Family Law: Laws Governing Child Protection

Introduction

In England, the Department for Children, Schools, and Families (DCSF) has the overall responsibility of child protection. This body is charged with the responsibility of issuing non-statutory and statutory guidelines to local authorities. Unlike the non- statutory guidelines, the statutory guidelines must be strictly adhered to by the local authorities across the country. These guidelines are in turn used by the local authorities to design their procedures that should be followed by professionals and practitioners who deal with children and their families within a particular locality. In 2006, Local Safeguarding Children’s Boards (LSCBs) were introduced in the statutory laws of England for purposes of ensuring that all the agencies concerned with matters of safeguarding children welfare work effectively at the local level to towards that course¹.

The local authority children’s services across the United Kingdom are charged with the responsibility of planning as well as providing protection services for children in their respective local authority areas. Accordingly, under The Children Act 2004, all the children’s services authorities are mandated to design a plan for children and young people for purposes of giving a viable direction to all children services. These local authorities should also have children trust whose functions include commissioning, planning and monitoring service delivery. Even though subsequent legislations have since amended The Children Act 19892, this Act still forms the basis for child protection in England today.

In this respect, court in the case of Re C & B (Care Order: Future Harm)3 noted that the local authority have a responsibility to intervene in an effort to safeguard the welfare of a child in instances where there are long standing problems which are likely to interfere with the parents or guardians provision of good enough care for the child, and which may result to serious harm such as personality disorder, neglect, or even mistreatment. It should however, be noted that if there is need for such involvement by the local authority there must be a thorough consideration of the child’s welfare.

According to Caroline the social worker who has been assigned to investigate on the upbringing of Ben by his mother Georgia, there are concerns about the inability of Georgia to meet her child’s emotional needs. Caroline is of the view that even though Ben is intelligent and educationally ahead of his peer group, he was quite immature in terms of social and emotional development. For this reason the local authority may intervene to prevent further harm to Bens’ emotional and social development.

Laws governing child protection in UK

The Children Act 2004⁴ sets out the legal framework geared towards improving children welfare most especially the five outcomes which include: enjoy and achieve; be healthy; achieve economic well-being; stay safe; and make a positive contribution. For this reason, the local authority and agencies have the responsibility to promote and safeguard children welfare as well as implement measures to prevent their abuse and alleviate their safety. Child protection is therefore concerned with what should be done in the event where there is a reason to believe that a child may be at a risk of significant harm. To put it simply, the need for child protection ensue when the circumstance of a child call for immediate intervention.

Under section 31[9] of The Children Act 1989 as amended by the 2002 Adoption and Children Act⁵, harm is defined to mean any form of child ill- treatment which may include inter alia; ill treatment of non physical forms, sexual abuse, impairment of health (either mental or physical) or even development in terms of emotional, physical, intellectual, behavioral, or social. From the foregoing definition of harm to a child, it is clear from the observations made by Caroline, that indeed, Ben is at a risk of suffering significant harm under the care of her mother. Caroline suspects that Ben might be suffering from Asperger’s syndrome and need to be assessed by a child psychiatrist.

Reporting child protection concerns

UK does not have any mandatory reporting laws of such concerns related to children, nevertheless, there are guidelines issued by local boards safeguarding children and professional bodies which underscores the duty of the concern party to make a referral in cases where there is reason to believe that the child in question is at risk of suffering a significant harm. The referrals may be made to the police or the NSPCC. These referrals are later handed over to the local authority team of child protection. After receiving a referral, the local authority child protection team must make a decision on what action to take in relation to the child within one working day.

The local authority is charged with the responsibility of lodging an investigation in relation to the child who is physically present within the jurisdiction of the local authority. This investigation cannot be obstructed by the fact that the child may be a resident of another local authority⁶.

According to the investigation conducted by Caroline, the social worker looking into the case of Ben, Georgian flat was dirty and untidy. Caroline also found out that en was grossly overweight for his age. The aforementioned circumstances would indeed necessitate Caroline the social worker to make a referral because Ben the child in question may be at risk of suffering if he continues living with her mother Georgia.

The local authority child protection team may decide that the child is not at any risk or there is no harm that has been occasioned to the child, and therefore, no further actions need to be taken. This does not however, mean that the case in question has been closed since the concern person could make a referral to other agencies. In the event the local authority decide that the child might be at risk, the team will institute an initial assessment for purposes of collecting substantial information in relation to the child in question. The initial assessment undertaken by the local authority must be concluded within ten working days from the time the referral was made to the local authority team of child protection⁷. Nevertheless, this assessment could as well be brief putting into consideration the circumstances of the child.

The assessment must be carried out in accordance with the procedures set out under the LSCB. An initial assessment is a brief assessment that is carried out on every child who is referred to social services in relation to a request for provision of services⁸. Court in the case of Haase v Germany⁹ noted that even though there may be a likelihood of putting a child in a better milieu, a child should not be removed from the care of his or her biological parents without due consideration of the child’s welfare. Court further noted that other circumstances must be established to justify such interference and that before the local authority have resort to emergency procedures in such fragile issues as care orders, there must be proof of eminent danger to the child.

It should be noted that, if at any point during the process of initial assessment it is established that the child is actually in an immediate danger, the assessment team of the local authority could apply for an emergence order from the court. According to section 31(9) of The Children Act 1989, NSPCC is described as an authorized person. It follows that this body has the power to make an application for a court order directly if it has reason to believe that a child is likely to suffer harm or the child is indeed suffering. It is also possible for an authorized person to apply for an emergency protection order. This order authorizes the removal of a child from home for a period not exceeding eight days. An exclusive order is a court direction that prohibits the alleged child abuser from going to the family home; the order however allows the child to live with the parent who is not abusive¹⁰.

Initial assessment

The purpose of the initial assessment is to collect information related to the child’s needs as well as to establish whether the parents of the child are able to sufficiently safeguard the interests of the child, the assessment assist the local authority to determine the appropriate action which might be suitable within a particular timeline and place. The initial assessments also recommend whether or not there is need for a core assessment, which is a more detailed assessment¹¹.

According to section 17 of The Children Act 1989, if it is established that further support for the child is required from social services, then, such a child is officially elected as a needy child. This section further gives the local authority the responsibility of providing social services for purposes of promoting and safeguarding the welfare of designated children who are in need of such services.

The local authority may decide to convene a strategy discussion if it is established that a child has actually suffered harm or is at a risk of suffering if no action is taken.

This strategy discussion involves professionals from the appropriate agencies for purposes of determining whether or not to initiate an enquiry provided for under section 47 of The 1989 Children Act. Where it is established that the child have not suffered any actual harm or that the child is not at any risk of significant harm, the social worker will then meet the family of the child for purposes of determining and putting in place supportive services that are appropriate in every circumstance¹².

Core assessment

A core assessment under section 47 of The Children Act 1989 follows the referral and an initial assessment. It involves re- evaluation of the child’s family, and must be concluded within 35 working days. An initial child protection conference is undertaken if it is ascertained that the child may still be at risk of suffering even after the completion of a core assessment. In this regard court in the case of Re C & B (Care Order: Future Harm)¹³ noted that the gravity and nature of the feared harm should be extremely relevant to the course of action undertaken in an attempt to respond to such situation. Court further noted that there are instances where the local authority cannot just sit around and wait for the inevitable to take place; in such instances, the local authority can intervene to protect the child’s interest before such an occurrence.

The child protection initial conference should be commenced within fifteen days after the strategy discussion. Child protection officers, family members, and the relevant professionals should attend this conference. The child may also be invited if he or she is deemed to be of an understanding age. A child may, or may not be included in the child protection register depending on the outcome of the child protection conference. The team of child protection conference might decide that care proceedings should be initiated for purposes of safeguarding the interest of the child¹⁴.

Conclusion

The phrase care proceeding is used to explain the legal procedure through which Child protection officers may ask the court whether it could allow the child to be under their care. The social services may apply for an interim care order which is a temporal order. This order is given as further investigations and plans are being undertaken. Finally, the social services might apply for a full care order if they are of the view that it is in the best interest of the child. Once a court gives a care order it means that parental responsibilities are fully given to the local authority¹⁵. Even though the parental responsibility are shared between parents and the local authority, the reality is that the local authority has the overall power to decide how far the parents may exercise their responsibilities and the extent to which guardians or parents may be involved in their child affairs.

In R vs. Nottingham City Council¹⁶ court held that where there is no court order and PPO authorizing child removal, and there is no parental consent, then, the local authority has no rights whatsoever to effect the removal of a child from its parental care. An assessment of case law indicate that interim removal of a child should be order in very peculiar instances and in the event such an order needs to be made, due care must be taken to make sure that there is appropriate disclosure in pre proceedings as well as a fair procedure is adopted during the proceedings.

In the present situation of Ben, the local authority may institute care proceedings owing to the fact that his mother, Georgia is often drunk which may be a big hindrance to the social and emotional development of Ben. Furthermore there is enough evidence to the effect that Ben may be suffering from Asperger’s syndrome. He also appear to display some obsessive behavior and unable to speak without repeating the answer several times. This is a clear indication that there is an urgent need for the local authority to intervene and apply for care proceedings in an effort to safeguard the welfare of Ben.

Bibliography

Statutes

Adoption and Children Act 2002.

Children Act 2004: chapter 31.

Children Act 1989: chapter 41.

Case law

In Re C & B (Care Order: Future Harm) [2001] 1 FLR 611

R v Nottingham City Council [2008] EWHC 152 (Admin)

Haase v Germany [2004] 2 FLR 39

Books

Cleland, A and Dick, H, Child centered family law practice, W. Green &Son Ltd, Edinburgh, 2001.

Hewitt, P, the looked after kid: Memoirs from a Children’s Home, Mainstream, Edinburgh, 2002.

Mays, R, Child and Family Law: Cases and Materials, W. Green & Son Ltd, Edinburgh, 2001.

Sutherland, E, Child and Family Law, T&T Cark Ltd, Edinburgh, 1999.

Wilkinson, B and Norrie, K, Parent and Child (2nd edition), W. Green& Son Ltd, Edinburgh, 1999.

Journal Articles

Aldgate, J and Hill, M, Child Welfare in the United Kingdom’, Children and Youth Services Review Vol. 17, no.5, 1995, pp. 575-597.

Dickens, J, ‘Teaching Child Care Law: Key Principles, New Priorities’, and Social Work Education Vol. 23, No. 2, 2004, pp. 217-230.

Harwin, J and Owen, M, ‘The implementation of care plans and its relationship to children’s welfare, Child and Family Law Quarterly Vol. 15, No 1,2003, pp. 71- 83.

Piper, C, Assumptions about children’s best interests’, Journal of Social Welfare and Family Law vol. 22, no.3, 2000, pp. 261-276.

Footnotes

1. J Dickens, ‘Teaching Child Care Law: Key Principles, New Priorities’, and Social Work Education Vol. 23, No. 2, 2004, pp. 217-230.
2. Children Act 1989: chapter 41.
3. In Re C & B (Care Order: Future Harm) [2001] 1 FLR 611.
4. Children Act 2004: chapter 31.
5. Adoption and Children Act 2002.
6. J Aldgate, & M Hill, Child Welfare in the United Kingdom’, Children and Youth Services Review Vol. 17, no.5, 1995, pp. 575-597.
7. A Cleland & H Dick, Child centered family law practice, W. Green &Son Ltd, Edinburgh, 2001
8. R Mays, Child and Family Law: Cases and Materials, W. Green & Son Ltd, Edinburgh, 2001.
9. Haase v Germany [2004] 2 FLR 39.
10. C Piper, ‘Assumptions about children’s best interests’, Journal of Social Welfare and Family Law vol. 22, no.3, 2000, pp. 261-276.
11. B Wilkinson & K Norrie, Parent and Child (2nd edition), W. Green& Son Ltd, Edinburgh, 1999.
12. E Sutherland, Child and Family Law, T&T Cark Ltd, Edinburgh, 1999.
13. In Re C & B (Care Order: Future Harm) [2001] 1 FLR 611.
14. J Harwin, & M Owen, ‘The implementation of care plans and its relationship to children’s welfare, Child and Family Law Quarterly Vol. 15, No 1,2003, pp. 71-83.
15. P Hewitt, they looked after kid: Memoirs from a Children’s Home, Mainstream, Edinburgh, 2002.
16. R v Nottingham City Council [2008] EWHC 152 (Admin).