Children Act 1989 Many Legal Term Paper
- Length: 8 pages
- Sources: 8
- Subject: Children
- Type: Term Paper
- Paper: #20522907
Excerpt from Term Paper :
Though some have called for the abolition of the substitute parent juvenile justice system, Gardner argues that the punitive model need not result in such an abolition or in the reincorporation of the juvenile justice system into the adult system (Gardner 1987, pp. 129-151).
The earlier American system was based on similar concerns raised more recently about the UK system and was also based on a view of protecting children. The change to a more punitive system came out of fear of youth crime. The UK case followed a series of official reports, including the Department of Health and Social Security review of childcare law in 1985 and the Law Commission report on guardianship and custody in 1988: "The message of these reviews was that the current law was unclear, unnecessarily complicated and characterized by procedural and substantive injustice. The government White Paper described its purpose in bringing forward proposals for change in the law relating to childcare and family services as the achievement of 'greater clarity and consistency' to help 'parents and children who may be affected by the law and those who work professionally within it' (Franklin 2001, p. 60). Franklin also cites the child abuse scandals of the 1980s as they centered on local authority social service practice. Because of these various assessments, "the law was seen as ineffective in promoting appropriate child protection practice and preventive work with families and as failing to involve parents and children sufficiently in decision-making. It was also seen as being too complex and as failing to strike the right balance between family privacy and the power of the state to intervene to protect children" (Franklin 2001, p. 61). As written, the Act intended to create a new model of parenthood as well as a new vision of the responsibility given to the Local Authority.
In addition, the Act can be said to have advanced the idea of children's rights:
There are four aspects of the legislation that can be seen as supportive of children's liberty rights. First, the Act allowed for the possibility that children themselves may want to make applications for one of the new section 8 orders.
21 Section 10 specifically provided for the eventuality in which a child applied to the court for permission to make an application for a section 8 order. The court can only grant the child leave to apply if "it is satisfied that he has sufficient understanding to make the proposed application." None the less the Act in its contemplation of the possibility of the child becoming a litigant could be seen as advancing and extending the child's autonomy (Frank.in 2001, p. 64).
This also departed from the settled rule that a child could not bring or defend an action except through a guardian, while not it was provided that a child could prosecute or defend proceedings in certain situations, notably when the proceedings are not "specified proceedings" and the child has the permission of the court, or where a solicitor has accepted instructions from a child having considered that the child is able to give instructions. These new provisions for the first time meant there was a possibility for the child to have unmediated access to legal service and the courts.
As noted, some changes have been made since the original passage of the Act, and also some critics have noted problems that may pertain. The Act has been complemented by the creation of the Children and Family Court Advisory and Support Service. The United Nations has also been involved in expanding the rights of children and has offered advice through the UN Committee on the Rights of the Child to the UK's first Report to the Committee, suggesting that the UK address the question of the parental right to chastise the child. Franklin notes that the direction of change has been different as the government has decided to emphasize ideas of parental rights rather than children's rights. It is not clear that the two have to be in opposition, but where the emphasis is placed will make a difference as to how the law is followed and applied (2006, pp. 72-73).
The Children Act 1989 marked a shift in the way children would be treated under law in the UK, and the other laws passed on the subject since have consolidated the idea of shared responsibility between parent and Local Authority and the more paternal aspects of the way children are to be protected by the Local Authority.
Bennett, G. 1989, Crimewarps, New York, Anchor Books.
Children Act 1989-2008. Office of Public Sector Information, the National Archives, http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_1.htm.
Curran, D.J. 1988, October, Destructuring, Privatization, and the Promise of Juvenile Diversion: Compromising Community-based Corrections, Crime and Delinquency, 363-378.
Franklin, B. 2001, the New Handbook of Children's Rights: Comparative Policy and Practice, London, Routledge.
Hirst, J. 2001, January 22, Another Crumbling Public Service, New Statesman, Volume 130, Issue 4521, 10.
Gardner, Martin R., "Punitive Juvenile Justice: Some Observations on a Recent Trend," International Journal of…