Public law cases
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, the child will be able to instruct the solicitor.
Public funding (legal aid) is usually available for the parents to be represented in these proceedings.
Welfare Checklist - section 1 Children Act 1989
When a court considers any question relating to the upbringing of a child under the Children Act 1989 it must have regard to the welfare checklist set out in Section 1 of that Act. This requires the consideration of:
- the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
- their physical, emotional and/or educational needs;
- the likely effect on them of any change in their circumstances;
- their age, sex, background and any characteristics of theirs which the court considers relevant;
- any harm which they have suffered or are at risk of suffering;
- how capable each of their parents (and any other person the court considers the question to be relevant) is of meeting their needs; and
- the range of powers available to the court in the proceedings.
The child’s welfare is the court’s paramount consideration for all proceedings under the Children Act 1989 when it considers a question of the child’s upbringing.
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:
- they are not removed to accommodation provided by the local authority; or
- they do not remain in the place where they are currently being accommodated (such as 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 section 44A where:
- 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
- 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 them and consents to the exclusion.
The exclusion order may require a person to leave the home where they are living with the child, prevent them from entering the home or exclude them from a defined area. A power of arrest may be added to the order.
An EPO is only a short order granted for up to a maximum of eight days but can be extended for a further seven days. The order grants the applicant parental responsibility but only permits them 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, they 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 in respect of children who they believe are suffering or are likely to suffer significant harm and:
- 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 them; or
- that the child is beyond parental control.
Although the NSPCC can bring proceedings it is extremely rare for them to do so. 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 section 38 which give the local authority parental responsibility and the power to remove the child from their 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:
- have parental responsibility for the child; and
- have the power to determine the extent to which a parent or guardian of the child may meet his or her parental responsibility for the child.
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 believes that there should be no contact between the child and their parent or 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:
- agreeing for the child to be adopted;
- causing the child to be brought up in any religious persuasion other than that which they would have been brought up in if the care order had not been made; and
- 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, among 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 (IROs) 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 (that is, 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:
- advise, assist and befriend the supervised child;
- take steps that are reasonably necessary to give effect to the order;
- 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:
- live at a place specified by the supervisor;
- present themselves to specific people at specific places or times (such as to meet with the social worker);
- 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 that it is needed.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend a supervision order but it 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 young person has a history of running away, is likely to run away from any other kind of accommodation and if they do so is likely to suffer significant harm;
- if the young person is not kept in secure accommodation they are likely to injure themselves 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 they are 18. 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, different rules apply where the child is on remand to the local authority from a criminal court having been charged with a criminal offence.
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 while in the secure setting. These reviews should also consider the future plans for the child once they have left the secure setting. The child must receive education while in the accommodation.