This year marks the 30th anniversary of the Children Act 1989, a watershed moment in the advancement of children’s rights in England and Wales. Here, NYAS founder and trustee, Judith Timms OBE, considers what the Act meant to NYAS and how, 30 years after becoming law, it still influences and informs the Children’s Rights based services which NYAS delivers every day.
Children and young people involved in public and private law proceedings in England and Wales had only limited protections before the Children Act 1989 was implemented in October 1991. The Act overhauled the patchwork of old, new and reconstituted legislation that previously provided the framework for childcare law and practice. For the first time it amalgamated public and private law in one statute, ushering in a new culture in relation to children’s welfare. Traditionally, parents were seen to have rights over their children, but the Act reversed this assumption by stating that children had free standing rights and that parents had responsibilities to ensure that these rights were respected and upheld. To reinforce this message, the Act introduced a welfare checklist of factors to be taken into account by both courts and local authorities.
In particular, the welfare checklist required local authorities not only to ascertain the wishes and feelings of the child, but also to give due consideration to those wishes and feelings bearing in mind the child’s age and level of understanding. In other words, it gave children a voice and a chance to be heard and to have an influence on far reaching decisions that would have a profound effect on their lives.
NYAS exists to ensure that children and young people are aware of their right to be consulted and to be represented and then to amplify their voices. All NYAS services are formulated around the child-centred principles set out in the Children Act 1989 and in the United Nations Convention on the Rights of the Child (UNCRC), in particular Article 12. This states that children should be consulted when decisions are being made about their future both in and out of court and that they should be allowed to express those views, if necessary being provided with an independent representative to assist them.
As the Director, I was actively involved in lobbying for change and the Children Act 1989 was seen as a very significant opportunity to bring it about. We had pioneered the independent representation for children in care proceedings and, alongside others in the charitable sector, we campaigned hard for improvement, briefing members of both Houses of Parliament to help drive the legislative agenda forward. I was particularly involved in two key areas of child care law and practice.
The first was the expansion and enhancement of the role of ‘guardians ad litem’, who were appointed by local authorities to provide the independent representation of children and their interests and help courts to establish the best outcome for children involved in care and related proceedings. Under the Act, guardians were to be appointed more often in a wider range of proceedings. This was a very welcome development and I became a member of the National Steering Committee that set up the National Association of Guardians ad Litem and Reporting Officers in 1990. I was also commissioned by the Department of Health to write The Manual of Practice Guidance for Guardians ad Litem and Reporting Officers (HMSO, 1992) that was distributed to all guardians.
Between 1993 and 1997, we provided training to over 60 panels of Guardians in England and Wales in a series of Practice in Progress annual roadshows, again commissioned by the Department of Health. Today, children’s guardians operate within a national structure provided by Cafcass.
The second key area of change for which we lobbied was for the establishment of representations and complaints procedures for looked after children. This meant that for the first time looked after children could challenge decisions being taken about their care. A series of inquiries into the abuse of children in residential care had highlighted their extreme isolation and vulnerability. Many children suffered and still suffer multiple moves and changes of placement, sometimes miles away from family and friends for reasons which may have nothing to do with their future welfare. The raft of detailed Children Act regulations strengthened the position of the child and put in place comparatively simple provisions designed to empower the child to whistle blow if things were going wrong. As one small but telling example, before the Children Act, children had no access to a telephone or the right to make an outside call which could bring help. In 1989 we (in collaboration with Voice for the Child in Care (VCC) working on the Complaints procedure) had pioneered the introduction of an independent advocacy service to help looked after children access a complaints procedure in all NCH (now Action for Children) Children’s Homes in the North of England. This involved us setting up a HelpLine linked to a network of our first group of trained and experienced independent advocates. That HelpLine continues to operate today, serving the whole of England and Wales.
In 1989, we were not able to persuade the Government to include the provision of a statutory right to independent advocacy services alongside the new complaints procedures. Nevertheless, the introduction of complaints procedures in the Children Act undoubtedly provided the catalyst for the development of NYAS’s extensive independent advocacy services.
At NYAS, our independent advocates have helped many thousands of children and young people to make formal complaints and raise objections to decisions that are being made by local authorities about their futures. Underpinned by the provisions of the Children Act 1989, the complaints process has empowered looked after children and young people, but they are not always aware of their rights or how to go about making effective complaints. Access to help from independent advocates can make all the difference and, at NYAS, we want every looked after child and young person to know how to access our help. One of our key aims is to raise awareness of children’s rights to be consulted and to participate in decision making.
NYAS went on to pioneer the representation of children in high conflict private law cases in which children may have their childhood punctuated by repeated and extremely distressing court hearings brought by parents disputing residence and contact arrangements. In 2000, we became the first children’s charity to obtain its own legal aid franchise and to employ its own in-house children’s panel solicitor. NYAS is the only organisation apart from Cafcass that is authorised to represent children in private law proceedings under the provisions of the Family Proceedings Rules. Amplifying the voice of children amidst the noise of the parental dispute can often have quite dramatic results in helping both parents to agree to give ground and put their children’s best interests first. We help young people to make applications to the family courts to have contact with valued family members – often siblings. The legislation is there to enable this to happen, but few young people are aware of it and even fewer still would be able to access it without the aid of powerful advocacy and independent legal representation.
The Children Act 1989 was and is a comprehensive piece of children’s rights-based legislation. It has been amended and augmented over the last thirty years, but its progressive provisions provide both a framework for the development of children’s rights-based services and a yardstick of core child-centred principles against which local authority decision making in individual children’s cases may be measured and if necessary challenged. Sadly, the resources necessary to provide the full range of preventive and family support services envisaged by the Act have never been forthcoming.
Like the Children Act 1989, NYAS has stood the test of time. We played a part in helping to bring about change in 1989 and we intend to continue to push for more positive changes around children’s rights in the years to come.
