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Hayes, Mary --- "Protecting Children in England and New Zealand." [1999] CanterLawRw 4; (1999) 7 Canterbury Law Review 297


Mary Hayes[*]

The law relating to child protection is about devising rules and procedures aimed at preventing defenceless children from suffering significant harm at the hands of those who are bringing them up. 'Significant harm' is the phrase used in English law as a euphemism for forms of abuse which include physical violence, sexual violence, neglect and the infliction of psychological damage. One of the saddest features of our increasing knowledge of the impact of child abuse on family life is the realisation that the harm caused often does not end when the child becomes old enough to protect him or her self. An adult who has suffered preventable significant harm when a child is liable, at the least, to have difficulty in making and sustaining positive personal relationships. Even more worryingly, it has been established in several studies that parents who abuse their children were often themselves the victims of abuse. Accordingly, the establishment of systems for the protection of children from actual or potential danger is a matter of grave concern for law and policy makers, for the families of child victims, for practitioners in the field and, most crucially, for children.

The author of this paper last visited New Zealand in 1986. At that time the law relating to child protection was under review in both countries. Since then England has seen the enactment of the Children Act 1989, which was a milestone in the development of English child law, and New Zealand has enacted similar milestone legislation in the Children, Young Persons, and their Families Act 1989. Both Acts expect professionals to work in partnership with parents, though in New Zealand the partnership approach more readily extends to the wider family. Interestingly, the word 'partnership' does not appear in either legislation, yet it is a concept which encapsulates the spirit of what is intended in both countries. However, a closer scrutiny of the legislation reveals that there is little similarity between the approach adopted by each country to the implementation of the partnership principle in relation to children in need of care or protection. In particular, there is considerable disparity over who should exercise critical decision making powers about such children. This paper describes the English position, considers the role of the family group conference in New Zealand and reflects on important issues of principle raised by two cases which have divided the House of Lords.

I. Provision of Services in England - Duties and Discretion

The Children Act 1989 recognises that parents sometimes need help in caring for their children and it imposes duties and powers on local authorities to provide services for 'children in need' and their families. Children in need are those children who are disabled, or those children whose health or development will be put at risk without the provision of services.[1] Part III of the Act acknowledges the inter-relationship between providing services for children in need and protecting children from suffering significant harm and requires local authorities to take steps which are designed to reduce the need to bring care proceedings.[2] Local authorities are expected to work in partnership with parents,[3] and the institution of care proceedings is normally seen as a last resort. The value of the family to the child is recognised in a key provision which lays a general duty on every local authority-

a) to safeguard and promote the welfare of children within their area who are in need; and
b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs.[4]

Part III and Schedule 2 use the language of 'shall' and 'may' when specifying the nature of the services to be provided by a local authority. A local authority 'shall' provide day care for pre-school and other children in need; they 'may' provide such care for other children.[5] They 'shall' provide accommodation for specified children in need, including a child who has reached the age of 16 whose welfare is otherwise likely to be seriously prejudiced; they 'may' provide accommodation for other children.[6] They 'shall' provide family centres in relation to children within their area[7] where the child, his parents, any person with parental responsibility and any other person who is looking after him may attend for occupational, social, cultural or recreational activities; advice, guidance and counselling; and where such a person may be provided with accommodation while he is receiving such advice, guidance or counselling.[8] In relation to children in need who are living with their families, a local authority 'shall make such provision as they consider appropriate' for the following services: advice, guidance and counselling; occupational, social, cultural or recreational activities; home help (which may include laundry facilities); facilities for, or assistance with, travelling to and from home for the purpose of taking advantage of any other service provided under the Act or of any similar service; and assistance to enable the child concerned and his family to have a holiday.[9] They 'shall' also take reasonable steps designed to prevent any children within their area suffering ill-treatment or neglect, and to reduce the need to bring care or other legal proceedings with respect to such children.[10] Where it appears that a child is suffering, or is likely to suffer, ill-treatment at the hands of another person who is living on the same premises the local authority 'may' assist that person to obtain alternative accommodation, and such assistance may include the provision of cash.[11]

It can be seen from this structure that England has recognised that it is essential to assist families in a practical way if they are properly to care for their children. The inter-relationship between providing services for children in need, and protecting children from suffering significant harm, is firmly established[12] and consequently a huge burden of responsibility to provide services for families is placed on local authorities.[13] Where a local authority fail to provide a service for a child in need which they 'shall' provide, then they are in breach of their statutory duty. However, some discretion is built into many of the 'shall' provisions; the provision made must either be 'reasonable' or 'as is appropriate,' and there is no doubt that many authorities, because of financial constraints, only provide the services which they must provide. One advantage of the inter-disciplinary 'working together' approach is that other agencies, such as health, housing and education cannot simply shrug off responsibility to the social services department.[14] Most social services departments none the less claim that insufficient resourcing prevents them from properly engaging in preventative work with families.

II. Provision of Services in New Zealand

In New Zealand, the Children, Young Persons and their Families Service has a similar duty to promote the well-being of children in their families. However, section 7(2) of the Children, Young Persons, and Their Families Act 1989 is short on detail about what resources should be put into this commitment. Critics of how the legislation is working in practice state that the Service appears to be starved of adequate funding to meet its obligations, and there has been extensive fault-finding in the Service's failure to provide families with the support which they need.[15] This criticism has been forcefully expressed by Pauline Tapp:

It is my submission that the failure of the Government to respond to the numerous expressions of concern about the lack of a proactive, responsive, co-ordinated and well- resourced child and family policy is resulting in an increasing number of overly stressed, financially and emotionally needy people, who are establishing unstable or dysfunctional relationships. Such needs and relationships are putting extreme pressure on the law and legal mechanisms which are ill-equipped to respond.[16]

Indeed, Tapp goes on to state that the Service is so under-resourced that it explicitly targets its resources at the 'high-risk' end of the continuum. This must be a matter of grave concern. There is a clear link between poverty, domestic violence and other adverse circumstances such as a child being sick or disabled, and the abuse of children. If families are going to help themselves they need properly funded support services to be made available. Structures which require the different agencies to share responsibility for child protection through service provision appear to be long overdue. The question whether resources should be invested in prevention is fundamentally a political issue. The acceptability of not providing families with the services they need depends on society being willing to tolerate a certain level of child abuse. Simply targeting high risk families screens out too many needy children, including those who may be suffering abuse. Where families are overwhelmed by the demands of daily living, or where they have limited skills and need assistance, they are not in the frame of mind to acknowledge that the ways in which they treat their children are abusive, let alone to respond to pressures to make changes in their attitudes and behaviour, unless they are given consistent, pro-active support.

III. Responding to The Suspicion That a Child is Suffering, or is Likely to Suffer, Significant Harm - The English System

Where the suspicion that a child is suffering, or is likely to suffer, significant harm is brought to the attention of a local authority they are under a duty to investigate.[17] The value of different agencies working together in the early detection and prevention of child abuse is emphasised in the guidance issued under the Act.[18] Each local authority, under the auspices of their area child protection committee, must draw up child protection procedures to which all collaborating agencies and persons are expected to adhere.[19] The focus of the inquiry must be directed in particular towards establishing whether the local authority should initiate any court proceedings or exercise any of their other powers under the Act.[20] Section 47 does not give a local authority any coercive powers. There is nothing in section 47 which empowers a local authority to enter premises, despite the fact that one of their duties when conducting their investigation is to take such steps as are reasonably practicable to obtain access to the child.[21] Rather, the local authority are reliant on the person who has care of the child allowing them to see the child. However, co-operation from such a

person may be forthcoming when it is explained that if a person conducting an inquiry under section 47 is refused access, or denied information as to the child's whereabouts, 'the authority shall [22] apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without them doing so.'[23] Tragically, many children who have died at the hands of those looking after them are those children to whom social workers and others have not insisted on having proper access, hence the mandatory drafting.[24] Of course, there may be no need for legal intervention even where significant harm is discovered. Where parents and other persons caring for the child are willing to work with social workers and other professionals in addressing the concerns which have arisen, it may be decided that the child can be adequately protected if he remains at home while work with the family is attempted.[25] Determining which is the most effective response to a discovery that a child is suffering, or is likely to suffer, significant harm is not easy for local authorities. The main system which is used to protect children is to hold a multi-agency case conference. At that case conference, persons with knowledge of the child and his family pool information about the child, make recommendations for future action, and decide whether the child should be put on a child protection register.[26] This register lists all the children in the locality for whom there is an inter-agency protection plan.[27] The plan itemises the steps which have been agreed about what should be done to protect the child and it is for the agency representatives to decide how responsibility for implementing the various parts of the plan is to be allocated. A date for reviewing how the plan is working will be set. The child of sufficient age and understanding is encouraged to attend at the conference, though normally not to be there throughout, so that his voice about his own future is properly

heard. Parents and persons with parental responsibility should also be invited to attend unless there are exceptional reasons for their exclusion.[28]

The choice for a local authority where they have reasonable cause to believe that a child is suffering, or is likely to suffer, significant harm, is either to leave the child where he is and to put resources into protecting the child at home, or to take care proceedings.[29] Information gathered prior to the implementation of the Children Act 1989 revealed that neglecting families could drift for years beyond the boundaries of acceptable parenting without a systematic assessment being made of the situation, or legal proceedings being instituted.[30] Yet placing a child in care may not be the best solution for the child. Research has demonstrated that 'far from remedying existing deficiencies ... periods in public care have further impaired the life chances of some children and young people because of poor educational achievement, uncorrected health problems and maladjustment.'[31] The dilemma for child protection law and procedures is how to 'ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.'[32] The law must strike a proper balance between giving due weight to the right of everyone to respect for his private and family life,[33] and giving due weight to the rights and freedoms of the child. The dilemma is made more complex because the rights and freedoms of the child are inextricably bound up with the rights and freedoms of the parents. The notion that every child has the right to be brought up by his or her own family is a notion which normally accords with the child's wishes and feelings, and is generally believed to promote his best interests. Yet, when taken to an extreme, such a notion may identify a child's interests too closely with his parents, and create a climate of unwillingness to remove a child from his home even when this is necessary to protect the child.[34] It

may lead to responses to significant harm failing to give adequate respect to the child's right to be treated as an autonomous individual.

IV. Responding to The Suspicion That a Child is Suffering, or is Likely to Suffer, Significant Harm - The New Zealand System

The Children and Young Persons Service in New Zealand faces the same dilemmas. Prior to 1989, well-founded criticism was made in Puao- Te-Ata-Tu (Day Break) [35] of the manner in which the then existing child protection system excluded family participation, and failed to recognise that Maori, who were over-represented in the child welfare statistics, had traditionally placed significant emphasis on community fellowship and family support. The impact of this report was remarkable and lead to the enactment of a significantly different child protection framework from that which was originally proposed. The Children, Young Persons, and Their Families Act 1989 is family centred as distinct from child centred. its statement of principles to be applied in the exercise of powers conferred by the Act gives equal weight to the welfare of the child and the stability of the child's family, whanau, hapu, iwi and family group.[36] The same statement of principles directs that, wherever possible, 'the relationship between a child or young person and his or her family, whanau, hapu, iwi and family group should be maintained and strengthened'.[37]

In New Zealand, decision-making has been diverted from the courts to family group conferences. indeed, no application may normally be made to a court for a declaration under section 67 of the Children, Young Persons, and their Families Act 1989 that a child or young person is in need of care or protection unless a family group conference has first been held,[38] and a court may not make such a declaration unless a family group conference has been held.[39] Furthermore, it is the role and function of the family group conference to make such decisions and recommendations and to formulate such plans as it considers necessary or desirable in relation to the child's care or protection.[40] It is only where agreement cannot be reached that the case will be brought before a court.

The New Zealand attitude to decision-making by family group conferences in child protection is in startling contrast to the English approach. Is this desirable, or could it be that the manner in which the ideology of the family has been translated into making the family group the primary decision- making body in child protection cases has exposed New Zealand children to an unacceptable level of risk?[41] Most child abuse and neglect occurs in the deeply private surroundings of the family home, and the child's feelings of guilt, shame, fear and powerless make him particularly vulnerable to pressures to keep what is happening to him secret from outside investigators. Social workers and others owe it to children to develop safe and effective child protection practices where it clear to all that the child is the primary client and his or her safety and well-being is of paramount importance. Yet the legislation which informs their protective activities does not allow them any discretion in how best to respond. Rather the Act directs them to notify their belief that a child or young person is in need of care or protection to a care and protection co-ordinator, and the care and protection co-ordinator must respond by convening a family group conference.[42]

V. The Family Group Conference

The function of the family group conference is to consider such matters relating to the care or protection of the child as the conference thinks fit. Where the conference members consider that the child is in need of care or protection they are expected to make decisions and recommendations and to formulate plans.[43] The involvement of a widely defined family group where there are serious concerns about a child is an admirable feature of the New Zealand process because it compels a family to confront problems which have arisen over the child's care and safety, and gives interested family members the opportunity to participate directly in planning for the welfare of the child. However, the legal framework within which the family group conference is conducted exposes the child to a form of decision- making which may not have his or her best interests at heart. The manner in which the family group conference conducts itself is almost entirely unregulated by law. Indeed, it is specifically stated that the conference may regulate its procedure in such manner as it thinks fit.[44] Moreover, although the care and protection co-ordinator, the police officer, the social worker, or a representative of the body or agency who referred concerns about the child are all entitled to attend the family group conference and to share their knowledge 'no such entitled to be present at any family group conference during any discussions or deliberations held among members of the family, whanau, of family group of the child or young person in respect of whom the conference is held, unless those members request any such person to be present.'[45] Thus decision-making is placed in the hands of the family group in circumstances where it is possible that some of the decision-makers are the very same people that are endangering the child.

This sacrosanct approach to the privacy of family discussions is compounded by the provision which entitles the conference to exclude from the private part of the meeting any barrister, solicitor or lay advocate representing the child or young person.[46] Consequently there is no-one present at the conference whose duties are to represent the voice and interests of the child and to report back on what is said to the child care and protection co-ordinator. The rights of the child as an autonomous individual and not simply as an object of concern are entirely disregarded.[47] It is assumed that the child's rights and interests are identical to those of the family group to whom decision-making is entrusted. Moreover, there is no- one present at the private part of the conference whose role it is to ensure that the family group concentrates on relevant matters, focuses on the credibility or otherwise of explanations given by family members of how the harm the child is suffering occurred, looks at the child's emotional and psychological state as well as at his or her physical condition, and directs the members of the group towards a carefully formulated risk assessment of proposals for the child's future care.[48] If such enormous power over the life of a child is to be given to the family group, surely systems should be put in place to ensure that discussion concentrates on the best interests of the child, is not dominated by those with the strongest personalities, that family members who (in the group's eyes) have low individual status are given a proper opportunity to express their views, and that no-one is frightened to express dissent from an emerging group consensus.

It is of course true that the family group conference's decisions and recommendations will only be implemented where professionals from the referring agencies agree with what is proposed. Where the view is taken that the child will not be adequately looked after or protected by what is proposed, the matter can be brought before the court. However, section 37 of the Act states that 'no evidence shall be admissible in any court, or before any person acting judicially, of any information, statement or admission disclosed or made in the course of a family group conference'. Attaching privileged status to family deliberations where child protection is the subject matter of the discussions strikes this author as a dangerous strategy. The reason for according this privilege was, presumably, to encourage family members to speak freely amongst themselves, and in front of professionals, without fear that anyone would be able to take advantage of this openness or use it as the evidential basis for the institution of child protection proceedings. In the author's opinion, however, the notion that it is safe to allow families to keep secrets where child abuse is occurring is indefensible. In child protection cases, indeed, in all children cases, the arguments in favour of privilege are overriden by other, stronger, policy considerations. Decisions should not be made in any forum about whether a child is suffering, or is likely to suffer significant harm, or about the steps which should be taken to protect the child, in ignorance of material facts.

VI. The Approach of The House of Lords to Issues of Privilege

Issues of privilege in children cases have arisen in England in the context of the preparation of cases for trial. It would normally be regarded as an extremely serious breach of professional practice if a lawyer were to disclose material which was against his client's interests, and contrary to instructions. However, after the implementation of the Children Act 1989 the court of Appeal made a number of rulings in which they held that a court has power to override any privilege applying to experts' reports prepared for the purpose of applications brought in care proceedings, and to order their disclosure.[49] In Re L (A Minor) (Police investigation: Privilege),[50] the House of Lords was deeply divided on whether the special attributes of children cases justified the Court of Appeal's approach, and only approved it by a 3:2 majority. Lord Jauncey, speaking for the majority, said that, in his opinion, a distinction should be drawn between a communication between solicitor and client, to which absolute legal professional privilege applies, and the privilege attaching to reports by third parties prepared on the instructions of a client for the purposes of litigation. He described the latter as litigation privilege and held that different policy considerations apply. His Lordship was of the opinion that if a party was able to conceal, or withhold from the court, important matters relevant to the future of the child, there would be a risk that the welfare of the child would not be promoted as the Children Act 1989 requires. He declared that children proceedings are non-adversarial and investigative, that the court's role is to to make a decisions which are in the best interests of the child, and therefore that litigation privilege has no place in children proceedings.[51]

It remains uncertain whether there is a positive duty on a party to proceedings concerning children to make voluntary disclosure of all matters likely to be material to the welfare of the child, and whether this duty extends to legal representatives in possession of such material, even though such disclosure is contrary to the interests of their client. The imposition of such a duty would be a dramatic inroad into the area of legal professional privilege.[52] Lord Jauncey, said that while it might well be that such a development would be welcome in cases where the welfare of children is

involved, he did not find it necessary to come to a conclusion on the point. It seems likely that there will be movement in this direction in the same way as the courts have increasingly adopted a policy of openness in relation to confidential information.[53]

VII. The approach of The House of Lords to Proof of Actual, or Apprehended, Child Abuse

The type of evidence which can be adduced to substantiate a claim that a child is likely to suffer significant harm is another matter which has divided the House of Lords. some forms of child abuse can be very difficult to prove. Fractures of the same type may occur accidentally or non- accidentally. some bruising and scalding is consistent with a child having been deliberately harmed, but the same injuries may also occur innocently. A doctor may be uncertain whether a child is failing to thrive because of neglect or because of some organic cause. Munchausan syndrome by proxy is hard to identify (partly because the abusing parent's behaviour appears to be completely at odds with his or her treatment of the child). Many children face daily emotional abuse in the form of being constantly shouted at, denigrated, criticised and rejected, but the scars caused by such treatment are to the child's personality, not to her body. sexual abuse is notoriously hard to diagnose because of the uncertain nature of the medical evidence. A substantial proportion of sexually abused children have no abnormal physical signs.[54] Expert witnesses disagree, give different weight to symptoms alleged to be consistent with abuse, or occasionally cannot be trusted to give an unbiased opinion[55] . Serious child abuse is rarely witnessed by a third party. It is therefore hardly surprising that many local authorities are reluctant to pursue an application in care proceedings without very clear and tangible evidence that the child is suffering, or is likely to suffer, significant harm. Even where the local authority believe that they have such evidence they may still take the view that it is insufficiently persuasive to satisfy a court that their case has been proved on the balance of probabilities. As Lord Nicholls acknowledged in Re H (Minors) (Sexual Abuse: Standard of Proof)[56]

I am very conscious of the difficulties confronting social workers and others in obtaining hard evidence, which will stand up when challenged in court, of the maltreatment meted out to children behind closed doors. Cruelty and physical abuse are notoriously difficult to prove.

It is very unusual for the child herself to appear as a witness in the civil courts in England. Appearing in court is a traumatic and distressing experience for an allegedly abused child, so the civil courts have (rightly) taken the view that a child should not be required to re-live abusive experiences or face cross-examination as to credibility. Instead other

witnesses tell the court what the child has said, and describe to the court how she has behaved. A hearsay account of what the child has said cannot properly be tested in cross-examination, yet it can be highly prejudicial to the alleged abuser, usually one of the parents. This led the Court of Appeal to advise courts to adopt a cautious approach when evaluating hearsay evidence of abuse,[57] and to be very slow indeed to find an allegation of abuse proved on the basis of hearsay evidence alone. Hearsay evidence, sometimes supplemented by video recorded evidence which is technically hearsay, is often the most important evidence in a child protection case and the Court of Appeal's guidance has added to the difficulties of proof.

Judges have an understandable fear that they might make a mistake and authorise the unwarranted removal of a child from his or her home, consequently some judges have taken a highly sceptical approach to distasteful, distressing and uncomfortable allegations of abuse. This, in the opinion of this author, has led some judges to believe parents against the weight of the evidence and choose to accept explanations which are the least discrediting to them.[58] Courts have been fortified in adopting a rigorous approach to proof of significant harm to a child by the judgment of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof).[59] The issue of law to be resolved was what standard of proof should be applied where it is alleged that a child 'is likely to suffer significant harm'. All were agreed that the standard to be overcome is less than the balance of probabilities, and that the test to be applied is whether there is a real possibility of significant harm occurring. However, their Lordships were divided on what evidence may properly be adduced to satisfy this standard. The case had been fought solely on the basis that the eldest daughter, D, in a family of girls had been sexually abused by her stepfather and therefore that her younger sisters were at risk of abuse. The trial judge found that while there was a real possibility that D was telling the truth when complaining of sexual abuse, the local authority had not established abuse on the balance of probabilities and therefore there were no grounds for intervening to protect the other daughters. Lord Nicholls, speaking for the majority, supported the trial judge's approach. He said that once the judge had rejected D's evidence as probative of sexual abuse there was no factual basis for finding likely significant harm to the other children. An alleged but unproven allegation of fact, here sexual abuse, was not a fact upon which the finding that there was a real possibility that the younger children would be abused could properly be based.

Lord Browne-Wilkinson and Lord Lloyd took a different view. They were of the opinion that although sexual abuse of D had not been proved on the balance of probabilities this did not mean that likely sexual abuse of the younger daughters could not be proved in reliance on the same allegations of fact. In pre-Children Act 1989 wardship cases the courts had concluded that although there was insufficient evidence to establish that abuse by a parent had already occurred there may be sufficient evidence to show that there was a real possibility that the parent would abuse his child in the future.[60] Referring to these rulings, Lord Lloyd said:

These cases...underline a general point. Evidence which is insufficient to establish the truth of an allegation to a required standard of proof, nevertheless remains evidence in the case. It need not be disregarded.'[61] 'The likelihood of future harm does not depend on proof that disputed allegations are true. It depends on the evidence. If the evidence in support of disputed allegations is such as to give rise to a real or substantial risk of significant harm in the future, then the truth of the disputed allegation need not be proved.[62]

By contrast, Lord Nicholls' reasoning meant that there could be no intervention on behalf of D herself, let alone her sisters, despite the judge's finding that there was a real possibility that she was telling the truth.

It is suggested that the dissenting speeches, which focused on risk taking in child protection cases, adopted reasoning which was infinitely preferable to the approach of the majority. What was in issue in Re H (Minors) (Sexual Abuse: Standard of Proof) was the prospect, or risk, that a child would suffer significant harm. In the usual kind of case, there will be a number of concerns which cumulatively lead a local authority to believe that a child is suffering, or is likely to suffer, significant harm. If each allegation of fact on its own does not satisfy the balance of probabilities test then, applying Lord Nicholls' analysis, there are no facts to support a finding of risk of future harm and the court is powerless to proceed. But, as Lord Browne-Wilkinson so clearly stated: 'the combined effect of a number of factors which suggest that a state of affairs, though not proved to exist, may well exist is the normal basis for the assessment of future risk.'[63]

The House of Lords' ruling in Re H (Minors) (Sexual Abuse: Standard of Proof) could prove a disastrous decision for children at risk of abuse. Requiring legal proof of actual abuse rather than a grave suspicion that significant harm may occur means that courts cannot take protective steps however serious the anticipated injury to the child.[64] This was not the only regrettable dimension to the majority judgment, another aspect of the ruling appears positively perverse when viewed against the background of the evidential difficulties posed by child abuse cases. The view was advanced by Lord Nicholls that whilst the standard to be applied to proof of facts is the ordinary civil standard, "the more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."[65] Developing this argument, Lord Nicholls said:

a stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her...the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.[66]

Such an approach to the assessment of whether an event occurred is surely flawed? Equating the seriousness of an allegation with its likelihood is like comparing chalk with cheese. When looking at all stepfathers and stepdaughters, it is extremely unlikely that a substantial proportion of step- fathers are sexually abusing their stepdaughters. But stepdaughters do not normally make such an allegation against their stepfathers. Once the allegation has been made the court is dealing with an entirely different sample of stepchildren, namely those who complain that they have been sexually abused. Any question of probability relates to this sample, and not to the population as a whole. Most children do not make serious allegations of abuse against those who are looking after them.[67]

The real sting in Lord Nicholls' speech is in his choice of language when discussing the civil standard of proof. Approving words which had been used in a case which arose in an entirely dissimilar context, namely that 'the more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it',[68] he stated that this approach accommodated the instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters. But why should such an approach be regarded as appropriate where the matter before the court is whether a child is suffering, or likely to suffer, significant harm? Child abuse applications are brought to protect children who cannot protect themselves. Of course a court does not want wrongfully to make a finding of abuse. However, courts should not bend over backwards to avoid doing so. It is a bizarre result if the more serious the actual or anticipated injury, whether physical or sexual, the more difficult it is to prove. Indeed, the grave seriousness of the outcome for the child if a mistake is made and abuse is not detected is arguably a compelling reason for lowering the standard of proof rather than raising it, as Lord Lloyd pointed out.[69]

VIII. Conclusion

Both the Children Act 1989 and the Children, Young Persons, and Their Families Act 1989 adopt the philosophy of family support and family empowerment. This is an expensive philosophy to put into practice and neither country can boast that it prioritises needy children when allocating public funds. Political statements about how both reforming pieces of legislation have served to protect children from suffering significant harm tend to look lame when the child abuse statistics in both countries are scrutinised. It is clear that Government, be it in England or New Zealand, is not prepared to invest significant sums in preventative intervention. However, child protection is not just about the proper allocation of resources, it is far more complex. No system will operate successfully unless it is built on a legal framework which is underpinned by a sound philosophy.

Both countries have recognised the importance to abused children of preserving family ties, though the qualification 'so long as it is safe to do so' appears to operate less readily in New Zealand than in England because of the significant role of the family group.[70] Other philosophic foundations to the legislation are also similar. Section 1(1) of the Children Act 1989 makes it plain that when a court determines any question with respect to the upbringing of a child, the child's welfare must be the court's paramount consideration. The Children, Young Persons, and Their Families Act 1989 has a matching provision in section 6 which states that the welfare and interests of the child are the first and paramount consideration having regard to the principles of the Act.[71] However, at this point the Acts part company. There is no equivalent in the Children Act 1989 to the statements of objects, principles and duties in Part I of the Act. More profoundly, there is no equivalent in England to section 5(c) of the New Zealand Act. This states:

the principle that consideration must always be given to how a decision affecting a child or young person will affect -
i. the welfare of that child or young person; and
ii. the stability of that child's or young person's family, whanau, hapu, iwi and family group.

Loosely translated, whanu, hapu and iwi mean extended family, sub- tribe and tribe. This is an unacceptable principle to apply to decision-making about the care and welfare of children because it puts the child's welfare and the stability of a far wider group on an equal footing. When the stricture in section 5(c) is viewed alongside how the role of the family group conference is enshrined in the Act 1989, the identification of the child's interests with those of his family group becomes a dominant theme. The underlying ethos in sections 4 and 5 is to treat child welfare and family autonomy as one and the same, and this ethos prevails even when the child is being seriously harmed by members of that group.

Writing in Christchurch during the Second World War, Karl Popper identified what he termed the 'protectionist theory of the state'[72] He argued that it was right to demand that the state should protect the rights and freedoms of individuals, but that the state should not be seen as a vehicle for imposing collectivist interests. The author shares this view. The state should not protect collective units such as an extended family or tribe where this undermines its role as a protector of individual rights. The policy of offering state protection to minority groups ought not to be treated as having parity with the protection of individuals. This is particularly true in the case of the fundamental right of children to be protected from abuse and neglect. Section 5(c) has been drafted in such a way as to allow group interests to

weigh heavily on the decision making process. It is possible, therefore, to envisage circumstances in which purported group interests might override the interests of the individual child despite the retention of the paramountcy of the child's welfare in section 6. This becomes more likely where the deciding body places great weight on community responsibility and holds the view that 'children have not so much rights, as duties to their elders and the community.'[73]

In England, the only principle which guides decision-making is the paramountcy of the welfare of the child. The simplicity of the principle does not make it easy to apply in practice and section 1(3) of the Children Act 1989 therefore provides guidance on how discretion should be exercised by requiring the court to look at a child-centred check-list of factors before arriving at its decision.[74] Section 1(3) states:

a) A court shall have regard in particular to-
b) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
c) his physical, emotional and educational needs;
d) the likely effect on him of any change in his circumstances;
e) his age, sex, background and any characteristics of his which the court considers relevant;
f) any harm which he has suffered or is at risk of suffering;
g) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
h) the range of powers available to the court under this Act in the proceedings in question.

The check-list seeks to ensure that judicial preferences are properly informed, and that judicial rulings are based on reasoning which takes account of all relevant considerations. Where information about a child and his or her family is evaluated within a completely free and unstructured discretionary framework there is a risk that a particular ideology, an idiosyncratic point of view, or a feeling of sympathy for the parents, could be given more weight than is merited, and lead to the court making a decision in which the child's welfare has become subordinated to other values. The advantage of the check list is that it focuses the the court's attention on those factors which are widely accepted to be relevant to the promotion of a child's welfare. It is a mechanism which is designed to achieve balanced decisions after the court has consciously weighed all the factors which it ought to take into account.

The House of Lords' ruling in Re H (Minors) (Sexual Abuse: Standard of Proof)[75] has, however, shown that there is no room for complacency about the quality of judicial decision-making in child protection cases in England, any more than there is about family group decision-making in New Zealand. The English judiciary are constrained by statute only to authorise removal of a child into care where it is established that a child is suffering, or likely to suffer, significant harm.[76] This articulation of the minimum circumstances which permit compulsory protective intervention into family life is a wise and acceptable restraint on state power. However,

the Children Act 1989 places no constraint on the judiciary adopting a child protection value system, and a child-welfare approach, when considering the standard of proof in child protection cases and the type of evidence which can be adduced to satisfy this standard. The majority of the House of Lords gave no consideration to the likely effect of their ruling on the children should it turn out to be mistaken.[77] By contrast, in Re L (A Minor) (Police investigation: Privilege),[78] their Lordships demonstrated that they were willing to adopt a robust approach and discard long held views of the sacrosanct nature of legal professional privilege where these views appeared to conflict with the interests of children.

Reconciling protection of children with wider considerations of justice to parents and respect for family and tribal customs is not easy. Child abuse is an emotive subject. Physical and emotional ill-treatment can sometimes have an irreparable effect on the child's development into adulthood. Whilst there are dangers in feeling too much pity for helpless children because this can give rise to over-zealous intervention in family life, there are equal dangers in empathising too closely with adults, because this can lead to too much optimism about a child's safety in the home. There is no merit in adopting an attitude of legalistic detachment to child abuse. This can lead to impersonal analysis of child protection laws and procedures, and to their assessment applying values which do not recognise the physical and emotional consequences to children of making errors. Operating high thresholds before there is protective intervention by the state may satisfy adult concerns about escalating costs, politically sensitive behaviour towards 'oppressed' ethnic groups, or the niceties of proof. It is easy for those with child protection responsibilities not to think of the child's needs as equally important to these concerns. The bravest approach is to take children's rights seriously and, if in doubt, to give paramountcy to the welfare of children, for they, unlike adults, cannot protect themselves from suffering significant harm.

I made it a rule to take the primary child protection worker of any hospitalized child abuse case to the ward and show him the bandaged, burned child or the child in a cast with fractures, or the serious bruising of his face and the x-rays of his skull, which is a tough way to get the child actually "seen"; it often worked well.[79]

[*] Professor of Law, University of Sheffield

[1] Section 17(10). A child in need includes a child who is at risk of suffering ill-treatment or neglect, Sch 2, para 4.

[2] Ibid, para 7.

[3] See particularly DoH The Challenge of Partnership in Child Protection: Practice Guide (1995) HMSO; F Kaganis, M King and C Piper (eds) Legislating for Harmony - Partnerships under the Children Act 1989 (1996, Jessica Kingsley).

[4] Section 17(1).

[5] Section 18; this is qualified by 'as is appropriate'.

[6] Section 20(1), (3), (4), (5).

[7] Not merely children in need.

[8] Sch. 2, para 9; qualified by 'as they consider appropriate'.

[9] Ibid, para 8.

[10] Ibid, paras 4 and 7. The National Commission of Inquiry into the Prevention of Child Abuse, Childhood Matters, Chairman: Lord Williams of Mostyn (1996, HMSO), recognised that public agencies who wish to make a shift towards prevention find it difficult to do so. It recommended that greater emphasis should be given to supporting children and families before abuse occurs. The Inquiry commissioned studies on a wide range of issues, including the law; the cost of child abuse; what can be learned from child survivors; children and young people's views; a review of recent research; the impact of race and culture; social worker attitudes; employment policies; parliamentary attitudes; and the media.

[11] Ibid, para 5.

[12] It has been estimated that approximately 350,000 children each year will be in an environment of low warmth and high criticism, an environment which is particularly damaging to children. These children are in need to the extent that their health and development will be significantly impaired if their families do not receive some help. See M Smith, P Bee, A Heverin and G Nobes Parental Control Within the Family: The Nature and Extent of Parental Violence to Children (1995, Thomas Coram Research Unit).

[13] The Act itself provides only part of the legal and administrative framework within which services for children and their families are provided. A large body of regulations and guidance have been issued which give detailed instructions on how Part III (and other Parts) of the Act should be implemented. For the status of regulations and guidance, see The Care of Children, Principles and Practice of Regulations and Guidance (HMSO, 1989). For greater detail, see the Department of Health volumes on The Children Act 1989 Guidance and Regulations (HMSO, 1991).

[14] An agency must comply with a request for help provided that it is compatible with the agency's own statutory responsibilities, s 27.

[15] Report of the Ministerial Review Team to the Minister of Social Welfare on the Review of the Children, Young Persons, and Their Families Act 1989 (1992); M Gilling, L Patterson and B Walker, Family Members' Experiences of the Care and Protection Family Group Conference Process (1995) Social Policy Agency Study; Briefing Paper from the Office of the Commissioner for Children to the Minister of Social Welfare (1996); Annual Report of the Commissioner for Children (1996).

[16] Family Law [1997] New Zealand Recent Law 234.

[17] Section 47. It is estimated that about 160,000 s 47 enquiries take place in England each year, including 25,000 where the suspicions are unsubstantiated. See J Gibbons, B Gallagher, C Bell and D Gordon Development After Physical Abuse in Early Childhood: A Follow-up Study of Children on Protection Registers (HMSO, 1995).

[18] Working Together under the Children Act 1989 (DOH, 1991); the absolute necessity for inter-agency co-operation has been demonstrated many times in the reports of official inquiries into the deaths of children where child protection procedures have failed.

[19] See H Cleaver and P Freeman Parental Perspectives in Cases of Suspected Child Abuse (HMSO, 1995). They identify five types of family whose characteristics might be borne in mind when abuse is suspected: multi problem families; specific problem families; acutely distressed families; infiltrating perpetrators; and outside perpetrators.

[20] Section 47(3). H Cleaver and P Freeman Parental Perspectives in Cases of Suspected Child Abuse (HMSO, 1995) highlight the fine balance which has to be drawn between the benefits of intervention and its potential for doing harm.

[21] Section 47(4).

[22] Emphasis added.

[23] Section 47(6).

[24] See particularly A Child in Mind: The Report on the Death of Kimberley Carlile, Greenwich London Borough Council (1987). See too A Child in Trust: Report on the Death of Jasmine Beckford, London Borough of Brent (1988); Whose Child: Report on the Death of Tyra Henry, London Borough of Greenwich (1987); Child Abuse: A Study of Inquiry Reports 1973-1981 (HMSO, 1982).

[25] A Government commissioned programme of research into child protection, stemming from public anxiety about the safety of children and agency responses, was initiated following the Cleveland Inquiry Report of the Inquiry into Child Abuse in Cleveland 1987, Cm 412 (1988). A summary of the findings of 20 studies from that research programme was published in 1995: Child Protection: Messages from Research (HMSO, 1995), for a critique see C Wattam "The social construction of child abuse for practical policy purposes - a review of Child Protection: Messages from Research" (1996) 8 CFLQ 189. Allied with the research, an extensive review of the literature available up to 1992 on the effectiveness of agency interventions was undertaken. This was designed to inform the planning of future studies, and also had an influence on the way the DoH programme was originally conceived. See D Gough Child Abuse Interventions: A Review of the Research Literature

(HMSO, 1993).

[26] See E Farmer and M Owen Child Protection Practice: Private Risks and Public Remedies

- Decision Making, Intervention and Outcome in Child Protection Work (HMSO, 1995) where those factors which are particularly important in deciding whether to register a child are discussed. J Gibbons, S Conroy and C Bell Operating the Child Protection System: A Study of Child Protection Practices in English Local Authorities (HMSO, 1995) found it was universally the case that the families of those children who were registered received significantly more in the way of services then those where the decision was taken not to register.

[27] In 1996, 28,000 children were registered on the child protection register: see (1997) 9 Children's Services News 5. In R v Hampshire County Council, ex parte H (1998) Times, June 22, the Court of Appeal held that there must be sufficient evidence of actual or likely significant harm to a child, and of its cause, before registration.

[28] A detailed account of the working of case conferences is given in Working Together (HMSO, 1991). For some of the difficulties surrounding case conferences see D Savas "Parental Participation in Case Conferences" (1996) 8 CFLQ 57; J Thoburn, A Lewis and D Shemmings Paternalism or Partnership? Family Involvement in the Child Protection Process (HMSO, 1995).

[29] See E Sharland, D Jones, J Aldgate H Seal and M Croucher Professional Intervention in Child Sexual Abuse (HMSO, 1995). Sharland et al undertook a study of families where sexual abuse was suspected. Their concern was to investigate whether the process of investigating sexual abuse might be capable of doing harm over and above that caused by the abuse itself. The team came increasingly to doubt whether protection procedures were always adequate to deal with sexual abuse referrals, because the cross currents of general need and specific risk were often very complex and sometimes impossible to distinguish one from the other. They concluded that there was a need both to improve services generally, and to redress the balance between child protection on the one hand and child welfare on the other.

[30] Protecting Children (HMSO, 1988), p 7.

[31] Patterns and Outcomes in Child Placement, Messages from Current Research and their Implications (HMSO, 1991), p 7. J Gibbons, B Gallagher, C Bell and D Gordon Development After Physical Abuse in Early Childhood: A Follow-up Study of Children on Protection Registers (HMSO, 1995) found that whilst for a majority of children placed in substitute care there were measurable gains in their physical growth and vocabulary, there was no evidence of general advantage in their mental well-being or behaviour.

[32] See Art.9 of the United Nations Convention on the Rights of the Child.

[33] A right embodied in Art 8 of the European Convention on Human Rights and Fundamental Freedoms.

[34] E Farmer and M Owen, in Child Protection Practice: Private Risks and Public Remedies - Decision Making, Intervention and Outcome in Child Protection Work (HMSO, 1995), found there was a close link between the adequacy of the initial child protection plans and the child's safety. Whereas in 80% of cases the child was protected where the original plan

was sound, in 50% of cases the child was subsequently re-abused or neglected when the original plan was deficient. They also found that in some circumstances children who stayed at home were exposed to serious continuing risks where social workers had developed high thresholds of tolerance of parenting standards of families well known to them.

[35] Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (1986).

[36] Children, Young Persons, and Their Families Act 1989, s 5(c).

[37] Section 5(b). This is in marked contrast to the principle of the paramountcy of the child's welfare, Children Act 1989, s 1, as guided by the child-orientated check list, s 1(3), which governs all decision making about children in England.

[38] Children, Young Persons, and their Families Act 1989, s 70.

[39] Section 72.

[40] Sections 28,29.

[41] More than 5,000 children suffered serious abuse and neglect during 1997 according to figures released by the Children, Young Persons and Their Families Service. Commenting

on these child abuse statistics, the Children's Commissioner Roger McClay, stated that they revealed a 'chilling social situation', The Press, Christchurch, (1998) Feb 28.

[42] Sections 18,20

[43] Ibid, ss 28,29.

[44] Ibid, s 26

[45] Ibid, s 22.

[46] The author suspects that this structure may be based on the belief that some benign form of participatory democracy centred around the earnest resolve to protect the child is a cultural feature of traditional Maori decision-making. There is a commonplace assumption in the liberal West that before the advent of imperialism, minority ethnic groups, whether in the New World, Africa or the Antipodes, governed their lives through discussion, participation and consensus. Evidence that this was in fact the case tends to be rather scanty. In any event, family group conferences are concerned with families as they are now, not with as the once were.

[47] Contrast the position in England, where a guardian ad litem for the child will almost invariably be appointed in an application brought in care proceedings.

[48] A similar criticism could be made of how the case conference procedure in England actually works in practice though, at least in England, it is the role of the independent chair to ensure that these issues are addressed.

[49] R v Hampshire County Council, ex p K [1990] 2 All ER 129; Oxfordshire County Council v M [1993] EWCA Civ 31; [1994] 2 All ER 269, following the ruling of Thorpe J in Re R (A Minor) (Disclosure of Privileged Material) [1993] 4 All ER 702.

[50] [1996] 2 All ER 78, despite Lord Nicholls' powerful dissent, and despite their own earlier ruling in R v Derby Magistrates' Court, ex p B [1995] UKHL 18; [1995] 4 All ER 526, where a man charged with murder wanted to have access to proofs of evidence given by his stepson so that he could better defend himself. Their Lordships held that once legal professional privilege attaches to any communication the privilege is absolute and cannot be overridden by the court for any reason.

[51] This investigative, child-focused approach is illustrated by the power of the court to make orders exercising own motion powers, and by its powers in care proceedings to require the guardian ad litem to obtain experts' reports and other assistance. The court's leave is required before an expert can examine a child for the purpose of preparing a report for the court and leave must be given before reports already filed with the court can be disclosed to the expert.

[52] In Re R (a minor) (disclosure of privileged material) [1993] 4 All ER 702 at 704-5, Thorpe J said: "for my part, I would wish to see case law go yet further and to make it plain that the legal representatives in possession of such material relevant to determination but contrary to the interests of their clients, not only are unable to resist disclosure by reliance on legal professional privilege, but have a positive duty to disclose to the other parties and to the court."

[53] In Re G (A Minor) (Social Worker: Disclosure) [1996] 2 All ER 65, the Court of Appeal held that there was no legal restraint on a social worker revealing information disclosed by a child's parents about their child's injuries to the police, see Butler-Sloss LJ's convincing reasons for adopting this approach at p 72.The value put on disclosure as an aspect of inter-agency co-operation is illustrated by Re W (Disclosure to Police) [1998] 2 FLR 135.

[54] Physical Signs in Sexual Abuse of Children, Royal College of Physicians (London: (1991).

[55] Rochdale Borough Council v A [1991] 2 FLR 192; Manchester City Council v B [1996] 1 FLR 324; Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181.

[56] [1996] 1 All ER 1, at 22, per Lord Nicholls.

[57] Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203; Re M (A Minor) (No 2) (Appeal) [1994] 1 FLR 59.

[58] See particularly, Re M (No 2) (Appeal) [1994]1 FLR 59; Re M and R (Minors) (Child Abuse

Evidence) [1996] 2 FLR 195. 59 As in Re L (A Minor) (Police investigation: Privilege) [1996] 2 All ER 78, their Lordships

were divided 3:2, and the dissenting speeches were articulated with similar forcefulness.

[60] H v H and C (Kent CC intervening) (Child Abuse: Evidence), K v K (Haringey London BC intervening) (Child Abuse: Evidence) [1989] 3 All ER 740; Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203.

[61] [1996] 1 All ER 1 at 10.

[62] Ibid at 11.

[63] Ibid at 3.

[64] An example occurred in Re P (A Minor) (Care: Evidence) [1994] 2 FLR 751 where there was conflicting medical opinion over the cause of a child's death. Although some doctors took the view that the child had been severely shaken no steps could be taken in respect of a sibling because the local authority failed to prove that the dead child's injuries were deliberately inflicted.

[65] [1996] 1 All ER 1, at 17.

[66] Ibid at 16.

[67] J R Spencer and R Flin, The Evidence of Children (2nd ed. Blackstone Press, 1993) ch 11, and especially pp 318-333.

[68] Re Dellow's Will Trusts, Lloyds Bank Ltd. v Institute of Cancer Research [1964] 1 All ER 771 at 773, per ungoed-Thomas J.

[69] [1996] 1 All ER 1 at 8.

[70] Section 17(1) of the Children Act 1989 imposes a duty on local authorities to promote the upbringing of children by their families so far as this is consistent with their duty to safeguard and promote the welfare of children. Section 5(b) of the Children, Young Persons, and Their Families Act 1989 states that 'wherever possible the relationship between a child or young person and his or her family, whanau, hapu, iwi and family group should be maintained and strengthened.

[71] Section 6 originally stated that the child's welfare and interests must be the deciding factor where any conflict of principles or interests arises. However, this left it open to the family group conference not to identify such a conflict and therefore not to acknowledge the paramountcy principle, Review of the Children, Young Persons, and Their Families Act 1989 Report of the Ministerial Review Team to the Minister of Social Welfare (1992) (The Mason Report), p 11.

[72] Open Society and Its Enemies (Princeton 1971) vol 1, p 112.

[73] Puao-Te-Ata-Tu (Day Break) Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (1986), Appendix 11, p 23.

[74] The check list only comes into play where there are contested private law proceedings, but must always be considered in public law cases. In practice it is also used as a guide outside the court framework.

[75] [1996] 1 All ER 1.

[76] Children Act 1989, s 31(2).

[77] It is suggested that courts should be far more accountable for their decisions, at least to the extent that they should be informed where they have made a decision which turns out to be wrong. For example, should it come to light that one or more of the younger sisters in Re H (Minors) (Sexual Abuse: Standard of Proof) suffers sexual abuse, the judges concerned ought to be told.

[78] [1996] 2 All ER 78.

[79] C Henry Kempe, "Child Abuse and Neglect" The International Journal 9 (1985) 155.

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