Chapter 15 Legal frameworks for the care of the child

By the end of this chapter, you will be able to:

• understand the legislative basis and key principles within the Children Act 1989; Children Act 2004 and other relevant legal policies, including the Human Rights Act 1998

• appreciate the range of resources available to support families in caring for their children

• assess the role and responsibilities of local authority and voluntary sector organizations in providing and monitoring services for children and families

• identify the particular needs of children with disability and those from different racial and cultural backgrounds

• evaluate the role and responsibilities of the midwife in assisting councils with social services responsibilities to promote and safeguard the welfare of children in need and at risk

• realize the midwife’s contribution to the assessment of children and families.

Note: Please see the website for a list of all the Acts/Statutes referred to in this chapter.

Introduction

Safeguarding children and promoting their welfare is the responsibility of every health and social care professional. An increasing emphasis is placed on outcomes, to be delivered through multi-agency working and information-sharing. Repeatedly, government documents continue to highlight the requirement for interagency and interprofessional working to safeguard and promote the wellbeing of children and young people (DCSF 2010, DH 2000a, Laming 2009). Decisions about children’s welfare and safety are complex, with high-profile deaths of children, such as Victoria Climbié and Baby P, raising criticisms and anxieties about professional decision-making, leadership and management (DH 2003a, Joint Area Review 2008). Whilst the quality of children’s services may be improving, criticisms remain of partnership arrangements, performance management, the involvement of young people in decision-making, the use of assessment to identify need and track progress, and communication to ensure the emergence of a comprehensive picture of a child’s needs (Ofsted 2009, Statham & Aldgate 2003). There are also concerns about high thresholds limiting access to services (Corby 2003, Morris 2005) and lack of compliance by local authorities with the legal rules (Preston-Shoot 2010).

This chapter seeks to enable midwives to understand the legislative framework and related policies, procedures and resources, to carry out their role effectively in working together with parents and other professionals to ensure the wellbeing and safety of children. For the definition of the child, please see Box 15.1. Please note that those working outside England and Wales need to access legislation and policy guidelines relevant to that country.

Box 15.1

Legal definition of a child

The Children Act 1989 defines a child as a person under the age of 18. In current British law, an individual has no legal entity until the moment of birth. Similarly, a person does not become a parent until his or her child is born.

The discussion below may be linked to three scenarios that may be encountered by midwives (see Case scenarios Web 15.1, 15.2 and 15.3 and a range of activities on the website suggested for learning).

The Children Act 1989

The Children Act 1989, amplified by associated regulations and statutory guidance, covers legislation relating to aspects of care, upbringing and protection of children (Braye & Preston-Shoot 2009). This includes the welfare and protection of children in disputed divorce proceedings, children in need, children at risk, children with disabilities or special educational needs, and those who need to live away from home (either short or long term) including children in hospital, boarding schools, residential homes and foster homes. These rules have been amended and supplemented by subsequent legislation, most notably the Family Law Act 1996 (to protect victims of domestic violence), the Children (Leaving Care) Act 2000 (duties regarding young people leaving care), the Adoption and Children Act 2002 (reform of adoption law and changes to the Children Act 1989 provisions, for instance concerning parental responsibility, special guardianship and advocacy), the Children Act 2004 (specifying outcomes for children and requirements for interagency working), the Children and Adoption Act 2006 (sanctions for disrupting contact between children and non-resident parents, and changes to family assistance orders), the Children and Young Persons Act 2008 (amendments to children in need and emergency protection order provisions, and changes concerning accommodated children) and the Apprenticeships, Skills, Children and Learning Act 2009 (creating statutory Children’s Trusts and changes to Local Safeguarding Children Boards).

Guidance and regulations produced by central government departments provide detailed information about how legislation should be implemented. When guidance is issued under section 7, Local Authority Social Services Act 1970, it should be followed. Two published examples of these are Working together to safeguard children (DCSF 2010) and Framework for the assessment of children in need and their families (DH 2000a). These provide blueprints for agencies to work together with children (Fig. 15.1). Guidance has also been issued to clarify how outcomes for children, detailed in the Children Act 2004, should be approached (CWDC 2007, DfES 2005).

Figure 15.1 The assessment framework (DH 2000a).

The midwife has a universal and accepted role in working with pregnant mothers, newborn babies and their parents, and is in a unique position to comment on all aspects of the health and care of newborn babies (see case scenarios and reflective activities on website). This is in direct contrast to some other professionals, for example, social workers and police, who tend to be involved with families when there is cause for concern. Whilst midwives have been involved with all children born in England (approximately 11 million), intervention by councils with social services responsibilities affects only a small proportion of families, estimated to be about 5% (DH 2007). See website and Reflective activity Web 15.2.

Key features of the Children Act 1989

The Children Act 1989 was formulated on key beliefs about children, young people, parents and the role of the State, which are given statutory recognition in the Act.

These include the following:

• There is a universal duty to promote and safeguard the welfare of the child.

• Children are best brought up within their family, and local authorities have a duty to give support to children and families to facilitate this, when it is safe and appropriate so to do.

• Even where children are separated from their families, they should maintain contact with them, except where this puts them at risk.

• The state should only intervene where it is in the child’s best interests and legal measures are only taken as a last resort.

• Professionals should work in partnership with parents, where possible, involving them in the care of, and decisions made about their children.

• The wishes and feelings of children and young people should be sought (depending on their age and level of understanding), and taken into account when making decisions about their lives.

• The child’s welfare should be the paramount consideration in court decisions.

• The race, religion, culture and language of a child should be taken into account in provision of any services.

The Act is clear. The paramount duty for everyone is to safeguard and promote the welfare of children. Whilst other objectives, such as working in partnership with parents, are also highlighted, it is important to recognize that these practice principles do not overturn the paramount duty of the local authority to safeguard and promote the welfare of children (Braye & Preston-Shoot 2009, Brayne & Carr 2010, Wilson & James 2007).

Content and structure of the Children Act

Of particular interest to midwives are the parts of the 1989 Act that deal with the responsibilities of the local authority (LA) in providing support for children and families (Part III) and the protection of children (Part V).

Part 1 (section 1): Welfare of the child

The Children Act 1989 begins with a statement that the child’s welfare is the paramount issue to be taken into account in decisions made by a court in respect of children and young people (s1:1). The Act advocates avoiding delay in making decisions about a child’s upbringing (s1:2) as it can prejudice the welfare of the child. Where the court is required to take action, the Act requires it to take account of the following ‘welfare checklist’ (s1:3):

• the ascertainable wishes and feelings of the child concerned (subject to age and understanding)

• the child’s physical, emotional and educational needs

• the likely effect on the child of having any changes in their circumstances

• age, sex, background and any characteristics the court considers relevant

• any harm which the child has suffered or is at risk of suffering

• how capable each of the parents and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs

• the range of powers available to the court.

Whilst this applies to only parts of the Act and relates specifically to decisions of the court, professionals are expected to take this checklist into account when making decisions about a child.

The Act also states (s1: 5) that courts can only make an order in respect of a child if this would be better for the child than not making an order. This is based on the principle that the state should intervene in private and family life only to the degree necessary. This conforms to Article 8 of the European Convention on Human Rights, with its principle of proportional intervention, incorporated into UK law by the Human Rights Act 1998.

Part 1 (section 2): Parents and parental responsibility

The concept of parental responsibility is described in sections 2, 3, 4 and 5. Parental responsibility is defined as: all the rights, duties, powers, responsibilities and authority, which by law a parent has in relation to the child and his property (Children Act 1989: S.3(1)).

This includes the responsibility to care for, and promote and protect the child’s moral, physical and emotional health. Although not specifically defined in the Act, this is generally considered to include decisions in respect of the name, religion and education of the child, the right to consent or not to medical treatment and adoption, to have contact and to arrange for the burial or cremation of a child.

Who has parental responsibility?

The issue of parenting and parental responsibility is becoming increasingly complicated with the advent of surrogacy and in vitro fertilization. For example, the woman who gives birth is the legal mother and has parental responsibility. Other adults may need to adopt the child in order to become the legal parents.(see website and Reflective activity Web15.3.)

Support for children and families

The changing nature of family

Practice with children and families needs to take account of the changing nature of family life. The UK has become an increasingly multicultural society, bringing a diversity of ideas in respect of different family structures and ways of life. This diversity has been recognized within the Children Act 1989. Firstly, the Act widened the concept of people who are important to children by allowing absent parents and other relatives to be consulted and involved in decisions about the care of children, and to apply under section 8 for residence and contact orders. Secondly, for the first time in English law, the diversity and multicultural context of families have been recognized and should be taken account of and respected (s1:3). The legal rules have been changed subsequently to recognize civil partnerships, to extend to same-gender couples the right to adopt, to allow step-parents to acquire parental responsibility with the agreement of birth parents, and to create the concept of special guardianship (Adoption and Children Act 2002).

Reflective activity 15.1

Find out where your local authority children’s services department is. How has it organized its responsibilities to children?

What initiatives do you have in your area for helping vulnerable children and their families?

See if you can obtain a copy of the Children and Young People’s Plan for your area? What are the key aims and objectives for your area?

Poverty and social exclusion

Sources of stress and disadvantage for children and families include poverty and accompanying social exclusion. The Government published Ending child poverty: everybody’s business (HM Treasury 2008a), its strategy to tackle childhood poverty. In 2009, 2 million children were living in households where there was no adult in paid work, with the impact of poverty on their families being recognized as having a major effect on life chances, health, education and future employment (Hirsch 2009, Platt 2009), especially amongst black and minority ethnic group communities (Butt & Box 1998).

Employment rights

Pregnant women and their partners can access a range of benefits to help combat social inequality caused by poverty. Under the Employment Rights Act 1996, women retain employment rights whilst pregnant and should not be discriminated against. This includes paid time off for antenatal appointments, protection from unfair treatment or dismissal, the right to maternity leave, maternity pay, redundancy payment, and return to work following pregnancy (see Reflective activity Web 15.5). The Employment Act 2002 provides that every working father is entitled to paternity leave.

Family support and the Children Act

Central and local government strategies have been designed to aid vulnerable children. For example, Sure Start programmes have been targeted at children under 4 and their families within some of the most disadvantaged communities, addressing the health and wellbeing of children and families before and after birth. The aim has been to improve the health of children before entry to school to enhance their potential at school. The programmes provide access to family support, advice on nurturing, health services and early learning. Other initiatives include the concept of extended schools and the requirement on local authorities to ensure that they have sufficient children’s centres to meet local need (Apprenticeships, Skills, Children & Learning Act 2009).

The Children Act 1989 places a duty on local authorities to target particular services to children defined as being in need.

Local authorities have a general duty to:

• safeguard and promote the welfare of children ‘in need’ and

• promote the upbringing of such children by their families

by providing a range and level of services appropriate to those children’s needs (Children Act 1989: s.17(1)).

The definition of a child in need has been extended to include being a victim of, or witness to, domestic violence (Adoption and Children Act 2002, DH 2000b). The requirement that financial support could be given only in exceptional circumstances has been removed by the Children and Young Persons Act 2008. The aim of the duty to children in need within the Children Act is to target services to the most vulnerable, including those at risk, providing support to avoid the need for the state to seek statutory control. Service provision under section 17 may be one means by which a local authority seeks to deliver good outcomes for children and young people as defined in the Children Act 2004. However, financial constraints, reflected in high thresholds and eligibility criteria, have limited this section’s effectiveness (Morris 2005).

Family support services

Part 3 of the Children Act 1989, especially section 17 and Schedule 2, outlines the provision of services for children in need. These services may be provided by the local authority and/or the voluntary and private sector. Such services include family centres, day nurseries, fostering, childminding or playgroups, and support within the home, such as family aides (see website). The local authority may charge for these services, but any person in receipt of income support or family credit is exempt.

Children living away from home (see website)

The local authority has a duty to provide accommodation in a range of situations, including when children are in need and there is no person who has parental responsibility for them, they are lost or abandoned, or the person who has been caring for them is prevented from providing them with suitable accommodation or care. When the local authority accommodates children, they become looked after children.

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