news analysis of the Children Act and a landmark child abuse ruling

A new Department of Health study charts how far we have come in
fulfilling the ambitions of the Children Act 1989, and some of the
findings come as something of a surprise. Mark
Hunter reports.

(It may be advisable to print this document as it is
long).

Selected findings:

– Some 400,000 children are in need of social services at any
one time.

– Some 230,000 children receive social services every week.

– The number of children in care has increased by 14 per cent
since 1996.

– Numbers on child protection registers are stable at
30,000.

– Target to reduce re-registrations by 10 per cent by 2002 has
already been met.

– The number of children placed for adoption increased by 43 per
cent from the year ending 1996 to 2000.

– 12 per cent of children receiving services are disabled.

– Over 4,000 children aged 16 leave care without
qualifications.

So where are we at?

No one working in children’s social services will be
surprised to hear that the system is creaking under the twin
pressures of workload and recruitment crises. They might, however,
be a little more surprised to find that children’s services
appear to be achieving some remarkable successes.

For instance, the government’s target to reduce the number
of at-risk children who are re-registered on the child protection
register by 10 per cent has already been met. In addition, the
number of children taken into care is falling; there has been a
sharp rise in young people being cared for beyond their 18th
birthday; and there has been a significant increase in the number
of children placed for adoption over the past five years.

This intriguing snapshot of the state of children’s social
services is provided in The Children Act Report
2000,¹ published on 16 July by the
Department of Health. The report provides an update on the impact
of the 1989 act and subsequent initiatives such as Quality
Protects.

Consisting of an array of statistics, bar charts and raw data,
the report cannot be described as light reading. But one of the
most obvious conclusions to be drawn from the report’s
findings is that the workload within children’s social
services is growing. This is despite 3,500 fewer children entering
care in 2000 than was the case in 1994.

The anomaly is explained by the fact that those children who do
enter care tend to stay there longer, and 7,500 fewer children left
care in 2000 than in 1994. As a result the number of children in
the system has grown by 14 per cent since 1996.

The increase is largely accounted for by children under the age
of 13. The most common reason for entering care is either abuse or
neglect, and there has been a 25 per cent increase in the number of
care orders since 1996. Councils have responded to these growing
numbers by increasing foster placements (by 15 per cent), and
improving adoption services.

Despite these increased numbers, child protection services
appear to be functioning remarkably well, and the number of
children on the protection register has stabilised at around
30,000.

The welfare of children subject to child protection inquiries
appears to be safeguarded, although the report highlights failures
in 6 per cent of cases and suggests that more could be done in a
further 26 per cent.

The report suggests that most areas of children’s social
services are at least satisfying the demands of the children and
parents they deal with. It cites a Social Services Inspectorate
survey which suggests that more than half of parents thought staff
knew what they were doing, were easy to contact and reliable, and
that their children were comfortable talking to social workers.
However, just over half of parents had not received agreed
services.

One factor limiting the ability of social services to provide an
optimal service is the difficulty in recruiting qualified staff.
Government targets demand that 9,098 residential child care staff
should be qualified to at least GNVQ level 3 by March 2002. In
fact, 1,093 will achieve this by March 2001 but only a further
2,217 will have achieved their NVQ by the target date, leaving a
further 5,700 to qualify.

The report also confirms the well documented recruitment crisis,
a problem compounded by high levels of staff mobility, with 41 per
cent of staff in their current post for a year or less. The report
concludes dryly that “high turnover and vacancy levels were
associated with poorly performing services.”

The area of children’s services in most need of
improvement appears to be education.

In the year 1999-00 only 30 per cent of young people left care
with one or more GCSE or GNVQ. Indeed, last year 4,400 children
aged 16 or over left care with no qualifications whatsoever. Most
(3,200) did not even sit an examination.

These figures confirm recent research conducted by the Who
Cares? Trust which found that looked-after children are
persistently failing at school for reasons that have nothing to do
with their potential.

“Even when the child is going to school, and enjoying school,
their education still appears to suffer,” says the charity’s
chief executive Susanna Cheal. “We’ve got to cut through the
bureaucracy to make sure that improvements occur within a timeframe
that benefits children today. Every time we make a change that
takes effect in three years’ time, that is another load of
children who have been forgotten.” CC

¹ The Children Act Report 2000, doh,
see www.doh.gov.uk/scg/childrenactreport2000.htm

————————————————————————————–

The House of Lords has ruled that child abuse is the
responsibility of the abuser’s employer, opening up care providers
to a far higher level of damages claims. Alex
Dobson examines the implications of the ruling and
the key cases that led to it.

Abuse compensation claims set to soar after
ruling

Compensation claims for child abuse in children’s homes could
increase seven-fold in the wake of a landmark decision by the House
of Lords which looks set to make fundamental changes to child abuse
law.

Lawyers say that the case at the heart of the decision will
revolutionise child abuse law, and that in future, employers are
likely to be held responsible for the abusive actions of their
employees in a way that has not been previously possible.

And the Law Commission, the body responsible for law reform, has
also proposed far reaching changes to the time limits for actions
so that in future victims of child abuse will be able to sue their
abusers without falling foul of the stringent limits currently
imposed.

Peter Garsden is a solicitor who co-ordinates most of the group
actions relating to child abuse in children’s homes in the north of
England. He says that the decision by the law lords will result in
many more cases being brought by victims of abuse.

“The House of Lords decision followed changes that were made in
the law in Canada. As a result, the number of claims there has
mushroomed and there are now over 6,000 claims, although the child
care population is much smaller than here,” Garsden warns. “It’s
been estimated that there are 15,000 potential claimants in the UK,
although at the moment the Association of Child Abuse Lawyers
(Acal) is handling around 2,000 claims.”

Until now, in order to have a reasonable chance of succeeding
claimants have had to show that there has either been negligence or
defective management. The problem has been that the defendants
could see off these claims by arguing they were unaware of what was
happening, or that they had been deceived by a manipulative
abuser.

But as a result of the House of Lords decision, those
responsible for children in care could be held to be vicariously
responsible for the acts of their employees. That would make the
employer responsible for the acts of the employee, including
abuse.

Until now, the law on child abuse has been led by the 1998 court
of appeal decision based on the case of Trotman v North Yorkshire
County Council, where a child who had learning difficulties was
abused by the headmaster of the school while on a camping holiday
in Spain.

In that case, the judges took the view that the headmaster’s
abuse was so extreme it was outside the course of his employment,
and so the employers could not be held to be liable for the abuse.
The decision made it much more difficult for a victim of child
abuse to bring a successful claim against the managers or owners of
a care home.

At the heart of the new change is the case of Lister &
Others v Helsey Hall, which involved three boys who were in local
authority care and who were placed in a home where the warden,
Dennis Grain, physically and sexually abused them over a period of
three years. Their claim was first turned down because it could not
be shown that the managers of the home were aware – or should have
been aware – of what was going on. The legal wrangle continued to
the House of Lords, where the Law Lords were prepared to accept
that the abuse had taken place during the course of employment, for
which the employer was responsible.

“Before the law changed victims could try to bring a claim based
on negligence if it could be shown there were defects in the system
of management in a home,” says Garsden. “Groups of claimants could
band together and show that career paedophiles had operated in the
home for a number of years, and by doing this they could strengthen
their claim. But the defendants would argue that they were unaware
of what was going on and that they had been deceived by highly
manipulative individuals. The effect of the House of Lords case is
that employers will not be able to evade their responsibility in a
way that they have in the past.”

Key to the thinking behind the law lords decision were changes
in Canada. The Canadian Supreme Court changed the law, ruling that
in a case where a care worker was found to have abused children in
his care, his employers were liable.

The reasoning behind the Canadian decision was that if a care
worker’s employment involved, for example, putting a child to bed,
and abuse took place during that time, the abuse amounted to an
unauthorised way of carrying out an authorised job. Therefore, it
was argued, it would fall under the areas of employment for which
the employer is liable.

“In the past where physical or sexual abuse took place, it was
often seen to be so far outside the scope of employment that the
employer could escape liability,” says Garsden.

Allan Levy QC, one of the country’s leading experts on child
abuse law, says the House of Lord case changes all that: “The House
of Lords, in this very progressive decision, has said ‘rubbish’. If
there is a close connection between what the abuser has done and
what their job is then that is sufficient.

“If somebody is there to care for children, if they care for
them in a sexual way, even though that is unlawful, it has still
happened because of their job and their position. It is a very
sensible decision,” Levy says. “The law has been far too harsh and
far too ‘pro-employer’.”

“It will make many claims much easier and more successful,” Levy
adds, “because local authorities previously could run the defence
that if a person working in a children’s home had sexually abused a
child they were not acting within the course of their employment.
As far as the law was concerned what they were doing was so far
outside the scope of their authority that they were on what was
termed in a very old case a ‘frolic’ of their own.”

Levy is also optimistic that the Law Commission’s report calling
for an overhaul of the time limits for various types of legal
action will make claims easier. He says the law in this area too
has been restrictive, and cites the example of the case of Lesley
Stubbings, who had a long legal battle to sue her adoptive father
after suffering abuse for many years.

The Stubbings case provoked criticism because of the way it was
hampered by inflexible time limits. In 1983 she made the link
between her depression and her childhood trauma, prompted by a
television documentary on the long-term repercussions of child
abuse. But the six-year time limit on suing over a deliberate act
meant that she was ultimately unsuccessful.

Levy explains: “The case went to the Lords and then on to
Strasbourg but she was unsuccessful. Amazingly the law was tested
in the European Court of Human Rights not very long ago and there
the judges upheld the restrictive time limits that had been
imposed.”

The clock in these cases starts ticking when the act occurs or
at 18 if the victim is a child, yet in other types of cases where
there has been negligence – for example in the case of a road
accident – the time limit begins where the victim knows or should
have known about the facts that give rise to the claim.

Levy says this can work to the advantage of perpetrators. “It
can result in those who have deliberately performed an act like
abuse being protected in certain cases by time limits because at
the moment the six-year period can’t be extended,” he says.

The Law Commission is recommending a three-year time limit for
most types of legal claim which will start not at the time of the
act, but from when the victim knew or should reasonably have known
and understood what was happening. Judges will also have the
discretion to extend the period.

The House of Lords decision and the review by the Law Commission
have been welcomed by many working with the victims of abuse, but
it will not solve all the problems.

Catriona Williams, chief executive of the charity Children In
Wales, has seen at first hand the trauma of abuse, working with
victims during the aftermath of the North Wales child abuse scandal
that culminated in the Waterhouse report. She says that any
improvement is welcome, but warns that there are still many
obstacles for those whose lives have been marred by abuse.

“Many victims of abuse have struggled to pursue a claim where
there has been abuse and I think this case is going to make a
welcome impact on the likelihood of success. But there are still
too many young people who encounter terrible difficulties. Even
when they have been able to take their claim through the courts,
the end result has been that the compensation is inadequate,” she
says.

“I also have serious concerns about the role of the insurance
companies and the way in which the compensation that victims do
finally receive is often swallowed up by the legal bills that they
have to face.”

Williams also says that the emphasis should be on stopping the
perpetrator of the abuse: “Many abusers are highly manipulative
personalities and can be difficult to detect. I think the critical
point is that there must be adequate checks and children must be
listened to. There have to be safeguards in place and opportunity
for children to say what is happening.”

“Sadly there are still a number of people in the UK in child
welfare who do not know about Waterhouse. If they don’t know about
it then it is difficult to see how lessons can be learned from it,”
she adds.

Kathryn Hughes is an experienced lawyer and a member of the Law
Society’s Family Law Committee. She suggests that the House of
Lords case will help to tighten up control because employers will
now know they are liable.

“I have no doubt that the decision will have great significance
for some children who have been seriously harmed by those who were
previously entrusted with their care,” she says.

“In the future it is likely that seriously disgraceful personal
behaviour may be covered by vicarious liability.

“I am sure most responsible authorities do take precautions but
if this decision means that employers take even more care then that
will obviously be a good thing. It moves the law forward in a
positive way for vulnerable children.”