Pre-Issue of Care Proceedings
Cases involving children commenced by a Local Authority are Public Law proceedings under the Children Act 1989 and usually referred to as care proceedings.
In proceedings under the Children Act the welfare of the child is the guiding principle. Any decisions taken by the Court are based on what the Court considers to be in the child or children's best interests.
Local Authority Duties
Every Local Authority has a duty to safeguard and promote the welfare of children within its area who are in need, and insofar as this is consistent with that duty, promote the upbringing of such children by their families. This is done by providing a range and level of services appropriate to those children's needs. There is also a related duty to take reasonable steps to reduce the need to bring care proceedings.
Where a referral is made to Social Services, there is an expectation that within one working day, a decision will be made by Social Services as to what response is required. The Local Authority will carry out any assessment of the needs of the child, and the capacity of his or her parents to respond appropriately to those needs. Such an assessment will probably involve other professionals and agencies involved with the family, such as Health Visitors, GP's, School Teachers etc. The purpose of the assessment is to establish whether there is reasonable cause to suspect that the child is suffering or was likely to suffer significant harm, and whether any emergency action is required to secure the safety of the child.
Social Services Parenting Assessments
Prior to commencing care proceedings, social services are required to undertake an assessment of the child’s parents to consider their ability to care for and safeguard them from risk of harm.
If a social services assessment is being undertaken, it is important that parents seek independent legal advice at the earliest possible opportunity.
As part of social services further investigations and within care proceedings further assessments may be ordered, if considered necessary, to give further consideration to a person’s ability to care for a child.
Some typical assessments that the court may order are as follows:
- Parenting assessment;
- Psychiatric assessment;
- Psychological assessment; and
- Paediatric assessment.
Information from drug agencies, mental health agencies and others may be called upon within the context of the care proceedings.
If a child has suffered an injury which may be non-accidental, the court may order several assessments and list a “fact-finding” hearing in order to determine how the injuries were caused.
If a family member is putting themselves forward as a prospective carer for the child, an assessment will be undertaken of his/her ability to care for them. It is important that the family member understands the implications of this, and he/she should seek independent legal advice at an early stage.
If a child has particular needs and/or if there are particular concerns about the child, an assessment may be undertaken on the child.
If there are concerns about children being placed together, an assessment may be undertaken to determine what, if any, risks there are in doing this and to consider the effects of separating children from their brothers/sisters.
Section 37 Report
The Court may direct a Local Authority to investigate again child circumstances, and this is called a Section 37 Investigation. It can be directed in any family proceedings whether the Local Authority are involved or not.
The purpose of such an investigation is for the Local Authority to consider whether it should apply for a Care or Supervision Order, provide services or assistance for the child and their family, or whether to take any other action with respect to the child.
Section 47 Report
Where a child is subject to an Emergency Protection Order, in Police protection or where the Authority suspects the child is suffering or likely to suffer significant harm, it must investigate the child's circumstances. This is known as a Section 47 Investigation.
Section 20 Accommodation
Where the Local Authority do not feel that the child can remain living with the parents whilst such an assessment is carried out, they may ask the parents to agree to the child being accommodated under a Section 20 Agreement. The Local Authority may not provide accommodation for the child if anyone with parental responsibility for the child objects.
Those without parental responsibility will not be consulted.
All mothers have parental responsibility, and married fathers also have parental responsibility.
Unmarried fathers who were registered on a child's birth certificate after 1st December 2003 do have parental responsibility otherwise, they do not but may obtain it either by the signing of the Parental Responsibility Agreement or by a Court Order.
Where a child is accommodated under Section 20, the person with parental responsibility has a right to remove the child at any time, as it is a voluntary agreement. However, where the Local Authority are carrying out investigations, they are likely to bring immediate Court action if parents attempt to remove the child against their advice.
In most cases, parents are advised to co-operate with the Local Authority. The onus is then on the Local Authority to show that that it has done everything reasonable to assist the child and its parents.
What is a Child Protection Case Conference and the Child Protection Plan?
Where there are concerns that a child may be at risk of harm information and assessments will be recorded and monitoring undertaken to assess what help and assistance may be needed for a family.
Where serious concerns arise, a Case Conference will be called gathering together all of those concerns including the parents or carers, family members, school, health and community workers and police, if appropriate. Such meetings can be overwhelming for parents, and they can request that a solicitor or representative attend with them to observe.
A Child Protection Plan should be devised and notified to all attending and a child may be made subject to a plan under a specific category, for example emotional or physical abuse if the conference feels there is a risk of harm.
The plan should have specific objectives and timescales and reviews will be held regularly, usually at 3 months and then at 6 monthly intervals to ensure that things are improving, and that the child is well cared for. If a child name is made subject to a Child Protection Plan it does not necessarily mean that a court case will follow or that the child will be automatically removed from the care of the parents.
Children in Need
A child is defined as being a child in need if:
- They are unlikely to achieve or maintain, or have the opportunity of achieving, or maintaining, a reasonable standard of health or development without the provision for them of services by a Local Authority; or
- Their health or development is likely to be significantly impaired or further impaired, without the provision of such services; or
- They are disabled.
Duty to Investigate - Children in Need
It is the general duty of every Local Authority to:
- Safeguard and promote the welfare of children within their area who are in need; and
- So far as is consistent with that duty, to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children's needs
In order to undertake this task, the Local Authority will provide a range of services which will also help children in need to continue to live with their families and which are designed to help prevent abuse and neglect.
The underlying philosophy in the provision of services is to work in partnership with parents and children to prevent the breakdown of family relationships and minimise the need to have recourse to
Court or emergency protection
The keynote to achieving this aim is careful joint planning and agreement in the provision of services within the family home, assisting and enhancing the parental authority.
The Local Authority is required to make such provisions as it thinks appropriate to provide the following services to children in need:
- Advice, guidance and counselling
- Occupational, social, cultural and recreational activities
- Home help (including laundry facility)
- Facilities or assistance with travel to and from any services provided under the Act or similar service
- Assistance to enable the child and the family to have a holiday
The decision as to whether a child is in need (as defined in Section 17 of the Children Act 1989) as opposed to in need of protection (as defined in section 47 of the Children Act 1989) will always be complex.
A list of risk factors should only be used as one tool in the overall assessment plan as this method alone can give workers a false sense of security while failing to protect children whose families do not appear to exhibit these particular risk factors.
The family context in which harmful or abusive behaviour by parents occurs is an important factor in assessing risk to the child.
The Local Authority also has a duty to investigate if:
- Ordered to do so by the Court in any family proceedings;
- A Court discharges an Education Supervision Order and orders the Local Authority to investigate;
- A local Education Authority notifies them that a child is persistently failing to comply with directions made under an Education Supervision Order;
- They are informed that a child who lives, or is found, in their area is the subject of an Emergency Protection Order or is in Police protection; and
- The child is contravening a ban imposed by a Curfew Notice under Crime and Disorder Act 1998.
A decision to remove a child from home must balance the likely immediate and long-term effects of removing the child against the possible harm if the child is left at home. This decision should also take into account the need either to secure evidence of criminal offences or arrest suspects.
Except when a child is in acute physical danger, it is essential that the timing of the removal of a child from their home should be agreed following consultation with all appropriate professionals. This will normally follow initial assessment and a strategy discussion.
Police Protection Order (PPO)
These are to be used in cases of immediate emergency where the delay of applying for an Emergency Protection Order (EPO) would pose significant harm to a child. This Order should not be used where a Local Authority can apply for an Emergency Protection Order and has sufficient time to do so.
The Police must have reasonable grounds for believing the child would otherwise suffer significant harm.
The duration for the Order can be up to 72 hours but can be allowed to lapse before this time if the child's safety is not at issue.
Conditions for the Order are as follows:
- The Police must inform the Local Authority, the person(s) with parental responsibility for the child and the child about the steps taken and the reasons; and
- A Designated Officer must be appointed to enquire into the circumstances of the case and release the child from Police protection unless there is still reasonable cause to believe the child would suffer significant harm should this be done.
The Police do not acquire parental responsibility
There are no powers of search attached to this order since the child can only be taken into Police protection if it is found in a situation of significant harm
Police Entry to Premises
In dire emergencies the Police can exercise their powers under Section17 (1) (e) of the Police and Criminal Evidence Act 1984, to enter and search premises without a warrant for the purpose of saving life and limb.
Under Section 25(3)(e) of the Police and Criminal Evidence Act 1984, the Police may arrest without a warrant any person who has committed an offence, if the arrest is necessary to protect a child from that person.