Success Of The Children Act 1989 In Protecting Childrens Rights - Essay Example

Success Of The Children Act 1989 In Protecting Children’s Rights The Children Act 1989 has brought about a transition. Greater importance is being attached to children’s rights and participation; whilst, granting lesser importance to the rights of parents. Moreover, this diminution in parental rights has been accompanied by an increase in parental responsibility. Parental responsibility is a legal concept that incorporates the rights, duties, powers, responsibility and authority of parents (Bridgeman, Lind, & Keating 2008: 156). Despite emphasising the responsibilities of parents, this Act has remained silent about their rights. The Children Act consists of several important principles. Accordingly, child welfare has been deemed to be of the utmost importance. Considerable importance has been attached to rearing children, wherever possible, within their family. The State has to help parents of children in need, to bring them up, on their own. Such assistance is to be rendered as a service to the child and its family. The state has to provide this help in partnership with the parents (National Teaching & Advisory Service, 2006). The requirements of the needy child should be identified and fulfilled. Such help should not be at variance with the customs and traditions of the child’s race, religion and language. There should be adequate arrangements and procedures for independent representation and complaints, regarding the abuse of children. In addition, effective partnerships should subsist between local authorities and other agencies. Moreover, effective interventions should be in place, so that children are protected from abuse (National Teaching & Advisory Service, 2006). Furthermore, the courts should eschew delay in cases relating to children. Another important requirement is that children must be informed about the various welfare programs that exist for their benefit, and they should be encouraged to participate in the decision – making process, regarding their future (National Teaching & Advisory Service, 2006). A very important facet of the Children Act 1989 is the notion of parental responsibility. However, this piece of legislation has singularly failed to specify that parental responsibility is indispensable for the child’s welfare (Walsh 1991: 177). It is essential to discuss the various responsibilities that parents have towards children; the sense of responsibility entertained by parents, and the manner in which they live, experience and intend to discharge these duties (Bridgeman, Lind, & Keating 2008: 237). The absence of an explicit definition of parental responsibility in the Children Act 1989 was the reason behind the development of a bewildered, incongruous and intrinsically hollow concept in the jurisprudence relating to family law (Bridgeman, Lind, & Keating 2008: 242). Since, parental responsibility has not been clearly defined in the Children Act 1989, it derives its limited description from litigation, involving family disputes. As a consequence, parental responsibility has emerged as a perplexing and paradoxical concept that is far removed from the duty to care for children. Section 3 of this Act, provides a comprehensive account of the various responsibilities that parents have to shoulder, with respect to their children (Bridgeman, Lind, & Keating 2008: 237). The bestowal of parental responsibility, with respect to a child, is determined by the relationship between the parent and the child; and not that which subsists between the parents. This criterion derives from the Children Act 1989 (Bridgeman, Lind, & Keating 2008: 236). Although, this was a laudable development; in reality, this stipulation merely served to assign parental rights that could be employed against the other spouse or the government, in order to make specific decisions regarding the rearing of the child (Bridgeman, Lind, & Keating 2008: 237). The task of rendering the welfare of the child the primary concern of the parents is onerous. Such endeavours could be contested on grounds of civil liberties and expediency, as it would entail substantial monitoring of parental activity. At its best, legislation could indicate the norms expected of parents, in this regard. Hence, one is forced to conclude that this act does not explicitly specify parental responsibility. Not surprisingly, the Law Commission preferred to persuade parents to concentrate on the wellbeing of their children, by adopting other measures (Walsh 1991: 178). The problems associated with child care are addressed partially by the Children Act 1989. There is a genuine need to deploy adequate resources for an improved implementation of child care. Furthermore, a political and social milieu that promotes respect, participation and partnership, in the context of children and adults, would prove to be of great benefit to it (Packman & Jordan 1991: 326). After considerable discussion, it was finally concluded that the removal of a child from the custody of its parents was to be on the basis of clearly specified grounds. This important decision was followed by the enactment of the 1989, Children Act. This Act is applicable, whenever a child is at risk or likely to be at risk of significant harm. In addition, this harm should be the outcome of the treatment being meted out to that child, by the parents (Walsh 1991: 183). This Act restrains ward ship for children, and requires that they should be placed in care, only if certain clearly specified conditions are satisfied. However, serious qualms have been expressed, regarding the adequacy of the protection afforded to children. Subsequent to obtaining the consent of the parents, the local authorities are required to provide suitable accommodation to such children. Unfortunately, this measure affords scant protection to children; because, there is no restriction, in this Act that prevents a parent from withdrawing a child from care (Walsh 1991: 183). The protection of children is a complex task. The state is under a statutory duty to protect the vulnerable family members; whilst, respecting the privacy and integrity of the family. Part III of the Children Act 1989 endeavours to support families, by providing a number of voluntary services to children in need. (Harris-Short & Miles 2007: 899). These highly commendable goals stand to be rendered farcical, if adequate resources are not made available to the local authorities. The state cannot separate a child from its parents, merely on the basis of a best interests test. It is incumbent upon the state to primarily prove that the child had been subjected to significant harm. As a result, child protection has proved to be an issue that does not lend itself to easy resolution, for the courts (Harris-Short & Miles 2007: 899). The state had failed on several occasions, to provide satisfactory care to children. Therefore, it implemented better intervention policies, and took greater pains to ensure the proper implementation of child care plans, by the local authorities. It is also striving to ensure permanency for children that are looked after. As such, parliamentary intervention is necessary to strike a balance between parents’ rights, as provided in the ECHR; and the statutory regime, in respect of emergency protection (Harris-Short & Miles 2007: 899). This Act requires local authorities, under section 47, to examine occurrences or likely occurrences of significant harm to children. Such significant harm includes physical or psychological harm. According to this Act, a child is an individual, below the age of 18 years (Jenkins 2008: 30). With the advent of the Children Act 1989, conflicts in divorce, have shown a tendency to approach the issue from the perspective of child’s best interest. Nevertheless, the principal focus of such conflicts continues to remain on the rights of parents over their children (Bridgeman, Lind, & Keating 2008: 156). Section I of the Children and Adoption Act 2006 provides for the imposition of the family law equivalent of the parenting order that is available in criminal proceedings. This measure would compel parents to behave responsibly towards their children. All the same, the Children Act 1989 failed to materialise a fundamental shift in the relationship between parents and children, from the perspective of family law(Bridgeman, Lind, & Keating 2008: 156). It also failed to enhance the participation of children. There is no right of action in private law, with regard to a child injured, due to a local authority’s failure to comply with the duties mandated by childcare legislation. In addition, there is no justification for the courts to rule that local authorities owed a duty of care towards children. The fundamental objective of the Children Act 1989 was to engender a drastic change in the manner in which the judiciary and agencies involved in this endeavour were to approach the welfare of children (Local authority owes no duty of care towards children in its area, November 24, 1993 ). It had been alleged that a local authority was duty bound to make an application to the court, under the provisions of Part IV and Sections 31 and 42 of the Act, in order to procure a supervision order, if the child in question, displayed the stipulated criteria (Local authority owes no duty of care towards children in its area, November 24, 1993 ). According to Lord Justice Turner, the Children Act 1989 did not indicate the source of such duty. In some instances, the courts would require a local authority to commence an investigation, under section 37(1) of this Act. However, it was not mandatory for the local authority to do so, although it was necessary to inform the court, in this regard. Section 47 of the Children Act 1989, requires the authority to conduct investigations and take appropriate action, regarding a child it suspected of suffering significant harm. This Act could compel a local authority to discharge its duties, by means of an order of mandamus. However, in A v Liverpool City Council ((1982) AC 363), it was held that the local authority had discretion, with respect to the manner, in which it was to exercise its statutory duties (Local authority owes no duty of care towards children in its area, November 24, 1993 ). The duties placed on local authorities were broad in nature, and aimed at the general public. Section 26 of the Children Act 1989, empowers the Secretary of State to issue regulations to local authorities, whereby they have to review and enquire into representations. Public law fails to provide effective interventions for children, because they would, in general be unable to submit an application for judicial review, in respect of an injury suffered by them. The principal cause for this unwelcome situation is the three months time limit, which severely limits their options (Local authority owes no duty of care towards children in its area, November 24, 1993 ). Section 17 of this Act, does not authorise a local authority to provide accommodation to children. However, local authorities may provide such facility if they are otherwise required to do so by the provisions of Part III of the Act, or under the provisions of the Housing Acts. In A v Lambeth London Borough Council, the Court of Appeal dismissed the claimant’s appeal. The latter had challenged the decision in judicial review proceedings, which stated that the local authority was not required, under section 17 of the Children Act 1989, to provide suitable accommodation, for her to live with her disabled children (O’hanlon 2001: 6). In this case, Lord Justice Chadwick opined that Section 17 of the Children Act 1989 had not required the local authority to provide accommodation. This Act had not intended that the local authority was to provide residential accommodation, even if it would otherwise have desisted from doing so, whenever the welfare of children was at stake. It would defeat the purpose, if the conscientiously drafted provisions of Pt III of the Children Act 1989 or the Housing Acts, were to be rescinded by the provisions of Section 17 of the Children Act 1989 (O’hanlon 2001: 6). The Court of Appeal examined Section 17(1) of the Children Act 1989, in order to determine if it was mandatory for the local authority to provide such accommodation. It also examined, whether such duty was enforceable in public law proceedings. The court ruled that the local authority was empowered, under Section 17(3) and (6) of the Children Act 1989, to provide accommodation for the whole family. Nevertheless, this right was duty that was owed to children, and was not justiciable, by means of a judicial review (O’hanlon 2001: 6). In S (Children) (Care Order: Implementation of Care Plan), the Court of Appeal ruled that the courts were empowered to identify the principal areas of childcare plans. Moreover, it was held that the courts could require the local authorities to take suitable action, if these important aspects had not been achieved in a timely manner. This ruling was challenged by two local authorities challenged, in the House of Lords (Harris, 2009, 85). Their Lordships held that the Children Act 1998 reinforced the constitutional limits, specified in respect of the interpretative role of the judiciary. The House of Lords also opined that the Children Act promoted the notion that the courts were not empowered to interfere with the parental responsibilities of local authorities that were discharging final care orders. There were no provisions in the Children Act 1989 that bestowed the courts with supervisory powers. Thus, the House of Lords ruled that the decision of the Court of Appeal had gone beyond this statutory boundary, while interpreting the provisions of the Children Act. This decision deprived parents of a remedy, if the local authorities had bungled, whilst delivering child care (Harris, 2009, 85). The Children Act stresses the responsibilities of parents, and does not provide them with any rights. It goes without saying that children are best brought up by their own families. It requires parents to involve themselves in the affairs of their children, and the various children’s agencies have to provide family support to families with children in need. In addition, these judicial proceedings are highly adversarial in nature (Wynne, 2001, 113). A major drawback to this process has been the complexity and protracted proceedings of the courts. Most of the entities engaged in child care activities subscribe to the opinion that resort to the courts, reflects the failure of the agencies and mechanisms that had been constituted to prevent children from undergoing harm. Nevertheless, it cannot be gainsaid that on occasion, situations will arise, wherein the abundance of resources fails to have any bearing. Moreover, there will always be the possibility that incidents of sudden violence towards children may recrudesce, and that such events can neither be predicted nor prevented, in their totality. However, the efforts expended in the area of children’s education, so as to enable children to develop adequate defensive measures, have been sparse (Wilson & James, 2002, 235). The Children Act 1989 has been accused of being racist, to some extent; and it has been contended by several scholars that several of its provisions, are against the black people. This Act requires children to be protected from unwarranted intervention in family life; which is the legacy of the Thactherite orthodoxy, which has been accused of treating black families as undesirable families (Stubbs). Thus, the Children Act 1989 has failed to address this vital social issue. The implementation of the Children Act 1989 raises several serious questions. For instance, Article 19 of the United Nations Convention on the Rights of the Child enjoins upon the State Parties to adopt the necessary administrative, educational, legislative and social measures that will protect the child from abuse. These initiatives should accord the required support for the child and its caretakers. Furthermore, these measures should provide for identifying, reporting, investigating, treatment and follow up of incidents, entailing the abuse of children (Wilson & James, 2002, 236). Unfortunately, the situation obtaining in the United Kingdom, Vis – a – Vis, child abuse is dismal. The various acts extant in the UK have singularly failed to accord children and those who provide them with support adequate protection. Bibliography A v Lambeth London Borough Council, EWCA Civ 1642 (England and Wales Court of Appeal 2001). A v Liverpool City Council, AC 363 (1982). Bridgeman, J., Lind, C., & Keating, H. (2008). Responsibility, Law and the Family. Ashgate Publishing, Ltd. Children Act 1989 . (1989, November 16). Children Act 1989 Chapter 41 . London, United Kingdom: Office of Public Sector Information. Children and Adoption Act 2006. (2006, June 21). Children and Adoption Act 2006 Chapter 20 . London, United Kingdom: Office of Public Sector Information. Convention on the Rights of the Child. (1990, September 2). United Nations General Assembly. Harris, A. C. (2009). Placement of child with relatives under section 38(6) Children Act 1989. Adoption & Fostering , 33(3), 85. Harris-Short, S., & Miles, J. (2007). Text, Cases, and Materials: Family Law. Oxford University Press. Jenkins, P. (2008). It's the law -- isn't it? Therapy Today , 19(10), 30 – 33. Local authority owes no duty of care towards children in its area. (November 24, 1993 ). The Times . National Teaching & Advisory Service. (2006). The Children Act 1989. Retrieved December 7, 2009, from http://www.ntas.org.uk/resources/childrenact.htm O'hanlon, K. (2001, November 9). Authority's Duty to Children Did Not Include Provision of Accommodation. The Independent (London) , p. 6. Packman, J., & Jordan, B. (1991). The Children Act: Looking Forward, Looking Back. British Journal of Social Work , 21(4), 315 – 327. Stubbs, P. (n.d.). The Children Act 1989: An Anti-Racist Perspective. Retrieved December 5, 2009, from http://www.scie-socialcareonline.org.uk/repository/fulltext/0006942.pdf Walsh, B. (1991). The United Nations Convention on the Rights of the Child: A British View. International Journal of Law, Policy and the Family , 5(2), 170 – 194. Wilson, K., & James, A. L. (2002). The child protection handbook . Elsevier Health Sciences. Wynne, J. (2001). The Children Act 1989 and child protection: what paediatricians need to know . Current Paediatrics , 11(2), 113 – 119. Read More