The Children and Families Act: a step too far?

The Children and Families Act is designed to prevent another Baby P scanario – but at the expense of biological parents, argues Kelly Thornton

The Children and Families Act 2014 is the passion project of chief whip and now ex-Secretary of State for Education Michael Gove.

Gove was adopted aged four months and has used this new statute to protect children who are at risk of harm by allowing the state to take these children into care and have them adopted without their birth parents’ permission.

Edward Timpson, Children and Families Minister, has said: “The Children and Families Act is all about reforming services for vulnerable children – reflecting this government’s deep determination to give every child, whatever their start in life, an equal chance to make the best of themselves.”

Although ‘closed adoptions’, as they are known, were allowed in the UK before this new statute, many have criticized this new approach as being too biased towards adoption and drawing focus away from helping birth families and their relatives raise the child themselves.

A product of the welfare state?

This statute is a product of the ever-expanding welfare state and perhaps now a step too far. Clearly, in the right circumstances, once all has been done for the birth families in terms of state support and funding, then if the child is still at risk they should be adopted out of the family. 

But this statute goes too far: it severs the legal relationship between the birth family and child, meaning the child is no longer legally related to its parents or birth siblings. The Act allows the state to monitor any future births in the family and put those future children on care orders, and also promotes adoption outside of the family to complete strangers rather than wider family first. 

This Act is an example of the state being too protective and not giving parents who struggle a fair chance to raise their children. Surely we should give the birth family every chance to try and raise their child before we take them away? Not only for the family’s sake, but for that of the child.

Many legal commentators are sceptical, including Luke Gittos, law editor at Spiked, who argues that the Act means that children will be taken away from their natural families in the name of efficiency.

This Act does not focus enough on the effect of forced adoption on the child: it merely assumes that it will be positive. There is no consideration for how a child may be damaged socially and psychologically due to being taken away from all of its natural relatives and given absolutely no contact with them until the age of 18. 

The influence of the Baby P case

Behind the Children and Families Act is the infamous Baby P case, which has spread panic through the family courts and social services alike.

There is an atmosphere of caution around all possible child abuse cases which means that, when in doubt, social services are likely to take a child into temporary foster care at the very least in order to avoid a Baby P-type scenario. This has led to this new statute being too focused on adoption over other methods, such as support and parenting classes for the parents. The former high court judge Sir Mark Hedley recently stated that he believes that the Baby P case has made the law and social work done in this area too cautious and defensive.

A case where the influence of the Baby P case is clear is that of Lucy Allan, a councillor in the London Borough of Wandsworth. Mrs Allan was deemed to be an unfit mother by social services due to a mild depression she was suffering.

Mrs Allan reported that the social workers asked many leading questions, such as, ‘This is the worst depression you have ever had, isn’t it?’ and ‘You are clinically depressed, aren’t you?’ – this shows the sorry state of affairs that can lead to forced adoptions. Fortunately, Mrs Allan got an independent psychological analysis which showed that she was not a risk to herself or her son, but it took two years for the accusation to be removed from her records so that she could work with children if she chose to.

This is a clear example of the influence that the Baby P case had in this area of law. It shows the state’s desire to be over-protective on the off-chance that a child might be at risk, all because the social workers and police do not want to be seen to be ignoring serious allegations.

The way to solve this over-protectionist attitude would be to invest in monitoring of the parents and long-term therapy so that, wherever possible, children can stay with their families and only be taken away if they are really in danger if they remain with their biological parents. 

‘Emotional abuse’

The problem with allowing children to be forcefully adopted because they are ‘at risk of emotional abuse,’ as the new act states, is that it is far too subjective. The noble aim of protecting children from the hidden danger of emotional abuse is overshadowed by the subjectivity of the term ‘emotional abuse.’

While the Centre for Disease Control and Prevention provides guidelines on what would be considered emotional abuse, it is a notoriously vague area. The issue is that two social workers could walk into identical scenarios and one may deem that a child is at risk of emotional abuse while the other reports a perfectly normal family scenario; thus, when a child is removed from its parents on the grounds of emotional abuse it could be done so arbitrarily.

In short, by allowing children to be forcibly adopted if they are at risk from emotional abuse, the state is creating a situation whereby the future of a child and who they grow up with is determined purely on the arbitrary and subjective observations of a social worker.

To address this, a system should be put in place whereby there are multiple checks and consensus between police, GPs and social workers that a child is at risk. Only when there is a group decision that the child is at risk should the child be taken away. 

The future 

The UK law in this area should provide three things:

  1. Less of a focus on the strangers adopting the children and more on the emotional and psychological effect this will have on the child in both the long and short term.
  2. Visitation access to children who need to be in foster care while their parents are learning how to parent more effectively
  3. A chance for women who are vulnerable to putting their child at risk to prove that they can parent their child properly, therefore putting less stress on vulnerable pregnant women.

Kelly Thornton is a final-year law student at Queen Mary University of London.