The Reform of Child Care Law

A Practical Guide to the Children Act 1989

John Eekelaar, Robert Dingwall

• Publisher: Routledge
• Year: 2013
• Topic: Law
• eBook ISBN:
  9781136098284
• Subtopic: Law Theory & Practice
• Index: Law

Children Act 1989 introduced the most radical changes to child care law for a generation. Eekelaar and Dingwall provide a concise, practical guide to the legislation for all professionals practising in this area.

Chapter one

The historical background

The Children Act 1989 tries to create a uniform and coherent framework for strands in child welfare law which have developed largely independently of each other over some hundreds of years. In the short term, it was precipitated by the report of the Social Services Select Committee of the House of Commons in 1984, which we shall refer to as the Select Committee Report. Having conducted a series of hearings into the working of the law in disputes between public authorities and parents about the care or custody of children, the Committee concluded that the Government should undertake a thorough review of legislation and practice in this area.¹ The review was carried out by an interdepartmental working party of civil servants in co-operation with the Law Commission, an independent, though publicly funded, body responsible for monitoring the general development of the law. In October 1985 the working party issued a Consultative Document, Review of Child Care Law (referred to here as the Review Report) and in January 1987 the Government presented its response in a White Paper, The Law on Child Care and Family Services (here, the White Paper).²

Quite independently of the initiative of the Social Services Committee, the Law Commission had also announced in 1984 that, because of the confused legal position of children in private disputes about their care or custody, it would review this area of law.³ Although the Review Report and the White Paper form the basis of most of the reforms described in this book, some of them result from the extensive work by the Law Commission since 1984.⁴

Public opinion, and some of the details of the legislation, may also have been influenced by the reports from various inquiries into supposed failures of the child protection system. The most important were the reports into the death of Jasmine Beckford (A Child in Trust) in 1985 (here, the Jasmine Beckford Report) and into the handling of alleged child sexual abuse in Cleveland in 1988 (here, the Cleveland Report). Other reports which achieved some prominence during this period included those into the deaths of Heidi Koseda (1985), Tyra Henry (1985) and Kimberley Carlile (1985).⁵

In order to understand the new legislation fully, however, it is necessary to sketch the historical processes which shaped the previous law and which brought about the demands for change. The old law, as we have said, was not uniform. Separate statutory provisions and systems of administration and adjudication had grown up in response to the different contexts in which children posed problems for the adult world. For the sake of convenience, we will organize these into four categories which we will call child care law, child protection law, the wardship jurisdiction and the divorce jurisdiction.

Child care law

Modern child care law is the successor of the Poor Law. The economic conditions of the sixteenth century created widespread unemployment and a population drifting in search of work. This put severe strain on the economic self-sufficiency of the rural family and on the ability of many adults to provide for the needs of their children. The Reformation had undermined the capacity of the Church to organize relief and the Poor Law developed as a secular substitute. Among other provisions, it led to the introduction of enforceable legal duties upon parents to provide for children who would otherwise be left destitute. It also empowered civil parish authorities to set to work or compulsorily apprentice those children whose parents could not help them. But, although many children presumably benefited from such policies, it does not seem that their own interests were primary concerns. The legal commentator Blackstone observed in 1765 that the purpose was that they might “render their abilities in their several stations of the greatest advantage to the commonwealth”.⁶

This general approach to the problem of poor children changed little until the early nineteenth century. Much depended upon the individual decisions of each parish in response to particular cases. There was, however, growing criticism of other aspects of the Poor Law, which were felt to be an insufficient deterrent to idleness and indiscipline. In 1834 the system was reformed. The poor would receive assistance only if they entered a workhouse, where conditions would be harder than those experienced by the poorest wage earners. (This was known as the principle of “less eligibility”.) In practice, there were never enough workhouse places in most areas and they tended to fill up with those whose poverty resulted from age, sickness, disability or mental incapacity. Although the drafters of the 1834 legislation had not intended that such people should be subjected to a punitive regime, the system remained until the twentieth century officially focused on deterring the able-bodied from falling into unemployment.

Inevitably, thousands of children, orphaned, deserted or simply members of the poorest families, found their way into the workhouses. By 1840 there were estimated to be over 64,000 of them. The general duties of the Poor Law authorities to secure their employment or apprenticeship remained essentially unchanged until 1948 and continued to influence legislation until the 1989 Act. Within this framework, though, there emerged a range of provisions which reflected changing perceptions of the rights of individuals, the role of families and the responsibilities of society.

These changes were first evident in the shift from using pauper children as a source of cheap labour to providing for their education and industrial training separately, if possible, from the workhouse. Although the principle of less eligibility was grounded in a severe view of human nature, viewing poverty as the result of individual moral weakness (although potentially correctable by a deterrent regime), contemporary philanthropists came to see destitution and its associate, delinquency, as socially caused. Their preferred solution lay in removing poor children from the corrupting influences around them and providing a morally wholesome environment. A number of philanthropic societies developed schemes for the “rescue” of poor children, although the Poor Law itself remained a battleground between their views and those of the advocates of less eligibility.

A critical constraint on improving conditions for workhouse children was the reluctance to give them any advantage over the children of the employed poor, by, for example, more generous educational opportunities. Once the Education Act 1870 created local education authorities with the major responsibility for schooling all the nation’s children, the main function of the Poor Law shifted to the provision of a home environment for those children in its care.

[The Poor Law authorities] saw that variety was needed in the treatment of children, some responding to boarding-out, care in a scattered home or voluntary home, or finding their best hope of success in emigration. Much headway was made, and by the beginning of the twentieth century the new methods of care were being widely used. Of 69,030 in poor law care in 1908 less than a third were in workhouses or infirmaries.⁷

This was not purely a victory for philanthropic theories, since these alternatives often represented a cheaper form of provision, which made them acceptable to more economically minded authorities.

Nevertheless, the growing influence of the philanthropic approach can be seen in the increasing powers given to the Poor Law authorities to sever the links between children and their environments. Emigration was the most comprehensive way of achieving this objective but could be arranged for only comparatively few children. The next best alternative was the so-called “Poor Law adoption”. The Poor Law Amendment Act 1889 provided that “where a child is maintained by the guardians of any [Poor Law] union and is deserted by its parent” or if the parent was “imprisoned as a result of an offence against the child”, the guardians might resolve “that such child be under the control of the guardians until it reaches sixteen (if a boy) or eighteen (if a girl)”. In 1899 this power was extended to include orphans and the children of parents who were “unfit”. The result of such resolutions was to vest in the guardians all parental rights in the child in all matters except its religious upbringing. Although parents were given a right of appeal to a magistrates’ court, the conferment on an administrative body of the power to assume legal control over children by its own executive act, unsupervised by any external body, was a dramatic extension of the state’s authority over families, probably tolerated only because these were the families of the “disreputable” poor. These powers were inherited by local authority children’s departments when they were created in 1948 and continued until the 1989 Act.

By the turn of the century, however, a new policy agenda was emerging as a result of concern over the implications for the national interest of the falling birth-rate and the physical degradation of the working class in a world of growing economic and military competitiveness. Considerable efforts were made through local authority public health and education departments to improve the basic health and sanitary conditions of all poor families. These remained administratively separate from the Poor Law, despite its absorption by the same authorities in the 1930s, but this new welfarist approach gradually undermined the policy of trying to remould the character of pauper children in isolation from their natural families. It was not until after the Second World War, though, that this change was reflected in legislation.

The 1948 reforms were brought about by the conjunction of a number of factors. As so often, the immediate trigger was a specific case. A thirteen-year-old boy (Dennis O’Neill) had died at the hands of his foster-parents while in the care of a local authority. Two inquiries, one by a prominent lawyer into the particular case and one by an interdepartmental committee into the general state of provision, revealed grossly inadequate standards of care and supervision for children in local authority care.⁸ But the organizational changes recommended by these reports would not by themselves have led to the shift in policy towards working with families with a view to restoring children rather than seeking their permanent removal. This reflected the emphasis then being placed on the value of family life and the importance of the mother–child relationship as the post-war economy failed to integrate the large number of women who had been drawn into the labour force during the war. The newly created children’s departments looked to the voluntary societies for their staff. By comparison with the Poor Law, the societies had been more concerned with the development of family casework and had strongly influenced such professional training as was available for social workers. All this suited the budgetary concerns of local authorities, who found the policy of rehabilitation cheaper than removal into institutional or foster care.

Even so, the Children Act 1948 went only part of the way towards the welfarist ideal. Its requirement that

the local authority shall, in all cases where it appears to them consistent with the welfare of the child so to do, endeavour to secure that the care of the child is taken over either (a) by a parent or guardian of his, or (b) by a relative or friend of his, being, where possible a person of the same religious persuasion⁹

said nothing about prevention. It was only in 1963 that children’s departments acquired power to make provision in cash or kind to families for the purpose of reducing the need to take children into care.¹⁰ But this power reflected the extent to which their focus had shifted away from deprived children, who had been the primary object of the former Poor Law, towards delinquents. Governments tend to be more willing to provide funds for the reduction of crime than the relief of distress.

Whatever its motives and limitations, the Children Act 1948 nevertheless embodied a significant piece of humanitarian rhetoric which marked a decisive break in the political perception of the community’s duties towards children and, therefore, of its concept of children’s rights. The public care of children was no longer to be focused on preparing them for service to the national economy. Instead, it became the duty of the authorities “to exercise their powers with respect to [the child] so as to further his best interests, and to afford him opportunity for the proper development of his character and abilities”.¹¹

By the late 1960s, the optimism which had underlain these rehabilitative and preventive goals had begun to fade. The problems of the national economy were simultaneously creating more work for the authorities while denying them a matching growth in resources. The ideals of rehabilitation appeared to be leading social workers¹² and judges¹³ to put excessive value on a child’s “blood ties”, at the expense of his or her emotional relationships with foster-parents or prospective adopters. The consequent “tug-of-love” cases produced a good deal of adverse comment from the media and from some influential child care professionals. These problems led to the formation in 1969 of a Departmental Committee on the Adoption of Children (the Houghton Committee), which reported in 1972.¹⁴

The thrust of the recommendations of the Houghton Report was to strengthen the hands of local authorities in relation to the parents of children in their care. No child who had been in care for more than six months should be removed by a parent without twenty-eight days’ notice; the power to assume parental rights by resolution should be exercisable simply on the fact that a child had been in care for three years or more; and a procedure should be introduced for the parents of a child in care to relinquish their child for adoption even t...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• List of statutes
• List of cases
• Preface
• 1 The historical background
• 2 A new framework for private law: parental responsibility and children’s rights
• 3 A new framework for public law: local authorities and the courts
• 4 The organizational context of child protection practice
• 5 The powers and duties of local authorities: family support and preventive action
• 6 The acquisition of compulsory powers: first steps
• 7 Grounds for bringing care or supervision proceedings
• 8 Preparing a case
• 9 Presenting a case
• 10 The outcome of care proceedings
• Index