The Development of Child Protection Law and Policy

Children, Risk and Modernities

Kieran Walsh

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9781032237312
• eBook ISBN: 9781000044645
• Topic: History
• Subtopic: 20th Century History
• Index: History

This book examines how child protection law has been shaped by the transition to late modernity and how it copes with the ever-changing concept of risk.

The book traces the evolution of the contemporary child protection system through historical changes, assessing the factors that have influenced the development of legal responses to abuse over a 130-year period. It does so by focussing on the Republic of Ireland where child protection has become emblematic of wider social change. The work draws on a wide range of primary and secondary sources including legislation, case law and official and media reports of child protection inquiries. It also utilises insights developed through an extensive examination of parliamentary debates on child protection matters. These materials are assessed through the lens of critical discourse analysis to explore the relationship between law, social policy and social theory as they effect child protection. While the book utilises primarily Irish sources, this multidisciplinary approach ensures the argument has international applicability.

The book will be a valuable resource for all those with an interest in the development of child protection law.

1 Modernity, reflexivity, risk and the law

Introduction

The interaction between ideas of modernity, risk and law is complex, but an understanding of it is vital in order to appreciate the development of the child protection system. Concepts such as detraditionalization and juridification provide some of the intellectual scaffolding for the development of the contemporary legal and policy framework surrounding this system while ideas such as agency and constructivist approaches to risk appear to be woven into its very fabric. This was, however, not always the case. Historically, a more traditional approach rooted in the views that risk could be eliminated and that agency ought not to play a significant role appeared to dominate.

This chapter’s primary aim is to establish the theoretical framework I will adopt throughout this book. It begins by describing how modernity has been conceptualised in the work of Giddens and Beck. Their understanding of reflexive modernity will help to shape the argument I make throughout this book that Irish child protection legislation and policy has been reformed in a way that bears the hallmarks of a reflexively modern society. The hallmarks of this later form of modernity include detraditionalization of social relationships, the rise of agency and the development of ‘subpolitical’ actors who help to drive social change, ideas which are outlined below. This understanding of late modernity leads to a consideration of the ways in which risk has been conceptualised, with particular emphasis being placed on Beck’s idea of late modern society as a ‘risk society’. Central to this is the idea of risk as a construct, a value-laden concept where its meaning is, at least in part, socially determined.

I then consider the relationship between agency and childhood, especially in the context of the construction of childhood by the rest of society and the extent to which children can meaningfully be considered agents. In the course of this examination, I will introduce David Oswell’s relational and collective approach to agency as a way of understanding how we can account for the differences in children’s capacities and level of involvement in decision-making without having to have recourse to an older, more binary concept of agency which relies on an all or nothing approach. This, in turn, informs the final issue I examine, the role of law and legal regulation. I will examine how law expresses certain sentiments about social actors or situations and how, as the reach of the law extended, it regulated previously unregulated aspects of social life. By marking out conduct or ideas as being worthy of protection or criticism, law plays a standard-setting role within which risks can be governed or conceptualised. This, in turn, leads to an exploration of the ways in which law and risk interact in the context of a risk society.

From simple to reflexive modernity

Since the 1980s, the question of the nature of modernity has occupied a significant role within sociological theory.¹ Prompted by reasonably clear evidence that ways of living and being are, for many people, recognisably different from the patterns that were experienced in earlier decades, social theorists have proposed a variety of narratives to explain and contextualise these changes, ranging from changes within modes of production² to explanations more rooted in cultural identity.³ The role of the individual in modern society has often been at the centre of these inquiries, with questions of the nature and extent of individual freedom, the interactions between citizen and state, and the individual’s sense of security all explored across academic disciplines. Social theory has also attempted to explain changes in social systems and institutions, as well as the ways in which thinking about concepts have changed.⁴

1 See, for example, works such as Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge (Manchester University Press 1984), Jürgen Habermas, The Philosophical Discourse of Modernity (MIT Press 1987), David Harvey, The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change (Wiley-Blackwell 1989), Fredric Jameson, Postmodernism: Or, The Cultural Logic of Late Capitalism (Verso 1992).

2 See Harvey, ibid 141–197, for an argument that a new way of understanding the capitalist process known as flexible accumulation has occurred.

3 One of the best-known examples is Jameson (n 1).

4 See generally, Anthony Giddens, New Rules of Sociological Method (Hutchinson 1976) and Anthony Giddens, The Constitution of Society: Outline of the Theory of Structuration (Polity Press 1984).

This book focuses on the causes and impact of change on both institutions and individuals. The changes under examination occurred within a particular setting – changes in child protection laws – but in exploring these, it is necessary to consider changes in wider society, including changes in how children, child abuse and risks have been conceptualised. This necessitates an understanding of the modernization process in order to develop an argument that places children and child protection in a meaningful socio-historical context.

Despite simple modernity’s prizing of certainty, in the face of uncertainty, or risk, in Ulrich Beck’s terms, a further phase of modernization is opened “[j]ust as modernisation dissolved the structure of feudal society in the nineteenth century and produced the industrial society, modernisation today is dissolving industrial society and another modernity is coming into being.”⁵ This has been termed as second modernity, or as late modernity, and has been characterised as “the modernization of modern society.”⁶ Another characterization has termed it reflexive modernization, “a heightened modernization of society-changing scope”.⁷ Beck posits that, in this latter stage of modernity, the institutions making up the nation-state – traditional political parties, the nuclear family and the gendered labour market – are thrown into a state of flux. This brings about not only a reconsideration of those institutions but what has been described as a “meta-change” where the ways of understanding these institutions have been called into question due to the unintended consequences of how the first modernity unfolded.⁸

5 Ulrich Beck, Risk Society: Towards A New Modernity (Sage 1992) 10.

6 Ulrich Beck, Wolfgang Bonss and Christoph Lau, ‘The Theory of Reflexive Modernization: Problematic, Hypotheses and Research Programme’ (2003) 20(2) Theory, Culture & Society 1, 1, emphasis in original.

7 Ulrich Beck, The Reinvention of Politics: Rethinking Modernity in the Global Social Order (Wiley 1997) 17.

8 Beck, Bonss and Lau (n 6) 2.

Ulrich Beck and Anthony Giddens present two related but different accounts of reflexive modernity. Both argue that individuals place less emphasis on “traditional, given, or taken-for-granted models for identity”,⁹ leading to a process of detraditionalization. This leads the conduct of social life to be called into question, resulting in “reflexive subjectivities, or sets of socially constructed identities which work on themselves in order to change themselves.”¹⁰ It has been argued that “reflexivity is an expression of the process that happens when we (individuals and institutions) reflect critically on the development we, ourselves, have been a part of creating.”¹¹ According to Beck, this critical reflection leads to “individualization”, which means the disentanglement from traditional social institutions.¹²

9 David Farrugia, ‘Addressing the Problem of Reflexivity in Theories of Reflexive Modernisation: Subjectivity and Structural Contradiction’ (2015) 51(4) Journal of Sociology 872, 874.

10 Ibid.

11 Malene Freudendal-Pedersen, Mobility in Daily Life: Between Freedom and Unfreedom (Routledge 2009) 29.

12 Ulrich Beck, World Risk Society (Wiley Blackwell 1999).

In early or simple modernity, identity was “comparatively stable … whatever you were was not your own choice”.¹³ Late modernity, however, institutionalises a different way of living and being in the world. For Giddens, modern social life requires that social practices are constantly examined and reformed in the light of new information about those practices, meaning that the nature of that character is constantly altered.¹⁴ He placed significant emphasis on the role of the subject, or knowledgeable human agent, in late modernity. He argues that the process of disembedding people from traditi...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Cases
• Legislation and other legal instruments
• Official publications
• Acknowledgements
• Introduction
• 1 Modernity, reflexivity, risk and the law
• 2 Threats, victims and agents: Victorian law reform and the beginning of modern child protection
• 3 Children in the constitutional order of traditional modernity
• 4 Children and risk in independent Ireland, 1921–1970
• 5 Child protection law and policy, 1970–1993
• 6 Children’s rights and constitutional change
• 7 Child abuse and risk in a new modernity: Child protection law and policy, 1992–2006
• 8 Agents of change: Children and risk in reflexive modernity, 2006–2017
• Conclusion
• Index