The Children Act 1989 puts the emphasis on keeping families together, but often at great cost, says Gabrielle Jan Posner. Gabrielle Jan Posner is a barrister at 2 Gray's Inn Square Chambers.
Next month, the Children Act 1989 will have been in force for seven years. I have no doubt that the passing of the Act marked a sea change in the approach taken by those who work in the public law arena (as it did for those involved in private law cases).
I have practised as a care lawyer for roughly 10 years. In the three years preceding the implementation of the Children Act, I would frequently go to court not knowing what the case was actually about, because written reports were not made available until oral evidence had been given.
Moreover, when representing parents, I found the relationship with social workers invariably hostile and an atmosphere of “us and them” prevailed. Inevitably this was reflected in – and exacerbated by – the way I was required to conduct the case.
All that changed markedly seven years ago. With the emphasis on co-operation and working together so as not to break up families, with local authorities not taking protective measures unless it was absolutely necessary and with the use of written agreements instead of court orders, the experience became far more beneficial for all those concerned. The supreme irony, is that as the years go by, we seem to be coming full circle.
I believe this is because of local authority cut-backs and budgetary constraints. The House of Lords decision in Re C (Interim Care Order: Residential Assessment) (1997) 1 FLR 1 means that the court, rather than the local authority, can decide the nature and form that an assessment of the child and his or her family should take.
The court should take into account the financial implications for the local authority, but whether or not they can afford to finance the assessment is not determinative. These days, many care cases turn on arguments that bear on resources.
For example, is it more appropriate for an assessment to be undertaken by a social worker or by an independent person, such as a child psychologist, whose services the local authority will have to buy in? Or should the local authority be compelled to pay for an assessment at a privately-run residential establishment rather than at their own family centre?
I do not dispute that assessments of this nature are expensive, but they do provide the court with the fullest information and an opinion of the highest calibre upon which to base decisions that will affect children and their families for the rest of their lives.
The difficulty is that almost as much money is being spent on contested hearings as would be on getting on with the assessment in question.
More to the point, local authorities may be discouraged from initiating care proceedings not out of a desire to keep families together, but because of the cost.
This means that many strategies will be attempted to avoid a court case. Very often these turn out to be unsuccessful because what is required is expertise from outside the local authority.
Accordingly, by the time proceedings are issued, not only will the child have suffered greater damage, but also the parents and the social workers will have become entrenched in their attitudes and be at war with each other. So seven years on, the attitude of judges and magistrates may properly be said to be more inquisitorial than adversarial, but sadly, this is not always the case for the parties involved in the case.
It seems to happen all too frequently that the spirit of the Children Act 1989 becomes lost along the way. When this occurs there is a far higher cost to our system than simply the monetary cost to the local authority.