The third principle is the no order principle. This states that the court should not make an order unless it considers ‘that doing so would be better for the child than making no order at all’ (Brayne and Carr 2010, p 247). This can only be used by the courts and is a positive measure in that it prevents unnecessary orders and state intervention taking place. When the state does become involved in children’s lives it can have very negative consequences. For example, in 2006 only 12 % of children in care achieved 5 A* to C grades at GCSE compared with 59 % nationally, and 45 % of children in care are assessed as having a mental health disorder compared to 10 % of the general population (Brayne and Carr 2010, p 564). This reinforces the premise that the child’s natural family is, if possible, the best place for the child to be raised.
Another important concept of the CA 1989 is that of parental responsibility. With parental responsibility comes a collection of duties, rights and authority, which a parent has in respect of his or her child. This is significant in modern day England where there are more diverse family structures than ever before. Professionals in the 1970s, for instance, would generally be more used to dealing with a traditional nuclear family where it was more clear who had legal responsibility for the child or children. With more marriage and family breakdown and the presence of many different types of family structures, the CA 1989 informs professionals who actually has parental responsibility. This is a positive aspect of the Act as it helps social workers when making major decisions about a child. For example, it could be used to help a social worker apply for a prohibited steps order to prevent a child leaving the country. This would be beneficial if it was suspected that a child was being taken out of the country for an arranged marriage, for instance. Moreover, the CA 1989 gives social workers the option of a range of orders which previous legislation had not allowed.
There is also a section in the CA 1989 which outlines children who are in need. The main premise behind this is that if appropriate services are provided to families of children in need then this can prevent problems escalating and will reduce the need for child protection. This helps professionals to allow a child to be raised in their natural family; a main assertion of the Act. Finally if child protection procedures are needed Part V of the Act details the powers available to professionals to protect the child. These include child assessment orders, emergency protection orders and police protection (Brammer 2010, p169). This is another positive part of the Act as it can prevent serious harm and even death from happening to the child. There are, however, some commentators who are critical of this statute.
In their article ‘Is the Children Act failing severely abused and neglected children?’ Speight and Wynne (2000) question the very ideology central to the Act which states ‘The Act rests on the belief that children are generally best looked after within the family with both parents playing a full part and without resort to legal proceedings.’ (HMSO 1989). Speight and Wynne (2000 p193) argue that in the real world it is extremely debatable that returning a child to abusive parents has satisfactory outcomes. Furthermore, they claim that court action is frequently delayed with judges opting for a ‘trial of rehabilitation’ and social workers believing they have to let the child be re-abused to prove that further action is needed. Trying to keep the child with his or her natural parents may often lead to a succession of short term placements and the child who eventually requires a permanent placement is more likely to be emotionally damaged and consequently harder to place. They argue that prior to the 1989 Act the system at least allowed the possibility of a decisive happy ending.
The no delay and no order principles are further challenged by the concurrent system of jurisdiction inherent in the CA 1989. This is where cases can be transferred vertically and horizontally between the family proceedings court, the county court and the High Court and whilst allowing cases to be dealt with by the most appropriate court it has in practice proved to be a significant cause of delay (Brammer 2010, p178). Speight and Wynne (2000, p194) also question the credibility of working in partnership with abusive parents, another central concept of the CA 1989, and indeed the later Children Act 2004 (CA 2004). Speight and Wynne point out that you do not enter into a partnership with criminals during an investigation and the idea that you can work in partnership with people who in fact have committed a criminal act has the effect of decriminalising child abuse. Such concerns of the CA 1989 were given more credibility when the death of Victoria Climbie in 2000 received national media coverage. The resulting moral panic resulted in a lot of intellectual activity and the passing in 2004 of a new Children Act which now works alongside the Children Act 1989.
The 2004 Act was born from the public inquiry into Victoria Climbie’s death and the subsequent Green Paper ‘Every Child Matters’. A central tenet of the CA 2004 is the concept of working together to safeguard children and that ‘effective support for children and families cannot be achieved by a single-agency acting alone.’ (Brammer 2010, p182). Lord Laming who chaired the inquiry into Victoria’s death concluded that ‘the legislative framework for protecting children is basically sound . . . the gap is not a matter of law but in its implementation.’ (Brammer 2010 p 182). The panacea was seen as both structural and cultural change. For example, the CA 2004 raised the importance of safeguarding children by creating the post of a Children’s Commissioner who advises the Secretary of State on the views and interests of children. However, this appointment has been criticised with some commentators arguing that the commissioner is not independent enough (Walker and Thurston 2006, p 13). Another structural change is the creation of Local Safeguarding Children Boards (LSCBs). They have replaced Area Child Protection Committees (ACPCs) which were criticised as lacking effective leadership, lack of commitment and lack of adequate authority to hold members to account (Brammer 20010, p 236). This has had a positive impact on the day to day work of professionals with children and young people. A much higher value has now been placed on sound collaboration between workers, with members of the multi-agency team being specifically trained to work collaboratively. In the past commentators have highlighted the difficulties of different professionals working as part of a multi-agency team with concepts such a ‘groupthink’ having detrimental effects on particular cases (Beckett 2007, p 30). For example, professionals may defer to the perceived higher status of another professional which was most probably a factor during the Cleveland Affair where the medical opinion of the paediatrician was the sole reason for the removal of children. Changes to the safeguarding of children since the CA 2004 have addressed such difficulties and now the focus is on the needs of the individual children rather than the needs of the organisation. Walker and Thurston (2006, p17) argue that structural change is less important than creating a culture whereby staff learn to work in a more collaborative way. Developing a children’s workforce is central to this ethos of an integrated children’s system, nonetheless this has not been an easy concept or practice to achieve. For example, doctors have sometimes been reluctant to become involved in child protection work because of legal action and the threat of becoming a high profile scapegoat when things go wrong is very much in the mind of most child care workers. After the death of Peter Connelly (Baby P), for instance, some professionals who had dealings with this case even had to leave their own homes because of the fear of reprisals from the public (BBC 2014). The central role of education and schools in integrated children systems has also been criticised with teachers complaining that it is hard to become fully involved because of the demands of delivering the education curriculum (Walker and Thurston 2006, p 20).
Members of the Local Safeguarding Children Boards (LSCBs) established under the CA 2004 do receive government guidance in the form of Working Together To Safeguard Children 2013 and the way that a practitioner and organisation responds and the strategies that they use will very much be determined by this guidance which advises about collaboration between organisations and individuals who work with children. It sets out strategies of how they should work together to safeguard and promote the welfare of children and young people. As well as collaborative working, a child-centred approach is central to the Working Together to Safeguard Children guidance which states ‘Ultimately, effective safeguarding of children can only be achieved by putting children at the centre of the system and by every individual and agency playing their full part, working together to meet the needs of the most vulnerable children.’ (HM Government 2003). Indeed, Working Together states ‘everybody who comes into contact with children and families has a role to play’ (HM Government 2003) which reinforces this idea of a children’s workforce, another positive aspect of the CA 2004.
A child centred approach begins by the practitioner being non-judgemental and listening to what the child has to say. This approach is a practice that focuses on the child and their needs where they are respected and their views heard and is a positive as it helps to raise a damaged child’s self-esteem. It is, however, important not to breach human rights when dealing with families, and Working Together emphasises the involvement of the child and the family at child protection case conferences. The European Court of Human Rights had found breaches in Articles 6 and 8 through failure to involve parents in decision-making regarding children in care (Brammer 2010 p242) and this demonstrates that all professionals must make sure that each and every decision that they make does not go against the articles set out in the Human Rights Act 1998 (HRA 1998). Furthermore, the United Nations Convention on the Rights of the Child (UNCRC) must be adhered to by all signatory states.
There are criticisms of the Working Together guidance in its current incarnation, and of current safeguarding practices. In particular Davies (2013) highlights the short-sightedness of abolishing the national child protection register in 2008 and replacing it with a database that switched the emphasis from protecting endangered children to monitoring all children and providing 'family support'. Davies argues that a national child protection register provided an essential alarm to emergency services and it alerted, for example staff in accident and emergency departments, that a child has been identified as at risk of harm. Furthermore, a national child protection register keeps children safe across authority boundaries. Finally, Davies criticises the Working Together guidance for overwhelmingly concentrating on abuse that occurs within the family to the expense of other forms of child abuse. She highlights that there is a vast international child abuse industry with, for example, an illegal adoption trade, illegal organ trade and forced marriage not being addressed properly by the current guidance.
Conclusion
In the wake of Saville and other high profile historic child abuse cases, the willingness of people to report these crimes may to some degree be due to the confidence that victims now have in the legal system. Since the death of Jasmine Beckford in 1984 and the concept of a Gillick competent child, a year later, developments in guidance and legislation have gradually led to cultural change where any form of child abuse is now very much a taboo in English society. Furthermore, all public bodies now must comply with the European Convention on Human Rights. For instance, corporal punishment has been banned in English state schools since 1986 and children share an equal footing today with adults as regard to human rights. The CA 1989 came at a historical juncture where compromise was needed between protecting children and, after Cleveland, also protecting family rights, and has proved to be effective in offering professionals a range of options when dealing with the safeguarding of children. The CA 1989 has even been described by the Department of Health as offering a mix and match menu where a court can choose the best course of action, or actions, for the child (Brayne and Carr 2010, p 249) and the overriding theme is that the welfare of the child is the professional’s paramount consideration (Brammer 2010, p170). When looking back to society prior to the CA 1989 this statute has to a large degree been instrumental in creating a kind of cultural revolution and existing attitudes of not listening to the child and believing the adult have been steered to one that prides itself on child centred approaches where the welfare of the child comes above anything else. Even so, other high profile deaths indicated that collaboration between professionals and the workings of the multi-agency team were not totally effective and more legislation was needed. The CA 2004 has filled this need, with much more emphasis now on training professionals to work effectively in the multi-agency team. Overall, when analysing the impact of current safeguarding legislation on day to day work with children and young people a lot of evidence suggests that the legislation and guidance has provided many benefits. However, any professional or policy maker needs to be aware of all of the issues which come under the safeguarding umbrella. For example, the way that the reporting of a particular child’s death creates a moral panic and the call for government action, and the way the government responds to these high profile cases when in fact child homicides remain pretty constant over time with on average one child killed every week in the United Kingdom (Sudisafe, 2014).
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