21 years of the Children Act

by Rachel Thomson

A fascinating event was held at the University of Sussex on Friday and Saturday 12/13 October, celebrating 21 years of the Children Act a landmark piece of legislation which brought together private and public law. The event began like a ‘reunion’, seated around the table were many of the key movers responsible for bringing the Act into being – including Peter Harris who was part of the family law team at the Law Commission and a Government Adviser and Rupert Hughes the Department of Health civil servant who steered the legislation through parliament. Peter Harris entertained us all with stories of how a cross party commitment to producing elegant and well drafted legislation was protected from the attention of the prime minister and party political positioning – unlike the infamous Child Support Act that was rushed through parliament at the same time.

In the wake of the Cleveland child abuse scandal, the legislation aimed to define and promote the idea of ‘parental responsibility’ as a defense against intrusion from the state and the ‘welfare principle’ of the child’s best interests as guiding decision making where parents were seen to be unfit or incompetent to exercise this. Over the subsequent 21 years the idea of parental responsibility has been reduced to ‘almost homeopathic levels by judges’ said Harris with the Children Act emptied of meaning by the Court of Appeal. This remark provoked amused mutterings from the two judges present – Lord Justice McFarlane and Hedley who provided fascinating accounts of the business of turning legislation into a working tool within the family courts – where the search is often for the ‘least worst option’ rather than the exercise of principle or the maintenance of intellectual coherence. For Justice Hedley the Children Act has proved itself to be an outstanding piece of law – ‘something that shouldn’t work but does’ and which enables working solutions to be found among ordinary families for whom terms such as ‘parental responsibility’ and ‘the best interest of the child’ have important symbolic meaning.

Conversation inevitably lead to current proposals to override the child centred principles of the Children Act, and the introduction of a ‘presumption in favour of shared parenting’ in the Family Law Bill. Lord Justice McFarlane made his views clear that such ‘presumptions’ had no place in the family law courts and would only extend the length of care proceedings (currently on average 14 months). The overriding message of the day was that law is not only a working tool– it also sends messages – intended and otherwise. The intended message of the Children’s Act was that unmarried fathers need to take ‘parental responsibility’. That the legislation has become associated with a child centred approach to problem solving in the public sector is an unforeseen consequence. The intended message of the Family Law Bill seems to be that ‘obstructive mothers’ must let fathers in. Contributors to the day were passionate in arguing that neither was this a real problem, nor would the proposals have any chance of delivering on their promise.

The CIRCY response to the Department of Education’s Ministry of Justice Consultation: Co-operative Parenting Following family separation can be found at http://www.sussex.ac.uk/esw/circy/communicate/consultations

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