#CSAINQUIRY: WHAT THE INQUIRY MUST CONSIDER

An agenda for child law reform

So what would I want to see from a child sex abuse inquiry? For me such an inquiry is an opportunity to review the working of child law and of institutions – local authorities, police, health departments, courts and parole boards – operating in the area of child safe-guarding and protection. Children Act 1989 came into operation in October 1991, over twenty-three years ago. By the time a fully effective inquiry has completed its work, the Act may have passed its twenty-fifth year in operation. That is surely high time in such a fast moving area of law to review what the Act has achieved, and to review extensively where it needs to go now.

That is not to encourage delay. There is no reason why the inquiry should not proceed in two stages: first, consideration of what has gone wrong in the past, and to report thereon. Then a second phase: to proceed from the findings to put forward careful and fully considered recommendations.

But first, of me, a disclaimer: I am not an administrator, nor a child protection expert. I am merely a lawyer and advocate who has worked at times in the area of child law, and who taught the Children Act 1989 extensively as it was being introduced. My opinions are formed according to those limitations. My perspective is mostly from that of someone who works in the family courts, and that will show in what follows.

Children Act 1989

A short history of child law over the past 30 years starts with Gillick. As the Law Commission, under the guidance of the then Brenda Hoggett,[1] was considering children law reform, the House of Lords delivered its speeches in Gillick v West Norfolk and Wisbech AHA.[2] Two years later Butler-Sloss J was considering the problems arising from alleged sex abuse in Cleveland.

In Gillick Lord Scarman considered the extent to which the wishes of a child could, in law, override those of her parents (here in the context of obtaining contraceptive advice). He set out his views and included the following:[3]

Certainty is always an advantage in the law, and in some branches of the law it is a necessity. But it brings with it an inflexibility and a rigidity which in some branches of the law can obstruct justice, impede the law’s development, and stamp upon the law the mark of obsolescence where what is needed is the capacity for development. The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change….

The reasoning in Gillick and the 1988 Report of the inquiry into child abuse in Cleveland 1987[4] reflected a number of the views then current amongst children law reformers. These views, combined with the Law Commission proposals, catalysed to provide the fertile law reform soil in which grew the Children Act 1989. It was a good time to be involved in family law reform.

 

Care proceedings and ‘family justice’ procedure

 

A new approach to care proceedings in particular was proposed by Children Act 1989 Part 4. The aim was to place responsibility for care proceedings for children with local authorities, and to reduce the control of the courts (hitherto operated under a miscellany of statutory provisions and in wardship). In principle the care provisions – ‘significant harm’[5] being the criterion for a care order – simplified the law. Court procedure has not moved in step with this simplification. It is the job of lawyers to protect their clients, and ensure the best result for the individual. It is the job of judges to see fairness and ‘equality of arms’.[6] Fairness to parent and speed of disposal for a child do not always walk hand-in-hand. Children and Families Act 2014 s ## considered this; but in an arbitrary and ineffective way. The whole process of child law – welfare reporting, expert evidence, social work presentation of cases – needs urgent review and can be a component of this inquiry.

 

To the credit of successive governments since 1990 (including the present administration under Legal Aid Sentencing and Punishment of Offenders Act 2012), legal aid for all the main parties involved in first instance child care proceedings has remained the same. A child in care proceedings (regardless of age) will always be represented; and parents have legal aid, regardless of their means or the merit of their case (unheard of in any other area of law).

 

Child law review

 

Anyone who practices in the area of child protection and child law will have their own list for proposed reforms. Working within the ambit of a child sex abuse inquiry, mine would include the following:

 

Safeguarding

 

In the homes of children where abuse occurs – a parent, a step-father, an older brother etc: children need to know where they can turn for help. The same applies to institutions of all sorts: schools (private and state-run), foster homes, hospitals, police, the courts. Others will be better qualified than me to define and categorise the work which needs to be done here; but detailed work – including with the next section – needs to be done. A child sex abuse inquiry must make recommendations.

 

Response

 

One of the main consequences of the Cleveland inquiry was to stress the individuality of children. It was also, for present purposes, to lament the failures of individual public bodies – local authorities, schools, police etc – in their response. Working together – now in its 2013 edition[7] – was part of the response. Plainly this is an area which is critical to the inquiry’s recommendations.

 

Court proceedings

 

Where a child who is living at home has been abused[8] it is often the case that there will be parallel criminal and care proceedings: the criminal proceedings to decide the guilt of the parent (or other) who is said to have abused the child; and, sometimes, in care proceedings to consider whether the child or children have suffered ‘significant harm’ (within the terms of Children Act 1989 Part 4[9]) and to decide whether the court should make a care or supervision order in respect of the child.

 

Different state authorities – CPS and local authority children departments – are involved in each set of proceedings. Different courts – Crown Court and family courts – and different court rules and procedures are involved. And yet the more important parts of the same factual evidence is in issue; the same standard of proof is often required; and the same findings will be made against the abuser. One trial is before a jury, the other before a family court judge (who could be the same or same level of judge in both separate courts). The tension between the two court systems is regulated by no clear law or procedural rules; but only – thus far – a form of guidance: Protocol and good practice model, October 2013: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings.[10]

 

Subject to that, or perhaps with that also in mind, is there any way that the two disparate sets of proceedings can be combined, in those cases where guilt of an abuser is in issue alongside Part 4 proceedings? This would also reduce the tensions considered in the next section: as to how a child’s evidence is put before the court where there is only a limited liaison between the criminal and civil jurisdictions of the courts, what are the formal procedures involved and what judge should conduct the respective trials?

 

Role of the child in such proceedings

 

Incredibly in 2014/5 the family courts still lag behind the criminal courts in the way evidence from children is received. Such is the problem that, at the time of writing of this note, a ‘working group’ from within the family courts system is considering the issues. Their title is Children and Vulnerable Witness Working Group.[11] The intent of this group is limited. If it is to do its job properly it must expand its brief considerably. That is a separate point.

From the point of view of a child sex abuse inquiry this is area of work where it must be expected to make extensive recommendation. Joined up thinking is required between Ministry of Justice and the Home Office, since a child who has been abused and their evidence is central to what the working group are doing. (My more detailed recommendations and submissions to the working group can be found at ##.)

 

Support for abused children in their families

 

Others will be better qualified than I am to look at support for children who have suffered abuse; for their families; and – where needed – for survivors long-term. This must be on the agenda for recommendations by a child sex abuse inquiry.

 

Criminal injuries compensation for children

 

A child sexual abuse inquiry must consider the workings of the CICB and whether – as it now operates – it is fair to children; and whether its procedures are effective for the children and others concerned.

 

Treatment and release from prison (if ever) of offenders

 

A child sexual abuse inquiry must consider the workings of parole boards where they are concerned with abusers whose survivors, and their families, will still be alive (and perhaps under threat) where the boards considers convicted abusers for parole. Thus, for example, should the survivor – as the abused person – have an absolute right to the final word on any abuser’s parole board application; and to be entitled to legal representation with legal aid for such final word? This area and how society deals with abusers when they are to be considered for release from prison – both for the sake of their victims and families, and for any future possible victims – requires urgent and very careful consideration.

 

David Burrows

26 October 2014

 

 

[1] Now Baroness Hale of Richmond SCJ

[2] [1986] 1 AC 112, [1986] 1 FLR 224

[3] At 250-251 and 253

[4] Cm 412 London: Her Majesty’s Stationery Office

[5] Children Act 1989 s 31(2)

[6] Reflected now in the family proceedings overriding objective in Family Procedure Rules 2010 r 1.1

[7] Working Together to Safeguard Children (March 2013)

[8] For this note, I’ll skip the conventional ‘allegedly’: I am not dealing directly with guilt or not here

[9] I avoid the terms ‘care proceedings’ (since the result may also be a supervision order or an order under Children Act 1989 Part 2) and ‘public law’ which is very confusing (especially for a lay reader, even for any lawyer who is not familiar with family proceedings) since for most people ‘public law’ means administrative law conducted in the Administrative Court

[10] Set out eg in Family Court Practice 2014 at p 2977

[11] Their interim report is at http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/

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3 thoughts on “#CSAINQUIRY: WHAT THE INQUIRY MUST CONSIDER

  1. Pingback: #CSAinquiry: RESPONSE TO CONSULTATION ON CHILDREN AND VULNERABLE WITNESSES | dbfamilylaw

  2. Pingback: A FAMILY LAW REFORM MANIFESTO | dbfamilylaw

  3. Pingback: A Fortnight in the Life of the Overarching Child Sexual Abuse Inquiry. Where now? | cathyfox

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