Lady Hale looks at the achievements and disappointments of the Children Act project

Children|November 28th 2019

The thirtieth anniversary of the Children Act

As I reported here back in March, this year marks the thirtieth anniversary of the Children Act. As I said then, the Act changed the legal landscape when it came to dealing with children issues, bringing in new concepts and ways of dealing with those issues that we could not imagine being without today.

To mark the anniversary Lady Hale, the President of the Supreme Court, made it the subject of her Scarman Lecture, on the 13th of November. Scarman lectures, named in honour of the late Lord Scarman, the first Chair of the Law Commission, are hosted by the Commission every two years or so. They are attended by members of the senior judiciary, lawyers, parliamentarians and government officials.

Lady Hale began the lecture by looking at childcare law as it was before the Act. As one of the dwindling number of family lawyers who were practising then, it takes me back to a time that now seems quite alien – when, as Lady Hale says, there was different law in different courts – the law for the poor in magistrates’ courts and the law originally for the better off in the High Court or the divorce courts, when childcare law was usually conducted under the auspices of wardship proceedings, and when the ‘welfare checklist’ did not exist.

Five achievements of the Children Act

As she explains, Lady Hale was, of course, instrumental in the reform that was to become the Children Act, then being a Law Commissioner. She says that she was anxious to do something about the things that were wrong with the system, and explains her role in the ‘Children Act project’, which she says had five main aims, or achievements:

1. To reform, simply and codify the law, to find solutions for all the existing problems, and end the “chaos and injustice” of different law in different courts in different proceedings and not being able to get all issues related to the same child dealt with together.

2. To create a new family justice system, which could have procedures which were the same, or virtually the same, throughout.

3. To unify children’s social services – the Act brought together the law relating to services for disabled children and services for children in need of protection from harm or other forms of support.

4. To clarify the boundaries between what courts did and what social services providers did – courts were for deciding upon the allocation of parental rights and responsibility, local authorities were for providing services for children and families and looking after children.

5. Lastly, to separate the family and youth justice systems.

Five disappointments of the Children Act

But, said Lady Hale, it wasn’t all good news. She also listed five ‘disappointments’:

1. However clear the drafters’ instructions, and however skilfully they had turned them into statutory language, there were bound to be gaps, ambiguities and potential for misunderstanding which had to be cleared up later. For example, where did the ‘rights’ of the parent fit into the principle that the welfare of the child was the court’s “paramount consideration? This and other ‘gaps’ had to be addressed by the (higher) courts in the years following the introduction of the Act.

2. That all children cases were not brought in the same courts. Whereas private law proceedings could begin in either the magistrates’ court or the county court, public law (care) proceedings all began in magistrates’ courts, often in complex cases having to be transferred up to higher courts, thereby causing a delay.

3. The aspiration of developing a partnership between children’s services and families with children in need proved very difficult to achieve. The trouble, says Lady Hale, is that, if efforts to work with families run into difficulties, the local authority can always resort to care proceedings, and the families know that.

4. I won’t go into the detail of the fourth ‘disappointment’, but it really relates to the perennial problem of how long care proceedings take to be dealt with.

5. The last ‘disappointment’ is also unlikely to be of great interest to readers of this blog, relating to the way in which the juvenile justice system developed during the nineties and early noughties.

Overall, though, Lady Hale concluded that the Act had “largely stood the test of time as a piece of law-making”.

You can read the full speech here

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If you would like any advice on child law, you can find further articles here or please do contact our Client Care Team to speak to one of our specialist children lawyers here. 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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