Case laws

Social Science Research Network, 2004

2021

The Children Act 1989 was enacted by the government to increase the protection for children in the context of families. The statutory aim was designed to offer much-needed protection for children who are living in broken families and overcrowded families and thereby exposed to threats of violence and abuses of any kind. Hence, the 1989 Act empowered the court to make orders to remove children from such families that were perceived to be a threat of any kind to the growth and development of the child in question. Typically, the local authorities would be involved in removing these children from such homes into foster care and orphanages. However, with the enactment of the Human Rights Act 1998 by parliament to honour the European Convention of Human Rights (ECHR) 1 , there exists in principle a possible breach of the afore-mentioned Treaty 2. Article 8 of the ECHR guarantees the human right to privacy and family life. Article 8 is a controversial human right provision in itself whereby the right to family and private life is not absolute as s2 of the said article states that this right can be interfered with where the prevention of crime or the protection of the rights and freedoms of others is concerned 3. This second part of the provision makes articles 8 a flexible one in that it appreciates and provides for article 8 not necessarily to be interfered with, but for authorities to utilise s2 of the article when necessary, where the rights of others or the prevention of crime could relate directly to a child. It is almost as if s2 was written with the local authorities in mind in that if a parent or guardian was breaching the rights of a child then s2 could be invoked by the local authorities to override the parent's or guardian's right to a family life. This essay will critically discuss the compatibility of the Children Act 1989 with Article 8 of the ECHR with respect to the need to investigate abuse and remove children from the risk of harm.

Child Abuse Review, 2004

Recent legal and policy changes, including the introduction of the Human Rights Act, provide the context for the new child welfare and protection policies proposed for England. These proposals are discussed from a legal perspective in relation to early and coordinated intervention, sharing information between agencies and with children and families, partnership with children, information management, and structural and legal change. Consideration is also given to issues overlooked by the Green Paper, such as immigration and asylum, youth justice and the whole family justice system. The discussion concludes by arguing for the need for integrating cultural and structural change and for leadership (and investment of resources) across government to achieve such goals.

University of Otago, 2017

The Central Government's administrative responsibilities in relation to children who were removed from their mothers or were offending were handled at first by the Department of Justice. In 1880, these responsibilities were taken over by the Department of Education which initiated a more active and enlightened policy. The Industrial Schools Act 1882 permitted the boarding out of children who were in the care of such schools. By 1895, 81 per cent of children from the schools directly controlled by the Department were in foster homes . As early as 1890, the death of children resulting from maltreatment needed to be recognised and addressed in legislation. Child fatalities were also increasingly perpetrated by carers other than biological parents or legal guardians. In Thompson v Grey 2 and R v Foster 3 a woman having actual control of a child, although she was not the parent or legal guardian, was held to come within these provisions. In the late 19th Century, delinquent young women were seen as an especially menacing phenomenon. Their sins, especially extra -martial fertility, demonstrated the consequences of a bad childhood and their offspring threatened to transfer the evil to a new generation. (RCSP, 1988, p. 16) This hegemonic discriminatory attitude was beginning to surface in legislation as early as 1908. Boyd (2004) argues that colonialism resulted in the significant subordination of women because colonial history is based upon the premise that "...immoral women and women of colour are viewed as more deviant than their moral counterparts" (p. 28). Budd (2005) argues that moral regulations are constituted through the coming

This article explores the neglected issue of the over-representation 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 s31(2) threshold and s1 "best interests" stages of intervention under the Children Act 1989. Firstly, it introduces the ethnic child protection penalty as a new tool for capturing the complex nature of overrepresentation of these children. Secondly, it proposes a framework for understanding the judicial approach in higher court decisions on the current extent and nature of accommodation. Thirdly, 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 contextualised framework for decision-making in relation to child protection.

Concerns about child abuse and neglect are not new. Nor is the degree of public outcry where local authorities fail in their duties to protect children. However, what is disconcerting is that even though there is, in England and Wales, an abundance of legislation governing the protection of children, as well as attempts to create an integrated child protection system; significant numbers of children continue to be abused. Child protection brings to the forefront issues about relationships, emotions and bonds between children and their parents- issues with which it seems the law has no role. Indeed, Lord Templeman stated unequivocally, “...The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature.” Whilst recognising the role of the law should not be overstated, this view seems somewhat rigid. Given the undesirable consequences for children who are abused; intervention by local authorities is in some instances undoubtedly necessary. The aim of this dissertation is twofold. Firstly, it explains the statutory framework within which local authorities in England and Wales are authorised to protect children. Secondly, there is a detailed consideration of whether these are adequate. Since the term ‘adequate’ is somewhat subjective, this is approached by considering the extent to which the aims of the legislation are being realised. Is it the case that; “The law is fundamentally sound; it is in the understanding of it and its implementation that workers across the field in child protection fail,” or is the issue greater than this?