The Development of Child Protection Law and Policy: an Interview with the Author

An Interview with Kieran Walsh on the Release of his New Publication

Kieran Walsh is Senior Lecturer in Family and Child Law. Here he discusses the motivations behind his newly published book The Development of Child Protection Law and Policy – Children, Risk and Modernities, which examines how child protection law has been shaped by the transition to late modernity and how it copes with the ever-changing concept of risk.

1. Your newly published book in Palgrave’s series Studies in Citizenship, Human Rights and the Law provides an extensive analysis of the evolution of child protection law over the course of 130 years. What sparked your interest in the subject, and had you conducted research in this field prior to working on this book?

My interest in this topic started when there was discussion in Ireland around introducing what is called a “soft information vetting” system. Essentially, this is similar to the DBS scheme in the UK, where a person looking to work in certain jobs needs to be background checked. While many states operate “hard information” systems, which check for convictions for certain kinds of offences, soft information looks for things that would indicate that a person poses a certain level of risk – for example, referrals about a person to a child protection agency or police investigations that did not result in a conviction. The idea behind this is that it can be so difficult to obtain a conviction for something like a sexual offence, due to under-reporting, evidential problems, and jury perceptions that if you want an effective vetting system, you need to look at a wider range of information. This got me thinking about the role that risk plays in child protection, and how understandings of risk have changed over time, as well as the understanding of childhood itself.

This was around the same time that there was discussion of a constitutional amendment in Ireland which would guarantee stronger recognition and protection of children’s rights. This stemmed in part from two major Supreme Court cases in 2006, one of which dealt with adoption and the other with the age of consent and statutory rape laws. In the wake of the latter, the government created a new role, the Special Rapporteur on Child Protection to report annually on child protection issues and suggested reforms. The first Rapporteur, Geoffrey Shannon, asked me to do some work with him on this project and that gave me my start working in this field.

As time went on, I came to realise that if I wanted to understand the role of risk in child protection law, I had to understand how risk was thought about in policy making and sociological thought more generally. As a result, the book became a combination of historical research into children and risk, and an investigation into how the law tries to embody current approaches to risk.

2. The Development of Child Protection Law and Policy specifically focuses on the Republic of Ireland, “where child protection has become emblematic of wider social change”. What is the significance of this focus and what links child protection to social change in this context?

The social change in Ireland over the last 30 years has been nothing short of radical. The level of secularisation, the changed understanding of gender, economic development, and the level of legal protection afforded to children have all changed out of all recognition, as has much else. Things are far, far from perfect, but Ireland is now a much less traditional, much more open society than it was even compared to when I was growing up, bearing in mind that I’m only in my mid-30s.

An awful lot has been written about this but one of the things that I noticed was that many of the major developments in child protection tracked the wider social changes. Some people have linked the two, but what I started to see was that the shifts were so great that it was possible to describe this as a shift to what some sociologists term late modernity – a phrase which implies globalisation, the decline of tradition, the emergence of new political groups and strategies, and a new focus on individual choice. There was also a change in how risk was thought about; we stopped trying to eliminate risks, and instead focused on managing and minimising them.

These changes could also be seen in child protection laws and policies, so when I started looking into the reports that prompted new laws and the media and parliamentary debates around them, the same process of change was there – a change from a traditional approach built on certain kinds of definite social relations, deference to authority, and a belief that risks could be suppressed, to one based on individual rights, participation by marginalised groups like victims and the rise of risk management.

3. If you could give us a brief overview, how has child protection law evolved, and what can still be done?

The law has changed from a position where children were, at times in the 19^th century, seen as a threat. Several MPs opposed raising the age of consent because of a fear of potential class conflict, for example. But quite suddenly in the late 1880s and early 1890s, the idea that children were victims began to emerge, so we took measures like increasing penalties for offences against children, allowed children to be removed from abusive families and adopted a more scientific approach to their welfare. After Ireland gained independence and adopted a new constitution, a more family-centred approach took hold, and that crippled child protection for decades, as did the deference to religious orders.

In Ireland, as in the UK and elsewhere, one of the major drivers of change, however, was scandal. Major public scandals involving revelations of child abuse or child death prompted huge outpourings of sympathy and anger, leading to new laws being adopted. In the Irish context, the first major scandal to really take hold in public consciousness was the Kilkenny Incest Case in 1993; when news of that broke, it began a period of near saturation coverage in the media, massive political concern, and a completely new awareness among the public at large of issues like child abuse and domestic violence. These were known about, of course, but the nature of the public conversation about them changed in both tone and content. This in turn led to changes in the child protection system, which became more child centred, allowed for child participation, and risk of harm began to play a more central role.

There remains an awful lot that can be done. On the legal side, many countries have made significant progress, and many of the laws provide a more suitable framework for deal with the problems that children face than those which were in place previously. This may sound overly optimistic, but I am not particularly optimistic about this at all. Laws on the statute book will work only if there is a political, social, systematic and financial support behind them.

Many of the current failings in child protection law are failings of systematic procedure. There is, in many states, a lack of specialised judges dealing with child protection issues. At a local level, where the vast majority of these cases take place, cases may be heard by a judge who has no particular expertise in the area, and may often come to child protection with certain social assumptions or biases which have not been challenged by either experience or training. They are doing their best, but children deserve expertise from everyone involved in making decisions about their futures. Additionally, many of the problems that children face are not only complex, but interlinked and cannot be treated in isolation by the legal system. Some jurisdictions operate problem-solving or integrated courts, so that all of the issues children face can be dealt with in a more cohesive manner. So issues regarding parental neglect, sometimes related to substance abuse within the home, domestic abuse and welfare concerns, and sometimes behavioural or educational challenges faced by children can be dealt with together rather than as 3 or 4 separate legal cases. These types of courts need to be seriously considered by those in charge of court reform, and taken seriously by the legal profession. This last point should not be neglected; individual legal systems, and those working in them, can suffer complacency that their particular system is working well and that there is no particular need to learn from other systems. This is serious problem which needs senior lawyers and judges to speak up for reform even though it may radically change how things how things are done by the profession.

On the social and political level, to answer to what more can be done is simple – more money. Child protection work has constantly been neglected in terms of spending. As a result, money is diverted to the most serious and urgent cases, leaving those cases further down the priority list to simmer away until they eventually boil over. This is caused by a shortfall of social workers, a shortfall in the number of available court days and legal representation, and crisis management approach to child protection work. The law is designed, in most countries, to be more preventative than this, but these preventative services cannot run on current crisis-led budgets. This is despite the fact that early intervention with a struggling family is likely to produce major cost savings down the line, but short termism dominates our thinking. Child protection and child welfare more generally is a public health issue and needs to be resourced as one.

4. Who is your book aimed at, and how can it inform academic work in the field as well as policy?

As a research monograph, the book is primarily aimed at academics working in a wide range of disciplines. My work is interdisciplinary, and I have been conscious to try to make sure that that is something of value in it for legal academics, as well as those working in social work and perhaps even history. I would hope that anyone involved in these areas will come away with a deeper appreciation of process behind legal change and how research in other fields can incorporate legal research.

Having said that, I hope that those involved in policy development will also find it engaging. I have tried to show how the laws we make are shaped by macro-level changes in things like our understanding of risk, and so policy makers may find it useful to try to understand what messages they are sending when they try to incorporate a particular idea or mechanism into legislation.

5. Do you have any current or future plans to follow up this study? (e.g. future papers, similar study in a different context…)

My current research project looks at the role that domestic abuse allegations play in decisions on post-separation parenting in England and Wales. While this might initially look like a significant departure from work undertaken for this book, it is in fact rooted in some of the same ideas. These cases in the UK are partially governed by a court practice direction which tells courts to assess the risk to the child and parent who alleges the abuse. In particular, courts are directed to determine whether they are faced with a manageable or unmanageable risk, and determine what, if any, measures will be adequate to guarantee everyone’s safety. In the course of this work, I have obtained access of over 100 case files, which I will be using to help determine how risk is thought about in the adjudicative process, looking for regional variations, explanations for why certain risks are deemed manageable or unmanageable, and the role that children play in assisting in the construction of those risks. So while it is a departure from the process of child protection law reform, it still uses risk as an analytical tool to understand what it going on in the law.

The Development of Child Protection Law and Policy – Children, Risk and Modernities was published by Routledge in April 2020.