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THE CHILDREN ACT 1989 This Act has its origins in the proposals contained in the 1987 White Paper The Law on Child Care and Family Services, and is the single most important piece of legislation affecting local authority services for children and families since 1949. Its various sections are being brought into effect in stages in order to allow sufficient time for consequential administrative changes. It has important bearings on the work of the juvenile and family justice system as well, with the exception of adoption law. The Act is consistent with the philosophy underlying the White Paper on "Care in the Community". Over the last 100 years numerous pieces of child care legislation have been enacted, each reflecting the values and mores of its time. The intention of the 1989 Act is to sweep away the largely paternalistic framework underlying child care legislation of much of the post-war era. It introduces new principles of minimal state intervention, but instead aims to provide additional support for children within their own families. Thus, parental duties and responsibility are at the heart of the Act, the philosophy of which can perhaps best be summed up by a phrase in the Cleveland Report on child abuse: "A child is a person and not (first and foremost) an object of concern." It remains the local authorities’ duty to give support to children and families where there is a clear need. But a child in care of the local authority must he returned to the family unless it is quite evidently not in the child’s interest, a departure from previous theory and practice under which a child once in care was unlikely ever to have a care order revoked. Moreover, there is a duty to ensure continuing parental contact, again not previously generally encouraged. Local authorities are now in the process of reviewing the whole range of their services for children and, where necessary, restructuring them to provide services for them at home. A fundamental change in social workers’ attitude towards those people who use their services is needed. Importantly, for the first time, unmarried or divorced fathers may now share parental rights and responsibility by agreement with the mother. The Courts are charged once again to ensure that the child’s welfare is seen as paramount in respect of his upbringing or the administration of his property. The other principle, which deliberately discourages inappropriate intervention by the social services or the Courts, is that, whenever a court is deciding whether to make one or more orders under the Act, it has to be satisfied that making the order "would be better for the child than making no order at all". There is a clear recognition here that courts have tended to ‘play safe’, often with the result of severing family ties forever. Provisions for the protection of children, notably Place of Safety and Emergency Protection Orders under the Children and Young Persons Act 1969, were seen at the time as necessary to provide local authorities with adequate powers to remove children from home at once. They have, however, both in a blaze of media publicity in Cleveland in 1987 and, more soberly and very convincingly, in many research studies, been shown to he open both to abuse and over-use. For example, the 28 days Place of Safety Order has been described as draconian: during that time there is no right of appeal, nor do parents have a right to know where their children are or have right of access to them. The children are effectively in a state of limbo, in that, although cared for by the local authority, they are not ‘in care’. Meanwhile, parental rights, though not the power to exercise them, remain with the parents. The consequences of this anomaly were only too apparent when the issue of parental consent to medical examinations arose in the cases of some of the children who were the subject of Place of Safety Orders in Cleveland. These orders were seen to give excessive powers to local authorities. There is, moreover, a wide range of circumstances not specifically concerned with the threat of immediate danger to the child, such as failing to attend school, in which they can be, and are, obtained. Under the new Act an eight-day Emergency Protection Order may he granted "if, but only if" a court is satisfied "that there is reasonable cause to believe that the child is likely to suffer considerable harm". The parents have a right of appeal to a judge after 72 hours. The ability of the courts to make such orders remains a necessity, since parents can refuse access to a child or medical treatment, as in the recent ‘Jehovah Witnesses’ case. There are, unhappily, a large number of documented cases in which access was refused, and the child was subsequently found to have been subjected to appalling cruelty resulting in permanent harm or even death. In such cases the local authority’s social workers and the courts are blamed by the media and the public alike for neglect of duty. But they highlight the ineluctable dilemma at the centre of child care law: how to ensure the safety and welfare of children while at the same time preserving the rights of parents. There can be no doubt that the 1969 law was deeply flawed, in that it gave local authorities enormous power to be indeed the final arbiters over the fates of children. The European Court of Human Rights has handed down adverse decisions in a number of cases where parents have appealed against the orders of British courts which had denied parental access. However, the new Act, while being an admirable attempt to tilt the balance once again towards increased parental rights and responsibilities, can only succeed if parents can be educated and induced to carry out those responsibilities adequately and conscientiously. There has been a huge increase in the number of children who grow up in single parent or broken homes. Whatever the law, some children will always live in families who fail to act in their best interests. But laws can and do change attitudes and practices. The 1989 Children Act attempts to do just that, within the local authorities’ social services departments and the courts just as much as among parents. | ||||||