In this essay I am going to examine how Law has developed in child protection. I will introduce a case study to identify key areas of the law for social work practice with children, young people and families and focus on the laws that social workers adhere to whilst working with cases in care proceedings.
Law’s focusing on child protection have gradually developed since the 19th century. The Municipal Corporations Act was passed in 1835 which placed requirements on local authorities ‘…to take on the range of functions it carries out today’ (Hill, 2003 p.15). These included employing professional staff including medical agencies, to tackle the spread of infection as a result of people living together in overcrowded areas due to the exploitation of child labour.
In 1872, The Infant Life Protection Act was introduced to regulate what was known as baby farming following pressure from the Infant Life Protection Society. Baby farming was mothers paying for their children to be raised by ‘substitute parents’, thereby freeing them to work and was a consequence of lack of contraception, dangers of abortion and the stigma attached to babies born out of wedlock. The Act made it a statutory requirement for families with more than one child under the age of one to register with local authorities so the care of the children could be supervised to some degree (Corby, 2006). Following this, the Registration of Births and Deaths Act 1874 was introduced allowing the government to monitor all births and deaths recorded (Jowitt ; O’Loughlin 2005).
The ‘welfare of the child’ was introduced as a concept following the Children and Young Persons Act 1933. Care proceedings for children today are still pertinent from this Act. Additional Acts in 1948 and 1963 followed charging local authorities with the best interests of children and clearly set out guidelines in which a local authority could remove a child from home if they were deemed to be ‘at risk of harm’ (Corby, 2006).
Key legislation for children and family social work practice is The Children Act 1989. The Act was implemented following a period of inquiries into child sexual abuse and child deaths carried out in the 1970’s and 1980’s along with the need for clearer guidance and structure in laws affecting children. In addition, the Act also brought together both public and private laws concerning children. The fundamental principles of the Act addressed the balance between child protection and family support services and introduced the concept of a ‘child in need’. The Act also addressed a wide range of issues including provision for children in a variety of care settings however, more importantly addresses the need for children’s wishes to be taken into consideration(Jowitt, 2006).
Following the death of Victoria Climbiï¿½ and subsequent inquiry by Lord Laming, began a sequence of events that lead to implementation of The Children Act 2004. This does not replace the Children Act 1989, but is seen as a continuation of the original Act. The 2004 Act encompasses several components based on recommendations from the Laming Report and is responsible for promoting a partnership between agencies working with children including health, education and social care in a more cohesive manner (Allen, 2008).
Pseudonyms have been used to protect the identity of the family.
Lucy Grey is a 39 year old mother of three children aged 3, 10 and 19. Lucy became pregnant aged 20 years and gave birth to Robert Hill. Robert’s father lived with them for a short time before the relationship ended. Robert had contact with his father and paternal family for a short time although he now only has a sporadic and distant relationship with them. Camilla Grey was born in 1997, the result of a one night stand. Lucy has never contacted Camilla’s father to inform him of his daughter and has no plans to do so. Lucy met Kieran Delaney in 2003 and started a relationship with him that is fuelled with alcohol misuse and domestic violence. Daley Grey was a planned baby born in 2005 before Lucy and Kieran married in 2006.
The Local Authority began receiving referrals concerning this family in 2000 as a result of domestic violence incidents usually involving alcohol. These increased with the arrival of Kieran and resulted in Camilla and Daley being accommodated by the Local Authority on two previous occasions prior to the current ongoing care proceedings.
The children were removed from their mothers care subject to an Emergency Protection Order (EPO) following a domestic incident when Lucy was found to be inebriated in charge of her children. The children had also been previously included in the child protection register. Lucy previously had supervised contact with Camilla and Daley twice weekly, however as she missed over 60% of these contacts this has now been reduced to once a week. Robert has attended 99% of contacts and now has unsupervised contact as he is currently being assessed as a relative carer for his siblings. Timelines have identified Lucy’s difficulties have escalated following a succession of close family bereavements and failed pregnancies.
Care proceedings were initiated to address the concerns of the youngest children suffering significant harm due to domestic violence and alcohol misuse. An EPO was issued in respect of Camilla and Daley. An EPO is ‘…available on an ex parte basis’ which removes the needs for parents present at the court hearing (Allen, 2005, p.164). The Children Act 1989, s.46(3) permits the removal of a child by the police in an emergency to a place of safe accommodation for up to 72 hours. Once the child has been removed, the local authority should then consult with the family and consider the subsequent steps it intends to take. Irrespective of the child being returned home, section 47 of the Act requires an investigation by the local authority must always follow the employment of an EPO (Allen, 2005).
Under section 38 of the Children Act 1989, the local authority applied for Interim Care Orders in respect of Camilla and Daley. An interim care order is issued pending a full hearing of the application of a care order and the threshold criteria of significant harm are present. The initial interim order can last up to eight weeks and subsequent orders no more than four weeks. Although the local authority acquires parental responsibility with an order, this is shared with rather than removed from parents (Brayne & Carr, 2005).
Once care proceedings have commenced, the local authority must then submit reports to the court. Initially, the local authority’s legal department would draft an evidential statement with the contents assisting the lawyer to make an application to court and would subsequently form the basis of the final witness statement. Two stages of decision making the follow in care proceedings, the first being deciding if the threshold criteria are met followed by the court considering if an order should be made under section 31 of the Children Act 1989. At this point the local authority would assist the court to decide what order would serve the best interests of the child. The local authority would submit a welfare report to the court under section 7 of the Children Act (1989). As stated in Brayne ; Carr (2005, p.210) this should contain:
* A summary of the local authority’s case,
* The results of any assessments that has taken place during proceedings,
* The views of the local authority including the reasons for making an order,
* The local authority’s care plan and contact proposals (s.34(11)
* Reasons the court should not apply the no order principle (s.1(5).
All reports including reports requested by the court from CAFCASS must be submitted no later than five days before the proposed final hearing (Brayne ; Carr, 2005).
Court reports are often referred to as ‘welfare reports’ or social enquiry reports’ according to Brayne & Martin (1997, p.177). Section 17 of the Children Act (1989) details the requirements of the contents that should be included in court reports. When writing a report, the author, usually the key social worker should only include the facts and subsequent recommendations.
The author must also be mindful that all parties to proceedings will gain access to the report and be prepared to justify the contents on the witness stand in court, as conflicts and ethical dilemmas may arise (Brayne & Martin, 1997). An example of this in the case study was found when Robert received the local authority’s court report and assessment of his mother. Details of Lucy’s terminated pregnancy were included and caused distress to both Lucy and Robert, as this was something she had never disclosed to her children. Robert believed this information bore no relevance to the proceedings and was only included to compromise his mother’s integrity. In addition, Robert felt his mother’s right to confidentiality had been compromised as this information was disclosed during her assessment. Although the significance of this in respect of timelines was explained to him, Robert remained adamant the information should not have been included.
Following the employment of an EPO, under section 44(13) of the Children Act (1989) there is a statutory presumption favouring reasonable contact for the child. This includes parents, siblings, unmarried fathers and any others living with the child prior to the order being made. In addition, the court may issue contact directions with or without conditions to family members who are unhappy with the amount of contact being offered by the local authority (Allen, 2005). Following a child becoming accommodated by the local authority, the UN Convention on the Rights of the Child (UNCRC) stipulates that any child who is separated from their parent/s has the right to regular direct contact unless this is deemed to be in the child’s best interests. The local authority must also promote contact with the child’s relatives and friends (Goldthorpe & Monro, 2005).
The local authority also has a responsibility to maintain contact with a child placed in care. A review of the child’s placement should take place within the first month followed by six-monthly reviews. An independent reviewing officer would act as an advocate of the child and also chair the reviews under section 22(3) of the Children Act (1989). The reviewing officer would also monitor and negotiate changes to contact if necessary, ensure the child knows of the local authority’s complaints procedure and their right to complain under section 26 of the Children Act (1989) and if necessary, although usually more relevant to children held in secure accommodation, refer the case to CAFCASS (Adoption and Children Act 2002, s.26(2A) (Goldthorpe & Monro, 2005).
When considering what order to make, the court should first be satisfied that making an order would best serve the child’s interests than making no order (section 1(5) Children Act, 1989). The ‘no order principle’ is a court only principle and should not deter the local authority from taking action to protect children. This should only be considered by when it is evident there is no case for court action. A care order would only be considered once the local authority has exhausted the alternatives to care for the child including providing family support and working with child protection plans (Brayne ; Martin, 1997).
The local authority has been successful in obtaining interim care orders in respect of Camilla and Daley and plan to place the children with their older brother Robert on full care orders. A care order can be made for any child under the age of 17, the only exception being a child who is 16 years and married (Section 31(3) CA 1989).
The court can only grant an order once it is satisfied the threshold criteria are met. The local authority must produce a care plan detailing how it intends to manage the upbringing of the child and must also reflect any significant changes that may occur in the child’s future. The legal effect of a care order is to give the local authority parental responsibility and statutory power to protect and promote the welfare of the child. Once granted, a care order would last until the child reaches 18 years of age (Allen, 2005).
Applications to discharge a care order can be made under section 39 of the Children Act 1989. The courts are usually cautious about discharging care orders and removing the professional protection an order offers when the applicant to discharge is made by a parent. As stated in Allen 2005, p.241;
“Mr Justice Thorpe made clear in Re O :
Those who sit in this building know how repeatedly, how vainly, how without any seeming justification, how without any seeming change of circumstances parents apply for discharge of care orders”.
Parents wishing to discharge a care order are able to make use of the courts ability to increase contact arrangements under section 34 of the Children Act 1989, thereby enhancing the prospects of a phased return home and the likelihood of the eventual discharge of the care order (Allen, 2005).
Whilst in proceedings, the court must regard the ‘non delay principle’ to avoid prejudicing the welfare of the child (section 1(2) CA 1989). Section 32(14) requires the court to hold a directions of hearing for preparing and hearing the case and should also set out a timetable for the proceedings. Prior to the introduction of the Public Law Outline, public law Children Act cases followed the Department of Constitutional Affairs protocol which came into effect on November 1st 2003 and had a goal of a 40 week timescale for completion (Brayne & Carr, 2005).
A 2005 review of child care proceedings in England and Wales produced the Public Law Outline (PLO). The PLO was put into practice on April 1st 2008 and is intended to address delays that are common during care proceedings and to ensure all resources within proceedings are employed both timely and cost effectively (Department for Constitutional Affairs, 2008). It was recognised that a common theme during care proceedings is that;
* 72% of children have two or more placements during the life of proceedings,
* 44% of families involved in care proceedings have been known to the local authority for more than five years,
* 88% of applications in care proceedings do not have a current core assessment attached.
On average, it takes 52 weeks to complete a Public Law case. The PLO intends to address this and achieve better outcomes for all those involved, primarily the children. Under the PLO, once a local authority considers care proceedings may be necessary, a letter before action will be sent out to parents outlining what the concerns are; the threshold criteria therefore giving parents the opportunity to seek legal advice. A meeting between parents, their lawyers and social workers without legal representation to discuss the concerns would then follow. It is envisaged this will prompt parents to work more effectively with services, typically the local authority, thereby avoiding the need for care proceedings (52 weeks, 2008).
Whilst researching law for children, there appears to be a collection of acts, policies and guidelines social workers must have knowledge of and effect in everyday practice. A common theme throughout all is the desire to protect and promote the welfare and safety of children. It is a sad fact that some children will always need the statutory services and intervention of local authorities and the courts. Parents are not always able to make the changes required to safeguard their children. Recent changes to care proceedings, the introduction of the PLO appear to recognise this along with the need for earlier resolution and aim to achieve this much sooner with better outcomes for all those involved, namely the children.
52 Weeks, introduction to the public Law Outline (2008) Ministry of Justice, DVD, Training Guidance, Available from TACT
Allen, N. (2005) Making Sense of the Children Act 1989, 4th ed. West Sussex: John Wiley & Sons.
Brayne, H. & Carr, H. (2005) Law for Social Workers, 9th ed. Oxford: Oxford University Press.
Brayne, H. & Martin,G. (1997) Law for Social Workers, 5th ed. London: Blackstone Press Limited.
Corby, B. (2006) Child Abuse, Towards a Knowledge Base. Berkshire: Open University Press.
DCA, Department for Constitutional Affairs, Justice, Rights and Democracy. (2008) [online] Available at: http://www.justice.gov.uk/guidance/careproceedings.htm [Accessed: 19.05.2008]
Goldthorpe, L. & Monro, P. (2005) Child Law Handbook, Guide to Good Practice. London: Law Society Publishing.
Hill, M. (2003) Understanding Social Policy, 7th ed. Oxford: Blackwell Publishing.
Jowitt, M. & O’Loughlin, S. (2006) Social Work with Children ; Families. Exeter: Learning Matters.