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Children Act 2004 by Isabelle Watson

THE CHILDREN ACT 2004

Introduction

 

 

1.   The Children Act 2004 and its accompanying documentation provide the Government's response to another high-profile and tragic case, namely that of Victoria Climbie.  The Act forms a key part of "Every Child Matters: Change for Children", a programme of local and national action devised in the aftermath of Victoria's death and intended to achieve a "whole system transformation" of children's services.

 

2.  The primary purpose of the Act is summarised as follows: to create clear accountability for children's services, to enable better joint working and to secure a better focus on safeguarding children.  An alternative "soundbite" in relation to the underlying intention is "to maximise opportunities and minimise risks for all children".

 

3.  The Act consists of six parts comprising a total of 69 separate sections. There are a further five schedules to the Act. The various sections of the Act came into force at different times over the period November 2004 to April 2006. The principal companion to the Act is a set of five core guidance documents which underpin and in effect expand the provisions of the Act itself.  Details of these guidance documents are set out in the section headed "Other sources of information" below.

 

4.       In addition to the five core guidance documents, there is a second set of guidance documents drawn up to support the effective delivery of services.  There are also two further guidance documents in relation to arrangements relating to the well being of looked after children, these are: Duty on Local Authorities to Promote the Educational Achievement of Looked After Children  and Adoption and Children Act 2002 guidance.  A further two  documents provide guidance on the appropriate engagement of agencies in the overall programme for change, and four specific guides identify what the programme envisages for health services, schools, social care and the criminal justice system.  Finally, a further series of key documents have been drawn up to explain and define the strategic direction of the programme, and these include:

     "The national service framework for children, young people and maternity services"; "Youth Matters"; and "Choice for parents, the best start for children: a ten year strategy for childcare".  Copies of all the key documents are available from http://www.ofsted.gov.uk.

 

 

Victoria Climbie (born 2.11.1991, died 25.2.2000)

 

1.       In order to do justice to the facts of Victoria's case we have included in this handout the official account of her life as it appears in the Final Report of the Victoria Climb Inquiry (short version). 

 

2.       The Inquiry into Victoria's death was officially opened on 31 May 2001.  The Inquiry was set up following Victoria's death on 25 February 2000 and the subsequent murder trial and  convictions of her carers Marie-Therese Kouao and Carl Manning in January 2001.  In short the terms of reference for the Inquiry were:

 

"to establish the circumstances leading to and surrounding the death of Victoria Climbie; to reach conclusions as to the circumstances leading to Victoria Climbie's death and make recommendations to the Secretary of State for Health and to the Secretary of State for the Home Department as to how such an event may, as far as possible, be avoided in the future".

 

3.       A central function of the Inquiry was to focus on the roles of Social Services, the Police and the Health Service.  The Inquiry was chaired by Lord Laming and took place in public. There were 13 parties to the Inquiry, including the relevant Social Services involved with Victoria and the Hospitals involved in her care.  Evidence was heard from a wide range of witnesses, both lay and professional.

 

4.       The essential tragedy of Victoria's case is that a number of professionals came into contact with her in what was to be the last year of her life, namely four Social Services Departments, three Housing Departments, two specialist Child Protection Teams from the Metropolitan Police and a Family Centre managed by the NSPCC, yet no one was able to prevent her death at the hands of people trusted to care for her.  Dr Nathaniel Carey, the Home Office Pathologist who carried out the post mortem on Victoria, said that her case was the worst case of non-accidental injury he had ever dealt with, and was just about the worst case he had ever heard of.  The cause of Victoria's death was hypothermia, which had arisen in the context of malnourishment, a damp environment and restricted movement.  Dr Carey also found 128 separate injuries on Victoria's body, showing she had been beaten with a range of sharp and blunt instruments.  No part of her body had been spared.

 

 

The Government's Response

1.    The Inquiry published its Report on 28 January 2003.  The Report identified four key areas of serious failure.  They were:

 

• A lack of good practice;
• A gross failure of the system;
• Widespread organisational malaise; and
• Management issues.

 

2.    In response to these failures the Inquiry made 108 recommendations in relation to four specific areas.  They were:

 

(a)      a fundamental change in the mindset of managers in key public services who "must see their role in terms of the quality of services delivered at the front door rather than in administrating bureaucratic and sometimes self-serving procedures". 

 

(b)     A clear and unambiguous line of managerial accountability both within and across public services.

 

(c)      The current arrangements of Area Child Protection Committees should be replaced by a new national agency for children and families.

 

Lord Laming recommended that of the 108 recommendations made, 46 should be implemented in 3 months and a further 38 in 6 months.

 

3.         The Government responded firstly by producing a formal response to the recommendations in the format of a 70-page document headed "Keeping Children Safe" dated September 2003.  Of the 108 recommendations made the Government rejected only one recommendation and gave only a partial agreement to another.  The majority of the recommendations were agreed; the balance were agreed in principle. 

 

4.       In addition to the response to the recommendation, the Government published a  Green Paper called "Every Child Matters".  The Green Paper proposed changes in policy and legislation in England to maximise opportunities and minimise risks for all children and young people, focusing services more effectively around the needs of children, young people and families.  The Paper set out the five outcomes which services should work towards, based on consultation with children and young people.  It is instructive to consider the five outcomes young people identified as key to well-being in childhood and later life; they were:

• Be healthy;
• Stay safe;
• Enjoy and achieve;
• Make a positive contribution; and
• Achieve economic well-being.

5.  The consultation on the Green Paper showed broad support for the proposals, in particular the intention to concentrate on the five outcomes that children and young people themselves had said were important, rather than prescribing organisational change. 

 

6.  At the conclusion of the consultation the Government went on to publish a further updating document entitled "Every Child Matters: Next Steps": the purpose of that document was to outline the outcomes of the consultation, to provide an overview of the Children Bill and to outline the initial steps being taken to implement the Green Paper through "a programme of change for children developed and delivered through the broadest possible partnership and on the basis of a new relationship between the Government and all those concerned". 

 

7.  At the Bill stage the draft legislation was described as "the first step in a long-term programme of change".  It essentially constructed the legislative "spine" for developing more effective and accessible services focused around the needs of children, young people and their families.  Following on from the consultation process, it aimed to promote and enable change to secure better outcomes for children, young people and their families in the light of local circumstances.

 

8.  In 2005 a further overarching document was published by the Government: "Every Child Matters: Change for Children - An Overview of Cross Government Guidance".  This document identifies and summarises the range of guidance available to all professionals working with children, including the Children Act itself.

 

 

The Main Provisions of the Children Act 2004 - In Summary

Children's Commissioner - Part I

 

Sections 1-9 provide for the establishment of a new Children's Commissioner for England, who will also have a role across the UK for reporting on non-devolved matters, working closely with counterparts in Wales, Scotland and Northern Ireland. The Commissioner's job will be to raise awareness of the best interests of children and young people and to report annually to Parliament, through the Secretary of State on his findings. 

 

The Commissioner's Website is https://www.childrenscommissioner.org. Professor Sir Albert Aynsley-Green was appointed the Children's Commissioner in July 2005.

 

Within Part 1:

 

Section 2 makes clear that the Commissioner will not act as a last court of appeal for individual cases. Instead the Commissioner will look at how bodies, including Government and the public and private sectors, listen to children and young people. The Commissioner will be able to highlight failures in complaints procedures and make recommendations for improvements.

 

Section 3 gives the Commissioner freedom to look at an individual case with wider implications, for the purpose of learning broader lessons to inform public policy.

 

Children's Services in England - Part 2

Part 2 of the Act gives effect in England to the principal legislative proposals contained in the Green Paper to support better integrated planning, commissioning, and delivery of children's services and provide for clear accountability.

Section 10 establishes a duty on Local Authorities to make arrangements to promote co-operation between agencies in order to improve children's well-being, defined by reference to the five outcomes and a duty on key partners to take part in those arrangements. It also provides a new power to allow pooling of resources in support of these arrangements.

 

Section 11 creates a duty for the key agencies who work with children to put in place arrangements to make sure that they take account of the need to safeguard and promote the welfare of children when doing their jobs.

 

Section 12 allows further secondary legislation and statutory guidance to be made with respect to setting up databases or indexes that contain basic information about children and young people to help professionals in working together to provide early support to children, young people and their families. Case details are specifically ruled out.  The Children Act 2004 Information Database (England) Regulations 2007 came into force on 1^st July 2007 and cover the details of the database separately.[1]  Section 12 refers to the information-sharing index: this is now ContactPoint[2].

 

Sections 13-16 require that Local Authorities set up statutory Local Safeguarding Children Boards and that the key partners take part.

 

Section 17 and the associated repeals in Schedule 5 establish a single Children and Young People's Plan (CYPP) to replace a range of current statutory planning. Details of what the CYPP should cover will be set out in further secondary legislation and supported by guidance. There will be no requirement for the Secretary of State to approve the plan and Local Authorities categorised as excellent under Comprehensive Performance Assessment will be exempt from the requirement.

 

Sections 18 & 19 require Local Authorities to put in place a Director of Children's Services and Lead Member to be responsible for, as a minimum, education and children's social service functions. Local Authorities have discretion to add other relevant functions, for instance leisure or housing, to the role if they feel it is appropriate.

 

Sections 20-24 require an integrated inspection framework to be established by the relevant inspectorates to inform future inspections of all services for children. They also make provision for regular Joint Area Reviews to be carried out to look at how children's services as a whole operate across each Local Authority area.

 

Part 3: Children's Services in Wales

Part 4: Advisory and Support Services for Family Proceedings

 

Advisory and Support Services for Family Proceedings

 

Other provisions - Part 5

 

Sections 44-47 put stronger requirements on Local Authorities to manage and monitor the current statutory notification scheme for private fostering arrangements. They also allow for a registration scheme to be set up if the notification arrangements prove to be inadequate.

 

Section 48 clarifies and simplifies the registration of child minders and providers of day care.

 

Section 49 allows for the secondary legislation to be made to bring in a minimum fostering allowance.

 

Section 50 makes changes to allow consistent intervention across Local Authority education and children's social service functions where it is shown to be necessary.

 

Section 51 provides for an extension of inspection powers under section 38 of the Education Act 1997

 

Section 52 puts a duty on the Local Authority in its role as the corporate parent to promote the educational achievement of looked after children. This will ensure that decisions on issues such as placement and stability support better educational achievement.

 

Section 53 places on local authorities a new duty, before determining what (if any) services to provide under section 17 of the Children Act 1989 for a particular child in need, to ascertain the child's wishes and feelings regarding the provision of those services, and give due consideration to them.

 

Section 55 removes now unnecessary provisions in relation to social services committees.

 

Section 57 allows for the payment of fees to adoption review panel members.

 

Section 58 removes the defence of reasonable chastisement in any proceedings for an offence of assault occasioning actual bodily harm, unlawfully inflicting grievous bodily harm, causing grievous bodily harm with intent, or cruelty to a child. It also prevents the defence being relied upon in any civil proceedings where the harm caused amounted to actual bodily harm. However, the defence is still available in proceedings before the Magistrates Court for common assault on a child.  The Minister for Children, Beverley Hughes, conducted a review into the effectiveness of section 58 of the Children Act 2004 over the summer of 2007, focusing in particular on ascertaining parents' views in relation to smacking.  The review document was published in October 2007.  The main outcome of the consultation is the Government's decision not to ban smacking.

 

Section 60 removes the power to make a care order under section 31 of the Children Act 1989 as a sanction for not complying with a Child Safety Order[3].  The court now has the power to make a parental order and the maximum duration of a CSO is extended from 3 to 12 months to allow more time to meet the child/family needs.

 

Section 62 amends section 97 of the Children Act 1989 and section 12 of the Administration of Justice Act 1960 to make clear that the publication of material from family proceedings which is intended, or likely, to identify any child as being involved in such proceedings (or the address or school of such a child) is only prohibited in relation to publication of information to the public or any section of the public and make it clear that rules of court will set out the cases in which publication of information relating to children is authorised.

 

Section 63 amends Schedule 5 of the Tax Credits Act 2002 to enable the Inland Revenue to share Tax Credit, Child Benefit or Guardian's Allowance information (except where it relates to a person's income) with local authorities (or, in Northern Ireland, Health and Social Services Boards) for the purposes of enquiries and investigations relating to the welfare of a child.

 

OTHER SOURCES OF INFORMATION

 

There are five core Every Child Matters: Change for Children documents that provide guidance on children's trust governance and strategic planning, and on the cross-cutting issue of children's safeguarding. These documents (all pdf files) expand on the legal framework established by the Children Act 2004.

 

1.       Inter-Agency Cooperation to Improve the Well-being of Children: Children's Trusts - Section 10 of Children Act 2004.

 

2.    Guidance on the Duty to Safeguard and Promote the Welfare of Children - Section 11 of Children Act 2004

 

3.    Local Safeguarding Children Board Guidance - Sections 13-16 of Children Act 2004

 

4.      Guidance on the roles and responsibilities of the Director of Children's Services and the Lead Member for Children's Services - Sections 18 and 19 of Children Act 2004.

 

5.        Guidance on the Children and Young People's Plan (CYPP)

 

  

 

Relevant Internet Links

 

Working Together to Safeguard Children has been updated since the Children Act 2004. 

 

Children Act 2004

 

2007 Regulations on Databases

 

ContactPoint Policy Statement

ContactPoint on Every Child Matters 

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[1] http://www.opsi.gov.uk/SI/si2007/20072182.htm - The concept of this database has been subject to debate including privacy of children (fingerprinting all children at school) to security of the database and who will have access to it.

[2] http://www.everychildmatters.co.uk/deliveringservices/contactpoint/ and the ContactPoint policy statement (aims and objectives) http://www.everychildmatters.gov.uk/_files/ContactPoint%20Policy%20Statement2.pdf

 

[3] Child Safety Orders were introduced through the Crime and Disorder Act 1998, s.11-13, and have been available in England and Wales since 1 June 2000.  . 

 

© Isabelle Watson 2008

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Isabelle Watson