The Children Act 1989 - Book Report/Review Example

Introduction to the Children Act 1989 The Children Act 1989 pulled together and simplified all pre-existing legislation in relation to children and families. It imposes new duties on local authorities (LAs) - for example, the identification and assessment of 'children in need'; a) gave LAs new responsibilities for children that are 'looked after' (eg children in care) b) provided new court orders to protect children at risk of harm (eg Emergency Protection Orders that replaced the old Place of Safety Orders) c) emphasized the importance of inter-agency work and a corporate approach to providing services to children and families (eg the creation of multi-professional responses to children identified as children in need). The Children Act has a tidy structure. It consists of 12 parts and 15 schedules (some parts of the Act are expanded in schedules attached at the end, and these are equally impact to the main sections of the Act). Over a hundred sections are grouped together in the different parts (opsi 2006). The Act has duties, powers and responsibilities. A duty will require the local authority (LA) to comply with it, whereas a power means a LA can act. A responsibility refers to outcomes. Duties can be qualified, and in some areas the Act includes phrases like 'shall take reasonable steps to'. A qualified duty is little more than a mere power. Emphasis must be made as the nature of terms and definitions of the extent of LA responsibilities. Failure to understand this may cause misunderstandings between professionals. Generally, legislation only provides the framework for practice: it cannot change practice of itself, as only those using legislation can do that. Knowledge of the legislation and skills in using it are important but values, attitudes and beliefs that inform practice responses are also a prime consideration. Professionals' work with children and their families is a complex issue and constantly evolving and contradictory constraints, in particular the requirement to protect children from harm while avoiding unwarranted state intervention in family life. The Children Act 1989, Part 1, contains fundamental principles that cover all parts of the Act. For example, children’s and families cultural and linguistic diversity must be a key consideration when responding to them and developing partnerships with parents and care givers. Informed decisions should be made and practiced. The word partnership does not appear in the legislation and regulations but does feature in Government guidance and in the Department of Health (DoH) list of principles that emphasize a code of practice. The key principle underlying the Children Act without being a legal requirement is a commitment to working in partnership with children and their families. Part III of the Act Sections 17 and 47 describe the duties and powers associated with the provision of services to children and families. These should be read in conjunction with Schedule 2. Part III gives a local authority a general duty: to safeguard and promote the welfare of children in need - s.17(1)(a) promote the upbringing of children in need by their families by providing a range of services appropriate to those children's needs - s.17 (1)(b). Under the Act (s.17 (10) (a) (b) and (c)) a child is taken to be in need if: "he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; his health or development is likely to be significantly impaired or further impaired, without the provision for him of such services; or he is disabled " Preventions and Interventions Functions and Duties of Involved Agencies - The Children Act 1989 Section 17 (1) ‘It shall be the general duty of every local authority (in addition to the other duties imposed on them) - (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children’s needs. (2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 Schedule 2. (5) Every local authority - (a) Shall facilitate the provision by others of services (including in particular voluntary organisations) of services which the authority have the power to provide by virtue of this section.... (b) may make such arrangements as they see fit for any person to act on their behalf in the provision of such service. (10) For the purposes of this Part a child shall be taken to be in need if - (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; (11) For the purposes of this Part “development” means physical, intellectual, emotional, social or behavioural development; and “health” means physical or mental health. Section 27 (1) Where it appears to a local authority that any authority or other person mentioned in subsection (3) could, by taking any specified action, help in the exercise of any other functions under this part, they may request the help of that other authority or person, specifying the action in question. (2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory obligations and does not unduly prejudice the discharge of any of their functions. (3) The persons are - (a) any local authority (b) any local education authority (c) any local housing authority (d) any health authority; and (e) any person authorised by the Secretary of State for the purposes of this section.’ Schedule 2, part I Paragraph 1 - Every local authority shall take reasonable steps to identify the extent to which there are children in need in their area. Paragraph 7 - Every local authority shall take reasonable steps designed - (a) to reduce the need to bring - (i) proceedings for care or supervision orders with respect to children within their area; (ii) criminal proceedings against such children; (iii) any family or other proceedings with respect to such children which might lead to them being placed in the authority's care; or (iv) proceedings under the inherent jurisdiction of the High Court with respect to children; (b) to encourage children within their area not to commit criminal offences; and (c) to avoid the need for children within their area to be placed in secure accommodation (Youth Justice Board 2006). In the case R v Bexley LBC ex p B (1995) 3 CCLR, a court gave an order aiding health professionals on the ways they were able to care for a severely disabled baby girl. An injunction was arranged baring anyone from releasing the identification of the child, her parents, and the hospital where she was being looked after (Claydon 2005). Too young to know anything about the publicity surrounding the issue, she had medical confidentiality. Her welfare was in the hands of her care givers. Unless the public interest or a private right enforceable by the courts requires an injunction, the courts cannot intervene. On the facts of this case such intervention can only be justified upon one or other or a combination of two bases. These are (1) that the injunction is necessary for the welfare of the child or for safeguarding her rights and (2) that the injunction is necessary in the interests of the administration of justice. Those caring for the child were obliged to act in confidentiality to her. Service Provision With regards to services for an individual child, no entitlement is given to any individual to any particular form of service. It is left to the discretion of local authorities about what to provide to whom, provided the services are appropriate to the children’s requirements in their area. There are issues about children having legal rights to any particular service, and that implementation by local authority duties becomes very problematic. Case law reflects this: "an assessment of a disabled child's needs pursuant to paragraph 3 of schedule 2 to the Act does not appear to give rise to any specific duty pursuant to the Act itself" (R v Bexley LBC ex parte). There are different types of services which fall into two categories: (1) services to children in their own homes (2) services that involve children being looked after elsewhere, such as in residential or foster care, for a short or a long period of time. Children in need must be provided with accommodation under s.20 of the Children Act (opsi 2006): "Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of – (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently and for whatever reason) from providing him with suitable accommodation and care." These arrangements are voluntary, but if a person with parental responsibility who can arrange for the child’s care, objects, the arrangements may not be made. Local authority must do the following when accommodating a child:- · discover and consider the child's wishes and feelings (s.20(6)) and to those of the parents, others with parental responsibility and other relevant people (s.22(4) and (5)); · give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background (s.22(5)(c)); · search opportunities for placement within the child's family and friendship networks (s.23(6)); · situate the child near to home and with siblings (s.23(7)); · verify that accommodation for a disabled child is not unsuitable for her or his particular needs (s.23(8)); · advise, assist and befriend a child when they cease to be looked after (s.24(1) (provided the child was being looked after at age sixteen, s.24(2)), including a power to give financial assistance (s.24(7)-(8). The Children (Leaving Care) Act amends s.24 of the Children Act. Local authorities are required to gauge and meet the care and support needs of care leavers, ensuring that plans are in place and personal advisers appointed (Connexions 2005). Support, including financial assistance, must be provided to the extent that the young person's welfare requires it. Child placement is subject to the Arrangements for Placement of Children (General) Regulations 1991 (SI 890) and the Review of Children's Cases Regulations 1991 (SI 895). With regards to the location, child placements are subject also to either the Foster Placement (Children) Regulations 1991 (SI 910) or the Children's Homes Regulations 1991 (SI 1506). Also applicable to practice is policy and practice guidance issued in respect of both family placement (DoH 1991c) and residential care (DoH 1991d). Specific guidance has been issued on permissible forms of control in children's residential care (LAC(93)13 and CI(97)6), which outlines actions staff may take in protecting young people who are engaged in behaviour that is potentially harmful to them. For children living with their own families certain provisions exist. The Children Act stipulates that certain services must be available for children in need:- · day care for children under five not attending school (s.18(1)); · activities out of school hours and during school holidays (s.18(5)); · advice, guidance and counseling, occupational, social, cultural or recreational activities, home help, assistance with travel to services, holiday assistance (sched.2, para.8); · family centers (sched.2, para.9). The services may include giving assistance in kind or, in exceptional circumstances, in cash (s.17(6)). This can include contributing towards the cost of living accommodation for a family not eligible for housing authority assistance, although s.17 does not impose an absolute duty to house homeless children together with their families. The local authority may not refuse or make assistance conditional on parents pursuing a particular course of action. Also relevant for disabled children living at home are:- · s.2(1) of the Chronically Sick and Disabled Persons Act 1970 (practical assistance in the home, recreational and educational facilities, travel, adaptations and equipment, holidays, meals and telephones); · the Housing Grants, Construction and Regeneration Act 1996 (disabled facilities grants for adaptations to housing); · schedule 8, para.3, National Health Services Act 1977 (home help and laundry services.) Benefits to a child must be of a high order before they outweigh parents' rights to bring a child up (O'Donnell 1995). This is in accordance with Article 16(3) of the Universal Declaration on Human Rights 1948, identifying the family as the natural and fundamental group unit of society, and Article 8 of the European Convention on Human Rights on the right to respect for private and family life. Promoting Health for Looked After Children The concern of a lack of attention to the health needs of looked after children and poor health results gave rise to this guidance. Although regulations exist in relation to medical examinations and monitoring, research evidence demonstrates low take up of the statutory provision and indicates that at best it achieves a superficial health check rather than a holistic service for children (Butler and Payne 1997). Young people do not see their statutory medicals as opportunities to raise and discuss their general health concerns. Also, their need to discuss risk-taking behaviour may be compromised by their concerns about the confidentiality of the consultation (Mather 1997). Compulsory Measures The services provided must be in agreement where possible. This is a requirement for partnership. However, a number of ways are open for local authorities to intervene if parental agreement and child assistance is lacking and risk or needs of the individual is amply high to warrant forceful action. Where circumstances are extreme, a local authority has the right and is amongst those who may apply to court for an emergency protection order under s.44 of the Children Act. This order, lasts for eight days renewable for a further seven and may be implemented if the court is convinced that there is reasonable cause to believe the child is likely to suffer considerable harm if not removed and located elsewhere. In such circumstances the police have powers (s.46(1)) to remove a child to suitable accommodation. Care or supervision application to a court can be made by a local authority which may place the child in the authority's care or under their supervision if the following conditions are met (s.31(2)): (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to - (i) the care given to the child … not being what it would be reasonable to expect a parent to give …; or (ii) the child's being beyond parental control. The local authority acquires parental responsibility along with care order for the child, and amongst other matters will make decisions about where and by whom the child will be looked after (opsi 2006). To further remove the risk to a child, the Family Law Act 1996 amends the Children Act to offer the court, when making an emergency protection order or an interim care order, the option of excluding someone from the family home. Conclusion In summary, the Children Act 1989 enshrines four key duties in relation to children’s welfare and their families: 1) The assessment of need 2) The evaluation of risk 3) The protection of children 4) The promotion of optimum child development and well being. These are placed within a framework that acknowledges linguistic and cultural diversity, that promotes the rights of families to appropriate assessment and resources, and in which the welfare of the child is vital. References Butler, I. and Payne, H. (1997) ‘The health of children looked after by the local authority’. Adoption and Fostering, 21(2), 28-35. Claydon, Wrigley (2005). Children 1985 – 1989. swarb.co.uk. Retrieved on 21-5-2005 from http://www.swarb.co.uk/lisc/Child19851989.php Connexions (2005). Benefits for Looked after Children. Connexionsteesvalley.co.uk. Retrieved on 20-5-2006 from http://www.connexionsteesvalley.co.uk/practitioners/marginalisedyp/leavingcare/Benefits-for-Looked-After-Children.cfm Crown (2000). Statutory Instrument 1991 No. 890. Arrangements for Placement of Children (General) Regulations 1991. Retrieved on 21-5-2006 from http://www.opsi.gov.uk/si/si1991/Uksi_19910890_en_1.htm Department of Health (2006). National Health Service Act 1977; National Health Service and Community Care Act 1990: Restriction of Practice and Exclusion from Work Directions 2003. http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsLegislation/PublicationsLegislationArticle/fs/en?CONTENT_ID=4072792&chk=VLlz%2B4 Mather, M., Humphrey, J. and Robson, J. (1997) ‘The statutory medical and health needs of looked after children’. Adoption and Fostering, 21(2), 36-40. O'Donnell, K. (1995) 'Protection of family life: positive approaches and the ECHR.' Journal of Social Welfare and Family Law 17, 3, 261-280. OPSI (2006). Children Act 1989. Arrangement of Sections. Retrieved on 22-5-2006 from http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_1.htm OPSI (2006). Children Act 1989. Local Authority Support for Children and Families. Opsi.gov.uk. Retrieved on 21-5-2006 from http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_4.htm OPSI. Office of Public Sector Information (2006). Act of the UK Parliament. Retrieved on 20-5-2006 from http://www.opsi.gov.uk/acts.htm R v Bexley LBC, ex parte Jones [1994] COD 393 – fetter of discretion in local authority’s discretionary grant policy Youth Justice Board (2006). Children Act 1989. Preventions and Interventions. Youth-justice-board.gov. Retrieved on 20-5-2006 from http://www.youth-justice-board.gov.uk/PractitionersPortal/PreventionAndInterventions/InformationSharing/Background+Legislation/ChildrenAct.htm Read More