Section 2: The laws

The Children Act 1989 is the crucial law defining the relationship between families and the state.   It says that the welfare of the child is paramount and sets out a ’welfare check list’ of what must be taken into account. You can get the full list here [8]

The following are only some of the issues that must be considered:

 (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

The Adoption & Children Act 2002 [9] amended the definition of significant harm to include ‘impairment suffered from seeing or hearing the ill-treatment of another so a child who witnessed domestic abuse is considered to be at risk. This gives the state the power to take the child from a mother whose partner is violent, (who may or may not be the child’s father), regardless of the mother’s efforts to protect herself and the child. It punishes mothers and children for the crimes of violent men.   This Act also introduced Special Guardianship and Special Guardianship Orders. 

The Children Act 2004 further expanded the powers of the state, charging social services with having “regard to the need to safeguard and promote the welfare of children” [10], not just those assumed to be at risk but all children and families. Not only social services but virtually all professionals who come into contact with children are under an obligation, and therefore have power, to intervene in private family life. They are expected to report any concerns which they might (rightly or wrongly) have, based on their own belief rather than any objective evidence [11].  

The Legal Aid Sentencing and Punishment of Offenders Act 2012 abolished legal aid for private law family cases following a relationship break up (i.e. disputes between parents about finances and who the children should live with). Only victims of domestic violence are still eligible for legal aid (see Section 13).

The Care Act 2014 introduced a statutory requirement for adult social services to check whether a disabled person has parenting responsibilities for a child under 18. They must explore parenting and child related issues as set out in the Practice Guidance for the assessment of “children in need” and their families. This provision is supposed to enable disabled mothers to get the support and assistance they need to take care of their children.

The Children and Families Act 2014 introduced a statutory requirement for parents who are separating to attend mediation (unless they are exempt), and cut the use of independent experts except in exceptional circumstances. This has allowed the court to deny expert evidence in breastfeeding, attachment and child development, so social workers are often relied on to comment on issues they are not even trained for. It also enshrined in law the ‘presumption of contact’, which presumes that both parents should continue to be involved with the child after separation. [12] Most mothers want the father to remain involved with the children, and often go the extra mile despite great obstacles to enable this. But the fact remains that in most families mothers are the primary carer and protector, and fathers who are violent or abusive often use this presumption of contact with the children as a way of continuing to exert control over their ex-partners and children.

The 2014 Act also imposed targets for faster adoptions and a 26 week turn around for family court cases. The UK already adopts more children against the wishes of their birth parents than any other European country [13]. Adoption means the end of a child’s contact with their biological family, at least until they reach 18. The courts have ruled that it should be the “last resort” but for many local authorities it is the ‘gold standard’ of child protection

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