Social services play a vital role in the prevention of cruelty to children, and their actions have been controversial in the past and will continue to be in the future. They have an immense amount of power in their hands and are able to tear apart a loving family as well as save an endangered child’s life.
The aim of this study is to analyse the extent to which social services should exercise their power in order to fulfill the duties they owe to society. In order to explore this subject, it will be necessary to critically analyse the pre existing legislation that has governed this area, and study how the law has evolved over the last century.
It is an area of law that has and will continue to develop. There are also major problems within the social services organisation itself, such as underfunding and significant staff shortages, and it will be necessary to analyse and critique its current effectiveness through the use of a number of reports.
Whilst the lack of resources is undoubtedly affecting the effectiveness of the social worker, recent reports in the media have suggested that there is a vast amount of bullying and degrading treatment within the organization itself. A case highlighted is that of
Substantial changes have been necessary in the law surrounding child abuse over the past century as high profile and prolific cases of neglect have been brought to the attention of the public by use of the media.
This is a necessary area of study due to the fact that cases are continuing to come to light. The recent case of Khyra Ishaq
Chapter One: Background to the Children Act 1989:
A common theme that seems to occur throughout history is that it takes a major event to shock the nation in order for dramatic change to occur within the law, rather than the law changing in order to prevent such occurrences in the first place.
During the 1980’s, professionals were becoming increasingly aware of the existence of child abuse in society as a result of cases such as those of Jasmine Beckford and Tyra Henley. Jasmine Beckford had previously been placed in the care of Brent Social Services for a period of two years prior to her death. However, she had only been seen by a social worker once during a period of ten months, and was left in the hands of her stepfather who battered and starved her, consequently resulting in her death at the age of four years old.
Supervision orders for children at risk were first introduced in The Children and Young Persons Act 1932. Previously, there was precious little legislation available to protect children in need. This was a substantial addition to the law and granted protection to children who were experiencing abuse
The Children and Young Persons Act 1933 was the first attempt in statute in order to curtail the effects of child abuse and make it clear the obligations and duties of a carer. Part 1 of the Act details the role of the parent – that a child is deemed to be neglected in a matter likely to cause injury to his health if he has failed to provide food, clothing, medical aid or lodging for him, or if, having been unable to otherwise provide has failed to take steps to procure it to be provided under the enactments applicable in that relief. In addition to this, the statute also states that it is the responsibility of the court to ensure the welfare of an abused child by “taking proper steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training”.
According to Lord Diplock, under the 1933 Act, the parent must neglect the child “intending, or at least foreseeing, that the probable consequence of neglect is that the child will suffer injury to his health”. This statement causes confusion in cases that involve neglect, however. It is clear that the 1933 Act places great importance over how the offence was committed and whether it was wilful and deliberate.
One of the failings of the act is that it gives full discretion to the courts in protecting abused children and gives them no direction whatsoever in making such a life impacting judgement. More investigation into the circumstances and needs of those at risk was needed in order to find a suitable home for such children, and the courts did not have the knowledge or abilities to re-house them.
The case of Dennis O’Neill highlighted the failings of the 1933 Act and brought further radical change to the law surrounding child abuse. Dennis, together with his younger brothers were taken into the care of their local authority on the grounds that they needed attention. He died after being taken into foster care and was found by a pathologist to be undernourished and physically abused. Dennis O’Neill was subjected to horrific attacks at the hands of his foster parents and these attacks took place on a regular basis.
This case shocked the public and political figures, who were particularly alarmed to find out that the foster father, Mr Gough, had been known to the police and had a conviction for violence. It was therefore deemed necessary for a public enquiry to be held in order to determine the exact failings made by the authorities involved, and it blamed the two local councils that dealt with the case.
It was evident that the provisions of the 1933 Act were vastly inadequate in their role of protection and that major change to this area was needed. With this in mind, the Children Act 1948 established a Children’s Committee in each local authority to carry out the functions detailed in The Children and Young Persons Act 1933. A Children’s officer also had to be appointed who had relevant experience and be assisted by an adequate number of staff. In effect, this Act established social services as it divulged responsibility away from the courts and placed it with the local authority.
The Children’s Committee was supposedly staffed by those who had experience with children and would be able to cater to their needs and find them new homes where they would be loved and cared for effectively. However, events over the past 40 years have shown that the there is a great level of difficulty in providing effective protection for children at risk.
Following Jasmine Beckford were further shocking cases of child abuse that displayed obvious neglect by social services, and this led to a difficult period for workers in this profession, who were unsure as to which approach to take upon dealing with children at risk. A balance was clearly needed, and enough information had to be acquired quickly in order to determine whether to remove a child from their home, which could have devastating consequences upon family life if the risks of abuse were unsubstantiated.
the threat of child abuse appeared to be on the increasing. The John Patten Guidelines were released in order to provide professionals with advice during a period of unrest with regards to child neglect.
The Cleveland scandal of 1987 shocked the nation to the core, and led to further changes and major additions to the law in the form of the Children Act 1989. This case differed in that it was an example of the state causing the abuse to the infants rather than their parents or guardians. A total of 121 children were diagnosed as being sexually abused by Dr Marietta Higgs and her assistant Dr Geoffrey Wyatt. Together, they used a controversial and unproven test known as RAD – reflex anal dilation. Children had to undergo an invading and degrading test on their buttocks, and the memories of which have scarred some for life. A girl who was taken into care after being diagnosed with RAD continued to have nightmares about her ordeal twenty years after the event, and claims that the two doctors ruined her childhood.
The children diagnosed under Dr Higgs regime were removed from loving families and placed into care, whilst in some cases the parents were sent to prison. This had devastating results, and destroyed happy families. Even once the parents had been cleared by the courts of any wrong doing, many felt reluctant to show their children affection once they had been returned.
The Children Act 1989 originates from two reports. In 1984, the Parliamentary Select Committee on the social services recommended that the government should enable a review of child law to take place. This led to the formation of a government committee known as the Child Care Law Review who produced a report titled ‘Review of Child Care Law’. During the same period of time, the Department for Health and Social Security carried out a review of the law relating to child care and made a number of recommendations relating to child care, foster homes and child minding. Most of these recommendations were accepted in to a government white paper regarding child care and these proposals were brought before Parliament as part of the Children Bill.
Second Chapter – Provisions of the Children Act 1989 and the legislation in practice
The Children Act 1989 brought major change to the law regarding child abuse, and introduced a number of new principles to the legal system. Its main priority was protecting the welfare of the child, which was granted paramount importance in any dispute over care or parentage of an infant.
The 1989 Act stated that it was the responsibility of the local authority to safeguard and promote the welfare of any child that was in need within the area, and must provide a range and level of services appropriate to those children’s need. Therefore, social services must be sufficiently staffed and have a reasonable amount of funding in order to fulfil its role. Whilst considering a child’s welfare, their feelings and wishes must be taken into consideration together with any effect removal will have upon the family including the parents. The Act gave further guidance to local authorities once they had taken the child into care, and their duties and responsibilities in ensuring the welfare of the child is maintained. The local authority has a responsibility to house any child taken into care in a healthy environment, and ensure that the wishes of the child are taken into account when making such decisions. It was therefore not always best to remove the child from their home if support could be provided in the form of monetary relief in order to sustain the child’s welfare.
In order to keep a child with its family, it was made clear that those in need of protection together with their families should be offered support under part three of the Children Act. Only when voluntary methods of helping are unable to protect those at risk should the powers under parts four and five be used. According to June Thoburn and Ann Lewis in ‘Partnership with parents of children in need of protection’, these powers should only be used when actual or suspected significant harm or likely significant harm is at risk.
A positive element of the 1989 Act is the establishment of the Family Assistance Order, which granted support to families experiencing a difficult change such as divorce and separations in order for the child in question to remain with its family. However, this order is only to be used in ‘exceptional’ circumstances and consent must be obtained from each person involved with the order. An order of this kind would provide an example of the state providing a positive intervention into family life. Unfortunately, as it can only be used in exceptional circumstances, a Family Assistance Order is granted rarely despite the benefits it could potentially afford a family in need.
In addition to the Children and Young Persons Act 1933, the 1989 Act gave further definition as to what a ‘child in need’ is. It states that a child should be taken into care if “he is unlikely to achieve or maintain, or have the opportunity to achieving or maintaining, a reasonable standard of health or development without the provision of him of services by a local authority”. Furthermore, a child whose health could be impaired without the intervention of social services should be taken into care. This also extends to disabled children.
If social services believe that a child is in danger of ‘significant harm’, they are entitled under a new provision of the 1989 Act to seek a child assessment order( CAO). The courts must be satisfied that the applicant has reasonable cause to suspect the child is at risk, that the assessment will be able to determine to what extent that risk applies, and that the applicant will not be able to carry out such assessment without an order being made
If the risk of harm is deemed to be ‘an immediate danger to the child’, an emergency protection order (EPO) can be applied for. Unlike the CAO which is a non-urgent remedy, the EPO is an order which enables a child to be restrained in or removed to a place in order to protect their welfare.
The court is only likely to make such an order if they are satisfied that there is reasonable cause to believe that the child is likely to sustain significant harm if not removed to accommodation by the local authority or does not remain in the place they are currently being accommodated in. Whereas a CAO order needs the belief of the applicant, an EPO requires the court to be satisfied that the child is in danger, and they will therefore sufficient evidence will need to be provided to convince the courts of this and that urgent action is needed. Whilst the above orders may seem to contradict the principle that a child is best cared for at home, the orders must be carried out with this element in mind. Therefore, a child should not be removed from parental care longer then is strictly necessary and can be returned home even if the EPO is still in force.
As well as the above orders, the court can also make care and supervision orders in order to ensure protection of a child in need. These may only be made if the court is satisfied that the child concerned is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given to him if the order were not made. However, as the courts are under a duty to promote the upbringing of a child with its family, local authorities are under duty to fully explore alternative methods before applying for an order to be made under this Act. Furthermore, the welfare checklist must also be adhered to for an order to be made. Whilst the wishes and feelings of a child may have some influence, they will not override any of the other provisions of the welfare checklist, and the courts will need to assess whether the child is of the maturity to make any judgment at all.
The 1989 Act makes apparent the courts intention that a child is best cared for at home with their families. However, whether this is the most suitable option is certainly a major issue in society, and is very much dependent upon the circumstances surrounding each individual case. It is arguable that the Act should not place emphasis on this belief as professionals who follow this rule and take the child’s wishes into account could come to a conclusion that is not in the best interests of the child. It places social workers in the mindset that taking a child into care is not in the best interests of the child, and this could perhaps provide an explanation as to why further horrific cases have occurred following the Cleveland scandal.
Residential family centres were also created by the 1989 Act which allowed social workers to assess the relationship between the family outside of the marital home. The parents stay at the centre for a period of time with the children and are assessed by social services as to how capable they are in their role. Parents are also given the help and guidance they need in order to look after them.
The Children Act 1989 acknowledges that the relationship between the local authorities is of great importance when dealing with a child in need, and they must act in partnership. The Act places a duty on the relevant children agencies to provide information and assistance to the local authorities and also places them under duty to assist with the care plan formulated in respect of children. Following the Cleveland inquiry, it was apparent that the relationship between the relevant authorities was lacking, and the 1989 Act appears to acknowledge and remedy this situation by placing them under duty to act in order to safeguard children.
In order for a child to remain with their family during a difficult period, a service was established under the 1989 Act that was provided to the child in order to meet their needs in all aspects. Parents need to receive help in bringing up their children if they experience difficulties rather than taking them straight into care. This is a useful addition for professionals, as it gives them the opportunity to assess the family in a different environment and also provide help and guidance to a family in need.
There are arguments to suggest that the removal of a child from their home can be mitigated by providing frequent access, and that there must be a presumption that a parent will be able to see their child unless they have acted in such a way that makes contact heavily detrimental for them. However, this could potentially cause distress and upset to a child who has experienced abuse, and may also distort their true wishes and feelings. Access was denied to the parents and carers in the Cleveland scandal.
Further developments arrived in favour of keeping the child with its family from the European Courts of Human Rights and the Human Rights Act, In particular, article 8 – the right to respect for private and family life, home and correspondence. Article 8 offers protection for a person’s family life from arbitrary interference by the state. This right was framed extremely broadly. However, this is a qualified right which means that there can be an interference with a person’s family life providing it is lawful, serves a legitimate purpose, is necessary in a democratic society and is not deemed to be discriminatory.
Whilst Article 8 may appear to be restrictive upon social workers, one could argue that they must be able to justify their actions before intervening in a family environment, and certain aspects of privacy must be upheld. A recent case highlighted this aspect, as social workers placed a CCTV monitoring system in the bedroom of a couple with learning difficulties in order to determine whether they were fit parents. This forced the couple to cite the Human Rights Act in order for the surveillance to be removed.
Chapter Three: Failings of the Act – Victoria Climbie and Baby P,
The Children Act 1989 was not a cure for child abuse, and cases continued to come to light for many years after the implementation of the Act.
Arguments exist to suggest that the aim of the 1989 Act for children to remain in their families is incorrect when dealing with those that are severely abused. There is much emphasis on professionals to work with the family and improve the level of care they offer in parenting. This places social workers under pressure to work “therapeutic miracles” with the family, and failure to do so makes their job harder to carry out. Social workers were expected to work in partnership with families who were often uncooperative and unwilling to allow them access into their family, and the law itself placed the families under no obligation to be honest and work with them. Society did not make them feel empowered to act on their powers and make calls for action.
Furthermore, it was far more difficult for social workers to obtain a care order then it was prior to the 1989 Act being implemented. Social workers needed a higher level of evidence in order to satisfy a court that a care order was appropriate, and they had to return to the courts for scrutiny in order to make any decision. As a result of this, social workers were more likely to carry out a lengthy assessment of a child at risk rather than immediately remove them from their home. It took a great deal of time to carry out the necessary assessments and apply to the courts, the child at risk was often in a more abused state by the time they had reached care and this was obviously not in the child’s best interests. To some extent, this goes against the welfare principles as stated in the 1989 Act, and is somewhat contradictory. There is also a great amount of expense involved when applying to the court, and as a result of this, social workers were under pressure to carry out their assessments extensively and leaving the child in a potentially harmful environment for a longer period of time.
The Children Act 1989 to some extent gave social workers an excuse when failing to act in a case of child abuse. It could be argued that this was the case with Rikki Neave, whose drug addicted mother had repeatedly called social services for help, and had even asked them to take her son away into care. She had abused her son by burning him, throwing him across the room, and had even told a social worker that she would kill her children if they were not taken from her. Social services failed to remove the child from his mothers care and he was found dead. Theoretically, social services could argue in their defense that they complied with the 1989 Act with regards to keeping the child with its family, and that they needed to compile an assessment in order to be granted a care order by the courts.
In 1991, there were a total of 60,000 children in care. This figure had fallen dramatically to 40,000 by 1995. This decline in figures shows the effects that the Children Act 1989 had on the number of children in care, and could perhaps be viewed as a positive result of the Act’s implementation. However, it could also be argued that the number of children being abused had not reduced so significantly, and therefore there were simply more children living at risk.
The provisions of the Children Act 1989 were not enough to prevent the failure of professionals to safeguard Victoria Climbie, and this case of horrifying abuse was brought to public knowledge after her death in 2000. It is clear from this case that despite the legislation in place to deal with child abuse, it was the authorities themselves who acted negligently and failed to act on their duties as detailed in the 1989 Act.
Haringey social services were made aware of Climbie after her first admittance to hospital. The doctors warned social services of her injuries as a precautionary measure, but the social workers assigned to the case failed to take adequate measures to investigate how the injuries had occurred. An inexperienced social worker had been assigned to Climbie, and despite her making two visits to the family home, she failed to realise that her carer’s were putting on an act and the child was in grave danger.
Social services were yet again alerted to Climbie after her aunt reported her partner for sexually abusing the infant. However, she later dropped the allegations. Social workers had a meeting and decided to make further contact with the family, but failed to take the adequate steps needed in order to do so. After making three visits, a social worker reported that the family had most likely returned to France, and the case was closed on the same day that Climbie died.
There were a number of organizations that were involved with Victoria Climbie prior to her death. Climbie was known to local authorities, including Haringey, Ealing, Brent and Enfield. She was also known to three housing departments and two hospitals, two Metropolitan police child protection teams and a centre run by the NSPCC. It could only be concluded that there was a complete lack of communication between the agencies, despite the Children Act 1989 placing emphasis on the importance of agencies working together and sharing information
In total, social services missed twelve chances to save Victoria Climbie. The Victoria Climbie Inquiry found that there was a total absence of good professional practice. The interventions that should have occurred would not have required any exceptional skill and neither would it have placed heavy demands upon the staff involved. It is therefore evident that the failures of the services to act in this case represented serious professional misconduct.
As will be detailed in chapter four, further legislation arose from the Victoria Climbie inquiry, with Lord Laming’s report making a total of 108 recommendations for fundamental change to the way social care, healthcare and police child protection services are organised and managed at a national and local scale. The report led to the foundation of the Every Child Matters programme together with the Children Act 2004.
Haringey council found themselves in trouble once again when the baby Peter case occurred in 2007. Baby P sustained over 50 injuries during an eight month period and had been on Haringey council’s child protection register throughout this time. His family had been seen a total of 60 times by agencies including social workers from the council.
Baby P was first removed from his mothers care after he was taken into hospital with severe bruising, and the paediatrician judged that the injuries were not likely to have been accidental. She wrote in his notes that he should not be allowed home, and a police protection order should be sought if necessary. He was discharged and placed informally in the care of a family friend whilst social workers and police investigated the cause of his injuries. This resulted in Baby P’s mother being arrested and the toddler was put on the child protection register.
He returned back to the care of his mother a month later and she promised to cooperate with social workers and ensure she cared for her baby in order for his named to be removed from the register. However, she continued to neglect her son and her partner abused the baby. Baby P was taken into care in April 2007 but was released back to his mother once he had the all clear from the hospital. His mother continued to deceive professionals into allowing her to keep the baby and tried to conceal further injuries by smearing chocolate over his face.
Senior police officials decided that Baby P should not be allowed to live with his family, and sought legal advice to see whether he could be taken into care, but staggeringly, Haringey council’s lawyers decided that there was not enough evidence to meet the relevant thresholds. Here is proof that the emphasis on keeping a child with its family as established under the 1989 Act leads to difficulties in removing a severely abused child from their home when it is necessary.
Chapter Four: Further legislation as a result of these cases
It became evident following the case of Victoria Climbie that further radical change was needed to protect the lives of endangered children and that the Children Act 1989 was not sufficient legal governance in this area.
A public inquiry was established in order to find the exact causes of Climbie’s death, and following this was a report headed by Lord Laming. He reported that none of the government funded agencies can emerge from this report “with much credit”. Lord Laming claimed that the problem with child protection did not lie with the legal framework but its implementation and that there were major discrepancies with the staff that work with children.
Lord Laming made a total of 108 recommendations in his report. The most significant recommendations include the every child matters initiative. This government initiative was introduced in 2003 and its main aims are to ensure that a child has the support needed to be healthy, stay safe, enjoy and achieve, make a positive contribution and achieve economic well-being. It was the responsibility of the multi-agency partnerships to work together in order to meet the detailed framework surrounding each theme of the initiative. Lord Laming also reported that the failures of the police, social workers and hospital staff were partly due a lack of accountability.
Lord Laming suggested that the only way to address this issue would be to create a children’s minister who would be held accountable to the cabinet. Partly in response to the Lord Laming report, Margaret Hodge was appointed as the minister for children in 2003. Her role was to oversee the policies governing children at risk as well as other significant child governance.
The Every Child Matters green paper was published by the government in response to Lord Laming’s inquiry into the death of Victoria Climbie. This green paper recommended policy changes backed up by legislation, and the Children Act 2004 was designed to respond to the findings of the Lord Laming inquiry.
The 2004 Act established a children’s commissioner. Under S2 of the Act, the children’s commissioners role includes promoting awareness of the views and interests of children in England. The Children’s commissioner has a wide role, which includes encouraging persons exercising functions or engaged in activities affecting children to take account of their views and interests; advise the secretary of state on the views and interests of children; consider or research the operation of complaints procedures so far as children are concerned; consider and research any other matter relating to the interests of a child and publish a report on any matter from the above list.
The Children’s Commissioner role is to be concerned with the views and interests of children relating to a number of aspects of their well being. These include their physical and mental health and emotional well being; protection from harm or neglect; education, training and recreation; the contribution made by them in society and their social and economic well-being. They may also conduct an inquiry into an individual child if they feel it may raise issues of relevance to other children.
As well as establishing the Children’s Commissioner, the 2004 Act provided a response to Lord Laming’s report which heavily criticised the lack of co-operation between the services that deal with children. The Act places a “duty to cooperate” in order to improve the well being of a child at risk. This was designed to prevent further cases of children “falling through the gaps” such as Victoria Climbie, and ensure that all services such as the police, doctors and social workers are under a specific duty to communicate and work together to promote the well-being of an endangered child.
A key instrument in the enforcement of cooperation between agencies was the creation of electronic records for every child in the country. This record made it easier to trace a child who had moved to a new area and was therefore transferred between local authorities. It could be argued that keeping details of children on electronic record is a breach of article 8 of the Human Rights Act, and critics have made clear their view that these files will destroy the confidentiality of medical and legal records. Doctors, teachers and the police will have to alert the system to a wide range of concerns, and two reports on a child’s record could be sufficient to provoke an investigation.
Whilst the electronic records system may appear to be an effective provision in order to ensure that child mistreatment is monitored, there was a great deal of confusion as to what would be deemed as a “concern”. Dr Eileen Monro of the London School of Economics said that if a child fails to make progress towards state targets, detailed information would be gathered and this would include judgements such as whether the parent is providing a positive role model as well as sensitive information such as their mental state. This could mean that parents are forced to bring up their child in line with what the state deems is best rather than as they themselves see fit.It c
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