03rd February 2017
Safeguarding the welfare of children
Public Law Cases
Public law cases involve the Local Authority taking steps to safeguard the welfare of children. There are a number of different types of orders that can be made by the Court but the most frequently applied for are Care Orders, Supervision Orders, Emergency Protection Orders, Secure Accommodation Orders and Police Protection Orders.
The child/children are automatically made a party in such cases (save for applications for a Police Protection Order) and are represented by solicitors through the instruction of a Children’s Guardian appointed by CAFCASS, the Children and Family Court Advisory and Support Service. CAFCASS are an independent agency who look at what is in the best interests of the child. Sometimes the child and Children’s Guardian will not agree on what is in the child’s best interests and if the solicitor is satisfied that the child is of a sufficient age and has sufficient understanding the child can instruct the solicitor directly and the Children’s Guardian will seek alternative legal representation.
Legal Aid is usually available in these cases to parents and it is not means tested.
When a Court makes decisions in any of these types of cases it must have regard to the Welfare Checklist which is contained within s1 of the Children Act 1989. The child’s welfare is the paramount consideration of the Court.
The Welfare Checklist looks at the following:
- The ascertainable wishes of and feelings of the child (in light of his age and understanding)
- His physical, emotional and educational needs
- The likely impact on him of any change in his circumstances
- His age, sex, background and any characteristics of his, which the court considers relevant
- Any harm he has suffered or is at risk of suffering
- 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
- The range of powers available to the Court under the Children Act 1989 in the proceedings in question.
Care Orders Section 31 Children Act 1989
This type of order is sought by a Local Authority in respect of children who they believe are at risk of suffering or are likely to suffer significant harm and:
- 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
- That the child is beyond parental control.
A Care Order can only last until the child reaches 18 years, unless it is discharged earlier and no order can be made for a child who is 17 years of age or a child who is 16 and is married.
Once an application for a Care Order has been made the Court can grant a series of Interim Care Orders which enable the Local Authority to share Parental Responsibility with the parents. Assessments can be undertaken of the parents, children and other persons whilst an Interim Care Order is in force and before a Full Care Order is made.
Because the Local Authority has Parental Responsibility for the child/children this enables the Local Authority to make decisions as to where the child lives, who will have contact with the child, whether the child should have medical treatment and make other decisions relating to the child’s welfare.
The Local Authority has a duty to promote contact between the child and his parents and the level of contact must be reasonable, however there are some instances when the Local Authority may wish to stop or suspend contact. If the Local Authority wishes to suspend contact for a period of longer than 7 days it will be necessary for a formal application to be made to the Court to suspend contact under s34(4) of the Children Act 1989. The Court can hear the views of the Local Authority, the Parents and the child through their Children’s Guardian and if satisfied that there are sufficient grounds can make an order allowing the Local Authority to refuse contact.
Where the Court is being asked by the Local Authority to approve a care plan of adoption a further application will need to be made to the Court for a Placement Order under the Adoption and Children Act 2002. The Court either needs to obtain consent from the birth parents to place the child for adoption or after hearing all the evidence in the case make a decision that the welfare of the child requires the parent’s consent to be dispensed with.
Children who are in the care of the Local Authority are subject to reviews and will be allocated an Independent Reviewing Officer who will chair meetings held on behalf of the child.
The Local Authority retains responsibility for a child who has been in care after the age of 18 and plans must be put in place to enable the child to achieve independent living.
Supervision Orders s31 Children Act 1989
These orders are made on the same basis as Care Orders and can be by way of an interim order before a final order is made. A supervision order does not enable the Local Authority to share Parental Responsibility with the parents but enables the Local Authority to advise, assist and befriend the supervised child.
Initially a Supervision Order lasts for 12 months but can be extended for further periods up to a maximum of 3 years.
Emergency Protection Orders s44 Children Act 1989
These orders can be used by the Local Authority or other authorised body to ensure the short term safety of a child or children. In making an Emergency Protection Order the Court must be satisfied that there is reasonable cause to believe that the child is likely to suffer harm if:
- He is not removed to accommodation provided by the Local Authority, or
- He does not remain in the place where he is currently being accommodated e.g. in hospital.
It will be necessary for the Local Authority to demonstrate that their enquiries under s47 of the Children Act 1989 are being hampered and that urgent access to the child is needed.
In circumstances where the Applicant believed that the child will be safe in the interim period an application for an Emergency Protection Order can be made on notice to the parents. This enables the parents to attend the Court hearing and give their views to the Court and detail their plans to keep the child/children safe. In exceptional circumstances the Local Authority can apply for an Emergency Protection Order without notice being given.
When making an Emergency Protection Order the Court can also make an exclusion order to require a person to leave the home where the child is living, to prevent him from entering the home or exclude him from a defined area.
The Court must be satisfied that:
- 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
- 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 consents to the exclusion.
An Emergency Protection Order is a short term order which last up to a maximum of 8 days, the order can be extended for a further 7 days. Once an Emergency Protection Order has been made this confers Parental Responsibility on the Applicant but only permits him to take action as is reasonably required to safeguard the welfare of the child.
It is quite common for a Local Authority to apply for Emergency Protection Orders in the first instance without notice and then at a further hearing make an application to the Court for an Interim Care Order.
Secure Accommodation Orders s25 Children Act 1989
These orders enable the Local Authority to place a child in secure accommodation.
The Court can make a Secure Accommodation Order where:
- A young person has a history of running away, is likely to run away from any other kind of accommodation and if he runs away likely to suffer significant harm; or
- If the young person is not kept in secure accommodation he is likely to injure himself or other people.
A Secure Accommodation Order can only be made in relation to a child who is “looked after” by the Local Authority. Unless the child is subject to a Care Order a Secure Accommodation Order can only be made in respect of a child who is under 16 years of age. If a child is subject to a Care Order they can be placed in secure accommodation until they reach 18 years of age. A child under the age of 13 can only be placed in secure accommodation with the consent of the Secretary of State.
The Local Authority does not need to make an application to the Court to keep a child in secure accommodation for the first 72 hours, however if a further period of secure accommodation is required an order must be made to the Court. The Court cannot make a Secure Accommodation Order unless the child is legally represented in Court.
The Court can make a Secure Accommodation Order on the first application for a maximum of 3 months and then periods of up to six months on subsequent applications.
Regardless of how long the Order last the Local Authority must remove the child from secure accommodation if he no longer meets the criteria for an order. The Local Authority will conduct regular reviews of the placement to monitor the child’s progress in the secure setting. The plans will also address the future plans for the child once they have left secure accommodation.
The Local Authority must make arrangements for contact between the child and his parents whilst the child is subject to a Secure Accommodation Order or if satisfied that it is not in the best interests of the child for contact to take place make an application to the Court under s34 (4) of the Child Act 1989 to suspend or stop contact.
Police Protection Orders s46 Children Act 1989
The Police have the power to remove and accommodate children in cases of emergency.
An application for a Police Protection Order can be made Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may:
- Remove the child to suitable accommodation and keep him there
- Take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.
A child with respect to whom a constable has exercised his powers under this section is referred to as having been taken into police protection.
As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall:
- Inform the local authority within whose area the child was found of the steps that have been, and are proposed to be, taken with respect to the child under this section and the reasons for taking them
- Give details to the authority within whose area the child is ordinarily resident of the place at which the child is being accommodated.
As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall take such steps as are reasonably practicable to inform:
- The child’s parents
- Every person who is not a parent of his but who has parental responsibility for him
- Any other person with whom the child was living immediately before being taken into police protection
- Of the steps that he has taken under this section with respect to the child, the reasons for taking them and the further steps that may be taken with respect to him under this section.
After completing relevant enquiries the officer conducting them shall release the child from police protection unless he considers that there is still reasonable cause for believing that the child would be likely to suffer significant harm if released.
No child may be kept in police protection for more than 72 hours. A Police Officer may apply on behalf of a Local Authority for an Emergency Protection Order. Such an application can be made with or without the knowledge of the Local Authority.
The Police Protection Order does not confer Parental Responsibility on the Police Officer but the officer shall do what is reasonable in all the circumstances to safeguard or promote the child’s welfare.
The designated officer shall allow the child’s parents to have such contact (if any) with the child as, in the opinion of the designated officer, is both reasonable and in the child’s best interests.
Please contact our specialist family law team, to discuss this issue, or any other issue of family law or relationship breakdown.
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