The Children Act 1989 emerged after years of research and consultation and was welcomed by a very wide constituency as it was considered to provide a strong framework for all seeking to ensure the protection of children and support for families. The guidance urged the importance of working in partnership with parents in order to ensure the best outcomes for children. The ‘children in need’ provisions were designed to facilitate the provision of good quality family support based upon an understanding of the role played by deprivation in family difficulties. Such support could include the accommodation of children as part of an overall package. Since then there has been a lot of research highlighting the difficulties attached to implementing the Act and its associated guidance and, of course, recognition of ‘new’ harms to children such as the impact of domestic violence on children.
Legislation does need to be revised and cannot be cast in stone! However, the current children and families bill does not represent a step forward in my view. Indeed, I would suggest it is premised upon a value perspective outlined by Fox Harding (1997) which dates back to the 1970s- ‘state paternalism and child protection’. Fox Harding outlined this school of thought in depth as it operated at that time. It favoured extensive state intervention to protect children from poor parental care with the state constructed as neutral and/or an unmitigated good. Where parental care was inadequate, finding the child a new permanent home was prioritised. The rights and liberties of parents were given a low priority as the child was paramount.
While there was a focus on children’s rights, it was on the child’s rights to nurturance and care rather than self-determination. The child was seen as essentially vulnerable and dependent and with needs that differed from those of the adults involved. Proponents believed there needed to be much less faith in the sanctity of the blood tie. Children were too important to be left with birth parents who were not good enough. Childhood was valued above all and parents considered as means to the facilitating of children’s welfare, not as people with needs themselves.
As critics pointed out at the time, there was little appreciation in this perspective of the role played by poverty, poor housing and social conditions in impairing parents’ capacity to care for children and often an unthinking adherence to cycle of abuse theories ( parents who had suffered abuse themselves would go on to abuse)
There were, and are, many criticism of this perspective and it is beyond the remit of this brief paper to explore them. A key point for me is that I find disturbing echoes of it in today’s climate with record numbers of children being removed and the promotion of adoption. It is crucial, moreover, to locate what is happening in the context of very punitive attitudes towards poor birth families and wide-ranging cuts to benefits, legal aid and support services..
So let us turn to the bill and I will outline some of my concerns. This outline is very brief and there are many excellent briefings available from an array of organisations currently.
Foster to Adopt (Clauses 1and 6)
As Cathy Ashley noted in the Guardian recently  adoption is one of the most serious acts the state can take, when it is enacted against parents’ will. Currently, the legal framework is such that adoption should only be pursued if options for the child to live with their parents or wider family have been properly explored and should always been subject to fair process and judicial scrutiny.
Under the proposed legislation local authorities must consider placing a child with prospective adopters (who are temporarily approved as foster parents) as soon as adoption is considered, even where no court proceedings have begun and there has been no judicial decision that the child should be permanently removed. Indeed, the child’s name can be placed on the Adoption and Children Act Register even before any proceedings have been started!
Once adoption is even considered, there is no obligation to consider family members as carers for the child. Coupled with reforms to reduce delay in proceedings (Clause 14), parents and family and friends carers may simply not be assessed as potential carers.
This is draconian stuff by any standards!
Contact (Clause 1(3) (b)
Once adoption is being considered, the clause above disapplies the current duty to place children within the local authority area, impeding contact with birth family, even though the threshold for removal has not been established in court. If the child is placed with potential adopters a considerable distance away, it is not hard to foresee significant barriers being put in the way of contact especially if children are very young.
The Office of the Children’s Commissioner has carried out a child rights impact assessment of Parts 1-3 of the bill which is worth reading (www.childrenscommissioner.gov.uk)
In relation to the points raised above on adoption and contact, they too would seem to have serious concerns They suggest that provisions on ‘early permanence’ such as foster to adopt risk being perceived as pre-empting the court process and potentially undermining efforts to reunite children with their birth parents or wider family. The inclusion of children on the register pre-adoption would fall foul of the requirement in UNCRC Article 21 that adoption must follow due process and be based on legal certainties. Moreover, they note that current legislation on contact for children in care and children post-adoption is in line with requirements of the UNCRC and ECHR and they question whether proposed changes would advance children’s interests.
There are many other problematic aspects to the bill that I have not explored at all (eg, ethnicity and post-divorce contact). This post is offered simply as a small contribution to a debate that obliges us to engage with the most serious ethical questions; are we prepared to properly support the poorest and most vulnerable families and communities to care safely for their children and do we really want to preside over a ‘stolen generation’ of children?