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.