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1.11 Legal Framework for Child Protection

AMENDMENT

This chapter was updated in August 2014. A new section was added in line with the introduction of Child Arrangements Orders under the Children and Families Act 2014. The previous section on Child Curfew Orders has been removed, as that legislation has been repealed.


Contents

Caption: Contents table
   
1. Introduction
2. The Children Act 1989
3. Working Together to Safeguard Children
4. Legal Powers to Safeguard Children
  4.1 Exclusion Orders
  4.2 Emergency Protection Orders
  4.3 Police Protection Powers
  4.4 Child Assessment Orders
  4.5 Care or Supervision Orders
  4.6 The Crime and Disorder Act 1998
  4.7 Children and Families Act 2014


1. Introduction

This summary of current legislation is intended as a guide only. It is not a substitute for professional legal advice.

Practitioners should seek advice from their own advisers about their professional responsibilities for Safeguarding and Promoting the Welfare of Children.


2. The Children Act 1989

Under the terms of the Children Act 1989 the local authority has obligations towards children living in or found in the area of that local authority.

Section 17(1) of the Children Act 1989 states that:

It shall be the general duty of every local authority (in addition to the other duties imposed on them…):

  1. To safeguard and promote the welfare of children within the area who are in need; and
  2. 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.

Section 17(10) of the Children Act states: that a child shall be taken to be in need if:

  1. 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
  2. His health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or
  3. He is disabled.

Children Act 1989: Local Authority's Duty to Investigate

Section 47(1) of the Children Act 1989 states that:

47. (1) Where a local authority -

  1. Is informed that a child who lives, or is found in their area -
    1. Is the subject of an emergency protection order; or
    2. Is in Police protection;
    3. Have reasonable cause to suspect that a child who lives, or is found, in their area is suffering or is likely to suffer, Significant Harm.

The authority shall make, or cause to be made, such enquiries, as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.

Where there is a risk to the life of a child or likelihood of serious immediate harm, an agency with statutory child protection powers (the Local Authority, the Police and the NSPCC) should act quickly to secure the immediate safety of the child.


3. Working Together to Safeguard Children

Click here to view Appendix B: Statutory framework of Working Together to Safeguard Children.


4. Legal Powers to Safeguard Children

4.1 Exclusion Orders

There is a range of powers available under the Family Law Act 1996 which may allow a perpetrator to be removed from the home, instead of having to remove the child. These are private law proceedings and the person seeking to remain in the family home with the child would need to make the relevant application.

For the courts to include an exclusion requirement in an order it must be satisfied that:

  • There is reasonable cause to believe that if the person is excluded from the home in which the child lives, the child will cease to suffer, or cease to be likely to suffer, Significant Harm;
  • 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.

4.2 Emergency Protection Orders

The courts may make an Emergency Protection Order under section 44 of the Children Act 1989 if it is satisfied that there is reasonable cause to believe that a child is likely to suffer Significant Harm if:

  • S/he is not removed to accommodation; or
  • S/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 to a person authorised to seek access, and the applicant has reasonable cause to believe that access is needed as a matter of urgency.

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).

4.3 Police Protection Powers

Under section 46 of the Children Act 1989, 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.

Police Protection Orders should only be used in circumstances where it would not be appropriate to make application to the Courts for an Emergency Protection Order (EPO), where there is concern that to delay removing the child would present an immediate risk of harm. Otherwise it is always more appropriate to seek legal advice and make application for an EPO.

4.4 Child Assessment Orders

The Court may only grant a Child Assessment Order under Section 43 of the Children Act 1989 if:

  1. The applicant has reasonable cause to suspect that the child is suffering, or likely to suffer, Significant Harm.
  2. An assessment of the child is required to determine whether the child is suffering, or is likely to suffer, Significant Harm; and
  3. It is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.

A Child Assessment Order cannot be made where the Court is satisfied that here are grounds for making an Emergency Protection Order with respect to the child; and that it ought to make such an order rather than a Child Assessment Order.

Child Assessment Orders deal with the single issue of enabling an assessment of the child to be made where Significant Harm is suspected, and the parents or other persons responsible for him have refused to co-operate.

Where parents continue to refuse Children's Social Care 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 the 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.

The Court has power to make an Emergency Protection Order instead of the Child Assessment Order if, it considers that the circumstances warrant this (Section 43(4)).

4.5 Care or Supervision Orders

Section 31(2) of the Children Act 1989 states that:

A court may only make a care or supervision order if it is satisfied:

  1. That the child concerned is suffering, or is likely to suffer Significant Harm; and
  2. That the harm, or likelihood of harm is attributable to
    1. 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
    2. The child being beyond parental control.

S31(9) of the Children Act 1989

  • 'Harm' means ill-treatment of the impairment of health or development.
  • 'Development' means physical, intellectual, emotional, social or behavioural development.
  • 'Health' means physical or mental health.
  • 'Ill-treatment' includes sexual abuse and forms of ill-treatment which are not physical.

S.31(10) of the Children Act 1989:

Where the question of whether harm suffered by a child is significant turns on the child's health and development, his health or development shall be compared with that which could reasonably be expected of a similar child.

Care and Supervision Proceedings are founded on a number of principles:

  • Compulsory intervention in the care and upbringing of a child will be possible only by Court Order following proceedings in which the child, his parents and others who are connected with the child will be able to participate fully. The proceedings should establish what action, if any, is in the child's interests, and the procedure should be as fair as possible to all concerned. The term 'care' is used in the Act in relation to a child subject to a Care Order and not to a child accommodated by a local authority under voluntary arrangements.
  • A Care or Supervision Order will be sought only when there appears to be no better way of safeguarding and promoting the welfare of the child suffering, or likely to suffer, Significant Harm. The local authority has a general duty to promote the upbringing of children in need by their families so far as this is consistent with its duty to promote children's welfare and to avoid the need for proceedings where possible. It should have regard to the Court's presumption against making an order in Section 1(5) while at the same time giving paramount consideration to the child's welfare. This means that voluntary arrangements through the provision of services to the child and his family should always be fully explored. Where a Care Order or Supervision Order is the appropriate remedy because control of the child's circumstances is necessary to promote his welfare, applications in such proceedings should be part of a carefully planned process. Discharge and variation of Care and Supervision Orders may be sought.
  • There will be common grounds for making Care or Supervision Orders irrespective of the route by which cases proceed. These will need to address present or prospective harm to the child and how this is occurring or may occur. Factors such as failure to receive suitable education are not grounds in themselves for making a Care or Supervision Order except in so far as they contribute to the harm done and may be attributable to the parenting, or lack of proper parenting.
  • There will be greater emphasis on representing the views, feelings and needs of the child in these proceedings. Where a Children's Guardian is to be appointed, the appointment should be made by the Court as soon as possible after the application is received by the Court. Where an application for a Care or Supervision Order follows on from the making of an Emergency Protection Order or Child Assessment Order a Children's Guardian will usually already have been appointed.
  • When a Care Order is in force the local authority and parents share parental responsibility for the child subject to the authority's power to limit the exercise of such responsibility by the parents in order to safeguard the child's welfare, and to some specific limitations on the authority.
  • The Act also establishes a presumption of reasonable parental contact with children in care, subject to Court Orders and limited local authority action in emergencies.

4.6 The Crime and Disorder Act 1998

(See The Crime and Disorder Act 1988).

The Crime and Disorder Act 1998 also created:

Child Safety Orders (S.11)

A Child Safety Order (CSO) is a compulsory intervention available below the threshold of the child suffering or likely to suffer Significant Harm. A local authority can apply for a CSO in respect of a child below the age of criminal responsibility (10 years) where a child has committed an act which would have been an offence if the child were aged 10 or over, where it necessary to prevent such an act, or where the child has behaved anti-socially; caused harassment, distress or harm to others. The CSO is intended to help the child improve his or her behaviour and is likely to be used alongside work with the family and others to address any underlying problems.

Parenting Order (S.8)

A Parenting Order can be made alongside a CSO or when a CSO is breached. This provides a means of engaging with and supporting parents where there are concerns about a child's behaviour below the threshold of the child suffering or likely to suffer Significant Harm.  

4.7 Children and Families Act 2014 (which amended section 8 Children Act 1989)

Child Arrangements Orders

Child Arrangements Orders were introduced in April 2014 by the Children and Families Act 2014 (which amended section 8 Children Act 1989). They replace Contact Orders and Residence Orders.

A Child Arrangements Order means a court order regulating arrangements relating to any of the following -

  1. With whom a child is to live, spend time or otherwise have contact; and
  2. When a child is to live, spend time or otherwise have contact with any person.

The 'residence' aspects of a Child Arrangements Order (i.e. with whom a child is to live/when a child is to live with any person) can last until the child reaches 18 years unless discharged earlier by the Court or by the making of a Care Order.

The 'contact' aspects of a Child Arrangements Order (with whom and when a child is to spend time with or otherwise have contact with) cease to have effect when the child reaches 16 years, unless the court is satisfied that the circumstances of the case are exceptional.

A person named in the order as a person with whom the child is to live, will have Parental Responsibility for the child while the order remains in force. Where a person is named in the order as a person with whom the child is to spend time or otherwise have contact, but is not named in the order as a person with whom the child is to live, the court may provide in the order for that person to have Parental Responsibility for the child while the order remains in force.

Child Arrangements Orders are private law orders, and cannot be made in favour of a local authority.  Where a child is the subject of a Care Order, there is a general duty on the local authority to promote contact between the child and the parents. A Child Arrangements Order can be made under section 34 of the Children Act 1989 requiring the local authority to allow the child to have contact with a named person.

End