Care
The Starting
Point
The Welfare
Checklist
Emergency Protection
Orders
Care
Orders
Supervision
Orders
Secure
Accomodation Orders
The Starting Point
These are cases brought under Part IV of
the Children Act 1989.
Public law cases are ones that usually involve
the local authority in seeking orders to promote the welfare of the
child concerned, (although such orders can also be sought by other
authorised bodies). There is a range of orders that a local
authority can seek in respect of a child in their area.
In all these proceedings, the child is
automatically a party to the proceedings 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 best plans possible are made for the
child. The guardian and the child will usually both be represented
in the proceedings by the same solicitor. Occasionally the child
and guardian will not agree on what is in the child's interests. If
the child is of sufficient age and understanding they will be able
to instruct the solicitor directly with their wishes, and the
guardian will be separately represented.
Local authorities have a duty to safeguard and
promote the welfare of children within their area who are "in need"
(according to the definition in the Children Act 1989) and so far
as it is consistent with that duty, to promote the upbringing of
such children within their families by providing a range and level
of services appropriate to those child's needs.
Public funding (legal aid) is available for the
parents to be represented in the proceedings.
The
Welfare Checklist - section 1 Children Act 1989
When a court considers any question relating to
the upbringing of the child under the Children Act 1989 the court
must have regard to the welfare checklist set out in section 1 of
that Act. Among the things the court must consider are:
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 by the
local authority or other authorised body, where there is an
immediate danger to the child and steps need to be taken urgently
to protect the child.
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.
The court will only make an order if it
considers that doing so would be better for the child than not
making an order.
These orders can only be obtained from the
court by the local authority without notice to the parents/carers
of the child in exceptional circumstances. There must be evidence
of danger to the child in giving notice to the parents of the
application or that the situation is so urgent that there is no
time to give notice. (An "Ex-Parte" application.) Cases of
emotional abuse, sexual abuse and fabricated or induced illness
where there is no evidence of immediate risk to the child will
rarely warrant an EPO.
So in some circumstances these orders are
sought by giving notice to the parents. This gives the parents an
opportunity to come to the court and advise the court of their
views and plans to safeguard the child. Applications "on notice"
will only occur where the local authority believe the child is safe
in the interim period e.g. where the child is in hospital and the
parents are not planning to remove the child.
Where an EPO is made, the court may 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
c) that person consents to such a requirement.
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. 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
If longer term plans need to be made for the
child there needs to be an application for another order within the
8-day period. These applications are made "on notice" and give all
parties time to consult solicitors and prepare for the court
hearing.
To obstruct someone carrying out an emergency
protection order is a criminal offence, which can lead to a fine
under s44(15).
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.
Care orders continue until the child is 18
years, unless discharged earlier. Orders can only be obtained on
children under 17 years (or 16 if they are married).
Following the application there are usually a
series of interim care orders under s38 while further
investigations and assessments of the situation are carried out
before any final orders are made by the court.
Under Section 33 (3) 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.
These orders confer parental responsibility on
the local authority and enable them to 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 permit contact between a child in care and their parents. There
is an expectation that there will be reasonable contact between the
child and the 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 7 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.
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 things that they cannot agree to for
the child, these include:
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
without the consent of everyone with parental responsibility or a
court 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 consentt of birth parents to placement. In
some cases special guardianship will be more appropriate than an
adoption. Such orders give additional protection to that afforded
by residence orders without severing legal ties with birth
parents.
Children who are the subject of care orders are
the subject of regular reviews by the local authority to ensure
their care is meeting their needs. Each child will have an
individual care plan that sets out how their needs in relation to
all aspects of their care are being 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. In the
case of local authorities who fail children in relation to their
care plans, Independent Reviewing Officers must consider referring
cases to CAFCASS (if there is no one else suitable to act for the
child) to consider bringing court action to secure implementation
of the child’s care plan.
Care orders, unless discharged, last until the
child is 18. 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.
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 1 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.
In contrast to a care order, during the life of
the supervision order the child is usually living at home with the
parents who retain parental responsibility.
Secure Accommodation Orders
- section 25 Children Act 1989
These orders enable a local authority or other
specified authorities to place a child in a secure setting for
their own or other people's safety.
The court can make a secure accommodation order
where:
a) A young
person has a history of running away and is likely to run away from
any other kind of accommodation; or
b) If the young person is not kept in secure accommodation he is
likely to injure himself or other people.
Only children aged up to 18 years, who are in
local authority care or accommodated by the local authority can be
placed in secure accommodation. Children under 13 can only be kept
this accommodation with the consent of the Secretary of State.
The court's authority is not required for the
first 72 hours in any 28 day period 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 for an order authorising
this.
Whilst the court can allow the child who is the
subject of the application to attend court, it should only be
permitted if it is satisfied that it is in the interest of the
child to do so. However, the child is legally represented at the
proceedings.
The court can authorise a secure accommodation
order for up to three months on the first application, and then for
periods up to six months on further 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 is no longer a danger to
themselves or others then the local authority can release him or
her from the 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.