The new edition of the Journal of Children’s Services (5.2, June 2010) is the first of two this year produced to mark 21 years of Royal Assent to the England and Wales Children Act 1989.
The guest editors, Rupert Hughes and Wendy Rose, were both at the time in the Department of Health and closely involved in taking the Act through Parliament and, afterwards, getting it implemented.
The Act covered most aspects of child law other than adoption, delinquency and employment. It set out new court arrangements, bringing together family matters previously handled separately. It set out the duties of welfare authorities to safeguard and promote the welfare of children in their area who were in need and, so far as was consistent with this, to promote the upbringing of these children by their families. Children in need were defined as those needing services to maintain a reasonable standard of health or development.
This new edition sets the context and considers the court system, leaving the second edition on the 1989 Act, due out in September, to cover support, care and protection services.
Julie Doughty describes the main statutory changes since 1989: some 90 new sections have been added over the past 20 years to the original 108 and a number of amendments have been made to existing sections. However, she also shows that the changes in substance have not been as great as this might suggest.
Brenda Hale, who as a Law Commissioner contributed hugely to the Act, describes now from the Supreme Court the effect of its judicial decisions and those of its predecessor, the House of Lords in its judicial capacity. She concludes that the intentions behind the Act have fared pretty well.
Roy Parker takes the historical view in his article, comparing the Children Act 1989 with those of 1908 and 1948. He points out that the pressures of the climate at the time met with the concerns of the politicians and others dealing with the law and policy to secure a significant step forward, sometimes with a degree of serendipity.
Nigel Lowe on the private law orders (s8) and Judith Masson on the ‘no order principle’ (s1(5)) and the avoidance of delay make telling points on aspects where the Act has not fulfilled its original intentions. Recent developments to improve the process have added to its complexity and to the local authorities’ task in bringing proceedings but without as yet delivering the improvements sought.
Jonathan Whybrow, who also worked on the Act at the framing stage and now works as a child care solicitor, refers to the need for a simplification of the process and a duty on the court to bring decisions to a conclusion within a specified time.
Anna Gupta and Edward Lloyd-Jones discuss the arrangements for the representation of children and parents, in particular following the establishment in 2001 of CAFCASS (Child and Family Court Advisory and Support Service), from the point of view of the independent children’s guardian. The current tensions between the various interests in these arrangements are evident.
Judith Harwin and Nicola Madge write on the concept of ‘significant harm’, which is used as a threshold for care proceedings. Broadly it has stood the test of time. Words like ‘significant’ depend on judgement by professionals and the courts. But however it is set, the threshold should not prevent authorities from taking the right protective action for children at risk of harm.
The Government has just set up a Family Justice Review, to report in two years, and it is hoped that the articles brought together in this special edition will be an aid to their deliberations.
Follow this link to access the journal online.
