【別添英文２】
LOOKING BACK IN ORDER TO LOOK FORWARD
Lecture delivered by Baroness Hale of Richmond at The Honourable Society of Lincoln’s Inn on Thursday 27th March 2025, in celebration of Family Rights Group’s 50th anniversary.
Lady Hale retired as President of the Supreme Court of the United Kingdom in January 2020, after a varied career, first as an academic lawyer at the University of Manchester (also qualifying and practising for a while as a barrister in Manchester), then as the first woman member of the Law Commission (where she led the team responsible for the Children Act 1989), and finally as a Judge in the Family Division of the High Court, the Court of Appeal, the House of Lords and the Supreme Court. She has taken part in many notable cases, especially in Family Law, but most famously the ‘prorogation case’ in September 2019. Her memoir, Spider Woman, A Life, was published in 2021.
We are here to celebrate the 50th birthday of the Family Rights Group. A little bit late, because it was founded in 1974, as an offshoot of the Child Poverty Action Group, both charities whose work is as important now as it was when they began in the 1970s. It was inspired by the case of a mother who asked the local authority for help with her child and found the child taken away from her under a place of safety order and had to go to the Court of Appeal to get the child back. Over the years, FRG has been served by some remarkable people – not least its founder Jo Tunnard, its long-term legal adviser Mary Ryan and its current Director Cathy Ashley. But I must mention two women who have made such an important contribution to the work of FRG but are sadly no longer with us.
Bridget Lindley joined in 1988, having fled from the billable hours culture of private practice after only one day, and stayed until her untimely death in 2016. She was a brilliant lawyer, wholly devoted to the values expressed in the Universal Declaration of Human Rights and to the rights of children and families in particular. She could do both case work and policy work. She counselled thousands of families over the FRG advice line, but she was also instrumental in the Review of Adoption Law and, in particular, its recommendation for special guardianship. She saw the need for something between the total transplant from one family to another entailed in adoption and the comparative insecurity of a residence order (as it then was). Once implemented in the Adoption and Children Act 2002, she threw herself into making it work, consulting with family members, carers, parents and children on what they needed, developing advice and information for them and training materials for practitioners. She co-edited the FRG Reader – Special Guardianship: what does it offer children who cannot live with their parents? She did not see the rights of children and the rights of families as polar opposites – family rights are important because families are important to children. That’s what FRG is all about.
More recently we have lost Katherine Gieve, another brilliant family lawyer with a strong social conscience. She joined FRG as a locum during Mary Ryan’s maternity leave and remained involved as a trustee after she left to join Bindman’s, a prominent London Law firm also with a strong social conscience. There she built a very successful Family Law practice, generally championing the rights of women, children and their families, along with many other good works. Her values, too, were very much the values which have inspired the work of FRG over its fifty years.
It is worth remembering what the law was like when FRG was founded.
1. The focus of children’s services was on taking children away from their families, whether voluntarily or compulsorily. If children were voluntarily placed by their parents in local authority care and stayed there for six months, they were unlikely ever to come home. But little was being done, either to find a permanent long-term home for them or to make it possible for them to return to their families. There was only a very rudimentary duty to provide services which might prevent children coming into care in the first place.
2. Local authorities could assume parental rights over the children in their so-called “voluntary care” simply by the councillors passing a resolution to do so, without consulting or involving the parents or the family at all. Some councils considered each case individually. Some – including Manchester – simply did it in bulk without individual consideration. The parents’ right to challenge this pre-emptive strike in a juvenile court was not much use.
3. Care proceedings in the local juvenile courts were modelled on criminal proceedings against a juvenile delinquent. So the child was a party to the proceedings but the parents were not. They were not entitled to take part or to qualify for legal aid. It was assumed that they would represent their child, but their interests might be very different, as the tragedy of Maria Colwell showed.
4. The High Court in wardship proceedings and the county courts in divorce proceedings were also given power to place children in local authority care, but on much vaguer grounds. So there were different courts, with different grounds and different procedures, all with the power compulsorily to remove children from their families.
5. Local authorities had no obligation to consult the child or the family about their decisions, for example, as to where the child should be placed, or whether to keep the child in touch with her family. There was no obligation to arrange contact between the children and their parents or between children and their siblings. There was no way of challenging even the total refusal of all contact between them, until a limited right was introduced in the 1980s.
6. Wider family members, such as grandparents, aunts and uncles, grown-up siblings, had no part to play in all of this. They were not consulted, had very little opportunity to make their voices heard, and were generally thought to be part of the problem rather than part of the solution. It was Family Rights Group which recognised the plight of grandparents (such as Angela and Rod Price who are here tonight) among the people who consulted them, which led to the setting up of the Grandparents’ Federation.
FRG played a vital part in changing the law. They, along with others, got the House of Commons Social Services Committee interested in children in care. The Committee recommended a comprehensive review of the law in 1984, just after I joined the Law Commission. The Department of Health and Social Security (as it then was) wanted to do this but didn’t have the resources. So the Law Commission collaborated in the review, which eventually led to the Children Act 1989.
Throughout this time, the headlines had been screaming in two directions. There were terrible scandals, such as those of Maria Colwell, Jasmine Beckford, Kimberley Carlile and Tyra Henry, where vulnerable children had been returned to or left at home to die at the hands of their parents or, more often, their parents’ partners. Social workers were not doing enough to protect them. This was not a climate in which it was easy to argue that children were members of families, that the whole family was important to them and that the family might be a valuable resource in providing the care which for whatever reason the parents could not provide.
Then, perhaps fortunately from this point of view, along came the Cleveland Child Abuse scandal. This showed that social workers and other professionals could sometimes be over-enthusiastic in taking children away from their families and pointed up all the weaknesses in the legal position, including that children could be removed without notice to a place of safety and kept there for up to 28 days with nothing that they or the parents could do to challenge it. The European Court of Human Rights had also contributed some important decisions emphasising the need for procedural safeguards when interfering in family life. The climate swung in favour of law reform. We were able to benefit from the unique access to Parliamentary drafters enjoyed by the Law Commission to produce a model Bill to bring all the different strands together into a coherent system.
Fighting the families’ corner throughout all this turmoil was the Family Rights Group. They were not naïve or unrealistic. They knew that some children had to be removed from their families and that some of those needed new families to replace them. But they also knew that the link between family problems and family poverty was still strong. They knew what was wrong with the law and with some of the practice. They provided a strong and informed voice which was a huge help in bringing about the reform of the law.
The Children Act changed all six of the things that were wrong with the law when FRG began. Hopefully for the better. It was accompanied by massive training programmes for all involved and by volumes of guidance and regulations. The emphasis now was on partnership with families – partnership in providing for need, in preventing harm, and in providing solutions for children. An important feature was bringing together all the social care services for children – not only for children in need or at risk of harm but also children with disabilities who needed social services’ help. This was part of reducing the focus on child protection and increasing the focus on helping families who needed it.
I happen to think that we got the law right and that the Children Act still provides the best legal framework for the care and upbringing of children. That doesn’t mean to say that we always get the decisions right. For example, I remain really worried about taking children away from their parents – their mothers – at birth on the basis not that they have suffered significant harm but that they may do so in future. In the case of Re B in the Supreme Court (Re B (a child) (care proceedings: appeal [2013] UKSC 33, [2013] 1 WLR 1911), the mother had managed to escape from a deeply abusive relationship with her stepfather which was a classic example of coercive control. They had a child together who was the subject of court proceedings. The mother had a record of multiple doctors’ and hospital consultations for which no very clear cause could be found. So there was talk of somatisation disorder – then called Munchausen’s syndrome. She had formed a new relationship with the father who had a non-trivial criminal record. They had a baby girl. The baby was removed soon after birth because of the allegations flying about in the proceedings about her older child. The parents diligently attended contact and had built a good relationship with their baby daughter. The judge held that the future risk of significant harm was crossed – though not by much. We were talking here of a very uncertain risk of future psychological or behavioural harm. But because the parents were reluctant to co-operate with the authorities, he held that the only solution was adoption. As Lord Justice Rix said in the Court of Appeal:
‘I . . . wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk.’
I was unable to persuade my colleagues that we should interfere in the conclusions of the trial judge – no doubt understandably – but I remain deeply troubled by the case and others like it where women who are the victims of abuse seem to end up losing their children.
We all know that it is not enough to get the legal principles right, as I believe that we did in the Children Act 1989. Legislating is comparatively easy. Putting its principles into practice is much harder. We have to change hearts and minds. We have to be prepared to put our money where our mouth is. There has been no shortage of attempts to do this since the Act came into force but they have so often been de-railed by events – ‘events, dear boy, events’ as Harold MacMillan is famously alleged to have said.
There continued to be tragic failures of child protection as a result of which children died horrible deaths. The torture and murder of Victoria Climbie in 2000 led to a very serious public enquiry, conducted by Lord Laming, and an equally serious report published in 2003. He concluded that there was little or nothing wrong with the law, but that there was sloppy practice, poor management, and inadequate senior accountability in all the agencies which had had contact with her and the opportunity to prevent her death. Not only the Social Services Departments in four different London Boroughs, but also the health services and the police. He made a series of serious recommendations for improving practice, management and accountability.
Then in August 2007 came the death of 17-month-old Baby P, Peter Connolly, found dead in his cot after months of cruelty from his mother, her boyfriend and her boyfriend’s brother. Ed Balls, Secretary of State for Children, Schools and Families, asked Lord Laming to do a follow-up report. The Protection of Children in England: A Progress Report, published in March 2009, was another serious piece of work. It paid tribute to what had been done since the first report – such as the guidance in Every Child Matters, and Working Together to Safeguard Children, and the practical measures to help families, such as Sure Start Centres. Once again, he produced some sensible recommendations aimed at improving the accountability of senior managers in all the public services involved, at recognising the importance of early intervention, and (ironically) ‘ensuring the confidence and well-being of the staff who undertake such an important task on behalf of us all’.
I say ‘ironically’ because this last most certainly did not happen. A serious case review, published in 2010, found that Baby P’s death could and should have been prevented. He’d been seen 60 times by social workers, doctors and the police in the eight months before his death. They were all ‘well-motivated’ but their practice was ‘completely inadequate’. This applied to all three services, police, health and social care, but the politicians and media chose to focus on social care. David Cameron, then leader of the opposition, painted the death as a failure of the Labour government. The Sun newspaper waged a campaign calling for the social workers and their Director, Sharon Shoesmith, to be sacked. Ed Balls duly responded by ordering that Shoesmith be sacked live on TV. Her sacking was later declared unlawful in judicial review proceedings but by then the damage was done, not only to her personally but also to child protection generally.
Referrals came flooding in and child protection services were not only overwhelmed but understandably risk averse. More and more care proceedings were brought and more and more children ended up in care. In March 2008, there were 60,000 children being looked after by local authorities, 37,000 of them the subject of care orders. In March 2024, there were 83,650 children being looked after, 75% of them on care orders. This was due to a number of factors – not just the Baby P effect but also the Rochdale effect – much greater awareness of the risk of harm to teenagers from sources outside the home, not only sexual exploitation but also county lines and other threats with which families felt powerless to cope. And these were times of austerity following the change of government in 2010. The introduction of the benefit cap, together with the two-child rule, increased the numbers of children living in poverty, itself a potent cause of families needing help. And over 7,000 of looked after children were unaccompanied asylum seekers.
Obviously, the increase in referrals and in care proceedings put a strain on local government’s resources. They were also stretched because of the increasing practice of outsourcing the placement of looked after children – whether to fostering agencies or residential care providers. The profits these agencies and providers could make were eye-watering.
All of this meant that there was more and more focus on child protection and care proceedings and less and less focus on helping struggling families so as to avoid having to separate them. Sure Start Centres were closed down, for example, as were other sources of early help. Care proceedings were taking longer and longer – so much so that the Children and Families Act 2014 legislated to try to keep them to 26 weeks – half a year. It only succeeded in doing so for four years – another good example of how legislation does not solve problems which have much deeper causes.
FRG were not idle during this period. In 1994, they had introduced family group conferences as a way of working out whether and how the family could step in if parents were in trouble. In 2002, they had been influential in the introduction of special guardianship. And in 2017 they instigated the Care Crisis Review to explore the reasons why so many children were becoming subject to care orders – inspired by Sir James Munby, President of the Family Division’s, words: ‘We are facing a crisis and, truth be told, we have no very clear strategy for meeting the crisis’ – and led by the sector, described as a ‘coalition of the willing’. A number of overlapping factors had led to the crisis. The Review proposed 20 options for change – with the broad aims of moving away from the ‘culture of blame, shame and fear’, from the over-reliance on processes and targets, towards a focus on achieving the right outcomes for each individual child, helping families to understand the professionals’ concerns and find solutions for them.
Then along came the Independent Review of Children’s Social Care, led by Josh McAlister, in 2022. This is a really approachable document, easy to read and full of good things from the FRG point of view. Families who need help should receive more responsive, respectful and effective support. There should be multidisciplinary Family Help Teams based in community settings. If there are concerns about significant harm to a child, an ‘Expert Child Protection Practitioner’ should work alongside the Family Help Team. These would be specially qualified practitioners, similar to the Approved Mental Health Professionals who deal with mentally disordered people. Parents should have representation and support to help them navigate the child protection process. Before placing children in the care system, more should be done to bring wider family members and friends into decision-making. Families should be invited to come up with a family-led plan to care for the child or children. Special guardians and kinship carers should receive a statutory financial allowance, legal aid and statutory kinship leave. Providing care for children should not be based on profit. Local authorities need help to take back control of the system through new Regional Care Cooperatives. Foster parents should have support and training but then be trusted to make day to day decisions about the children they are looking after. Children should have a powerful voice in the decisions which affect them. Care experienced children should have loving relationships, quality education, a decent home, fulfilling work and good health.
A lot of this has been taken up in the current Children’s Wellbeing and Schools Bill. Frankly, most of it did not require a change in the law but a change in attitudes and practices and the allocation of resources. FRG has some minor criticisms of the Bill which we may be able to take up in the Lords, but basically it is welcome. I especially welcome the powers to prevent outsourcing agencies making excess profits. I don’t think that anyone should make a profit out of looking after vulnerable children.
But there was something in Josh McAllister’s Report which I find more troubling. He recommended that the Law Commission should carry out a review of disabled children’s social care law – to remedy the ‘patchwork of duties’ owed to disabled children, as well as outdated definitions, poor alignment with adult social care and the difficulties families have in understanding what support they are entitled to. So the Law Commission has done this. It has produced a massive Consultation Paper (CP 265). Consultation closed in January. Basically, it wants to take disabled children out of the Children Act and devise a new system for them. This might involve mandatory assessment and mandatory provision of services.
I happen to think that this is this wrong approach. It assumes that disabled children are more deserving of help than other children in need. It assumes that they should be legally entitled to the help they need whereas other children in need are not. It assumes that the difficulties faced by families with disabled children in understanding the system and coping with the many different sources of help available to them are worse than the difficulties faced by many other families with children in need. I don’t underestimate those difficulties but I think they apply to all families trying to navigate a complicated system. I think that taking disabled children out of the Children Act will serve to emphasise safeguarding those who are left over providing help for families who need it. I think that giving disabled children a legal right to services would discriminate against other children whose needs are just as great but who don’t happen to be disabled. Why don’t we give them all a legal right to services rather than the so-called ‘target duties’ in the 1989 Act?
So what are the lessons for the future which we can learn from the past?
1. Getting the law right is necessary but only a very small part of what is necessary.
2. Much more necessary is providing the right services for families who are having difficulties in raising their children – for whatever reason.
3. We should start from the assumption that the family is the place where those difficulties can be solved – with the right help and support.
4. That help and support should come, not only from health, social and educational services but also from the benefits system – tackling child poverty is an important part of child protection.
5. Understanding domestic abuse is another important part of child protection – loving mothers should not be losing their children because of domestic abuse unless there is no other possible solution.
6. Identifying the need for intervention to protect children from abuse and neglect is an expert task requiring highly skilled and experienced professionals whose expertise should be properly recognised and rewarded.
7. The role of the courts is to scrutinise cases with care and fairness to all concerned, recognising that courts can take risks which social workers cannot.
8. Parents and the wider family should be respected and helped to engage fully with the process – providing solutions as well as problems.
9. There is still work to be done in improving the lot of kinship carers – who face the lack or loss of financial support and difficulties convincing the authorities and other third parties of their status.
Above all, children need families and so we all need the Family Rights Group – as much now as we did fifty years ago.
