Care
The Starting Point
When a local authority makes an application
for an order to safeguard the welfare of a child the cases are
usually referred to as public law cases. There are a number of
different orders that a local authority can apply for but the most
common are care orders, supervision orders, emergency protection
orders and secure accommodation orders.
In these proceedings, the child is
automatically a party and is represented by a Children's Guardian
appointed by Cafcass. The Children's Guardian is an independent
person who is there to promote the child's welfare and ensure that
the arrangements made for the child are in his or her best
interests. The guardian appoints a solicitor to act for the child.
Occasionally the child and guardian will not agree on what is in
the child's interests and if the solicitor decides that the child
is of sufficient age and understanding they will be able to
instruct the solicitor.
Public funding (legal aid) is usually
available for the parents to be represented in these
proceedings.
The Welfare Checklist - section 1
Children Act 1989
When a court is considering making any of
these orders it must have regard in particular to:
a) The ascertainable wishes and feelings of
the child concerned (considered in light of his age and
understanding);
b) His physical, emotional and / or educational needs;
c) The likely effect on him of any change in his
circumstances;
d) His age, sex, background and any characteristics of his, which
the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation
to whom the court considers the question to be relevant, is of
meeting his needs;
g) The range of powers available to the court under the Children
Act 1989 in the proceedings in question.
For all proceedings under the Children Act
1989 when the court considers a question of the child's upbringing
the child's welfare is the court's paramount consideration.
Emergency Protection Orders
(EPO) - Section 44 Children Act 1989
These orders are obtained from the court to
ensure the short term safety of a child. Any person can make an
application including a local authority or other authorised body.
The court will only make the order if they are satisfied that there
is reasonable cause to believe that the child is likely to suffer
significant harm if:
1) he is not removed to accommodation provided
by the local authority or
2) he does not remain in the place where he is currently being
accommodated e.g. in hospital.
A local authority has to show that their
enquiries under section 47 of the Children Act 1989 are being
frustrated and access to the child is required urgently. An
authorised person, which includes an officer of the NSPCC, will
have to show the same urgency in a situation where their enquiries
are being frustrated.
In exceptional circumstances a local authority
can apply for an EPO without notice to the parents.
In circumstances where the applicant believes
that the child will be safe in the interim period, an application
for an EPO will be made on notice to the parents. This gives them
an opportunity to come to the court and advise the court of their
views and plans to safeguard the child. When the court makes an
EPO, the court can also make an exclusion requirement under s44 A
where:
a) there is reasonable cause to believe that
if a person is excluded from the home, the child will cease to
suffer or cease to be likely to suffer significant harm and
b) 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 him and consents to the exclusion.
The exclusion order may require a person to
leave the home where he is living with the child, prevent him from
entering the home or exclude him from a defined area. A power of
arrest may be added to the order.
An emergency protection order is only a short
order granted for up to a maximum of 8 days but can be extended for
a further seven days. The order grants the applicant parental
responsibility but only permits him to take such action as is
reasonably required to safeguard the welfare of the child.
The court can give directions it considers
appropriate with respect to the contact the child is to have with
any named person or any medical or psychiatric examination or
assessment of the child under S44 (6). If the child is of
sufficient understanding to make an informed decision he may refuse
to submit to the examination or other assessments.
Care Orders -
section 31 Children Act 1989
These orders are usually sought by a local
authority (although the NSPCC can bring proceedings it is extremely
rare for them to do so) in respect of children who they believe are
suffering or are likely to suffer significant harm and:
a) the harm is attributable to the care being
given to the child not being what it would be reasonable to expect
a parent to give him or
b) that the child is beyond parental control.
No care or supervision order may be made with
respect to a child who has reached the age of 17 (or 16 if the
child is married).
Care orders continue until the child is 18
years, unless discharged earlier. Once a local authority has made
an application for a care order the court can make a series of
interim orders under s38 which gives the local authority parental
responsibility and the power to remove the child from home. Further
investigations and assessments are carried out before any final
orders are made by the court.
While a care order is in force with respect to
a child, the local authority designated by the order shall:
a) have parental responsibility for the
child;
b) have the power to determine the extent to which a parent or
guardian of the child may meet his parental responsibility for
him.
The local authority can make decisions as to
where the child will live and with whom, and how the child will
have contact with named people.
There is a positive duty on the local
authority to allow reasonable contact between a child in care and
their parents. What is reasonable is sometimes in dispute and in
those circumstances, the court can be asked to make specific
directions about how and when contact should occur.
If the local authority want to suspend or stop
contact for a period longer than seven days they need to
obtain a court order to do so. If there is a dispute between the
local authority and parents about contact, either party can seek a
court order to define contact. If the local authority believe that
there should be no contact between the child and his parent /
guardian the court can make an order authorising the local
authority to refuse to allow any contact.
Sometimes children who are the subject of care
orders will remain at home being cared for by their parents,
however it is more usual for children who are the subject of care
orders to live with foster carers or in residential
establishments.
Although the local authority has parental
responsibility there are some decisions which require everyone with
parental responsibility to agree including:
1) agreeing for the child to be adopted;
2) causing the child to be brought up in any religious persuasion
other than that which they would have been brought up if the care
order had not been made;
3) allowing the child to live outside the UK for more than 28
days
If agreement cannot be reached then the court
can make an order.
Where the plans for the child are for adoption
or to live outside England or Wales, further court orders
specifically permitting this are required. The Adoption and
Children Act 2002 and supporting regulations require local
authorities to give early consideration to applying for a placement
order or obtaining the consent of birth parents to placement.
Children who are the subject of care orders
are the subject of regular reviews by the local authority. Each
child will have an individual care plan that sets out how all their
needs will be met. These reviews will consider amongst other things
the arrangements for contact with the family and others, as well as
the child's health and educational needs. All local authorities
must appoint Independent Reviewing Officers who must work to ensure
compliance with care plans. The local authority has
responsibilities to ensure that plans are made and preparations in
place before the child is 18, to enable the child to make the
transition to independence, and the local authority continues to
have duties towards the child until they are 23 years old.
Supervision Orders - section 31
Children Act 1989
These orders are made on the same basis as
care orders i.e. that the child is suffering or is likely to suffer
significant harm.
These orders do not confer parental
responsibility on the local authority, but when there is a
supervision order in force it is the duty of the supervisor to:
1) advise, assist and befriend the supervised
child
2) take steps that are reasonably necessary to give effect to the
order and
3) where the order is not wholly complied with or the supervisor
considers that the order is no longer necessary, to consider
whether or not to apply to the court to vary or discharge the
order.
A supervision order may require the supervised
child to comply with directions given by the supervisor to do
things such as:
1) live at a place specified by the
supervisor;
2) present themselves to specific people at specific places or
times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.
A supervision order can also require the child
to submit to medical or psychiatric examination as directed by the
supervisor. This requirement will only be included where the court
has been satisfied on evidence as to its need.
Initially a supervision order lasts for one
year. The supervisor can apply to the court to extend supervision
order, but the supervision order can only be in place for a maximum
of three years.
Secure Accommodation Orders - section
25 Children Act 1989
These orders permit a local authority to place
a child in secure accommodation.
The court can make a secure accommodation
order where:
a) A young person has a history of running
away, is likely to run away from any other kind of accommodation
and if he runs away is likely to suffer significant harm;
or
b) If the young person is not kept in secure accommodation he is
likely to injure himself or other people.
A secure accommodation order can only be made
with respect to a looked after child: if they are not subject to a
care order an order can only be made for a child who is
under 16 years, if the child is subject to a care order they
can be placed in secure accommodation until the age of 18 years.
Children under 13 can only be kept in secure accommodation with the
consent of the Secretary of State.
The court's authority is not required for the
first 72 hours that a child is placed in secure accommodation.
However if the local authority believes that the child needs to be
in secure accommodation for longer, an application must be made to
the court. The court cannot make the order unless the child is
legally represented in court.
The court can make a secure accommodation
order for up to three months on the first application, and then for
periods of up to six months on subsequent application. However,
where the child is on remand to the local authority from a criminal
court having been charged with a criminal offence, different rules
apply.
Regardless of the length of the court order,
if during the course of the order the child no longer meets the
criteria for an order, the local authority must remove the child
from secure accommodation.
The local authority must make arrangements for
contact between the child and their parents, or seek a court order
to suspend or stop contact if they believe that it is not in the
child's interest for contact to take place.
There will be regular reviews of the care plan
for the child and to monitor the child's progress whilst in the
secure setting. These reviews should also consider the future plans
for the child, once they have left the secure setting. Whilst in
the accommodation the child must receive education.