This chapter was updated in April 2011
Contents
1.0 Definitions
Child:
A child means any person under the age of
18 years (16 years if married).
Parental responsibility:
Parental responsibility is defined as, "All the rights, duties, powers, responsibilities and authority which a parent has in relation to the child and the child's property"
Significant Harm:
A child is defined as being subject of Significant Harm where there is ill treatment or impairment of health or development:
- 'Ill-treatment' includes sexual and emotional abuse as well as physical abuse;
- 'Health' includes physical and mental health;
- 'Development' includes physical, intellectual, emotional, social and behavioural development.
Child in Need:
A child is defined as being
a child in need if:
- they are unlikely to achieve or maintain,
or have the opportunity of achieving,
or maintaining, a reasonable standard of health or development without the provision for them of services by a
local authority; or
- their health or development is likely
to be significantly impaired or further impaired, without the provision of
such services; or
- they are disabled.
2.0 Parental Responsibility
(Part 1 Children Act 1989 as amended
by the Adoption and Children Act 2002.)
Birth mothers (and fathers married to the birth mother) automatically have Parental Responsibility.
The natural father who is not married to the birth mother can acquire Parental Responsibility by:
- a formal agreement with the mother
- for children born after 1 December 2003, by registering the birth jointly with the mother
- on application to Court for an order granting Parental Responsibility
- on being granted a Residence Order.
In the latter two cases, Parental Responsibility can be terminated by court order.
Parental Responsibility may be acquired by other adults in the child's life through court orders but will cease when the order ends or is terminated.
Parents with Parental Responsibility can appoint a guardian to have Parental Responsibility upon death of the parent.
The local authority will acquire Parental Responsibility upon the granting of a care order. Limited responsibility is given with an Emergency Protection Order.
Under Adoption Orders, Parental Responsibility lies solely with the adopters.
3.0 Significant Harm
(Section 31 1989 Children Act)
In addition to ill treatment or impairment of health and development, Significant Harm can be caused by seeing or hearing the ill-treatment of another.
Whether the harm or likely harm suffered by the child is significant is determined by comparing the child's health or development with that which could reasonably be expected of a similar child.
Professional judgement has to be exercised to determine when the issues affecting a child become issues of Significant Harm. Professional judgements are made following the completion of an assessment when the information collated is analysed and conclusions drawn. The analysis is informed by:
- Research evidence
- Practice guidance
- Legislation and regulations
- Practice experience
- Training
Factors in the case which will influence the analysis and the Significant Harm decision are:
- Age of the child
- Reason for concern
- Past history
- Acknowledgement of parent of problem
- Co-operation of parents
- One - off incident v continuing
- Degree of injury/harm
- Contributing factors
- Identified protector
- Support networks
It is impossible to be prescriptive about how professional judgements should be formed in different situations because of the interplay of such a number of variable factors. Consultation should always take place with other agencies and with line managers so that judgements benefit from as full an analysis as possible.
4.0 Consent to Medical Treatment
Consent to medical treatment of a child should normally be sought from someone who has Parental Responsibility. Only one consent is required and the consent of the person with whom the child is living need not in cases of difficulty be preferred to that of others with Parental Responsibility.
Any touching of a child's person without consent could be an assault. This would not normally in the case of a medical examination constitute a criminal offence, as there would be no unlawful intention, but could possibly be the basis of a civil claim for damages. This does not mean that in cases where urgent treatment may be required, examination should not be undertaken before consent is obtained. However a court would need to be satisfied that the child's welfare demanded such an examination or treatment.
In cases where parental consent is sought and refused, and where urgent medical treatment is not thought to be necessary, the medical examination should be delayed until an order of the court is obtained.
An examination or treatment of a child of sufficient age and understanding to give consent (i.e. deemed to be Gillick competent) may only proceed with the consent of the child even if the medical examination or any other assessment has been ordered by the court.
5.0 Child in Need
(Section 17 1989 Children Act)
It is the general duty of every local authority to safeguard and promote the welfare of children within their area who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children's needs.
In order to undertake this task, the Local Authority will provide a range of services which will also help children in need to continue to live with their families and which are designed to help prevent abuse and neglect.
The underlying philosophy in the provision of services is to work in partnership with parents and children to prevent the breakdown of family relationships and to minimise the need to have recourse to Court or emergency protection.
The local authority will have due regard to
the racial, cultural and religious needs of children and families who are in need and
in receipt of services.
6.0 Legal Powers to Protect Children
| 6.1 |
Duty to investigate
(Section 47 1989 Children Act)
The Local Authority has a duty to make
enquiries when there is reasonable cause
to suspect that a child is suffering, or is likely to suffer, significant harm.
In the course of their enquiries, the local authority must take such steps as are reasonably practical to obtain access to the child, or to ensure that a person authorised
by the local authority for this purpose
obtains access on its behalf. If the local authority is refused access to the child, it must apply for a court order unless satisfied that the child's welfare can be safeguarded without an order. |
6.2 |
Emergency Protection Orders
(Section 44 1989 Children Act)
The court may make an Emergency Protection Order if it is satisfied that there is reasonable cause to believe that a child is likely to suffer Significant Harm if:
- He is not removed to accommodation; or
- He does not remain in the place in which he is then being accommodated.
An Emergency Protection Order may also
be made if section 47 enquiries are being frustrated by access to the child being unreasonably refused and the local authority has reasonable cause to believe that access
is needed as a matter of urgency. In these cases the court can grant a warrant for entry to the premises and may authorise a police officer to accompany the applicant.
The order can be made ex-parte with the leave of the court (i.e. without the parents being notified) or on one day's notice. An Emergency Protection Order gives authority to remove a child and places the child under the protection of the applicants for a maximum of eight days (with a possible extension of up to seven days). |
6.3 |
Police Protection Powers
(Section 46 1989 Children Act)
Where a police officer has reasonable cause to believe that a child will otherwise be likely to suffer Significant Harm, s/he may:
- Remove the child to suitable accommodation and keep him or her there; or
- Take reasonable steps to ensure that
the child's removal from any hospital, or other place in which the child is
then being accommodated, is prevented.
An independent officer of at least Inspector rank should act as the designated Officer for authorisation of Police Protection Orders.
No child may be kept in police protection for more than 72 hours. Other than in exceptional circumstances, no child should be taken into police protection without first being seen and an assessment of the child's circumstances being undertaken. |
6.4 |
Child Assessment Orders
(Section 43 1989 Children Act)
Where parents continue to refuse the Children & Young People's Service access to a child in the conduct of Section 47 Enquiries, and where the concerns about the child's safety are not as urgent as to require an Emergency Protection Order, a local authority may apply to the court for a Child Assessment Order.
In these circumstances, the courts may direct the parents/carers to co-operate with an assessment of the child, the details of which should be specified in the order. The order does not take away the child's own right to refuse to participate in an assessment, e.g. a medical examination, so long as he or she is of sufficient age and understanding. A Child Assessment Order lasts for a maximum of seven days and can involve the children being removed from home for the purposes of the assessment. |
6.5 |
Care or Supervision Orders
(Section 31 1989 Children Act)
A court may only make a care or supervision order if it is satisfied:
- that the child concerned is suffering, or is likely to suffer Significant Harm; and
- that the harm, or likelihood of harm is attributable to
- the care 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 him; or
- The child being beyond parental control.
A Care Order places the child in the care of the Local Authority. It lasts until the child is 18, unless it is revoked earlier and gives the Local Authority Parental Responsibility for the child. A Supervision Order places the child under the supervision of the Local Authority. A supervisor has the right of access to the child and the court can impose directions on the child or on the person who has Parental Responsibility. A Supervision Order will normally be made for one year but can be extended for further periods of up to one year, for a total of three years from the date when the original Supervision Order was made. |
6.6 |
Interim Care and Supervision Orders
Interim orders place the child in the care of, or under the supervision of, the Local Authority for a limited period only. Interim Orders can be made for a maximum of four weeks, except for the initial Order, or the first and second Orders together, which can be made for a period of up to eight weeks.
An interim order will only be made if the court is satisfied that there are reasonable grounds for believing that the substantive grounds for making a Care or Supervision Order are met. Interim Orders are neutral with regard to the eventual outcome of the case. |
6.7 |
Exclusion Orders
(Family Law Act 1966)
There are a range of powers available
under the Family Law Act 1996 that may allow a perpetrator to be removed from the home, instead of having to remove the child. For the courts to include 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;
- 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
|
6.8 |
Recovery Order
(Section 50 1989 Children Act)
If a child who is subject to an Emergency Protection Order or Care Order or who is in Police Protection, is taken or kept away from the any person who for the time being has care of him/her by virtue of the Care Order, the Emergency Protection Order, or Police Protection order the Court can order that he/she should be returned and can also order persons with information to give it to the Local Authority. |
7.0 Principles to be Considered in Legal Proceedings
| 7.1 |
The Child's Welfare is Paramount
The child's welfare will be the court's paramount consideration, when determining any question with respect to the upbringing of a child or in relation to a child's property. The court will have regard to the general principle that delay in determining a question with respect to the upbringing of a child is likely to prejudice the welfare of the child. |
7.2 |
The "Welfare Checklist"
When determining any question with respect to the upbringing of a child or a child's property the court will have regard to matters known as the 'Welfare Checklist'
- The ascertainable wishes and feelings of the child (considered in the light of the child's age and understanding)
- The child's physical, emotional and educational needs
- The likely effect on the child of any change in his/her circumstances
- The child's age, gender, background and any characteristic that the Court considers relevant
- Any harm the child has suffered, or is at risk of suffering
- How capable each of the child's parents, or any other person in relation to whom the Court considers the question to be relevant, is of meeting the child's needs
- The range of powers available to the Court under the Act in the proceedings in question
The Welfare Checklist must be taken into account in both Private Law Proceedings for Residence and Contact, Specific Issue and Prohibited Steps Orders; and Public Law Proceedings for Care and Supervision Orders and Education Supervision Orders. |
7.3 |
The 'No Order' Principle
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. |
8.0 Factors in Legal Proceedings
| 8.1 |
Need for Legal Advice
Most Child Protection cases do not come before the Courts. However, if there is a need for any legal interventions, advice should be sought from a Legal Officer as soon as possible to discuss the grounds for proceedings and the evidence available. |
8.2 |
Children's Guardians
In Care Proceedings, children are automatically made parties to the proceedings and their interests will be represented by a Guardian, who is an experienced social worker appointed from an independent panel.
The Guardian has a duty to advise the court on all issues in respect of the child.
The Guardian must appoint a solicitor to represent the child in court. If, as can happen in the case of an older child, the child disagrees with the Guardian's assessment of what is in his or her best interests, the solicitor appointed by the Guardian must represent the child and the Guardian will either act independently or instruct a separate solicitor.
The Guardian is appointed for the duration of the proceedings and during this period the Guardian should be invited to Child Protection Conferences and Statutory Reviews. The Guardian is allowed access to any records held in respect of the child. |
8.3 |
Standard of Proof
Proceedings under the Children Act are civil proceedings and therefore the standard of proof is the civil standard of proof - "on the balance of probabilities". Proceedings are held in private and hearsay evidence is admissible. |
8.4 |
Evidence
Everyone involved in the court proceedings should have access to the evidence to be presented before the case is heard. If it is intended for someone to give evidence in the case, a witness statement in the prescribed form must be prepared in advance.
If a child is to be medically examined or psychiatrically assessed for the purpose of bringing evidence in the proceedings, the court's consent must be obtained in advance for that examination or assessment to take place and a written report of the assessment presented to the court The social worker should prepare an initial statement of evidence which must be submitted within 2 days of the issue of application for care proceedings together with the Case Chronology and Initial or Core Assessment. The Statement, Chronology and Assessment should be approved by the Team Manager and by Legal Services. |
8.5 |
Timetable of Proceedings/
Allocation Hearing
An Allocation Hearing will be held following the first hearing in the Family Proceedings Court. The Hearing will:
- Specify the Timetable of Proceedings. This will give the date by which the social worker must file their final statement of evidence and the Care Plan.
- Give Directions to everyone concerned about how the case should proceed e.g. assessments to be undertaken and contact arrangements
- Appoint a Guardian to represent the child in court
- Decide whether the case should be transferred to another court
- Consider whether the child should attend court
|
9.0 Other Orders Relevant to the Protection of Children
| 9.1 |
Residence Order
(Section 8 1989 Children Act)
A Residence Order confers Parental Responsibility on the holder of the Residence Order, which gives them all the powers and duties of a natural parent except the power to agree to adoption or to appoint a guardian. The Residence Order also specifies where the child should live. A Residence Order usually lasts until the child reaches the age of 16 years.
If a child in the family is suffering Significant Harm and there are other family members able and willing to take over care of that child, they would be able to apply for a Residence Order in respect of that child. This may involve the Children & Young People's Service in completion of a report under Section 7 or Section 37 of the 1989 Children Act.
A Residence Order may also be made in the course of Care Proceedings, if the court considers this to be appropriate, even when no application has been made. |
9.2 |
Contact Order
(Section 8 1989 Children Act)
A Contact Order requires the person with whom a child lives, or is to live, to allow the child to visit, stay or have other forms of contact with the person named in the Order. Generally, the court favours contact with
a parent with whom the child does not
live. However, where the absent parent has caused the child to suffer Significant Harm, consideration will be given to whether
there can be adequate supervision of
contact and whether contact is in the
interests of the child. |
9.3 |
Prohibited Steps Order
(Section 8 1989 Children Act)
A Prohibited Steps Order is an Order forbidding a person to take any actions specified in the Order which are of a nature normally undertaken by a parent in meeting his/her Parental Responsibility for a child, unless the court gives leave. For example, the court could prohibit a person from taking a child abroad, or removing him/her from specified premises
A Prohibited Steps Order cannot be made in respect of a child who is in Local Authority care. |
9.4 |
Injunctions
Injunctions may be granted under the Matrimonial Causes Act 1973 in divorce cases, or the Domestic Violence and Matrimonial Proceedings Act 1976. These can prohibit one party to a relationship from approaching, entering or residing in the family home or from having contact with the children. The court will require evidence that there is a real threat of harm to the child. Where there has been harm caused to a child, the non-abusing parent can seek an injunction through a solicitor. If the alleged perpetrator is subject to bail conditions as a result of the harm caused to the child these will, while they last, make an injunction unnecessary, as the alleged perpetrator can be taken into custody if the bail conditions are breached. |
9.5 |
Non-Molestation Orders
(Sections 42-47 1996 Family Law Act)
A Non-Molestation Order is a provision prohibiting a person from molesting another person associated with them or a provision prohibiting the person from molesting a relevant children. The Court may make the Order in family proceedings on application or on the court's own motion. Where it appears to the court that violence has been used or threatened against the applicant or a relevant child it
may attach a power of arrest to the
Non-Molestation Order |
9.6 |
Section 37 Direction
(1989 Children Act)
A Section 37 Direction can be made in any family proceedings where it appears to the Court that it may be appropriate for a Care or Supervision Order to be made in respect of the child in order to safeguard their welfare. The court can request the local authority to investigate the child's circumstances, with a view to:
- making an application for a Care or Supervision Order, or
- providing services or assistance for the child or his/her family, or
- taking any other action with respect
to the child.
The local authority must provide a report to the court within eight weeks (or any different period specified by the Court) on the actions taken/proposed by the local authority and the reasons for this. |
10.0 Duty of Agencies to Safeguard and Co-operate
| 10.1 |
Children Act 1989
Section 27 requires named authorities to help local authorities exercise their responsibilities to a child in need.
- Where it appears to a local authority that any authority or person mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority or person, specifying the action in question.
- An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of ant of their functions.
- The persons are:
- Any local authority;
- Any local education authority;
- Any local housing authority;
- Any health authority; and
- Any person authorised by the Secretary of State for the purposes of this section
|
10.2 |
Children Act 2004
Section 10 places a duty on all key agencies to co-operate to improve the well-being of children and young people:
Each children's services authority in England must make arrangements to promote
co-operation between
- the authority;
- each of the authority's relevant partners; and
- such other persons or bodies as the authority consider appropriate, being persons or bodies of any nature who exercise functions or are engaged in activities in relation to children in the authority's area.
The arrangements are to be made with a view to improving the well-being of children in the authority's area so far as relating to
- physical and mental health and emotional well-being;
- protection from harm and neglect;
- education, training and recreation;
- the contribution made by them to society;
- social and economic well-being.
In making arrangements under this section a children's services authority in England must have regard to the importance of parents and other persons caring for children in improving the well-being of children.
Section 11 places a duty on them to safeguard and promote their welfare:
Each person and body to whom this section applies must make arrangements for ensuring that
- their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
- any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.
In the case of a children's services authority
in England, the reference in subsection (2) to functions of the authority does not include functions to which section 175 of the Education Act 2002) applies.
Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance
given to them for the purpose by the Secretary of State. |
10.3 |
Section 175 of the Education Act
A local education authority shall make arrangements for ensuring that the functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare
of children.
The governing body of a maintained school shall make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school.
The governing body of an institution within the further education sector shall make arrangements for ensuring that their functions relating to the conduct of the institution are exercised with a view to safeguarding and promoting the welfare of children receiving education or training at the institution.
An authority or body mentioned in any of subsections (1) to (3) shall, in considering what arrangements are required to be made by them under that subsection, have regard to any guidance given from time to time (in relation to England) by the Secretary of State or (in relation to Wales) by the National Assembly for Wales. |
11. Public Law Outline
Since 1 April 2008, the Public Law Outline, together with revised statutory guidance in relation to court orders, has operated. Its objective is to avoid unnecessary proceedings and to minimise delay in completing Children Act 1989 cases involving the local authority (referred to as public law cases), so that, other than in exceptional or unforeseen circumstances, every public law case should be finally determined within a maximum of 40 weeks of the application being issued. 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 or Interim Care Order
- a letter to parents before proceedings are started to give them an opportunity to obtain legal advice and possibly to avert the need for proceedings
- improved preparation of documentation to support proceedings
The full text of the Public Law Outline is available online at the Ministry of Justice
End
