#17060 - Family Children And Public Authorities - Family Law

Private Children Act- Structure

• Is leave required? (para 13.8.3)

• [If so, address s.10(9) factors first]

• Welfare of child is paramount (s.1(1) CA)

• Address “no delay principle” (s.1(2)CA)

• Statutory s.1(3) CA Checklist (para 13.5)- Apply using “Applicant will say…/ Respondent will say…” for each heading

• Address “no order principle” (s.1(5)CA)

• CONCLUDE

Name change

• Is there a CAO in force?

  • James had PR (named on birth certificate)

  • No CAO in force, amicable without court(presumption of no order, court last resort)

  • If there were CAO, will be in breach of s13(1)- no person can make arrangement without everyone’s consent or leave by court

• If no CAO in force, consider Re C [1998] and Re J [2000] (p.180-181, 183)

  • Re C, Re J: All person with PR should agree, if disagree, court to decide

• Initial action?

  • Talk to her, write to her, arbitration, mediation

  • Try to know is legally changed name

  • Write to school

• Does James need leave? S10(4) CA 1989

  • S10(4A)- Parents can apply for order

  • Parents do not always need PR to apply

• Order(s) to apply for/ likelihood of success?

  • X Child Arrangements Order

  • Prohibited Steps Order

  • Specific Issues Order

  • C100 Form

  • MIAM

  • Need more information for welfare principle checklist to consider likelihood of success- Court like to keep status quo

• No CAO therefore no breach of s13

• Re C/ Re J- Ameera should not change the child’s surname unless everyone with PR agreed or leave of the court is obtained

• Write to mother: Ask her to change the name back, likelihood of success following action high, mediation

• No leave reqruied s.10(4)(a) natural father (p.315)

• S.8 SIO or PSO (and s.4 PRO) (P.181)

• Is it likely to succeed?

  • Refer to Private Children Act Question Structure- Welfare paramount, welfare checklist- A says, R says for each etc,

  • Registered name- what reasons for change?

  • Dawson v Wearmouth [1999]- presumption in favour of status quo

  • Re W, Re A, Re B (Change of Name)- registered name and reasons for registration are important

  • Re S (Change of Name: cultural factors)- high threshold

  • Re F- decision should not be undertake lightly (P.183)

Social Services Actions

• A local authority must provide accommodation for any child in need within its area if there is no person who has parental responsibility for him, he is lost or abandoned, or the person has been caring him is prevented from providing him with suitable accommodation or care. (s.20)

• Emergency protection order up to eight days (s.44)

• Police protection for 72 hours (s.46)

• Child Assessment Order(s.43) – medical, psychiatric examination or other assessment

• Childcare Plan

• Child Arrangement Order (s.8)

• Interim care/ supervision order (s.38)

• Special Guardianship Order

• Family Assistance order (s.16)

Local Authorities’ Duties

• To safeguard and promote the welfare of children within its area who are in need

• So far as is consistent with that duty, to promote the upbringing of such children by their families

• By providing a range by providing a range and level of services appropriate to those children’s needs

What if social services refused to provide services

• No provision for compelling local authority to provide services

• Not subject to judicial scrutiny except by way of judicial review

• Complaints procedure (s26)

Category of abuse or neglect

• The child is suffering, or likely to suffer, significant harm;

  • Harm includes: ill treatment, impairment of physical or mental health, impairment of physical, intellectual, emotional, social or behavioural development; impairment suffered due to seeing or hearing the ill-treatment of another is also included.

• It is attributable to:

  • The care given, or likely to be given, if the order is not made, not being what it would be reasonable to expect a parent to give; OR

  • The child being beyond parental control

• Abuse:

  • All forms of physical and/ or emotional ill-treatment, sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the child’s health, survival, development or dignity in the context of a relationship or responsibility, trust or power (WHO)

  • Inflicting harm and/ or failing to act to prevent harm to children (DofE)

• Categories

  • Physical abuse (force)

  • Sexual abuse (force child to take part in sexual activities including physical and non-physical acts)

  • Emotional and psychological abuse (persistent emotional maltreatment severely impair child’s psychological development)

  • Neglect (persistent failure to meet child’s basic physical and/or psychological needs)

• Objective test: looks at what a reasonable parent would do for the child in question + subjective element the particular child’s required standard of care

• Standard of proof: balance of probabilities

• Casual Link

Social Worker Checklist

• Assessment- Children in Need (s.17 (10)) P.329- Visit family and decide if an assessment is required:

  • Is Child in Need?

  • Reaosnable cause to belive suggering/ likely to suffer significant harm

• Investigation (s.47) P.346 ie. people involved with the children- teachers, social workers, relatives, people living in the same household

• Services (s.17)- welfare principle, services not only for children but also carer ie. rehabilitation, after-school clubs, doctor

• Accommodation (s.20)

• Order

  • Care Order(s.31)/ Interim(s.38)

  • Supervision Order(s.31)/ Interim (s.38)

  • Emergency Protection Order (s.44) and s.47

    • With or without notice? X Council v B (14.10)

  • Police Protection (s.46)

(2)

• Will probably determine are children in need- start s.47 investigation

• Provide services:

  • Alcohol addiction support for M

  • Day care for George

  • After school care for Kerry

  • Referral to family centre

  • Practical help in the home

  • Dental treatment

• Local Authority in breach of s.17 if refused to offer any services and start court proceedings, unless justifiable (most common reason: budget)

(3)

• S.17 Duty to provide services to children in need

• Sch 2- duty to all children to provide services to prevent neglect etc.

• LA’s can take budgetary constraints into account but this does not permit refusal to offer any services

• If started court proceedings, would have to justify why they could not provide appropriate services etc.

(4)

• Complains procedure/ review panel s.26

• Judicial review

• Human Rights Act

(5)

• Encouraged to attend but cannot make a parent go

• New edition of “working together” (p.40) says “child protection conferences bring together family member (ad the child, where appropriate) with supporters, advocates & professionals most involved with the family”

• So arranging for when mother is busy is against the spirit of the guidance- should re-schedule if possible

(6)

• Neglect

• Evidenced by dental health

(7)

• Duty to accommodate (s.20)

• Children in need require accommodation is prevented from providing with suitable accommodation

• Potential problem: parents does not consent

• Potential person able to accommodate: ex-husband who should have parental responsibility of the child (has to be alternative if object)

• If CAO in force, person named that the children are living with, can trumps the order and make final decision where/who the children should be accommodate

• Duty: provide accommodation for child in need where person who has been caring for him is prevented (permanently or temporarily and for whatever reason) from providing suitable care

• Limitation: LA cannot keep child if father objects AND he has PR AND is willing to provide home

• Can mother overrule father’s objections? Only if she has a CAO residence

Child Abuse/ Domestic Violence

• Liam ad Jason

  • Violent father

  • Children are the subject of a child protection plan (emotional abuse)

  • Children have been in police protection twice

  • Both parents have drug problem

  • Unco-operative parents (services have been offered but they have only accepted financial assistance)

• Able to offer accommodation but Mother can refuse (Dad doesn’t have PR)

• Police protection already happened and for short term- not that helpful

• Supervision order- one year order to help and assist family

• Emergency Protection Order

  • Would the threshold for an EPO be met? What type of harm are the children risk of? (PLC Note Care Orders and Supervision Orders: Threshold Criteria) Court must be satisfied there is reasonable cause to believe that the child will suffer signigicant harm if:

    • Child is likely to suffer significant harm if he is not removed to accommodation provided by or on behalf of the applicant; or

    • does not remain in the place where he is being accommodated

  • Should the application be made with or without notice? (s.44, X Council v B (EPO) [2004]

    • Without notice(2 days notice)- possibility to abscond, violence, use of drug and alcohol, risk of children in need for a...