Search results

This article examines the value of the concept of significant harm some 20 years after its introduction in the Children Act 1989. It introduces the concept of significant harm and then discusses the profile of children and families in care proceedings, the decision‐making process, the interpretation of significant harm in case law, ‘panic’ and its impact on patterns of referrals for case proceedings, and the issue of resources. An alternative model of the problem‐solving court is outlined. It is suggested that ‘significant harm’ has largely stood the test of time. However, the absence of a clear operational definition is both its strength and its weakness. It allows necessary professional discretion but is vulnerable to external pressures affecting its interpretation. A more confident workforce and sufficient resources are required, but the future role of the court and compulsory care is more contentious. The problem‐solving court model may offer a helpful way forward for the scrutiny of significant harm.

Focusing on those aspects of the Children Act 1989 which relate to the family justice system, this article outlines the development over the last 20 years of the family courts and the court welfare system (now CAFCASS ‐ Children and Family Court Advisory and Support Service), and the operation of two provisions: section 1(5) the ‘no order’ principle and section1(2) the avoidance of delay. Neither of these provisions have delivered what they promised and further procedural change through the Public Law Outline and the Private Law Programme have been introduced to divert cases from proceedings and reduce delay. The foundations for a family court set down in the Act appear at last to be being developed. However, the recently announced Family Justice Review means that the role and function of family courts is again uncertain.

This article gives an account of the cases in which the Children Act 1989 has been interpreted and applied by the highest courts in the UK, the appellate committee of the House of Lords until October 2009 when their jurisdiction was taken over by the new Supreme Court of the UK. It explains the reasoning behind those decisions and how they did, or did not, reflect the thinking of the original framers of the Act. It concludes that, by and large, the Act has stood up well to judicial scrutiny but that the Human Rights Act 1998 has brought new challenges to which it must respond.

The purpose of this paper is to outline how questions relating to capacity arise in the context of safeguarding, and when applications to the Court of Protection are required in relation to those who may lack capacity. It also seeks to provide guidance as to how applications to the Court of Protection should be made so as to ensure that they are determined effectively and in a proportionate fashion.

The paper draws on the practical experience of practising barristers appearing before the Court of Protection, and on the experience of a social worker who is an MCA/DOLS lead at a London local authority. The paper proceeds by way of a review of the relevant statutory provisions, an overview of the Court of Protection and then to a practical analysis of when and how applications to the Court need to be made.

When to go to the Court of Protection in the safeguarding context is poorly understood, and there has not been proper recognition of the fact that proceedings for “adult care orders” have a strong forensic analogy with applications for care orders in relation to children. It is only by recognising these forensic similarities that local authorities can properly make use of the Court of Protection in the discharge of their obligations to vulnerable adults in their area.

The paper should lead to a recognition that there is a specialist “adult protection court” within the Court of Protection, and that applications for adult care orders to that court require specific and careful preparation and presentation. It will therefore lead to better use of the Court of Protection in the safeguarding context and – ultimately – a better balance between empowerment and protection of vulnerable adults who may lack capacity.

The paper is original in combining both legal and social work expertise to reach practical conclusions as to why such poor use has been made of the Court of Protection in safeguarding context. Its value lies in the deployment of that expertise to suggest how better use can be made in the future.

This review sets out the legislative amendments that have been made to the Children Act 1989 since it was implemented in 1991. It highlights the most significant changes to the original wording of the Act, with brief summaries of the relevant background and references to comment by leading figures in law and social work. The review follows the structure of the Act, beginning with the welfare principle and covering: private law provisions; local authority duties to children in need; care orders; and child protection. It is concluded that the majority of the amendments have arisen through increased recognition of the impact of domestic violence on children, campaigning by the fathers' rights movements and the economic pressures on local authorities that have prevented the provision of adequate services to children in need.

This article explores the neglected issue of the overrepresentation in the child protection system of children from ethnic, cultural, religious, racial, and linguistic minorities. It focuses on the accommodation of children’s diverse backgrounds within the s 31(2) threshold and s1 “best interests” stages of intervention under the Children Act 1989. First, it introduces the ethnic child protection penalty as a new tool for capturing the complex nature of overrepresentation of these children. Second, it proposes a framework for understanding the judicial approach in higher court decisions on the current extent and nature of accommodation. Third, it employs the penalty concept to help explain why case law analysis reveals difficulties with the current factor-based approach, whereas empirical research suggests generally satisfactory accommodation in practice. It concludes by proposing a contextualized framework for decision-making in relation to child protection.

It proved difficult to recruit sufficient mothers to a prospective cohort study designed to explore the factors and characteristics of mothers whose children are the subject of the public care system as a result of their drinking, retaining or losing care of their children. In conducting interviews instead with social workers in six local authorities, the repurposed study aimed to explore their views of the barriers and facilitators to involving this “hard to reach” population of mothers in research at the beginning of care proceedings.

For this study, 36 semi-structured telephone interviews were conducted with child and family social workers and social work managers located in six English local authorities. Transcripts were analysed using Nvivo and coded thematically.

Workforce issues and social work workload, court timescales and the additional burden that participating in research at a time of enormous stress for mothers were described as barriers to recruitment. Social workers suggested that the criteria for including participants could be widened to include mothers in pre-proceedings and that recruitment could take place via substance use services with whom mothers do not have an antagonistic relationship.

The perspective of social work practitioners and not mothers themselves on barriers to engagement in research is a limitation of the study. Innovative and flexible research design is needed to include the participation of mothers whose alcohol use has led to court proceedings in research.

Few studies have investigated the barriers and facilitators to engaging mothers in research at the point that care proceedings have been issued. The re-purposed study highlighted the particular stresses on mothers and social workers and made recommendations for alternative strategies for recruiting these mothers and representing their experience in research.

The Children Act 1989 revolutionised the way in which care proceedings were conducted. Gone were the rudimentary procedures of the old system, where parents and children had limited access to independent representation. Instead, the Act enabled the local authority, parents and children to be equally represented and for evidence to be presented in an open and accessible manner. The changes were widely welcomed and hailed as the most significant reform of children's law for decades. Drawing on academic, legal and policy literature, this article examines the changing nature and context for the representation of children and parents over the past two decades. While there have been developments that have strengthened the representation of children and parents, it is argued that more recent changes, including increased bureaucracy and the introduction of the Public Law Outline, may well have the effect of subverting the system introduced by the Children Act 1989 and of returning matters to the inadequate pre‐existing system.

The Children Act 1989 forms a modern and integrated legal framework for children proceedings. A victim of its own success, the Act has brought child care law into the spotlight, with more public law cases heard in judge courts and the proceedings making great demands of public funds in social work and legal spheres. There is a need to simplify the process and make more urgent the resolution of cases to better protect children in a timely way.

This article examines the use of emergency intervention for child protection in England by the police and social services to establish when and why powers are used and what subsequently happens. It is based on two studies in England between 1998 and 2004: 1) The Police Protection Study (PP), which examined the use of police protection through a survey of 16 (of the 43) police forces in England and Wales and record reading (311 cases) and interviews (57) in eight forces. 2) The Emergency Protection Orders (EPO) study, which examined EPO applications though a national survey of courts, an analysis of cases (86) from six social services departments, and interviews (78) with social workers, lawyers, court staff and magistrates. There are wide variations in the use of emergency powers. The police act independently and in response to social workers' requests. Social workers resort to emergency powers in well‐known, serious cases when parents refuse co‐operation. EPOs are followed by care proceedings.