1.1.2 Legal Framework |
Contents
The Legislative Framework for Safeguarding and Promoting the Welfare of Children
The Local Authorities Duty to Investigate
The Duties of Other Agencies and Persons to Co-operate
Power of Entry to Save Life or Limb
The Legislative Framework for Safeguarding and Promoting the Welfare of Children
Children Act 2004 |
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| 1.1 | Section 10 requires each local authority to make arrangements to promote co-operation between the authority, each of the authorities relevant partners and such other persons or bodies, working with children in the local authorities area, as the authority consider appropriate. The arrangements are to be made with a view to improving the wellbeing of children in the authorities area – which includes protection from harm or neglect alongside other outcomes. This section of the Children Act 2004 is the legislative basis for children’s trust arrangements. |
| 1.2 | Section 11 requires a range of organisations to make arrangements for ensuring that their functions, and services provided on their behalf, are discharged having regard to the need to safeguard and promote the welfare of children. |
| 1.3 | Section 12 enables the Secretary of State to require local authorities to establish and operate data bases relating to the section 10 or 11 duties (above) or the section 175 duty (Appendix A), or to establish and operate data bases nationally. The section limits the information that may be included in those data bases and sets out which organisations can be required to, and which can be enabled to, disclose information to be included in the data bases. |
| 1.4 | Section 13 of the Children Act 2004 requires a range of organisations to take part in Local Safeguarding Children Boards (LSCBs). Sections 13-16 set out the framework for LSCBs, and the LSCB regulations, issued for consultation alongside the draft guidance Working Together to Safeguard Children (2005c), set out the requirements in more detail in particular on LSCB functions. |
Children Act 19891.5 Safeguarding and Promoting the Welfare of ChildrenSection 17 of the Children Act 1989 places a general duty on every local authority:
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Children who are suffering or are likely to suffer significant harmWhere a local authority – |
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| a. | are informed that a child who lives, or is found in their area –
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| b. | have reasonable cause to suspect that a child who lives, or is found in their area is suffering, or is likely to suffer, Significant Harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare (Children Act 1989 section 47(1)). |
| 1.6 Duties to co-operate to safeguard and promote the welfare of children | |
| The Children Act 1989 places two specific duties on agencies to co-operate in the interests of children in need. | |
| a. | Section 27 provides that a local authority may request help from:
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| in exercising the local authorities functions under Part III of the Act. This part of the Act places a duty on local authorities to provide support and services for children in need, including children looked after by the local authority and those in secure accommodation. The authority whose help is requested in these circumstances has a duty to comply with the request, provided it is compatible with its other duties and functions. | |
| b. | Section 47 places a duty on:
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| to help a local authority with its enquiries in cases where there is reasonable cause to suspect that a child in suffering, or is likely to suffer, significant harm. | |
1.7 Children provided with accommodation by a health authority or local education authority |
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| c. | Section 85 |
| 1. | Where a child is provided with accommodation by any health authority or local education authority (“the accommodating authority”) –
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| 2. | Where subsection (1) applies with respect to a child, the accommodating authority shall notify the responsible authority when they cease to accommodate the child. |
| 3. | In this section “the responsibility authority” means –
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| 4. | Where a local authority have been notified under this section, they shall–
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1.8 Private FosteringA private fostering arrangement is essentially one that is made privately (that is to say without the involvement of a local authority) for the care of a child under the age of 16 (under 18 if the child has a disability) by someone other than a parent or close relative with the intention that the arrangement should last for 28 days or more. The period for which the child is cared for and accommodated by the private carer should be continuous, but that continuity is not broken by the occasional short break. A close relative is defined within the Children Act 1989 as being a parent, grandparent, brother, sister, uncle or aunt (whether of full or half blood or by marriage) or step parents. Section 67(1) of the Children Act 1989, as amended by Section 44 of the Children Act 2004, provides that: |
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| 1. | Every local authority must satisfy themselves that the welfare of children who are or are proposed to be privately fostered within their area is being or will be satisfactorily safeguarded and promoted. The local authority must also ensure that such advice is given to those concerned with caring for them as appears to the authority to be needed. |
| 2. | Under Section 67(3) of the 1989 Act, local authorities have the authority to arrange to see the child who is being, or is proposed to be, privately fostered and inspect the premises where the private fostering is taking place or is proposed to take place. |
| 3. | Any person exercising the power under subsection (3) shall, if so required, produce some duly authenticated document showing his authority to do so. |
| 4. | Where a local authority are not satisfied that the welfare of any child who is or is proposed to be privately fostered within their area is being or will be satisfactorily safeguarded or promoted they shall, unless they consider that it would not be in the best interests of the child, take such steps as are reasonably practicable to secure that the care and accommodation of the child is undertaken by
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| 5. | Section 68 and 69 of the 1989 Act provide for people to be disqualified in certain circumstances from being private foster carers and for the local authority to prohibit someone from being a private foster carer from which they have the right to appeal. |
Notifications in Relation to Privately Fostered ChildrenThe Children (Private Arrangements for Fostering) Regulations 2005 outline who must notify the local authority that a child is to be privately fostered and gives tight timescales for when they must notify. The persons who have to notify are:-
The private foster carer must also notify the local authority in advance or within 48 hours of any change of address, any offences committed by himself or person in household, any disqualification or prohibition imposed on him or member of his household under section 68 or 69 Children Act 1989 (see above). Notification must also be given within 48 hours to the local authority by the private foster carer should the arrangement end. Once the local authority have received notification they must within seven working days undertake a number of duties which include having to visit the child and premises. Timescales are also outlined for subsequent visits and further actions to be complied with. Written reports must be prepared. The notification must be in writing and posted to the relevant authority and must include information that is outlined in the schedules to the regulations. It is an offence without reasonable excuse not to provide the notification required or to prevent the local authority from carrying out their duties to the privately fostered child. Every local authority must promote public awareness in their area of requirements to make the notifications set out above. |
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Domestic Violence, Crime And Victims Act 2004 |
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| 1.9 | The new offence and procedural changes in section 5 of the Domestic Violence, Crime and Victims Act 2004 forms a package of measures which are intended to solve the problem that arises when a child or vulnerable adult suffers an unlawful death and it can be proved that one or more of a small group of people living in the same household as the victim caused the death, but not which of them. In such circumstances there may be no case to answer against any member of the household for murder/manslaughter. Until now this loophole in the law has enabled those co-accused of the death of a child or vulnerable adult to escape justice by remaining silent or by blaming each other. It is also a serious stand-alone offence which puts a new legal responsibility on adult household members who could be charged with the offence even when, for example, there is no charge of murder/manslaughter or where evidence suggests that the defendant could not themselves have committed the criminal act which killed the victim. |
| 1.10 | The offence provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty if they caused the death of that child or vulnerable adult or three conditions are met:
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| 1.11 | The offence may therefore be applicable in two different circumstances – the defendant may have caused or allowed the death of a child or vulnerable adult. The prosecution do not have to prove which of the two circumstances apply to the defendant. The maximum penalty is 14 years. |
Education Act 2002 |
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| 1.12 | Section 175 of the Education Act 2002 places a duty on Local Education Authorities and on school and college governing bodies to make arrangements with a view to safeguarding and promoting the welfare of children. Proprietors of independent schools also have a duty to safeguard and promote the welfare of children who are pupils at the school under Section 157 of the Education Act 2002 and the Education (Independent Schools Standards) Regulations 2003. |
Education Act 1996 |
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| 1.13 | Local Authority functions relating to child employment under section 559 of the Education Act 1996 and section 18(2) of the Children and Young Persons Act 1933 are education functions. The Local Authority Education Welfare Service is responsible for administering the child employment legislation, currently contained in local bye laws. The health, education and wellbeing of every child for whom a work permit or performance licence is issued must be protected. Employers of children also have a responsibility to safeguard and promote the welfare of children by applying to the local authority for an employment permit. |
Youth services facilities |
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| 1.14 | The local authority functions relating to the provision of youth services facilities are set out in section 508 of the Education Act 1996. |
Housing Act 2004 |
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| 1.15 | Part 1 of the Housing Act 2004, gives local authorities powers and duties to take action against bad housing conditions, and introduces a new Housing Health and Safety Rating System under which authorities’ environmental health professionals will assess the impact of health and safety hazards in the light of the occupants most vulnerable to them. Examples are damp and mould (to which the most vulnerable age group is children under 14), problems with washing facilities, sanitation and drainage (children under 5) and falls between levels (children under 5). The new system replaces the housing fitness standard and provides an objective way of assessing the seriousness of hazards and identifying the most appropriate remedial action |
Housing Act 1996 |
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| 1.16 | Section 213A of Housing Act 1996 (which was inserted by the 2002 Homelessness Act) ensures that a housing authority contacts Children’s Social Care (with consent) when a family with children is ineligible or intentionally homeless i.e. they are not owed the main homelessness duty and the family wishes to seek assistance under Part 3 of the Children Act 1989. If consent is withheld, the housing authority may disclose information about a homelessness case to Children’s Social Care if the child is or may be at risk of significant harm. |
| 1.17 | Section 213A also ensures that housing authorities cooperate with Children’s Social Care to provide advice and assistance as is reasonable to help ineligible or intentionally homeless households with children to obtain accommodation. However the duty does not extend to providing accommodation for the household. |
Human Rights Act 1998 |
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| 1.18 | The Human Rights Act 1998 is fundamental to this Guidance. Section 6(1) places a duty on all public authorities to act in a way that is compatible with the rights and freedoms of the European Convention of Human Rights that have been incorporated by the 1998 Act. These convention rights include Article 3 – “no one shall be subjected to torture or inhumane or degrading treatment or punishment” and Article 8 – “everyone has the right to respect for his private and family life, his home and his correspondence”. |
Licensing Act 2003 |
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| 1.19 | The overall aim of the Licensing Act is to modernise the legislation governing the sale and supply of alcohol and public entertainment licensing. The Act transferred Liquor licensing powers from the Magistrates’ Courts to Local Authorities, via the creation of ‘Licensing Authorities’. A number of ‘responsible authorities’ are to be notified of all licence variations and new applications. These responsible authorities include the police and the fire department, as well as “a body which represents those who, in relation to any area, are responsible for, or interested in, matters relating to the protection of children from harm, and is recognised by the licensing authority for that area for the purposes of this section as being competent to advise it on such matters.” Agreement regarding the identification of this body is a local decision, however it may be a function of the Area Child Protection Committee (the LSCB in the future) or Children’s Social Care. |
The Sexual Offences Act 2003 |
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| 1.20 | The Sexual Offences Act 2003, which came into force on 1 May 2004, represents a major overhaul in the sexual offences framework. Sexual crime, and the fear of sexual crime, has a profound and damaging effect on the lives of individuals and communities. Amongst the important measures contained in this Act, it clarifies issues surrounding consent in rape and sexual assault cases; it gives children the greatest possible protection against sexual abuse; for the first time, it provides a specific set of offences to protect persons with a mental disorder; and it tackles the commercial exploitation of people for sexual purposes through prostitution and trafficking. Throughout the Act, the maximum penalties for offences have been reviewed and, where necessary, amended to reflect the seriousness of the behaviour involved |
| 1.21 | Part 2 of the Act deals with notification requirements (often known as the register of sex offenders) and re-enacts, with amendments, Part 1 of the Sex Offenders Act 1997. The notification requirements have proved an invaluable tool for the police to monitor convicted sex offenders within their area and the Sexual Offences Act makes a number of changes that increase the effectiveness of the requirements. Part 2 of the 2003 Act also brings together, and improves upon, the sex offender order and restraining order into a new sexual offences prevention order (SOPO) and introduces the notification order, the foreign travel order and the risk of sexual harm order (RSHO). These civil orders are intended to assist the police and probation services in the management of sex offenders and those who pose a risk of sexual harm |
Key Themes
Section 1 of the Children Act 1989 sets out a number of principles which any Court shall have regard to when determining any question with respect to the upbringing of a child.
- The child’s welfare shall be the Court's paramount consideration [Section 1(1)].
- In all proceedings, there is a presumption that any delay in reaching a decision is prejudicial to the child’s welfare [Section 1(2)].
- The Court shall not make an Order unless it considers that doing so would be better for the child than making no Order at all. In other words, the Court will have to look at all the practical alternatives — including making no Order — in addition to the purpose that any Order would serve, before making an Order [Section 1 (5)].
In addition, section 1 (3) sets out the welfare checklist which has to be considered before making any Orders other than emergency orders.
A local authority which has obtained an Order giving it parental responsibility (i.e.: an Emergency Protection or Care Order) shares parental responsibility with the child’s parents.
Section 3 of the Children Act 1989 introduced the concept of parental responsibility. A local authority may acquire parental responsibility, for example, on the making of a care order (s33(3)).
The Act emphasises that the primary responsibility for looking after children rests with families and the local authority’s role is to help parents fulfil this responsibility, even if it has been restricted by a Court Order. Under these circumstances, local authorities are required to do all that is reasonable to keep parents informed, involved in decision-making and to allow contact with their children.
The Act tries to find a proper balance between the need to promote the welfare of the child, and the need to respect the rights of families. This is seen particularly in the various legal safeguards which families have, especially when Court Orders are being made.
This balance is also reflected in the provisions of the Human Rights Act 1998.
Under Section 26(3) of the Children Act 1989, each local authority must also set up a procedure for dealing with representation and complaints from the child, parents, or anyone else who has a justified interest in the child’s welfare. This procedure has to involve at least one person who is completely independent — neither an elected member nor an officer of the local authority.
The Public Law Outline
The Public Law Outline and revised Statutory Guidance in relation to Court orders has been in operation since 1 April 2008. Its objective is to minimise delay in completing Children Act cases involving the local authority (referred to as public law cases). The aim is that, other than in exceptional or unforeseen circumstances, every public law case should be finally determined within the child's timescale and not necessarily in 40 weeks of the application being issued as it was under the previous Judicial Protocol. The aim is to ensure children's cases are dealt with expeditiously and fairly. Key aspects include:
- The expectation that Core Assessments will have been carried out before Care Proceedings are issued
- Careful consideration given to the possibility of placing children with family or friends, whether as an alternative to proceedings or as a placement under a Care Order (on a interim basis initially) or a Special Guardianship Order
- A letter to parents before proceedings which sets out areas of concerns and what they need to do in order to avoid the need for court proceedings and their right to obtain legal advice
- A pre proceedings meeting being held to agree a plan to safeguard the child and avoid the need for the local authority to apply to the court for an order
- Improved preparation of documentation to support proceedings
Family Support and Prevention
- Section 17 of the Children Act 1989 gives local authorities a general duty to safeguard and promote the welfare of children in need (see definition below) and to promote the upbringing of such children by their families, so far as this is consistent with their welfare duty to the child, by providing an appropriate range and level of services, including the provision of accommodation. Partnership with parents and consultation with children on the basis of careful joint planning and agreement is the guiding principle for the provision of services within the family home and where children are provided with accommodation both under voluntary and statutory arrangements.
- Local authorities are under a duty under the Children Act 1989 to take reasonable steps, through the provision of services for the child and his/her family, to prevent children within their area suffering neglect or ill treatment. Further, if a child believed to be likely to suffer harm who has lived in a local authority’s area proposes to move to another local authority area, the first local authority must inform the other local authority of the harm the child is likely to suffer and, if possible, where the child proposes to live.
- Under Schedule 2 paragraph 5 of the Children Act 1989, a local authority may provide accommodation for a person who voluntarily leaves premises where a child is suffering or likely to suffer ill-treatment from him or her. This provision may assist in making arrangements to safeguard a child without having to disrupt the child’s living arrangements.
- In a case where a child is suffering or likely to suffer significant harm and alternative arrangements need to be made for the child’s care, the local authority have a discretion to decide whether the provision of accommodation for the child by agreement with the parents under Section 20 of the Children Act 1989 is sufficient to safeguard the welfare of the child, or whether an application for a Care Order or Supervision Order is necessary. The term ‘Accommodated Child’ refers to a child for whom the local authority has provided accommodation under section 20. Work with parents to achieve an initial agreement regarding accommodation of the child by the local authority will usually ensure that the ongoing plan for the child can be operated in partnership with the parents. However, where, for example, a parent is unwilling to co-operate at the outset, or becomes uncooperative or inconsistent in attitude or commitment to the child, the nature of the arrangement should be reassessed, and the need for care proceedings or even emergency protective action should always be considered.
Children In Need
Under Section 17 [10] of the Children Act 1989, a child is in “need” if:
- He/she is unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him/her of services by a local authority;
- His/her health or development is likely to be significantly impaired, or further impaired, without the provision for him/her of such services; or
- He/she is a Disabled Child.
The Local Authorities Duty to Investigate
A local authority is under a duty to investigate in the following circumstances:
- When a Court in family proceedings directs that a local authority investigate a child’s circumstances [Section 37(1)]
- Where the local authority is informed that a child who lives, or is found, in its area is the subject of an Emergency Protection Order(granted to a person other than the Local Authority) or is in Police protection or has contravened a ban imposed by a curfew notice made under the Crime and Disorder Act 1998 (s 47(1)(a) of the Children Act 1989. Under the Crime and Disorder Act 1998, there is provision for local curfew schemes which allow local authorities to ban children of specified ages (under 10) from being in a public place during specified hours.]
Where a child has been taken into Police Protection, the local authority’s enquiries have to consider whether it would be in the child’s best interests for the local authority to ask for an application to be made by the Police for an Emergency Protection Order [Sections 46(7) and 47(3)(c)]. - Where a local authority is informed, or has cause to suspect, that a child living in their area has suffered Significant Harm or is likely to suffer such harm [Section 47(1)(b)].
In such circumstances, the local authority’s duty is to take such steps as are reasonably practicable (unless they are satisfied that they already have sufficient information about the child) to obtain access to the child or to ensure that access to him or her is obtained on their behalf by a person authorised by them for this purpose. These enquiries must be made with a view to enabling the local authority to determine what action, if any, to take with respect to the child [Section 47(4)].
Also, where a local authority has obtained an Emergency Protection Order under Section 44 with respect to a child, the authority must make (or cause to be made) such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child’s welfare [Section 47(2)].
These enquiries must be directed particularly towards establishing whether the local authority should make an application to the Court or exercise any of their other powers under the Children Act with respect to the child [Section 47(3)(a)].
The Duties of Other Agencies and Persons to Co-operate
Where a local authority is conducting a Section 47 Enquiry (Child Protection Enquiry) under Section 47 of the Children Act 1989, it shall be the duty of other agencies listed below to assist them in those enquiries if called upon by the authority to do so.
The agencies concerned are:
- Any local authority
- Any local education authority
- Any local housing authority
- Any health authority
- Other persons authorised by the Secretary of State for the purposes of this Section.
Child Assessment Orders
On the application of a local authority or an authorised person (e.g. the NSPCC) the Court may make a Child Assessment Order if it is satisfied that an assessment of the state of the child’s health or development, or the way in which he/she has been treated, is required to determine whether or not he/she is suffering, or is likely to suffer, Significant Harm. The Court may make an Emergency Protection Order instead of a Child Assessment Order, if it is satisfied that there are grounds for doing so.
This is not an Order to deal with emergency situations and the applicant for a Child Assessment Order must ensure that prior notice of the application is given to the child, his/her parents, any other person who has parental responsibility for him/her or with whom he/she is living or being cared for by and a person in whose favour an Order relating to contact is in force in respect of the child. The plan placed before the Court when an application is made should have been considered at a Child Protection Conference.
Child Assessment Orders, which, unlike Emergency Protection Orders, may be appealed against, must specify the date on which the assessment is to begin and will have effect for a maximum of seven days from that date. They do not authorise an assessment which the child refuses to undergo (provided he/she is of sufficient understanding to make an informed decision). If, exceptionally, the child is to be kept away from home during an assessment, the Order may contain directions as to the contact which is to be allowed with other people.
A Child Assessment Order may specify the person to whom the child is to be produced by any person who is in a position to do so.
Exclusion Orders
There is a range of powers available under the Family Law Act 1996 which may allow a perpetrator to be removed from the home, instead of having to remove the child. For the Court to include an exclusion requirement in an Order, it must be satisfied that:
There is reasonable cause to believe that if the person is excluded from the home in which the child lives, the child will cease to suffer or cease to be likely to suffer Significant Harm; and
Another person living in the home is able and willing to give the child the care which it would be reasonable to expect a parent to give, and consents to the exclusion requirement.
Emergency Protection Orders
In an emergency, the local authority, the NSPCC, a Police Officer or any other person can apply (under Section 44 of the Children Act 1989) for an Emergency Protection Order. In practice, local authorities will make most applications. The Order will enable a child to be removed to other accommodation or to remain in a place where he/she is being accommodated (e.g. a hospital or foster placement). The Order may authorise the applicant to enter specified premises and to search for the child in respect of whom the Order is made or for another child if the Court has reasonable cause to believe that he/she may be on the premises (Section 48).
The Court may also issue a warrant authorising a Police Constable to assist the applicant, using reasonable force if necessary [Section 48(9)]. Under Section 48(11), a Court may direct that a registered medical practitioner, registered nurse, may accompany a Constable or registered health visitor if he/ she so chooses.
Where speed is essential to protect a child and a warrant would take too long to obtain, the Police can enter premises without a warrant to save life or limb under Section 17 (1)(e) of the Police and Criminal Evidence Act 1984.
The conditions for granting an Emergency Protection Order are that the Court is satisfied that there is reasonable cause to believe the child is likely to suffer significant harm if he/she is not removed from, or does not remain at, a place or where a Child Protection Enquiry is being conducted under Section 47 and those enquiries are being frustrated by the unreasonable refusal of access to the child requested as a matter of emergency. If the Order is granted, the applicant should only remove the child if this is necessary to safeguard his/her welfare, and must return the child when the applicant considers it is safe to do so.
The Court may attach directions to the Order regarding assessment of the child and contact with parents or others.
An Emergency Protection Order lasts for a maximum period of eight days. The Court may, exceptionally, extend it for a further period of up to seven days if there is reasonable cause to believe that the child is likely to suffer significant harm if the Order is not extended. There is no appeal against the making of or refusal to make an Emergency Protection Order. After 72 hours from the granting of an Order the child, his parents, any other person who has parental responsibility for him/her, or any person with whom he was living immediately before the Order was made, may apply to the Court for its discharge.
Where the Court is satisfied that an Emergency Protection Order should be granted the Court may also include an exclusion requirement in the emergency protection order. The court must be satisfied that there is reasonable cause to believe that, if the person is excluded from the home in which the child lives then the child will not be likely to suffer significant harm; or in the case of an order made on the basis that enquiries are being frustrated that the enquiries will cease to be frustrated, and that another carer within the house is able and willing to care for the child and consents to the exclusion requirement
Throughout the period of any Emergency Order, parents should, as far as possible, be involved in discussion and planning for the child, and at the very least should be kept fully aware of what action is being taken.
Recovery Orders
A Court may make a Recovery Order in respect of a child who is in care, or is the subject of an Emergency Protection Order, Care Order or Interim Care Order or in Police Protection (under Section 46), if there is reason to believe that he or she has been unlawfully taken away from the “responsible person”, has run away or is staying away from the “responsible person” or is missing. A “responsible person” is any person who has care of the child by virtue of a Care Order, Emergency Protection Order or following Police removal.
The Order operates as a direction to produce the child or disclose his or her whereabouts, and authorises a Constable to enter specified premises and search for the child using reasonable force if necessary.
Power of Entry to Save Life or Limb
A Police Constable may enter and search any premises, without the need for a warrant, for the purposes of saving life or limb (Police and Criminal Evidence Act 1984, Section 17). This is a general power and may be used to gain access to premises in which a child is in serious danger.
Police Protection
Where a Police Constable has reasonable cause to believe that a child would otherwise be likely to suffer Significant Harm, s/he may remove the child (under Section 46) to suitable accommodation, e.g. a relatives home, a hospital, a Police Station, a residential children’s home or other suitable place, and keep him/her there or take reasonable steps to prevent the child’s removal from any hospital or other place in which he/she is being accommodated. No child may be kept in Police Protection for more than 72 hours.
As soon as possible, the Police should inform the local authority within whose area the child was found, the child (if he/she appears capable of understanding), his/her parents, any other person who has parental responsibility for him/her or any person with whom he/she was living immediately before his/her removal, of the steps that have been, and are proposed to be, taken in respect of the child and the reasons for taking them.
Whilst a child is being kept in Police Protection, the Police do not have parental responsibility for the child but should do what is reasonable to promote the child’s welfare. This includes allowing such contact with the child as, in the opinion of the Police, is both reasonable and in the child’s best interest.
On completing their enquiries the Police must release the child from Police Protection unless they consider that there is reasonable cause for believing the child would be likely to suffer Significant Harm if released. Under such circumstances, the Police should discuss the matter with Children’s Social Care Services with a view to applying for an Emergency Protection Order.
It is accepted by the West Midlands Police and Children’s Social Care Services in Coventry that Police Protection will only be utilised by the Police in exceptional circumstances and as a last resort, e.g. where it is necessary for the Police to use their emergency powers to protect a child from immediate danger, or where there is conflict in reaching a joint agreement between Children’s Social Care Services and the Police.
Under normal circumstances, any removal or other action required to protect a child — whether on a voluntary or compulsory basis — will be achieved by Children’s Social Care Services.
Care Orders
A Care Order is an Order made by the Court following care proceedings under section 31 of the Children Act 1989. Please also see the section on The Public Law Outline.
A Court can only make a Care Order if it is satisfied that the child concerned is suffering or is likely to suffer Significant Harm attributable to the care being given to the child, or likely to be given to him if the Order were not made, not being what
it would be reasonable to expect a parent to give or the child being beyond parental control. This test is referred to as “the threshold criteria”
An explanation of the term significant harm is found in Significant Harm Procedure
Under a Care Order the local authority specified in the order acquires parental responsibility for the child, to be shared with the parents and any others who retain parental responsibility.
All children who are the subject of Care Orders have to have a Care Plan. When making a Care Order, the Court has to approve the Care Plan for the child.
A Care Order lasts until the child is 18 years old unless discharged earlier.
An Interim Care Order can be made for up to eight weeks of the first occasion and after that, for periods of up to 28 days. There is no limit to the number of interim care orders that can be made.
Supervision Orders
A Supervision Order is an order made by the Court under section 31 of the Children Act 1989. The Court can only make a supervision order if it is satisfied that the threshold criteria are met (see above).
Under a Supervision Order, the local authority specified in the order has a duty to advise, assist and befriend the child and the family.
A Supervision Order does not confer parental responsibility on the local authority.
A Supervision Order lasts for up to 1 year, though it may be made for a shorter period. It is subject to discharge and extension by the court for up to a total of 3 years. An Interim Supervision Order can be made for up to eight weeks on the first occasion and after that, for periods of up to 28 days. There is no limit to the number of interim supervision orders that can be made.
Contact Orders
A Contact Order is an Order made by the Court under section 8 of the Children Act 1989 requiring the person with whom a child lives to allow the child to have contact with the person named in the order.
A Contact Order can be made in relation to a child who is the subject of a Care Order under Section 34 of the Children Act 1989.
Residence Orders
A Residence Order is an order made by the Court under section 8 of the Children Act 1989 which specifies with whom a child should live.
A person in whose favour a Residence Order is made will acquire parental responsibility for the child.
A Residence Order will normally last until a child is 18 years old. However, a residence order will automatically be discharged on the making of a Care Order.
A Residence Order cannot be applied for by or made in favour of a local authority.
Special Guardianship Orders
A Special Guardianship Order is an order made by the Court under section 14a of the Children Act 1989. It cannot be made in favour of anyone who is a birth parent of the child in question.
A person in whose favour a Special Guardianship Order is made will acquire parental responsibility for the child. As with a Residence Order, a Special Guardian will share parental responsibility with anyone else that already has it, but the Special Guardian has the final say in terms of day-to-day decision making for that child.
There are a number of exceptions to this, which cover such issues as consent for adoption, taking the child out of the UK for more than 3 months at a time and changing the child’s name – all of these require the consent of everyone else who has parental responsibility or a court order.
A Special Guardianship Order will normally last until the child is 18 years old. Unlike a Residence Order, a Special Guardianship Order is not discharged on the making of a Care Order.
A Special Guardianship Order cannot be applied for or made in favour of a local authority.
Prohibited Steps Order
A Prohibited Steps Order is an Order made by the Court under section 8 of the Children Act 1989.
The Order specifies action that cannot be taken by a person in relation to a child without the consent of the Court.
Specific Issues Order
A Specific Issues Order is an order made by the Court under section 8 of the Children Act 1989.
The Order gives direction for the purposes of determining a specific question which has arisen in relation to the exercise of parental responsibility for a child, for example, where or how a child should be educated.
Wards of Court
A child who is a ward of court is under the jurisdiction of the High Court. No important decision can be taken regarding such a child without the High Courts consent. This includes medical assessments and interviews.
Child Curfew Order
Under the Crime and Disorder Act 1998, there is provision for local curfew schemes which allow local authorities make Child Curfew Orders to ban children of specified ages (under 10) from being in a public place during specified hours.
Criminal Proceedings
Criminal proceedings can still be brought for a wide range of misconduct resulting in the [abuse] of a child. The offence of cruelty, ill-treatment or wilful neglect of a child under 16 is set out in Section 1 of the Children and Young Persons Act 1933. This offence includes failure to provide adequate food, clothing or medical attention. There are many other specific offences in relation to children as a result of which offenders may be identified as posing a continued risk of harm to children - the offences which should trigger such an assessment of risk are listed in the Home Office Circular 16/2005 (Guidance on Offences against Children).
Once an individual has been identified as presenting a risk to children, agencies have a responsibility to work collaboratively to monitor and manage the risk of harm to others. Where the offender is given a community sentence, offender managers monitor the individual’s risk to others and their behaviour, and liaise with partner agencies as necessary - see Multi Agency Arrangements in Respect of Persons Presenting a Risk to Children.
Interviewing Child Witnesses
The Government publication, ‘Achieving Best Evidence in Criminal Proceedings’, gives guidance to those conducting video-recorded interviews with child witnesses where it is intended that the interview be used in court proceedings.
Whilst the focus of the document is on criminal proceedings, it is Coventry’s practice to follow the Guidance in joint investigations between the Police and Children’s Social Care Services, in order to avoid the unnecessary re-interviewing of a child.
The Guidance gives general advice on when, where and how to make a video recording which is intended to be used in criminal (and civil) proceedings, and sets out the legal conditions which must be satisfied before a court can accept a video recording of an interview with a child witness. It gives advice on preparation for, and conduct during, the interview and details the matters which need to be dealt with once the video recording has been made, including arrangements for the proper storage, custody and disposal of tapes.
Although it is not compulsory to adopt the Guidance, it should be applied, in the interest of good practice, in all cases. Non-compliance may result in the video interview being ruled inadmissible as evidence.
For more detailed guidance on video-recorded interviews of children, please see West Midlands Joint Protocol - Child Protection Enquiries and Related Criminal Investigations.
Parental Responsibility
The meaning of Parental Responsibility
Section 3 of the Children Act defines and outlines the scope of the duties and authority in “parental responsibility”; doing so by reference to:
“...All the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child...”
The exercise of parental responsibility is left largely to the discretion of the adults involved, subject to two limitations. Firstly, the criminal law imposes minimum standards of care and the civil law provides remedies for the protection of children’s welfare. Secondly, parental responsibility itself diminishes as children acquire sufficient understanding to make their own decisions.
A person other than a parent can acquire parental responsibility through a Court Order and a step parent can also acquire parental responsibility from a Parental Responsibility Agreement. The local authority can acquire parental responsibility through an Emergency Protection Order, Interim Care Order or Full Care Order. The exercise by natural parents of their parental responsibility will be limited by such Court Orders. A person with parental responsibility is not entitled to act incompatibly with a Court Order. Parents, however, do not lose their parental responsibility unless an Adoption Order is made.
Who may have Parental Responsibility?
- All mothers and fathers automatically have parental responsibility in respect of “legitimate children”, but only the mothers in respect of an “illegitimate child”.
- The position in relation to unmarried fathers changed on 1 December 2003. Up to then, if the father was not married to the mother, he could only acquire Parental Responsibility by a formal agreement with the mother in a prescribed form or by a Court Order. However the change is that an unmarried father acquires Parental Responsibility if he registers the birth jointly with the mother, and the registration takes place after 1 December 2003. This is not retrospective and therefore an unmarried father whose name appears on the birth certificate where registration took place before 1 December 2003 does not have Parental Responsibility.
- Other persons have parental responsibility if Orders have been made granting custody or care or control of a child to them prior to the Children Act 1989 or if they have been appointed guardians on the death of the parents or if they have been granted parental responsibility through an Order made under the Children Act 1989
Parental responsibility will last as long as the Orders remain in existence.
- Under the Children Act 1989, parental responsibility will be acquired through a Residence Order, Special Guardianship Order, Parental Responsibility Order (to an unmarried father), Care Order or Emergency Protection Order.
- On the death of all those with parental responsibility a person appointed as guardian of the child either by a Court or in a will, acquires parental responsibility.
- Step-parents and civil partners may now obtain parental responsibility by court order or agreement for their partners children.
- Prospective adopters also acquire parental responsibility upon the placement of a child with them under a Placement Order, however, the extent of exercising their parental responsibility can be determined by the Local Authority and is best done in the form of a written agreement.
Possible impact on practice
Section 2(6) of the Children Act 1989 provides that any person with parental responsibility does not cease to have that responsibility solely because some other person (e.g. a local authority) subsequently acquires it. The implications of this are great.
For example:
- The local authority has a duty to ascertain and consider the wishes and feelings of those with parental responsibility before making any decision with respect to any child it is “looking after” [Section 22(4)].
Note: Looked After children are all children who are provided with any form of accommodation (whether on a voluntary or statutory basis) by the Local Authority for 24 hours or more.
- When conducting any review on a looked after child, the local authority must seek the views of any person with parental responsibility in relation to any particular matter which is being considered [Section 26(1)].
- When providing voluntary accommodation in agreement with parents, the local authority must ensure that it identifies those with parental responsibility for children so accommodated, so that it can be clear about who has the right to remove and provide or arrange alternative accommodation elsewhere [Section 20(7)].
Apart from the duties above which relate to accommodated or looked after children, the local authority will have to consider the implications of who has parental responsibility in regard to children about whom they are considering that accommodation or “care” might be appropriate, e.g.:
- When considering whether or not to provide accommodation under Section 20, the local authority must ensure no other person with parental responsibility is in a position to help/provide an alternative.
- The local authority must properly consider (and prove to the Court that it has done so) all the alternatives before applying for an Emergency Protection Order or Care Order, if that ever becomes necessary.
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