Making Sense of the Children Act 1989 / Edition 4 available in Paperback
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Making Sense of the Children Act
By Nick Allen
John Wiley & SonsISBN: 0-470-85496-0
WHY THE CHILDREN ACT IS DIFFERENT
About 50 Acts of Parliament are passed in this country each year. There are, in total, several thousand Acts currently in force. The majority of these measures make at most only a transient impact on the public consciousness, either because of their extreme technicality or because of the mundane nature of their subject matter. The Children Act 1989 stands out from this generally unmemorable mass of legislation. After it was passed, a government minister responsible for its implementation stated (at one of the many launches of training materials) that 'the Act creates a whole code of law about the upbringing of children which aims to bring about the very best we can achieve within the bounds of legislation for children whether they are living within their families, or in need of local authority services or in want of protection from abuse'.
The statement just mentioned contains two important messages. First, it emphasizes the codifying function of the Act, that is to say, it was designed to recast the existing law - with appropriate amendments - in a single coherent instrument. The previous law relating to children, scattered across numerous Acts and judicial rulings, was notoriously complex and inconsistent. Second, the statement acknowledges the limits of the law in the field of family relations. The Children Act was without doubt a landmark development in English law but it contains no magic cure for family problems. Rather, it aims to create an enlightened and practical framework for decision-making, whether the decision is taken in the family home, in a local authority office, in a health centre or in a courtroom. The object of the Act is to provide the necessary legal tools to parents, relatives, foster carers, child minders, child care professionals and judges, so as to further the best interests of children in their care. Which tools are selected, and how exactly they are used, tends to be left to the discretion of the parties using their judgement. No cast-iron guarantees of children's welfare or safety are given in the Children Act and none could reasonably be demanded. No law can force an absent parent to see their child regularly, nor can separated parents be made to co-operate over their child's upbringing. No law can ensure that a child at risk is removed (or is not removed) from the family home at exactly the right time for exactly the right period. What we can reasonably demand of the law in this field is that it is clear, consistent and fair, and that it properly reflects the values to which our society subscribes. Judged by these criteria, the Children Act has scored highly since it was introduced in October 1991. It has succeeded in making its mark on the public consciousness, partly through its exceptional clarity - enabling people actually to understand what the law is trying to do - and partly through its sheer timeliness, arriving as it has during a period in which public and political interest in 'the family' has been intense.
In this book I intend to look at the provisions of the 1989 Act, together with the accompanying rules, regulations and guidance, and consider their effects and implications, especially for those working in the social and welfare services. I shall also be looking at the way in which the courts have reacted to the legislation. The Children Act presented a major challenge to the judiciary and to court staff and with the experience of over ten years of its operation we can reflect on what has been achieved and what remains to be done.
PUBLIC AND PRIVATE CHILD LAW
During the reform phase leading up to the Children Act, it became fashionable to discuss children's legislation by reference to two organizing labels: public law and private law. These labels have remained quite important - indeed, they feature prominently in the official government guidance on the Act and are widely used in the courts - and so they deserve a mention here, but it is worth bearing in mind that they have no legal force. They do not appear in any legislation, for example, not even the Children Act itself. Nor have any official definitions been supplied. They are simply loose shorthand expressions which are used to describe different sets of statutory provisions. The names of the labels provide clues to their meaning.
'The public law relating to children' essentially means all the legislation concerning intervention in children's cases by public authorities. The work done by local authorities in the exercise of social services functions obviously falls within this, but so does the work of voluntary organizations, even though these bodies are not statutory ones. The other label - 'the private law relating to children' - is really a residual one. It is taken to refer to the legislation which is primarily designed to deal with children's cases which, initially at any rate, do not involve public authorities. These two categories of public and private law are not completely self-contained (there are, for example, provisions in the Children Act which apply to both areas), but as a means of breaking up the legislation into reasonably distinct blocks for the purposes of discussion and debate, they have a useful role to play. Remember, however, that they have no legal force.
BACKGROUND TO THE ACT
One of the many problematic aspects of the law as it stood before the Children Act was its chaotic nature. The main features of child law had not been deliberately planned; rather, they had emerged over a period of years. Successive governments got into the habit of producing an Act here and an Act there, each one designed to tackle a particularly pressing problem but seemingly without any real connection to what had gone before. This piecemeal development - which is by no means unknown in other branches of English law - caused immense frustration for practitioners in the field, who found it difficult to acquire a command of statutory provisions which were supposed to be guiding their professional work. The general public, needless to say, were left far behind in this process.
In 1984 the decision was taken to attempt a comprehensive restatement of the law. Prompted by a highly critical report from a House of Commons Select Committee, the Department of Health(DH)established an inter-departmental working party with the job of examining the so-called public law relating to children. The recommendations of this working party were contained in a report published in 1985 under the title Review of Child Care Law. This formed the basis of a government White Paper, The Law on Child Care and Family Services, published in 1987. The White Paper stated that the Government's proposals would involve 'a major overhaul of child care law intended to provide a clearer and fairer framework for the provision of child care services to families and for the protection of children at risk'.
Alongside the examination of the public aspects of child law, there took place an in-depth review of the private law. This was undertaken by the Law Commission (the standing law reform agency in this country) over the period 1984-88 and involved the publication of four discussion papers followed by the issue of a report (Review of Child Law: Guardianship and Custody). Annexed to the report was a draft Bill designed to encapsulate both the Commission's own proposals and many of those contained in the government White Paper. The Children Act is based on this draft.
The process described above shows that the Children Act was a very carefully constructed measure, which is more than can be said for much of the legislation that it replaced. The particular method of reform which was employed, though time-consuming, is by far the most satisfactory for this branch of the law and is undoubtedly one of the main factors behind the very favourable reception which the Act has had.
THE SCHEME AND STYLE OF THE CHILDREN ACT
Sections and Schedules
The Children Act consists of over 100 sections, which makes it a relatively large piece of legislation. This should not occasion surprise, however, in view of its objectives: to restate both the public and private law relating to children. In addition to the sections, there are a number of schedules at the back of the Act. Schedules of statutes can cause confusion among non-lawyers, there sometimes being a feeling that they do not have quite the same legal significance as the sections. This is a misconception: sections and schedules have an identical effect in law. Whether a provision goes into a section or a schedule is very much a matter of judgement and there can often be disagreement as to which is appropriate. There is a good example of this within the Children Act, in the collection of provisions concerning children in need (discussed in Chapter 5).
The Twelve Parts of the Act
In large statutes, it is usual for the sections to be arranged into Parts, each Part dealing with a particular subject. This obviously facilitates a better understanding. The sections of the Children Act are arranged into twelve Parts. These Parts are not completely self-contained, but arranged in this way they do give a fairly good idea of the overall effect of the Act. Part II of the Act is the one which is devoted to the reform of the private law, while Parts III-XI are concerned with the public law. Parts I and XII contain provisions affecting both areas. As indicated earlier, the schedules at the back of the Act supplement some of the sections.
The Style of Drafting
Mention was made earlier of the convoluted style of drafting which tended to infect the pre-1989 children's legislation. The steady stream of complaints about this obviously hit home because the framers of the Children Act went out of their way to make their product intelligible to a wide range of individuals. The DH, in its own Introduction to the Children Act, was fully entitled to state that the Act 'has been drafted in a clear style which should make it accessible to non-lawyers'. This was very welcome news to child care practitioners. It enabled them to refer directly to the text of the Act when considering their position and advising (or challenging) others. Nor should parents, relatives and other carers be left out of the discussion of this aspect of the new law. They are, after all, principal consumers in this context and for too long their interests were undervalued by those who put statutes together. Aconscious effort was made to make the law relating to children more accessible to them.
All this is not to suggest, of course, that the Children Act is plain sailing. It would be unreasonable to expect a statute of such breadth and importance not to contain any points of difficulty or complexity and the cases decided in the superior courts continue to bring out unforeseen consequences flowing from the use of a particular word or phrase (see, for example, the difficult case law surrounding the meaning of the threshold criteria in section 31 of the Act, discussed in Chapter 10). And it has to be said that, during its journey through Parliament, numerous amendments were made which had the effect of spoiling the initial veneer of simplicity, a process which has indeed continued over the years since 1989 (see below).
AMENDMENTS TO THE ACT SINCE 1989
Many Acts of Parliament are the subject of later amendment. This can occur for a number of reasons. In some cases, the legislation is found to be simply unworkable; in others, gaps or ambiguities are discovered (often through the litigation process in the courts). Many amendments are purely technical and come about because other statutes referred to in the legislation are themselves changed, thereby necessitating a substitution of references. In the case of the Children Act, numerous amendments have been made. During the early years of the Act's implementation, amendments tended to be minor and technical but in due course rather more significant changes were introduced. One particular reform should be noted in this connection. Although the Adoption and Children Act 2002 was primarily designed to recast the law of adoption, Part 2 of that Act contained important amendments of the 1989 Act. Some of these had been planned since the mid-1990s but others were drafted in response to more recent developments. They included provisions on:
special guardianship orders (aimed largely at local authority foster carers)
local authority care plans
local authority complaints procedures.
All these amendments are due to be implemented by December 2005.
RULES, REGULATIONS AND ORDERS MADE UNDER THE ACT
A striking feature of the Children Act is its frequent reference to rules or regulations to be made by central government. There is nothing particularly objectionable in this sort of practice, provided always that the really fundamental matters are covered by the statute. In other words, the proper object of subordinate legislation is to deal with detailed, supplementary issues, mention of which in the Act itself would only serve to confuse the reader. As with the sections/schedules division, it is ultimately a matter of judgement as to whether a particular subject should be dealt with in the statute or in regulations, and reasonable people can differ over the appropriateness of the end result.
By 14 October 1991, when the Children Act came fully into operation, 48 sets of subordinate legislation (or 'statutory instruments' to use the technical legal term) had been made. All of this has the full force of law and should be regarded in much the same way as the provisions of the Act themselves. Nothing turns on an instrument being entitled 'rules' as opposed to 'regulations' or 'order'. Although it covers a wide range of matters, this legislation can conveniently be classified according to two distinct categories. The first category consists of predominantly court-oriented material. The biggest items here are the rules of court, which seek to regulate legal procedures under the Act, including the use of appropriate application forms. The second category is a residual one, consisting of everything else, and it is here that one will find the regulations imposing detailed obligations on local authorities.
The effect of the numerous provisions in these two categories will be discussed in appropriate sections of this book. It should be remembered, however, that subordinate legislation, like primary legislation, undergoes amendment from time to time and so the position set out in the text will not necessarily endure. Indeed, various amending rules, regulations and orders have accumulated in the years since 1991. Taken with the amendments to the Children Act itself, these have rendered the law rather less accessible than used to be the case.
THE CHILDREN ACT GUIDANCE
In addition to completing the legislative framework by making rules, regulations and orders, the Government issued a series of guidance documents covering various topics. One purpose of these was to explain (in official, uncritical terms, of course) relevant provisions of the Act and any accompanying rules or regulations. Another purpose, however, was to give an indication of what central government expected from local authorities in terms of practical implementation of the law. The preface to the first volume of guidance, issued in March 1991, set the pattern for the others. It stated that:
this guidance is issued under section 7 of the Local Authority Social Services Act 1970. It is the first in a series designed to bring to managers and practitioners an understanding of the principles of the Children Act and associated regulations, to identify areas of change and to discuss the implications for policies, procedures and practice.
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Table of ContentsAbout the Author.
Why the Children Act is different.
Public and private child law.
Background to the Act.
The scheme and style of the Children Act.
Amendments to the Act since 1989.
Rules, regulations and orders made under the Act.
The Children Act Guidance.
The Children Act Advisory Committee.
Scotland, Northern Ireland and Wales.
2. Parental responsibility.
Parental responsibility: what it is and what it isn’t.
The initial allocation of parental responsibility.
The acquisition of parental responsibility.
The sharing of parental responsibility.
The content of parental responsibility.
The exercise of parental responsibility.
The extinguishment of parental responsibility.
The position of people who do not have parentalresponsibility.
3. Court orders in favour of parents.
Private law orders under the previous law.
The scheme of Part II of the Children Act.
When orders can be made.
Prohibited steps orders.
Specific issue orders.
Supplementary conditions attached to orders.
Family assistance orders.
The exercise of the court’s discretion.
Procedure and evidence.
Interim section 8 orders.
Separate representation of the child.
Section 8 orders and divorce.
The duration of section 8 orders.
Preventing further litigation.
4. Court orders in favour of non-parents.
The scope of the present chapter.
Section 8 orders in favour of non-parents.
Special rules for non-parents’ applications.
The effect of a section 8 order.
Applications by children for section 8 orders.
Applications after adoption.
Applications by local authorities and voluntaryorganizations.
Other aspects of non-parental applications for section 8orders.
Orders without applications.
Special guardianship orders.
5. Local authority support for children and families.
The scope of the present chapter.
Children in need.
The provision of services for children and families.
Assessment of the needs of individual children.
The general duty of the local authority: section 17(1).
The specific duties and powers in Schedule 2.
Assistance in kind and assistance in cash.
Day care for the under-fives and supervision ofschoolchildren.
Charges for local authority services.
Co-operation between authorities.
Part III in practice.
Child protection and children in need.
6. Accommodating children under section 20.
Accommodation as a support service.
The powers and duties under section 20.
The relationship with section 17 accommodation.
The parental veto.
Can the provision of accommodation be demanded?
Does the child have a say?
The position when accommodation is provided.
Removal from accommodation.
Help on leaving accommodation.
The acquisition of control by the authority.
The acquisition of control by individuals.
7. Compulsory intervention on child protectiongrounds.
The three stages of policy development.
Section 47 child protection investigations.
Enquiries before an investigation: the initial assessment.
The relationship between section 47 and the children in needprovisions.
Investigations into alleged sexual abuse.
Investigations during private law proceedings.
Court-ordered investigations under section 37.
8. Emergency protection orders and child assessmentorders.
The emergency protection order.
The child assessment order.
CAO or EPO?.
9. Police powers.
The power of the police to act of their own motion.
Police applications for emergency protection orders.
The role of the police in assisting officials.
Police involvement in the recovery of abducted or missingchildren.
10. Care orders.
Applicants for a care order.
The children concerned.
The grounds for a care order.
When an application can be made.
The discretion to apply for a care order.
The processing of a care order application.
The role of the court.
The legal effect of a care order.
The duration of a care order.
The making of other orders on a care order application.
Care order or supervision order?
Care order or residence order?
Interim care orders.
11. Supervision orders.
Matters on which the rules coincide with those governing careorders.
The legal effect of a supervision order.
Matters which may not be regulated by an order.
The duration of a supervision order.
Variation of the supervision order.
Interim supervision orders.
Obstruction of the social worker.
Supervision order or care order?
12. Courts and appeals against court decisions.
The concurrent jurisdiction principle.
The subordinate provisions.
Questions arising under the Human Rights Act 1998
A family court?
Appeals against court decisions.
13. Welfare reports, children’s guardians andCAFCASS.
Separate representation for children in private law cases.
Referrals to CAFCASS by independent reviewing officers.
In-court conciliation in private law cases.
Post-contact order follow-up.
14. Wardship and the inherent jurisdiction of the HighCourt.
The inherent jurisdiction of the High Court.
Public law cases: the effect of section 100.
Private law cases.
The decline of the inherent jurisdiction.
Making section 8 orders in adoption proceedings.
Applications for section 8 orders following adoption.
16. Local authority foster carers.
The statutory definition.
The decision to use fostering.
The Fostering Services Regulations 2002.
The National Minimum Standards for Fostering Services.
Foster carer recruitment.
Limit on number of children.
Complaints from foster carers.
Applications for section 8 orders.
Applications for an adoption order.
Applications for special guardianship.
Appendix: The Children Act 2004.