comprehensive legislation. The Government had published a White Paper168 setting out proposals intended to provide a ‘clearer and fairer’ framework for the provision of child care services and the protection of children at risk before the events in Cleveland had been publicised. The relevant sections had been considered in the Cleveland Report, and the Secretary of State was able to claim that the Report had accepted that the White Paper would ‘strengthen the rights of parents and children’.169 But the Bill which the Government eventually introduced (and which becamethe Children Act 1989) went much further than the White Paper, for it dealt not only with the public law of child care but also substantially integrated the public law and the private law (dealing with procedures not directly involving the State but regulating the up-bringing of children). The Law Commission had demonstrated that this was possible, and the fact that Professor Brenda Hoggett170 had been able to formulate (p.723) the Government’s public law proposals in the context of a comprehensive codification seems to have been particularly significant.171 Lord Mackay’s description of the Children Act 1989 as the ‘most comprehensive and far reaching’ piece of reforming legislation in the area ‘in living memory’ was not a significant exaggeration.172

The Children Act 1989: a model of legislative codification

The Children Act 1989 demonstrably meets its sponsors’ objective of providing a comprehensive clear and consistent statement of child law, based on clearly articulated principles. It remains in force at the turn of the century, and seems likely to continue to provide the foundation of the legal structure for resolving issues about children’s upbringing for many years ahead. The reader must refer to other books for an account of the Act’s provisions and of how they have been interpreted in the courts. All that the present text seeks to do is to indicate the major historical shifts of legislative policy and legal procedure.

Creation of a flexible and specialised court system for dealing with litigation about the care and upbringing of children

The Children Act 1989

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