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1.3.2 Legal Framework for Child Protection

AMENDMENT

This chapter was updated in December 2014 to include new Sections on: The Child Sex Offender Disclosure Scheme (see Section 4.7, Criminal Justice Act 2003 (S.327A and B)) which provides members of the public with a mechanism to ask for disclosure about people they are concerned about who may have unsupervised access to a child(ren); Domestic Violence Protection Orders and the Domestic Violence Disclosure Scheme (see Section 4.8, Crime and Security Act 2010 (S.24 – 33)) whereby a perpetrator can be banned with immediate effect from returning to a residence and from having contact with the victim for up to 28 days in respect of the Protection Order. The Disclosure Scheme gives members of the public a formal mechanism to make enquires about an individual who they are in a relationship with, or who is in a relationship with someone they know, where there is a concern.

Also, Sexual Harm Prevention Orders (which can be applied to anyone convicted or cautioned of a sexual or violent offence, including where offences are committed overseas) and Sexual Risk Orders (that can be made where a person has done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for such an order to be made). See Section 4.9, Anti-Social Behaviour, Crime and Policing Act 2014.


Contents

1. Introduction
2. The Children Act 1989
3. Children Act 2004
4. Legal Powers to Safeguard Children
  4.1 Exclusion Orders
  4.2 Emergency Protection Orders
  4.3 Police Protection Powers
  4.4 Child Assessment Orders
  4.5 Care or Supervision Orders
  4.6 The Crime and Disorder Act 1998
  4.7 Criminal Justice Act 2003 (S.327A and B)
  4.8 Crime and Security Act 2010 (S.24 – 33)
  4.9 Anti-Social Behaviour, Crime and Policing Act 2014


1. Introduction

This summary of current legislation is intended as a guide only. It is not a substitute for professional legal advice. 

Practitioners should seek advice from their own advisers about their professional responsibilities for Safeguarding and Promoting the Welfare of Children.


2. The Children Act 1989

Under the terms of the Children Act 1989 the local authority has obligations towards children living in or found in the area of that local authority.

Section 17(1) of the Children Act 1989 states that:

It shall be the general duty of every local authority (in addition to the other duties imposed on them…):

  1. To safeguard and promote the welfare of children within the area who are in need; and
  2. So far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs.

Section 17(10) of the Children Act states: that a child shall be taken to be in need if:

  1. He is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
  2. His health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or
  3. He is disabled.

Children Act 1989: Local Authority’s Duty to Investigate

Section 47(1) of the Children Act 1989 states that:

47. (1) Where a local authority -

  1. Is informed that a child who lives, or is found in their area -
    1. Is the subject of an emergency protection order; or
    2. Is in Police protection; or
    3. Has contravened a ban imposed by a curfew notice within the meaning of Chapter 1 of Part 1 of the Crime and Disorder Act 1998; or
    4. Have reasonable cause to suspect that a child who lives, or is found, in their area is suffering or is likely to suffer, Significant Harm.

The authority shall make, or cause to be made, such enquiries, as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

Where there is a risk to the life of a child or likelihood of serious immediate harm, an agency with statutory child protection powers (the Local Authority, the Police and the NSPCC) should act quickly to secure the immediate safety of the child.


3. Children Act 2004

Click here to view Appendix B - Statutory framework, Children Act 2004 of Working Together to Safeguard Children 2015.


4. Legal Powers to Safeguard Children

4.1 Exclusion Orders

There is a range of powers available under the Family Law Act 1996 which may allow a perpetrator to be removed from the home, instead of having to remove the child. These are private law proceedings and the person seeking to remain in the family home with the child would need to make the relevant application.

For the courts to include an exclusion requirement in an order it must be satisfied that:

  • There is reasonable cause to believe that if the person is excluded from the home in which the child lives, the child will cease to suffer, or cease to be likely to suffer, Significant Harm;
  • 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, and consents to the exclusion requirement.

4.2 Emergency Protection Orders

The courts may make an Emergency Protection Order under section 44 of the Children Act 1989 if it is satisfied that there is reasonable cause to believe that a child is likely to suffer Significant Harm if:

  • S/he is not removed to accommodation; or
  • S/he does not remain in the place in which he is then being accommodated.

An Emergency Protection Order may also be made if Section 47 Enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access, and the applicant has reasonable cause to believe that access is needed as a matter of urgency.

An Emergency Protection Order gives authority to remove a child and places the child under the protection of the applicants for a maximum of eight days (with a possible extension of up to seven days).

4.3 Police Protection Powers

Under section 46 of the Children Act 1989, where a police officer has reasonable cause to believe that a child will otherwise be likely to suffer Significant Harm, s/he may:

  • Remove the child to suitable accommodation and keep him or her there; or
  • Take reasonable steps to ensure that the child's removal from any hospital, or other place in which the child is then being accommodated is prevented.

An independent Officer of at least Inspector rank should act as the designated Officer for authorisation of Police Protection Orders.

No child may be kept in police protection for more than 72 hours.

Other than in exceptional circumstances, no child should be taken into police protection without first being seen and an assessment of the child’s circumstances being undertaken.

Police Protection Orders should only be used in circumstances where it would not be appropriate to make application to the Courts for an Emergency Protection Order (EPO), where there is concern that to delay removing the child would present an immediate risk of harm. Otherwise it is always more appropriate to seek legal advice and make application for an EPO.

4.4 Child Assessment Orders

The Court may only grant a Child Assessment Order under Section 43 of the Children Act 1989 if:

  1. The applicant has reasonable cause to suspect that the child is suffering, or likely to suffer, Significant Harm;
  2. An assessment of the child is required to determine whether the child is suffering, or is likely to suffer, Significant Harm; and
  3. It is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.

A Child Assessment Order cannot be made where the Court is satisfied that here are grounds for making an Emergency Protection Order with respect to the child; and that it ought to make such an order rather than a Child Assessment Order.

Child Assessment Orders deal with the single issue of enabling an assessment of the child to be made where Significant Harm is suspected, and the parents or other persons responsible for him have refused to co-operate.

Where parents continue to refuse Children’s Social Care access to a child in the conduct of Section 47 Enquiries, and where the concerns about the child's safety are not as urgent as to require an Emergency Protection Order, a local authority may apply to the court for a Child Assessment Order. In the circumstances, the courts may direct the parents/carers to co-operate with an assessment of the child, the details of which should be specified in the order. The order does not take away the child's own right to refuse to participate in an assessment, e.g. a medical examination, so long as he or she is of sufficient age and understanding.

The Court has power to make an Emergency Protection Order instead of the Child Assessment Order if, it considers that the circumstances warrant this (Section 43(4)).

4.5 Care or Supervision Orders

Section 31(2) of the Children Act 1989 states that:

A court may only make a care or supervision order if it is satisfied:

  1. That the child concerned is suffering, or is likely to suffer Significant Harm; and
  2. That the harm, or likelihood of harm is attributable to;
    1. The care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or
    2. The child being beyond parental control.

S31(9) of the Children Act 1989

  • ‘Harm’ means ill-treatment of the impairment of health or development;
  • ‘Development’ means physical, intellectual, emotional, social or behavioural development;
  • ‘Health’ means physical or mental health;
  • ‘Ill-treatment’ includes sexual abuse and forms of ill-treatment which are not physical.

S.31(10) of the Children Act 1989:

Where the question of whether harm suffered by a child is significant turns on the child’s health and development, his health or development shall be compared with that which could reasonably be expected of a similar child.

Care and Supervision Proceedings are founded on a number of principles:

  • Compulsory intervention in the care and upbringing of a child will be possible only by Court Order following proceedings in which the child, his parents and others who are connected with the child will be able to participate fully. The proceedings should establish what action, if any, is in the child’s interests, and the procedure should be as fair as possible to all concerned. The term ‘care’ is used in the Act in relation to a child subject to a Care Order and not to a child accommodated by a local authority under voluntary arrangements;
  • A Care or Supervision Order will be sought only when there appears to be no better way of safeguarding and promoting the welfare of the child suffering, or likely to suffer, Significant Harm. The local authority has a general duty to promote the upbringing of children in need by their families so far as this is consistent with its duty to promote children’s welfare and to avoid the need for proceedings where possible. It should have regard to the Court’s presumption against making an order in Section 1(5) while at the same time giving paramount consideration to the child’s welfare. This means that voluntary arrangements through the provision of services to the child and his family should always be fully explored. Where a Care Order or Supervision Order is the appropriate remedy because control of the child’s circumstances is necessary to promote his welfare, applications in such proceedings should be part of a carefully planned process. Discharge and variation of Care and Supervision Orders may be sought;
  • There will be common grounds for making Care or Supervision Orders irrespective of the route by which cases proceed. These will need to address present or prospective harm to the child and how this is occurring or may occur. Factors such as failure to receive suitable education are not grounds in themselves for making a Care or Supervision Order except in so far as they contribute to the harm done and may be attributable to the parenting, or lack of proper parenting;
  • There will be greater emphasis on representing the views, feelings and needs of the child in these proceedings. Where a Children’s Guardian is to be appointed, the appointment should be made by the Court as soon as possible after the application is received by the Court. Where an application for a Care or Supervision Order follows on from the making of an Emergency Protection Order or Child Assessment Order a Children’s Guardian will usually already have been appointed;
  • When a Care Order is in force the local authority and parents share parental responsibility for the child subject to the authority’s power to limit the exercise of such responsibility by the parents in order to safeguard the child’s welfare, and to some specific limitations on the authority;
  • The Act also establishes a presumption of reasonable parental contact with children in care, subject to Court Orders and limited local authority action in emergencies.

4.6 The Crime and Disorder Act 1998

(See The Crime and Disorder Act 1988).

The Crime and Disorder Act 1998 also created:

Child Safety Orders (S.11)

A Child Safety Order (CSO) is a compulsory intervention available below the threshold of the child being at risk of Significant Harm. A local authority can apply for a CSO in respect of a child below the age of criminal responsibility (10 years) where a child has committed an act which would have been an offence if the child were aged 10 or over, where it necessary to prevent such an act, or where the child has behaved anti-socially; caused harassment, distress or harm to others. The CSO is intended to help the child improve his or her behaviour and is likely to be used alongside work with the family and others to address any underlying problems.

Parenting Order (S.8)

A Parenting Order can be made alongside a CSO or when a CSO is breached. This provides a means of engaging with and supporting parents where there are concerns about a child’s behaviour below the threshold of the child being at risk of Significant Harm. 

4.7 Criminal Justice Act 2003 (S.327A and B)

The Child Sex Offender Disclosure Scheme

The Child Sex Offender Review (CSOR) Disclosure Scheme is designed to provide members of the public with a formal mechanism to ask for disclosure about people they are concerned about, who have unsupervised access to children and may therefore pose a risk. This scheme builds on existing, well established third-party disclosures that operate under the Multi-Agency Public Protection Arrangements (MAPPA).

Police will reveal details confidentially to the person most able to protect the child (usually parents, carers or guardians) if they think it is in the child’s interests.

The scheme has been operating in all 43 police areas in England and Wales since 2010. The scheme is managed by the Police and information can only be accessed through direct application to them.

If a disclosure is made, the information must be kept confidential and only used to keep the child in question safe. Legal action may be taken if confidentiality is breached. A disclosure is delivered in person (as opposed to in writing) with the following warning:

  • 'That the information must only be used for the purpose for which it has been shared i.e. in order to safeguard children;
  • The person to whom the disclosure is made will be asked to sign an undertaking that they agree that the information is confidential and they will not disclose this information further;
  • A warning should be given that legal proceedings could result if this confidentiality is breached. This should be explained to the person and they must sign the undertaking’ (Home Office, 2011, p16).

If the person is unwilling to sign the undertaking, the police must consider whether the disclosure should still take place.

4.8 Crime and Security Act 2010 (S.24 – 33)

The Domestic Violence Disclosure Scheme

The Domestic Violence Disclosure Scheme (DVDS) commenced on 8 March 2014. The DVDS gives members of the public a formal mechanism to make enquires about an individual who they are in a relationship with, or who is in a relationship with someone they know, where there is a concern that the individual may be violent towards their partner. This scheme adds a further dimension to the information sharing about children where there are concerns that domestic violence and abuse is impacting on the care and welfare of the children in the family.

Members of the public can make an application for a disclosure, known as the ‘right to ask’. Anybody can make an enquiry, but information will only be given to someone at risk or a person in a position to safeguard the victim. The scheme is for anyone in an intimate relationship regardless of gender.

Partner agencies can also request disclosure is made of an offender’s past history where it is believed someone is at risk of harm. This is known as ‘right to know’.

If a potentially violent individual is identified as having convictions for violent offences, or information is held about their behaviour which reasonably leads the police and other agencies to believe they pose a risk of harm to their partner, a disclosure will be made. 

4.9 Anti-Social Behaviour, Crime and Policing Act 2014

Sexual Harm Prevention Orders and Sexual Risk Orders

These orders were introduced by the Anti-Social Behaviour, Crime and Policing Act 2014. They replace the previous Sexual Offences Prevention Order, Risk of Sexual Harm Orders and Foreign Travel Orders which were introduced by the Sexual Offences Act 2003.

The court needs to be satisfied that the order is necessary for protecting the public, or any particular members of the public, from sexual harm from the defendant; or protecting children or Adults at Risk generally, or any particular children or Adults at Risk, from sexual harm from the defendant outside the United Kingdom.

The Orders prohibit the defendant from doing anything described in the order, and can include a prohibition on foreign travel (replacing Foreign Travel Orders which were introduced by the Sexual Offences Act 2003).

Failure to comply with a requirement imposed under an Order is an offence punishable by a fine and/or imprisonment.

Sexual Harm Prevention Orders

Sexual Harm Prevention Orders can be applied to anyone convicted or cautioned of a sexual or violent offence, including where offences are committed overseas. They replace the previous Sexual Offences Prevention Orders.

A prohibition contained in a Sexual Harm Prevention Order has effect for a fixed period, specified in the order, of at least 5 years, or until further order. The Order may specify different periods for different prohibitions.

Sexual Risk Orders

Sexual Risk Orders can be made where a person has done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for such an order to be made, even if they have never been convicted. They replace the previous Risk of Sexual Harm Orders.

A prohibition contained in a Sexual Risk Order has effect for a fixed period, specified in the order, of not less than 2 years, or until further order. The Order may specify different periods for different prohibitions.

End