legislating for parental access to children in care : recent developments in great britain

LEGISLATING FOR PARENTAL ACCESS TO CHILDREN IN CARE

Recent Developments in Great Britain

Michael Little Roger Bullock

Parental access to children abseni in state care is an emotive issue. This article looks at the role of legislation in recent attempts in Great Britain to improve the situation.

In Great Britain, children and adolescents whose families cannot provide care or control are taken into local authority care when preventive strategies prove insufficient. This may be a voluntary arrangement between parents and social workers or follow a court committal. Most children in care spend some, but not necessarily all, of their time in foster homes, residential establish- ments, or relatives’ homes. At any one time, there are 70,000 children in care in Great Britain, a proportion of 6 per 1,000 of the child population.

Parental access to these absent children is a hardy annual among child welfare concerns. This stems not just from the manifestly difficult decisions that have to be made to protect abused and neglected children but from much wider concerns. The direct involvement of the state in the upbringing of children raises questions about relationships between the state and family and the various traditions, such as religion, that influence them. State involvement also exemplifies the irreconcilables of child welfare and the need to achieve a balance between parents’ and children’s rights. At an administrative level, too, there are conflicting views on whether decisions to restrict contact between parents and children absent in care should be professional or legal. Policies on access are also highly symbolic in that they clearly indicate a welfare agency’s views on children’s families and the extent to which they should be included in plans to promote children’s welfare.

One of the difficulties in formulating policies on parental access to children in care is that patterns of contact more often than not result from other decisions made about children for the very best of reasons. Thus the placement of a child in a foster family some 50 miles from the parental home has serious access implications, however beneficial the care offered or the specialized provision available. In addition, although it is not always recog-

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nized as such, access is an integral part of the general principles that underpin child-care law, whether the paramountcy of the child’s welfare or the requirement to consider the wishes of the child and of those closely involved in his or her life.

The 1948 Children Act distinguished voluntary care from situations where parental rights were taken. In the former, it was assumed access patterns would reflect agreements between parents and social workers, while in the latter, full powers were vested in the state. The Children and Young Persons Act 1969 allowed for parental rights to be assumed by local authorities for a whole variety of children at risk and introduced the general category of a care order. In such situations, access decisions were viewed as a matter of professional discretion; the agent of the state had authority to manage parental access in the child’s best interests. It was assumed that a paternalistic social worker would maximize the welfare of the case.

INFLUENTIAL RESEARCH FINDINGS ON ACCESS

Several research studies in the 1970s and 1980s (Department of Health, 1985), however, revealed an unsatisfactory state of affairs with regard to relationships between children absent in care and their natural families. Particularly important was Lambert and Rowe’s (1973) Children Who Wait, in which it was revealed that 22% of long-stay children under the age of 11 had “drifted” while away in care, in that contact with their natural families had either been lost or severed, and yet they were not living with a permanent substitute family. In short, access was diminished or terminated without adequate care alternatives being provided. The book led to a greater effort to reduce drift and to find families for children who could not return home. One unintended effect of this study was to view “permanency” for children in care as only possible in foster care or adoptions, a rigid perspective that has required considerable time and effort to modify.

The second important study was the Dartington Social Research Unit’s study of the problems of maintaining links between children in care and their families (Millham, Bullock, Hosie, & Haak, 1986). This showed that drift was still common among children in care. Of 450 children entering care on Day 1, 170 were still in care 2 years later; of these, 112 were placed away from their natural families, 52 of which had no contact with any relatives. For 13 children, this isolation had been deliberately engineered as a prelude

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to adoption, but in 22 cases, the lack of family contact was compounded by the fact that the child was placed in a “temporary” substitute living situation. This figure of 22, of course, represents only 12.9% of the 170 still in care after 2 years’ time, but applied to the national population of children in care, this statistic suggests that at any one time, some 6,000 or 7,000 children are in this limbo situation.

Millham et a1.k (1986) Lost in Care reported that parents and absent children found it very difficult to keep in contact. The trauma associated with separation and the difficulties of maintaining emotional relations at a distance meant links between families and absent children have an inherent tendency to wither. Moreover, this likelihood is compounded by the considerable dis- location and reconstitution in children’s families, changes in the child’s family structure while away, and movement of the child while in care. Thus although children usually had many living relatives, in contrast to the orphans of former years, children’s relatives were likely to be spread across different households to which the separated child had to relate. Separation was, therefore, particularly difficult for children in care, more so than for other separated groups, such as those in hospitals or boarding schools.

The reasons for declining contacts between absent children and their families were found to be complex. Many access patterns were shaped by other decisions on legal status and placement, as we have illustrated, but a lack of information on each other’s situation and the difficulties of return to changed households were common. Many barriers to contact were informal rather than formal. They arose from factors such as distance, the selection of placements with unwelcoming attitudes to parents, or where routine made visits difficult. Three quarters of long-stay children faced some kind of bamer to parental access but few of these were formal, that is, clearly specified by social workers and explained to parents.

In the light of such evidence, the arrangements in operation before 1983 with regard to parental access to children in care were clearly unsatisfactory. Children in local authority care could have contacts with parents and relatives terminated by social workers, with little redress through the courts. The options open to families were few: They could either apply (a) for a revoca- tion of the care order and then to ask for a judicial review or @) make their child a ward of court and ask the High Court to review the termination decision. The influential 1982 judgment in A. vs. Liverpool City Corporation (AC 363) concluded that local authorities could make decisions to terminate parental access and that these decisions could be reviewed by the courts only in the most exceptional circumstances.

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LEGISLATIVE CHANGES IN THE EARLY 1980s

Minor reforms were introduced in light of the new research knowledge. The European Court of Human Rights, various welfare organizations, and members of Parliament interested in this issue also contributed to reform efforts. In 1983, the Department of Health introduced new legislation to give parents rights of appeal against social work decisions to terminate contact with children absent in care. It also published Access to Children in Care (Department of Health, 1983) a code of practice that laid out the principles and administrative arrangements necessary for social services’ policy of promoting contact between children in care and their families wherever possible.

The 1983 Health and Social Security and Social Services Amendment Act (HASSASSA) added Sections 12a-g to the 1980 Child Care Act. These introduced several important changes. Local authorities were required to notify parents in writing of a termination decision and the parents affected were given a right of appeal to a juvenile court for an access order which could specify the conditions under which access might be allowed. Rights of appeal to the high court by parents or local authority were also made available.

As a sequel to its Lost in Care research, the Dartington Research Unit monitored the impact of these new provisions. This study, published as Access Disputes in ChiEd Care (Millham, Bullock, Hosie, & Little, 1989), showed that serious deficiencies in social work practice endured. Although the changes introduced by the HASSASSAAct clearly moved toward solving the problem of the power imbalance between parents and social services in situations when parental access to children in care was terminated, many criticisms existed. Its scope was seen as too narrow since it only applied to access by natural parents and simply added to the already piecemeal, frag- mented nature of child-care legislation (Cretney, 1984, Ryan, 1986). The legislation was also criticized for its focus on terminations of access and on formal restrictions rather than on the informal barriers to contact between families and the absent child. Research has shown this focus to be equally limiting and to affect the majority of children in care (Gibson & Parsloe, 1984).

The Act was also censured for ignoring the contribution of the wider family, siblings, and friends and for its scant concern with the quality of interaction when it occurs (Sachs, 1986). Not only were key family members ignored but so were important legal categories of children in care. For example, those who entered through emergency proceedings, those received


voluntarily, and children caught up in matrimonial disputes were excluded, even though in all of these situations, informal barriers to access can be severe. As we shall see, other weaknesses in this legislation became apparent following implementation.

Nevertheless, the new law did represent a major change. For the first time, parents had a right to challenge access decisions made by social workers once the child had been taken into care. The Department of Health recognized the need to change the values of social services departments from one of exclu- sion to one of inclusion of parents in the care process. The Code of Practice issued to social workers emphasized the need for participation and shared care with parents, wherever possible, as well as the need for regular scrutiny of access patterns (see the July 1991 issue of FCCR).

THE WORKING OF THE 1983 HASSASSA ACT

In its monitoring of the 1983 legislation, the Dartington Social Research Unit found that 1,000 termination-of-access notices were sent each year to parents by local authority social services departments in England and Wales. Despite its size, this figure is well below the several thousand children deprived of contact with parents and families identified in the previous research.

Access terminations were found to occur in three situations. The first was where the child had been in long-term care with little parental contact and the parent(s) sought to renew access. Social services decided that a resur- rected relationship was not in the best interests of the child and therefore served a termination of access notice on the parents. One third of the children affected by access terminations fell into this first category.

A second common situation was when the parents were enjoying access to their children but the social workers deemed such contacts to be detrimen- tal to the long-term plans for the child. Consequently, termination notices were served on parents to crystallize care intentions. Indeed, such access terminations frequently reflected the failure of recent rehabilitative efforts and a change in the social work plan. This second set of circumstances applied to nearly two thirds of the children affected by termination notices.

The third situation involved a small group of children who were newly admitted to care and needed immediate protection from their parents. The risk of serious abuse or neglect made the child’s rehabilitation with the family highly unlikely. These children were usually very young, and in some cases, the termination notices were served on the parents shortly after the child’s


birth. However, it is important to stress that this group represented only a very small proportion (4%) of all the cases we studied.

The research also found that the children affected by termination notices are not typical of children in care generally. Although many are clearly identi- fiable as case types, they represent a small minority of all children. They usually entered care at a young age, stayed long, and had a history of neglect and possibly abuse. They also tended to come from very dislocated families, a feature illustrated by the fact that a third had been in care before and that in half the cases, the termination-of-access notice served on the parents also involved a sibling. However, we should remind ourselves that the majority of isolated children in care are not in this group; most are 8- to 11-year-olds or are drifting adolescents, few of whom figure in the access termination procedures in the 1983 legislation.

The finding that only a small minority of children in care are affected by the new termination notices is significant in view of the research findings that the majority of children in care experience some sort of access limitation. It means the majority of children in care who are deprived of contact with their parents have no redress because access is not fully terminated and their parents need not be sent a 12B letter. Thus it is clear that the legislative change and introduction of the Code of Practice has not led to a scrutiny of the access arrangements of all children in care, which was one of the intentions of the reforms.

Some of the other findings from the monitoring of the new legislation were also disquieting. For example, it was surprising to find that before the serving of a termination notice, 60% of the children had been visited by a parent during the previous 2 months and in only a minority of cases had contact been lost for many years. Most of the termination notices were served to facilitate other social work plans, such as freeing for adoption, keeping long-term foster situations going, and so forth.

In the research, we also looked carefully at parents’ responses to receiving the notice terminating access to their child. It usually fell on the mat with a pile of final demands, unheralded and cyclostyled with the child’s name written in. Nevertheless, many parents were incensed; they had gone to social services for help, or they had help thrust upon them, and now they were about to lose their child. In monitoring this Act, we looked at 11 local authorities over a period of3 yearsduringwhich 309 access terminations were produced. Scrutiny of these cases showed that half of the parents protested, a higher proportion than for any other social work decision. Of the 146 cases in which parents made formal protests, in 120 of them, the parents consulted a solicitor, and 106 applied to the juvenile court for an access order.


In 96 cases, parents had their applications heard, sometimes after a delay of several weeks. Because of appeals, parents sometimes had to wait as much as a year for a final judgment, during which time they were not allowed to see their children. Of the 96 applications, 16 led to the making of an access order, but 7 parents lost their access when social services successfully ap- pealed to the high court. Thus only 9 of the 309 children had their access re- stored by the HASSASSA process.

However, the irony was that more of the 309 children and parents were reunited by means other than the HASSASSAAct, such as by renegotiation, altered family circumstances, accidents, breakdowns in permanent placements, or a failure to adhere to correct legal procedures. Access was renewed for 11 children in this way.

There were also considerable variations in the ways that local authorities interpreted and implemented the HASSASSA legislation. The number, rate, and process of access terminations varied across local authorities, and these differences appeared unrelated to the characteristics of their child-care pop- ulations. While some variations could be explained by the organizational structure of the local authorities, more important was the continuing high incidence of de facto rather than de jure terminations. By this, we refer to the hidden, informal barriers to contact which can lead to a withering of links with home.

As distance, routine, hostile placement attitudes, the logistics of visiting, and confusions in the child’s sense of belonging can all combine to reduce contact between family and absent child, there is often no need for social services to sever access formally. The termination can be de facto rather than de jure. This situation avoids the complexity of sending a 12B letter and running the risk of an inconvenient appeal for an access order. Many social workers clearly prefer to allow links to drift and wither.

In comparing practice in different local authorities, we found that those social services departments which sent few 12B letters terminating parental access seemed to rely more on informal barriers to shrivel family contacts and eventually exclude natural parents from the child’s life. Hence there is an inverse relationship between levels of de facto and de jure terminations: The use of one tends to cancel out the other.

The overwhelming conclusion from our scrutiny of present access arrangements was that barriers to contact between parents and children absent in local authority care still remain unacceptably high in all social services departments despite the recent legislative change and creation of the Code of Practice. Indeed, we have estimated that there are two de facto terminations of access for every de jure termination. While in a few cases the encourage-


ment of a gradual extinction of parental interest in a child may be a most sensible strategy, generally de facto terminations can be said to be evading the spirit and the purpose of the 1983 access legislation.

While the HASSASSA Act represented a welcome shift in balance between local authority power and parents’ rights, social services clearly re- sisted its full implementation. Thus although the figure of one third of parents seeking legal advice after receiving a notice terminating access to their child represents an appreciably higher level of formal objection to social workers’ decisions than for other child-care situations, nevertheless, outcomes of the process are not encouraging. In spite of considerable and widespread dissat- isfaction, those parents resilient enough to persist in their challenge found little satisfaction in the courts. Only about 3% of children actually resumed contact with their parents as a result of a successful challenge to a social services’ decision to terminate access.

We were led, therefore, to explore whether the Department of Health’s Code of Practice emphasizing parental participation in the care process fared any better than the efforts to safeguard parental rights by way of the 12B letter and opportunities to seek access orders from the courts. We found that far from creating a new climate in social services, the Code of Practice does not seem to have been widely read. It usually lies at the bottom of the social worker’s drawer, buried under a pile of other circulars or is pinned anony- mously on the social services notice board. It tends to be consulted only if there is a crisis or if the social worker has to go to court rather than being used as a tool to guide daily practice. Social workers seem unconcerned about this situation because it is highly unlikely that they’will ever be taken to task in court for not being familiar with or for not having practiced its recommen- dations. Indeed, many lawyers and court officials seem equally unaware of its significance.

A NEW LEGISLATIVE APPROACH: THE 1989 CHILDREN ACT

The 1989 Children Act implemented this October makes considerable changes to the situation regarding the family links of children in care. Initially, the abolition of voluntary care means that for children who need to be looked after by the local authority, access between child and family had to be negotiated and agreed on. Any action by social workers regarding parental access which is against parents’ wishes would be illegal. The parent could take the child back immediately.

Little, Bullock I ACCESS TO CHILDREN IN CARE 383

The Act and accompanying regulations, which incorporate the 1983 Code of Practice, also require social services to assume that reasonable access will be provided unless there are reasons to the contrary, per Section 34(1). The child should be placed as near to his or her family home as possible, per Section 23(7a). There is also provision for anyone involved in the child’s life to apply for a Section 8 contact order, which allows for visiting and overnight stays. Other requirements to ascertain and consider the child’s wishes and feelings, for the child to be represented, the independent contribution of the guardian and ad litem, and complaints procedures all reduce the likelihood of limiting informal access.

Should parental access be an issue, however, Section 34 sets stringent conditions for making decisions. It specifies that the proposed access arrangements have to be stated by the local authority to the court before a care order is considered and that parties to the proceedings are invited to comment. The court can then specify any aspect of access arrangements which it decides is in the child’s best interests. Any party can subsequently request a hearing for the conditions to be revised.

These reforms mean that parental access is to be an integral part of the care order specifications and must be clearly conceived and argued in the social work plan for the child. Section 34 also makes illegal the de facto terminations of access which, we saw earlier, had the effect of reducing the impact of the 1983 legislation. It makes all decisions de jure, and it gives parents rights of continual appeal. As Hoggett (1989) commented, the main- tenance and enhancing of contact between families and the absent child has been elevated from a worthy principle to an overriding requirement; indeed, it is a central theme of the 1989 legislation.

I t is to be hoped that under the new legislation, the deficiencies which confounded previous attempts to improve the law relating to parental access to children in care will be overcome and that the new Children Act will offer a fairer and more effective framework for dealing with this difficult and emotive area.

REFERENCES

Cretney, S. (1984). Access orders in the juvenile court: The legal framework. Adoption and

Department of Health. (1983). Access to children in care. London: Her Majesty’s Stationery

Department of Health. (1985). Social work decisions in child care. London: Her Majesty’s

Fostering, 8, 15.

Office.

Stationery Office.


Gibson, P., & Parsloe, P. (1984). What stops parental access to children in care? Adoption and

Hoggett, B. (1989). The Children Bill: The aim. Family Law, 19,417-421. Lambert, L., & Rowe, J. (1973). Children who wait. London: Association of British Adoption

Agencies. Millham, S., Bullock, R., Hosie, K. & Haak, M. (1986). Lost in care: The problems of

maintaining links between children in care and their families. Aldershot: Gower. Millham, S., Bullock, R., Hosie, K., & Little, M. (1989).Accessdisputes in child care. Aldershot:

Gower. Ryan, M. (1986). The law on access. In Family Rights Group (Ed.), Promoting links: Keeping

children in touch ( p p . 33-39). London: Family Rights Group. Sachs, C. (1986). Access to children in care. Family Law, 26, 78-91.

Fostering, 8,18-24.

Michael Little and Roger Bullock work at the Dartington Social Research Unit, Dart- ington Hall, Totnes, UK. The Unit has undertaken numerous studies ofsocinl, education, and employment services for children and adolescents. Major publications include The Hot House Society, After Grace-Teeth, Locking Up Children, Lost in Care, and Access Disputes in Child Care.

legislating for parental access to children in care : recent developments in great britain

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