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Lets change it for the kids

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01 Mar 10 #189306 by Forseti
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Thank you for your reply, Sobek, although you don't actually answer my question and I stand by my comments. The argument over whether the Children Act needs to be revised (after 20 years) or merely be complied with is a long running one and I won't rehearse the positions here. I believe it has failed to do what was intended and poorly translates the intention of parliament into legislation. Sir William Powell said it would "end the inhuman, callous and cruel practice of divorcing a child from one of his or her loyal and devoted parents." Manifestly it hasn't achieved that. The confusion between rights and responsibilities is clearer if you compare the Act with the Scottish equivalent which makes a clear distinction, but this is only one of its many flaws. The introduction of the Children and Adoption Act 2006 (for example) shows that the Children Act was inadequate: hastily and poorly thought out.

Bin it. Start again.

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01 Mar 10 #189325 by Sobek
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Thank you, Forseti.

I have indeed answered your questions but I fear I have not given you the answers you were hoping for.

As I am sure you are aware, Scotland also has myriad problems in relation to its legislation relating to children.

But at what point will we stop blaming the tools we use and start to look at the deeper problem; that of our social, judicial and political culture?

On these points, we will have to agree to respectfully disagree.

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01 Mar 10 #189369 by Forseti
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I wanted to know why you thought the Children Act was "rather good" since it was, at least to me, a novel comment. I wasn't hoping for any particular answer, just an honest one!

I agree entirely that Scotland has problems, not least its refusal to admit McKenzies, I merely pointed out that Scottish legislation makes a distinction between rights and responsibilities. UK legislation defines "parental responsibility" as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." That is tautological since it uses the word "responsibilities" as part of the definition. It is a very loose and imprecise use of language; I don't see how you can call it "neat".

I also agree that there are problems with our "social, judicial and political culture". Profound problems, which probably eclipse those in the legislation. I wasn't looking for an argument; I just wondered what it was about the Act you so admired, when most people I have come across think it is a very inadequate bit of law (though not as bad as the Child Support Act 1991 ;))

Since the title of this thread is "Let's change it for the kids" I'd like to suggest that one (and only one) of the many things we could change is the Children Act.

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01 Mar 10 #189374 by Sobek
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I see; I hadn't realised that was what you intended to draw my attention to.

Ambiguity is a double edged sword; something I am sure, as a sword wielding warrior you can empathise with :)Legislate too finely and there is little room for flexibility when needed. Legislate too loosely and you have the opposite problem. As such, I think the Act is elegant because it does leave room for flexibility (like the rights and responsibilities connundrum) and it does not attempt to define what is exactly in the best interests of a child, seeing as this constant is a paradox by virtue of its marginal changes only in respect to how society can, at any given moment in time, respond to the core interests which are already established (physical safety, economic support, emotional nurturing etc, laid out in the Act and beyond in various policy documents).

However, it's strength is also its Achilles' Heel; in the hands of a culture that doesn't understand how to facilitate those best interests, ambiguity suddenly becomes our enemy.

To my mind therefore, The Act, like all Acts, is never going to be perfect on the first draft; I think changes to Acts should be expected and revision viewed not as a flaw but a great strength, that we can amend when we see error and in some extreme cases when law becomes redundant, remove it completely.

Our difference of opinion lies, I believe, in that you feel the Act should be scrapped. I do disagree on this point but agree on others you have made. The Act is by no means perfect but I do feel it has a certain elegance to it. Whoever drafted it clearly cared about the Act a great deal; you can feel it when you read it.

For me at least, it is more about culture than legislation. Laws are awkward; they always have been.I can't think of one Act that was pitch perfect the first time round and that may well be because times change and so too must Acts. But more than this, culture is the driving force behind how we interpret these Acts. I could go into detail about which bits of the Children Act 1989 I think are solid, but I don't think that would be of any use. Laws are constantly being tweaked and changed; that is a wonderful thing.

Ultimately, to my mind, it is really just about working culture; from law firms who abuse their responsibilities to governmental bodies who waste too much time on trying to outdo each other with targets rather than excellence. It's the State of mind that concerns me. We have completely lost touch with what makes a great family justice system and no amount of velveteen legislation is going to, in my opinion, help change that on its own.

I have heard many people criticise the Act but I have also heard many people praise it; on this occasion, although I do not believe it is perfect by any means, I do think it errs on the side of structural elegance :)

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01 Mar 10 #189415 by Forseti
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Thank you, Sobek. That is a fascinating way of looking at it, and I shall certainly view the legislation with a different perspective next time I read it, even if I don't share your enthusiasm (one man's structural elegance is another man's Prince Charles).

I hadn't considered legislation as literature before, in the sense that it offers an insight into its author, and I suppose I should have done, both because I'm a literature graduate (albeit many years ago) and because I'm well aware of the political leanings of the Act's chief architect, Brenda Hoggett (now Hale). There is perhaps too much scope for individuals with - shall we say - undemocratic notions to change and twist legislation; consider Thorpe's unhealthy influence on LTR rulings.

I'd also concede that revision may be a better solution than complete replacement, provided it can be flexible and swift enough to be responsive to society's needs. Supplying the Act's rather obvious lack of measures for enforcement (for example) after nearly 20 years isn't impressive and is far from "wonderful" or "velveteen". I love your choice of words - if legislation could use language like that things would be very different!

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01 Mar 10 #189419 by Elle
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Thank you to all contributing to this thread. The information, experiences and dicussion I am finding insightful and enlightening.

E

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01 Mar 10 #189427 by Sobek
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Thank you for your reply. The Act is by no means elegant from a literary perspective. I daresay the likes of Blake and Krane would turn in their graves were they to read it (I am not a literature graduate but have an unfortunate and life long affliction in the form of my unconditional love for it :S)

Baroness Hale of Richmond? Well, I am intrigued and I do not know what Thorpe LJ's personal stance is on LTR. I am rather new in the field.

If you have the patience, I would be very grateful to know where I might find critiques on these areas. One of the things I love about this field is that I very rarely read the same document twice :)

Thank you also for your kind compliment about my choice of words; I'm not sure that 'velveteen' has a place in legislation but we might be able to fit wonderful, along with flourish, in future legislation relating to children's welfare ;)

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