Children and Law

Overview Background Principles Children in Need Investigation Child Protection

Main Legislation Children Act 1989 * Not the CHILDRENS Act Children (Leaving Care) Act 2000* Adoption and Children Act 2002 Children Act 2004

Law Private Law –Between individuals Public Law –Individual and the state

Family Court Family Proceedings Court –High Court (Family Division) –County Court –Magistrates Court

Principles and purposes of the Children Act 1989 The legislation’s structures and strategies

Aim of session the overall structure of the Children Act; the philosophy behind the Children Act; some relevant concepts; principles applicable to court proceedings under the Children Act

Structure of the Act Act divided into Parts Parts I, III, IV and V critical to social worker Over 100 sections 15 Schedules

Concepts underpinning the Act Best place for children to be brought up is in their own families Local authorities should provide support to that end Wishes and feelings of the child and others associated with the child need to be taken into account State should not interfere unless situation is grave enough to justify action

Principles Paramountcy (Child’s welfare) – s.1(1) Court proceedings –No delay - s.1(2) –No Order – s.1(5) –welfare Parental responsibility - s.3(1) Partnership - Part I of CA 1989 Respect for the child - s.1(3)

Part I - Welfare duties in the Act A court making a decision as to the upbringing of a child must have the welfare of the child as the paramount consideration - s. 1(1) – A local authority must safeguard and promote the welfare of a child, in its area, who is in need - s. 17 A person who has the care of a child but not parental responsibility can do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child's welfare - s. 3(5)

Parental responsibility Generally automatic –Can acquire it Defined in s. 3 as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’

Partnership with parents the duty of the local authority to consult parents when they accommodate a child (s. 20) or provide services (s. 17). accommodation should be near the children's parents; (contact with parents is presumed if a child is in care (s. 34), and during emergency protection (s. 44) or police protection (s. 46); care orders do not remove parental responsibilities (s. 2(6));

Respect for the child The child is the focus of social work and court decision making The wishes and feelings of the child must be taken into account – s.1(3) and s.22

Principles Applicable To Court Proceedings Under the Children Act the welfare principle - s. 1(1) the non-delay principle - s. 1(2) the no order principle - s. 1(5)

The Welfare principle – the welfare checklist a uniform “checklist” – set out in s. 1(3) to which the courts need to have regard when they are faced with a dispute concerning any child Does not apply to emergency proceedings under Part V of the Act

s.1(3) (checklist) Children Act 1989 wishes and feelings of the child concerned – take into account age and understanding physical, emotional and educational needs likely effect on child of any change in circumstances age, sex, background and any characteristics which court considers relevant any harm child has suffered or is at risk of suffering how capable parents, and any relevant other person is of meeting his needs the range of powers available to the court under the Children Act in the proceedings in question.

Children in need Duties under Part III of the Children Act 1989

General duty under s.17 It shall be 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

Who are children in need? Approx 376,000 children and young people known to be in need of social services. Number of children who received services supported within their family or independently was 160,700. Abuse and neglect is the biggest single reason for services and accounts at 34% 12,600 children in need were children seeking asylum Source: Children Act Report 2001

Definition of children in need – s.17 (10) A child shall be taken to be in need if - he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or he is disabled, and ‘family', in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living;

Additional definitions – s.17(11) a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part - ‘development' means physical, intellectual, emotional, social or behavioural development; and ‘health' means physical or mental health.

Services for children in need – section 17 May be supplied to child or to family Assistance in kind or in cash Accommodation (see new ss(6)) Direct payments

The ‘looked after’ child ‘looked after’ children are those in care OR accommodated for more than 24 hours It shall be the duty of a local authority looking after any child – –to safeguard and promote his welfare; and –to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case – s.22 CA 1989

The provision of accommodation – section 20 Duty to provide accommodation Power to provide accommodation, subject to parental consent

Investigation and case planning SSD legal responsibilities under the Children Act 1989

Procedure – sources of information Working Together to Safeguard Children (1999) published by the Department of Health, the Home Office and the Department for Education and Employment The framework for the Assessment of Children in Need and their Families (2000) available on the Department of Health website

Structure of child care - the mechanisms for child protection Local Safeguarding Children Boards The Child Protection Conference The Child Protection Plan Initial referral action

Initial referral and assessment Completed within 7 days What are the needs of the child? Are the parents able to respond appropriately to the child’s needs? Is the child being safeguarded from significant harm, and are the parents able to promote the child’s health and development? Is action required to safeguard and promote the child’s welfare?

The next steps No action or further action? A child in need? S.47 inquiry (duty to investigate) Police investigation? Emergency legal action?

The local authority duty to investigate - S.47 If reasonable cause to suspect that a child is suffering or is likely to suffer significant harm child is the subject of an emergency protection order child is in police protection child has contravened a ban imposed by a curfew notice under the Crime and Disorder Act 1998

Procedure under s.47 Purpose to determine whether action is needed to promote and safeguard the welfare of the child A range of action possible, with a focus on court applications If action considered appropriate, then it must be taken Child must be seen The local authority may require assistance from other bodies and authorities

Police Powers – s.46 Removal and Accommodation of children by police Not require court order Must notify LA Inform designated officer Inform parents Get child’s wishes Can apply for EPO 72 hours max. (3 days)

Local Safeguarding children boards A statutory basis for investigation and review –Children Act 2004 s13 – s16 Requirement for co-operation Accountable to Director of Children’s Services and lead member for children’s services

The child protection conference basic instrument of the case by case child protection system. (i) to make judgements about the likelihood of a child suffering significant harm in the future (ii) to decide whether future action is needed to safeguard the child and promote his or her welfare, (iii) plan how action will be taken forward and with what intended consequences

The outline child protection plan Identify risks of significant harm to the child and ways in which the child can be protected Establish aims and objectives that are linked to reducing the risk of harm to the child and promoting the child’s welfare Be clear about who will have responsibility for what actions within what specified timescales Outline monitoring and evaluating progress against the plan.

CARE PLANS All children should be planned for Assessment should be continuous Specific requirements for care plans produced for court decisions - Local Authority Circular LAC (99) 29 (12 August 1999) - S. 31A plans

Child protection Court applications under the Children Act 1989

Overview – range of Orders Short term orders –Emergency Protection Order –Child Assessment Order –Interim Care or Supervision Order Medium term (1-3 years) –Supervision Order Long term (to 18 or discharge) –Care Order

No order principle SW convince court that order is the right thing to do in the circumstances of the case Look at alternatives to orders What is the purpose of the order How long is it needed At what point can the child go back to parents?

Child assessment order – s.43 Compulsory assessment of child’s health and development May remove child from home Applicant must demonstrate the necessity for the order Application may result in EPO if court considers that a more appropriate order Duration of order – 7 days

Emergency protection orders A short-term order under s.44 that either: (a) removes the child on a short-term basis; or (b) allows the child to be kept in a place of safety for instance, a hospital); or (c) requires the alleged abuser to leave the family home

Key features of EPO 8 days duration extendable for further 7 days Orders can be granted without parents present but parents can apply for discharge during initial period Court must apply non-intervention principle and welfare principle Local authority has very limited parental responsibility Power to exclude alleged perpetrator of abuse No appeal against refusal

Grounds for EPO on the application of any person court may grant order only if reasonable cause to believe child is likely to suffer significant harm unless removed to accommodation provided by the applicant or unless allowed to remain in present accommodation. if investigations of local authority or NSPCC obstructed then the court may grant EPO without being satisfied on the significant harm test - but applicant has to be satisfied there is a risk of significant harm.

Interim Care Order or Supervision Order s.38(1) Where - (a) in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or (b) the court gives a direction under section 37(1), the court may make an interim care order or an interim supervision order with respect to the child concerned.

Timetabling initial interim order may not last more than 8 weeks; Further orders limited to up to 4 weeks. Any number of interim orders could be made All subject to the non-delay principle.

Care Orders S.31 of Children Act 1989 Intervention must be proportionate On the application of any local authority or authorised person [only the NSPCC is authorised], the court may make an order – (a) placing the child with respect to whom the application is made in the care of a designated local authority; or (b) putting the child under the supervision of a designated local authority or a probation officer.

Care Orders – threshold criteria A court may only make a care order or supervision order if it is satisfied - (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b)that the harm, or likelihood of harm, is attributable to - (i)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 to him; or (ii)the child's being beyond parental control

Effect of a care order – s.33 Gives the local authority parental responsibility Parental responsibility is shared with parents (where necessary) to safeguard or promote the child's welfare Certain limits on local authority parental responsibility – religion – adoption – removal from country – appointment of testamentary guardian – change of surname

Discharge of care orders – s.39 Applications can be made by the authority, the child or the parent Welfare principle applies 6 months between applications Discharge possible by making residence order Discharge of supervision orders identical

Supervision Orders Identical grounds Effect of a supervision order - s. 35 to advise, assist and befriend the supervised child Time limited 1 year extendable to 3

Significant harm No absolute criteria – each case on merits Consideration of factors in case –Degree and extent of injuries –Duration and frequency of abuse –Extent of premeditation –Degree and threat of coercion Usually cumulative but can be a single event

Significant harm – how is child suffering Ill treatment –Physical/mental/sexual Impairment –Health Physical mental –Development Physical / Emotional / intellectual Behaviour / social

Private Law Orders Section 8 orders

Residence orders Residence Orders - settling where a child lives. They may be made either because there has been a dispute about the matter, or because there has been a question about the child's welfare which has needed an Order to settle the arrangements.

Residence orders Anyone who is named in a Residence Order as living with the child and caring for them, obtains parental responsibility for them with the making of the Order (Section 12) but they lose it again once the Order ends;

Contact Orders Contact Orders - the child's right to contact. These define the arrangements by which a child will have contact with someone who is named on the Order and with whom they do not live. This will usually be a parent but could equally be a grandparent or sibling. They are seen from the child's perspective rather than the parent's and define his or her right to contact with them.

Prohibited Steps Orders - restricting parental responsibility. These prevent the taking of some action which would otherwise be a quite reasonable exercise of parental responsibility.

Specific Issue Orders The SIO determines a dispute. They resolve particular areas of disagreement about the exercise of parental responsibility towards the child e.g.education.

Children Act 1989 Review

Part I - CA Sets out main principles and concepts Parental responsibility No order Welfare checklist

PT II Family Proceedings –Section 8 orders Contact Residence etc. –Private law

PT III Support for children in area –S.17 – children in need

PT IV and V Orders –At risk from significant harm