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.”          

     

     

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