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1.6 Legal Framework

AMENDMENT

This chapter was amended in January 2014. In Section 4, The Local Authority's Duty to Investigate, the requirement the requirement for Section 47 Enquiries to be initiated where a child/young person has contravened a ban imposed by a curfew notice made under the Crime and Disorder Act 1998 was removed, as this requirement has been repealed.


Contents

  1. Family Support and Prevention
  2. Children in Need
  3. Significant Harm
  4. The Local Authority's Duty to Investigate
  5. The Duties of Other Agencies and Persons to Cooperate
  6. Emergency Protection Orders
  7. Power of Entry to Save Life or Limb
  8. Police Protection
  9. The Public Law Outline
  10. Criminal Offences Against Children
  11. Interviewing Child Witnesses

1. Family Support and Prevention

1.1

Section 17 of the Children Act 1989 gives local authorities a general duty to safeguard and promote the welfare of children in need (see definition in Section 2) and to promote the upbringing of such children by their families, in so far as this is consistent with their duty to safeguard and promote the welfare of the child, by providing an appropriate range and level of services, including the provision of accommodation. Partnership with parents, consultation with children, involving extended families and the participation of parents and children in planning are the guiding principles for the provision of services to children and their families. Where children are Looked After by the local authority under voluntary or statutory arrangements, they should have contact with their families, unless the Court determines otherwise.


2. Children in Need

2.1

Under Section 17 (10) of the Children Act 1989, a child is in “need” if:

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


3. Significant Harm

3.1

The Children Act 1989 introduced the concept of significant harm as the threshold which justifies compulsory intervention in family life in the best interests of children.

3.2

Under Section 31(9) of the Children Act 1989, as amended by the Adoption and Children Act 2002:

  • Harm means ill-treatment or the impairment of health or development, including for example impairment suffered from seeing or hearing the ill-treatment of another;
  • Development means physical, intellectual, emotional, social or behavioural development;
  • Health means physical or mental health; and
  • Ill-treatment includes sexual abuse and forms of ill-treatment that are not physical.
3.3 Section 31(10) of the Children Act 1989 provides that where the question of whether harm suffered by a child is significant turns on the child’s health and development, his/her health or development shall be compared with that which could reasonably be expected of a similar child


4. The Local Authority's Duty to Investigate

4.1

Section 47 of the Children Act 1989 places a duty on local authorities to investigate in the following circumstances:

  1. When a Court in family proceedings directs that a local authority investigate a child’s circumstances (Section 37(1));
  2. Where the local authority is informed that a child who lives, or is found, in its area is the subject of an Emergency Protection Order (granted to a person other than the Local Authority) or is in Police protection (Section 47(1) (a));
  3. Where a local authority is informed, or has cause to suspect, that a child living in their area has suffered significant harm or is likely to suffer such harm (Section 47(1) (b)).
4.2 In such circumstances, the local authority's duty is to take such steps as are reasonably practicable (unless they are satisfied that they already have sufficient information about the child) to obtain access to the child or to ensure that access to him or her is obtained on their behalf by a person authorised by them for this purpose. These enquiries must be made with a view to enabling the local authority to determine what action, if any, to take with respect to the child (Section 47(4)).
4.3 Also, where a local authority has obtained an Emergency Protection Order under Section 44 with respect to a child, the authority must make (or cause to be made) such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child’s welfare (Section 47(2)).
4.4 These enquiries must be directed particularly towards establishing whether the local authority should make an application to the Court or exercise any of their other powers under the Children Act 1989 with respect to the child (Section 47(3) (a)).


5. The Duties of Other Agencies and Persons to Cooperate

5.1 Where a local authority conducts Section 47 Enquiries, it shall be the duty of other agencies listed below to assist them in those enquiries if called upon by the authority to do so.
5.2

The agencies concerned are:

  • Any local authority;
  • Any local education authority;
  • Any local housing authority;
  • Any health authority;
  • Other persons authorised by the Secretary of State for the purposes of this Section.


6. Emergency Protection Orders

6.1 Although, under Section 44 of the Children Act 1989, in an emergency the local authority, the NSPCC, a Police Officer or any other person can apply for an Emergency Protection Order, in practice, it is local authorities who will make the application. The Order will enable a child to be removed to other accommodation or to remain in a place where he/she is being accommodated (e.g. a hospital or foster placement). The Order may authorise the applicant to enter specified premises and to search for the child in respect of whom the Order is made or for another child if the Court has reasonable cause to believe that he/she may be on the premises (Section 48).
6.2 The Court may also issue a warrant authorising a Police Constable to assist the applicant, using reasonable force if necessary (Section 48(9)). Under Section 48(11), a Court may direct that a registered medical practitioner, registered nurse or registered health visitor, may accompany a Constable if he/ she so chooses.
6.3 Where speed is essential to protect a child and a warrant would take too long to obtain, the Police can enter premises without a warrant to save life or limb under Section 17 (1)(e) of the Police and Criminal Evidence Act 1984.
6.4 The conditions for granting an Emergency Protection Order are that the Court is satisfied that there is reasonable cause to believe the child is likely to suffer significant harm if he/she is not removed from, or does not remain at, a place or where a Section 47 Enquiry is being conducted and those enquiries are being frustrated by the unreasonable refusal of access to the child requested as a matter of emergency. If the Order is granted, the applicant should only remove the child if this is necessary to safeguard his/her welfare, and must return the child when the applicant considers it is safe to do so.
6.5 The Court may attach directions to the Order regarding assessment of the child and contact with parents or others.
6.6 An Emergency Protection Order lasts for a maximum period of eight days. The Court may, exceptionally, extend it for a further period of up to seven days if an application to extend is made and there is reasonable cause to believe that the child is likely to suffer significant harm if the Order is not extended. There is no appeal against the making of or refusal to make an Emergency Protection Order. However, after 72 hours from the granting of an Order the child, his parents, any other person who has parental responsibility for him/her, or any person with whom he was living immediately before the Order was made, may apply to the Court for its discharge.
6.7 Where the Court is satisfied that an Emergency Protection Order should be granted the Court may also include an exclusion requirement in the Order - see section on Exclusion Orders above.
6.8 Throughout the period of any Emergency Protection Order, parents should, as far as possible, be involved in discussion and planning for the child and there should be reasonable contact, if safe for the child.


7. Power of Entry to Save Life or Limb

7.1 A Police Constable may enter and search any premises, without the need for a warrant, for the purposes of saving life or limb (Police and Criminal Evidence Act 1984, Section 17).
7.2 This is a general power and may be used to gain access to premises in which a child is in serious danger.


8. Police Protection

8.1 Where a Police Constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, s/he may remove the child (under Section 46) to suitable accommodation, e.g. a relatives home, a hospital, a Police Station, a residential children’s home or other suitable place, and keep him/her there or take reasonable steps to prevent the child’s removal from any hospital or other place in which he/she is being accommodated. No child may be kept in Police Protection for more than 72 hours. As soon as possible, the Police should inform the local authority within whose area the child was found, the child (if he/she appears capable of understanding), his/her parents, any other person who has parental responsibility for him/her or any person with whom he/she was living immediately before his/her removal, of the steps that have been, and are proposed to be, taken in respect of the child and the reasons for taking them.
8.2 Whilst a child is being kept in Police Protection, the Police do not have Parental Responsibility for the child but should do what is reasonable to promote the child’s welfare. This includes allowing such contact with the child as, in the opinion of the Police, is both reasonable and in the child’s best interest.
8.3 On completing their enquiries the Police must release the child from Police Protection unless they consider that there is reasonable cause for believing the child would be likely to suffer significant harm if released. Under such circumstances, the Police should discuss the matter with the local authority with a view to the local authority applying for an Emergency Protection Order.
8.4 It is accepted by the West Midlands Police and Children’s Social Work Services in Solihull that Police Protection will only be utilised by the Police in exceptional circumstances and as a last resort. An example of this is where it is necessary for the Police to use their emergency powers to protect a child from immediate danger, i.e. where the urgency is so great that the child’s safety would be compromised by the delay involved in an application for an Emergency Protection Order.
8.5 NB It is important to note that a child cannot be removed from his or her parents' care without the consent of the parents without such action being taken. This includes a new born baby in the maternity hospital.
8.6 Under normal circumstances, any removal or other action required to protect a child — whether on a voluntary or compulsory basis — will be achieved by the Children’s Social Work Services.


9. The Public Law Outline

Since 1 April 2008, the Public Law Outline and revised statutory guidance in relation to Court orders has operated. Its objective is to minimise delay in completing Children Act cases involving the local authority (referred to as public law cases), so that, other than in exceptional or unforeseen circumstances, every public law case should be finally determined within a maximum of 26 weeks of the application being issued. Key aspects include:

  • The expectation that Social Work Assessments will have been carried out before Care Proceedings are issued;
  • Careful consideration given to the possibility of placing children with family or friends, whether as an alternative to proceedings or as a placement under a Care Order or Interim Care Order;
  • A letter to parents before proceedings are started to give them an opportunity to obtain legal advice and possibly to avert the need for proceedings;
  • Improved preparation of documentation to support proceedings.


10. Criminal Offences Against Children

10.1 Criminal proceedings can still be brought for a wide range of offences involving the abuse of a child.
10.2 The offence of cruelty, ill-treatment or wilful neglect of a child under 16 is set out in Section 1 of the Children and Young Persons Act 1933. The Offences Against the Person Act 1861 includes the offences of assault, wounding, threats to kill and grievous bodily harm. Other offences are set out in the Misuse of Drugs Act 1971 (supply of Class A drugs to a child), Protection of Children Act 1978 (indecent photographs of children), Child Abduction Act 1984 and Sexual Offences Act 2003.
10.3

The Sexual Offences Act 2003 introduced a number of new offences to deal with those who abuse and exploit children through prostitution, including:

  • Paying for the sexual services of a child;
  • Causing or inciting Child Sexual Exploitation;
  • Arranging or facilitating Child Sexual Exploitation;
  • Controlling a child prostitute.
10.4 The terms ‘Schedule One Offence’ and ‘Schedule One Offender’, which were commonly used for anyone convicted of an offence against a child listed in Schedule One of the Children and Young Persons Act 1933, are now longer used. The term was used to describe all those convicted of offences in Schedule One who were automatically identified as a risk to children by virtue of the conviction, and not by an assessment of future risk of harm to children. 
10.5 The term ‘offence against a child’ is now used in the Criminal Justice and Court Services Act 2000 and a new list of such offences is set out in that Act. The new list will trigger a further assessment to identify if the offender should be regarded as presenting a continuing risk of harm to children). Once an individual has been sentenced and identified as presenting a risk to children, agencies have a responsibility to work collaboratively to monitor and manage the risk of harm to others – see Persons Posing a Risk to Children - West Midlands Regional Multi-Agency Guidance.
10.6 Criminal proceedings can be brought against children provided they have reached the age of criminal responsibility, which is 10 years of age.


11. Interviewing Child Witnesses

11.1 Criminal proceedings can be brought against children provided they have reached the age of criminal responsibility, which is 10 years of age.
11.2 The Government publication, ‘Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children’, gives guidance to those conducting video-recorded interviews with child witnesses where it is intended that the interview be used in court proceedings. Whilst the focus of the document is on criminal proceedings, it is Solihull’s practice to follow the Guidance in joint investigations between the Police and Children’s Social Work Services, in order to avoid the unnecessary re-interviewing of a child.
11.3 The Guidance gives general advice on when, where and how to make a video recording which is intended to be used in criminal (and civil) proceedings, and sets out the legal conditions which must be satisfied before a court can accept a video recording of an interview with a child witness. It gives advice on preparation for, and conduct during, the interview and details the matters which need to be dealt with once the video recording has been made, including arrangements for the proper storage, custody and disposal of tapes.
11.4

Although it is not compulsory to adopt the Guidance, it should be applied, in the interest of good practice, in all cases. Non-compliance may result in the video interview being ruled inadmissible as evidence.

The guidance can be found at the Home Office Website, see Achieving Best Evidence in Criminal Proceedings (MoJ).

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