Has the child’s welfare pendulum swung too far – are Parents’ rights disregarded?

We are grateful for this guest post by contributor and parent Maya Birdwood-Hedger.

The current state of the law is probably best summed up by Re B (A child) [2009] UKSC . In summary, the court held that it is only as a contributor to the child’s welfare that parenthood assumes any significance. Have we gone too far in our focus on the welfare of the child and the child alone as the issue of paramount concern? Can the interests of parents and children be so easily distinguished?

Introduction – what is meant by parental rights and responsibility?

Lord Steyn, writing extra-judicially, said: “A constitutional democracy must protect fundamental rights. It is morally right that the state, and all who act on its behalf in a broad functional sense, should respect the fundamental rights of individuals. Without such a moral compass the state is bound to treat individuals arbitrarily and unjustly.” [Lord Steyn – quoted in Brayne and Carr. Law for social workers/ 10th edition/ Oxford: Oxford University Press, 2008, 75]
Bainham and Gilmore ask two separate (albeit connected) questions:

  • is it possible to identify independent interests which parents have in relation to their children?
  • If so, should the law recognise and accommodate these? [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 328]

To answer the first question, they quote philosopher David Archard:

Being a parent is extremely important to a person. Even if a child is not thought of as the property or even an extension of the parent, the shared life of a parent and child involves an adult’s purposes and aims at the deepest level… parents have an interest in parenting – that is, in sharing a life with, and directing the development of their child. It is not enough to discount the interests of a parent in a moral theory of parenthood. What must merit full and proper consideration is the interest of someone in being a parent.[ Archard/ Children, Family and the State/ Ashgate 2003, 94]

Although the second question is more difficult to answer, given the current commitment of the law to the welfare of children, Bainham and Gilmore say that there are at least two good reasons why the law should recognise the interests of parents:

  • once parentage is established, very wide-ranging and extensive burdens are placed by the law on the parents – financial, emotional and practical. Moreover, these responsibilities last for 18 years and longer than that if more than one child is involved.
  • Secondly, the law needs to reflect the reality of everyday life.

The honest position is that parents do not, and are not required, to act at all times with their children’s interests paramount in their minds. It would be far better for this to be transparently and openly acknowledged rather than to act out a pretence that only children’s interests count.[ Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 329-330]

Herring distinguishes three different forms of parental rights:

  • Parents’ human rights, the rights that parents have as human beings, e.g. a right to free speech. These rights include those protected by the Human Rights Act 1988.
  • Parents’ child-centred rights. These are the rights that are given to parents in order to carry out their parental obligations, e.g. to clothe, feed and house the child.
  • Parents’ parent-central rights. Here Herring refers to law professor and author Alexander McCall Smith who explains that parent-centred rights are given to parents not specifically to further the welfare of the child but to reflect the interests that parents have in bringing up their children in the way they wish. An example of this may be religious upbringing. Here it may be impossible to prove that one particular form of religious upbringing promotes a child’s welfare better than any other or no religious upbringing. The right of a parent to involve their child in religious practices does not necessarily reflect the welfare of a child, but rather promotes the interests of the parent to raise the child in accordance with the parent’s religious beliefs. These parent-centred rights could be said to further society’s interests as well in that children are brought up to have different beliefs, interests and lifestyles, thus contributing to a culturally diverse and rich society[Herring, Jonathan / Family Law/ London: Routledge, 2012, 145; McCall Smith, Alexander (1990). Is anything left of parental rights? In Sutherland and McCall Smith Family Rights: Family Law and Medical Ethics/ Edinburgh: Edinburgh University Press.]

Historic developments

As Sawyer explains, “children were historically useful as labour or as a source of income by being hired elsewhere” [Sawyer, Caroline/ Children’s Representation by Their Parents/ in Responsible Parents and Parental Responsibility/ Oxford: Hart Publishing, 2009: 228] but gradually a growing perception that parents did not always know or do what was good for their children did lead to the idea of children having their own place in the legal process.

According to Hendrick (2005), the Children Act 1948 heralded a new approach to parent-child relationships, which encouraged the newly established Children’s Departments “to view children with individual human beings with both shared and individualised needs, rather than an indistinct mass.” Thereafter the parents did not formally appear during care proceedings, but effectively exercised their legal right of representing their children in the proceedings. Soon after the Adoption Act 1949 allowed adopting children without their parents’ consent on the basis that the parents were unreasonably withholding their consent. [Adoption of Children Act 1949, s.3 (1)]

The further shift appears to have happened with the death of Maria Colwell in 1973: her mother and stepfather successfully argued she should return home to them, and then the stepfather killed her. Following that case, section 64 of the Children Act 1975 provided that children in care would be represented by professional Guardians ad Litem – trained social workers. Further on, the 1989 Children Act provided that the court should appoint a guardian ad litem for the child in all “specified” (broadly speaking, public law) proceedings unless it was satisfied that the child’s welfare would be adequately safeguarded without one [Children Act 1989, s 41].

The duty of the social worker to balance between children’s and parents’ rights was established even more firmly in the report by Martin Narey for the Times newspaper: it was proposed to give greater prominence to adoption in social work training so that social workers’ role is seen as unequivocally that of protector of the child rather than friend of the family [The Narey Report on Adoption: Our Blueprint for Britain’s Lost Children. /The Times. July 5, 2011.]

The Children Act 1989

There is recognition that The Children Act 1989 represents the philosophy of its time, i.e. it “ostensibly put the child at the centre of all proceedings about the family”. [Sawyer, Caroline/ Children’s Representation by Their Parents/ in Responsible Parents and Parental Responsibility Oxford: Hart Publishing, 2009: 228.]

Section 1(1) of the Children Act provides that “the child’s welfare shall be the court’s paramount consideration.” Bainham and Gilmore question if paramountcy can actually survive the Human Rights Act 1988. [EDIT – It has: see this article by Claire Fenton Glynn] They reiterate that adult rights to respect for private and family life must be respected and must not be interfered with unless the specific justifications envisaged by Article 8(2) exist and only when they are necessary and proportionate to a legitimate aim. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 62-63]

Below we will consider some situations where courts can interfere in family life.

Private law orders

According to Wallbank (who used the 2004 data), only 10% of parents sought help from the courts to resolve issues regarding post-separation arrangements concerning children. [Wallbank, Julie/ Parental Responsibility and the Responsible Parent: Managing the ‘Problem’ of Contact/ in Responsible Parents and Parental Responsibility Oxford: Hart Publishing, 2009: 304] The numbers may have plummeted further, following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removing legal aid for most private law cases. [Baksi, Catherine/ Family lawyers sound alarm on separating parents/ The Law Society Gazette, 14.08.14]

Section 8 of the Children Act 1989 sets out and defines three orders, known as “s 8 orders” and regulating the exercise of particular aspects of parental responsibility while leaving parental responsibility itself intact. The “child arrangements order” replaces the old ‘residence’ and ‘contact’ orders following the 2014 Children and Families Act. This allows the courts to address the practicalities of with whom the children will live or have contact. A “prohibited steps order” allows the court to prohibit the exercise of certain aspects of parental responsibility while a “specific issue order” to determine a specific question.

Section 11 of the Children and Families Act 2014 provides a presumption that the involvement of a parent in a child’s life will further the child’s welfare, unless the contrary is shown. ‘Involvement’ means ‘involvement of some kind, either direct or indirect, but not any particular division of the child’s time’ [CFA 2014 s 11(2)(2B)]

The extent to which the legal system should promote shared parenting has been the subject of considerable debate. Fathers’ rights organisations have been campaigning against the “social catastrophe” of fathers not being allowed access to their children. [Fathers4Justice campaigner jailed for defacing Queen’s portrait. The Guardian, 05.02.14] There is, however, some evidence that shared parenting may be an independent risk factor for younger children as well as those who become caught between parents in high conflict. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 224.]

 

Commonly used orders in public law

This section looks at the range of orders the court can make in the course of care proceedings.

Emergency protection order

Under this order the court may remove a child from the household if there is reasonable cause to believe that the child is likely to suffer significant harm if—

(a) (i) He is not removed to accommodation provided by or on behalf of the applicant; or

(ii) He does not remain in the place in which he is then being accommodated;

(b) (In the case of an application made by a local authority—

(i) Enquiries are being made with respect to the child under section 47(1) (b); and

(ii) Those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency. [Children Act 1989, 44(1)]

In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342 Munby J (as he then was) reiterated the stringent nature of the obligation on the local authority when considering protective measures to comply with the obligation for procedural fairness and to respect the Article 8 right of the family generally and the parents in particular. The guidelines are that “save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. [X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342]

Care and Supervision Orders

On the application of the Local Authority or the NSPCC the court can consider making either order if the provisions of section 31 of the Children Act 1989 are made out. This requires the judge to be satisfied that a child has suffered or is at risk of significant harm. Under the Care Order the Local Authority obtains parental responsibility for the child. [Children Act 1989, 33 (3)] Although de jure the parents also retain parental responsibility, in reality it allows them little more than the right of consultation.

While a supervision order is in place, it allows the Local Authority “to advise, assist and befriend the supervised child”. [Ibid. 35 (1) (a)] However, if the parents refuse to comply with the supervision order, the Local Authority is likely to apply for a care order, even if the parents maintain that they are capable to look after their children without supervision or support. That becomes apparent in the judgement by Mrs Justice Parker:

Throughout these proceedings it has been the father’s view that he can cope; he can be trusted; in deciding to make sure the support is there. He is opposed to the role of the local authority; and he says that their anxiety to check that all is well with the children is misplaced because it is totally unnecessary. But the local authority has statutory duties in respect of all children in need and particularly children who are the subject of proceedings. [Hertfordshire County Council v F & Others [2014] EWHC 2159 (Fam) (23 May 2014), para 9]

In this case the application to remove the child was made because the Local Authority was concerned about the father preventing them from supervising the child. One can then argue that the needs of the child to be supervised by the Local Authority were viewed by the court as superior to the parents’ right to care for their own children.

In the case above the child was placed in the care of the Local Authority. The family then had another baby who was taken into care on the interim care order shortly after birth. The father was later criticised by the judge for not having given the baby a first name. The judge believed it was emotionally harmful not to give a child a name. The father is this case is a British Indian and a devout Hindu. The parents were anxious to have their child named according to Hindu tradition, which involves a temple ceremony, Namakarana, which only the parents, close family and friends can attend. But the social workers insisted that they be present, lest the family “abduct” the child. [Booker, Christopher. The real story of the ‘baby with no name’/ In The Telegraph, 31.05.14]

Here one can see an apparent conflict between the rights of the parents and the rights of the child: the child has a right to be named. The parents have the parental duty to name their child, but also the right to name him in a ceremony, compatible with their religious and cultural beliefs. In this case they were not allowed to exercise that right, but the judge was more concerned with their failure to fulfil their parental responsibility.

The Placement Order

This order allows the Local Authority to place a child for adoption with potential adopters chosen by them. After the placement order is made, the Local Authority will implement a gradual reduction in contact between the parents and the child. Once a placement has been identified, the birth parents will usually be offered a final contact with the child, sometimes euphemistically described as a “wishing you well” contact and sometimes more accurately described as a “goodbye” contact. The majority of parents can expect no more than “letterbox” contact once the child has been placed. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 677.]

The “goodbye” contact is understandably traumatising to both parents and children, but, when the parents cry, they can get criticised for “emotional abuse”. [Craig, Olga. Stolen by the state: A story of love and loss that’ll make you seethe – a mother falsely accused of abuse reveals her relentless hunt for her three babies. In the Mail on Sunday, 06.06.15]

Once the child has been placed with the prospective adopters and lived there for at least ten weeks, they can apply for the Adoption Order to be made. One of three conditions under section 47 of the Adoption and Children Act 2002 must be satisfied before the court may make an adoption order.

The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian consents to the making of the adoption order,
(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or
(c) That the parent’s or guardian’s consent should be dispensed with.
(3)A parent or guardian may not oppose the making of an adoption order under subsection (2) (b) without the court’s leave.

(4)The second condition is that—
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(b) Either—
(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
(ii) The child was placed for adoption under a placement order, and
(d) No parent or guardian opposes the making of the adoption order.

The question of dispensing with parental consent has been at the heart of the conflict between what professionals view as “the best interests of the child” and the fundamental rights attached to the relationship of parent and child. While parents might understand that they are unable to look after a child themselves and may be prepared to have the child looked after by other people, they might not be willing to accept the complete termination of their legal relationship with the child. Traditionally English law has viewed this as a question which involves the rights of parents and has made provisions, through the statutory consent requirements, for the proper accommodation of those rights. The major change brought about by the 2002 Act is that the welfare of the child has, controversially, been put centre stage. This has led to legitimate concerns about what has happened to the rights of parents and may give rise to challenges under the ECHR. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 688.]

Section 52 (1) of the Adoption Act 2002 has abolished all the previous grounds for dispensing with parental consent except for one and has replaced them with the welfare principle:
The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

  • the parent or guardian cannot be found or is incapable of giving consent, or
  • the welfare of the child requires the consent to be dispensed with.

The second condition is now the major ground for dispensing with parental consent. It raises the serious question of what weight, if any, is to be given to parental interests or rights in preserving their legal relationship with the child. It becomes clear that if the court’s view is that adoption is in the child’s best interests, then whether or not the parent is behaving reasonably in objecting to this will have no bearing on the decision. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 689]

When a parent endeavours to oppose the making of the adoption order at that stage, they have to clear three fences which can be seen to be progressively higher fences. The first is to establish the necessary change of circumstances. The second is then to satisfy the court that, in the exercise of discretion, it would be right to grant permission. The third and final stage would of course be to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child’s life has travelled since the inception of the original public law care proceedings. [Borough of Poole v W & another [2014] EWHC 1777 (Fam), para 8]

In paragraph 24 of the judgement quoted above the judge recognised that the parents had demonstrated “a commitment to the child which entitles them to have their wishes and feelings considered” yet was concerned whether the child in question would “survive the process of rehabilitation” to her parents’ care. On balance, the judge decided to make the adoption order, concluding:

In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact. If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it.

Adoption order

Section 67 (1) of the Adoption Act 2002 provides that “an adopted person is to be treated in law as the child of the adopters or adopter”. Adoption thus terminates existing parental responsibility and transfers it to the adoptive parents; it also terminates the very legal relationship of parent and child. The effect of adoption was recently described by a Supreme Court Judge Lord Wilson as “an act of surgery which cuts deep into the hearts and minds of at least four people and which will affect them, to a greater or lesser extent, every day of their lives” (Wilson, 2014, 19 Denning Society Lecture at Lincoln’s Inn: Adoption: Complexities beyond the Law, 13 November 2014, The Supreme Court)

As the purpose of adoption is to effect a permanent change of family, the making of an adoption order is seen as final, and it is thus very rare for an adoption order to be put aside, even where natural parents have suffered a serious injustice. In Webster v Norfolk County Council and the Children/ by Their Children’s Guardian [Webster v Norfolk County Council and the Children/ by Their Children’s Guardian [2009] EWCA Civ 59] three children were adopted without parental consent because of what was thought to be non-accidental injury to one of the children who had suffered fractures. Later on expert evidence suggested that the fractures had been caused by a rare case of scurvy as a result of the child’s diet which had been recommended by doctors.

The Court of Appeal refused the parents leave to appeal out of time to have the adoptions set aside, having regard to the public policy considerations regarding adoptions as well as interests of the children: they were settled with their adoptive parents. The adoptive parents argued that overturning the adoptions would “cause enormous stress, anxiety, disruption and emotional / psychological harm, particularly to the children” (para 92).

Wilson LJ concluded that it was too late to set aside the adoption orders, considering the interests of the children: “almost four years ago they moved into alternative homes which they were told would be permanent and of which they would be full, legal members; and at that time they ceased even to see the applicants.” (para 204). Thus, the interests of the children prevailed to the extent that the Court effectively decided to leave the children in their “alternative homes”. The parents, on the other hand, are determined to remain living in the same house until their children are old enough to come and find them. “When she knocks on our door, we will be here with all the love and the kisses and the memories and hugs that we have all missed. I pray for that every night”, the mother said in a recent newspaper interview. [Craig, Olga. Stolen by the state: A story of love and loss that’ll make you seethe – a mother falsely accused of abuse reveals her relentless hunt for her three babies. In the Mail on Sunday, 06.06.15]

The Children and Families Act 2014

The Children and Families Act 2014 came into force in April last year. Most practitioners agree that its main reform was at section 14, to introduce a time limit of 26 weeks for care and supervision proceedings, although the court can extend that period, but “only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly”. The main reason for the reform was the view that delays in care and supervision proceedings were harmful to children. “These family justice reforms put children clearly at the heart of the family justice system and focus on children’s needs rather than what parents see as their own ‘rights’”, announced Simon Hughes, the then Justice Minister. [Family Justice Reforms to Benefit Children – Press release – GOV.UK/ 22.04.14].

Many judges, on the other hand, are concerned that the imposed time limit could be in conflict with the court’s aim to determine the right outcome in the proceedings: “Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.” [Re B-S (Children) [2013] EWCA Civ 1146, para 49]

Concern about the time limit has been expressed by other professionals: for example, a study by the Family Drug and Alcohol Court (FDAC) concluded:

The government’s agenda for adoption reform places emphasis on speeding up decisions and action in placing babies and young children with potential adoptive parents. When combined with the push to complete care proceedings within 26 weeks, and the research evidence about the fragility of reunification in some circumstances, this could serve to heighten doubts about the value of FDAC’s focus on supporting reunification in cases where that is appropriate. [Hayes, Derren. 26-week target ‘could limit help for substance misusing parents’  [Children & Young People Now, 01.05.14]

Reporting restrictions and transparency – a glimmer of hope?

There are long-standing and well-established “automatic restraints” on the publication of information relating to proceedings under the Children Act 1989. Section 97 of the Act provides that:
(2) No person shall publish [F3to the public at large or any section of the public] any material which is intended, or likely, to identify
(a) any child as being involved in any proceedings before [F4the High Court, a county court or] a magistrates’ court in which any power under this Act [F2or the Adoption and Children Act 2002] may be exercised by the court with respect to that or any other child; or
(b) An address or school as being that of a child involved in any such proceedings.

In addition to the “automatic restraints” courts can make injunctions preventing parents from discussing their legal cases with other parties even after the proceedings have been completed. However, parents who have lost confidence in the English family court system often turn to other organisations for support. A potential conflict thus arises between the parents’ rights for free speech and the child’s life to a private life, and numerous authorities have grappled with this issue in recent times. For example, in November 2014 the EU parliament’s Petitions Committee condemned “unacceptable” moves to pressure people from giving evidence to MEPs at a time when most complaints about forced adoption or the unjust loss of children to social services are coming from Britain. “In my experience, the UK is unique in Europe for the secrecy of its family courts and for the threats and bullying by authorities of parents who want to speak out about their treatment,” said Tatiana Zdanoka, a Latvian MEP [Waterfield, Parents fight British social services ‘gag’ to petition European Parliament. In The Telegraph, 12.11.14]

In Re J  [Re J (A Child) [2013] EWHC 2694 (Fam)] the father of four children, all of whom had been the subject of care proceedings, posted a film of the execution of the emergency protection order in respect of his youngest child. The film was shared on Facebook and YouTube. The issue for the court was whether or not there was justification for extending J’s anonymity after the care proceedings were over. The President of the Family Division agreed that the case raised “important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system”. He made an order contra mundum, but the restriction was only against the publication of J’s name, not his image, largely because internet viewers are unlikely to be able to identify a one day old baby.

The President expressed his view at paragraph 71 of his judgment:

The father wishes to share such information with others and, so long as he keeps within the confines of section 12 of the 1960 Act, why should he not be able to do so? And why should those who may wish to hear his views not be permitted to approach him?

Conclusion

Having considered orders frequently made in private and public law, it is my view that parents’ rights are often disregarded in favour of children’s rights.

Choudhry and Herring attempt to answer the question: why is it that children’s interests should be seen as being particularly important as compared to the interests of an adult? They suggest that an order which is interfering in a child’s right to private or family life is likely to be “far more of a blight” than an identical order on an adult’s life. This is because the child is less equipped to deal with setbacks in their interests and life changes. They lack practical possibilities of remaking life plans, experience, maturity and even intelligence to develop alternatives. Moving them from a place where they have an established set of friends would be particularly disturbing for a child. [Choudhry and Herring/ European Human Rights and Family Law/ Oxford: Hart Publishing, 2010, 234.]

This is, of course, true – but the result of the current policy of intervention is exactly that: many children are moved from their homes, parents, friends, siblings. Two younger children in the Webster family, for example, have never even met their siblings.

At a Multi-Disciplinary Conference “Is the child protection system fit for purpose?” (01.06.2015) recently retired High Court Judge Sir Mark Hedley suggested that children who have been removed from their parents may grow up and challenge the Local Authority: “What have you done to keep me in my family?”

Bibliography

Books:
Bainham, Andrew, and Gilmore, Stephen/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013.
Choudhry, Shazia and Herring, Jonathan (2010)/ European Human Rights and Family Law/ Oxford: Hart Publishing
Gilbert, Neil; Parton, Nigel and Skivens, Marit/ Child Protection Systems: International Trades and Orientations. Oxford: Oxford University Press, 2011.
Hendrick, Judith (2005.) Law and Ethics in Nursing and Health Care/ New York: Nelson Thornes Ltd.
Herring, Jonathan (2012.) Family Law/ London: Routledge.
McCall Smith, Alexander (1990). Is anything left of parental rights? In Sutherland and McCall Smith Family Rights: Family Law and Medical Ethics/ Edinburgh: Edinburgh University Press.
Sawyer, Caroline (2009.) Children’s Representation by Their Parents/ in Responsible Parents and Parental Responsibility. Oxford: Hart Publishing, 215-235.

Periodical articles:

Baksi, Catherine/ Family lawyers sound alarm on separating parents/ The Law Society Gazette, 14.08.14

Booker, Christopher. The real story of the ‘baby with no name’/ In the Telegraph, 31.05.14

Craig, Olga. Stolen by the state: A story of love and loss that’ll make you seethe – a mother falsely accused of abuse reveals her relentless hunt for her three babies. In the Mail on Sunday, 06.06.15

Family Justice Reforms to Benefit Children – Press release – GOV.UK/ 22.04.14

Fathers4Justice campaigner jailed for defacing Queen’s portrait. The Guardian, 05.02.14

Hayes, Derren. 26-week target ‘could limit help for substance misusing parents’ | Children &
Young People Now, 01.05.14

Lord Wilson gives the Denning Society Lecture at Lincoln’s Inn: Adoption: Complexities beyond the Law, 13 November 2014, The Supreme Court.

The Narey Report on Adoption: Our Blueprint for Britain’s Lost Children. /The Times. July 5, 2011

Waterfield, Bruno (2014.) Parents fight British social services ‘gag’ to petition European Parliament. In The Telegraph, 12.11.14

Statutes:

Adoption Act 2002
The Children Act 1989
The Children and Families Act 2014

Cases:

Borough of Poole v W & another [2014] EWHC 1777 (Fam)
Hertfordshire County Council v F & Others [2014] EWHC 2159 (Fam) (23 May 2014
Re B-S (Children) [2013] EWCA Civ 1146
Re J (A Child) [2013] EWHC 2694 (Fam)
Webster v Norfolk County Council and the Children/ by Their Children’s Guardian [2009] EWCA Civ 59
X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342

28 thoughts on “Has the child’s welfare pendulum swung too far – are Parents’ rights disregarded?

  1. Ann Noble

    the rights of parents are usually dispensed with when a child is take away from the natural family. This abusing not only the parents and extended family, but also the child is denied the right to their natural birthright. In society parents who lose their children, are always treated by professionals as if they are criminals without any redress. It is time to consider that these rights have been withdrawn on the words of professionals. Many times the measures that are supposed to protect the child, fail to address the issue of the rights of extended family. So in answer to the question, yes the rights of individuals (including children) have swung to far. This is leaving many families totally bereft, and are failing to protect children from abuse

    Reply
    1. Kate Wells

      Sorry but your post doesn’t make a great deal of sense to me. The rights of the parents to give consent to the making of an Order allowing a child to be adopted are ONLY dispensed with when a child has been removed from their care. Not “usually” as you claim.
      A child can only be permanently removed from birthparents when it has been proven in court that he/she is suffering significant harm (or is likely to suffer significant harm) and any professional involved in the case has to provide evidence to the court, not opinion. Birthparents are quite rightly represented by lawyers and anyone giving evidence can expect to be cross examined at length, by the lawyers for the birthparents. The Judge after reading all the documentation and hearing all the evidence and the cross examination of the witnesses, makes a decision about the child’s future.

      You talk of parents being abused and children being deprived of their “natural birthright” but how can this be important if the child is being seriously abused/neglected by the birthparents or step-parent. Your issue about parents being treated like criminals without redress is a very common complaint and I am sure there is some justification in the fact that this is how parents FEEL, and this is regrettable and I wonder if birthparents’ lawyers do “fight their corner” with sufficient vigour.
      Re the rights of the extended family. The LA have a duty to find out if there is any member of the extended family who is suitable to care for a child who is not able to be properly cared for by his birthparents. They must assess any relative who puts themselves forward, though will not necessarily be able to recommend to the court that the relative can in fact care for the child.
      As far as rights are concerned – children have rights – they have the right to be brought up by parents who love and care for them and are able to meet their needs, in an environment which helps the child to thrive and fulfil his potential in life. Parents and extended family have responsibilities.
      You say the rights of children have swung too far – what can this mean? That they should not have the right to a decent life, but should be left with parents who are abusive/neglectful? Surely not.
      I appreciate that many parents think that their children have been removed from them when there wasn’t any need and that social workers have lied and exaggerated the situation. I can only say that if a social worker lied they would soon be found out in court.

      Reply
      1. Maya B-H

        Well, Kate, I hope they will be found out. What about exaggerating? Are you saying that the current system is fair? I have examined it as a mother, campaigner and law student – this essay was part of my work at the University of Law – and I do not believe it is. Reading Bainham and Gilmore has made me think further: “While parents might understand that they are unable to look after a child themselves and may be prepared to have the child looked after by other people, they might not be willing to accept the complete termination of their legal relationship with the child.” Does this not contradict your argument?

        Reply
        1. Sarah Phillimore Post author

          I do think it is interesting that we seem to have got to a point where parents are seen as irrelevant, except for considering how they meet (or do not meet) the child’s needs. I think this is responsible for much of the misery and the disatisfaction evident about the child protection system today. Of course children must be protected from the negligent or dangerous parent – because they are too young and vulnerable to protect themselves, so we have to step in and do it for them.

          BUT to simply skate over any consideration of the impact of this on the parent seems perverse and arguably inhumane. And ignores – or glosses over – the fact that the child will only ever be the child of THIS particular mother or THIS particular father. The pull of biology is strong.

          Reply
          1. Amber

            As in the post below, attitude of some parents & IMO advice given by certain ‘campaigners of injustice’ is dangerous to cases. One case I assisted had a parent who refused to engage with sw. I told them they had no choice but the ‘senior’ advisor claimed the judge may find another method of checking up. This IMO was an experiment for the campaigning group who the ‘senior’ advisor is a director of. I was hated for stating the truth and off course children haven’t been returned. The incorrect advice given goes around, escalates and families who had chance of reunification, lose.

          2. Sarah Phillimore Post author

            The distrust and dislike that parents and social workers feel for one another goes both ways and sets up a self fulfilling prophecy. I agree that bad advice at an early stage is disastrous and sets the scene for what follows.

          3. Kate Wells

            I’m not sure what you mean by your last paragraph Sarah. Are you suggesting that the impact on the parents of removing a child from their care when the grounds have been proven, is somehow to be taken into account in deciding how the child’s future will be secured. Surely not.
            What do you envisage happening to prevent “skating over” the impact of the removal of a child from the birthparent? I absolutely understand that parents whose children have been removed must suffer immensely but I’m really not sure what can be done. Even if there were resources available, the last professionals these parents would want to see are social workers.
            And the child being the child of THIS particular mother and THIS particular father? That is surely self evident but again what are you advocating as a remedy to parents being seen in terms of how they can (or can’t) meet their child’s needs.

          4. Sarah Phillimore Post author

            Yes I am suggesting that. The child does not exist in isolation from the parents, nor the parents in isolation from the child. I think the ‘child rescue’ narrative has been horribly destructive to good working relationships between parents and social workers, to the detriment of everyone who works in this field.

            Of course there are some parents who are dangerous, stupid, violent etc, etc and their children DO need rescuing. But there are also a great many parents who may simply have ‘lost their way’ – often due to their own horrible upbringings, and a lot of them grew up in care! so what are we saying as a society – we will just nip in, take your child, leave you behind, get the child adopted by a nice middle class family and it will all be ok?

            I am meeting tonight a group of parents who have adopted older traumatised children. It is emphatically NOT all ok. Adoption is a change of legal status, not biology. The children remain the children of their parents, however feckless, unpleasant or stupid those parents are. And many children suffer from being removed from their families and communities, no matter how lovely the new environment of their lovely adoptive families.

            I don’t think any of us would disagree that in clear cut cases of abuse and suffering, children should be removed as quickly as possible and adoption represents for most of them the best chance they will have at a happy stable upbringing. BUT many cases are not clear cut and children retain ties of affection and loyalty to their parents, and parents to them. I do think we should be looking more closely at other European models where greater efforts are made to allow the child to retain links to birth families. I think our attitude to post adoption contact stinks for e.g.

            Knee jerk and blanket refusals to consider certain options are never helpful, but I am afraid I see far too much of this kind of closed minded attitude from professionals in this field and it has simply got to stop.

        2. Kate Wells

          I am not saying that the current system is without flaws and judges are not slow to criticise social workers or other professionals where cases are brought before the courts that do not provide evidence that the child is suffering significant harm (or likely to suffer significant harm) As you are a law student Maya you will understand the importance of providing this proof under the terms of the Children Act 1989. I think it unfair that there is no longer the resources available in LA Children’s Services for preventative work and support for families where there are safeguarding issues. This means that care proceedings may be brought more swiftly than was the case in the past. I also think it unfair that parents cannot get legal aid for legal representation until the LA have initiated care proceedings, as by that time, there is I am told very little that a lawyer can do for their client. There is an imbalance of power between parents and professionals and I know that many parents caught up in care proceedings feel powerless and this can make them hostile towards professionals and this does nothing to help their case.
          You refer to “Bainham and Gilmore” but don’t cite their work – can you do this please, as I have no idea who they are or of how they have influenced your thinking in this matter. I am assuming your last sentence in quotes is from Bainham & Gilmore. This issue of parents accepting they cannot look after their child but not wanting to lose “legal relationship” – what is meant by a “legal relationship” – I assume it means that they wish to retain Parental Responsibility for the child and presumably still have a part in the child’s life? But the important issue here is the CHILD and his future, and how that is to be secured. There is only one childhood and in the formative years it is of vital importance that a child is cared for in a nurturing environment where his needs are met in all respects, as this builds the foundation for later life. Hence children who cannot be cared for by their parents need permanence and stability of care in order to thrive. Every case is different of course and the Order made by a court will differ depending on the age of the child and individual circumstances. It is also a duty of the LA to find out if there are any members of the extended family who are suitable to care for the child, and in such cases, it is almost always the case that the parent can have some direct contact with their child, so long as this is in the best interests of the child.

          Quite how your post “contradicts my argument” is something of a puzzle.

          Reply
  2. TotallyConfused

    My Husband (who is not a bad Father- he has his faults, but don’t we all? ); indeed, compared to Husband 1 is great) asked the direct question ‘What does my PR mean?!’ He got fobbed off with some ‘jargon’ and not really an answer.

    They (the front line staff) hate us:

    Our son was removed under this:
    (ii) Those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency. [Children Act 1989, 44(1)] – See more at: http://childprotectionresource.online/has-the-childs-welfare-pendulum-swung-too-far-are-parents-rights-disregarded/#sthash.4bNwpLti.dpuf

    Well, that is what they claimed…..(The story changed 3 times in 12 weeks) There was no urgency; there was nothing unreasonable. Just my Husband did not let them in as they a) failed to show ID and b) the child was asleep. (They also notability had my Husband in various stages of undress as they kept re-writing their reports!) Interesting…He became more muscular and toned with each amendment.

    TC

    Reply
    1. angelo granda

      Kate,I agree with you that care proceedings may be brought sooner than necessary because the LA will not fund its obligations under the Children’s Act.I agree that it is unfair particularly to the children who the Public intend to benefit from the preventative and support work you mention.

      Would you say that ,because the CS have this lack of adequate funding,they sometimes feel compelled to recommend removal when it is not the only option?

      Sometimes,perhaps,parents are able to parent their children safely.

      Does the shortage of manpower,lack of funding affect the enquiries and assessments in other ways that you can think of? For example does it stop sw’s from seeing and questioning parents as much as they would like to .Time scales for making care-plans can mean that the parents are not involved at all when they should be.Do you accept that? Some have expressed concerns that present day sw’s may spend too much time in the office at keyboards investigating ( in virtual reality) without checking the data rigidly
      That would save time and travel expenses.

      I agree with much of what you say, Kate.
      It does seem that lawyers can do little once proceedings are initiated and it is unfair that there is an inbalance of power between professionals and respondent parents. Please can you enlarge on how you think the imbalance influences proceedings unfairly?

      Reply
    1. Maya B-H

      Here is the book I am citing from: Bainham, Andrew, and Gilmore, Stephen/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013.

      Reply
      1. Kate Wells

        Thank you but I can’t see what benefit your quoting one sentence from this book, completely out of context is going to further the debate.

        Reply
    2. Kate Wells

      This is a reply to Sarah’s post yesterday. For some reason the word “reply” doesn’t always appear under the post.
      I can see you have the bit between your teeth on this one Sarah. Firstly the legislation would have to be changed wouldn’t it, as the LA are charged with the duty to act in the best interests of the child, not the best interests of the parents, nor indeed to take into account their wishes and feelings. These should be sought from children who are of an age to understand on some level what is happening in their lives. Yes, the LA have a duty to work “in partnership” with the parents – a nice cosy phrase thought up by some civil servant in Whitehall when drafting the Children Act 89, but not so easy to achieve in reality.
      I have heard you mention the “child rescue” narrative before and think you are referring to cases where the grounds for proving significant harm (or likely significant harm) are not met on the balance of probabilities. If this is the case, surely the judge will not make an Order and the child will be returned to the birthparents and the social workers and other professionals will get a “flea in their ear” in the judgement and may be named. Is this not the case?

      You appear to be saying that even when significant harm has been proven, the judge must consider the rights of the parents and the effect on them of removing their child/ren. I am in complete agreement with you about the reasons why so many safeguarding cases are before the courts, for the reasons that you state – that the parents had had “horrible childhoods” and been in care themselves. Your exclamation mark after this comment suggests that you are claiming that the state is a poor parent and will do no better with the next generation of children. Again I am in agreement, the state IS a poor parent, but this is largely because of the harm that has been inflicted on the child by the birthparents before he/she is removed from their care. In my piece on attachment theory I outlined how insecure attachment patterns between parents and children will adversely affect a child to a greater or lesser extent throughout the lifespan. It IS a fact that children who are abused/neglected in their earliest hours, days, weeks, months, years will suffer significant harm. I know that there has been some criticism of Sue Gerhardt’s book “Why Love Matters” where she describes how brain pathways can be changed in an infant dependent on the care he is given. However there is a TV series “How Life Began” (or something like that) and in the last episode we actually saw the foetus in utero in 3D react to loud music being played by jerking his hands to his head, and relaxing when the music stopped. Incredible. I digress. Yes many parents have “simply” lost their way – I don’t need any convincing that many parents in care proceedings have the odds stacked against them from the moment of their birth and they are ill equipped to be good enough parents. I have met many such parents over the years. However the sad fact is that regardless of the reasons for the abuse/neglect of a child the EFFECT is the same – the child will suffer and not just in the present, but in the future, and will be unable to effectively parent when her turn comes around………..it’s called the cycle of deprivation. I’m surprised at your comments “we’ll nip in, take your baby and get him adopted by a nice middle class family…………..” it smacks of “snatching babies for adoption from loving parents.”

      You really are preaching to the converted Sarah in telling me that adoption is not all OK…..I managed a Fostering & Adoption Team for the last 15 years of my social work career with the LA and I’ve seen at first hand the distress experienced by adopters and foster carers as they try to parent traumatised children, whose behaviours can be beyond anything they have ever encountered. These children cannot process their previous trauma and their confusion and helplessness is played out in the adoptive/foster homes. I have seen marriages break down, families torn apart and one of the couple experience mental health problems as a result of the stress involved in coping with insurmountable difficulties.

      I note you mention other European models of handling these situations and have to claim my ignorance on this issue. I know that you went to Finland for a conference in the recent past, so will try to find the post. The thing is though I think that the Netherlands, Norway, Sweden, Finland, Denmark (can’t remember the name for these countries) have very different social policies from those that we have in the UK and that has to be taken into consideration. I think your phrase that “post adoption contact stinks” is unfortunate. I assume you mean that there isn’t enough “open” adoption. As you know most children adopted are aged between 1 and 4 years and are adopted by people who want a child of their own, but are unable to conceive. Why would these people want the birthparents popping up every now and then. And in whose interest would it be? Certainly not in the child’s interests. Many birthparents don’t have any understanding of the child’s sense of time, and think that they will remember them simply because they are the parents.

      I’d be interested in what your views are about how the effects on the parents of the loss of their child should be taken into account. Do you envisage that more children in care proceedings should be returned to the parents even if significant harm has been proved on a Supervision Order, to keep the biological tie between child and parents? A social worker would visit approximately once a month at an arranged time, or it maybe that the judge would stipulate weekly visits, but this still leaves an awful lot of time for the child to be harmed again. OR maybe you think that the parent’s wishes and feelings about the type of Order granted should be taken into account. A Care Order rather than a Placement Order maybe, which would pave the way for more direct contact. The only thing about that is that unless things have changed since I was last in practice, permanent foster carers were about as rare as hen’s teeth, especially for older children (or those over 5 years)

      The whole issue of ongoing contact in permanency has always been a problem, and this can be seen in relatives who have SGOs (there is a FB page) and a state of chaos and confusion seems to exists across the country. Some LAs pay allowances, some don’t, some get support after the Order, others don’t. The one thing that seems to cause most concern is contact with birthparents, both in terms of the frequency and the nature of the contact. Most social workers and guardians seem to recommend contact x 6 per year, but others will recommend every 2 weeks. Contact has always (as far back as I can remember) the late 1970s has caused problems for foster carers. They always complained that children got upset before and after contact and sometimes the parents didn’t turn up and they were left to pick up the pieces. I don’t think very much has changed to be honest.

      Maybe you’d like to see children in residential care in “family group homes” with a housemother, as in yesteryear. Parents could visit in those days on a Sunday afternoon! I don’t know what the answers are, and I appreciate that my experience though extensive is somewhat ancient, as I am 11 years out of LA work though worked independently till 2009.

      Reply
      1. Sarah Phillimore

        This is a reply to Sarah’s post yesterday. For some reason the word “reply” doesn’t always appear under the post. I have noticed that too but I am afraid I don’t know how to fix it.

        I can see you have the bit between your teeth on this one Sarah. Firstly the legislation would have to be changed wouldn’t it, No. We need better recognition and application of the existing law. That the child’s Article 8 rights outweigh those of parents does not mean that the parents’ Article 8 rights are simply irrelevant. Nor do I think it can possibly be right to assert – as a recent case has done – that Article 8 rights re parent and child simply disappear on adoption. To say this ignores the extent of Article 8 which protects the psychological integrity of individuals.

        I have heard you mention the “child rescue” narrative before and think you are referring to cases where the grounds for proving significant harm (or likely significant harm) are not met on the balance of probabilities. If this is the case, surely the judge will not make an Order and the child will be returned to the birthparents and the social workers and other professionals will get a “flea in their ear” in the judgement and may be named. Is this not the case? It was not necessarily the case prior to Re B-S. Read that judgment to get a sense of the anger of the President at the ‘sloppy, anodyne’ analysis that was far too prevalent in many cases. The ‘child rescue’ narrative appears to be the driving one in social work practice today. It inevitably has an impact on the way evidence is gathered and presented. There has been a string of high profile cases this year where ‘fleas in ears’ were most certainly delivered. The message of Re B-S seems not to be getting through to some professionals, for whatever reason. I suspect lack of resources/staff plays a huge role.

        If you are interested, I discuss some of the worst examples of cases going wrong here. http://childprotectionresource.online/going-off-the-rails-in-interesting-times/

        You appear to be saying that even when significant harm has been proven, the judge must consider the rights of the parents and the effect on them of removing their child/ren. Yes. Not because parents have ‘rights’ to go on abusing their children but because parents are human beings and should not be treated as irrelevant or ‘monsters’ – as I am afraid does happen in too many cases. If we cannot recognise each other’s essential humanity, there is no point in any of this.

        Your exclamation mark after this comment suggests that you are claiming that the state is a poor parent and will do no better with the next generation of children. Again I am in agreement, the state IS a poor parent, but this is largely because of the harm that has been inflicted on the child by the birthparents before he/she is removed from their care. Not entirely. My meeting with the parents of adopted teenagers last night was a horrible eye opener as to just how profoundly and completely these children are let down by every state agency who is supposed to protect them and promote their welfare. These parents are faced with children who will very probably kill themselves or end up in prison pretty soon. They have to fight for recognition, fight for therapy, fight for education. These were articulate middle class intelligent people and they were struggling. Why should it have to be a battle to get the help a child needs? Especially as you say – and I agree – a lot of the problems stem from the awful experiences these children had as babies and toddlers.

        In my piece on attachment theory I outlined how insecure attachment patterns between parents and children will adversely affect a child to a greater or lesser extent throughout the lifespan. It IS a fact that children who are abused/neglected in their earliest hours, days, weeks, months, years will suffer significant harm. I agree. One of the parents I spoke to last night adopted two children at 2 years and 6 months. Both have been profoundly damaged even at that young age. But it wasn’t just the abuse inflicted by the parents. The 2 year old was removed at 13 months and then had a variety of foster placements. So for him, the abuse continued even after removal and his chances of developing secure attachment was compromised – both by his parents AND by the state.

        However the sad fact is that regardless of the reasons for the abuse/neglect of a child the EFFECT is the same – the child will suffer and not just in the present, but in the future, and will be unable to effectively parent when her turn comes around………..it’s called the cycle of deprivation. I’m surprised at your comments “we’ll nip in, take your baby and get him adopted by a nice middle class family…………..” it smacks of “snatching babies for adoption from loving parents.” Yes I agree. Many of my cases have a chronology ten plus pages long, with appalling descriptions of violence, neglect etc and then a few weeks later ‘case closed’. A few weeks after THAT ‘case re-opens’. I think we really do need to go in a lot harder and a lot faster in some cases. I am surprised you are surprised by my comment. That is exactly the perception of many parents and I think there is a lot of truth in it. A ‘fairy tale’ idealised view of adoption is certainly being pushed by this government when the reality is often much more complicated. There is more than a whiff of social engineering in many cases I do. I still remember one guardian who told me that the test she applied was ‘are the parents promoting the child’s development along his optimal pathway’. THIS IS NOT THE LAW.

        You really are preaching to the converted Sarah in telling me that adoption is not all OK…..I managed a Fostering & Adoption Team for the last 15 years of my social work career with the LA and I’ve seen at first hand the distress experienced by adopters and foster carers as they try to parent traumatised children, whose behaviours can be beyond anything they have ever encountered. These children cannot process their previous trauma and their confusion and helplessness is played out in the adoptive/foster homes. I have seen marriages break down, families torn apart and one of the couple experience mental health problems as a result of the stress involved in coping with insurmountable difficulties. Exactly. Yet when the parents I was talking to last night tried to raise their concerns on the Adoption UK forums, their posts were simply deleted. They were going against the ‘fairy tale’ of adoption and the fear was they would ‘put off’ the more naive potential adopters. So they had to set up their own support group which now has 200 members.

        I think your phrase that “post adoption contact stinks” is unfortunate. I assume you mean that there isn’t enough “open” adoption. As you know most children adopted are aged between 1 and 4 years and are adopted by people who want a child of their own, but are unable to conceive. Why would these people want the birthparents popping up every now and then. And in whose interest would it be? Certainly not in the child’s interests. Many birthparents don’t have any understanding of the child’s sense of time, and think that they will remember them simply because they are the parents. I am not going to apologise for having an opinion and expressing it. the attitude of the SW profession and of judges does indeed ‘stink’. By which I mean NOT that I wave a flag for open adoption in every case. But that there is simply a refusal to even consider the possibility of being more creative about the issue and a blanket assumption that adopters will simply refuse to consider it. This is especially unfortunate when siblings are separated. Those who remain with birth families are then denied on going contact with siblings.

        I’d be interested in what your views are about how the effects on the parents of the loss of their child should be taken into account. I would hope that we would wake up to the damage our current system is doing and re-position social work towards supporting families rather than operating to gather evidence to justify removing their children. I would like to see a massive improvement in mental health provision for both children and adults. I would like to see more realism in the debate about adoption and more consideration of how other countries deal with the problem of parents who just can’t parent – for whatever reason. It is sad for me that the debate seems to continue to polarise around the two extremes – that when I discuss parents rights you seem to assume that I refer to the right to continue abusing their children! If that really is the message I am giving then I can only assume that I am very bad at communicating my arguments.

        Maybe you’d like to see children in residential care in “family group homes” with a housemother, as in yesteryear. Parents could visit in those days on a Sunday afternoon! Why not? For some children that would be the best solution. Some children are simply unadoptable and it is madness to pretend they are, place them in families that struggle to contain them, give those families no support and then blame the families when the children act out in violent and criminal ways.

        I don’t know what the answers are, and I appreciate that my experience though extensive is somewhat ancient, as I am 11 years out of LA work though worked independently till 2009. I don’t think anyone would be arrogant enough to claim they have the answers – but what I do know is that unless we can all agree to have an open and honest debate about what is really going wrong, nothing will ever change and the children will continue to suffer. The impact for them as individuals and for society as a whole is utterly corrosive. And I do think a lot of it could be prevented.

        Fundamentally, EVERY child has a right to be safe. If parents can’t or won’t for whatever reason provide that safety then they cannot care for that child. But the way we are currently purporting to protect children is simply an embarrassment for a supposedly civilised society.

        Reply
  3. angelo granda

    Kate, I hope you have seen my previous post on this thread.I have agreed with some of your remarks and asked constructive questions.

    I take issue with you on some of your later comments, however.Please accept the following criticism in the same spirit.

    QUOTE: Yes, the LA have a duty to work “in partnership” with the parents – a nice cosy phrase thought up by some civil servant in Whitehall when drafting the Children Act 89, but not so easy to achieve in reality: UNQUOTE

    You appear to have an unhealthy attitude towards the Children Act 1989.It may not be easy but nevertheless it is the LA duty. Guidance has been formulated to make its task easier; it is essential that guidelines are followed strictly.

    QUOTE: the LA are charged with the duty to act in the best interests of the child, not the best interests of the parents, nor indeed to take into account their wishes and feelings: UNQUOTE

    On my reading of the law, the LA have a fundamental duty to ‘take into account the wishes and feelings of parents’.

    QUOTE: the state IS a poor parent, but this is largely because of the harm that has been inflicted on the child by the birthparents before he/she is removed from their care: UNQUOTE

    In my view, the state is a poor parent because it places children in the care of CS departments which are not funded adequately thus unfit for purpose in more ways than one. Alas,the CS are consistent only in their inability to own up to faults. Your assertion that the state is a poor parent because of the harm suffered by a child in the past is illogical.

    Reply
  4. ian josephs

    {this is a cut and paste of an article purportedly by Christopher Booker which the Telegraph has refused to print. If the Telegraph’s lawyers don’t advise publication, I am not going to publish it either. It relates to the Marie Black criminal trial re child abuse} Last week marked the final act in a criminal trial in Norwich which I and the Sunday Telegraph columnist Christopher Booker had been able to follow in great detail for many months. We agreed that it was one of the strangest and most disturbing trials we have ever come across.
    Twice before, but only under tight legal constraints, Christopher managed to publish reports relating to the trial while it was still unfolding (links to these articles are given below). But last Sunday, when he planned to write again about the trial’s shocking conclusion – with each of three defendants being given life-sentences – the newspaper declined to publish his article, for reasons not related to its accuracy.
    Because his unpublished article raises at least some of the many serious questions about the conduct of the trial which have not been aired anywhere else in the British media, I am publishing it here [But I am not]

    Booker’s earlier reports relating to the trial can be found here
    http://www.telegraph.co.uk/comment/11641375/Social-workers-get-the-story-theyre-after.html
    and here
    http://www.telegraph.co.uk/news/uknews/law-and-order/11790298/The-greatest-abuse-would-be-to-indulge-in-a-witch-hunt.html

    Reply
  5. angelo granda

    What does a criminal trial have to do with the pendulum possibly having swung too far against parents in child-protection cases?
    Maya B.H. has made some very good points.Can we keep on subject?
    I suggest Maya that the pendulum has swung too far against parents because of the ‘child-rescue’ narrative.Over many years Social Services have consistently aligned themselves and promoted policies and amendments to the Children’s Act designed to make it easier and easier for them to ‘protect’ children.
    The Local Authorities have deceptively created a situation where the threshold criteria for neglect are so easy to ‘prove’ that it is arguable that the Article 8 rights of citizens
    are regularly abused.
    Maya,what would you say the Law means when it talks of risk of SIGNIFICANT HARM? Tell us what the books say about it.
    Kate Wells ,do the Social Workers see it as their task to tackle the cycle of deprivation by dedicating themselves to organising social care and support for deprived families? Or do the LA financial interests force them to concentrate on proving significant harm in order to bring about the permanent removal of children.
    Care plans which entail removal are frowned upon by everyone except Local Authorities.

    Reply
  6. Maya B-H

    As I understand, Angelo, Children Act 1989 defines “harm”, but makes no distinction between “harm” and “significant harm”. The concept of “significant harm” is therefore dangerously subjective. I attempted to (briefly) discuss this with Sir Mark Hedley at the Transparency Conference, and he did not seem to disagree with me.

    Reply
    1. angelo granda

      Maya, I think it is the case that when the CS receive a referral, the department are to carry out an open-minded ,impartial investigation and produce an in-depth core assessment.Parents are to be interviewed,obThviously and told of any concerns which exist.
      Then the CS can call a child-protection conference (it must follow procedures srictly)and if the conference decides the child/children are at risk of significant harm (inthe meaning of the ChildrenAct,it can place their names on the AT RISK REGISTER .
      I think that is the meaning of risk of significant harm.
      It qualifies children for the register.

      Do you know how serious the circumstances of a case have to be to qualify for an s47 investigation?

      Reply
  7. angelo granda

    In my view ALL harm to children is SIGNIFICANT and we do not need a judge or jury to decide on it for us.Plans to protect our children from harm should always be put in place by professionals and they should work together with parents to improve situations and monitor families carefully.
    I believe this is what happens naturally from the birth of a child .Medical and educational professionals work together with parents to safeguard children.Sometimes,however, it may be the case that professionals feel the involvement of Children’s Services is called for I.e. Additional support services are necessary.

    Unfortunately,once the CS get involved, matters get much worse instead of better because that department is unfit for purpose.
    It does not appear able to look at cases objectively, seems unable to understand the concept of ‘proportionality to circumstances’ and other human rights .
    Yes,the LA have a duty to provide social care services and one to work alongside parents and the other professionals.
    Yes, the LA may apply for a protective order if it feels it necessary to implement a proportionate multi-lateral,agreed care-plan.
    Major problems arise because the CS think that significant harm or the risk of it warrants the removal of children from home. It does not, in my view!
    Removal should only be ordered very rarely,in the most dire circumstances of child neglect or abuse and even then only after procedural safeguards (to avoid the possibility of abuse) have been observed meticulously.
    Therefore,I think the definition of significant harm is important only in the issue of protective-orders.
    Orders are secondary to care-plans.So do you think we should pay more attention to drawing a line between significant harm( and future risk of it) and the most dire circumstances of child abuse.
    As a starter,I think something approaching deliberate malice on the part of parents would have to be in evidence.

    Reply
  8. zita

    Parent responsibility ? I am a mum of 5 children 2 attended university, 2 attending college and 1 in year 7.
    I had 3 children taken from me,twins age 15 1/2 and 10 ,one of my twin was self harming and refused to attend the drs after 1 visit. The other 2 was not told why they were in care for 2 months because of privacy the other twin asked,I was broken mum I dint give up and I done everything and I won my kids back from the local authority,My twin in question turned 16 and decided to stay and the carers moved 100 miles away,we see her once in a wile because of my husband poor health at moment.
    Q: Child tax credit,my solicitor used my child tax credit to obtain legal aid to fight our case I’m grateful.
    Q: I`ve just loss 1 tribunal hearing to repay HMRC 4 week of child tax credit because the kids were in care even thought I was feeding them and clothing them and give them pocket money it was Christmas time even more was spent on them.still I lost and I have to pay HMRC.
    I am poor and I can not pursue because I will end up paying HMRC legal cost.
    Happy I have my kids back and sad because any one can have their kids taken with out a say.

    zita

    Reply
    1. angelo granda

      This is my attempt to explain to sw’s why the High Court Judges instruct us all that children are only to be removed from home very rarely and only in very serious cases of child-abuse.

      I believe we have to set a clear bench-mark between serious child abuse and significant risk of future harm and my initial opinion is that the former should have to be evidenced by a criminal conviction for an offence against a child AND that something approaching deliberate malice towards the child would have to be shown at the trial.

      The Law of any community reflects the standards of its members.By and large,those are the only standards which it can effectively enforce.Parents are responsible for protecting and rearing their own children and the Local Authorities (who we finance and vote in) employ social workers to serve and support those families which the community deem vulnerable when children are at risk of harm.

      The Local Authorities cannot compel citizens to observe a moral code which they do not accept.For example,if a couple shout and argue, they are free to do so,if they smack a child,they are free to do so( in England and Wales),,_

      We ,as a society,should not be misled by well-rehearsed facile criticisms ( concerns) and allegations of abuses in relation,for example,to child neglect.poverty,squalor,domestic violence,hunger,adultery, moral laxity, controlling behaviour,manipulation,sexism, drug-taking,alcohol abuse,self-tutoring,obesity,even parents unable to prioritise children’s needs above their own. They may well be real cause for concern but we have to accept that they are endemic in all human relationships and are not criminal offences..

      Any family selected by sw’s to be subjected to their ‘attention’ will have some faults thus vulnerable to over-zealous ‘child rescuers’.. It is more harmful to children to také them into care and more harmful to the public good because it takes away fundamental freedoms.
      There are areas where we have to tolerate actions which have harmful public consequences ,if it is not possible to enforce prohibitions without worse harm to the public good.Smacking a child is an example,it has clear public consequences. But it has invariably been found that attempts by civil law to make it a crime lead to intolerable interference with the privacy and freedom of the individual. THERE IS NOPRESSING SOCIAL NEED!
      Social Workers appear to také stern satisfaction in denouncing behaviour which they believe may cause harm to children,yet they give a cold reception to human rights laws; those restricting the persecution and discrimination against individuals; rules and regs put in place to limit their own powers;legal procedures relevant to fairness and proportionate decisions and so on.In doing so ,they abuse the law for their shortcomings and cause greater harm to society as a whole.
      I anticipate some readers will disagree. ; but don’t forget several High Court judges support this view.

      Reply
  9. ian josephs

    Open up the courts they shout ! Let the public in……. But of course members of the public are unlikely to bother to go.That is NOT the real issue……..
    No the real issue is the gagging of parents preventing them from crying to the rooftops when their children are taken identifying themselves and their kids if they wish to do so ,and also the refusal to allow friends ,grandparents and other relatives in the court if the parents wish them to be there.
    Freedom of speech is a joke where family courts are concerned and so is justice that cannot be seen to be done even by children’s grandparents or the mother’s new Partner !
    If we believe in free speech and open justice we should allow parents to speak freely to the public naming themselves and their children, and also allow them to invite relatives and friends into court for moral support.
    once in the court children should never never be taken from law abiding parents.Gagging parents and children in care should be made illegal and so should non moleatation orders on parents who have never actually molested anyone !
    Freedom of speech,freedom of movement,and freedom of association are all human rights disregarded by family courts and social workers .

    Reply
    1. Sarah Phillimore Post author

      I am glad to see that you can comment without resorting to abuse. However, this is a comment that you have posted many times before. Is it possible that you could combine lack of abusive speech with some variety in subject matter?

      Reply
  10. Pingback: What are the nature of and limits to parents’ rights? | Child Protection Resource

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