SAVING THE CHILDREN
Patricia Morgan argues that
social planning has failed to stop child abuse
WHEN the Government meets the dam- ages and costs imposed last week at Stras- bourg for violating parents' rights and family life, it will again be paying for Anthony Crosland and Roy Jenkin's dream of restructuring society from the DHSS powerhouse at the Elephant and castle. The so-called 'care jurisdiction' was a means to that end, with social workers as the 'experts in living', whose onslaught on all 'unmet need' was 'science in the service of the community' and a form of positive discrimination.
However, it is not the first time in history that attempts to enforce such 'posi- tive discrimination' have served only to demonstrate that law is a beneficial institu- tion in a free society only when people may plan their conduct with some assurance that they can avoid tangling with it. Those who have had children taken from them and others who have had to stand by while infants are tortured and killed are angry and bewildered at the capriciousness of procedures which seem unable to protect children manifestly at risk of their lives but at the same time expose families to a disturbing degree of interference.
It is commonplace to find social workers presented as the unenviable targets of the public's inherently contradictory demands for child protection and parental freedom. They are wrong when they take children away from home and wrong when they do not.
The bewildering maze of legislation re- lating to care and similar orders spreads over three courts and elected, but quite non-judicial, local authority social services departments. The place of safety order (PS0), which often brings children into the system as it did in Middlesborough, is obtainable with the signature of one pocket JP, waylaid at home, work or leisure. Applications are rarely refused. Reasons do not have to be justified and informa- tion, which may be rumour or hearsay, does not have to be substantiated. There is no appeal and parents can be denied all access to their child for the 28 days. The PSO may be followed by one, or a series, of interim care orders, granted with more or less ease by the juvenile court working closely with the social services.
Ostensibly to help young children in immediate danger, two-thirds of PSOs do not lead to a care order, which itself suggests over-use. Certainly, parental con- fidence and authority may be severely shaken, and the covert intention in some cases appears to be to deliver a 'short, sharp shock' to those who, it is felt, have inappropriate lifestyles or child-rearing practices (where, for example, adolescents do not have 'enough freedom').
The criteria for PS0s, care orders and resolutions for assuming parental rights over those placed voluntarily in care, are so vaguely and comprehensively defined so as to bring within their orbit strikingly broad areas of human behaviour. The law refers variously to 'care, protection and guidance as a good parent may reasonably be expected to give'; to a child's 'proper development being avoidably prevented or neglected' and, in Scotland, to the need for 'compulsory measures of care'. In both civil and criminal cases (where juvenile courts equate the depraved with the dep- rived), there is the overall directive to serve 'best interests'. This is incapable of precise formulation.
The overall result is that the scale of intervention in families varies with the beliefs, information and resources avail- able, rather than actual levels of child abuse, neglect or delinquency. The elementary security of children and parents is at the mercy of, for example, whatever popular, but usually unsubstantiated theories, happen to be fashionable and which danger facing the young is of topical concern. Moreover, services once run pri- vately by separate agencies (e.g. child minding or geriatric care), are now the province of social services, with whom expanded medical and other welfare bodies work in conjunction and share their data. These tie-ups have both laudable aims like the improvement of child health and their dangers. When Lancaster Uni- versity asked why some petty delinquents ended up in long-term care, they found any family contact with the social services Prior to the offence resulted in a greater chance of institutionalisation, since it was totted up in the symptom scale. For years, the doctrines of John Bowlby — that separation of a child from its mother, however awful, led to a fate worse than death of 'psychic' or 'hidden' damage — provided a rock upon which 'good social work practice' stood. The outcry over Maria Colwell broke this spell. But, the erroneous notion persists that there must be some kind of scientifically knowable blueprint about the tights and wrongs of child care which the social services might implement. However, in reality, there is nothing which raises the prescriptions and Judgments of social workers above those of the ordinary man, or their claim to special- ist knowledge above standards of common morality.
As it is essential for the rule of law to protect people from the arbitrary coercion of their fellows and the powers that be, then the shift should be from executive discretion to legality not from children's to parents' rights or vice versa. In this, the law should have more clearly defined targets and a narrow, specific focus on conduct which has identifiable criteria. Thus, notions of 'best interests' should be abandoned in favour of a presumption of Parental autonomy except where there is some specific harm, neglect, rejection, or the severance of the parent-child tie. The Protection of rights as well as individual safety requires that, with any reform of the care law, power should reside with a Proper judicial structure. Unfortunately, wardship procedures in the High Court have been eclipsed by the care system, where there is much to be said for reversing this state of affairs. Wardship Proceedings maintain strict legal form While being akin to an inquiry, where Parents have always had full legal status and the relevant issues are fully known before a hearing. The Judge may interview Parties in chambers and the Official Solici- tor, as well as being guardian and solicitor to the ward, has responsibilities which go beyond the conduct of proceedings. He may carry out an independent investigation of the case with a view to preparing a report for the court, for which independent medical and other evidence may be Obtained . If a child is made a ward of the court, then parental rights are invested in that court, which may delegate the child's care to a particular individual or authority (including social services). But the court reviews the order as it wishes and can give mandatory or prohibitive instructions to protect the child's welfare. In an emergency, there is much to be said for removing a child from his parents for a shorter time, and on the basis of a judge's warrant, after a prima facie case for action is established. Courts alerted to suspicious circumstances or in receipt of serious complaint could demand that, for example, the parents produce the child for examination.
It is vital that anybody should be able to activate these procedures, which should be known and accessible to ordinary people so that they need not listen to a child being done to death while 'them' at the town hall liaise, co-ordinate and procrastinate. In theory, anyone may now apply for a PSO, and the wardship protection of the High Court is there for any minor in danger. However, like private prosecution in cri- minal cases, these are things beyond the purse, experience and even ken of laymen — who would doubtless cause great const- ernation if they resorted to them. Sadly, in this as in other areas, people have been made strangers to the law which is so wanting as a living force in their lives.
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