#17066 - Children Local Authorities - Family Law

Core Issues:

• What are the responsibilities of the LA?

• When to help?

• When to take compulsory measures?

• How to identify harm or risk of harm?

• How to identify perpetrator of harm- if not parents cause harm, take away child from them is good?

• When is state intervention justified?

• How to judge standard of care?

• Duty to report to local authority to protect children ie. Neighbour, GP, teacher

Key Principles:

1. Non intervention

• Respect sanctity and privacy of family unless child is likely to be harmed

• Lord McKay: “integrity and independence of the family is the basic building block of a free and democratic society and the need to defend it should be clearly perceivable in law...unless there is evidence a child is being or likely to be positively harmed because of a failure in the family, the state...should not interfere”

• Compulsory measures can only betaken following court order

• Bare minimum to satisfy the courts before court giving order- S1(1) overall welfare in children to give order

• Threshold conditions : s31(2) CA 1989

• S1(5)

• Art 8: any intervention must be proportionate

2. Working in partnership

• LA must work in partnership with parents

• Try to make voluntary arrangements

• Provision of services not a mark of failure on the family

3. Maintenance of links between child and family

• Promote upbringing of children by their families

• Presume and promote contact between children and parents- presumption of benefit of contact

• Adoption to separate link between children and family is the last resort

• LA try to rehabilitate the family

• LA gives support to family

• But is the rehabilitation too much? Baby P case http://www.bbc.co.uk/news/uk-11626806 & Poppy Widdison

4. Uphold good social work practice

Provision of Services – Assistance

• General duty to children in need

• S17(1): every LA has a duty to

1. : promote and safeguard the welfare of children in their area who are in need, and

2. : 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 those needs

• S17(10): a child is defined as being in need if

1. he is unlikely to achieve or maintain or have opportunity to achieve or maintain a reasonable standard of health and development without the provision of services for him by LA

2. his health or development is likely to be significantly impaired or further impaired without provision of such services

3. he is disabled

• Exercise is up to LA to decide on the needs and the budget of LA

• S17(11): health (physical or mental), development(physical, intellectual, emotional, social or behavioural)

• How would LA discharge this general duty?

• S17(3): services may be provided for the family of the particular child in need of for any member of his family if they are provided with the view to safeguarding or promoting child’s welfare

• Does not need to be actual relative

• What are the kind of services provided?

  • Giving assistance in kind or cash- baby coupons for diapers and milk powder

  • Contribute to cost of looking after child- every child has access to basic child care, LA will adjust depend on each child’s situation

  • Facilitate provision of services by others

• Specific Duties and Powers:

• In pursuing the general duty under S17(1), the LA has some specific duties: Sch 2

1. Identification of children in need

• Take reasonable steps to identify

• Publish information about the services they provide

• Take reasonably practicable steps to ensure that those who need services receive information about them

2. Promote upbringing of children by their families

• Make provision for advice, guidance, counselling and home help

• May provide activities/facilities to encourage this

• If child is being looked after, endeavour to promote contact unless it is against his welfare

• Provide family centres

3. Prevent abuse and neglect

• Duty to inform another LA if child lives or going to live there

• Use services to prevent abuse and neglect

4. Provide accommodation to 3rd party to protect children

5. Day care

• Required to provide such day care as is appropriate for those under 5

• Provide facilities for those caring for children in day care

• Facilitate provision of day care by other agencies

6. Duty to consider racial groups

• In the provision of day care or recruiting foster parents

General Duty of Investigation:

• S47(1): where a LA

• (a) are informed that a child who lives or is found in their area is (i) the subject of an Emergency Protection Order, or (ii) is in police protection

• (b) has reasonable cause to suspect that a child who lives or is found in their area is suffering or likely to suffer significant harm

• Then, the LA:

  • Shall make or cause to make such enquiries as they consider necessary to enable them to decide what action they should take to safeguard the child’s welfare

  • In discharging this duty, the LA does not work alone

  • Local Safeguarding Children Boards: decide on issues of policy and practice at local level

  • Local Child Protection Team: hold conference to decide individual cases

  • 3 types of child protection conferences: initial, review, and pre birth

  • Decide whether child should be placed or kept on a child protection plan

  • S47 is the first step taken by a LA when a question of child protection arises

  • Does not mean an investigation will result in compulsory measures

  • Try to resolve problem by providing services or co -operation

• S37 (1): Court may also direct the LA to investigate if, in the course of any hearing, court feels that a compulsory order may be necessary

• S37(3): after investigation, LA must inform the courts of their decided course of action and reasons why

Emergency Protection Orders:

• EPO: allows for the immediate removal or retention of a child in a genuine emergency (triggering LA)

• X Council v. B (EPO) [2004]: court must be satisfied that no other less radical form of order can safeguard the welfare of the child...imminent danger must be actually established

• S44(1): where any person applies for an EPO, court may only make the order if it is satisfied

1. there is reasonable cause to believe child is likely to suffer significant harm if (i) he is not removed to accommodation provided by applicant or(ii) if he does not remain in the place where he is currently accommodated

2. if LA is the applicant, court must be satisfied that (i)enquiries are being made under S47, (ii) and those enquiries are being frustrated by access to the child being unreasonably refused + LA has reasonable cause to believe access to the child is required as a matter or urgency

3. if applicant is an authorised person , and (i) applicant has reasonable cause to suspect child is suffering or likely to suffer significant harm or (ii) applicant is making enquiries with respect to child’s welfare

• S44(4): EPO allows removal of child from premises or prevention of removal of child

• Also gives holder PR

• S44(5): limited PR, limited power of removal or retention – only to safeguard child’s welfare

• S44(6): court may impose appropriate direction for contact or for medical or psychiatric examination of child

• S44A: court can attach exclusion requirements for EPO

• S45: EPO not exceeding 8 days, can extend once for a further 7 days

In summary, investigation may be triggered in a number of ways:

• By information – S 47 (1) (b)

• By court order – S37

• By EPO – S47(1)(a)

• Further, if investigation is being frustrated, LA may apply for EPO to gain access to the child and protect him, or apply for S43 Child Assessment Order

• Once investigation is under way, LA have a number of options.

• May decide to provide services to support the family

• But may sometimes need to apply for compulsory orders in order to safeguard child

• If compulsory measures must be taken, LA must first hold a legal planning meeting

• Decide whether the legal criteria has been met in principle and whether it would be in child’s best interests to proceed

• If so, parents must be informed

• Court may only make compulsory orders upon application

• S31(9): only LA or authorised person can make application

• The child and any person with PR will automatically be party to the proceedings

• Fathers without PR will not automatically be parties, but will normally be informed.

• Normally will be permitted to join as party to proceedings unless good reason not to allow it

2 types of Compulsory Orders: (must be issued by courts and LA have to satisfy legal criteria to apply one of the orders)

• Supervision order

• Care order

Supervision Order:

• Less draconian than care order

• Puts child under the supervision of the designated LA

• Does not vest PR in the LA- child remain at home

• Court can make supervision order + S8 order

• Court cannot make SUPERVISION ORDER + CARE ORDER

• S35(1): The designated supervisor has a duty to:

1. advice, assist and befriend the child

2. Take such steps as reasonably necessary to give effect to the order, and where

3. The order is not wholly complied with, or the supervisor considers that the order is no longer necessary, to consider whether to apply to court for variation or discharge

• Last for one year can be extended to max. three years

• Child remains at home

• But order subjects the child to certain directions by the supervisor, regardless of whether child or parent consents

• See Sch 3 Para 2

Care Order:

• Places the child in the care of LA

• S33: LA is required to receive the child into their care and keep him in their care while the order is in force and PR is vested in the LA

• S33(3): LA can decide the extent to which parents or other persons with PR can exercise their PR – but parents do not lose PR

• S91(12): Care order lasts until a child is 18 unless brought to an end...