There are few vehicles of law that have given their name to a best-selling novel by one of England’s most acclaimed writers, Ian McEwan, as well as a film starring Emma Thompson. The Children Act 1989, which turned 30 late last year, is a special piece of legislation. It is what governs the Court’s approach to private family law proceedings concerning children, for example, child arrangement disputes, and support for children provided by local authorities.
The Children Act 1989 introduced several principles which at the time of drafting were a radical departure from preceding law:
- The child’s welfare “shall be the court’s paramount consideration”.
- Delay in resolving matters is “likely to prejudice the welfare of the child”.
- The Court “shall not make any order unless it considers that doing so would be better for the child than making no order at all” – the “No Order” principle.
To understand the importance of the Children Act 1989 on society, it is crucial to consider the broader history of child welfare (or rather, lack of it).
“Nasty, brutish and short”
In Better Angels of Our Nature, Steven Pinker declares:
“ We have come a long way to arrive at an age in which one-pound preemies are rescued with heroic surgery, children are not expected to become economically productive until their fourth decade, and violence against children has been defined down to a dodgeball”.
Think of what Moses, Ishmael, Romulus and Remus, Oedipus, and Gilgamesh all have in common. They were all abandoned as infants, left to die alone in the elements. Anthropologists state that infanticide has been practised by virtually every society and on every continent. It is also one of the rare forms of violence which is predominantly committed by females. However, we must resist condemning such actions as savage and abhorrent – having the resources which enable a mother to treasure and protect every child she bears is a very recent development in human history and still not universally enjoyed.
“Spare the rod, spoil the child”
The harsh and unpalatable truth is that throughout history, children have been subjected to savage corporal punishment both at home and in school. Indeed, corporal punishment was legal in state schools until 1986. Private schools were permitted to continue the practice for a further 12 years.
Most Generation Xers such as myself can remember dreading the wooden spoon in their mother’s hand, or the belt in their fathers. My own mother told me how her father presided over the dinner table with a belt in his hand. Such practices were not only common but perfectly acceptable, as was the psychological torture imposed on young minds. There was no concept of building a child’s self-esteem in Victorian times. In At Home, Bill Bryson comments that middle and upper-class parents unleashed many torments on their children to ensure they were and became “obedient, dutiful, honest, hard-working, stiff-upper-lipped, and emotionally self-contained”. These ‘torments’ ranged from sending children as young as seven to boarding school, to deliberately withholding affection, food, and comfort.
Children in poorer households were forced to ‘earn their keep’ as soon as they were physically able. Bryson notes that in 1697, John Locke wrote in a paper for the Board of Trade that children of the poor should be put to work at three years of age. No one admonished him for being cruel. And thanks to Charles Dickens and other writers, we are grimly aware of the harsh conditions the Industrial Revolution imposed on the youngest in society.
However, what we would now consider abuses didn’t necessarily meant that children were not loved. On the contrary, parents believed that by not handing out harsh discipline, children would grow into adults unable to cope with the difficulties of the world. For most parents, their actions stemmed from love, not lack of it.
Development of children’s law
Prior to the 1800s, children enjoyed hardly any legal protection. Prior to 1814, there was no law which prevented the stealing of a child. Only in 1844 were children’s work hours regulated.
It was not uncommon for teenagers to be executed for crimes. To put this into context; Katherine Howard, fourth wife of Henry VIII was married at 16/17 to a 49-year-old man and executed at age 18.
The Children’s Act of 1908 stipulated for the first time a minimum age for execution of 16 years.
A significant turning point in children’s rights came with the passing of The Prevention of Cruelty to, and Protection of, Children Act 1889, commonly known as the Children’s Charter. This provided the right for the State to intervene in cases of ill-treatment and neglect, outlawed begging and set further restrictions on child labour. More power was given to authorities to prosecute parents who abused their children and the Courts were empowered to remove children from parents if their welfare/safety depended on it.
Children are people not possessions
The Children Act 1989 forced the Courts in both private and public law cases involving children to make the welfare of the child the paramount consideration. Furthermore, the interests of the child must be separately considered and if at all possible, their views taken into account.
Although improvements can be made, it is worth noting Sir Andrew McFarlane, President of the Family Court, commented to the Guardian last year:
“There is no clamour, not even a whisper, that the basic concepts of child law now need further reform. The architects of the legislation, and its draftsmen, simply got it right. That this is so has been, and continues to be, to the great benefit of the children and young people whose needs it was aimed to meet.”
Our understanding of children’s rights and their welfare is continuously improving, which is why family law professionals spend a great deal of time on courses designed to increase their understanding of the latest developments. Although it is easy to criticise children’s law and child poverty rates, we must look at how far we have come as a society. Thirty years ago, we legislated to put the rights of the child first and foremost in family court proceedings. There is little doubt that smacking will soon be made illegal in England and Wales as it is in Scotland. And children are recognised as vulnerable, precious members of our society rather than cheap labour.
Sometimes it is important to see how far we have come, so we can appreciate how much further we can travel.
Rosie Bracher is a specialist family law firm based in Barnstaple. We have the knowledge and expertise to advise you on all family law matters. Please contact our office on 01271 314 904 and arrange to speak to one of our team
 Williamson, Laila (1978). “Infanticide: an anthropological analysis”. In Kohl, Marvin (ed.). Infanticide and the Value of Life. NY: Prometheus Books. pp. 61–75.