Child Protection: the Law before the Children Act 1989

The Good Old Days?

This is a post by Kate Wells, a retired social worker, who examines the law about Child Protection which predates the Children Act 1989.

CHILDREN ACT 1948

DUTY OF LOCAL AUTHORITIES TO ASSUME CARE OF CHILDREN.

Duty of local authority to provide for orphans, deserted children, etc.

1.-(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen –

(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost; or

(b) that his parents or guardian are, for the time being or permanently prevented by reason of   mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his accommodation, maintenance and upbringing; and

(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child,

it shall be the duty of the local authority to receive the child into their care under this section.

(2) Where a local authority have received a child into their care under this section, it shall, subject to the provisions of this Part of this Act, be their duty to keep the child in their care so long as the welfare of the child appears to them to require it and the child has not attained the age of eighteen.

(3) Nothing in this section shall authorise a local authority to keep a child in their care under this section if any parent or guardian desires to take over the care of the child, and the local authority shall, in all cases where it appears to them consistent with the welfare of the child so to do, endeavour to secure that the care of the child is taken over either –

(a) by a parent or guardian of his, or

(b) by a relative or friend of his, being, where possible, a person of the same religious persuasion as the child or who gives an undertaking that the child will be brought up in that religious persuasion.

(4) Where a local authority receive a child into their care under this section who is then ordinarily resident in the area of another local authority, –

(a) that other local authority may at any time not later than three months after the determination (whether by agreement between the authorities or in accordance with the following provisions of this subsection) of the ordinary residence of the child, or with the concurrence of the first-mentioned authority at any subsequent time, take over the care of the child; and

(b) the first-mentioned authority may recover from the other authority any expenses duly incurred by them under Part II of this Act in respect of him (including any expenses so incurred after he has ceased to be a child and, if the other authority take over the care of him, including also any travelling or other expenses incurred in connection with the taking over).

Any question arising under this subsection as to the ordinary residence of a child shall be determined by the Secretary of State.

(5) In determining for the purposes of the last foregoing subsection the ordinary residence of any child, any period during which he resided in any place as an inmate of a school or other institution, or in accordance with the requirements of a supervision order or probation order or the conditions of a recognisance, or while boarded out under this Act,

I assume “received into care” equates to voluntary care, or as in present day legislative speak “looked after under S20 of CA1989”

 

ASSUMPTION BY LOCAL AUTHORITY OF PARENTAL RIGHTS

2.-(1) Subject to the provisions of this Part of this Act, a local authority may resolve with respect to any child in their care under the foregoing section in whose case it appears to them –

(a) that his parents are dead and that he has no guardian; or

(b) that a parent or guardian of his (hereinafter referred to as the person on whose account the resolution was passed) has abandoned him or suffers from some permanent disability rendering the said person incapable of caring for the child, or is of such habits or mode of life as to be unfit to have the care of the child –that all the rights and powers which the deceased parents would have if they were still living, or, as the case may be, all the rights and powers of the person on whose account the resolution was passed, shall vest in the local authority.

I wonder how they defined “permanent disability” and more pertinently “such habits and mode of life………” I recall reading in files that children were subject to a S.2 Resolution and this was dealt with and “resolved” by the Social Services Committee or their equivalent and am told by my friend, who was my manager for many years and started work in the newly formed Children’s Dept in 1948 and rose to become Director of SS in the shire county in which we worked (now aged 80 years)  that it was in fact largely a “rubber stamping job” – he recalls in his experience the committee never questioned anything and of course the social worker wasn’t present; the Resolution was made on the strength of a written report.  

He is unable to recall exactly what constituted “such habits or mode of life” – but clearly given the date it was tied in with the National Health Service Act in July 1948  and agreed with my suggestion that it would be related to homes that were less than hygienic – described as “dirty and foul smelling” children “unsuitably clothed” “inadequate nutrition” “drunkenness in either or both parents” “father without work”(suppose this had to be seen in the context of welfare rights – of which there were none! So a father without work would mean a family without food, heating etc. (Not so different from today!)

I assume “permanent disability” would refer to physical disabilities (and they would have been referred to as “cripples” and people with mental illness would have been referred to as “feeble minded” and even “idiots” (I’ve seen these terms used in numerous old files)and would have been incarcerated in an asylum, so would be unable to care for the children.  Again we are going back 75 years and I don’t think drugs to treat mental illness were commonly used until the late 1950s.  I know that the first anti-depressants became available on prescription from 1958.

(2) In the case of a resolution passed by paragraph (b) of the last foregoing subsection, unless the person on whose account the resolution was passed has consented in writing to the passing of the resolution, the local authority, if the whereabouts of the said person are known to them, shall forthwith after the passing of the resolution serve on him notice in writing of the passing thereof; and if, not later than one month after such a notice is served on him, the person on whose account the resolution was passed serves a notice in writing on the local authority objecting to the resolution, the resolution shall, subject to the provisions of subsection (3) of this section, lapse on the expiration of fourteen days from the service of the notice of objection.

Interesting that the parents only had one month to object to the Resolution… my friend recalls that in his recollection, very few parents actually did raise any objection.  There was a more subservient attitude to authority in those times I think. Obviously the assumption of parental rights on S.2 of the Act follows on from a child being received into care under S.1 of the Act.  I don’t know if they could use S.2 Resolution to remove a child from parents without recourse to the Juvenile Court.

Every notice served by a local authority under this subsection shall inform the person on whom the notice is served of his right to object to the resolution and of the effect of any objection made by him.

(3) Where a notice has been served on a local authority under subsection (2) of this section, the authority may not later than fourteen days from the receipt by them of the notice complain to a juvenile court, or in Scotland the sheriff, having jurisdiction in the area of the authority, and in that event the resolution shall not lapse by reason of the service of the notice until the determination of the complaint, and the court or sheriff may, on the hearing of the complaint, order that the resolution shall not lapse by reason of the service of the notice:

Provided that the court or sheriff shall not so order unless satisfied that the child had been, and at the time when the resolution was passed remained, abandoned by the person who made the objection or that that person is unfit to have the care of the child by reason of unsoundness of mind or mental deficiency or by reason of his habits or mode of life.

Ah here we have “unsoundness of mind or mental deficiency” and again the “habits and mode of life” which I think would be open to wide interpretation.

(4) Any notice under this section may be served by post, so however that a notice served by a local authority under subsection (2) of this section shall not be duly served by post unless it is sent in a registered letter.

EFFECT OF AN ASSUMPTION OF PARENTAL RIGHTS BY RESOLUTION.

3.-(1) While a resolution passed by virtue of paragraph (a) of subsection (1) of section two of this Act is in force with respect to a child, all rights and powers which the deceased parents would have if they were still living shall, in respect of the child, be vested in the local authority in accordance with the resolution.

(2) While a resolution passed by virtue of paragraph (b) the said subsection (1) is in force with respect to a child, all rights and powers of the person on whose account the resolution was passed shall, in respect of the child, be vested in the local authority in accordance with the resolution, and subsection (3) of section one of this Act shall not in respect of the child apply in relation to the person on whose account the resolution was passed.

(3) A resolution under section two of this Act shall not prevent the local authority from allowing, either for a fixed period or until the local authority otherwise determine, the care of the child to be taken over by, and the child to be under the control of, a parent, guardian, relative or friend in any case where it appears to the authority to be for the benefit of the child. I do recall the phrase “home on trial” but this might be used much later.

(4) Where a resolution under section two of this Act is in force in respect of a child and the child has ceased to be in the care of the local authority by whom the resolution was passed, then (without prejudice to the provisions of section one of this Act if those provisions apply) the local authority by whom the resolution was passed shall have power to receive the child back into their care in any circumstances in which it appears to them that their intervention under this subsection is necessary in the interests of the welfare of the child.

(5) Where a local authority receive a child into their care under the last foregoing subsection, the provisions of this Act, except subsections (4) and (5) of section one thereof, shall apply as if the child had been received into their care under the said section one.

(6) A resolution under the said section two shall not relieve any person from any liability to maintain, or contribute to the maintenance of, the child.

(7) A resolution under the said section two shall not authorise a local authority to cause a child to be brought up in any religious creed other than that in which he would have been brought up but for the resolution.

(8) Any person who knowingly –

(a) assists or induces or persistently attempts to induce a child to whom this subsection applies to run away, or

(b) harbours or conceals a child to whom this subsection applies who has run away, or prevents him from returning to the place from which he has run away,

shall on summary conviction be liable to a fine not exceeding twenty pounds or to imprisonment for a term not exceeding two months, or to both such fine and such imprisonment.

This subsection applies to any child in the care of a local authority under section one of this Act in whose case a resolution is in force under section two thereof, being a child for whom accommodation (whether in a home or otherwise) is being provided by the local authority in pursuance of Part II of this Act, and references in this subsection to running away shall be construed as references to running away from a place where accommodation is or was being so provided.

 

CHILDREN AND YOUNG PERSONS ACT 1969

This was the Act that was in force when I began my social work career in 1980 and I recall that it was not difficult to obtain a Care Order.  Cases were heard in the Magistrate’s Court and evidence had to be provided of course, but there was usually just the social work report and the Paediatrician’s report and occasionally the LA Medical Advisor would need to submit a report.  The LA lawyer was consulted as to whether the case would “stand up in court” and I can’t recall any particular problems in this respect.  Witnesses were cross-examined by the lawyer for the birthparents, but it was usually a local lawyer who defended the juveniles in criminal cases in the Juvenile Court and he wasn’t much good at cross-examination! 

The other thing I recall was that if granny or Auntie Betty asked if they could care for the children, there was absolutely no duty to assess them, or even tell the court that they had requested to care for the children.  I don’t remember this happening a great deal but if it did happen, we just had a brief discussion with them, and I am certain that I always said “thank you but no thank you” and that was end of matter!

We did need to obtain a Place of Safety Order to remove a child of course and we would go to the home of the Magistrate who was on duty and after a very brief discussion (usually in their hallway!) they would issue the Order, which I  think lasted for 28 days.

 

CARE AND OTHER TREATMENT OF JUVENILES THROUGH COURT PROCEEDINGS

Care of children and young persons through juvenile courts

1.-(1) Any local authority, constable or authorised person Care who reasonably believes that there are grounds for making an proceedings order under this section in respect of a child or young person may, subject to section 2(3) and (8) of this Act, bring him before a juvenile court.

(2) If the court before which a child or young person is brought under this section is of opinion that any of the following conditions is satisfied with respect to him, that is to say-

(a) his proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated ; or In some ways I think this wording is better than “significant harm” as it is more descriptive.

(b) it is probable that the condition set out in the preceding paragraph will be satisfied in his case, having regard to the fact that the court or another court has found that that condition is or was satisfied in the case of another child or young person who is or was a member of the household to which he belongs ; or  and the concept of “likely harm” embedded in the Act.

(c) he is exposed to moral danger ; or I have absolutely no idea how moral danger was interpreted.  Sexual abuse did not really “rear its head” until the early/mid 1980’s as I recall, so maybe it was if mother was a prostitute (as she would have been called then) or had a series of boyfriends in the family home, and the children were witnessing sexual acts.  There were certainly no sexually explicit videos to be seen!

(d) he is beyond the control of his parent or guardian ; or Again this is open to interpretation isn’t it – I do remember something called an “Unruly Certificate” but can’t recall how it was used.

(e) he is of compulsory school age within the meaning of 1944 c. 31. the Education Act 1944 and is not receiving efficient full-time education suitable to his age, ability and aptitude ; or This was a big problem “non-school attendance” and the evidence was provided by the Education Welfare Officer who trundled around diligently trying to get kids to school.  Social workers were also involved in this endeavour – usually without success.  Care Orders were granted very readily and children usually placed in a residential Children’s Home (often miles away from their home) which necessitated a change of school and teenagers in this position refused to go to the new school, or went in and then hopped off, so the whole thing was totally meaningless.  I worked in a Children’s Home for a short time and the school was right next door and the kids used to go to school at 9 and by 9.30 most of them would be back and we could see them climbing out of the school windows!  This was in a particularly rough area and the kids were tough too, and difficult to control, but it was permissible in those days to hit kids and this used to happen on a regular basis.

(f) he is guilty of an offence, excluding homicide, and also that he is in need of care or control which he is unlikely to receive unless the court makes an order under this section in respect of him, then, subject to the following provisions of this section and sections 2 and 3 of this Act, the court may if it thinks fit make such an order. In practice this meant it was always young males who were committing offences of theft, receiving stolen goods, criminal damage and Take Without Consent etc.  If he was out of school too and parents unable to affect any change, then a Care Order would be made.  These boys (aged around 13 – 17) were placed in residential accommodation. I think they were known as Community Home with Education (on the premises)  The one we used, St Gilberts in Worcestershire is currently in the news as allegations of historic sexual abuse have been made against the Christian Brothers who ran the school long before my time.  I think the perpetrators are all now deceased.  In my day it had an all male staff, some of a “macho” type but I don’t think there was any sexual abuse.  The boys were allowed home at weekends and parents were invited to Sports days and the like.  The building still exists to this day though not in use for any purpose.

(3) The order which a court may make under this section in respect of a child or young person is-

(a) an order requiring his parent or guardian to enter into a recognisance to take proper care of him and exercise proper control over him ; or

(b) a supervision order ; or

(c) a care order (other than an interim order) ; or

(d) a hospital order within the meaning of Part V of the 1959 c. 72. Mental Health Act 1959 ; or

(e) a guardianship order within the meaning of that Act.

(4) In any proceedings under this section the court may make orders in pursuance of paragraphs (c) and (d) of the preceding subsection but subject to that shall not make more than one of the orders mentioned in the preceding subsection, without prejudice to any power to make a further order in subsequent proceedings of any description ; and if in proceedings under this section the court makes one of those orders and an order so mentioned is already in force in respect of the child or young person in question, the court may discharge the earlier order unless it is a hospital or guardianship order.