Local Authorities and Child Protection
This chapter includes:
- Who are the Social Services?
- What is Child Protection
- What is the Purpose?
- Definition of Suffering or Likely to Suffer Harm
- Definition of Harm
- Significant Harm
- “Likely” within Family Law
- “Children in Need”
- Provision of Accommodation for the Child
- Section 20 of the Children Act 1989
- Duty to investigate under the Children Act 1989
- Children During the Enquiry
- Other Agencies
- Child Assessment Orders
- Application of a Child Assessment Order
- Childs Welfare Interests
- Effects of a CAO:
- Time length of a CAO:
- Emergency Protection Orders (EPO)
- Who Can Apply for an Emergency Protection Order
- Ex Parte Applications
- What Are the Grounds for an Emergency Protection Order?
- Article 8 of the European Convention on Human Rights
- Parental responsibility by applicant
- Courts Request for Other Directions
- Time Period of an Emergency Protection Order
- Application to Discharge an Emergency Protection Order
- Care Orders and Supervision Orders
- Who Can Apply for a Care or Supervision Order?
- Who Can Be Taken Into Care?
- The effect of a Care Order
- The Effect and Purpose of a Supervision Order
- Specific Conditions under a Supervision Order
Who are the Social Services?
Local authority social services support families and safeguard children who may be at risk of harm, whether from family members or others. Levels of support can vary but they provide support to families who are in need of additional help and support.
What is Child Protection?
Child protection is the protection of children from violence, exploitation, abuse and neglect.
What is the Purpose?
While the law generally assumes that parents will promote the interests of their children some parents do not. In such cases the local authority have the power to remove children from their parents in order to protect the child from harm they are suffering or likely to suffer.
Depending on the facts of the case the local authorities will start with:
- Least intrusive co-operation “children in need” orders to highly intrusive orders.
The idea is to give options available to the local authority when working with a dysfunctional family.
Definition of Suffering or Likely to Suffer Harm
Concerns about maltreatment may be the reason for a referral to local authority children’s social care or concerns may arise during the course of providing services to the child and family.
In these circumstances, the local authority children’s social care must initiate enquiries to find out what is happening to the child and whether protective action is required. If the local authority have reasonable cause to suspect that a child is:
- Suffering, or
- Likely to suffer significant harm they must decide whether to take any action to safeguard and promote the child’s welfare.
Definition of Harm
Harm is defined under the law as including:
- Ill-treatment and
- The impairment of health either physical, sexual, psychological or emotional.
- For a child, harm also involves the impairment of development.
- Suspicion is not enough.
Significant Harm has no definition under the Family Law Act 1996 however, under common law it has been suggested to me ‘considerable, noteworthy or important harm.’
“Likely” within Family Law
The word ‘likely’ has been defined in Section 31 of the Children Act 1989 as a ‘real possibility’ of harm. In other words it is almost certain that the applicant or child will suffer significant harm.
“Children in Need”
A child in need is as a child who is ‘unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significantly or further impaired, without the provision of services; or a child who is disabled’.
Children in need may be assessed, in relation to their
- Special educational needs
- As a carer
- Or because they have committed a crime.
Provision of Accommodation for the Child
Some children in need may require accommodation because there is no one who has parental responsibility for them. This can be due to many reasons such as
- Lost or
- The person who has been caring for them is prevented from providing them with suitable accommodation or care.
The local authority have a duty to accommodate such children in need in their area. The Act however, draws a sharp distinction between children whose parents ask the local authority to accommodate their child (voluntary accommodation) and children who have been compulsorily removed from their parents under a care order and accommodated by the local authority (compulsory accommodation.)
Section 20 of the Children Act 1989
(a) There being no person who has parental responsibility for him;
(b) His being lost or having been abandoned; or
(c) The person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
If for any reason a parent with parental responsibility reasonably objects to the accommodation provided by the local authority he or she must show that he or she is willing and able to provide alternative accommodation for the child.
Duty to Investigate Under the Children Act 1989
Once the local authority have received a referral and information to which a concern arises that the child maybe suffering, or likely to suffer, significant harm, the local authority are required to start investigation.
The purpose of the enquiry and assessment is to enable the agencies to decide whether any action should be taken to protect and to promote the welfare of the child.
It is then the responsibility of the local authority to decide at what point and whether to seek parental permission to undertake multi-agency checks. However, where permission is denied by either the parent or carer the local authority must determine whether or not it is in the child’s interest to proceed anyway.
During the investigation parents are expected to full participate in the assessment which must be explained to them verbally and in writing by proving local leaflets.
If under the circumstance a parent has a specific communication difficulty or does speak English an interpreter should be provided.
Parents must be clear of their rights as parents including support and guidance is required from an advocate whom they trust or advice in regards to their right to seek legal advice.
It is the local authorities’ responsibility to check a parent’s mental capacity to participate in the assessment.
If under the circumstances the local authority believe that by informing the parent or carer would be
- Prejudicial to the child’s welfare;
- Cause serious concern about the behaviours of the adult and
- Cause serious concern that the child would be exposed to immediate risk of harm the local authority must provide written evidence as to their decision.
Children during the Enquiry
All children within the household must be directly communicated with during the enquiry. The child must also always be seen and be communicated with alone by a social worker subject to their age and willingness.
Children’s social care and the Police should ensure that appropriate arrangements are in place to support the child through the enquiry. Specialist help will be provided if:
- The child’s first language is not English;
- The child appears to have a degree of psychological and/or psychiatric disturbance but is deemed competent;
- The child has a physical/sensory/learning disability;
- Interviewers do not have adequate knowledge and understanding of the child’s ethnic, faith and cultural background;
- The suspected abuse, includes the use of photography or filming.
If access to a child is refused or obstructed by the parents or carers, the local authority will co-ordinate a Strategy Meeting including legal representation, to develop a plan to locate or access the child/ren and in order to proceed with the enquiry.
During the investigation the social worker must consult with other agencies involved with the child and family to obtain a full picture of the circumstances of all children in the household, risk factors and the capability of the parent/s or carer/s.
In some circumstances enquiries may also need to cover children in other households with whom the alleged offender may have had contact with. All agencies consulted are responsible for providing information to assist.
If at the same time, where there is a joint investigation, the Police will have to establish the facts about any offence that may have been committed against a child and collect evidence as they lead the criminal investigation. This is due to the primary responsibility of the Police officers is to undertake criminal investigations of suspected or actual crime and to inform Children’s Social Care when they are undertaking such investigations.
Child Assessment Orders
A Child Assessment Order is a preliminary order that
- Allows assessments to take place to determine whether further orders may be necessary.
An order is appropriate where the local authority have concerns about a child but needs more information before it is able to decide what action to take.
The Child Assessment Order is given in circumstances ‘where the child is not thought to be at immediate risk’.
Application of a Child Assessment Order
A Child Assessment Order order can only be requested by a local authority or an ‘authorised person’ which at present is only the NSPCC. The court must also be satisfied that:
(a) The applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;
(b) An assessment of the state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and
(b) It is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.
Childs Welfare Interests
Once the court are satisfied they must still be persuaded that the making of the CAO is in the child’s welfare interests. These include:
(a) The upbringing of a child; or
(b) The administration of a child’s property or the application of any income arising from it,
The child’s welfare shall be the court’s paramount consideration.
Where a court is considering whether or not to make one or more orders with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
Effects of a Child Assessment Order
The result of a Child Assessment Order requires:
- Any person who is able to do so to produce the child to a person named in the order.
- The order authorises the name person to carry out an assessment on the child.
There are likely to be specific directions in the order relating to:
- Medical or
- Psychiatric examinations.
The local authority does not acquire any parental responsibility which remains with the parents. A child may also refuse to submit to an examination if he or she is of sufficient understanding.
Time length of a Child Assessment Order
The maximum duration of a CAO is 7 days starting from the date specified in the order. There is no power to extend this time period.
The justification for the limited 7 days is that it should be enough to tell the authority whether further orders are required.
Emergency Protection Orders
An Emergency Protection Order should only be used in emergencies as it involves the immediate removal of a child, often without notice to the parents or the child.
The Emergency Protection Order is also only interested in any chance of future harm and cannot be made on the basis of past harm unless the fact of the past harm is evidence of fear of future significant harm.
Where it is clear that a child is suffering significant harm, and the local authority is not in a position to decide the long term future of the child, then an emergency protection order will be granted.
The purpose of an EPO is to ‘enable the child to be removed from where he or she is, or to be kept where he or she is, if this is necessary to provide immediate short-term protection’.
Who can apply for an Emergency Protection Order?
Anyone can apply for an Emergency Protection Order and is normally applied for by ex parte.
Ex Parte Applications
Ex Parte Emergency Protection Orders
An ex parte application is an application made by one party without the other party being present or being given notice of the proceedings.
What Are the Grounds for an Emergency Protection Order?
There are three grounds for obtaining an Emergency Protection Order
- Where there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by or on behalf of the applicant.
- Where there is reasonable cause to believe that the child is likely to suffer significant harm if he does not remain in the place in which he is then being accommodated.
The child runs away to his auntie’s house, but the local authority fear that the abusive parent may be on the point of finding the child and brining him or her back to the abusive home.
- The NSPCC or other local authorities can apply for an EPO where the applicant is making enquiries into the child’s welfare and those enquires are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency.
However, even if the grounds for an EPO are satisfied, the court must still decide whether or not to make an EPO using the welfare principle.
Article 8 of the European Convention on Human Rights
Under article 8 of the European Convention on Human Rights the local authority will also be required to consider whether there were any alternatives to removing a child under the emergency order.
Parental Responsibility by Applicant
The local authority or applicant will acquire parental responsibility on the making of an EPO. This is appropriate as the applicant will remove the child and will be responsible for the child’s welfare.
However, the parental responsibility should only be exercised ‘as is reasonably required to safeguard or promote the welfare of the child.’
Courts Request for Other Directions
The court may decide additional directions when making an Emergency Protection Order. These can include:
- Medical or
- Psychiatric examinations
- However, a child with sufficient understanding has a right to refuse such examinations.
Time Period of an Emergency Protection Order
- 8 days is the maximum length of an Emergency Protection Order
- The local authority or the NSPCC can apply for an extension to a maximum of 15 days
- There is no appeal from the making of an Emergency Protection Order,
- BUT it is possible to apply to discharge the order.
Application to Discharge an Emergency Protection Order
The application to discharge can be brought by
- The child
- Persons with parental responsibility; and
- Any person with whom the child was living with immediately before the order.
- However, the application for discharge cannot be made until 72 hours have elapses since the making of the EPO.
Care Orders and Supervision Orders
Care and supervision orders should only be applied for as a last resort as both intend to provide long term solutions to dysfunctional families.
The Children Act 1989 also makes it clear that the local authority cannot take a child into care without the consent of those with parental responsibility except by applying for a care order.
Who Can Apply for a Care or Supervision Order?
The local authority or the NSPCC can apply for a care or supervision order. However, before the NSPCC brings care proceeding, they will consult with the local authority in whose area the child is resident.
Who Can Be Taken Into Care?
Care and supervision orders can only be made in respect of a child who is
- Under the age of 18.
- Resident of the UK or currently present here.
The Effect of a Care Order
The effect of a care order is to give parental responsibility for the child to the local authority. The local authority may then remove the child from the parents if they see fit.
The local authority will also be authorised to make decisions about the child and will be responsible for the child’s welfare.
While the child’s parents retain their parental responsibility they cannot exercise it in a way which is incompatible with the local authority’s plans.
The Children Act 1989 sets out a number of limitations on the exercise of a local authority powers over children in its care, which protects the interests of the parents. These include:
- Local authorities cannot permit the child to be brought up in a different religion from that which the parents intended for the child,
- Local authorities do not have the right to consent (or refuse to consent) to the making of an application for adoption. The consent of the parents is required before an adoption order can be made,
- Local authorities cannot appoint a guardian,
- Local authorities cannot cause the child to be known by a different surname, unless they have the consent of all those with parental responsibility, or the leave of the court,
- The child cannot be removed from the UK unless all those with parental responsibility consent or the court grants leave,
- The mother of the child in care is at liberty to enter a parental responsibility agreement, thereby giving the father parental responsibility, despite the local authority’s opposition.
The Effect and purpose of a Supervision Order
A Supervision order aims to give the local authority some control over the child without the intervention involved in a care order.
Under a supervision order the child will
- Remain at home but will be under the watch of the local authority.
The making of the order does not affect a parent’s parental responsibility as the supervision order does not give the local authority parental responsibility. However, the local authority are also authorised to make suggestions to the parents upbringing of the children for example methods of effective discipline.
To advice, assist and befriend the children.
A supervision order does not allow the local authority to
- Give the local authority the right to enter any property
- Remove a child.
- Force the parents to comply with conditions in the order or requests of the supervisor however, failure to comply could lead to the local authority applying for a care order.
Specific Conditions under a Supervision Order
Under certain supervision orders the court may decide to add specific conditions. These can include
- Requiring a child to live at a certain property,
- Requiring the child to present him or herself at a relevant place, or
- To participate in special activities.
- It is also possible to impose conditions on a supervision order that are not listed under Schedule 3 but only with the parents’ consent.
While the supervision order is regarded as being a less serious form of family intervention the grounds for the orders are the same.
While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.