The Children Act 1989: 30 Years On

The Children Act 1989 was a watershed moment in legislation to safeguard the rights and welfare of children.

Aimed at making the law less confusing and easier to apply, it was hailed by the then Lord Chancellor as "the most comprehensive and far-reaching reform of child law which has come before parliament in living memory".

The act placed a range of new duties on local authorities and the courts - much of which still applies today - including charging councils with providing services for all "children in need".

From the outset there were concerns about funding especially when it came to prevention and wider support for families - services that have been particularly hard-hit by recent cuts.

At this year's annual conference of the Association of Directors of Children's Services president Rachel Dickinson called on members and government to "reclaim and resource the core principles of prevention in the 1989 Act".

THE CHILDREN ACT 1989 QUICK GUIDE

• Aim
  To strengthen protections for children and clarify and simplify the existing patchwork of legislation.
• Background
  The drive for reform came on the back of several high-profile child abuse cases and an inquiry into the actions of "over-zealous" social workers in Cleveland. The legislation, which brought together public and private law for the first time, was informed by a review and subsequent White Paper on child care law and a Law Commission report on custody and guardianship.
• Key principles
  The 1989 Act centres on the idea children are best cared for within their own families and every effort should be made to support that, where possible. It emphasises that the child's welfare is paramount when making decisions about their upbringing and their wishes and feelings should be taken into account. Delays in making decisions are likely to have a negative impact. It also established the principle of "parental responsibility".
• New duties
  The act sets out in detail what local authorities, courts and other agencies should do to protect the welfare of children. Under section 47 local authorities have a duty to investigate if they suspect a child is at risk of significant harm, including physical and sexual abuse or treatment likely to damage a child's health or development. Section 17 charges councils with a duty to provide services for "children in need" and their families.
• What happened next
  Since the act was passed, there has been a raft of other legislation to boost child protection including the Children Act 2004 - which created the statutory role of director of children's services - and more recently the Children and Social Work Act 2017.
  
  

LEGISLATION CHAMPIONED CHILDREN'S RIGHTS

By Carolyne Willow, director, Article 39

Two years ago family court judge Mr Justice Peter Jackson wrote to a 14-year-old boy, telling him: "This case is about you and your future, so I am writing this letter as a way of giving my decision to you and to your parents." No one could understand the boy's situation "better than you", he added. More than an act of kindness and skill, this validated the child as a human being in a tremendously difficult position - exactly the kind of recognition the Children Act 1989 was intended to provide.

Trailblazers in the rights movement forchildren in care include the National Association of Young People in Care, which raised concerns about the lack of attention and respect given to young people's views and provided powerful evidence to the House of Commons committee that recommended the wholesale review of the law that led to the act. Meanwhile Black and In Care documented institutional racism in the care system at a time when it was commonplace for children from black and minority ethnic communities to have their identities, heritage and sometimes even their names taken away.

The act has been amended to require due consideration be given to children's wishes and feelings within child protection and children in need decision-making. That's in addition to clear duties to listen and take children seriously in all parts of the care system. A right to independent advocacy ensures, in principle, that no child stands alone and unheard.

Independent reviewing officers are duty-bound to ensure children in care are listened to when decisions are made about their lives. The scaffolding is there but achieving real respect for children and young people must be seen as a continuous endeavour. Ahead of a general election, we may well ask if the act's validation of children as human beings in their own right had been truly accepted, wouldn't 16- and 17-year-olds have the right to vote by now?

• www.article39.org.uk
  
  

KEEPING HOLD OF THE CORE PRINCIPLES

By Anna Feuchtwang, chief executive, National Children's Bureau

In 1948, we made a promise to support and protect our nation's health. The principle of access to healthcare based on need, free at the point of use, is one that has been fiercely defended ever since.

In 1989, the Children Act made a promise to every child that their best interests would be the first consideration in decisions made about their health and care. Have we kept that promise?

Children are relatively safe in this country. The number of child deaths in the UK, where another person is responsible or where responsibility was not determined, are among the lowest in Europe.

But we need to think beyond simply keeping children safe. The 1989 act represented a revolution in how we view our responsibilities to help children thrive and recognise their voice in society.

Now 30 years on, there are two principles in particular of which we need to remind ourselves.

First, the principle that, as far as possible, children that need help should be supported within their birth families. This support, for "children in need", outlined in section 17 of the act, should enable them to reach a reasonable standard of health and development, not just protect them from serious harm.

The principle recognises families may face challenges in creating an environment that enables their child to thrive. It reminds us that, in most cases, the best approach is to work in partnership with parents to ensure children reach their potential.

How is this being delivered in reality? In a 2017 survey by the National Children's Bureau, 70 per cent of social workers felt the threshold for providing services to children in need had risen in the past three years.

In parallel, 35 per cent of lead members for children's services said they did not have sufficient funding to support this group of children.

The latest data shows the proportion of local authority money allocated to early intervention has progressively decreased over the last decade while the number of children subject to child protection plans has ballooned. This has been noticed nationally, but too much of the concern appears to be about cost, not that we are failing children and families.

The other principle we should consider is that children should be listened to and their interests should be paramount in any decision made about them. With ongoing pressures facing social workers, we regularly hear of children in care not being listened to.

Meanwhile, the lack of a robust government response to protests outside a primary school in Birmingham reminds us that, despite the act, many believe parents have a right to decide what their children are taught and where, sometimes overriding what children themselves say they need.

The passing of the 1989 Act marked a commitment to a series of vital principles. These principles must be championed for the next 30 years and beyond or we will not meet the needs of children and families, leaving them trapped and isolated. We knew this 30 years ago, we know this now. We must keep the promises we made to our children.

• www.ncb.org.uk
  
  

ACT HERALDED END OF GENERIC SOCIAL WORK

By Ray Jones, emeritus professor of social work, Kingston University and St George's University of London

While 2019 marks the 30th anniversary of the 1989 Children Act, 2020 is the 50th anniversary of the development of an integrated social work profession in the UK.

Prior to 1970 there were separate children's, welfare and mental health departments within local authorities and eight different professional organisations for different types of social workers. In 1970 there was the advent of one professional association - the British Association of Social Workers - one professional qualification for all social workers, and social services departments in England and Wales with similar arrangements in Scotland and Northern Ireland.

The prevalent model was generic area teams with some caseload specialisation. The intention was a social worker could work with a family across the generations and assist with the range of issues they faced, creating greater coherence and reducing duplication.

This changed in England following the 1989 Children Act and 1990 NHS and Community Care Act. The 1990 Act prompted a purchaser-provider separation within social services departments. Services for children and adults were pulled in different directions. The consequence was the unwinding of generic social workers, teams and managers and the creation of separate children's and adults divisions within social services.

Extensive specialist guidance that accompanied the 1989 Act guidance also led to greater specialisation within children's services, with separate teams and workers for short-term intake and assessment, fostering and adoption, disabled children, looked-after children, permanence planning and care leavers.

It was the 2004 Children Act which led to the establishment of separate adult and children's services. Combining education and services for schools with children's social services was intended to create a more integrated service for children and families, but academisation and free schools mean schools are now largely outside local authority influence.

There has also been increasing fragmentation in the professional training of social workers with the creation of the Frontline fast-track scheme for children's social workers and a new accreditation programme that only applies to statutory children's social workers in England.

The 1989 Act, therefore, heralded an end in England to generic social work focused on families across generations and communities. This was taken much further by the 2004 Children Act and the government's separation since 2010 of statutory children's social workers from other social workers.

On the ground, however, Ofsted is finding that the best-performing children's social services are rebuilding a family and community focus and integrating mental health, drug and alcohol, and domestic violence workers into local children's social services teams. A new balance is being found in how local authorities are handling the generic and specialist debate with integrated local services encapsulating specialist workers. This seems well tuned to the 1989 Act's intentions of helping families within communities care for children in need.

• www.kingston.ac.uk
• www.sgul.ac.uk
  

WORK TOGETHER TO REFRESH THE ACT'S EARLY HELP VISION

By Kathy Evans, chief executive, Children England

At Children England the anniversary of the Children Act 1989 has sent us looking back through our archives, as well as considering its fitness for the future.

Children England's foundation back in 1942 enabled our members to have significant influence on the Children Act 1948, which created the first clear single duty for every local authority to be legally responsible for any child who could not live with their birth family. Far from seeing this as a threat or "takeover" of what charities had been doing for hundreds of years, it was welcomed by members who pledged to help the state deliver its new duties, share expertise, and work in partnership with national and local government for the benefit of children.

Similarly we worked in partnership with the Department of Health to help create, consult on, pass and implement the Children Act 1989. The scope and complexity of the work was huge, attempting to bring coherence and child-centredness to the previous cat's cradles of intersecting family laws and precedents, child protection and care provisions, and wildly varying practices from one area to the next in family support services. It was led by the late, much respected civil servant Rupert Hughes, and the brilliant family lawyer, now Supreme Court judge, Lady Hale. Children England - then the National Council of Voluntary Child Care - acted as a conduit between central government and the thousands of charities and voluntary groups that were - and still are - a vital part of the sector that had to adopt and adapt to the new law.

Ten years after the act was passed, Rupert Hughes wrote an essay in Children England's annual review. He refuted the idea under-resourcing had been a significant problem - although we might wonder what he'd make today of the more than 60 per cent cuts to councils that still carry out all those important duties.

"Another reason sometimes advanced is the simultaneous implementation of community care," he wrote. "I think there is a modicum of truth in this, at least in the sense that managers may have found it easier to grapple with the concept of the purchaser/provider split than with the act's definition of children in need."

The original intention of the general duty under section 17 was to support to all children and families "in need" through a range of community services and supportive social care practices, only resorting to child protection powers under section 47 in the rare circumstances when a child needed to go into care. Section 17 was, in effect and intention, an early intervention duty, but it's hard to see it having had that effect today. The last decade of relentless cuts to benefits, councils, legal aid and more, have torn new holes in the safety net and left too many families to fend for themselves without sufficient income, food, homes or practical help until their descent into family crisis triggers care proceedings. This risks turning the Children Act 1989 into a "blue light" emergency intervention by the state - the diametric opposite of its intended role.

As Children England continues its campaigning for a Children Act Funding Formula based on a true understanding of section 17, and radical reform to the divisive, costly "marketplace" for purchasing and providing care, we think Rupert Hughes was a man of great wisdom and foresight. Our challenge today is to collaborate again, to refresh and re-invest in achieving the vision and principles of the act so that we can tackle the serious children's services crisis created by cuts and costly marketisation.

• www.childrenengland.org.uk
  
  

PARENTAL RESPONSIBILITY SHOULD FOLLOW THE CHILD

By Andy Elvin, chief executive, Tact Fostering and Adoption

The 1989 Children Act considers the meaning of parental responsibility and the fact it is not a constant right but diminishes as a child gets older.

There can be restrictions on how parental responsibility is exercised. In a landmark judgment in 1986 Lord Scarman emphasised the fact the welfare of the child was the "paramount consideration in determining the order to be made" making it clear parents' rights could be "challenged, even overridden" in the best interests of the child.

For most children in care the state holds parental responsibility under one of the orders available under section 31 of the 1989 Act. In practice this is often an interim care order or a care order. A significant minority of children in care are placed under section 20 of the 1989 Act. This means the birth parent holds full parental responsibility still and no decisions can be made without their permission.

Within current practice the concept of delegated parental authority is often used. This is where the legal parent, be it the local authority or birth parent, designates decision-making to those actually caring for the child such as foster parents, kinship carers or a children's home.

I would argue it is vitally important the overwhelming majority of the decisions made about a child are made in the home where they live long term. Nothing reminds a child they are in care like seeing their primary carers have to ask a social worker's permission for normal childhood activities like sleepovers and school trips.

Bigger decisions such as choice of secondary school or changing schools, should also rest with the foster parents, because they will soon know the child far better than the child's social worker. Whenever possible, the child's parents or key relatives should be informed and involved.

If feasible, the foster parents and relatives should agree and arrange the times when birth parents, siblings or relatives speak to or see the child. Having courts or social workers decide this often leads to arrangements that suit no one.

Full delegated authority should be conferred on foster parents when a child moves into their new home, unless the local authority specifies otherwise. Currently, local authorities have to opt in rather than opt out, which often leads to the failure of delegated authority being granted.

We are giving foster carers 24/7 responsibility for children and expecting them to offer a high standard of care, helping the child recover from early trauma. These significant responsibilities should be matched with the right to full delegated authority. If we do not trust the person caring long term for the child with parental responsibility then why is the child living there?

• www.tactcare.org.uk
  
  

POLICY AND FUNDING SHIFTS ‘SUBVERTED' ACT

By June Thoburn, children and families lead, British Association of Social Workers

The importance of the 1989 Children Act can be gauged from the fact no substantial changes have been needed for the past 30 years. The act was aligned with social work practice so little change in social work values and broad approaches was needed when it was implemented. Numbers entering care were dropping and imaginative family support services sat alongside services for children in care thanks to the influence of social workers, social work academics and voluntary sector groups.

The act came with resources to implement family support and partnership working. Other major changes included the fact it brought services for disabled children and their families within the scope of legislation for all children and provided better links between public and private law services. One negative was services for young offenders were hived off into the justice system with its emphasis on punishment and not care.

Aside from this I believe all the changes in the act itself were necessary and appropriate. Whether it achieved what was intended is a big question. Concepts such as the "no order" principle, which means courts should only intervene when other measures can't secure the child's welfare, and the crossover between the family support and care order sections, gave social workers discretion to work with families without needing to use coercive powers, and many authorities introduced imaginative ways of doing so.

Regrettably, the act's carefully worded balance has been subverted by shifts in policy and social work practice from an emphasis on helping families, towards a focus on protective interventions. The shift results not from the act itself but from much reduced funding alongside greater numbers needing services. Linked to that is the move towards "risk averse" practice resulting from media responses to child death reports. As a consequence, increasing numbers of social workers have been deployed in "protection" roles with growing numbers of children entering care. One very unwelcome consequence of losing sight of the partnership principles in the act is many who need services have come to see social workers not as helpers but as punitive "child stealers".

• www.basw.co.uk