CHILDREN IN CARE AND THE CHILDREN ACT 1975*
| Author | J. M. Eekelaar |
| Published date | 01 March 1977 |
| Date | 01 March 1977 |
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02414.x |
THE
MODERN LAW REVIEW
Volume
40
March
1977
No.
2
CHILDREN IN CARE AND
THJ2
CHILDREN
ACT
197.5”
IT
MAY
seem paradoxical that, at
a
time when it has become
unfashionable to speak of parental
“
rights
”
over children legisla-
tion is passed putting the law respecting “rights” over children
into a state of unprecedented complexity. The reason is that, although
securing the child’s welfare is now the dominant aim of our child
law, there is no shortage of persons claiming authority to decide
where
a
child’s welfare lies. Nowhere is this more true than where a
child comes to the attention of the welfare authorities. Social workers
(of many kinds), doctors, psychiatrists, lawyers, guardians
ad
Zitern,
judges, magistrates, foster-parents, step-parents and even natural
parents may be in contention over the right to decide the child’s
future. All may indeed have a part to play, but the task of ascribing
their respective roles and powers is formidable. The Children Act
1975 (hereafter, “the 1975 Act
”)
represents a major attempt to
provide the requisite framework for the foreseeable future. Although
substantially based on the Report of the Departmental Committee
on the Adoption of Children (Houghton Committee),2 the Act is
not confined to adoption. This article seeks to examine and assess the
impact of its provisions on the legal position
of
children in care
of loeal authorities and voluntary organisations. The Act will be
implemented in stages, and reference will be made to the latest
intentions
of
the government on this where relevant, but the exposi-
tion will be on the assumption that the Act is completely in force.
THE CHILDREN ACT 1948 AND THE VOLUNTARY PRINCIPLE
The foundations of the legal framework within which children are
received and kept in care by local authorities were laid by the
Children Act 1948 (hereafter,
“
the 1948 Act
’,)
and it is upon them
*
Since the completion of this article, sections of the Children Act 1975 dealing
with adoption have been replaced in the Adoption Act 1976. The original references
have, however, been retained with cross-references to the new provisions where
rclevant.
1
See
J.
C.
Hall, “The Waning of Parental Rights” [1972B] C.L.J.
248;
in
M.
v.
M.
[I9731 2 All
E.R.
81,
the Divisional Court referred to access as a right
of the child, not the parent.
2
Cmnd. 5107 (1972).
121
VOL.
40
(2)
1
122
THE
MODERN
LAW REVIEW
[Vol.
40
that the structure of the 1975 Act rests.
If
the scheme is to function
properly, the ground rules must be correctly applied. Section
1
(1)
of the 1948 Act places
on
local authorities a duty to receive
a
child
into care where “it appears” to them that certain conditions
existe3 The duty is to
receive
the child. One does not properly
“
receive
”
something unless it is voluntarily given.
If
the authority
wishes to
“
take
”
the child against
a
parent’s will, it may remove
the child to a
“
place of safety
”
and bring proceedings for
a
care
order
“
committing
”
the child to its care.5 The voluntary nature of
reception is confirmed by section 1
(3)
of the 1948 Act:
s.
1
(3)
Nothing in this section shall authorise a local authority
to keep a child in their care under this section if any parent
or
guardian desires to take over the care of the child . .
.
Since the retention of the child becomes unauthorised when a
parent indicates his desire to have the child, it seems obvious that
the initial reception is authorised only if it is voluntary.6 The
voluntary nature of the transaction is underlined by the absence
of
any formality indicating the point at which the child comes into
care. Whether
a
child is considered
“
in care
”
from the moment
he leaves his home with a social worker or only when he is admitted
to
a
children’s home is of little consequence when a parent may
recover him at any time by an equally informal expression
of
“
desire.” Nor would it be consistent with voluntary, informal
admission if the authorities could retain the child against his parents’
wishes. That might even be regarded as
a
fraud on the parents.
Section
1
(3),
it seems, was intended to put this beyond doubt and
this is supported by section
2,
which provides a formal procedure
(“
section
2
resolution
”)
by which the authorities may compulsorily
retain
a
child initially received voluntarily. The procedure includes
special safeguards for parents.? It is noteworthy that section
1
(3)
is expressly excluded with respect to a parent
on
whose account a
section
2
resolution is passed.s
The scheme was clearly understood in this sense by Lord Goddard
C.J.
in
Re
A.B.9
But he uttered a dictum which was later to lead
These are, in short, that the child is an orphan,
or
abandoned or
lost,
or that
“
his parents or guardian are, for the time being or permanently, prevented
. . .
from
providing for his proper accommodation, maintenance and upbringing
”
and in each
case, that intervention is necessary in the child‘s interests: Children Act 1948,
s.
l(1).
4
See the distinction between
“
receiving
”
and
“
taking
”
in H. Bevan.
The
Law
Relating to Children
(1973),
p.
146
and
Clarke Hall and Morrison
on
Children
(1972).
p. 882.
5
Children and Young
Persons
Act 1969,
s.
1
and related provisions. The procedure
is described in Bevan,
op.
cit.
p. 54
et seq.
A place of safety order
is
not however,
a necessary prerequisite for a care order.
6
“Your Lordships will notice that the local authorities are not entitled under
clause
1
to remove a child from the care of the parents against their wishes,”
per
Lord Jowitt L.C., H.L.Deb., Vol. 153,
col.
918.
Discussed below.
8
C.A. 1948,
s.
3
(2), now C.A. 1948,
s.
2 (6) (new) by virtue
of
Children Act
9
[1954]
2
Q.B.
382.
1915,
s.
51.
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