Legal Framework for Child Protection
This chapter was updated in December 2020 to include consideration of:
- Anti-Social Behaviour, Crime and Policing Act 2014;
- Data Protection Act 2018;
- Safeguarding Vulnerable Groups Act 2006 (as amended by the Protection of Freedoms Act 2012);
- Serious Crime Act 2015.
And further considers the legislation:
- The Children Act 1989;
- The Crime and Disorder Act 1998;
- Freedom of Information Act 2000;
- Local Government Act 2000;
- Criminal Justice and Court Services Act 2000;
- Education Act 2002;
- Homelessness Act 2002;
- The Children Act 2004;
- Domestic Violence, Crime and Victims Act 2004;
- Safeguarding Vulnerable Groups Act 2006 (as amended by the Protection of Freedoms Act 2012);
- Protection of Freedoms Act 2012;
- Police Reform and Social Responsibility Act 2011.
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:
- The Children Act 1989 holds together in a single coherent legislative framework, the private and public law relating to children;
- The Act aims to strike a balance between the rights of children to express their views on decisions made about their lives, the rights of parents to exercise their responsibilities towards the child and the duty of the State to intervene where the child's welfare requires it;
- The Act rests on the belief that children are generally best looked after within the family with both parents playing a full part and without resort to legal proceedings;
- The opening provisions of the Act set out the overarching welfare principles to be applied in all proceedings under the Act; the welfare of the child is the paramount consideration;
- The Act also makes it clear that delay in Court proceedings is generally harmful to children not only because of the uncertainty it creates for them, but also because of the harm it does to the relationship between the parents and their capacity to co-operate with one another in future.
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…):
- To safeguard and promote the welfare of children within the area who are in need; and
- 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:
- 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;
- His health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or
- He is disabled.
Provision of Accommodation under section 20 Children Act 1989
(This can be on the initiative of the local authority with the agreement of the parents, or at the request of the parents. Any person with parental responsibility can at any time remove the child from the accommodation.)
The child is a child in need who requires accommodation as a result of:
- Having no person with parental responsibility for him/her; or
- Being lost or abandoned; or
- The person who has been caring for him/her being prevented (whether or not permanently, and for whatever reason) from providing him/her with suitable accommodation or care; or
- Having reached the age of 16, his/her welfare is likely to be seriously prejudiced if he/she is not provided with accommodation; or
- Accommodating the child would safeguard or promote his/her welfare (even though a person who has parental responsibility for him/her is able to provide him/her with accommodation), provided that that person does not object.
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 -
- Is informed that a child who lives, or is found in their area -
- Is the subject of an emergency protection order; or
- Is in Police protection; or
- 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
- 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. Legal Powers to Safeguard Children
The Court may make an Emergency Protection Order under s.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:
- He is not removed to accommodation provided by or on behalf of the applicant; or
- 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 applicant for a maximum of eight days. The applicant Local Authority is granted PR in order to do only what is necessary to safeguard and promote the child's welfare.
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.
There are 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.
The Court can include an exclusion requirement with an Interim Care Order or an Emergency Protection Order where it is 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; and
- That another person living in the home (whether a parent of the child or some other person):
- 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.
The Court may only grant a Child Assessment Order under Section 43 of the Children Act 1989 if:
- The applicant has reasonable cause to suspect that the child is suffering, or likely to suffer, significant harm;
- An assessment of the child is required to determine whether the child is suffering, or is likely to suffer, significant harm; and
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.
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)).
Sections 31 and 32 of the Children Act 1989
The Children Act 1989 introduced the concept of Significant Harm as the threshold that justifies compulsory intervention in family life in the best interests of children. The local authority is under a duty to make enquiries, or cause enquiries to be made, where it has reasonable cause to suspect that a child is suffering, or likely to suffer significant harm (Section 47).
A Court may only make a Care Order (placing the child in the care of the local authority) or Supervision Order (putting the child under the supervision of a local authority) in respect of a child if it is satisfied that:
- The child is suffering, or is likely to suffer, significant harm;
- That the harm of likelihood of harm is attributed to a lack of adequate parental care or control (s.31);
- 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 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.
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.
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.
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.
4. The Human Rights Act 1998
The Human Rights Act 1998 came into force on 2 October 2000. It makes almost all the rights protected by the European Convention on Human Rights (ECHR) part of English law. Those rights, referred to and listed below as 'Convention Rights' protect fundamental rights and guard them from unlawful interference.
As a consequence of the Human Rights Act, local authorities and other public bodies need to ensure that their decisions and procedures do not infringe Convention Rights. In some circumstances, local authorities need to act positively to protect these rights. An understanding of the provisions of the Act and the ECHR is therefore, essential for many people and bodies responsible for devising and implementing public policy.
Human Rights Act: The Convention Rights
- The Convention Rights are as follows:
- The right to life (Art 2);
- Prohibition on inhuman and degrading treatment (Art 3);
- No slavery or forced labour (Art 4);
- No unjustified detention (Art 5);
- The right to a fair hearing (Art 6);
- No retrospective penalties for criminal offences (Art 7);
- Right to respect for private and family life, the home and correspondence (Art 8);
- Freedom of thought, conscience and religion (Art 9);
- Freedom of expression (Art 10);
- Freedom of assembly and association (Art 11);
- The right to marry (Art 12);
- No discrimination (Art 14);
- Right to property (Art 1 of Protocol No 1);
- Right to education (Art 2 of Protocol No 1);
- Right to free elections (Art 3 of Protocol No 1);
- No capital punishment (Fourth Protocol).
The Human Rights Act and Local Authorities
It is first necessary to understand the scheme of the Human Rights Act and how it applies to local authorities. The general principles of the Act are:
All law must be interpreted, so far as is possible, to comply with the Act. This applies to primary legislation, both future and past, unless it is so clearly worded that it is impossible to give it an interpretation consistent with the Act. If courts cannot interpret primary legislation consistently with the Human Rights Act, they can declare that it is incompatible with the Act. The legislation can then be amended, either by way of remedial order or by Act of Parliament. However, until this is done, a declaration of incompatibility does not affect the ongoing validity of the legislation in question.
Subordinate legislation, such as a statutory instrument, must be interpreted to comply with the Act unless its parent primary legislation prevents it being read compatibly.
It is unlawful for public authorities to act in a way which is incompatible with the Act.
As they are 'public authorities' for the purposes of the Act, local authorities will be subject to it in two principal ways:
- They must interpret and give effect to all law in a way that is consistent with the Human Rights Act. This means that, so far as it is possible to do so, Acts of parliament must be read and given effect in a way that is consistent with the Human Rights Act. Secondary legislation, such as Regulations or Orders, must be read and given effect in a way that is consistent with the Human Rights Act unless the parent legislation prevents such an interpretation;
- It will usually be unlawful for a local authority to act incompatibly with the Convention Rights protected by the Human Rights Act. The only exception is where the clear words of an Act of Parliament give the local authority no alternative but to act in a way which will infringe any of those rights. Those occasions will be rare.
Human Rights Act: Application of the Convention in Respect of Childcare Decisions
Decisions that local authorities have to take concerning children and their care can be amongst the most difficult and emotive decisions an authority is called to take. The issues raised are capable of affecting the most fundamental of human interests, namely the relationship between parents and their children.
Human Rights Act: the Relevant Provisions of the Convention
There are two provisions of the Convention which might be said to be relevant: Article 6 on the right to a fair trial and Article 8 on the right to respect for private and family life.
Article 8 provides:
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society for the protection of health or morals, or for the protection of the rights and freedoms of others;
- The relevance of the provision of the Convention is that it is unlawful for a public authority to act in a way which is incompatible with a 'Convention Right'. By s7, a 'victim' of an act, committed by a public authority, which is alleged to be incompatible with a Convention Right may bring proceedings against the authority on that ground. Further, an aggrieved victim would be likely to rely on an alleged breach of Convention Rights in addition to other grounds of challenge.
Human Rights Act: Decisions of Local Authorities which are likely to Raise Convention Rights
In the context of decisions about childcare, there will no doubt be many occasions when aggrieved parties invoke the Convention. Without being able to provide a comprehensive review of every case in which Convention Rights may play a part, four specific areas in which it seems likely that a party may seek to rely on a Convention Right are as follows:
- Applications by authorities for Care Orders;
- Applications by authorities for Child Assessment Orders;
- Applications by authorities for Emergency Protection Orders;
- Decisions that a child shall be subject to a Child Protection Plan.
The requirements of the relevant Convention Rights are in the context of these four areas.
5. Data Protection Act 2018
The Data Protection Act is about human rights, and specifically the right to privacy. The Data Protection Act 2018, Human Rights Act 1998 and the Freedom of Information legislation are interlinked. For more information, see Knowsley SCP Information Sharing & Confidentiality Procedure.
The legislation is intended to help maintain a fair balance between the rights and interests of individuals, in particular between the freedom to process information on the one hand and rights of privacy on the other.
There are eight principles put in place by the Data Protection Act 2018 to make sure that information is handled properly. These principles state that data must be:
- Fairly and lawfully processed;
- Processed for limited purposes;
- Relevant and not excessive;
- Not kept for longer than is necessary;
- Processed in line with your rights;
- Secure and not transferred to countries without adequate protection.
By law data controllers have to keep to these principles.
6. Freedom of Information Act 2000
The Freedom of Information Act 2000 gives people a general right of access to information held by or on behalf of public authorities. It is intended to promote a culture of openness and accountability amongst public sector bodies, and therefore to facilitate better public understanding of how public authorities carry out their duties, why they make the decisions they do, and how they spend public money.
The Information Commissioner is an independent official appointed by the Crown to oversee the Data Protection Act 1998 and the Freedom of Information Act 2000. The Commissioner reports annually to Parliament. The Commissioner's decisions are subject to the supervision of the Courts and the Information Tribunal.
7. Criminal Justice and Court Services Act 2000
This Act gives CAFCASS (under Section 12(1) a duty to safeguard and promote the welfare of children involved in family proceedings in which their welfare is or may be in question.
8. Education Act 2002
Section 175 of the Education Act 2002 places a duty on:
- Local authorities in relation to their education functions; and
- The governing bodies of maintained schools and the governing bodies of further education institutions (which include sixth-form colleges) in relation to their functions relating to the conduct of the school or the institution to make arrangements for ensuring that such functions are exercised with a view to safeguarding and promoting the welfare of children (in the case of the school or institution, being those children who are either pupils at the school or who are students under 18 years of age attending the further education institution).
A similar duty applies to proprietors of independent schools (which include academies/free schools) by virtue of regulations made under sections 94(1) and (2) of the Education and Skills Act 2008.
Regulations made under Section 342 of the Education Act 1996, set out the requirements for a non-maintained special school to be approved and continue to be approved by the Secretary of State. It is a condition of approval and continuing approval that arrangements must be in place for safeguarding and promoting the health, safety and welfare of pupils and when making such arrangements, the proprietor of the school must have regard to any relevant guidance published by the Secretary of State.
9. Housing Act 1996
Section 213A requires housing authorities to refer to adult social care services persons with whom children normally reside or might reasonably be expected to reside, who they have reason to believe may be ineligible for assistance, or who may be homeless and may have become so intentionally or who may be threatened with homelessness intentionally, as long as the person consents. If homelessness persists, any child in the family could be in need. In such cases, if social services decide the child’s needs would be best met by helping the family to obtain accommodation, they can ask the housing authority for reasonable advice and assistance in this, and the housing authority must give reasonable advice and assistance.
10. The Children Act 2004
Section 10 requires each local authority to make arrangements to promote co-operation between the authority, each of the authority’s relevant partners, and such other persons or bodies who exercise functions or are engaged in activities in relation to children in the local authority’s area, as the authority considers appropriate. The arrangements are to be made with a view to improving the wellbeing of children in the authority’s area – which includes protection from harm and neglect alongside other outcomes.
Section 11 places duties on a range of organisations and individuals to make arrangements for ensuring that their functions, and any services that they contract out to others, are discharged with regard to the need to safeguard and promote the welfare of children.
Sections 16A -16D
Under Section16A, the Secretary of State must establish the Child Safeguarding Practice Review Panel (the Panel). The Panel’s functions under section 16B are to identify serious child safeguarding cases which raise issues that are complex or of national importance and to arrange, where appropriate, for those cases to be reviewed under their supervision. The reviews will seek to identify improvements required to safeguard and promote the welfare of children. The Child Safeguarding Practice Review and Relevant Agency (England) Regulations 20182 set out the criteria the Panel must take into account when determining whether serious child safeguarding cases raise issues that are complex or of national importance, along with arrangements for national reviewers and reports. Section 16C places a duty on local authorities to notify the Panel of events where they know or suspect that a child has been abused or neglected and the child dies or is seriously harmed in the local authority’s area, or dies or is seriously harmed outside England while normally resident in the local authority’s area.
Section 16D requires persons or bodies to supply information to the Panel, a reviewer or another person or body to enable the Panel to carry out its functions. The person or body to whom a request is made must comply with the request.
The Panel may enforce such a request by making an application to the High Court or the county court for an injunction.
Sections 16E-K establish the roles and responsibilities of safeguarding partners.
Section 16E defines ‘safeguarding partners’ as the local authority, a clinical commissioning group and the chief officer of police within the local authority area; and a ‘relevant agency’ as a person who is specified in regulations(the Child Safeguarding Practice Review and Relevant Agency (England) Regulations 2018)and exercises functions in relation to children within the area. It also requires safeguarding partners to make arrangements for themselves (and relevant agencies they consider appropriate) to work together to safeguard and promote the welfare of children in their area. This must include arrangements to identify and respond to the needs of children in the area.
Section 16F requires local safeguarding partners for a local authority area to make arrangements to identify serious child safeguarding cases which raise issue of importance in relation to the area, and where appropriate, for those cases to be reviewed under their supervision. The purpose of these reviews is to identify improvements which should be made locally to safeguard and promote the welfare of children. The Child Safeguarding Practice Review and Relevant Agency (England) Regulations 2018 set out the criteria that the safeguarding partners must take into account when determining whether serious child safeguarding cases raise issues of importance in relation to the area, along with arrangements for local reviewers and reports.
Section 16G requires safeguarding partners to publish their arrangements, and to ensure scrutiny of how effective the arrangements have been by an independent person. It places a duty on safeguarding partners and the specified relevant agencies to act in accordance with the published arrangements; and enables the Secretary of State to make regulations which provide for enforcement of this duty if necessary. It also requires the safeguarding partners to prepare and publish, at least once in every 12 month period, a report on the work that they have done as a result of their arrangements, and how effective the arrangements have been in practice.
Section 16H sets out the requirement for persons or bodies to supply (on request) information to the safeguarding partners for the purpose of enabling or assisting the performance of their functions. When a recipient does not comply with such a request, a safeguarding partner may apply for a High Court or county court injunction to enforce it.
Section 16I allows the safeguarding partners and relevant agencies to fund their arrangements by making payments towards expenditure incurred in connection with the arrangements; and to supply resources connected with the arrangements which may include (for example) staff, goods, services or accommodation.
Section 16J enables the safeguarding partners for two or more local authority areas to agree that their areas are to be treated as a single area; and if they agree so, for safeguarding partners in those areas to arrange for one of them to carry out safeguarding partner functions on behalf of the other. The same applies to clinical commissioning groups and chief officers of police.
Section 16K specifies that the safeguarding partners and relevant agencies for a local authority area in England must have regard to any guidance given by the Secretary of State in connection with their functions.
Sections 16M-P establish the roles and responsibilities of child death review partners.
Section 16M sets out the requirement on child death review partners to make arrangements for the review of each death of a child normally resident in the area, or if they deem it appropriate, a child who is not normally resident. It also requires the partners to make arrangements for the analysis of information gathered by their reviews. This section sets out that where partners identify that it would be appropriate for someone to take action in relation to matters identified in their review, they must inform that person. It also requires that child death review partners must prepare and publish reports on what they have done as result of their arrangements, and how effective the arrangements have been in practice.
Section 16N sets out the requirement for persons or bodies to supply (on request) information to the child death review partners for the purpose of enabling or assisting the performance of their functions. When a recipient does not comply with such a request, a child death review partner may apply for a High Court or county court injunction to enforce it.
Section 16O allows child death review partners to fund their arrangements by making payments towards expenditure incurred in connection with the arrangements; and to supply resources to support the arrangements which may include (for example) staff, goods, services or accommodation.
Section 16P enables child death review partners for two or more local authority areas in England to agree that their areas are to be treated as a single area. Where a local authority is a child death review partner for the same local authority area as another local authority the authorities may arrange for one of them to carry out functions under sections 16M to 16O on behalf of the other. The same applies to clinical commissioning groups.
Section 16Q defines ‘child death review partners’ as the local authority and any clinical commissioning group for the local authority area.
11. Domestic Violence, Crime and Victims Act 2004
There is no statutory offence of domestic violence. Domestic Violence is a general term to describe a range of behaviour. The Government definition of domestic violence is:
'Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality'. This can encompass, but is not limited to, the following types of abuse:
‘Controlling behaviour’ is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
‘Coercive behaviour’ is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.'
The definition includes so called 'honour’ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.
Measures in the Domestic Violence, Crime and Victims Act 2004 include:
- Significant Police powers to deal with domestic violence including making it an arrestable, criminal offence to breach a non-molestation order, with a penalty of up to five years in prison;
- Making common assault an arrestable offence;
- Stronger legal protection for victims by extending the use of restraining orders - giving courts the power to impose a restraining order where the defendant has been acquitted but the court believes an order is necessary to protect the victim from harassment;
- Providing Standards of Proficiency, binding on all criminal justice agencies, so that all victims receive the support, protection, information and advice they need;
- Allowing victims to take their case to the Parliamentary Ombudsman if they felt the Code had not been adhered to by the criminal justice agencies;
- Setting up an independent commissioner for victims to give victims a powerful voice at the heart of Government and to safeguard and promote the interests of victims and witnesses, encouraging the spread of good practice and reviewing the statutory code;
- Amending the Protection from Harassment Act 1997 to ensure that victims have their say if an application is made to vary or terminate a restraining order that is protecting them from abuse or harassment;
- Strengthening the civil law on domestic violence so that cohabiting same-sex couples have the same protection as heterosexual couples, and extending the availability of non-molestation orders to couples who have never lived together or have never been married.
12. Safeguarding Vulnerable Groups 2006, as amended by the Protection of Freedoms Act 2012
The Vetting and Barring Scheme
The Vetting and Barring Scheme (VBS) aims to ensure that unsuitable people do not work with children, whether in paid employment or on a voluntary basis.
The Protection of Freedoms Act 2012 introduced a revised Vetting and Barring scheme.
The scheme includes:
- Two barred lists maintained by the Disclosure and Barring Service. One list comprises persons barred from working with children and the other is for persons barred with working with Vulnerable Adults (trix please link to Adults Glossary)
- A person who is barred from working with children or Vulnerable Adults will be breaking the law if they work or volunteer, or try to work or volunteer with those groups;
- An organisation which knowingly employs someone who is barred to work with those groups will also be breaking the law.
If your organisation works with children or Vulnerable Adults and you dismiss a member of staff or a volunteer because they have harmed a child or Vulnerable Adult, or you would have done so if they had not left, you must tell the Disclosure and Barring Service.
The Vetting and Barring Service aims to help employers make safer recruitment decisions by identifying candidates who may be unsuitable for certain types of work, by way of criminal records checks. These can be standard or enhanced disclosure depending on the duties of a particular position or job. In addition to information about a person's criminal record, an enhanced disclosure contain details of whether a person is recorded as barred from working with children or Adults at Risk; this is not so with a standard disclosure.
The Disclosure and Barring Service Update Service allows individuals (if they choose to subscribe to it, and pay a small fee) to apply for a criminal record check once and then, if they need a similar sort of check again, to reuse their existing certificate, with their organisation checking online to see if it is still up to date, to avoid many repeat applications.
See also the Disclosure and Barring Service website.