Course of Action Under the Children's Act

Assignment Title: Paula, a local authority trainee social worker, received a telephone call from Mrs Smith who was concerned about the welfare of Karen, aged six, who lives next door with her mother and father, Jim and Mandy. Mrs Smith reported that Karen appeared to be dirty and dressed in tatty clothes. She also claimed that Jim and Mandy went out to the local pub most evenings to play darts. Paula also received a communication from Karen’s primary school expressing concern about her dirty appearance, withdrawn nature and fear of adults. A teacher at the school had noticed bruising on her arm; together with several small puncture wounds.

Paula visited the family. Jim claimed that Karen hurt her arm when she fell. He also claimed that Karen had taken his darts without his permission and accidentally caused the puncture wounds herself whilst playing with them. Mandy confirmed her husband’s story. Paula tried to talk privately with Karen, but Karen ran out of the room in tears without saying anything.

Advise Paula, in no more than 2500 words, on the range of potential orders available under the Children Act 1989 in this situation and discuss the likely course of action that the local authority should pursue.

Date of submission: 16th February 2011

Word Count: 2,749

Where there is a dispute regarding a child’s upbringing, the court’s decision is to be made applying the welfare principle. [1] Although not defined within the Act, [2] it governs that the court’s paramount consideration [3] shall lie with the welfare of the child. [4] Similarly local authorities (LAs) are under a general duty to safeguard and promote the welfare of children [5] within the area who are in need and, so far as is consistent with that duty, [6] to promote the upbringing of children by their families. [7] A notable initiation from the Act is the modern conception of parental power as one of responsibilities rather than rights. [8] This is achieved by defining ‘parental responsibility’ (PR) in terms of ‘rights, duties and powers’. [9]

The relationship between LAs and the courts in applying their respective powers to determine childcare powers has been the subject of an ongoing and often volatile debate. [10] Prior to the implementation of the Children Act 1989 (CA1989) [11] the position was clarified. [12] It was “clear law” that a court could not intervene where a LA was acting in accordance with its statutory powers. [13] Similarly article 8 of the European Convention on Human Rights (ECHR) [14] imposes obligations to respect private and family life, [15] and significantly influenced state and family relationships. [16]

Similarly the Cleveland Inquiry [17] was influential, especially in relation to the LAs emergency powers and relationship with the courts. [18] Correspondingly the CA1989 aimed to be, “subject to supervision and control by the courts… ending tensions created by co existence of statutory powers… with prerogative powers of parens patriae vested in judges…” [19] 20This codified one statute with numerous enactments into which childcare law had become confusingly fragmented. [21]

The most contentious area covered by the Act concerns the orders available, seeking to mitigate the power of the state [22] whilst safeguarding the interests of the child. [23] Due to the sensitivity of children cases that may require an order to be implemented, the courts are advised by the CA1989 to adopt the least interventionist approach whenever it is necessary to do so. [24] Hale J held in Oxfordshire County Council v B [25] that “one should approach these cases on the basis that the less Draconian order was likely to be better for the child…” [26] This discourages unnecessary court orders, reduces conflict, promotes parental co-operation, [27] 28and keeps children and parents involved, which was established as being detrimental if not carried out efficiently. [29]

Additionally further guidance for LAs have been issued along with new procedures for care proceedings. [30] The Act draws a clear line between responsibility of the court and the LA in line with the scheme in the Review. [31] Furthermore, central to the philosophy of the Act is the belief that children are best looked after within the family, without recourse to legal proceedings. [32] Nonetheless care is not to be viewed negatively, LAs should gain greater control of cases only following proof of risk of ‘significant harm’, [33] and resulting in the order being sought in court proceedings whilst maintaining family links. [34]

With Karen’s puncture wounds, withdrawn nature and tatty appearance, there is sufficient reason to believe that she may be at risk to significant harm and is a child in need. [35] Under s. 47 Paula has a legal obligation to investigate, coinciding with her duty [36] as a social worker and acting on behalf of the state to protect children, as stipulated by the United Nations Convention on the Rights of the Child 1989. [37] Showcasing a balance between LAs decision-making has proven to show a conflict of interest, especially in regard to subsequent case law. [38]

The burden [39] placed on Paula being a social worker means she must implement her duties correctly and efficiently, [40] as well as co-operating with other agencies, [41] although courts cannot decide the form co-operation between authorities should take. [42] Importantly if significant harm is found there may be no need for legal intervention, where those with PR are willing to work with social workers in addressing their concerns, it may be decided that the child can be adequately protected at home. [43]

Under the CA1989 a child can only enter care as a result of a court order, there is clear criteria that governs when a court order can be made [44] beginning with the threshold criteria. [45] Reference must be made and courts must be satisfied with the application that LAs produce, as confirmed in W (A Child). [46] It is important to note that in certain circumstances the judge may have to act with caution when the threshold criteria is confused with fact and evidence of threshold documents. [47]

Establishing this criterion has proven to be complex as shown in M-W (A Child) [48] where the trial judge and Wall LJ had contradictory opinions in regards to the facts provided and a re-trial was commenced. Similarly there are evidential problems [49] even experts examining the same injuries can differ widely in their interpretation of them. [50] R v Cannings [51] highlights the dangers in placing excessive weight on the opinion of experts in the field. [52] For example, Karen may have caused the puncture wounds herself, however in the grand scheme it may be interpreted differently due to complaints made, her withdrawn nature and tatty appearance. Confirming that professionals can make misguided decisions, and are not exempt from this.

Following this the courts must enforce the paramountcy principle and decide if making an order is more beneficial than making no order at all, [53] this does not concern with which or how many orders to make. [54] Similarly the courts must be satisfied with the action plan [55] created by LAs before considering any application made. [56] This principle coincides with the significant concept initially proposed by the Human Rights Act 1998 of proportionality. [57] If the state is to intervene in a child’s life then it must be proportionate to the risk that the child is suffering, [58] unlike the case of K and T v Finland, where the state’s response was deemed disproportionate. [59] Paula must adhere to this concept when initiating Karen’s investigation, not only to remain within legal requirements but also to avoid unnecessary disruption or distress for Karen and her family.

Therefore the question facing Paula is whether the threshold criterion is satisfied. [60] Karen’s behaviour and appearance has expressed concerns from school and the neighbour, and her reaction when asked about the puncture wounds would justify Paula initiating an investigation. LAs do not need proved facts before they can carry out an investigation; suspicions are sufficient. [61] As Paula has been permitted by Karen’s parents to see and speak to Karen, the legislation leaves it up to the LA to make the next decision.

The least interventionist step that Paula is able to take is to make an application for a child assessment order. (CAO) [62] The idea for this order came from an inquiry into the death of an abused child. [63] Originally s. 43(1) sets out the general test, [64] CAOs were initially used as a basis to obtain further orders. [65] It has since been seen that an assessment of whether a child is suffering or is likely to suffer significant harm, [66] can normally only be made if the child is seen, examined and where appropriate interviewed, [67] alongside those with PR. [68]

The effect of this order is to place any person who is in a position of duty to produce the child and comply with court directions. [69] The court may grant this evidence seeking order [70] if the applicant has reasonable cause to suspect that the child is suffering or likely to suffer harm. An assessment of the child is necessary to determine this and is unlikely to be made without a court order. [71] CAOs are rarely made due to the order lasting seven days, [72] making it impossible to complete the assessment process successfully, it is more a framework for negotiation and is only obtained when this fails. [73] After an investigation observing the family situation Paula may organise a plan suited to the family’s needs, offering support in regard to her appearance, spending quality time with Karen and issues of neglect. There are many services available that could help the family without interfering fundamentally with their family life. [74]

Vitally it is worthy to note that when a LA removes a child from their family, although this may be an interference with the parents’ rights under a.8 the LA may have been required to remove the child under its obligations under a.8. [75] Demonstrating how rights interfere with the well being of protection for family life and LAs duties. [76] Following a recommendation from the Law Commission, the CA1989 was amended by the Family Law Act 1996, to allow courts to include an exclusion agreement for the adult rather than remove the child, to protect rights and avoid disruption. [77]

The Court of Appeal held that judges should be extremely cautious in finding that a failure to follow good practice amounted to an infringement of parent’s human rights, [78] there has to be substantial departure from good practice, which infects the fairness of proceedings. Munby J in Re L has warned of dangers of “terrible irony” that protecting procedural rights of parents may cause delay, which would harm the rights of the children. [79]

If Paula understands the harm facing Karen is more profound through her investigation, a supervision order (SO) may suffice. This would place Karen and her parents under the supervision of a social worker, [80] who’s duty would be “to advise, assist and befriend” them. [81] Although the LAs are not required to make facilities available, the order is pointless unless they are able to do so. The SO can last for a year, any shorter period specified [82] or may be extended up to three years. [83] Correspondingly to the decision found in Re L [84] , the whole ethos of a SO is based on parents’ consent and co-operation, [85] as they do not lose PR. [86] However the precise directions are for the supervisor, [87] the court may not accept an undertaking in conjunction with a SO [88] nor can conditions be imposed on it. [89]

SOs have long been criticised as social workers have minimal powers to impose conditions on children and parents, [90] and no direct way of enforcement. [91] Despite the increase in powers and the possibility of specific conditions being applied to the SO, [92] they have been described as “a complete waste of time and toothless”. [93] Although the aims behind Part III of the CA1989 are certainly laudable, it is difficult to argue with the principle that “prevention is better than cure” and that wherever possible children should be supported, this approach will only be successful if it can be suitably funded and resourced. [94]

The entirely voluntary nature of the parents’ participation makes the SO difficult to enforce, the only sanction for non-compliance is for the supervisor to return to court and apply to vary or discharge the order, or alternatively issue a fresh application for an emergency protection order (EPO) [95] or a care order (CO). [96] Evidently it may be months before care proceedings are finalised. [97] Pending this, the court may need to take interim steps to protect the child. [98] If Paula does not receive co-operation from Karen’s parents and suspects that it is necessary for the LA to intervene as a matter of urgency, especially in regard to the puncture wounds witnessed on Karen, Part V of the CA1989 provides two key mechanisms where the state may intervene in an emergency to protect the child. [99]

It is important to distinguish the difference between the mechanisms, police powers are not a court order, [100] they are often performed by inexperienced officers however contrastingly EPOs are sought by social workers from specialist child protection teams who work closely with specialist lawyers. [101] It has been held by the Court of Appeal that, in exceptional cases, removing a child in an emergency should always be carried out under the auspices of an EPO rather than relying on police protection. [102] Police protection is effectively the only way where a child can become looked after, and assessment by a LA or social worker is not required. [103]

There are thus two basic grounds on which an EPO can be made, [104] once they have been satisfied it can be obtained quickly, [105] very few are contested and it is rare for them to be refused. [106] Moreover it is immune from appeal within the first 72 hours and there is no right of appeal against an application to extend or discharge the order. [107] An EPO may have effect in the first instance for a maximum of eight days [108] only if the applicant has PR and is entitled to apply for a CO. [109]

The legal effects of an EPO are clearly set out in s. 44(4) CA1989. [110] However Munby J acknowledged EPOs are ‘in principle’ compatible with the ECHR even when notice was not sought from parents, but also stressed the ‘heavy burden of responsibility’ [111] on LAs applying for and courts granting such orders. [112] Unless Paula is able to establish that Karen is at grave risk to significant harm, this approach would seem too interventionist given the facts, unless proven that Karen would benefit from this order than any other order available. Due to Jim and Mandy’s co-operation thus far, it would seem inappropriate unless they hindered investigations radically. [113]

Failing this, Paula may resort to the most interventionist approach, the CO, [114] unlike a SO, a CO is not time limited to three years and can protect the child over a longer period, it will only cease when a court orders. [115] However in Re J [116] per Wilson LJ stated that “only exceptional cases justifying an order under s. 91(14) without limit of time should be made in respect of cases at the egregious end… protecting the child from further ill-founded conflict.” [117] Importantly LAs cannot take a child into care except for applying for a CO. [118]

If voluntary arrangements and the provision of services cannot adequately protect Karen, [119] Paula may apply for a CO as a last resort, Bainham stated “COs are very much the ambulance at the bottom of the cliff while the support services are the (however inadequate) fence at the top.” [120] Paula must establish that applying for a CO would safeguard and promote Karen’s welfare, as courts cannot make COs on their own motion or expect LAs to take proceedings. [121]

In Humberside County Council v B, [122] Booth J established that the concerned child’s welfare was paramount, [123] and that the designated authority has PR for the child in conjunction with the parents. [124] This is why COs are characterised as the most interventionist approach as parents lose PR which as discussed conflicts with their a.8 right, as the authority can stipulate how far they are able to exercise this. [125] Similarly it is up to the courts discretion on whether the child is able to return to their parents after the CO implementation. [126]

The law has to balance two countervailing interests (a) the protection of children and (b) family privacy. [127] The 1989 Act rather than effecting a “privatisation” of the family instead represents a refocusing of state resources in the sense that, although compulsory intervention is subjected more closely to court scrutiny, there are wider powers to act once the statutory conditions for intervention are made out. [128] Equally another problem faced is that even after the re-focusing, many LAs are cash strapped and face difficult choices when considering their obligations both to protect children and to offer support to famil