APPENDIX 1 - THE LEGAL FRAMEWORKThis Appendix sets out the law as at 1 November 2006. Legal advice should be sought as appropriate to check whether the law has changed since these procedures have been published. Please note that, at the time of publication, the Childcare Act 2006 and the Children and Adoption Act 2006 are not yet in force. The Legal FrameworkThis summary of current legislation is intended as a guide only and is not a substitute for professional legal advice. Practitioners should seek advice from their own legal advisors about their professional responsibilities for safeguarding children. These procedures have been developed in the context of:
and reflect the values and principles that underpin:
Local Authorities also have a duty to carry out their functions with a view to safeguarding and promoting the welfare of children under s175 of the Education Act 2002. In addition, maintained (state) schools and Further Education (FE) institutions, including 6th Form Colleges, also have this duty under s175 towards their pupils (students under 18 years of age in the case of FE institutions). The same duty is put on Independent schools, including Academies and Technology Colleges (s157 of the 2002 Act). In addition under s87 of the Children Act 1989 independent schools that provide accommodation for children also have a duty to safeguard and promote the welfare of those pupils. Boarding schools, residential special schools, and Further Education institutions that provide accommodation for children under 18, must have regard to the respective National Minimum Standards for their establishment. These can be found at: http://www.csci.org.uk/information for service providers/national minimum standards/default.htm The Children and Family Court Advisory and Support Service (CAFCASS) also has a duty under s12(1) of the Criminal Justice and Court Services Act 2000 to safeguard and promote the welfare of children involved in family proceedings in which their welfare is, or may be, in question. Children are protected by a comprehensive framework of powers and responsibilities set out in the Children Act 1989, its associated regulations and inter-agency guidance, Working Together to Safeguard Children and the Framework for the Assessment of Children in Need and their Families. Working Together 2006 incorporates the Human Rights Act, which became law in the UK in October 2000. The effect of the Human Rights Act was to incorporate the European Convention on Human Rights into British law. The European Convention on Human Rights has been effective since 1950 and has eighteen articles and a number of protocols. Case law in the European Court of Human Rights has shown that seven articles in particular have relevance to the discharge of child protection functions. These are as follows:
The first part of Article 6 state, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juvenile or the protection of private life of the party so require, or to the extent strictly necessary in the opinion of the Court and special circumstances where publicity would prejudice the interests of justice”. The Article may affect child protection functions in the following areas:
In considering whether Article 6 is being complied with, it is important that agencies are aware of when a determination is being made of the person’s human rights. It must be remembered that such decisions are potentially made by case conferences, planning, strategy and core group meetings and even in some cases by individual team managers or other senior officers. Whilst it may appear that such decision-making forums cannot be regarded as “impartial tribunals” as is required by Article 6, steps can be taken to ensure that decision-making is fair and accountable in order to meet the standards set out in Article 6. Working Together to Safeguard Children 2006 takes account of the Human Rights Act and, as a general rule; compliance with its requirements should ensure an acceptable standard of decision-making. The following standards for conferences should be applied:
This article also provides that “it is unlawful for a public authority to act in a way which is incompatible with a convention right”. Individuals who feel that a public authority has acted in breach of their human rights in some way may therefore have the right to take action against the public authority. Article 7 - No Punishment without Legal Process and the need for proper adherence to child protection procedures. In court proceedings there is an emphasis on decisions being taken about children’s lives without delay. Article 8 - The right to respect for family and private life, insofar as this does not impinge on the human rights of others. Case laws of the European Court of Human Rights has established the right of Governments to enact and enforce child protection legislation and all existing UK legislation remains in force and binding on Local Authorities. It must not be assumed that intervention in family life in accordance with the Children Act is necessarily in breach of Article 8, but it must be shown that any intervention was in accordance with the law and was proportionate to the difficulties being addressed. The Children Act 2004Section 1provides for the establishment of a new Children’s Commissioner for England, who will also have a role across the UK for reporting on non-devolved matters, working closely with counterparts in Wales, Scotland and Northern Ireland. The Commissioner’s job will be to raise awareness of the best interests of children and young people and to report annually to Parliament, through the Secretary of State, on his findings. Section 2makes clear that the Commissioner will not act as a last court of appeal for individual cases. Instead the Commissioner will look at how bodies, including Government and the public and private sectors, listen to children and young people. The Commissioner will be able to highlight failures in complaints procedures and make recommendations for improvements. Section 3gives the Commissioner freedom to look at an individual case with wider implications, for the purpose of learning broader lessons to inform public policy. The first Commissioner, Professor Sir Albert Aynsley-Green, was appointed in July 2005. Children’s Services in England – Part 2 Section 10 establishes a duty on Local Authorities to make arrangements to promote co-operation between agencies in order to improve children’s well-being, defined by reference to the five outcomes, and a duty on key partners to take part in those arrangements. It also provides a new power to allow pooling of resources in support of these arrangements. Section 11 creates a duty for the key agencies who work with children to put in place arrangements to make sure that they take account of the need to safeguard and promote the welfare of children when doing their jobs. Section 12allows the Secretary of State to make regulations requiring Local Authorities to set up databases or indexes in respect of children. These will contain basic information about children and young people to help professionals in working together to provide early support to children, young people and their families. Other key agencies may also be required to provide information for use in the data base. The index will not hold any assessment or case information. Sections 13-16require that Local Authorities set up statutory Local Safeguarding Children Boards and that the key partners take part. The objective of the Board is to co-ordinate and review what is done by Board members to safeguard and promote the welfare of children in its area. Please see Section ? for further information Section 17 requires the Local Authority to prepare a Children and Young People’s Plan (CYPP) setting out its strategy for discharging its functions in respect of children and young persons. There will be no requirement for the Secretary of State to approve the plan and Local Authorities categorised as excellent under Comprehensive Performance Assessment will be exempt from the requirement. Sections 18 & 19require Local Authorities to put in place a Director of Children’s Services and Lead Member to be responsible for, as a minimum, education and children’s social service functions. Local Authorities have discretion to add other relevant functions, for instance leisure or housing, to the role if they feel it is appropriate. Sections 20-24 require an integrated inspection framework to be established by the relevant inspectorates to inform future inspections of all services for children. They also make provision for regular Joint Area Reviews to be carried out to look at how children’s services as a whole operate across each Local Authority area. Other provisions – Part 5 Sections 44-47put stronger requirements on Local Authorities to manage and monitor the current statutory notification scheme for private fostering arrangements. They also allow for a registration scheme to be set up if the notification arrangements prove to be inadequate. Section 49allows for the secondary legislation to be made to bring in a minimum fostering allowance. Section 50 enables the Secretary of State to intervene to secure proper performance of a Local Authority’s children’s social service function where it is shown to be necessary. The Secretary of State has a similar power in respect of the Local Authority’s education function under the Education Act 1996. Section 52puts a duty on the Local Authority in its role as the corporate parent to promote the educational achievement of looked after children. This will ensure that decisions on issues such as placement and stability support better educational achievement. (please see note at the start of this Appendix) The Childcare Act 2006 places duties on the Local Authority to improve the well-being of young children in its area in partnership with the Strategic Health Authority and Primary Care Trust. There are specific duties to secure the provision of sufficient child care to enable parents to work or take up relevant training or education and to provide information about child care to parents. These duties apply to children from birth until the 1st September after the child reaches the age of 5. The Children Act 1989Children in Need and Family Support Part III of the Children Act 1989 is the basis for the law for the provision of services to children in need, including children in need of protection. Children in this respect are defined to be under the age of 18 years (s105). The Act places a general duty on a Local Authority to safeguard and promote the welfare of children in their area who are in need and, so far as is consistent with that duty, to promote the upbringing of children by their families by providing a range and level of services appropriate to their needs. A Local Authority must take reasonable steps under this duty to prevent children in its area suffering ill-treatment or neglect. A Child in Need means:
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. A child who has been abused or is at risk of being abused, and therefore in need of protection, is considered to be a child in need. The responsibilities towards children in need include the following duties:
Family support is defined as the strengthening of family functioning with a view to enabling the child’s own family to provide long term care. Family support must be given to families of children in need and the concept is based on the family having the primary responsibility for their children, that all agencies should promote the welfare of children through providing services in the context of their own communities, and the need for partnership between agencies and families. There should be an approach where partnership is used to provide services to reduce the need for court proceedings. Where the service provision is not effective or accepted consideration must be given to legal intervention. There will also be circumstances where immediate action may be needed to protect a child by court order or police protection. Definitions and Terms in the 1989 Children Act Significant harm is a key phrase in the Act and harm is defined as:
In deciding whether a child has suffered harm because of his health or development, the child’s health or development is compared to that which could be reasonably expected of a similar child. The definitions of safeguard and promote within the parameters of the Children Act are defined in the Assessment Framework for Children in Need and their Families (2000). The two need to be viewed as two sides of the same coin, with promotion having a wider, and more positive, action centred approach embedded in the philosophy of creating opportunities to enable children to have optimum life chances in adulthood, as well as ensuring they are growing up in circumstances consistent with the provision of safe and effective care.Safeguard has two elements:
The term child should be taken to include a child or young person under the age of eighteen years (unless otherwise specified); (s105 Children Act 1989). The term parent always includes anyone with parental responsibility. In some contexts, it can also include a father without parental responsibility. The term family includes any person who has parental responsibility for the child and any person with whom he has been living. In some contexts, it can also include a father without parental responsibility. The term he could be taken to mean either he or she and has been used universally to mean child of either gender. Although Children’s Services has primary responsibility for children’s welfare and protection this does not diminish the role of the other agencies or the need for inter-agency co-operation in the planning and provision of services for a child or family. When considering applications for a Section 8 Order, a Care or Supervision Order, or an Education Supervision Order, the court must have regard to the matters below. Reference to the checklist increases the court’s ability to do what is best for the child and decide whether or not to make an order, and if so, what order to make:
The list focuses on:
Duties under the Children Act 1989 The Children Act 1989 places specific duties on agencies to co-operate in the interests of vulnerable children which includes children involved in prostitution. Section 17 (1) of the Children Act 1989 places a general duty on every Local Authority to provide a range of services appropriate to the needs of the child/young person in order:
Options for the child to live with a relative or friend on a private basis should be rigorously explored before consideration is given to admitting a child to public care. In some exceptional circumstances, the department may make payments from Section 17 funds to support a child’s placement with relatives or friends for a time-limited period. (See Department Policy on kinship care and Private Fostering for fuller details). Section 20 places a duty on the Local Authority to provide accommodation for any child in need within its area who appears to require accommodation because:
Accommodation cannot be provided under Section 20 if a person with parental responsibility objects and is willing to provide or arrange for accommodation for the child. A child could only be accommodated in such circumstances if the person with a residence order in respect of the child, or has care of the child by virtue of the High Court’s inherent jurisdiction, agrees to accommodation or the child is over 16 and agrees to being accommodated. If a child is to be removed from accommodation at the request of a person with parental responsibility, good practice would dictate that this be planned, wherever possible. Although section 20 does not expressly say so, it is likely that a child who has the maturity to make decisions about their own lives may discharge himself from care against the wishes of his parents. Section 27 provides that a Local Authority may request help from the following in exercising its 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. 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. Section 11 of the Children Act 2004 requires the above bodies to safeguard and promote the welfare of children whilst discharging their functions. Under section 12 of the Homelessness Act 2002, Housing Authorities are required, subject to their consent, to refer homeless persons with dependent children who are ineligible for homelessness assistance, or are intentionally homeless, to social services. In such cases, if social services decides the child’s needs would be best met by helping the family to obtain accommodation, they can ask the housing authority for reasonable assistance in this and the housing authority must respond. Section 37 provides that where, in any family proceedings, a court considers that a Care Order or Supervision Order may be appropriate in respect of a particular child, it can direct the Local Authority to carry out an investigation into the child’s circumstances. When making the direction, the Court has the power to make an Interim Care or Interim Supervision Order. The Local Authority must consider whether to
Following these enquiries, if the Local Authority decide not to seek a care or Supervision Order, they must provide a report to court within 8 weeks (or such other timescale directed by the court) and explain the reasons for this, what services and assistance will be provided and what other action is proposed. The Local Authority must also consider whether to review the case at a later date. Section 47 places a duty on the Local Authority to make such enquiries as it considers necessary to enable it to decide whether it should take any action to safeguard or promote a child’s welfare under the following circumstances:
The enquiries must examine the following questions:
The Local Authority must take steps to obtain access to the child unless satisfied that there is already sufficient information about him/her. If the Local Authority is refused access to the child or information about his/her whereabouts, then the Local Authority must apply for an order unless satisfied that the child’s welfare can be satisfactorily safeguarded in some other way.If the Local Authority concludes that it should take action to safeguard or promote the child’s welfare then it has a duty to take that action. If the Local Authority decides that it should not apply for any order then it must decide whether the case should be reviewed at a later date. If a court is already considering private proceedings in relation to a child, and the possibility of making a Care or Supervision Order, it may direct the Local Authority to carry out an enquiry. The child’s welfare is the paramount consideration for the court when determining any question regarding the upbringing of a child. In most proceedings, including care, supervision or section 8 proceedings the court must have regard for the following factors, termed the “welfare checklist”, when considering an application. The court does not have to go through the checklist for an Emergency Protection Order, Secure Accommodation Order or Child Assessment Order but is still required to have the child’s welfare as its paramount consideration. The welfare checklist contains the following matters. It is not exhaustive and the Court can have regard to any other factors that it considers relevant to the child’s welfare.
The court will only consider an order if it is better for the child to do so than not. There is a presumption that delay in determining any question with respect to the care of a child is likely to prejudice the welfare of that child. The application of the Children Act 1989 has to be considered in the context of the Human Rights Act 1998. Public Authorities such as the Local Authority, Health bodies and the courts must consider the human rights of both the parents and the child when making a decision, although the welfare of the child will prevail where there is conflict. Any interference with a person’s human rights must be permitted under the law and limited to the action needed to meet the reason for the interference. Failure to properly canvas or take into account the wishes and feelings of a child, regardless of age, may be a breach of the Human Rights Act. Proceedings under the Children Act will usually be issued in the Magistrates’ Court although there is discretion to transfer the proceedings to the County Court or High Court where the proceedings are exceptionally grave, important or complex, or because of the likely length of the hearing. Care Orders & Supervision Orders (s31) A Care Order or Supervision Order can only be sought by the Local Authority or the NSPCC. An application for a Care or Supervision Order will generally be necessary where there is sufficient risk of the child suffering significant harm and the Local Authority needs the powers available under the order to carry out its plan to protect the child. A Full Care Order lasts up to the child’s 18th birthday, although a young person who is 17 years of age (16 if married) cannot become the subject of a Care or Supervision Order. In order to obtain a care or Supervision Order, the Local Authority must satisfy the Court, on the balance of probabilities, that the child is suffering, or is likely to suffer, from significant harm, and that this is attributable to:
These are known as the “threshold criteria”. The criteria for a care or supervision order are the same. The circumstances and the needs of the child will determine which is more appropriate. The court is not obliged to make an Order if the threshold criteria are met. The court must consider whether an order is necessary in order to promote the welfare of the child. In doing so, the Court will consider the welfare checklist referred to above. Interim Care & Interim Supervision Orders The making of an interim Care Order gives the Local Authority shared parental responsibility with the parents. The initial Interim Order can last up to 8 weeks. Further Interim Orders can be granted for up to 4 weeks. There is no limit to the number of consecutive Interim Orders. Interim Supervision Orders (but not interim care orders) can be made alongside interim Residence Orders. Delay in proceedings must be minimised and the court alerted to potential sources of delay. It is expected that the final hearing in care cases will be held within 40 weeks of the start of the proceedings In order to make an Interim Order, the court has to be satisfied that there are reasonable grounds for believing that the threshold criteria are met. An exclusion requirement can be included in an Interim Care Order if certain criteria are met. Emergency Legal Orders. When a Care Order is in force, parental responsibility is shared by the Local Authority and the parent(s) with parental responsibility. However, the Local Authority may limit the exercise of parental responsibility by the parent(s) in order to safeguard or promote the welfare of the child. However, the Care Order does not in itself allow the Local Authority:
In order to do either of these things, the Local Authority would need the written consent of every person with parental responsibility for the child or, if that is not forthcoming, the leave of Court. There is a separate procedure where the Local Authority intends to arrange for the child to live outside England and Wales on a longer-term basis. The Care Order does not allow the Local Authority to cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made. When a child is the subject of an interim or final care order, the Local Authority must promote reasonable contact between the child and his parents and other relevant people. A Care Order can be discharged by:
Otherwise, the Care Order will continue until the child reaches the age of 18. The decision to apply for to discharge the order is made at a Departmental Meeting following a recommendation at the child’s Looked After Review. A Supervision Order places a duty on the supervisor:
The Supervision Order may require the supervised child to comply with directions given by the supervisor requiring him to:
With his consent, the Supervision Order may require a person with parental responsibility for the child, or any other person with whom the child is living, to take all reasonable steps to ensure that the supervised child complies with these directions or to attend himself for specified activities. In certain circumstances, the Supervision Order may require the supervised child to attend for psychiatric and medical examination or treatment. Where the child is of sufficient understanding, he must consent to this requirement. A Supervision Order lasts for one year, unless a shorter period is stipulated. It is possible to extend a Supervision Order before it runs out, up to a maximum of 3 years from the date of the original order. A Supervision Order expires when a child reaches 18 years of age. A Supervision Order can be discharged by:
Procedures in respect of Care/Supervision Orders The decision to apply for an Order must be taken in the context of a Child Protection plan. A decision would normally be taken in the context of multi agency work, and after multi agency assessment and consultation with all interested parties. The decision by the Local Authority to institute legal proceedings will be taken at a Departmental Meeting. The views of the parents, other relevant adults and the child (subject to their age and understanding) should be made known at the departmental meeting and they should be informed promptly of the outcome of the meeting. If proceedings are to be started, the following steps need to be taken:
Following the first Court appointment, there will normally be a series of interim Directions Appointments to consider and arrange any further work that is needed before a final hearing can be held to resolve the long-term plans for the child. These Court appointments will also deal with interim issues such as contact. The Court will appoint a Children’s Guardian to represent the child’s interests during the proceedings. The Children’s Guardian has a right of access to the social work files, including information that has been provided by other agencies. The Local Authority will need to have a twin-track plan during Care Proceedings. Consideration must be given to options such as placement within the extended family, an alternative long-term placement or permanency through adoption, in case it is not possible for a child to live with his parent(s) in the long-term. It is important that these contingencies have been fully explored by the time of the final hearing to avoid delay in resolving the child’s future. The social worker will be responsible for progressing any assessments that may be required of alternative carers, as well as any referral to the Fostering or Adoption Panel. This work needs to be undertaken alongside work to assess the potential of the parents to care for the child. The Court will set a date for the Final Hearing, allowing time for the assessment work to be concluded. The final hearing will be held not more than 40 weeks after the start of the Care Proceedings. Any delay beyond this will need to be formally approved by the Court. The Local Authority will be directed to file a Final Statement along with a final care plan for each child. The social worker will need to convene a further Departmental Meeting to allow the Local Authority to review the position and decide on the long-term plan for the child. This should involve the social worker and the solicitor. The social worker should consider whether any other professionals have had significant involvement with the child and discuss with the Chairperson whether they should attend. The timing of this second Departmental Meeting to be held once all relevant information is available from assessments that have been undertaken since the proceedings began. However, it also needs to allow time for the preparation of the Final Statement and Care Plan in line with the Court timetable and for any procedural steps that need to be taken, such as putting a plan for adoption to the area Adoption Panel for approval. Following the Departmental Meeting, the social worker will complete the final statement and final care plan. The Final Statement and Care Plan will be filed at Court and served on the parties. The social worker should advise the parents, other relevant adults and the child (subject to their age and understanding) of the plan as soon as possible after the Departmental Meeting. Private Law Proceedings - Section 8 OrdersThere are four main remedies available to private individuals with regard to a child’s welfare:
Who can apply for Private Law Orders?
The Local Authority may seek a Prohibited Steps Order or Specific Issues Order but not where the child is subject to an Interim or Full Care Order. It cannot seek a Residence Order or Contact Order. With the exception of a Residence Order, these orders cannot be made in respect of a child who is the subject of an interim or final care order. If a Residence Order is made this will discharge the care order (interim or final). The Children and Adoption Act 2006 enables the Court to make directions or impose conditions when dealing with an application for a contact order, requiring a person to take part in an activity that promotes contact with the child. Please see the note at the start of this Appendix about the implementation of the Act. The Court may also make a Special Guardianship Order. This is an alternative to a Residence Order or an adoption order. The order would secure a child with a long-term carer and provide the Special Guardian with parental responsibility. The birth parents will retain parental responsibility but, subject to any other Court orders, the Special Guardian is entitled to exercise parental responsibility to the exclusion of anyone except another Special Guardian. This is likely to be more appropriate than adoption where, for example, the child is to be in the long-term care of a member of the extended family or other carer but continues to have direct contact and an ongoing relationship with the parents. The Local Authority will not be a party to proceedings for residence orders or contact orders and would not normally be involved in such proceedings. In a contested case, the Court would appoint a Children and Family Court Reporter if it required an independent view on the interests of the child in question. Where, however, the Local Authority has had a significant involvement with the family, the Court may direct it to produce a report under section 7 of the Children Act 1989. The direction will specify the purpose of the report but it will usually be required to ensure that there is a clear understanding of the Local Authority’s involvement with the family. The social worker providing the report may need to attend the final hearing to give evidence. Family Assistance Orders (s16) The Court may make a Family Assistance Order in any family proceedings. The effect of the order is to require either CAFCASS or the Local Authority to advise, assist and befriend the child, a parent or any other person with whom the child lives or who has a contact order in respect of the child. The order is made of the Court’s own volition. Any person named in the order must consent, except the child. The consent of the Local Authority is not needed where the child lives or will live in its area. The Children and Adoption Act 2006 extends the maximum period of the order to 12 months. If a contact order is also in force, the Family Assistance Order may also require the Local Authority to advise and assist on establishing, improving and maintaining contact to specified people. Where a section 8 order is in force, the Family Assistance Order may direct the Local Authority to report to the court on specified matters relating to the section 8 order, including whether the section 8 order ought to be varied or discharged. Please see the note at the start of this Appendix about the implementation of the 2006 Act. A Child Assessment Order may be needed in order to progress an investigation into possible significant harm where there is non-co-operation by the child’s parents or carers. When considering an application for a Child Assessment Order, it will also be important to consider whether the concerns are such that an alternative order, such as a Care Order or Emergency Protection Order, would be more appropriate. A failure to produce the child for assessment under an order would add to the concerns for the child and an Emergency Protection Order or Care Order may be needed. The Court can make an Emergency Protection Order of its own accord on application for a Child Assessment Order. Grounds
Powers and Duties under the Order Any person who is in a position to do so is required to produce the child. Any person who is in a position to produce the child must comply with any directions specified in the Order. The child may be kept away from home for the purpose of assessment if specified in the Order. The period of time that the child may be kept from home will also be specified in the order. The applicant must give notice of the application to parents, those with parental responsibility, carers, anyone with a Contact Order and the child. Where the child is of sufficient age and understanding the child may refuse to submit to a medical or psychiatric examination or other assessment. The Order can be for up to seven days from the date specified in the Order. Secure Accommodation Orders Secure accommodation is defined as accommodation provided for the purpose of restricting liberty. A child who is being looked after by the Local Authority cannot be placed in secure accommodation unless:
The criteria are different for children remanded to Local Authority care and charged with certain offences, when the test is whether the child is likely to abscond from non-secure accommodation or is likely to injure himself or others if kept in non-secure accommodation. If a child is aged under 13, he cannot be placed in secure accommodation without the prior approval of the Secretary of State. This would need to be obtained before any application was made. Government guidance states that a decision to apply for a secure order should be made at Assistant Director level or above.If the Court is satisfied that the criteria are met, it must make a secure accommodation order. It must also have the child’s welfare as its paramount consideration when deciding what order to make and, in particular, how long the secure accommodation order will last. The Local Authority will need to demonstrate that the secure placement will offer appropriate assistance and support as part of a plan for the child to return to an open placement as soon as possible. The maximum length of a secure accommodation order at the first application is three months. If any further application is made, the maximum length of any subsequent order is six months. A Secure Accommodation Order permits the child to be kept in secure accommodation but does not make this mandatory. If the Local Authority is satisfied that the child no longer meets the relevant criteria at any stage during the life of the order, it is under a duty to end the placement and move the child to non-secure placement. There are additional requirements on the Local Authority to review the need for the secure placement within one month of the start of the placement and a maximum of every three months thereafter. This review must include at least one person who is independent of the Local Authority. The Local Authority has the limited power to place a child in secure accommodation without Court authority for a period of up to 72 hours in any period of 28 consecutive days. In order to this, it must be satisfied that the statutory criteria are met. In practice, this power would be used when a secure bed had been obtained and there was a need to place the child in the secure accommodation to ensure that the child does not abscond and place himself at further risk before the scheduled Court hearing. A secure accommodation order does not give the Local Authority parental responsibility. A parent with parental responsibility would be able to remove the child from the secure placement if he wished. In order to prevent removal, the Local Authority would need to seek a Care Order. In addition, a child over 16 who is not the subject of a Care Order may be able to discharge himself from the secure placement. Emergency Protection Order (s44) An Emergency Protection Order is most appropriate where harm or suspected harm is serious and urgent action needs to be taken to remove or retain a child in a safe place, or where access is being denied and there is a risk of serious harm to the child. This will ensure their short-term protection. This order is designed for use in emergency situations and lasts for a limited period. The applicant would need to seek an alternative order at the expiry of the emergency protection order if there was a need to protect the child on a longer-term basis. The applicant may be any person who has serious concerns about the welfare of a child and immediate action is deemed necessary. In reality, it is usually a Local Authority or NSPCC social worker. The court may make an Emergency Protection Order (EPO) only if it is satisfied that: there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed, or does not remain where he is; where the applicant is a Local Authority, enquiries are being made with respect to the child under Section 47 (1) (b) and those enquiries are being frustrated by access being unreasonably restricted or denied, and it is required urgently; or Other authorised persons may apply if they have reasonable cause to believe the child is suffering or likely to suffer significant harm, they are making enquiries relating to the child’s welfare and their access is being unreasonably denied as in bullet point 2 above. In particularly urgent cases, the applicant may ask the Court to deal with the application in the absence of the parent(s) or any other person with parental responsibility for the child. However, given the parents’ right to a fair hearing under Article 6 of the European Convention on Human Rights, the Court will need to be satisfied that it is essential to proceed in the absence of the parents in order to meet the needs of the child. Recent case law has made it clear that an Emergency Protection Order will only be justified where the child is at risk of imminent danger. Save in wholly exceptional cases, parents must be given adequate prior notice of any application by a local authority for an Emergency Protection Order. They must also be given proper notice of the evidence that the local authority is relying upon. No Emergency Protection Order should be made for any longer than is absolutely necessary to protect the child. Where the Emergency Protection Order is made in the absence of the parents, the initial order should be made for the shortest possible period commensurate with the preservation of the child’s immediate safety. Powers and duties under the Order
When an Emergency Protection Order is in force and it appears that the child is no longer in danger, then there is a duty to return/not to remove the child. The court may issue a Warrant of Assistance authorising the police to assist, using force if necessary, if the applicant has been (or is likely to be) prevented from exercising the powers of an Emergency Protection Order by being refused entry to premises and/or access to the child. The police officer exercising the Warrant may be accompanied by a GP, Nurse or Health Visitor if he chooses. In extreme circumstances, where there is a risk to life and limb, the police may exercise their powers of Police Protection under Section 17 of the Police and Criminal Evidence Act 1984 to enter and search the premises. This can be authorised by a Designated Officer of Inspector rank. The Emergency Protection Order can be granted for a maximum of 8 days and can be extended only once for a further 7 days if it is felt that the child is likely to suffer significant harm if the order is not extended. Home Office Circular 44 (2003) states that following the exercise of Police Protection; the LA should seek a court order as soon as possible. In most cases this should within a matter of hours and they should only extend to 72 hours in exceptional cases. The Local Authority would need to consider applying for a Care Order if it was necessary to retain parental responsibility for a longer period in order to protect the child. AppealThere is no appeal against any matter relating to an Emergency Protection Order. A parent could, however, apply to have the order discharged, unless he was notified of the hearing or was present. An application to discharge the order can only be considered by the Court after 72 hours have elapsed since the making of the order. Police Protection Powers (s46) Police Protection is used in extremely urgent situations where there is insufficient time to apply to Court for an Emergency Protection Order and the Police are present. Police Protection under Section 17 of the Police and Criminal Evidence Act 1984 to enter and search the premises. If it is necessary to remove a child from his or her family, the powers under Section 44 of the 1989 Children Act (Emergency Protection Order) should be used, wherever appropriate. A police officer has powers to remove a child under Police Powers of Protection where he has reasonable cause to believe that a child would otherwise be likely to suffer significant harm. He may:
There are no powers of search under this section. The police officer should, as soon as reasonably practicable, advise the Local Authority in whose area the child was found of action taken and the reason for doing so. He should also advise the authority where the child is ordinarily resident, of the place of accommodation. The Local Authority must follow child protection procedures and make enquiries under Section 47 of the Act. A Strategy Meeting will take place to discuss how the future protection of the child can be ensured. The police officer must advise the child (if of sufficient age and understanding) what has happened and proposed future action and ascertain the wishes and feelings of the child. A Designated Officer of the rank of Inspector must enquire into the case. The Designated Inspector may apply for an Emergency Protection Order whilst the child remains in Police Protection. The Police officer must inform the parents, anyone else with parental responsibility and persons with whom the child was living immediately before the powers were used, of the steps taken. The child must be released if no longer at risk of significant harm Where a child is in police protection or accommodated by the Local Authority contact must be allowed which is reasonable and in the child’s best interests, to the following:
Contact with a child is determined by the designated Officer when in Police Protection outside of the Local Authority providing the accommodation. Once the child is accommodated (and the Police Protection still applies) this responsibility transfers to the Local Authority. Following the exercise of police Protection the Local Authority should consider a need for a court order as soon as reasonably possible. Police protection does not affect parental responsibility but the designated officer shall take reasonable action, in all circumstances, that ensures the protection of the child, having regard to the length of time that the child requires this level of protection. The designated officer may release a child from police protection after completing the required enquiries, unless this would place the child at risk of significant harm. Under section 49 of the Children Act 1989, it is an offence for a person knowingly and without lawful authority or reasonable excuse to take or keep a child away from the responsible person or to induce, assist or incite a child to run or stay away from the responsible person. This applies to a child who is:
The responsible person is the person who has care of the child under the Court Order, Emergency Protection Order or Police Powers of Protection. A Recovery Order can be made if a child:
Powers and Duties under the Order A Recovery Order:
The application may be made by the person with parental responsibility under the Care Order or Emergency Protection Order or the designated officer under s46. Any person authorised under the Recovery Order must produce some duly authenticated document showing he is authorised if so asked. It is an offence to intentionally obstruct the removal of the child. The Order also has effect in Scotland. Exclusion Requirements (s38a and s44a Children Act 1989) This can be used to exclude an alleged abuser from the home and surrounding areas if this prevents a child from being looked after. It can only be made as part of an interim Care Order or an emergency protection order. The Court must be satisfied that there is reasonable cause to believe that, if the person is excluded from the child’s home, then:
The requirement may require the person to leave the home, prohibit him from returning or exclude him from a defined area around the home. A power of arrest can be attached. The court can accept an undertaking from a person instead of an exclusion order, but this will not have a power of arrest. If the Local Authority removes the child from the home that it applies to for a continuous period of more than 24 hours, the exclusion requirement ceases to be effective. The requirement ceases when the Interim Care Order or Emergency Protection Order ends. Whilst it can be sought again if a further Interim Care Order is made, it cannot be made as part of a final Care Order. In certain circumstances, the Local Authority could invite the Court to use its powers to make a non-molestation order when dealing with an application for a Care or Supervision Order. This could achieve the objective of preventing a person from approaching the child and, unlike an exclusion requirement, could be made at the final hearing. Contact (Section 34, Children Act 1989) When a child is the subject of a Care Order (including an Interim Care Order), the Court may also make an order defining the contact to be allowed between the child and the person named in the order. If no order is made in respect of contact, the Local Authority is under a duty to promote reasonable contact between the child in care and his parents (including the father without parental responsibility) and anyone who had care of the child by virtue of a court order immediately before the Care Order was made. It may, in some circumstances, be necessary to prevent such contact in order to protect the child. This may be because of the risk of the child suffering actual harm at contact or because of the need to terminate contact in order to progress a plan for permanence. The Local Authority may refuse to allow contact where they are satisfied that it is necessary to do so in order to promote and safeguard the child’s welfare. However, the refusal can only last for up to seven days. This power is only to be used in urgent situations. In order to refuse contact for a longer period, the Local Authority would need to obtain an order under section 34(4) permitting it to refuse contact between the child and the parent/former carer. An order under section 34 (4) is permissive. It does not prevent the Local Authority from allowing further contact if it considers that it would be consistent with the welfare of the child. If the court does not make a specific Contact Order then Section 34 provides the Local Authority must allow the child reasonable contact with:
If the court does make a specific Contact Order that order will take precedence over statutory reasonable contact. Who can apply for a specific Contact Order? The following people may apply for a specific Contact Order under Section 34 of the Children Act 1989:
An order may also restrict contact between the child and a named person and may even provide for there to be no contact with that person. The Local Authority may refuse to allow the reasonable contact with the child or contact that is required by a Contact Order in the following circumstances where:
This section enables a Police Constable to enter premises without a warrant in order save life or limb. It is the general power of the police and is not confined to child protection matters. Family Law Act 1996 Part IVPart IV of the Family Law Act 1996 came into operation in October 1997 and represents a comprehensive change in the civil law regarding domestic abuse. Non-Molestation Orders (Section 42 Family Law Act 1996) Non-Molestation Orders are defined as containing either or both of the following:
The court may make an order under the section in any family proceedings if it considers it will be of benefit, including benefit to any relevant child. This provision may also be used in proceedings where an EPO has been made under Section 44 of the Children Act which includes an exclusion requirement. Ex-Parte Applications (Section 45 Family Law Act 1996) This section allows for a court to make an initial occupation order or an initial occupation non-molestation order on an ex-parte basis. The court must have regard to all the circumstances, including any risk of significant harm to the applicant or a relevant child if the initial order is not made immediately. An Initial Ex-Parte Order must be followed by an opportunity for the respondent to make representation at a full hearing where a court may make a full order. Power of Arrest (Section 47 Family Law Act 1996) This section contains a Power of Arrest which must be attached to an occupation order or a Non-Molestation Order if it appears to a court that the respondent has used or threatened violence against the applicant or relevant child. The court should make an order unless it is satisfied that the applicant of the child will be reasonably protected without such a Power of Arrest. In certain circumstances the court may attach Powers of Arrest to Ex-Parte Orders. Placements outside England & WalesThe leave |