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Legislation

THE LEGAL FRAMEWORK
THE CHILDREN ACT
The legal framework, for the care and protection of children, is contained within the Children Act 1989. All persons likely to be involved in the protection of children should have a working knowledge of this piece of legislation.
Whilst the following paragraphs outline the current legal framework, relating to the protection of children, they should not be taken as a complete statement of all the relevant legal provisions. Legal advice should always be sought where legal action is being considered.
The Children Act 1989 should be used as a source of reference by those working in child protection.
The Rules of Court which will also be relevant are the Family Proceedings Courts (Children Act 1989) Rules 1991/1395 (Magistrates’ Courts) and the Family Proceedings Rules 1991 (S.1.1991/1247) (County and High Court)
 
GENERAL PRINCIPLES OF THE CHILDREN ACT
A number of general principles, which need to be borne in mind when considering any part of the legal framework are outlined in the Children Act. These are:
  • The welfare of the child shall be the paramount consideration of the court. (Section 1(1)).
    The court shall have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the welfare of the child. (Section 1(2)).
  • The court shall have regard in particular to a number of matters set out in the welfare checklist in Section 1(3), including the wishes and feelings of the child, his/her age, gender etc. when considering whether to make, vary or discharge any section 8 order which is opposed, or any order under Part 1V.
  • Where a child is of sufficient understanding, medical treatment may only be given with his/her consent (except in medical emergencies). It is for the doctor to decide whether the child is capable of giving consent. Children of 16 and over can give their own consent. Where a child is not of sufficient understanding, the consent of the parent, including a person with parental responsibility, is required. This would include the local authority where the child is subject to a Care Order. Children who are capable of giving consent cannot be medically examined without their consent when subject to a Child Assessment Order (Section 43), Emergency Protection Order (Section 44), or Interim Care or Supervision Order (section 38), or examined or treated in accordance with a full Supervision Order (paragraphs 4(4)(a) and 5(5)(a) of Schedule 3) without their consent. If there is a dispute in other circumstances in which a child refuses consent, the matter should be put to the court to resolve.
  • The court shall not make an order unless it considers that doing so would be better for the child than making no order at all. (Section 1(5)).
    More detailed guidance can be found in the Children Act Guidance and Regulations, Volume 1-Court Orders.
 
PREVENTION
Schedule 2 Children Act 1989
Section 17 Children Act 1989
The Local Authority has a duty to take reasonable steps to identify the extent to which there are children in need within the Local Authority’s area. (Schedule 2, para.1) Every Local Authority has a duty to take reasonable steps by providing services, under Part III of the Act, to prevent children within their area suffering ill treatment or neglect. There is a duty to share information about any child who is likely to suffer harm between Local Authorities where appropriate.
Paragraph 7 provides that every Local Authority shall take reasonable steps to reduce the need to bring proceedings for Care or Supervision Orders or criminal proceedings in relation to children. Similarly there is a duty to encourage children not to commit criminal offences and to avoid the need for children in their area to be placed in secure accommodation.
Section 17 of the Act makes it a 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.
    Alternatively, they may arrange for others to provide the services. Such assistance may include assistance in kind or, in exceptional circumstances, in cash.
 
PROVISION OF ACCOMMODATION FOR CHILDREN
Section 20 Children Act 1989
Every Local Authority has a duty to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of:
  • there being no person who has parental responsibility for him/her;
  • his/her being lost or abandoned; or
  • the person who has been caring for him/her being prevented (whether or not permanently, and for whatever reason) from providing him/her with suitable accommodation or care.

THE DUTY TO INVESTIGATE
Section 47 Children Act 1989
Section 37 Children Act 1989
The duty of the Local authority to make enquiries following information received suggesting that a child may need protection is contained in Part V of the Children Act.
The local authority has a duty to make enquiries where they:
  • are informed that a child who lives, or is found, in their area -(a) is the subject of an Emergency Protection Order; or(b) is in police protection; or
  • have reasonable cause to suspect that a child who lives or is found in their area is suffering or likely to suffer significant harm. The Authority shall make, or cause to make, 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 (S.47(1)).
This includes obtaining access to him or her. Should access be denied, or information withheld, they must take reasonable steps to obtain access or information unless they are satisfied that they already have sufficient information. They may call upon other Local Authorities, Health Authorities, Education Authorities or others for assistance and it shall be the duty of such Authorities to assist unless it would be unreasonable in the circumstances.
Where, as a result of enquiries, they conclude that action should be taken, they must do so, as far as is practicable (S.47(8)).
“Where, in family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a Care or Supervision Order to be made in respect of him, the court may direct the appropriate Authority to undertake an investigation of the child’s circumstances” (S.37(1)).
The Authority must then make enquiries and consider whether it would be appropriate to apply for a Care or Supervision Order, or to provide services to help the child and his/her family, or to take some other action. If they decide not to apply for a Care or Supervision Order, they must give the court their reasons and tell them what they are doing instead within 8 weeks unless the court directs otherwise.
 
EMERGENCY PROCEDURES
Emergency Protection Order (EPO)
Section 44 Children Act 1989
An Emergency Protection Order is a short term order which enables a child to be made safe when (s)he might otherwise suffer harm. Application for an Emergency Protection Order may be made by any person, a Local Authority or an authorised person.
 
Grounds For Emergency Protection Order
Section 44 Children Act 1989
An Emergency Protection Order may only be made if the court is satisfied that:
  • where the applicant is “any person”, there is reasonable cause to believe that the child is likely to suffer significant harm if (s)he is not removed or does not remain where (s)he is (S.44(1)(a)).
  • where the applicant is the Local Authority enquiries are being made with respect to the child under Section 47(1)(b); and those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised and access is required urgently (S.44(1)(c)).

    Powers and duties under Emergency Protection Order Section 44(4) and (5).
The effect of an EPO is to give parental responsibility to the Local Authority in addition to the parents or whoever had it immediately before. The court may order that the child be removed or kept where (s)he is, and may give directions about medical examinations or assessment. It may also give directions about contact. An order to remove the child will only be made if necessary and (s)he should be returned when it is safe to do so.
 
Duration
Section 45 Children Act 1989
An EPO lasts for a maximum of eight days. On application, the court may extend this for a maximum of a further 7 days; the Order may only be extended once.
Application may be made to discharge an Emergency Protection Order after 72 hours from the making of the Order. Such application may be made by the child, his/her parent, anyone with responsibility, or anyone with whom (s)he was living immediately before unless they were given notice (in accordance with the Rules of Court) of the hearing at which the Order was made and were present at the hearing. No application can be made for discharge once the original period of the Order has been extended by the court.
 
Including Exclusion Requirements In Emergency Protection Orders
Section 44A of the Children Act 1989 (Amended by the Family Law Act 1996)
The Court may include an Exclusion Requirement where it makes an Emergency Protection Order with respect to the child and:
  • there is reasonable cause to believe that, if the relevant person (RP) is excluded from a dwelling-house in which the child lives then either the child will not be likely to suffer significant harm within the context of S44 (1)(a) or the enquiries referred to in S44 (1)(b)(c) will cease to be frustrated; and
  • that another person living in the dwelling-house (whether a parent of the child or some other person) is (a) able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and (b) that other person consents to the inclusion of the Exclusion Requirement.
The Exclusion Requirement may include one or more of the following:
  • a provision requiring the RP to leave a dwelling-house in which he is living with the child;
  • a provision prohibiting the RP from entering a dwelling-house in which the child lives;
  • a provision excluding the RP from a defined area in which a dwelling-house in which the child lives is situated.
Duration of the Exclusion Requirement:
The Court may provide that the Exclusion Requirement is to have effect for a shorter period than the provisions of the Emergency Protection Order.
Attaching a Power of Arrest:
The Court may attach a Power of Arrest to the Exclusion Requirement provision within an Emergency Protection Order.
 
Police Protection
Section 46 Children Act 1989
A police constable, having reasonable cause to believe that a child would otherwise be likely to suffer significant harm, may either remove the child to suitable accommodation or prevent his/her removal from a hospital or other safe place. No child may be kept in police protection for more than 72 hours.
The police must take steps as soon as reasonably practicable to inform the child’s parents of what has been done and the reasons for that action being taken. If the child appears capable of understanding (s)he must also be so informed.
The police, where they have reasonable cause to believe that a child is likely to suffer significant harm, can apply for an Emergency Protection Order on behalf of the Local Authority. They can do this whether or not the Local Authority know or agree (S.46(8)).
The police can obtain a warrant under Section 102 of the Children Act to enter premises and search for children.
 
Life Or Limb
Section 17(1)(e) Police and Criminal Evidence Act 1984
Where speed is essential to protect a child and a warrant would take too long to obtain, the police can enter premises without a warrant, to save life or limb.
 
Powers To Assist In Discovery Of A Child Who May Need Emergency Protection
Section 48 Children Act 1989
The court may require a person to disclose the whereabouts of a child and may issue a warrant for entry into premises where entry has been refused.
 
Recovery Of Abducted Children
Section 50 Children Act 1989
The court may make a Recovery Order where there is reason to believe that children in care have been abducted, have run away or are missing, or being kept away.
 
CHILD ASSESSMENT ORDERS
Section 43 Children Act 1989
 
Grounds For Child Assessment Order
Section 43(1) Children Act 1989
A Child Assessment Order may be made if the court is satisfied that:
  • the applicant has reasonable cause to suspect that the child is suffering, or likely to suffer, significant harm; and
  • an assessment of the state of the child’s health or development, or the way in which (s)he has been treated, is required to determine whether or not the child is suffering, or is likely to suffer, significant harm; and
  • it is unlikely that such an assessment will be made, or be satisfactory, if an order is not made.
Notice
Section 43(11) Children Act 1989
Notice of the hearing must be given to the persons specified in this Section.
 
Powers And Duties Under Child Assessment Order
Section 43(6) Children Act 1989
The order requires that any person who is able to produce the child does so to the person named in the order, and that court directions regarding assessment be complied with.
The order may contain directions, including one to keep the child away from home, and in that case, what contact (s)he is to be allowed with parents, etc. while away from home.
A court may make an Emergency Protection Order if it is satisfied that there are grounds for doing so.
 
Duration
Section 43(5) Children Act 1989
Section 91(15) Children Act 1989
Section 43(12) Children Act 1989
Section 94(1) Children Act 1989
The order must specify the date by which the assessment is to begin and have effect for no longer than 7 days from that date (S.43 (5)).
There can be no further application for a Child Assessment Order within six months without leave of the court (S.91(15)).
Application for variation or discharge may be made by anyone entitled to notice (S.94(1)).
 
CARE PROCEEDINGS
Section 31 Children Act 1989
 
Grounds For Care/Supervision Order
Section 31(2) Children Act 1989
A Care Order may only be made by a court if it is satisfied:
  • that the child concerned is suffering, or likely to suffer, significant harm and
  • that the harm, or likelihood of harm, is attributable to:
    (a) the care given to the child, or likely to be given to him; or
    (b) the child’s being beyond parental control.(S.31(2))
 
CARE ORDERS
Powers And Duties Under Care Order
Section 33(1)(3) and (4) Children Act 1989
Section 23(10) Children Act 1989
The Local Authority is under a duty to receive the child into its care and keep him/her in care while the order remains in force. This includes providing accommodation and maintaining the child (S.33(1) and 23(1)).
The Local Authority acquires parental responsibility for the child and, although this is shared with the parents, it can decide the extent to which a parent may meet his/her parental responsibility in order to safeguard the child’s welfare (SS.33(3)(b)and(4);2(7)).
More specific duties are contained in Section 23(6)-(9) and Schedule 2 part II.
 
Contact
Section 34 Children Act 1989
There is a presumption of reasonable contact between the child and his/her parent, guardian, any person who held a Residence Order in respect of the child or any person who had care under inherent jurisdiction of High Court (S.34(11)). Before making a Care Order the court must consider the Local Authorities’ arrangements for contact.
The court may make an order defining contact where agreement cannot be reached without this.
Refusal of contact requires an order from the court, except in exceptional circumstances, where the Local Authority can refuse contact without an order if they need to do so to safeguard the child’s welfare.
The Local Authority may only refuse contact for 7 days without an order from the court.
 
Duration Of Care Order
Section 91(12)
A Care Order expires at child’s 18th birthday unless it is discharged by the court at an earlier date.
Discharge of a Care Order may be through the making of an Adoption or Freeing Order (Adoption Act 1976 SS.12 and 18), the making of a Residence Order (S.91(1), the making of a Supervision Order (Schedule 3 para 10), or application for discharge or variation of the order by Local Authority, child or person with parental responsibility.
Appeals are made to the High Court if the decision is made in the Magistrates Court. If the decision is made in the County Court or the High Court the appeal lies to the Court of Appeal. An appeal against a decision of a District Judge in the County Court is made to a Care Judge within the County Court.
 
SUPERVISION ORDERS
Section 31 Children Act 1989
 
Powers And Duties Under Supervision Order
Section 35(1)
The supervisor is under a duty to advise, assist and befriend the child, to take such steps as are reasonable to give effect to the order and to apply to the court for variation/discharge when the order is no longer appropriate (S.35(1)).
 
Duration Of Supervision Order
Section 91(3) and (13) Children Act 1989
Schedule 3 Paras 6(1) and (4)
Section 39 Children Act 1989
The order lasts for a year but may be extended; the maximum duration is three years (Schedule 3 paras 6(1) and (4)).
The order cannot continue after the child’s 18th birthday (S.91(13)).
Application for discharge/variation of the order may be made by Local Authority, child or person with parental responsibility (S.39).
Appeals are made to the High Court if the decision is made in the Magistrates Court. If the decision is made in the County Court or the High Court then appeal lies to the Court of Appeal. An appeal against a decision of a District Judge in the County Court is made to a Care Judge within the County Court.
 
INTERIM ORDERS
Section 38 Children Act 1989
The court may make an Interim Care or Supervision Order provided that it is satisfied that the grounds, laid down in S.31(2), for a Care or Supervision Order are met.
An Interim Order can be made where an application for a Care or Supervision Order is adjourned or where it has given directions to investigate, under Section 37(1) or Section 38(1).
 
Powers And Duties Under Interim Orders
Under an Interim Care Order reasonable contact is to be arranged, as for a full Care Order.
When making an Interim Order the court has the power to make directions about medical or psychiatric examination or assessment of the child. The child can refuse to undergo such examination (S.38(6) and Schedule 3).
 
Section 38a Of The Children Act 1989 (Amended By The Family Law Act 1996)
The Court may include an Exclusion Requirement where it makes an Interim Care Order and
  • There is reasonable cause to believe that if the relevant person is excluded from a dwelling house in which the child lives, the child will cease to suffer or cease to be likely to suffer, significant harm; and
  • That another person living in the dwelling house (a parent of the child or some other person) is (a) able and willing to give to the child the care which it will be reasonable to expect a parent to give to him/her; and (b) that other person consents to the inclusion of the Exclusion Requirement. The same provisions may be included as those included when an Emergency Protection Order is made.
Duration of the Exclusion Requirement:
This is the same as for an Exclusion Requirement included in an Emergency Protection Order.
Attaching a power of arrest:
The Court may also attach a power of arrest to the exclusion requirement provision within an Interim Care Order.
 
SECTION 8 ORDERS
Section 8 Children Act 1989
Courts are not limited, in care proceedings, to Care and Supervision Orders, they are also empowered to make a range of other orders under Section 8.
There are four orders under Section 8, which can be made in any family or care proceedings and at any stage in such proceedings. These orders will not be made in respect of children over 16 years old, except in exceptional circumstances.
 
Contact Order
This is an order requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child to have contact with each other (S.8(1)).
The Local Authority may not apply for this order (S.9(2)).
 
Prohibited Steps Order
This order means that no step, specified in the order which could normally be taken by a parent in meeting his/her parental responsibility for a child, can be taken without the consent of the court. A Prohibited Steps Order is not available if the child is on a Care/Interim Care Order.
 
Residence Order
This is an order settling the arrangements to be made as to the person with whom a child is to live. Where a child is in care and the court makes a Residence Order this has the effect of discharging the Care Order. (S.91(1)) The Local Authority may not apply for a Residence Order (S.9(2)).
 
Specific Issue Order
This is an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
The court may make any of these orders of its own motion.
 
FAMILY ASSISTANCE ORDERS
Section 16 Children Act 1989
The court may, in exceptional circumstances, make an order in any family proceedings requiring an officer to be made available to advise, assist and befriend a person named in the order. This order may not last more than 6 months and requires the consent of all parties (S.16(3)).
 
LOCAL AUTHORITIES AND CHILDREN THEY LOOK AFTER
Section 22 Children Act 1989
It is the duty of a Local Authority looking after any child, to safeguard and promote his/her welfare and to make such use of services available for children cared for by their own parents as appears reasonable to the authority (S.22(3)).
The Local Authority should, as far as is reasonably practicable, ascertain the wishes of the child, his/her parents, any person who has parental responsibility for him/her and any other person whose wishes and feelings the authority consider to be relevant, regarding the matter to be decided (S.22(4)).
When making decisions, the Local Authority must give due consideration to the child’s age, understanding and wishes, and the child’s religious persuasion, racial origin and cultural and linguistic background (S.22(5)).

The Local Authority must accommodate (as most appropriate) and maintain such children (S.23).
It is also the Local Authority’s duty to provide after care for young persons over 16 who have been looked after by them up to the age of 21 (Section 24(1).
 
REVIEW OF CASES
Section 26 Children Act 1989
Review of Children’s Cases Regulations 1991
The Local Authority is required to review the cases of children who are being looked after, at regular specified intervals. Reviews form part of the continuous planning process for all children being looked after by the Local Authority, whether or not there are issues of child protection to be addressed.
Reviews are normally multi-agency meetings which include both the young person and the parent/carer and this review process may take place alongside the child protection process for children being looked after by the Local Authority.
 
OTHER RELEVANT LEGISLATION

THE CRIMINAL JUSTICE ACT (as amended by the 1991 Act)
This piece of legislation makes substantial changes to the way in which children’s evidence may be received by the courts in criminal proceedings. The Act also allows a video recording of an interview with a child to be used as the child’s main evidence in criminal proceedings subject to certain conditions. These are explained in detail in the Memorandum of Good Practice issued by Home Office and Department of Health (HMSO 1992)


THE POLICE AND CRIMINAL EVIDENCE ACT (PACE) 1984
This legislation sets out the main powers of the police to investigate criminal offences. It also makes provision for the protection of the suspect’s rights. The Act is wide-ranging and covers such areas as police powers to stop, search, arrest and detain. Five statutory codes of practice make more detailed provision for the observance of the Act and the most relevant of these is Code C, which deals with the detention, treatment and questioning of persons in police custody. It includes guidance on the treatment of juvenile suspects and the administration of caution.
 
THE PROHIBITION OF FEMALE CIRCUMCISION ACT 1985
The Act makes female circumcision, excision and infibulation (“Female Genital Mutilation”) an offence. Concerns about Female Genital Mutilation in respect of a child need to be reported to the Local Authority, who have a duty to investigate under Section 47 of the Children Act 1989. An Inter-Agency Procedure exists to facilitate this (See Appendix 13 of Leeds ACPC Procedures).
 
SEX OFFENDERS ACT 1997
This places a requirement upon a sex offender to notify the police of his/her name and home address. The Police have no right to notify others but may well do so if they consider that in the particular circumstances there is specific justification for doing so.
 
PROTECTION OF CHILDREN ACT 1999
Under Section 7 of the Act, if a child care organisation is proposing to offer employment in a child care position, it needs to check whether the individual concerned is included in the Department of Health’s (Consultancy Service) Index. If the name of the individual is included in that list, then the child care organisation is not to offer him or her employment.
For the purposes of the Act, a child care organisation is defined under Section 12:
“An organisation -
  1. which is concerned with the provision of accommodation, social services or health services to children or the supervision of children,
  2. whose activities are regulated by or by virtue of any prescribed enactment,
  3. which will fulfil such other conditions as may be prescribed.”
All of these organisations will be required to check the Department of Health’s list in relation to prospective employees (voluntary or otherwise) if their work is going to involve contact with children.
 
THE HUMAN RIGHTS ACT 1998
In October 2000, the Human Rights Act 1998 comes into effect.
This will oblige all Courts to consider the effect of European Human Rights Law and in particular the European Convention for the Protection of Human Rights.
This Convention has many articles all of which the Courts will need to take into account. There are, however, some which are considered to be particularly relevant to children’s issues:
1 Article 6 - Fair Trials

“ In the determination of a 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 ...”The interpretation of this Article has been extended in a Netherland’s case to imply that every party must be given a reasonable opportunity to present his/her case - including his/her evidence - under conditions that do not place him/her at a considerable disadvantage to his/her opponent.


2 Article 8 - Family Life -
  1. “Everyone has the right to respect for his private and family life, his home and his correspondence”.
  2. “There should be no interference by a Public Authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
3 Article 14 - Discrimination

The enjoyment of the rights and freedom set forth in the Convention shall be secured without discrimination on any grounds which effects, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or status.

All the above Articles are likely to influence the Court in enforcing notice periods for applications such as Interim Care Orders and Emergency Protection Orders in order to ensure that the parents have equal opportunity to defend the application to remove their child.
Also relevant are Article 3 - Prohibition on torture, inhuman or degrading treatment or punishment - and Article 5 - The right to liberty and security of persons.
 
THE DATA PROTECTION ACT 1998
This Act contains certain requirements:
  • any personal information is obtained and processed fairly and lawfully,
  • that it is only disclosed in appropriate circumstances,
  • that it is accurate,
  • that it is relevant,
  • that it is not held for any longer than necessary,
  • it is kept securely.
The Act enables disclosure without the consent of the subject in certain conditions which have particular relevance in child protection cases, including the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders, and where failure to disclose would be likely to prejudice those objectives in a particular case.
Individuals have the right of access to recorded information about themselves. There are some cases where access may not be granted, including:
  • it would be likely to cause serious harm to the physical or mental health or condition of the patient/client or any other person;
  • the notes contain information relating to and identifying another person unless that person has consented to the release of the information. This does not apply where the other person is another professional from the same agency involved in the care of that patient/client;
  • the clinician responsible for the clinical care of a patient/client should always be consulted about applications for access and his/her views sought in writing.

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