Thirty years of the Children Act – a family lawyer reflects
Family Law Partner Fiona Turner reflects on the revolutionary Children Act 1989, now in its thirtieth year.
As the Children Act 1989 - considered ‘the watershed moment in the advancement of children’s rights in England and Wales’ - turns thirty this year, Family Law Partner Fiona Turner reflects on the progress made, but stresses there is still some way to go...
When the Children Act 1989 was introduced, it was a revolutionary piece of legislation which in large part, led to my desire to be a family lawyer. It genuinely sought to achieve what I, then an undergraduate, wanted the law to achieve - targeted legal principles which put a child's welfare - and their voice - at the heart of family breakdown. This was coupled with mechanisms for families to self-determine their future after separation, whilst providing support and clarity for those who needed an outcome determined by a Judge.
The Act also provided a framework for families with children in care - then around 40,000. This article does not address 'public law' issues, save to note that the landscape for the courts, and local authorities, social workers and families, has vastly changed. By 2018 the number of children in care has almost doubled to 70,000, at a time when austerity has severely hit the public services designed to support children and families - the court service and social care.
The Act was also of such magnitude and importance that it was the beneficiary of cross-party political support to get it onto our statute books, coming into force in October 1991. Collaboration for the greater good that perhaps we could all aspire to in these days.
Why was the Act needed?
Before the Act there was a patchwork of legislation governing child law and services. It unified the legislation under one umbrella with a firm set of underlying principles.
The key principles introduced by the Act are:
Putting children first: previous legislation centred on parental 'rights' to custody and access. The Act put the individual child and their well being first, front and central to all decisions. This is known as the 'welfare principle' and is the court's paramount concern. It is enshrined in Section 1.
The legislation gives us a comprehensive checklist of matters that must be considered when assessing the welfare of a child.
S1 (5) says "a court shall have regard in particular to:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- his physical, emotional and educational needs;
- the likely effect on him of any change in his circumstances;
- his age, sex, background and any characteristics of his which the court considers relevant;
- any harm which he has suffered or is at risk of suffering;
- how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
- the range of powers available to the court under this Act in the proceedings in question.
The court applies this 'checklist' in every case.
No Delay: it was recognised that children disputes need a swift outcome and that delay is likely to be prejudicial to the welfare of a child.
Parental responsibility: as it says on the tin, a parent exercises responsibility - not rights - towards a child and decisions should be made by those holding parental responsibility if at all possible.
This then leads us to the:
'No Order' principle: instead of requiring an order in every case, as had been the situation prior to the Act resulting in custody and access orders, no order would be made or needed unless making an order was the better option for the child. Why should co-operating parents need a third party state run organisation i.e. a court, give them a label when things were actually ok?
However, a framework then was put in place to help those families who were unable to resolve their issues.
Change of focus and terminology
The principles gave rise to changes in terminology moving from possession focused 'custody' to what were then termed 'residence' and 'contact', and which we now call 'child arrangements'.
As such, we were given what is still - after 30 years - a relevant, forward thinking, piece of legislation focused firmly on child-led solutions. It appears to have stood the test of time, as we see no clamour for reform.
Unfortunately, on the ground, things are different. As mentioned above, changing times, society, economics and priorities have all contributed to putting the court system and children’s services (including CAFCASS) under immense pressure.
Importantly, in 2012 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) brought about legal aid cuts for family law cases. Figures, obtained through parliamentary question, show that the proportion of applicants going to court without legal representation surged from one in five in 2011 to almost half of all cases in 2017.
Unrepresented litigants result in longer court hearings, more judicial input, errors due to lack of knowledge of the law or procedure - and so delay – the kind which the Act had sought to avoid.
The legal aid cuts coincided with a programme for court closures, starting in 2010. The number of employed court staff has reduced from almost 20,000 in 2010, to just over 14,000 in 2017. The number of magistrates has been cut by almost 50%.
Austerity measures have also led to the Children and Family Court Advisory and Support Service, CAFCASS, cutting their staff numbers.
As such, a lot of the widespread frustration with the current system stems not from the legal framework introduced by the Act but because the support and resources needed to achieve the vision simply are not there.
What can family justice professionals do?
As a profession, we are doing what we can to try to improve the system for families.
We encourage families to consider family law mediation, which is now a requirement for all but the most urgent cases brought in the family court. Some, limited, legal aid is still available for mediation.
Mediation is a process where parties meet a neutral mediator, who helps them in a supported conversation to explore options to resolve their differences.
Weightmans has also introduced collaborative legal practice. Collaborative law is a process where parties - and just as importantly their lawyers - sign out of the court process and commit to channelling efforts to reach a negotiated outcome.
Family law arbitration has also been extended to many children disputes to alleviate court pressures. Here parties agree to fund a privately paid arbitrator, rather than a state funded judge, to determine their case.
But all of the above are options for the few, not the many. Legal costs are not affordable by all.
Parents and those of us working in the family law arena need to remember and embrace the principles introduced by the Children Act 30 years ago.
Welfare Principle: We must all adopt a 'child first' focus, which is a timely reminder at this time of year as Christmas approaches, clearly a difficult time for many separated families.
We must put the children's welfare first and think about the medium and longer term implications for a child, as well as short term worries and concerns.
No Delay Principle: we must explore all options. Parents, take early, and expert, legal advice - don't delay. Children disputes can be complex and need careful guidance.
No Order Principle: remain flexible in your position, not entrenched. Try to resolve parenting issues together if it is possible.
And so a happy birthday to the Children Act 1989 - as much needed now as it was three decades ago.