The Children Act 1989
All child care law relating to children being accommodated by the Local Authority comes under the Children Act 1989. At the heart of the Children Act is a belief that:
- The best place for children to be looked after is within their own homes.
- The welfare of the child is the paramount consideration.
- Parents should continue to be involved with their children and any legal proceedings that may concern them, and that legal proceedings should be unnecessary in most instances.
- The welfare of children should be promoted by partnership between the family and the Local Authority.
- Children should not be removed from their family, or contact terminated, unless it is absolutely necessary to do so.
- The child's needs arising from race, culture, religion and language must be taken into account..
The Act is built on the notion of 'parental responsibility'. This summarises the duties, rights, powers and responsibilities of a parent in respect of their child.
People other than parents can acquire shared parental responsibility. The Local Authority acquires parental responsibility if a Care Order or Emergency Protection Order is made. However, in the case of a Care Order the extent to which parental responsibility can be exercised by a parent may be limited by the Local Authority. If a Residence Order is made, parental responsibility can be awarded to the person looking after the child. Parents can delegate responsibility to someone else without losing it themselves.
Children in Need
The Local Authority has a duty to safeguard and promote the welfare of 'children in need' in its area. A 'child in need' is defined as 'one whose health or development is likely to be impaired if he or she is not provided with a service, or a child who is disabled'. A child must be provided with accommodation if:
- there is no parent with parental responsibility for them
- they are lost or abandoned
- the person who has been caring for them is prevented (whether or not permanently and for whatever reason) from providing suitable accommodation or care.
Any child may be provided with accommodation 'if the Local Authority considers that to do so would safeguard or promote their welfare'. There is a duty to provide accommodation for 16 and 17 year olds in need if there is concern about their welfare.
Children Being 'Looked-after' by the Local Authority
Accommodation may be provided on a voluntary basis. The person with parental responsibility (PR) may remove the child at any time, except when someone else who has PR under a Residence Order agrees with the accommodation. If this happens, the Carer should inform the child's Care Manager and Fostering Social Worker as soon as possible. Young people aged 16 and over may choose to be, or remain, accommodated against the wishes of someone with parental responsibility. This would be assessed by a Social Worker.
The Act states that, if reasonably practicable, a child should be placed with a person whom he or she knows, should be placed as near to his or her home as possible, and siblings should stay together. If a child has a disability, the accommodation should be suitably equipped
Children may be looked-after under a Court Order. This may be an Emergency Protection Order, Police Protection, Remand, or an Interim or Full Care Order. A parent may not remove a child if he or she is subject to a legal order.
All court cases brought under the Children Act together with adoption, matrimonial law, and high court proceedings are classified as family proceedings. Cases will be heard by magistrates who have been specially trained. If cases are particularly complex or urgent, they may be allocated to a higher Court to be heard by a Family Court Judge. There will usually be an informal preliminary hearing to sort out the timetable, the appointment of a Children's Guardian or solicitor, and possibly the attendance of the child.
Welfare of the Child
The most important principle of the Children Act is the welfare of the child. This will always be regarded as paramount by a court in considering any question of the child's upbringing. When the court is making a decision it must use the following checklist as it decides what to do:
- the wishes and feelings of the child, as far as the court can find these out
- the physical, emotional, and educational needs of the child
- the likely effects on the child of any changes in his or her circumstances
- the age, sex, background and any other characteristics of the child that the Court considers to be relevant
- any harm which the child has suffered, or is at risk of suffering
- how capable each parent or other relevant person is of meeting the child's needs
- the range of power available to the Court under the Children Act
If more than one person has parental responsibility, or more than one has a Residence Order in their favour, and if one of them is not in favour of the child being looked after way from home, then the child cannot be accommodated - even if the other party raises an objection.
Decisions made by the court are called Court Orders and are as follows:
Section 8 Orders
These are defined by the Children Act as follows:
… settles the arrangements for where a child or young person must live, and gives that person or persons parental responsibility. A Residence Order can be made in favour of more than one person, even when those people do not live together. If this is the case, the Order may specify the period during which the child is to live in different households. More specific information is available about residence orders – please contact the Fostering Social Worker or the child's Care Manager.
A Contact Order
… is made by the Court stating who can have contact with the child or young person. The Order will define if the child may receive visits or stay with a person, write or receive letters, or speak to them on the telephone.
The people concerned may be birth parents, grandparents, brother/sister or other people who are, or have been, significant in the child or young person's life.
The order will last until the child / young person reaches the age of 16, or until the Court decides the order is no longer necessary.
A Prohibitive Steps Order
… means that a person with parental responsibility cannot take certain steps without the consent of the Court. The Order lasts until the child is 16, unless there are exceptional reasons for extending it. An example might be to stop a person taking a child out of the country where no residence order has been made, and therefore no automatic restriction applies.
A Specific Issues Order
… is an order to help determine any specific question which may have arisen, or may arise, about the way a child is brought up. It might be about schooling, health, or religion. The Court will decide after consultation with appropriate persons how it should be achieved in the best interests of the child.
Care Orders and Supervision Orders
The Court can only make a Care Order or a Supervision Order if it is satisfied that:
- the child has suffered, or is likely to suffer, significant harm;
- the harm or likelihood of harm is attributable to the care given, or likely to be given, to the child - and is not what would be reasonably expected of a parent;
- or the child is beyond parental control.
If the criteria for a Care Order have been established, the Court may not necessarily make a Care or Supervision Order - as it must go through the agreed check lists first, and should only make the Order if it considers that doing so would be better for the child than making no Order at all.
The Court will expect the Local Authority to inform it of what plans there are for a child, so that it can be satisfied that the Care Order is in the child's best interests.
A Care Order gives the Local Authority a share in parental responsibility for a child. The Local Authority must look after the child, and provide him or her with somewhere to live
A Care Order can last until a young person is 18 years old; or until an Adoption, Supervision or Residence Order is made; or until the Court decides that the Order is no longer necessary. The Social Services Directorate, or persons with parental responsibility for the child, can apply for the discharge of the Order.
This places a child or young person under the supervision of the Local Authority or a Probation Officer, and this person is required to advise, help and befriend the child.
The Order can only be for one year in the first instance, but the supervisor can apply for this to be extended. It must not be for more than three years in all, and not after the person is 18 years old.
A Supervision Order may carry certain conditions. For example, that the child should have medical or psychiatric examination or treatment. It may also say that the child should take part in particular activities at specified times.
The Order can be stopped if any interested parties apply to the Court and the Court agrees, or if a Care Order is made.
An Interim Care or Supervision Order can initially be made for up to eight weeks, and subsequently renewed for a four-week period so that more information can be collected. At this stage, the Court can make any Section 8 Orders subject to the restrictions that apply to these Orders.
The aim of the Children Act is to offer sufficient safeguards to children who may be at risk. It also seeks to protect families and their children from being removed, except for very short periods, without an opportunity to apply for the Order to be ended.
Emergency Protection Order
This is a short term Order for which anyone can apply. It is made if the Court thinks that:
- the child or young person is likely to suffer harm if he or she remains where they are living,
- the child or young person is likely to suffer harm if he or she does not remain at the place where they are living;
- the Local Authority is concerned that a child is suffering, or likely to suffer, harm - and that access to the child is being refused and is required urgently.
The initial order can be made for up to eight days, with a possible extension for a further seven days. The order can be challenged in court after 72 hours by the child, a parent, the person with parental responsibility, or the person the child was living with - unless they have notice of the application, and they were present in Court when the order was made.
The person who obtains the Order acquires parental responsibility for its duration. Contact must, however, be allowed with the family unless the Court says otherwise. The Court may also give instructions on medical or psychological assessment of the child. These may be refused by a child who has sufficient understanding to do so.
The Police also have powers under the Children Act to take a child into Police protection for up to 72 hours where a constable believes that a child would otherwise be likely to suffer significant harm.
Carers looking after a child under an Emergency Protection Order (EPO) should be given a copy of the Order.
In practice Emergency Protection Orders are rare, as the hope is to work without an order wherever possible.
Child Assessment Orders
An application is made by the Local Authority when:
- there is fear that the child is suffering from, or likely to suffer, significant harm,
- a proper assessment of the child's health, development and treatment is refused unless the Court makes an Order.
The order can only be effective for up to seven days, and the person with care of the child must produce him or her for assessment and comply with the directions given by the Court. The child, if of sufficient understanding, may refuse to undergo the assessment or examination. The Court can treat the application as one for Emergency Protection and make that Order instead.
The Court will only make an Order if it considers that doing so will be better than making no order at all.
The Secretary of State may issue a Certificate for Providing Refuge for Children. This would cover voluntary homes, registered children's homes, and Foster Carers. While the Certificate is in force, the holder is exempt from prosecution for the offences of unlawfully removing or keeping a child who has run away.
- Private Fostering
… applies when, in a private arrangement, children under the age of sixteen (or eighteen, if disabled) are placed by their parents with a family which is not related to them for more than 28 days.
The Carer, a parent, or any other person involved in the arrangement has a duty to notify the Local Authority of the proposed placement, and the Local Authority must be satisfied that the welfare of children privately fostered in its area is being safeguarded and promoted.
There may be requirements placed on the Carer, such as restricting the number of children who are fostered, and the usual fostering limit will apply. A prohibition may be imposed if a person, or the premises, are found to be unsuitable, and individuals may be disqualified from acting as private Foster Carers. There is, however, a right of appeal.
A Children's Guardian is an independent person appointed by the Court to represent and safeguard the interests of children and young people who are subject to court proceedings. If the child or young person is in the care of Foster Carers, the Children's Guardian is likely to make contact to seek the views of the Carers.
If you would like more information about the role of the Children's Guardian, please contact the child's Care Manager.