Happy birthday to a difficult balancing Act

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Kevin Williams, our chief executive, reflects on 30 years of the Children Act.

Legislation (or lack of it) has been in the news a lot recently – not always with good press. 30 years ago this week, however, a piece of legislation was being enacted which has had an impact on hundreds of thousands of people’s lives. The Children Act 1989 was a momentous act which marked a step change in the advancement of children’s rights in England and Wales, bringing together previous piecemeal legislation and modernising it to reflect practice. 

As we wish the Children Act happy birthday, I have been asking myself whether the Act is still fit for purpose and what, if anything, from a fostering perspective might need to change if a new act was to be proposed.  

To answer my first question – I think it’s fair to say that despite criticism which has come the Act’s way it is still very much a vital plank in children’s safeguarding and one which we would do well to protect and cherish. The Act was a comprehensive piece of legislation which has undoubtedly done much to raise the profile of children’s rights and the requirement to ensure that children have a say in their own care. For the first time, children and young people were seen to have their own rights and responsibilities, children’s welfare was placed at the centre of courts’ consideration, and there was a clear recognition that any delay in resolving matters would not be in the best interest of the child (indeed, even that phrase ‘best interest of the child’ has much to thank the Children Act for). 

Holding perspectives in tension

So, the Act was ground-breaking and sector changing – hence the fact that it took two years between passing the law and implementing it. That isn’t to say, however, that there aren’t challenges with the Act, not least when it comes to balancing the various perspectives the Act was seeking to bring together. At the time of the Act’s implementation, political scientist Lorraine Fox Harding identified four different perspectives within the Act which would need to be properly balanced: laissez-faire and patriarchy, state paternalism and child protection, the defence of the birth family and parents’ rights, and children’s rights and child liberation. Over time, which of these perspectives has held sway has varied, but it’s always it is the role of all professionals working within the scope of the Act to manage the contradictions in its perspectives. To do this everyone must be clear about what they want to achieve and to challenge the systems and processes, and the bureaucracy that can often hinder good outcomes. Any legislative change must be followed by cultural change, and despite the Act being 30 years old there is still a need for a greater understanding that children and young people can and do achieve with the right support and the state needs to use its sharp elbows to advocate for its charges in a way that pushy parents do.

So, the Act isn’t perfect – but it was and is a wonderful change in the law. Over the course of 30 years society, children’s social care and fostering in particular has changed significantly meaning that there are many things that I might think about adding if there were to be a Children Act 2019. Here are just three:

The importance of relationships

Firstly, I’d call for a legal recognition of the importance of relationships within foster care and decisions being made on the basis of these relationships rather than purely on process. Relationships are the golden thread that runs through children’s lives. A support network of people who know a child well helps them to feel loved, develop a strong sense of self and maintain healthy relationships in the future. This is particularly important for children in care who may have faced instability in every aspect of their lives. It is essential that, if they then move within or out of the care system, they do not lose touch with the people they love and trust. 

The Fostering Network’s Keep Connected campaign was launched in response to the fact that care experienced young people are still losing touch with the people that matter to them when it is not in their best interests. There may be times when it is not appropriate for a child to keep in contact with their previous foster families or others, but these will be the exception rather than the rule. As well as a culture shift to ensure that the starting position in any transition planning is for ongoing contact, we need a stronger legal backing for the maintenance of relationships. 

This legal backing should also include a duty to prioritise keeping siblings together in care, or when it is actively decided that keeping them together is not in their best interests, to prioritise enabling them to maintain contact. This will, of course, require the recruitment of more foster carers who are able to look after groups of brothers and sisters, and it may also need a change in planning away from individual case work planning to planning more for family groups.

The lifelong impact of care

Secondly, there needs to be an understanding of the lifelong impact of care. Currently state intervention in the life of a care experienced young person ends arbitrarily at 16, 18, 25… However, that is not the reality for most young people whose emotional, practical and financial relationship with their parents continues well into, often decades into, adulthood. Without labelling or pathologising those with care experience, we need to recognise that they may well have extra needs throughout life and there ought to be a commitment, a covenant,  from the state to meeting those needs whenever they become apparent.

A better recognition of foster carers

Thirdly, given the rise in the number of children living with foster carers over the last three decades (there are roughly 65,000 children living with 55,000 foster families every day across the UK – that’s three-quarters of children in care), I’d like to see the role of foster carers be legally recognised with the Act. In particular, I’d like delegated authority to be given higher prominence, recognising the skills and expertise of foster carers and acknowledging that they often know the children in their care best and are therefore best place to make day-to-day decisions about their care. I would also call for foster carers to be able to better challenge the system, in particular they should have the right to whistleblow when they see wrongdoing (in the same way that others do through the Public Interest Disclosure Act 1998).

30 years is a long time in society. In 1989 the Bangles were singing about Eternal Flames,  the Karate Kid was on a the cinema and Daniel Radcliffe was born. All things worth noting, but let’s raise a toast to the Children Act. Tens of thousands of children and young people have benefited from it – and continue to do so. But let’s not rest on our laurels and keep pushing for continued improvements to legislation on behalf of the children and young people in our care.