Change and Continuity in Children's Services

Parker, Roy

• Publisher: Policy Press
• Year: 2016
• ISBN:
  9781447334422
• Edition: 1
• Topic: Social Sciences
• Subtopic: Children's Studies in Sociology
• Index: Social Sciences

This collection of 12 new and revised essays on child care and children's services, written by leading child welfare historian Roy Parker, draws on his lifetime of research in this area. By exploring various topics these essays explain significant political, economic, legal and ideological aspects of this history from the mid-1850s. This unique and lasting review of child care services allows readers to understand how the services for some of society's most vulnerable children have become what they are, how well they have met and now meet the needs of those children. The collection provides a high-quality, historical reference resource that will inform and capture the interest of social work and social policy students as well as social and legal historians, political scientists and those involved in administration and government, struggling with the issues of the day.

CHAPTER 1

Introduction: patterns of change and continuity

This opening chapter sets the scene for what is to follow. It does not offer a detailed introduction but it does identify some of the issues that subsequent chapters address. In that respect it is intended to whet the readers’ appetites, encouraging them to read on. Several themes reappear. There is the importance of appreciating the historical background of current issues. Another is the significance of the political and economic contexts within which children’s services have evolved. A third is the need to understand how and why the problems in these services arise, rather than simply describing them and attributing blame or approbation. One further theme is the complicated inter-play of evidence, constraints, values and judgement that makes safeguarding vulnerable children and responding to troubled and troublesome adolescents such a demanding responsibility. However, we begin with an emphasis upon change and continuity.

I Legislation

Major legislation is commonly taken to reflect important shifts in the climate of opinion, in public concern or in realignments within the political system. In the children’s field it is also often regarded as evidence of greater enlightenment and of an abandonment of what has been found to be unsatisfactory. This view tends to be strengthened because it is unusual for substantial controversy to arise during the passage of children’s bills through Parliament, although particular clauses may be hotly contested. Of course, much will have led to a government’s decision to introduce a new measure. Indeed, almost all legislation is the culmination of political processes that have been shaped by many forces, often in combination. They will have included the emergence of new information, new theories, new technology, scandal, shifts in economic conditions and in prevailing beliefs and ideologies, including those within the governing party. Yet in order for them to result in significant legislation they need to be orchestrated and politicised. Sometimes governments will take the initiative; at other times campaigning groups will be driving matters forward.

Against such a background a number of assumptions are liable to be made. One is that major reforming legislation represents a break with the past. However, there are several qualifications to be made. In the first place no children act has been comprehensive. If we take those of 1908, 1948 and 1989 for example, we see that each left certain aspects of child welfare untouched. In 1908 nothing was done about children in the care of the poor law. In 1948 issues surrounding juvenile delinquency or the approved schools were not addressed. Even though the 1989 Act was the most inclusive of these measures it did not deal with juvenile justice or the establishment of family courts. Furthermore, of course, questions concerning children’s health and education are usually excluded from so-called ‘children’s legislation’, partly to avoid unwieldiness but also to steer clear of the preserves of other central government departments.

Some parts of major legislation are incorporated unaltered from previous enactments. For instance, the Poor Law (Amendment) Act 1889 enabled local boards of guardians to assume parental rights over children in their care if the birth parents were considered unfit to resume their care. This could be done without recourse to a court, in effect by administrative fiat. It came to be known as poor law adoption. Surprisingly, the Children Act 1948 left this power intact, as did the Child Care Act 1980.1 It was not until the legislation of 1989 that it was eventually repealed.

Like most other fresh legislation, that concerned with children’s services has fulfilled, and continues to fulfil, a secondary purpose; namely, to consolidate and tidy up an array of previous enactments, many of which will have developed piecemeal in response to particular issues. That was certainly the case with both the Children Act 1908 and the Children and Young Persons Act 1933, exposing them to the criticism that they were not as innovative as was claimed. Likewise, the Children Act 1980 consolidated sections of 21 previous enactments. Consolidation can lead to already existing provisions being included in otherwise more radical measures.

One further reason for looking carefully at what new legislation does not change, or not change straightaway, revolves around the question of its implementation. In almost all enactments Secretaries of State are given the power to decide when particular clauses are brought into operation. This enables them to defer the introduction of those parts of an act that have not found favour because of their expected cost, their impracticality, their political sensitivity or because of an ideological change of heart, the latter tending to occur when there has been a change of government or even of a minister within the same government. For instance, custodianship orders that were introduced in the Children Act 1975 had to wait ten years before a commencement order was issued. This is an interesting example. The Act had begun life as a private members’ bill introduced by David Owen when Labour were in opposition. However, Labour won the election of October 1974 and Harold Wilson invited Owen to become Under Secretary of State for Health. In that role he was in a strong position to transform his private members’ bill into a government measure; but his tenure was short-lived. He was soon moved to the Foreign Office as a Minister of State, subsequently becoming Foreign Secretary. With his departure from Health enthusiasm for a full implementation of the 1975 Act waned. The guardianship provision in particular was left to one side, probably because it did not command enough support. In the event it fell to a Conservative administration that was more favourably disposed to its introduction to see it implemented in 1985.2

Even when legislative provisions are activated without delay they may fail to be implemented as intended by those to whom that responsibility falls. There are many reasons. One could be because such responsibilities are not mandatory. Another may be because an act has been so badly drafted that it gives rise to disputes about what is intended. However, as well as these explanations, there is the fact that local authorities may drag their feet, interpret what is required of them in their own way, or find that there are practical difficulties in conforming to the legislation or exercising the regulation necessary to meet its requirements. Indeed, the question of regulation may be becoming a more significant issue as services are increasingly contracted out to the private sector. Furthermore, those upon whom the use of a measure’s provisions depends may choose to ignore it. For example, the Custody of Children Act 1891 remained largely unused after an initial flurry.3 Similarly, when custodianship under the Children Act 1975 was finally made available there were few applications from foster parents or relatives for the necessary order.4

There is some children’s legislation that has heralded significant changes but which tends to get overlooked. The Children Act 1963 is a notable example. It was principally concerned with making changes in the work of the juvenile courts and with strengthening the regulation of children’s employment; but an extra section was added as a result of pressure from the Association of Children’s Officers. For the first time a duty was placed upon local authorities ‘to promote the welfare of children by diminishing the need to receive or keep them in care’ and this included the opportunity to spend money on doing so. Previously, any such expenditure was illegal.5 Henceforth, it became possible for local authorities to engage in prevention. This considerably enlarged and complicated the work of the then children’s departments and continues to do so for their administrative successors.

As well as considering what changes or continuities are to be found in primary legislation there is also much subordinate legislation that has to be taken into account. Statutory instruments, regulations and rules may all exercise a notable influence over the way in which the parent legislation is interpreted and implemented.6 They may put a new gloss upon what is done or be no more than a continuation of what existed before. Furthermore, they may be revised without changes to the primary legislation. Indeed, it could be argued that it is in their detail that the true character of the principal legislation is to be found.

Take, for example, the boarding-out rules that were first drawn up by the Local Government Board in 1889, slightly revised in 19337 and again in 1946.8 The only significant changes in the 1946 version were that a person was no longer debarred from being a foster parent by reason of being in receipt of the equivalent of poor relief and the removal of the prohibition on placing more than two children (unless brothers and sisters) in the same foster home. Otherwise the previous rules (such as the one that required a doctor to certify that the child was ‘suitable’ to be boarded-out) remained unaltered. Likewise, the undertaking that foster parents had to sign stayed the same, including the obligation to bring up the child as they would their own and to ensure that they attended church. The next revision of the regulations occurred in 1955.9 These were much more detailed; for example, introducing separate rules for those boarded-out for more or less than eight weeks. However, the only change to the form that the foster parents had to sign was that now the child had only to be ‘encouraged’ to attend church.

Further minor amendments were made in 1982 but the 1988 version did make important changes and added new requirements, the most notable of which were that henceforth a child’s needs arising from their cultural and racial background had to be met, that foster parents had to be provided with more information about a child’s background (such as their medical history), that they had to be given an outline of the local authority’s plans for the child, that the child’s wishes and feelings had to be taken into account and that, once placed, they had to be seen when a visit was made unless this was considered to be unnecessary.10 Further modifications followed in 1991. Two were noteworthy: first, foster parents could be approved solely for looking after a specific child or class of child and, second, there was no longer a universal form of agreement for foster parents to sign. Instead there was a detailed list of what had to be covered in such an undertaking. Furthermore, there was now a 160-page handbook of guidance and regulations concerning family placements that was issued as part of the series of such documents that accompanied the Children Act 1989.11

Clearly, if we are to appreciate the impact of legislation upon children’s services we need to include secondary legislation as well as the principal measures. However, as well as this it is necessary to take account of a variety of enactments that, on first sight, may seem to lie beyond the ‘children’s field’. Take, for example, two acts in the inter-war years: the allowances for widowed mothers that were introduced in 1926 and the Unemployment Assistance Act that followed in 1934. Both led to a gradual uncoupling of destitution from the need for care, a process that was eventually completed by the Children Act 1948. This is not to say that children from poor families did not come into care during the 1930s but that, for the first time, their parents’ destitution alone was less likely to lead to that happening.

Of course, there are other examples of legislative change in related fields having a marked impact on children’s services. The Divorce Law Reform Act 1969 could certainly be cited. The relaxation of the grounds for divorce that followed led indirectly to the rapid growth in the number of children admitted to care (and often staying there for lengthy periods) as a result of more matrimonial care orders being made.12 This was usually the consequence of unresolved disputes between divorcing parents. In England and Wales in 1965 there were just 400 children who were in care on such orders; by the end of the 1980s there were 5,000.13 Easier divorce also led to more re-marriages that, in their turn, increased the number of step-parent adoptions, sometimes with the intention of distancing the parent without custody even further. The character of adoption also began to change as a result of the Legitimacy Act 1967, of the Abortion Act of the same year and, later, of the Family Law Reform Act 1987. Each, together with improved methods of contraception, contributed to a marked reduction in the number of babies being relinquished for adoption.14

There have also been enactments in the field of social security that it is plausible to believe affected the work of the children’s services; for example, the Child Benefit Act 1975 that improved the financial position of single mothers. However, it is difficult to determine exactly what effect it, or other measures affecting family income, had in reducing or increasing the number of children coming into care. There is also the potential influence of changes in housing law and policy, especially where these have affected rates of eviction or the provision of accommodation for homeless families.15

It follows, therefore, that the interpretation of the effects of legislative reform on children’s services should be approached with caution. What appears to be a radical transformation may contain much that is borrowed from the past and may, in any case, fail to fulfil its intended purpose for an assortment of reasons, some of which will be found in the politics of an enactment’s evolution. Moreove...