The Children (Northern Ireland) Order 1995: Considerations of the legislative, economic and political, organisational and social policy contexts

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Children and Youth Services Review, Vol. 17. Nos. 516, pp. 637-649. 1995 Copyright 0 1995 Elsevier Science L&l Printed in the USA. All rights rc~ved 0190-7409/95 $9.50 + .oo

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The Children (Northern Ireland) Order 1995: Considerations of the Legislative, Economic and Political, Organisational and Social Policy Contexts Mary McColgan University of Ulster Recent child care legislative reforms in Northern Ireland will be enacted against a backcloth of economic and political uncertainty as well as major organisational upheaval in the delivery of services to children and families. Echoing many themes of the Children Act 1989 in England and Wales, the Children (Northern Ireland) Order 1995 is the most significant reform of child care legislation for decades. It will determine the provision by voluntary and statutory agencies for children’s welfare for many years to come. The Order should go some way to developing quality services and establishing standards of practice. However these developments occur at a time of major restructuring of public social services based on market and controlling principles. The present unique context of health and social services will face unprecedented challenges as the Order seeks to promote equality of provision, establish partnership principles and practices intra professionally and with service users. This paper seeks to explore the impact of the new legislation, the implications of the contract culture and consider ways in which the future scene for child care provision in the Province can create non stigmatising services for those in need. Recent child care legislative reforms in Northern Ireland will be enacted against a backcloth of economic and political uncertainty as well as major organisational upheaval in the delivery of services to children and families. The Children (Northern Ireland) Order 1995 is the most significant reform of child legislation for decades. It will determine the provision by voluntary and statutory agencies for children’s welfare for many years to Requests for reprints should be addressed to Mary McColgan, Department of Applied Social Studies, University of Ulster, Magee College, Northland Road, Londonderry BT48 7JL. Northern Ireland [[email protected] 1.

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come. It echoes many of the themes of the Children Act 1989 in England and Wales, such as the developing quality services and establishing standards of practice. However the development of such services will be within the purchaser/ provider scenario and the advent of Trust status for many units of management. The present unique context of health and social services will face unprecedented challenges as the Order seeks to promote equality of provision, to establish partnership principles and practices intra professionally with the service users. These principles often run counter to those underlying the reorganisation of services. This paper seeks to explore the organisational context of the new legislation particularly the implications of the contract culture and to assess the impact of the economic and political factors on child care services and their inter-relationship with the social policy context of the Children (Northern Ireland) Order 1995. Finally the paper considers the ways in which the future scene for child care provision in the Province can create non stigmatising services for children and families in need. The Legislative

Context of Child Care Services

In order to understand the major organisational changes which have impacted on child care services and legislation, it is important to present initially a brief historical outline of the creation of the Northern Ireland state which has given rise to the unique legislational context. A point which must be borne in mind is that the whole of Ireland was subject to social legislation passed by the British Parliament until 1921. At that time Ireland was partitioned. The southern counties formed as independent state (the Republic of Ireland) and Northern Ireland remained a part of the UK by annexing six of the nine counties of the Northern province of Ulster. The Government of Ireland Act 1920 established a Northern Ireland government and parliament which was separate from the rest of the UK in London (Westminster). Stormont, as the parliament was known, was largely responsible for the development of its own legislation (including social welfare), although the British Government retained reserve powers for a range of responsibilities. To a large extent Northern Ireland experienced a high degree of legislative and administrative autonomy until the passing of the Northern Ireland (Temporary Provisions) Act 1972 which introduced direct rule by the government in London. Apart from a brief period between January to May 1974 when there was a Northern Ireland Assembly and another short period in

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1975 when there was a Northern Ireland Constitutional Convention, there has been no local parliament in Northern Ireland since 1972. Since then all Northern Ireland legislation is dealt with at Westminster by virtue of “Orders in Council”. In effect, this had meant that legislation is subject to only limited debate and the process does not allow for amendments once legislation has been presented to the House of Commons unlike legislation for the rest of the UK. In practice Orders must be affirmed or rejected in their entirety. Direct implications of this system are the failure to allow for the inclusion of regional needs and issues, and the creation of difficulties posed by superficial amendments which attempt to harmonise legislation in the interests of parity between Northern Ireland and the rest of the United Kingdom. The present primary legislation is the Children and Young Persons Act 1968, which is outdated and long overdue for reform. The responsibility for carrying out this legislation rests with Health and Social Services Boards (to be discussed more fully later). The Children (Northern Ireland) Order 1995 was published as a draft proposal for consultation on 16th July 1993. The Order will introduce major reforms in child care law. It deals with the care, upbringing and protection of children and the provision of personal social services for children and families. For the first time it also includes legislation for children with disabilities. The legislation will bring together public and private law so it will apply to children whose parents are separating or divorcing as well as those requiring public services. More importantly it lays down standards for services and says Boards (government funded and mandated agencies responsible for delivering personal social services) must take account of the race, religion, culture and language of service users. The Order brings Northern Ireland legislation broadly into line with law in England and Wales and is in many respects very similar to the Children Act 1989. The Order covers two additional areas of legislation - the employment of children and the removal of the legal disadvantages of illegitimacy. The broad aims of the Order will be to: (i) simplify the law and make it more understandable to those using it and affected by it; (ii) achieve a better balance between protecting children and having procedures which are fair to parentsicarers; (ii) setting standards and strengthening inspection and monitoring of the Boards;

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(iv) giving children and young people more say in what happens to them.

The Organisational Context In the last twenty years the organisational arrangements for the planning and delivery of child care services in Northern Ireland have undergone a number of major changes and are now substantially different from those in other parts of the United Kingdom. The period leading up to the establishment of the Health and Social Services Board in 1973 laid the basis for the present structure. The reforms of the 1970s were motivated by: the desire to follow proposals for the reorganisation of the National Health Services in Great Britain and a decision to reform local government in Northern Ireland. (Social Services Inspectorate, 1994, p. 7) The Macrory Report of 1970 had been influential in suggesting a model for the delivery of health and personal social services. The preferred model for administration was identified as agent boards (Macrory, 1970, pp. 3 l-32) and each Area Board should have separate committees singled out for particular consideration because of the nature of the duties and responsibilities involved, the statutory requirements which were imposed by central government and the fact that child welfare functions were subjected to judicial scrutiny. In tandem with the Macrory Report’s recommendations a firm of management consultants had been commissioned to recommend a suitable organisational structure for the new agent Board. Their document recommended the establishment of “programmes of care. . . directed towards providing care to meet the defined need of an identifiable group in the community” (Booz, Allen, & Hamilton, 1972, p. 6). They also suggested corporate management to achieve integration and co-ordination in the planning, delivery and monitoring of services. The new agent Area Boards were to be accountable to the Department of Health and Social Services (DHSS) Northern Ireland for all personal social services including child care. The necessary legislation was enacted in the Health and Personal Social Services Order 1972 and was operationalised in 1973. From that point child care services in Northern Ireland have been in a unique position compared to services elsewhere in the United Kingdom because:

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(i) Departments in Northern Ireland have been subject to regional control by the DHSS (Northern Ireland) and not accountable to locally elected councils, and (ii) the integrated Boards have included both health and social services with an increasing preoccupation with the former. Despite references and exhortations to integration, co-ordination and programme planning, on the whole the two services and respective professions have continued to develop independently within and in the unitary organisation have been increasingly bureaucratised. In effect what developed was a hierarchical social services structure subject to regional control which vied unsuccessfully with the health services for resources. (Caul & Herron, 1992, p.70) Despite the experimental nature of Northern Ireland arrangements, further reorganisation in 1983 led to the demise of corporate management and the introduction of Units of Management with budgets allocated on a professional basis. Responsibility for overall administrative co-ordination has been located with administrators at local and area level who had no managerial authority over their colleagues. The next development began even before the full implementation of this restructuring. The advent of general management was promoted by the Griffiths Report ( 1983). A new businesslike approach concerned with efficiency, cost effectiveness and value for money was to permeate service provision. However, it was Working for Patients, published in January 1989, which produced the next major review which has resulted in the present arrangements (Department of Health, 1989). This review brought about fundamental changes in the organisation in management of health and personal social services in Northern Ireland. In future Boards were to become responsible primarily for assessing the health and social care needs of their populations and for commissioning services form Units of Management and the voluntary sector to meet those needs, rather than provide services themselves. These Units would achieve greater management autonomy and several were expected to be established as independent Health and Social Services Trusts. The Trusts are set up as separate entities within the Health and Personal Social Services and a new system of health and social services contracts would provide the linkage between them as providers and the Boards as purchasers of services (Social Services Inspectorate 1994, p. 8). The objective was to provide good quality cost effective services based on local needs, form a mixed economy of wel-

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fare using statutory, voluntary and private providers. This aimed to maximise greater service user choice and to ensure co-ordination provision where possible of health and social care services. The introduction of Trusts in Northern Ireland has required new legislation with considerable adjustments to the original concepts of hospital trusts. It must be borne in mind that child care services are not being delivered through trusts in other parts of the United Kingdom. Further the government’s assertion “that trusts are a natural organisational model in the effective and efficient delivery of family and child care services” is unresearched and: the idea that trusts are “natural organisations” owes more to the assertion than reasoned explanation. (Richie, 1993, p. 8) In a report commissioned by Child Care Northern Ireland, Richie (1993), raises a number of concerns, notably that child care services may become dependent on financial priorities and individual service processes of trusts rather than on rights of access to services as laid down in the Children (Northern Ireland) Order 1995. More significantly, uncertainty about the location of accountability in Trusts raises issues about lines of professional accountability which could be subject to legal interpretation. She cautions that such uncertainties are likely to be reflected in defensive social work practices which will run counter to the spirit of the new Children Order. More disconcertingly, there is a lack of any reference to prevention in the Position Paper on Delegation of Statutory Functions (Department of Health and Social Services, 1993). As a consequence this begs questions about the priority of child protection in Trust contracts with prevention as an optional service to be delivered if resources allow or consumers are prepared to pay (Richie, 1994, p. 15). This position would have significant implications for the legislation and may alter the voluntary sector who already occupy a significant role in the provision of preventive services. In any case it seems unlikely that the Children (Northern Ireland) Order 1995 will be implemented before 1996. The consultation period has been completed and the voluntary and statutory sector actively contributed to this process. However it seems that legislative reforms which enable Trusts to provide statutory child care services will require to be in place first before the child care legislation can be implemented. The speed with which organisational change has been implemented in

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Northern Ireland has not taken account of staff morale or the pressures experienced by staff who are unable to find any reassurances about terms and conditions of service or clarity about professional lines of accountability. The Economic and Political Context of Child Care Legislation Since the late 1960s Northern Ireland has been a highly conflicted and divided society. In her work Smyth (in press) examines the impact of sectarianism on social work in Northern Ireland. Smyth details the economic and political factors which contribute to the current division. She highlights the societal context for the practice of social work in Northern Ireland of such events as the raising of civil rights demands in the late 196Os, the fall of the Stormont parliament, the development of the British Army in Northern Ireland, and the Irish Republican Army’s campaign of political violence aimed at British withdrawal from Northern Ireland, and the introduction and renewal of emergency legislation and recurring campaigns of loyalist activity. She points out that violence is not equitably distributed in Northern Ireland, class, gender and age are factors which structure the experience of violence. (Smyth, in press, p. 8). It is mostly working class areas, particularly working class Catholic districts which experience high levels of military and armed police presence and house raids. Such areas are also the arena for shooting incidents, punishment shootings by paramilitary organisations and paramilitary feuds. She suggests that men are much more likely than women to experience violence in Northern Ireland. The work of the Children’s Rights Development Unit in Belfast highlights the graphic impact of the political conflict on children and young people in Northern Ireland: -by March 1993,42 children under the age of 14 had been killed as a result of paramilitary actions; -many children have lost parents in the conflict; -some were present when parents have been killed; -“joyriding” incidents (totalling 8,455 in 1991) were often carried out by young people. Police practices of chasing stolen vehicles and firing on them endangers the lives of young, unarmed joyriders and have even killed a number of children. -Helsinki Watch (1992) found that “the harassment of children under

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eighteen in Northern Ireland is endemic, is directed against children in both traditions - Nationalist and Unionist-and is in violation of international agreements and standards. (Children’s Rights Development Unit, 1994) Smyth (in press) also draws attention to the implications of sectarianism for social workers and their practice. She points out that a by-product of residential segregation of the population results in social workers and clients managing a situation in which geography is highly significant. For example, male workers may be more at risk in certain areas than others. Social workers investigating child abuse allegations, may find themselves dealing with members of paramilitary organisations either as service users or as the “local authority” who administer an “alternative justice system” (Smyth, in press, p. 16). In addition many social work facilities are located in middle class areas which are segregated on sectarian lines. A pattern has emerged of the social work profession attracting more Catholic than Protestants, whilst law enforcement attracts more Protestants. Smyth (in press) comments, “yet it is the impact of the religio/political composition of any profession on that profession’s orientation and practice remains unaddressed”(p. 19). Sectarian issues can also be a factor when social workers exercise their duties in relation to the prevention of child abuse or neglect. There are circumstances when social workers may be required to use police intervention in the exercise of their statutory powers, for example, in the removal of a child from parental care. The presence of the police has the potential to attract paramilitary attack and the police are often accompanied by army personnel to minimise this risk. Smyth emphasises the additional stress inherent in such situations where consumers and social workers can be outflanked by a combined police and military presence. She suggests that the fact that: “such practices have been “normalized” over the last twenty five years, to the point where they are now unremarkable to the participants is more worrying than the practices themselves. (Smyth, in press, p. 26)

The impact of sectarianism on child care legislation is not openly acknowledged yet in Northern Ireland. It is significant that the first annual report of the Chief Inspector of the Social Services Inspectorate, in 1994, makes no mention of the political context of service delivery. Rather the document outlines the demographic, social and economic factors which

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influence the need for personal social services. It has been recognised for a long time that Northern Ireland is an area which has experienced longstanding economic problems reflected in the high rates of long term employment, especially among young people, poor housing and dependency on public housing and state benefits. Using the economic status of families and households size as indicators of social need, Northern Ireland has the largest average household size and the lowest average gross and disposable weekly household incomes. Increases have also been noted in the rates of lone parent households and homelessness (Social Services Inspectorate, 1994, pp. 20-2 1). The report acknowledges that: child protection has however consumed the majority of child care resources in the personal social services, with preventive intervention being targeted on families whose children are considered at risk. In the main, family support services have been developed, on a limited scale, by voluntary organisations. Increasingly, statutory services are perceived to be associated with underachieving families and hence to be stigmatising. (Social Services Inspectorate, 1994, p.24) Given Northern Ireland’s poor history of funding for prevention, it seems unlikely that the Children (Northern Ireland) Order 1995 will be able to provide a safety net of services for families indeed when: there are no earmarked funds for personal social services within the allocation given to Boards for the provision of hospital, community health and personal social services. (Social Services Inspectorate, 1994, p. IO) The Social Services Inspectorate acknowledge the potential contribution child care services could make to the relief of disadvantage and the promotion of equality but they fail to take a view of inequality which encapsulates structural inequality. The challenge for policy makers and those who provide services is to identify the points at which changes in family structure and life-style cut across the goals of personal; achievement in early childhood and to intervene as early as possible in ways that promote self sufftciency. (Social Services Inspectorate, 1994, p. 130) There has been substantial areas of variation in Boards resources allo cated to personal social services, coupled with the lack of change in proportional expenditure in the last ten years, and substantial differences in service provision alongside deficiencies in information to facilitate assessment of

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need. These are referred to in the Report simply as “some other important points to note” (Social Services Inspectorate, 1994, p. 13 1). The failure to acknowledge the crucial integration of social policy practices with direct provision of personal social services augurs poorly for future child care provision. The Social Policy Context to the Legislative

Reforms

A final exploration of the social policy context will illustrate how tenuous the balance is between the Order’s potential to promote quality services with equality provision, and its capacity to perpetuate stigmatising child protection and a neglect of children’s rights. Pinkerton (I 993) coherently and succinctly explores the impact of the parity principle of viewing the Order simply as an extension of the Children Act (England and Wales) 1989. He argues that the new legislation has been shaped by local child welfare developments, notably the Black Report (Department of Health and Social Services, 1979). The expansion of social services throughout the 1970s led to a recognition of the need to review arrangements for children and young people which emphasised the contextual realities of Northern Ireland. These included: recognising that a significant proportion of the child population experienced multiple socio-economic deprivation and that all children were having to cope with the rapidly changing nature of modem society and the continuing problem of political and social instability. (Pinkerton, 1993, p. 17) They also acknowledged the contribution of family, extended family, church and community. The Black Report a Strategy for Help which emphasises prevention strategies located within a family and community context and harnessing formal and informal networks. Preventive work would require reviewed legislation and the establishment of co-ordinated teams at school and local social services levels. The review group proposed a twin track welfare and justice approach based on a clear separation of children’s requirements of protection and delinquency. This would be reflected in separate court systems characterised by minimal intervention. The Review Group’s Report has limited input, which can be traced to the organisational and political implications of the Kincora scandal which emerged in the 1980s. This revealed prolonged sexual abuse by staff of young men in a Belfast Welfare Hostel. The investigation concluded with the Hughes Inquiry published in 1986, (Department of Yealth and Social

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Security [Northern Ireland], 1986) but the scandal cast a blight not only on residential social work provision but on the morale of social work staff in the Province, A further impediment to the far sighted implementation of Black’s recommendations lie in the defensive strategy which Boards have adopted in targeting resources to child protection. The Department of Health and Social Services (1986) report Supporting Families Under Stress has emphasised the need for non stigmatising supportive services for families, protection policies and practices have been previously dominated. This in many respects, the Children (Northern Ireland) Order 1995 has roots which preempt any consideration of parity with United Kingdom legislation. The present concerns which have been voiced by the professional bodies which represent social work interests in Northern Ireland relate to quality standards of services, the rights of children and parents and definition of children and families in need. Experience of the English legislation suggests that the standards and quality of duties of the Boards will be extended to include agencies and groups not previously inspected. The voluntary sector in particular which provides many of these services require finance to bring standards up to the required level. There s concern again based upon experience in England and Wales that service users will not be offered a choice because service provision is reduced or available finances are diverted into high risk work. Already several community based playgroups operating in areas of major disadvantage have been unable to achieve funding from the statutory sector as Boards target protection services at families in need. Finally the Order has a crucial part to play in improving the rights of children and parents. It advocates improved complaints and representation procedures, giving information about rights and services available to them and increased participation in decisions. Sadly there are very few organisations in Northern Ireland which can support children and families in exerting their rights. There is no children’s legal centre. nor family rights groups. but there are innovative efforts from a committed number of professionals whose aim is to promote rights for children and families in the face of opposition. A recent conference “Guilty by Participation” (1994) promoted by Save the Children Fund culminated in a short courtroom drama challenging society’s views of the rights of children. The conference was organised by a Youth Rights Group which included young people mixed religion, able bodied, disabled and young people from differing socio economic backgrounds. Conference participants included social work managers and policy

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makers. The Youth Rights Group highlighted the Government’s lack of commitment to children’s rights. Their efforts should go some way to ensuring young people at least have a chance to participate in the debate about their rights.

Conclusions The challenges posed by the introduction of the new legislation are multiple when one considers its emergence against the economic and political climate, the tensions imposed by Trusts and the difficulties currently effecting the operation of child care policies and practices within a framework of economic inequality and within a society which experiences sectarianism as a fact of daily living. Failure to see the implementation of the legislation within this wider context will result in policies and practices which reinforce these inequalities. Yet the challenge posed by facing those difficulties head on places a responsibility on educators, policy makers, managers, workers, and the community at large to address the inherent care of our day to day reality. If the implementation date of then Order is not likely to happen until 1996, Northern Ireland has time to reflect on the lessons form the United Kingdom legislation and ensure social practice work adheres to the principles of the new legislation. In this way we could be poised for reforms which will truly empower families and children.

References Booz, Allen, & Hamilton. (1972). An integrated service: The reorganisation of health and personal social services in Northern Ireland Belfast: Ministry of Health and Social Services. Caul, B., & Herron, S. (1992). A service for people, origins and development of the personal social services of Northern Ireland (2nd ed.). Belfast: December Publications. Children’s Rights Development Unit. (1994). Children and the confrict in Northern Ireland. Belfast: Queens University, Centre for Social Research. Department of Health. (1989). Working for patients. Health Service White Paper London: Her Majesty’s Stationery Office. Department of Health and Social Services. (1993). Position Paper on delegation of Statutory Functions. London: Her Majesty’s Stationery Office. Department of Health and Social Services. (1979). Report of the young persons

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review group (Black Report). Belfast: Her Majesty’s Stationery Office. Department of Health and Social Services (Northern Ireland). (1986). Report of the committee of the inquiry into children’s homes and hostels (Hughes Report). Belfast: Her Majesty’s Stationery Office. Department of Health and Social Services (Northern Ireland). (I 986). Support for families under stress. Belfast: Her Majesty’s Stationery Office. Griffiths, R. (1983,6 October). NHS management inquiry letter to the Secretary of State for Social Services from the Management Inquiry Team. London: Depanment of Health and Social Security. Guilty by Participation Conference. (1994). Script. 26 March. Belfast: Youth Rights Group. Helsinki Watch. (1992). Children in Northern Ireland: Abuse by security forces andparamilituries. Helsinki, Finland: Human Rights Watch. Macrory Report. (1970). Review of local government in Northern Ireland. Belfast: Her Majesty’s Stationery Office. Pinkerton, J. (1993). The social policy context of the Children (Northern Ireland) Order-Grounding legislation. Briefing Paper No 2 in An Introductory Training Package. Belfast: Child Care Northern Ireland. Richie, N. (1993). Trusts and children’s services in h’orthern Ireland. Coleraine, UK: University of Ulster. Smyth, M. (in press). Social work, sectarianism and social justice in Northern Ireland In P. Lemish (Ed.), Educating in deeply divided societies. Tel Aviv, Israel: Ford Foundation/ International Center for Peace in the Middle East. Social Services Inspectorate. (1994). Promoting social welfare. First Annual Report of the Chief inspector Social Services Inspectorate, Northern Ireland 1994. Belfast: Department of Health and Social Services.