Care
The Starting Point
These are cases brought under part 4 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 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.
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.
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.
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 consult of birth parents to placement. In some cases special
guardianship will be more appropriate to 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.
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 specified other
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.