Privatizing the Family: The Reform of
Child Law

Stephen Cretney*

The ideology of domestic privacy was for long dominant in England. In
Victorian times the home was seen (in the words ofJohn Ruskin)l as "the place of
Peace; the shelter, not only from all injury, but from all terror, doubt and division
... a vestal temple, a temple of the hearth watched over by Household Gods ... ";
and this image was perhaps reinforced by the fact that, within the temple, parents
wielded tremendous power. They had inevitably given their children their genetic
inheritance ~ in most cases possibly more important than any other patrimony ~
and parental power was a real and well recognised legal concept; a parentZ had
virtually complete control over his child's upbringing and legally enforceable rights
to his or her services.

However, the foundation of the National Society for the Prevention of Cruelty
to Children in 1889,3 and the well-publicised activities of Dr Barnado4, evidenced
the sorry truth that cruelty and deprivation were all too often the reality for the
Victorian child; and the twentieth century has seen the enactment of what has been
aptly described as a "cascade of legislation"s designed to protect children but in
reality sometimes proving itself to be no more than a "bureaucrat's paradise and a
citizen's nightmare". 6 In December 1988, the House of Lords began
consideration of a major Children Bill intended to make the relevant statute law

"Professor of Law, University of Bristol. This article was written on the basis of the Bill as presented
to Parliament.

1. Sesame and Lilies (1865).
2. Usually the father to the exclusion of the mother. For the development of the law in respect of

equalising parental rights over the century after the introduction of judicial divorce by the Matrimonial
Causes Act 1857, see P. H. Pettit in A Century of Family Law, edited by R. H. Graveson and F. R.
Crane (1957).
3. The Society was incorporated by Royal Charter in 1895.
4. See, e.g., Barnado v. Ford [1892] A.C. 326 (H.L.). For the background, see G. Wagner, BarnaM

(1979), 13. The repeal of the Custody of Children Act 1891 - enacted to prevent unmeritorious habeas
corpus applications by parents seeking to enforce their legal rights against Bamado - to be effected by
the Children Bill in 1989 (see below) has a certain symbolic importance.
5. Hever v. Bryant [1970] 1 QB. 357, 371
6. Ibid.,

15



THE DENNING LAW JOURNAL

simpler, more accessible to those who work with it and more comprehensible.7

The Lord Chancellor rightly described the Bill as "the most comprehensive and
far reaching reform of child law which has come before Parliament in living
memory".8

The object of this essay is not to give a detailed commentary on the Bill's
provisions - an undertaking which would be of little value not least because the
Government has shown itself commendably ready to listen to reasoned comment
on its proposals, so that substantial changes on points of detail may well take place
during the parliamentary debates on the BiII- but rather to highlight some broad
trends in the development of the law; and to seek to place the most recent changes
in context. In particular, it is concerned with the underlying question of public
policy: almost everyone would accept that there is a private realm of family life
which the state cannot (or at least should not) seek to enter,9 yet how is the
boundary of that realm to be defined? How far is the state to be entitled to impose
its own preferred standards and thereby restrict the traditional freedom of parents?
And when we talk about the state in this context, through what medium do we
envisage that it should act - is Central Government itself to be responsible, or is
this another area in which Local Authorities are to be given effective power? In
what circumstances do we think that such choices can and should be made - or at
least open to review - by the courts?

Private law and public policy
Lawyers tend to concentrate their attention on legislation which gives rise to

litigation, or at least to dispute; and it is therefore not surprising that the indirect
effect on legal doctrine oflegislation which is primarily concerned to change social
institutions is not usually given prominence by legal writers. And yet it is now
something of a truism that the statute which has had the most dramatic impact on
parental rights was the Education Act 1870. That Act ensured that virtually all
children were compulsorily removed from the domestic circle and subjected for a
substantial proportion of their waking hours to the powerful influence of their
teachers. Classically it had been the family which was responsible for the
socialization of children - taming their impulses and instilling values, skills, and
desires necessary to run societylO and this process inevitably conferred on the
parents very wide freedom of choice betwen competing social and moral value
systems. But since 1870, the family's own influence in this respect has inevitably
been reduced; and the power of the state and its agents correspondingly increased.

7. Official Report (H.L.) 6 December 1988, vol. 502, col. 488. The Bill (insofar as it is concerned
with the private law of child custody) is based on the Law Commission's Review of Child Law (Law
Com. No. 172, 1988), and (in relation to changes in public law) on policy decisions set out in a White
Paper (The Law an Child Care and Family Servi.es (1987) Cmnd. 62) which were taken in the light of a
thorough and extensive Review afChild Care Law (1985).
8./bid ..
9. Prince v. Massachusetts (1944) 321 US 158, 166.

10. Skolnick, Family i,l TrallSitiOlI (1971).

16



PRIVATIZING THE FAMILY

In 1857 it seemed self eviden~ that schools in New England should seek to
inculcate the traditional protestant work ethic: "regularity, punctuality, constancy
and industry" by means of a moral and religious instruction daily given.I] More
than a century later, the United Kingdom Parliament enacted legislation requiring
head teachers to "determine measures" with a view to promoting (amongst other,
no doubt equally laudable, objectives) "self-discipline and proper regard for
authority.,,12 The same Act also requires that sex education be given in such a
manner as to encourage pupils to have due regard to moral considerations and the
value of family life13 - and one looks in vain for a definition section which will
explain what is meant by "family life" for this purpose.

The point is not, of course, whether any particular values espoused in schools
are desirable or not. It is simply that the acceptance by the state of responsibility in
this field inevitably sharply restricts what was at one time seen as a major role for
the family, and as a justification for the concept of parental authority.
Nevertheless, it must be accepted that state intervention in education and other
matters vitally affecting the young raises questions which at least appear to be of a
different order from those with which family lawyers have usually been concerned.
Thus the private lawyer has traditionally been concerned with the question: "when
can the state intervene in the affairs of a particular family?" rather than with the
question "to what extent is the state entitled to insist that all children be subjected
to a particular method of upbringing?"

The traditional view - now embodied in the Children and Young Persons Act
1969 - is that the state should only be entitled to intervene in the affairs of a
particular family if certain, apparently restrictively defined, conditions - for
example, that the child's health is being avoidably impaired or neglected]4 - are
satisfied to the satisfaction of a court of law.IS Moreover, the court can only
deprive the parent of his rights if that court, as a separate matter, is satisfied that
the child is in need of care and control which he is unlikely to receive unless the
court makes an order]6 and in any event the court - which must have regard to the
child's welfare17 retains an ultimate discretion not to make any order.]8

To this general rule, there has been one remarkable exception. It is that the

11. Massachusetts Superintendent of Schools, as quoted in). M. Pherson, Baule Cry of Freedom (1988).
12. Education (No 2) Act 1986, s. 22.
13. Education (No 2) Act 1986, s. 46.
14. Children and Young Persons Act 1969, s. 1(2)(a).
15. As the law now stands, a Local Authority may acquire parental rights over a child by the
administrative process of passing a parental rights resolution; but the legislation (Child Care Act 1980,
re-enacting provisions originating in the Poor Law and put into substantially their present form by the
Children Act 1948) now effectively gives a parent a right of appeal: see per Lord Scarman, Lewisham
L.B.C. v. LewishamJuvenile Court Justices [1980] A.C. 273, 307.
16. Children and Young Persons Act 1969, s. 1(2).
17. Children and Young Persons Act 1933, s. 44(1).
18. ReS (.4 Minor) (Care Order: Education) [1978] QB. 120.

17



THE DENNING LAW JOURNAL

High Court has a statutory powerl9 to commit a child to the care of a local
authority if it considers that there are exceptional circumstances making it
impracticable or undesirable for him to be or continue to be under the care of
either of his parents or of any other individual. Moreover, it has been held20 that
the court has an inherent power to commit a ward of court to the care of the local
authority whenever it considers that such a course of action would be in the child's
best interests. Thus, the court directed that a 17 year old girl who had stolen
jewellery from her mother, had her hair shaved, been tattooed, and had run away
from home on a number of occasions "after some of which she returned very much
the worse for drink and showing clear signs of having indulged in sexual
intercourse" should be committed to care and that if appropriate the court could
give directions that she be accommodated in secure accommodation - i.e.
effectively completely deprived of her liberty.

It may be, however, that there is a second exception to the general principle that
direct state intervention into family matters is only to be justified in exceptional
circumstances. Divorce is, today, a common event affecting a significant
proportion of all families; and yet the fact that divorce is contemplated is, under
the law as it now stands, apparently considered of itself to be sufficient to justifY
state scrutiny of family parenting decisions.

The origin of the relevant legislation is to be found in the Report of the Denning
Committee on Procedure in Matrimonial Causes which reported in 1947.21 The
Committee expressed the view that the welfare of children in divorce proceedings
was being wrongly subordinated to the interests of divorcing parents; and in
195822 legislation was enacted designed to ensure that parents gave full
consideration to their children's future welfare, and to make the court's control
over the welfare of children more effective. Since the introduction of the so-called
special procedure in divorce23 it has been possible for husband and wife to divorce
without even seeing any kind of judicial officer; but if there are children a judge -
not a mere Registrar - will look into the proposed arrangements for their
upbringing. 24

The Children's Appointment system constitutes a major exception to the
general philosophy underlying the modem law of divorce as clearly articulated by
the Booth Committee on Matrimonial Causes Procedure.25 This is that agreement
between the parties as to the manner in which their marriage should be terminated

19. Family Law Reform Act 1969, s. 7. There are similar powers available to the court in divorce and
guardianship proceedings, and in matrimonial proceedings in the Domestic Court.
20. Re SW VIMinor) (Wardship: Jurisdiction) [1986] 1 F.L.R. 24.
21. Final Report, Cmnd. 7024, para. 31.
22. The Matrimonial Proceedings (Children) Act 1958 gave effect to detailed recommendations of the
Royal Commission on Marriage and Divorce, Cmnd. 9678.
23. For an account of the procedure, see S. M. Cretney, Principles of Fami(y Law 4th ed. (1984), pp.
183-88, 391-92.
24. Matrimonial Causes Act 1973, s. 41.
25. Report of the Matrimonial Causes Procedure Committee (1985), para. 2.3.

18



PRIVATIZING THE FAMILY

and as to all other aspects of their affairs, far from being a bar to the grant of a
decree, is now positively encouraged. Yet, the effect of the Children's
Appointments system is that - however much the parents may be in accord about
the future upbringing of their children - they are not to be allowed to give effect to
that agreement unless the arrangements they propose have first been considered
by a judge who, in practice, may have no professional or even personal knowledge
of the upbringing of children, and who will usually lack any substantial body of
factual evidence on the basis of which he might exercise his judgment.

There is thus at best an ambiguity about the judge's role in performing what is
basically not an adjudicative function. Moreover, the making of the inquiry can be
seen to smack of paternalism26 and indeed unnecessarily to stigmatise those
involved in divorce. The Booth Committee27 clearly found the Children's
Appointments system difficult to reconcile with the emphasis which the
Committee placed on the desirability of bringing home to the parties their primary
decision-making responsibility in relation to the arrangements which should be
made for the children and other consequences of the marital breakdown; but
nevertheless concluded that the matter was of such general importance that the
relevant statutory provisions should not be repealed. The Committee contented
itself with proposals for detailed changes intended to improve the operation of the
Children's Appointments system. However, the Children Bill now accepts
proposals made by the Law Commission which, in this as in other respects, mark a
significant shift towards privatizing the consequences of family breakdown. The
same philosophy can be seen in the provisions in the Children Bill relating to the
ground for state intervention. Before examining the proposed changes in these two
areas it is necessary to consider the question of the agency through which state
power is exercised.

Child of the state - or of a local authority?
It is a distinctive and important feature of English law that the primary

responsibility for the provision of child care services rests on local authorities
rather than on central government28 and those responsibilities are in practice
exercised through the agency of a Social Services Committee.29 Central
government exercises some control (financial and otherwise), and the Department
of Health from time to time gives general guidance on the discharge of those
responsibilities.

There are, no doubt, important advantages in this division of responsibility; but
it has the inevitable consequence that ideology and practice - for example, on such
fundamental issues as to the extent to which rehabilitation of the child with his
birth parents should be pursued, or on the factors relevant to the selection of

26. Report of the Matrimonial Causes Procedure Committee (1985), para 3.2.
27. Ibid., para. 2.24.
28. See S. M. Cretney, supra n.23, p. 484 and the sources there cited.
29. Local Authority Social Services Act 1970.

19



THE DENNING LAW JOURNAL

prospective adopters for a non-Caucasian child - may vary quite sharply between
different parts of the country.

The effect of a care order under the legislation currently in force is to vest in the
Authority the same powers and duties with respect to the child as his parent or
guardian would have had.3D To this general principle, there are certain exceptions:
the authority has no power to give parental agreement to adoption (although it may
place the child for adoption), nor may it change the child's religion. As a result of
the decision of the House of Lords inA. v. Liverpool C. cY the child's parents or
guardians may not invoke the wardship procedure in an attempt to question the
exercise of the statutory discretions. In effect, therefore, it will seem to many
parents whose children have been taken into care under a care order that they have
no effective procedure for questioning decisions - perhaps most clearly to place
their child for adoption - which strike at the whole basis of their legal and factual
relationship with the child. In contrast, had the child been in care as a result of an
order made by the Wardship Court, no important decision relating to the child's
funire could be made by the authority without a hearing by a judge at which the
parent would be entitled to put his or her case.

It is this perception which accounts for litigation such as that which resulted in
the decision of the House of Lords in Re D (A Minor}.32 A child had been born
suffering from drug withdrawal symptoms resulting from his drug addict mother's
deliberate and excessive taking of hard drugs during pregnancy. He needed (and
received) intensive hospital care; and from the moment of his birth received the
best possible care in hospital and from temporary foster parents. However, both
the mother and father remained addicted to hard drugs. Although neither claimed
to be at present fit persons to have the care of their child, the question whether the
Local Authority had made out the grounds for a care order was fought up to the
House of Lords. The parents argued that in fact throughout his life the child had
been well treated; and that the legislation did not entitle the court to make an order
merely because damage to the child's health or development was apprehended in
the future. The House of Lords - not without some evident difficulty - held that
the statutory condition was, on the facts, satisfied; whilst still asserting that no
order could have been made merely on the basis of apprehension about risk to the
child at a future time.

The true issue in this case was not whether the child should be in the care of his
birth parents. It was simply whether he should be in the care of the Local
Authority as the result of a care order made by magistrates under the Children and
Young Persons Act 1969, or as the result of a committal order by the High Court
in the exercise of its wardship jurisdiction. This was not a sterile procedural
dispute. On the contrary, if the care order were allowed to stand the parents would

30. Child Care Act 1980, s. 10(1).
31. [1982] A.C. 363.
32. [1987] A.C. 317.

20



PRIVATIZING THE FAMILY

have no standing to contest a decision to place their child for adoption; whereas if
the child were warded, they would always have the right to put their case to the
wardship judge whenever an important decision fell to be made.

It is a major criticism of the present law that it places some parents who see
themselves threatened by the exercise of Local Authority powers in such a weak
position. It is true that they have the right to apply to a magistrates' court if a Local
Authority decides to terminate their right of access to their child; it is true that they
have the rights enjoyed by all affected by public law decisions to seek judicial
review. But there is all the difference in the world between having to persuade the
court that a Local Authority's decision is so unreasonable that no authority
properly directing itself could reasonably have taken it - which is broadly speaking
the test applied in judicial review - and having the whole issue examined at length
from first principles by an experienced Family judge.

In some respects, therefore, the law as it now stands seems to place parents in a
position of dependency and weakness: dependency in being required to leave
decisions about the upbringing of their children to the discretion of the courts,
weakness in questioning decisions taken by an all-powerful Local Authority social
workers' bureaucracy. It is therefore appropriate to examine the likely impact in
these areas of the Children Bill measures.

The Booth Committee33 was the first official body to attack the culture of
dependency in relation to the private law of parent and child: the primary
decision-making responsibility should - in the Committee's view - rest with the
spouses themselves34 ,and their "continuing joint responsibility" should be
emphasised.35 The Law Commission's Report on Guardianship and Custody36 is
based on similar assumptions; and the substance37 of the Commission's proposals
is to be embodied in the new Children Act.

In passing, it may be noted that the new legislation also follows the
Commission's advice that parental status should be defined in terms of "parental
responsibility", so that, potentially misleading references to "parental" rights
could be avoided.38 Enthusiasm for this reformulation may be somewhat muted,
however, when it is noted that the draftsman has defined this concep29 as "all the
rights ... powers and authority which by law a parent of a child has in relation to a
child and his property" - a definition which seems to mirror the definition of

33. Report of the Matrimonial Causes Procedure Committee (1985), para. 3.2.
34. Ibid ..
35. Ibid., para. 2.24.
36. Review of Child Law (Law Com. No. 172, 1988).
37. There are many fascinating differences of detail between the provisions of the draft clauses
annexed to the Law Commission's Report and the clauses of the Children Bill as introduced in the
House of Lords: see, e.g., the Law Commission's assertion that the welfare of the child should be the
"only" concern of the court, and the comparable provision of the Bill that welfare be the "paramount"
consideration (a formulation which the Law Commission had said would do "nothing to resolve the
earlier confusion": Law Com. No. 172, para. 3.14). See also the text to note 42,. infra.
38. See Review of Child Law (Law Com, No. 172, 1988), para. 2.4 et seq..
39. Clause 3(1).

21



THE DENNING LAW JOURNAL

"parental rights and duties" originally contained in the Children Act 197540 and
which so nearly led the courts astray in the Gillick case.41

. The new philosophy
Possibly the most fundamental manifestation of the substantial change of

legislative approach is that the Bill directs the court not to make any order with
respect to a child "unless it considers that doing so would be better for the child
than making no order at all,,42- wording which is perhaps not so emphatic as the
Law Commission's directive that no court should make an order unless to do so
would be "the most effective way of safeguarding or promoting the child's
welfare".43 Possibly Ministers considered that the form of words favoured by the
Law Commission made the very assumption - i.e. that it was reasonable to suppose
that court orders could have such positive effects - which the Commission had
been concerned to deny.

Another significant indication of the new philosophy is the compromise adopted
in relation to the Children's Appointments system. The new provisions are tucked
away - inappropriately, but possibly wisely from the tactical point of view -
amongst the "minor amendments" in Schedule 8 of the Children BiII.44Parents
are still to be required to give details of the arrangements which are to be made for
the children, and the form whereby this is to be done is to be "improved".45 The
court is then to consider - in the light of the general preference for
non-intervention already stated - whether it should exercise its powers to make an
order relating to the child; but it is only to be in "exceptional circumstances" that it
is to withold the making absolute of the parents' divorce.46In this as in many other
respects, much will depend on the terms of Regulations to be made under enabling
powers contained in the primary legislation; but it seems reasonable to suppose
that the Children's Appointments system as we now know it will disappear.

It is also worth noting that the new legislation greatly extends the powers of
. parents to make private contracts regulating their legal position in relation to

40. S. 85(1); see now Interpretation Act 1978, s. 5 and Sched. 1.
41. Gillick v. West Norfolk and Wisbech Area Health Authority [1985] 2 F.L.R. 738 (CA), particularly per
Parker L.J. at p. 743, et seq.. It can be argued that the Childrens Bill as drafted fails to give sufficient
weight to the significance of the House of Lord's decision in the Gillick case - which can broadly be
summarised as establishing the general principle that a child has the right to take his own decisions, to
the exclusion of his parents' involvement, if he has sufficient understanding of the issues involved.
42. Clause 1(4). (This and all other references to the Children Bill are to the text as ordered by the
House of Commons on 23 November, 1988 to be printed; and as debated on Second Reading in the
House of Lords on 6 December.
43. Clause 1(7) of the Draft Bill in Appendix 1 to the Law Commission's Review of Child Law (Law
Com. No. 172, 1988).
44. Para. 19. It will be interesting to see how much parliamentary anention will be given to this
provision: it is sometimes found that Scheduled provisions escape substantial scrutiny and comment in
debate.
45. The detailed policy to which this provision gives effect is fully explained in the Law Commission's
Review ofChi/d Law, supra n. 43,para. 3.10.
46. Matrimonial Causes Act 1973 as it would be amended by Children Act 1989 Sched. 8, para. 19.

22



PRIVATIZING THE FAMILY

children. The most striking example of this trend is in relation to illegitimate
children.47 The father of an illegitimate child has, under the existing law, no
parental rights; but (under provisions of the Family Law Reform Act 198748 which
have not yet been brought into force) the court would have power to confer on him
full parental status. Under the new legislation, it will be possible for mother and
father to achieve the same result by private (albeit formal) agreement49 - a
significant departure from the view taken by the Law Commission in 198250 under
the influence of serious concern then felt about the pressures to which possibly
vulnerable mothers might be subjected.

The new legislation is however somewhat half-hearted in its commitment to the
ideology of private ordering in this sensitive area: it seems that any such agreement
will have to be "made in a prescribed form", and "checked by a county court" in
"a simple paper procedure with a small standard fee".51 There must be some risk
that this formality will become an empty and meaningless ritual; and only time will
tell how effective such a check will prove to be in practice.

The Children Bill contains two groups of provisions which undoubtedly shift
the balance of power between parent and state, although the extent and even
perhaps the precise direction of that shift may seem to some to be a matter of some
doubt.

Care orders
First, the old specific grounds for the making of care orders are replaced by new

- and perhaps more open-textured - grounds. It is provided52 that the court may
only make a care order if it is satisfied

"(a) that the child concerned has suffered significant harm, or is likely to
suffer such harm; and
(b) that the harm, or likelihood of harm, is attributable to -

(i) the standard of care given to the child, or likely to be given to the
child if the order were not made, being below that which it would be
reasonable to expect the parent of a similar child to give to him; or
(ii) the child's being beyond parental contro!."

47. It seems clear that, notwithstanding the Law Commission's expressed wish to avoid attaching labels
to children born outside marriage (Second Report on I//egitimary, Law Com. No 157, para. 2.5), the
classification of "legitimate" and "illegitimate" is still correct, and its continued use inevitable. Thus,
the terms "legitimate" and "illegitimate" are used no less than thirteen times in the short explanatory
note annexed to the first commencement order made under the Family Reform Act 1987: see S.1.
425/1988. The writer sees no reason to conceal his view that it would have been less unsatisfactory had
the Law Commission adhered to the proposal made in its First Report on I//egitimary (Law Com. No
118,1982, para 4.51), whereby the terms "marital" and "non-marital" would have been embodied in
the statute book in order to avoid any need to continue to use the expression "illegitimate" with its
connotations of unlawfulness and illegality.
48. S. 4.
49. Clause 4.
50. Law Com. No. 118, 1982, para. 4.39.
51. Law Com. No. 172, 1988, para. 2.19.
52. Clause 26 (2).

23



THE DENNING LAW JOURNAL

It is clear that the new provisions will enable the court to make an order on the
basis of (well-founded) apprehension of harm to the child. There should be no
repetition of Re D C4 Minor).53 There should be less need for Local Authorities to
wish to invoke wardship (and in fact, as we shall see, their ability to do so will
under the proposed legislation be severely restricted). But the new provisions will
inevitably spawn much litigation. The question of whether the evidence is such as
to justify a finding of "likely harm" may cause difficulties, and - perhaps more
important - cases are likely to be more protracted in order to permit examination
and cross-examination of witnesses. Moreover, it does not require much
imagination to envisage strenuous legal argument about the interpretation to be
given to such expressions as a "similar" child, or indeed as to the aspects of
parenting and personality which are properly to be taken into account in deciding
on the reasonableness or otherwise of the expectation of standards of care.

For these and other reasons, the fact that it will be possible to bring proceedings
in the County Court and High Court as well as before Magistrates is much to be
welcomed - although once again much is to be left to Rules yet to be made (and, in
practice, unlikely to receive much effective Parliamentary scrutiny). These rules
may stipulate that (for example) specified classes of proceedings may be initiated
only 'in county courts or magistrates' courts; and the Lord Chancellor has
indicated that care proceedings will normally have to be initiated in magistrates'
courts, but that there is to be a power to transfer cases to higher courts if
appropriate.54 At the time of writing, however, no indication has been given of the
procedure for deciding on the appropriateness of a transfer; and the level at which
such a decision is to be taken is obviously crucially important.

The second major change made by the legislation in this context is severely to
restrict the availabilityof the wardship jurisdiction to Local Authorities. In the first
place, Local Authorities are debarred from invoking the wardship jurisdiction
without leave of the court, which may only be given in narrowly defined
circumstances. 55 Secondly, care orders are only to be made if the statutory
condition set out above is made out: it will no longer be sufficient for the court in
divorce or other proceedings to be satisfied that there are "exceptional
circumstances".56

53. [1987] A.C. 317.
54. See Official Report (H.L.) Vol. 502, col. 494 (per the Lord Chancellor), The relevant powers are
contained in Clause 69(2) of the Bill, notwithstanding the somewhat delphic remarks of the Lord
Chancellor on the subject(contrast Official Report (H,L.) Vol. 502, col. 495 with Official Report (H.L.)
Vol. 502, col. 537-38). Prospects for a truly unified Family Court in the sense in which that term has
been used by many advocates for the concept seem to have receded almost to vanishing point, If
anything, the Bill seems gready to enhance the involvement of the magistrates in children cases - a
result which would not have been consistent with the views expressed in what is still the most
powerfully argued case for a unified Family Court - the Report of the (Finer) Committee on
One-Parent Families, Cmnd. 5629, 1974.
55. Clause 8(2).
56. Supra.

24



PRIVATIZING THE FAMILY

These provisions are controversial; and it may be that they will not survive in
their pristine form. In particular, the provisions as drafted seem likely to increase
the proportion of cases in which children are effectively subject to the very wide
discretions of Local Authorities rather than to discretion of the wardship court,
exercised after a full and careful hearing. Moreover, there is a danger that insofar
as such decisions can be questioned in judicial proceedings, the only forum
available will be the lowest court in the judicial hierarchy - the Magistrates, who
may not always have the resources (human and otherwise) to deal with the burden
of work likely to be involved.

However, there seems certain to be informed and influential opposition to the
proposals as drafted; and the cynical may suspect tha.t the original version has been
drafted in a deliberately (and it may even be thought provocatively) extreme way so
as to permit concessions to be made during the Bill's passage through Parliament-
although it seems unlikely that those concessions will extend to allowing the
wardship procedure to be used as extensively as some judges experienced in family
work would have wished.57 The extent to which the provisions restricting the
availability of wardship will effectively shift the balance between parents and state,
however, depends in part on the interpretation given by the Courts to the care
order conditions and in part on the allocation of cases to different levels of the
judicial hierarchy.

Controlling the Local Authority
The most striking feature of the wardship proposals is that those Authorities

who would wish to entrust sensitive and difficult issues to the wardship court will
no longer be able to do so. In that respect, therefore, the legislation extends the
powers of local authorities - paradoxically to a greater extent than some
Authorities would have wished.

However, the new legislation does. also contain a number of important
provisions - more consistent with what had been generally assumed to be its
underlying philosophy - designed to strike a better balance between the need to
protect children ff(i)mharm and the need to allow aggrieved parents some effective

• means of challenging Local Authority decisions.

(i) No more parental rights resolutions
First, the Parental Rights resolution procedure is to be abolished. Not only does

this mean that all decisions vesting parental authority in a Local Authority will have
to be taken by a court, it also means that the mere fact that a child has been in
Local Authority care for three years will no longer by itself enable the Authority to
step into the parents' shoes. 58 This and other related provisions must be regarded
57. See, e.g., per Latey], R. v. London Borough of Newham. Ex parte MeL. (note) [1988] 1 F.L.R. 416.
The proposals contained in the Bill also seem difficult to reconcile with the recommendations of the
Report of the Inquiry into Child Abuse in Cleveland 1987, Cmnd. 412, 1988 - see particularly at para.
16.57-65.
58. Cf the provisions of Child Care Act 1980, s. 3(I)(d) (originally enacted by the Children Act 1975).

25



THE DENNING LAW JOURNAL

as diminishing the power of the state to intervene in what a Local Authority
believes to be a child's best interests - little more than a decade after such
provisions were considered necessary to avoid children being left unnecessarily to
drift in Local Authority care.

(ii) Restriaing place of safety orders
Secondly, the powers of Local Authorities to remove children from their parents

under Place of Safety Orders will be limited: such orders will not be capable of
enduring for more than eight days (with the possibility of extension for one further
seven day period); and parents will have improved rights of access and challenge in
the COl.irts.59

(iii) Presumption of reasonable access to child in care
Thirdly, the legislation embodies the principle that a Local Authority must allow

a parent "reasonable contact" with his child. The court will be able to specifYthe
details of the contact. Conversely, the court may permit the Authority to refuse
contact if "it is necessary to do so in order to safeguard or promote the child's
welfare.,,6o It will be noted that the word "necessary" is a strong one: presumably
the authority would have to be prepared to justifYits wish to terminate contact as a
preliminary to an adoption placement, and this might not always be easy to do.

Conclusion
The proposed legislation is of potentially great significance in redefining the

limits of state intervention in the private domain of family life, although it will be
some time before its significance in this respect can be adequately assessed - not
least because in some respects it seems to adopt somewhat inconsistent
philosophies. However, the Bill is certainly to be welcomed at the technical level of
simplifYingand rationalising the statute book.

59. See the provisions of Part V of the Children Bill. The use of place of safety orders was much
highlighted by the events in Cleveland in 1987, for which reference should be made to the Report of the
Inquiry into Child Abuse in Cleveland 1987, Cmnd. 412,1988. The impact of those events on opinion
and legislative policy would require (and merit) separate and extended treatment.
60. Clause 29.

26