The Children Act 1989 in the highest courts

Publication Date30 Jun 2010
DOIhttps://doi.org/10.5042/jcs.2010.0298
Pages17-28
AuthorBrenda Hale
SubjectEducation,Health & social care,Sociology
Journal of Children’s Ser vices • V olume 5 Issue 2 • June 2010 © Pier Professional Lt d 17
10.5042/jcs.2010.0298
Abstract
This article gives an account of the cases in which the Children Act 1989 has been interpreted
and applied by the highest courts in the UK, the appellate committee of the House of Lords
until October 2009 when their jurisdiction was taken over by the new Supreme Court of the
UK. It explains the reasoning behind those decisions and how they did, or did not, reflect the
thinking of the original framers of the Act. It concludes that, by and large, the Act has stood
up well to judicial scrutiny but that the Human Rights Act 1998 has brought new challenges to
which it must respond.
Key words
Children Act 1989; Supreme Court of the UK; Human Rights Act 1998; local authorities’
duties; children in need
! those explo ring the applicatio n of the
welfare pri nciple in new or unusual
situations
! those explo ring the meaning of the
threshold c riteria and the c ourts’ powers in
care procee dings
! those consi dering the scope of local
authorities’ powers and duties towards
children in need
! those consi dering the very n ature of
proceedings under the Act.
These are, of course, the most fundamental
questions o f principle raised by the Act. The y
mainly conc ern the powers an d duties of local
children’s services authorities in public law; m ore
mundane que stions of private law have stayed in
the lower courts.
The welfare principle
Section 1(1 ) of the Act se ems quite clear: ‘When
a court determines any question with re spect to
the upbringing of a child … the child’s welfare
Introduction
The Law Lords (now the Supreme Court Justices)
only take those cases that involve a ‘point of law
of general public importance’. They are looking at
the big picture rather than its everyday application
in the courts. So, it is quite a surprise that they
have decided so many cases about the Children
Act 1989 in the nearly two decades since it came
into force. It is a salutary lesson to those of us
whose mission was to simplify and clarify the law.
We tried to foresee the impact of the European
Convention on Human Rights, but we did not
then envisage that the Convention rights might
become part of the law of the UK (through the
Human Rights Act 1998). We did not foresee the
influx of child asylum-seekers for whom the local
authorities would have to take responsibility. And
we could not foresee all of the real life problems
that would come along to tax the principles that
we had devised and the words that the draftsmen
had used to enact them.
The cases decided in the highest courts fall into
four broad categories:
The Children Act 1989 in the
highest courts
Brenda Hale
Justice of the Supreme Court of the United Kingdom

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