These Family Law pages were originally prepared by the Law Department at St. Brendan's Sixth Form College. They are no longer being updated and no responsibility is accepted for them by St. Brendan's College or LawTeacher.net
During the first half of the twentieth century the conventional wisdom was that parents knew best, and only in the most extreme cases would parents or society at large tolerate any interference in their treatment of their children. An informed estimate in the mid-seventies suggested that as many as 700 children a year actually died at their parents' hands, however, and several high-profile cases led to a re-assessment of the policy. The most notorious case was probably that of Maria Colwell, a Sussex 7-year-old beaten to death by her stepfather in 1973. His conviction for murder was subsequently reduced to manslaughter and his sentence to eight years' imprisonment, but a formal enquiry led by Thomas Field-Fisher QC criticised the social workers (and the NSPCC) for poor communications and other systems failures. The Secretary of State then reminded local authorities that "the blood tie is not absolute", and that there should be a thorough investigation of the parents (including step-parents) before a child in care is returned to the family.
More than ten years later, in 1985, 4-year-old Jasmin Lorrington (Jasmin Beckford) was battered to death by her father after months of imprisonment and appalling cruelty in her London home. Her father was sentenced to 10 years' imprisonment for manslaughter and her mother to 18 months' for cruelty and neglect, and an enquiry under Louis Blom-Cooper QC criticised almost everyone involved, from social workers to doctors, teachers and magistrates. The enquiry report emphasised that the child's interests, not the parents', must come first in care proceedings and similar matters, and stressed the importance of regular (monthly) health checks whenever an abused child is returned to his or her natural family.
Eventually these and several similar cases led to a much more interventionist approach, but the pendulum began to swing back when more than a hundred Cleveland children were removed from their homes over a four-month period in 1987 after two doctors had diagnosed sexual abuse within the family. An enquiry led by Butler-Sloss LJ subsequently cast doubt both on the accuracy of the diagnosis and on the appropriateness of the social workers' response. A further push was given to the pendulum in 1992 by Lord Clyde's report into the removal of nine children from their Orkney homes in dawn raids the previous year on suspicion of sex abuse during satanic rituals: the report said the social workers had failed to keep an open mind.
R v Kouao & Manning (2001) unreported
A couple DD were convicted of the murder of D1's great-niece Anna Climbie, aged 8, who died from hypothermia and malnutrition after almost a year of serious physical abuse and neglect. During this period Anna had been examined by two consultant paediatricians and her case had been referred to a police child protection officer and social workers in three different boroughs, but through a combination of systems failures and human errors no effective action had been taken to protect her. (News reports 13/1/01)
The philosophy underlying present-day child care legislation is therefore that primary responsibility for the care and upbringing of children rests with their parents rather than with the state, even though the organs of the state have powers to intervene to prevent harm. The powers of the state are exercised mainly through local authorities, and through their social services departments in particular. In the heyday of interventionism a local authority could act more or less as it saw fit, making its own decisions as to what might be best for a child. But the virtual abolition of local authorities' access to the wardship jurisdiction, the need to obtain a court order before taking any major step, the requirement to show a risk of "significant harm" when seeking a care or supervision order, and the "no order" presumption applied by the courts, combine to limit their powers quite considerably. The stress nowadays is on inter-agency cooperation, and social workers are expected to consult teachers, doctors, police and probation officers, and anyone else involved with a particular child before making decisions affecting that child's future.
When the Children Act 1989 was first enacted, Lord Mackay LC set out in an article in the New Law Journal the importance of limiting the discretion of local authorities and other state agencies in matters concerning the upbringing of children. It should not be lawful for children to be removed from their families, he wrote, simply because the court thought the state would do a better job of bringing them up than their parents. If that were the case, the threat to poor families and to minority groups, whose views of what is good for a child might not coincide closely with those of the majority, would be all too apparent.
One possible response to some parents' cruelty to their children lies in the field of criminal law: subject to a defence of lawful chastisement, a parent who physically abuses his or her children can be charged with the appropriate kind of assault, and because of the "duty relationship" between parent and child a parent can also be liable for injuries caused by neglect.
Children & Young Persons Act 1933 s.1(1)
If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons or exposes him ... in a manner likely to cause him unnecessary suffering or injury to health ... that person ... shall be liable ... to imprisonment for any term not exceeding ten years ...
R v Gibbins & Proctor (1918) 13 Cr App R 134, CCA
D1 and his mistress D2 were convicted of the murder of D1's seven-year-old daughter Nelly; they had starved the child to death and the jury found this to have been their intention (though P, who hated Nelly, was clearly the moving force). The Court of Criminal Appeal upheld the conviction: where there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens rea is present.
R v Derriviére (1969) 53 Cr App Rep 637, CA
A man F appealed unsuccessfully against a 6-month prison sentence for assaulting his son B12 and causing him actual bodily harm. He had struck B several times in the face with his fist, causing extensive bruising and some bleeding in the mouth, and had (perhaps) banged his head against a wall, as a punishment for deliberate disobedience. It was not F's first offence: he had previously been convicted of a similar assault on his daughter, and a suspended sentence imposed on that occasion was also activated.
R v Mackie (1973) 57 Cr App R 453, CA
D threatened his three-year-old stepson with a severe thrashing for some minor misbehaviour. The boy tried to run away but fell downstairs, dislocated his neck, and died. D was charged with manslaughter, and his conviction was upheld by the Court of Appeal. Even though D was in loco parentis and could lawfully administer reasonable punishment, the jury had evidently found as a fact that the punishment he was threatening was excessive.
R v Harris & Harris (1993) unreported
Two parents were found guilty of the manslaughter of their daughter after refusing to allow doctors to treat her diabetes with insulin. Their duty to act arose from their relationship: parents have a duty to take proper care of their children, and if they fail to do so they can be criminally liable for the consequences (Times news report 29/10/93).
A v United Kingdom  2 FLR 959, Times 1/10/98, ECHR
An 8-year-old boy A, admittedly very badly behaved, was caned by his stepfather S on numerous occasions. S was acquitted of assault causing actual bodily harm, but the European Court of Human Rights said the caning (having reached the necessary level of severity) violated A's right not to be subjected to inhuman or degrading punishment.
In May 1999 a Scottish father was convicted of assault after spanking his eight-year-old daughter when she refused to let the dentist treat her toothache. The spanking comprised six or seven smacks with his hand on the girl's bare bottom, but was hard enough to leave bruises and was considered excessive by several witnesses. The sheriff said this went beyond the scope of the reasonable chastisement a parent is allowed to use; the father was admonished (a Scottish procedure with no equivalent in English law) and struck off the register of teachers. (Times news report 20/5/99)
This chapter is concerned more with the specific powers and duties of local authorities, acting on behalf of the state, in protecting children at risk of harm. These are set out comprehensively in Parts II, IV and V of the Children Act 1989, which reinforces the primary role of the child's natural family and the state's duty to support rather than take over the child's upbringing. Even the order in which the Act deals with the various powers and duties carries this message.
Part III of the Act deals with the support which may or must be provided by local authorities to support "children in need" and their families. Under s.17, the local authority has an obligation to safeguard and promote the welfare of children within their area who are in need, and (so far as possible) to promote the upbringing of such children by their families, by providing a range of services appropriate to those children's needs.
According to s.17(10), a child is "in need" if he is unlikely to achieve or maintain a reasonable standard of physical or mental health, or of physical, intellectual, social or behavioural development (or if his health or development would be impaired) without such services, or if he is disabled (that is, if he is blind, deaf or dumb or suffers from any mental disorder or is substantially and permanently handicapped by any illness, injury or congenital deformity).
The services provided might for example include the identification and assessment of children in need, preventing neglect and abuse, providing suitable accommodation for (potential) abusers to reduce the need for legal proceedings, reintegrating children with their families, providing home help services, providing assistance with travelling, and establishing "family centres" offering advice and guidance to children and parents and/or social and cultural activities. Most services are provided directly, but cash help can be given in some circumstances. A local authority must facilitate the provision of similar services by voluntary organisations such as Barnardos or the NSPCC, and may delegate some of its powers to such bodies.
Local authorities have a duty to provide day care from pre-school children in need, and after-school and holiday care and activities for all children in need, and may provide these services for other children as well. Any local authority that failed to provide such facilities could well find subsequent applications for care and supervision orders under Part IV of the Act (below) met with the assertion that the child's welfare could be equally well protected by support under Part III.
Local authorities also have a responsibility for registering and monitoring child minders for children under 8. The definition initially covers anyone who looks after a child for reward for more than two hours in a day, whether in a house or elsewhere, but excludes the child's relatives and an employed nanny who care for a child in the child's own home. (The legal position of casual baby-sitters, of whatever age, is not at all clear!) The local authority may refuse registration to anyone it thinks unfit, and if it grants registration must impose conditions as to premises, numbers of children, and various other matters.
Local authorities must provide accommodation for children in need, or ensure that suitable voluntary agencies do so. This duty under s.20 replaces what was formerly known as "voluntary care", and even the name is changed: such children are not described as being "in care" but are said simply to be "looked after" by the local authority.
Children Act 1989 s.20(1)
Every local authority shall provide accommodation for any child within their area who appears to them to require accommodation as a result of:
- there being no person with parental responsibility for him, or
- his being lost or having been abandoned, or
- the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
In practice it is paragraph (c) that is most important: children provided with accommodation under this section are commonly those whose parents have died or are seriously ill.
The duty to provide accommodation extends to any "child in need" up to the age of 16, and to any young person between 16 and 18 if the local authority considers he "is likely to be seriously prejudiced if they do not provide him with accommodation". Local authorities have the power (but not the duty) to provide accommodation for anyone up to 21 if they consider that this would safeguard or promote his or her welfare. The accommodation can be with a foster-parent, who may or may not be a friend or relative of the child, or in a children's home (or a community home for those over 16).
The name "voluntary care" has gone but the voluntary nature of the provision remains: the local authority cannot provide accommodation for a child under 16 against the wishes of any person with parental responsibility who is willing and able to provide accommodation, and any person with parental responsibility may remove such a child at any time without even giving advance notice. If the child is over 16, however, the local authority may (and in some cases must) provide him with accommodation if he so requests, in spite of any objections that might be raised by his parents or guardians.
Any local authority intending to provide accommodation for a child of any age must try to ascertain the child's own views and give due consideration to them, having regard to the child's age and understanding. Under Regulations made following the Act, the terms of a child's accommodation under s.20 should (where possible) be based on a written agreement between the local authority on the one hand and on the other a person with parental responsibility, or the child's carer, or (where the child is over 16) the child himself.
Under s.22(3), a local authority looking after any child has a duty to safeguard and promote his welfare, and to make use of such services available for children cared for by their own parents as appears to the authority reasonable in his or her case. More generally, under s.22(4) the authority must, before making any decisions with respect to any children whom they are looking after, ascertain so far as is practicable the wishes and feelings of the child, of his parents, of anyone else who has parental responsibility, and of any other relevant person. (The same duties also apply in relation to children in care.)
Part IV of the Act deals with care and supervision orders, but no such order can be made unless three conditions are satisfied:
- An application must be made by the local authority or some other "authorised person".
- The "threshold criteria" in s.31(2) must be met.
- The court must be satisfied that the child's welfare requires such an order.
These are three separate criteria, and none of them can be regarded as trivial.
Application by the local authority
An application for a care order or a supervision order may be made by any local authority or by any other person authorised by the Secretary of State: in fact only the NSPCC and its officers have been so authorised. Such an application may be made in proceedings brought by the authority for that purpose, or in any other family proceedings, but without such an application the court has no power to make an order.
If in a particular case the court believes a care or supervision order would be appropriate, but cannot make such an order because no application has been made, it has power under s.37 to direct the local authority to carry out an investigation into the child's circumstances. The local authority is then obliged to conduct the investigation and to consider whether or not to apply for an order under Part IV, and must inform the court of its reasons if it decides not to apply, but the court still has no power to make a care or supervision order without a formal application.
Although a local authority can still technically apply to have a child made a ward of court, s.100(2) prevents its doing so to obtain a care or supervision order (or for any purpose in respect of a child already in care). Similarly, s.100(3) requires the leave of the court before a local authority can seek any order in the court's "inherent jurisdiction, and such leave will not be granted unless the court is satisfied that the desired result could not be achieved in any other way, and that the child is otherwise likely to suffer significant harm.
In any proceedings in which a care or supervision is sought, the court will appoint a litigation friend (normally a qualified social worker independent of the authority seeking the order) to safeguard the child's interests, unless the court is sure this is unnecessary. The litigation friend has a duty to appoint a solicitor to act for the child (if he does not already have one), to ascertain the child's own wishes insofar as his age and understanding allows, and to make a report to the court recommending an appropriate course of action.
Devon CC v G  FLR 1159, CA
LA sought to terminate M's access to a child in care, hoping to put him up for adoption. The guardian ad litem recommended that M be allowed just two further visits, but the magistrates misunderstood and continued M's access indefinitely. The judge quashed the magistrates' order but made no new order, thereby allowing the current situation to continue. Allowing LA's appeal, Arnold P said it is well establish that if magistrates have departed from a clear recommendation in a welfare report, and give no justification for so doing, an appeal will be allowed. Exactly the same principle should apply to any departure from the recommendations of the guardian ad litem.
Assuming an application has been made, the court must next satisfy itself that the "threshold conditions" for making a care or supervision order - they are the same in both cases - have been met. The conditions apply even if the parties to the proceeding all agree to the making of an order, though the court's enquiries in such cases may be less rigorous than in cases where the application is opposed.
Re G (Care proceedings)  2 FLR 69, Wall J
LA applied for a care order for B8; M and F did not contest the application and agreed B would be likely to suffer significant harm if returned to F's care. LA nevertheless wanted the judge to find as fact that F had neglected and abused B, and sought to introduce in evidence statements made by F to the police, which had been excluded as "unreliable" in unsuccessful criminal proceedings against F. The judge said the court must be satisfied by evidence that a child is likely to suffer significant harm as a result of the care (or lack of care) given by the parent against whom a care order is sought: no agreement between the parties can deprive the court of its duty to satisfy itself that the necessary criteria are met, although where there is agreement the enquiry need not be as thorough. He therefore invited LA to submit evidence to support its case, but declined to admit the statements made to the police.
A court may only make a care or supervision order if it is satisfied:
- that the child concerned is suffering, or is likely to suffer, significant harm, and
- that the harm, or likelihood of harm, is attributable to
- the care given to the child, or likely to be given to him if theorder were not made, not being what it would be reasonable to expect aparent to give to him; or
- the child's being beyond parental control.
Note that both (a) and (b) are required, but that (b) may be either (b)(i) or (b)(ii).
These conditions raise a number of difficult issues. First, there have been a number of cases on the meaning of the words "is suffering" and "is likely to suffer".
Newham LBC v Attorney-General  1 FLR 281, CA
M was mentally ill and neglected both herself and her baby, and LA sought a care order (initially via the wardship jurisdiction). The judge found the child was likely to suffer harm if a care order was not made, and made an order accordingly. GM's appeal failed: "likely to suffer" does not demand a balance of probabilities, and the judge's view was reasonable on the evidence. Obiter, Parliament clearly intended the 1989 Act to protect the child, and strict legalistic analysis of the text is not normally appropriate.
C v C (Child abuse: access)  1 FLR 462, Latey J
In proceedings to review F's access to his daughter G6 after allegations of abuse, F admitted that they had indulged in raucous horseplay which was very physical, rolling about together on the floor and tickling one another all over (sometimes inside clothes, but not in the genital area), and had played together in the bath. The judge accepted that this had not been for F's own sexual gratification and that he was now aware of the inappropriateness of such behaviour, and ordered that his contact with G continue subject to supervision.
Re W (Residence order)  1 FCR 75, CA
A circuit judge took children B9 and G6 from M, with whom they had been living, and made a residence order in F's favour, on hearing evidence that M and her boyfriend had allowed the children to see them naked and had sometimes shared baths with them. Allowing M's appeal and ordering a rehearing before a High Court judge, Butler-Sloss LJ said a balance has to be struck between family behaviour seen by the participants as perfectly natural - nudity in the house and communal bathing are classic examples - and the sincerely held views of others (including the judge in this case) who are shocked by it. In a happy and well run family, how its members behave in their own home is their business and no one else's, but when their family life becomes the subject of legal proceedings, their behaviour may be misunderstood.
There are also very wide differences of opinion as to the nature and amount of the corporal punishment a parent might reasonably inflict before it should be regarded as ill-treatment.
R v Derriviére (1969) 53 Cr App Rep 637, CA
This case is discussed above. A West Indian F appealed unsuccessfully against a 6-month prison sentence for assaulting his son B12 and causing him actual bodily harm. He had struck B several times in the face with his fist, causing extensive bruising and some bleeding in the mouth, and had (perhaps) banged his head against a wall, as a punishment for deliberate disobedience. Widgery LJ said standards of parental correction are different in the West Indies from those acceptable in England, but in England it is English law that applies and according to that law the chastisement was excessive.
Re H  2 FLR 12, Judge Callman
Two Vietnamese children, now aged 8 and 6, were taken into care and placed with foster parents with a view to adoption, and LA sought directions in wardship as to their future. There was evidence that their mother M had punished them with a stick and a slipper, sometimes hitting them on the head. The judge accepted that in oriental culture, chastisement with sticks (going beyond that acceptable in western society) is common practice. He said M's parental behaviour should be set first against the reasonable objective standards of her own culture so long as these do not conflict with the minimum standards required in England, and remembering always that the child's welfare is paramount. On the particular facts, he made an order for long-term foster care with a view to adoption.
C v Harris  SC 278, Court of Session (Scotland)
A mother C appealed against the sheriff's decision to refer her four children to the children's panel. C's nine-year-old daughter D had hit a four-year-old neighbour, and when C smacked D for this, D swore at C. C then took D indoors and hit her once with a belt, accidentally hitting D's leg instead of her bottom. Allowing C's appeal, the court said C's blow in anger did not in itself remove the defence of reasonable parental chastisement, and in the circumstances C had clearly committed no crime.
In January 2000 the Government published a consultation document setting out various options for legislation on the physical punishment of children by parents and others. The government is determined that parents should retain the right to smack, but suggests outlawing the use of implements and/or any punishment causing actual bodily harm, particularly to the head. There is also some discussion as to whether the right to smack should be restricted to parents, or whether it should extend to others in loco parentis (e.g. grandparents, baby-sitters) with the parents' express or implied consent.
Third, the harm must be "significant". In relation to health and development, s.31(10) requires comparison with what could be reasonably expected of a similar child, and guidelines issued by the Department of Health suggest that minor shortcomings in a child's health or minor deficits in development should not require compulsory intervention unless cumulatively they are having (or are likely to have) a serious and lasting effect. There is apparently no formal guidance as to what might be "significant" ill-treatment - presumably it depends on the child's age and state of development - but the question seems to have caused surprisingly few problems. Perhaps, as Prof. Cretney has suggested, the explanation is that any doubt as to whether harm is significant can in practice be resolved by applying the welfare test.
Fourth, the harm must be attributable to the care or lack of care given by the parent or other primary carer (not being what a reasonable parent would give), or alternatively, because the child is beyond parental control (which may be the parents' fault or the child's).
Northamptonshire CC v S  1 FLR 554, Ewbank J
Two children were taken into care following physical abuse and placed with foster parents. F sought a residence order in favour of his mother, but his application was opposed by M, LA and the guardian ad litem. F's application was dismissed and his appeal failed. The judge said the statutory requirements that the child "is suffering" significant harm from his carers refer to the situation immediately before the protection procedure was implemented and to those caring for him at that time; the capabilities of other potential carers are irrelevant until the threshhold has been crossed.
Having crossed the threshold the court must also apply the welfare test, using the standard checklist in s.1(3), and may not make a care or supervision order unless it considers that doing so would be better than making no order at all. A number of decisions have made it clear that the welfare test is quite separate from the threshold: even where a child is suffering significant harm, his welfare does not necessarily require him to be removed from his family.
Humberside CC v B  1 FLR 257, Booth J
LA applied for an interim care order in respect of a small child B who had been neglected and possibly abused, currently living with an aunt A. The justices made such an order, but B appealed (by her guardian ad litem) and her appeal was allowed. The judge said the magistrates had clearly been satisfied on the evidence before them that there were reasonable grounds for thinking B was at risk of significant harm if she returned to her parents, but had not then given proper consideration to the quite separate question of whether B's welfare required them to make an order. She remitted the case to the magistrates for further consideration, and made a prohibited steps order forbidding B's removal from A's care in the mean time.
Re M (Appeal) (No.2)  1 FLR 59, CA
A girl G6 alleged physical abuse by M and SF, but medical evidence tended to support their explanations of G's injuries. LA applied for a care order, but the judge was not satisfied on the facts that G had been beaten or starved; M should have sought medical help sooner, and the threshold conditions were met, but it would not be in G's best interests to make a care order. Instead he made a residence order in M's favour subject to her living with her in-laws, and LA's appeal was dismissed: the judge having crossed the threshold had properly applied the welfare test, and his conclusion was not plainly wrong.
In order to ensure that the court has the best available evidence when hearing applications under Part IV of the Children Act 1989 (and also under Part V), s.98(1) of the Act provides that no person called to give evidence is excused from doing so (or from answering a particular question) because his answers might incriminate him. To protect the right of freedom from self-incrimination, however, s.98(2) provides that no statement made in such proceedings may be used as evidence against its maker in any criminal proceedings except for perjury.
When an application has been made under s.31(2), the court may make any one of the following orders, but not more than one except as indicated:
- a care order or a supervision order (regardless of which was initiallyapplied for), but not both;
- an interim care order or interim supervision order effective for nomore than eight weeks (but renewable thereafter for four weeks at atime), where the proceedings are adjourned and/or the court directs thelocal authority to investigate the child's circumstances;
- a residence order (and an interim supervision order too ifappropriate), a contact order, a prohibited steps order and/or aspecific issue order under s.8;
- no order at all.
No care or supervision order can be made in respect of a young person over 17, nor in respect of a 16-year-old who is already married.
Re T (Care order: conditions)  2 FLR 423, Times 5/5/94, CA
LA sought a care order for the eighth child T of an Asian family, butthe judge made a 12-month supervision order subject to variousconditions. LA appealed against the decision, and the guardian ad litem(who had originally supported the parents) now supported LA subject toT's being allowed to live with his family. Dismissing the appeal, theCourt of Appeal said conditions attached to a supervision order shouldalways be included as part of the order. However, the court cannot makea care order subject to conditions as to residence; there should be asupervision order and a residence order (with conditions included) infavour of the parents.
Effect of a care order
When a care order is granted the local authority acquires limited parental responsibility: it can exercise most of the powers of a normal parent (subject to a general duty under s.22 to take into account the views of the child, his parents and other interested parties), but cannot appoint a guardian for the child, consent or refuse consent to his adoption, or cause him to be brought up in a different religion.
The parents' parental responsibility is not removed by a care order, but the local authority has power under s.33(3) to determine the extent to which they may be permitted to exercise that responsibility. Thus, for example, the parents retain the right to manage the child's property, and are normally allowed to make parental decisions as to his education, and (if appropriate) consent to his marriage under 18.
While a care order is in force, no one may change the child's surname, nor remove him from the United Kingdom (except the local authority for up to a month), without the consent of the court.
A care order automatically discharges any existing s.8 order or supervision order, and terminates any wardship.
Contact with children in care
Under s.34(1), the local authority must allow a child in care reasonable contact with his parents and/or guardians, and if there was a residence order in force immediately before he was taken into care, with the person in whose favour that order was made. The authority may of course allow contact with other friends and relatives too, but has no statutory obligation to do so. Contact may be refused for up to seven days where this is urgently necessary to protect the child's welfare, but Regulations require the authority in any such case to give written notice to the child (if he is able to read it) and to any person whose contact is being refused.
Before making a care order, the court is required by s.34(11) to consider the local authority's arrangements for contact and allow the parties to comment on them. If the local authority wishes to prevent contact between the child and a person who would otherwise be entitled under s.34(1), or if there is any disagreement as to what constitutes "reasonable contact", the court has powers to make such contact orders (or no-contact orders) as it thinks appropriate. On the application of the local authority or the child the court can make, vary or discharge any contact order; on the application of a person entitled under s.34(1) or (with leave) of any other person it can make, vary or discharge an order regulating the child's contact with that person. (Thus, for example, one parent cannot apply for a termination of the child's contact with the other.)
West Glamorgan CC v P  2 FLR 369, Sheldon J
LA sought an order refusing contact to M, who had for some time been apatient in a psychiatric hospital and had not in fact had any contactwith the child, and sought an interim no-contact order pending the finalhearing. The magistrates took the view that they had no power to make aninterim order, but the judge allowed LA's appeal: s.34(3) gives thecourt complete discretion to make whatever form of contact order bestmeets the child's welfare.
Re B (Care order: review)  1 FLR 421, Thorpe J
The magistrates made a care order, with contact to parents for as longas the children wished and a requirement that this be reviewed after sixmonths. LA's appeal was allowed and the additional requirement removed:s.34(7) allows the court to attach conditions to a contact order for achild in care, and s.34(9) allows it to vary or discharge suchconditions on the application of the local authority, but themagistrates' review requirement was ultra vires.
Re B (Care: contact)  1 FLR 543, CA
LA applied to terminate contact with the parents, believingrehabilitation with the family was no longer possible and intending toplace the child for adoption. The judge agreed and made an orderaccordingly, but the Court of Appeal allowed an appeal by the guardianad litem. Butler-Sloss LJ said the court cannot normally review a localauthority's exercise of its statutory discretion in child cases (see A vLiverpool CC below), but the terms of s.34(1) may require the authorityto justify its plans insofar as they exclude parent/child contact: ifthat were not so, there would be no redress even if the authoritydisregarded the child's welfare.
Re S (Care: contact order)  2 FLR 222, Times 12/1/94, CA
A child S was admitted to hospital with serious non-accidentalinjuries. The judge made a care order with reasonable contact to theparents, but ordered that the question of contact with parents andgrandparents be reviewed by the court six months later. Allowing LA'sappeal, the Court said the provisions of s.34 made the order for contactsuperfluous, and the order for a review was an unjustified interferencein the details of LA's plan for S's care and reintegration with hisfamily.
The conditions under which the court can make a supervision order are the same as those for the making of a care order, though it is worth noting that a supervision order is among the orders that can be made by the youth court in criminal proceedings. A supervision order lasts for one year, but may be extended to three, and places the child under the supervision of a social worker who is under a duty to advise, assist and befriend him or her. It does not in itself confer on the supervisor any right to enter the child's home or to remove him if he appears to be further abused.
Unlike a care order, which vests (shared) parental responsibility in the local authority, a supervision order leaves parental responsibility entirely with the parents and gives the local authority has no powers to limit their exercise of it. The choice between the two orders is not therefore a matter of chance: it is important for the court to ensure that the order made is the right order in the circumstances.
Re D (Care or supervision order)  2 FLR 423, Ewbank J
After his two-month-old child died from severe injuries, F wasacquitted of murder but convicted of cruelty and imprisoned for 18months. On F's release he had a child by a woman M; the child's guardianad litem sought a care order but F and M (supported by LA) argued for asupervision order only. The judge said the decisive factor is what willbest protect the child: where a parent has a history involvingnon-accidental injury leading to death, a care order rather than asupervision order is appropriate.
Re T (Care or supervision order)  1 FLR 103, CA
Four of M's children had already been taken into care because of M'sincompetence as a parent. When a fifth child T was born LA obtained acare order, but left T with M on a day-to-day basis. M's appeal failed:the evidence of what had happened to the other children was enough toestablish a risk of significant harm to T, even though M had cared forhim properly up to now, and the magistrates had not been wrong ingranting a care order rather than a supervision order. Bracewell J saidthe nature of a supervision order is to help and assist a child whoseparents have full responsibility for his care and upbringing: it doesnot give the local authority parental responsibility, and the limits ofsuch an order do not begin to address the problems of parents whoexercise their parental responsibilities in a way that merits criticism.A care order, on the other hand, places on the local authority apositive duty to ensure the child's welfare and protect it frominadequate parenting.
While a supervision order is in force, the supervisor is required to follow such steps are as reasonably necessary to give effect to the order. The order may require the child to comply with the supervisor's directions as to where he lives, to report regularly to a certain place or person, and to take part in particular activities, but the supervisor cannot require a Gillick-competent child to undergo medical or psychiatric treatment against his wishes. The order may also include conditions to be met by the child's parent or the person with whom he lives, but only with that person's consent.
Leeds CC v C  1 FLR 269, Booth J
The stipendiary magistrate made a residence order in favour of F, asupervision order in favour of LA, and a contact order in favour of Mwith a direction under s.11(7) that contact be supervised by the localauthority. The judge granted certiorari to quash the orders for lack ofjurisdiction, although by this time the children had been taken intocare and the orders automatically terminated thereby. But obiter, themagistrate should have made a family assistance order rather than anorder under s.11(7)(d): the local authority is not among the personsnamed in s.11(7)(b) against whom such an order can be made.
Discharge of care and supervision orders
A supervision order comes to an end after a year unless it is renewed; a care order terminates when the child reaches the age of 18. Either kind of order may be discharged by the court before that date, however, and either is discharged automatically by any subsequent residence order.
Under s.39 of the Act, the child, a person with parental responsibility, or the local authority may apply for the discharge of a care order. The local authority is required by s.26(2) to review the circumstances of each child in care at least every six months, and to consider whether to apply for the care order to be discharged: this is the most common reason for discharging a care order.
The child, a person with parental responsibility, the supervisor, or a person with whom the child is living and on whom a condition has been imposed, may apply to the court for the variation or discharge of a supervision order. (A care order cannot be varied.)
Any other person wishing to have a care order or supervision order discharged - for example, an unmarried father without parental responsibility, or the child's foster-parents, grandparents or other relatives, may (with the leave of the court except in the father's case) seek a residence order. If such an order were granted, it would automatically discharge the care or supervision order and confer limited parental responsibility on the applicant.
Any variation or discharge of a care or supervision order is subject to the welfare test, and will be permitted only if the court is satisfied that it is in the child's best interests, but a care order can be replaced by a supervision order without the need to cross the threshold a second time.
Education supervision orders
On the application of a local education authority (which is technically distinct from the "local authority" empowered to seek a care or supervision order, but in practice is normally the same) the court may make an education supervision order in respect of a child (other than a child in care) who is of compulsory school age but is not being properly educated. The supervisor then has a duty to advise, assist and befriend the child and to give directions to the child and his parents in such a way as to ensure the child is properly educated.
In giving such directions the supervisor must take account of the wishes of the child and his parents, but if the directions are disregarded the supervisor may need to take further steps. In an extreme case, a child whose development is being significantly harmed by the inadequacy of his education may even be taken into care.
Since a final care order confers parental responsibility on the local authority, it is essential that such an order be made only with the full facts before the court. Courts are therefore encouraged to make interim care or supervision orders in circumstances where further investigation is needed.
C v Solihull MBC  1 FLR 290, Ward J
The case is described above. Allowing an appeal by LA and the guardianad litem against a final residence order made by the family proceedingscourt, the judge said planned and purposeful delay can sometimes bebeneficial. The order should have been interim and conditional on theparents' cooperating with an LA assessment of their suitability.
Hounslow LBC v A  1 FLR 702, Booth J
A girl G2 was placed with foster parents because of M's alcoholism,but when F (now with a new partner) sought a residence order theguardian ad litem recommended a care order with a view to G'srehabilitation with M. The justices refused F's application for anadjournment and made a full care order, but the judge allowed F'sappeal, substituted an interim care order, and remitted the case to themagistrates for proper consideration of his application. The courtshould always be slow to make a full care order without having all theevidence available, she said, and LA had not yet completed theirassessment of F's suitability.
Part V of the Children Act 1989 deals with the means by which children can be given short-term protection in cases of immediate danger. Proceedings under Part V (unlike those under Parts III and IV) are not "family proceedings", so the s.8 orders available in other cases are not available to the court in such proceedings.
Emergency Protection Orders
Any person may apply to the family proceedings court (or to the county court or High Court where proceedings are already pending) for an emergency protection order under s.44 of the Act, authorising him to remove a child to accommodation to be provided by him, or to prevent the child's removal from the place (often a hospital) where he now is. In a real emergency an application can be made ex parte to a single magistrate, but an inter partes hearing is normally to be preferred.
The excess of zeal identified by the Butler-Sloss enquiry made people cautious about allowing children to be seized from their homes without proper safeguards, and an EPO is not granted to a private individual unless the court is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed or detained in accordance with the order. Where the applicant is a local authority or an officer of the NSPCC, however, the court may grant an order where the likelihood of harm is merely suspected and further enquiries are being frustrated by lack of access to the child.
An EPO directs the child's production to the applicant, empowers the applicant to remove the child or prevent his removal (where this is necessary to safeguard his or her welfare), and makes it a criminal offence for anyone to obstruct the execution of the order. It may also authorise an applicant to enter specified premises and search for the child who is the subject of the order and (if the court is satisfied that there are reasonable grounds) for any other child in respect of whom an EPO ought to be made.
An EPO gives the applicant parental responsibility for the child, though his exercise of this responsibility is limited to what is reasonably required to safeguard or promote the child's welfare. The applicant might consent to necessary medical treatment, for example, but would not be expected to choose the child's secondary school! The order may include directions as to contact (or no contact) with the child's family, and/or as to an assessment by the local authority.
An EPO may last for up to eight days (during which the applicant may remove and return the child several times if necessary), and may be extended to fifteen days where the court has reasonable cause to suspect that the child will suffer significant harm if it is not. No legal challenge to the order is allowed during the first 72 hours, but after that time (unless the order is extended) the child, a parent, a person with parental responsibility, or anyone with whom the child was living prior to the order may seek its discharge unless he was present at the original hearing.
The Family Law Act 1996 makes an important amendment to the Children Act 1989, allowing the court to add an exclusion requirement when making an emergency protection order (or an interim care order). Formerly, a child at risk of physical or sexual abuse from a member of his family could be protected in the short term only by his removal from the family home, and that experience was sometimes almost as traumatic for the child as allowing the abuse to continue. Under the amended provisions, however, the child and the rest of his family can be left together in the home and the suspected abuser excluded pending further investigation and a final determination of the matter.
Child assessment orders
Where a local authority or the NSPCC has reasonable cause to suspect that a child is suffering or is likely to suffer significant harm, but the situation is not so urgent as to justify an emergency protection order, it may apply to the court for a child protection order. The applicant must give notice to the child (if he is of an age to understand), the parents, anyone with parental responsibility and anyone with a contact order, and the hearing should normally be inter partes.
The court will grant a child assessment order if (and only if) it is satisfied that the applicant has reasonable grounds for his suspicions, that an assessment of the child is needed to determine whether or not they are well founded, and that because of the parents' or others' non-cooperation such an assessment is unlikely to be possible (or is unlikely to be effective) unless an order is made. If the order is made, it lasts for seven days and orders the persons named in it to produce the child and to comply with any directions relating to his assessment. It also authorises the child's assessment (though a Gillick-competent child cannot be compelled to cooperate against his wishes) and his or her removal from home for that purpose.
Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he is empowered by s.46 of the Act to remove the child to suitable accommodation or to prevent the child's removal from hospital or elsewhere. He must, as soon as practicable, inform the local authority, the child (if he is old enough to understand) and the child's parents &c, initiate an investigation by a designated police officer, and arrange suitable accommodation for the child; he must also take steps to discover the child's wishes and feelings.
The police do not acquire parental responsibility over a child taken into police protection under this section, but the designated officer has the right and the duty to do what is reasonable to safeguard and promote the child's welfare while he is under protection. The family must be allowed reasonable contact with the child, provided that it is in the child's best interests.
A child taken into police protection must be released after 72 hours, or sooner if there is no longer cause for concern, but in the mean time the designated officer can apply on behalf of the local authority for an emergency protection order as above.
Local authority duty to investigate
Where a child is made the subject of an emergency protection order, or is taken into police protection, or where there is reasonable cause to suspect that a child is suffering (or is likely to suffer) significant harm, s.47 imposes on the local authority a duty to make enquiries enabling them to decide whether or not it should take any action to safeguard or promote the child's welfare.
In the course of these enquiries, the authority is required to take such steps as are reasonably practicable to gain access to the child, unless it is satisfied that it already has sufficient information to make a proper decision. If access to the child is refused, or if the authority is denied information as to his whereabouts, it must apply for an emergency protection order unless satisfied that the child's welfare can be satisfactory safeguarded without such an order.
Non-molestation and exclusion orders cannot be applied for by local authorities on behalf of adults or children. However, the Family Law Act 1996 has introduced powers to make exclusion orders when making either interim care orders or emergency protection orders. This reform should remedy the defects apparent in Nottinghamshire CC v P.
Note also that interim supervision orders and interim care orders can be granted to ensure the well-being of children in the short term pending a final determination of their cases.
The experiences of families in Cleveland and Orkney showed the importance of providing a mechanism by which the decisions of local authorities in child protection matters could be effectively challenged, without putting children unnecessarily at risk. There are now several such mechanisms in place - some more effective than others - which can conveniently be grouped under four headings.
Challenges under the Children Act 1989
In family proceedings as elsewhere, a court's decision is normally open to appeal through the usual channels. A parent or other interested party can therefore appeal against the grant of a care order or supervision order, but not against an emergency protection order.
The child or a close relative can apply for the discharge of a care order, the discharge or variation of a supervision order, or the variation of a contact or no-contact order relating to himself.
A person seeking to terminate a care order or supervision order can also apply (with leave) for a residence order in his favour under s.8; if granted, this will discharge the earlier order.
All these remedies have been discussed already. The further remedy of an application to make the child a ward of court was never very popular with the judges, and s.100(2)(c) of the 1989 Act expressly prohibits any wardship application in respect of a child in care.
Challenges under the general law
Local authorities are subject to the law like any other individual or corporate body, and in principle an action could be brought in tort or for a breach of a statutory duty. However, recent decisions suggest the courts may often deny a duty of care to any specific individual, rendering this form of challenge ineffective.
The decisions of local authorities in child protection matters are subject to judicial review, and any person with sufficient interest can seek leave to apply for judicial review and an appropriate remedy. The courts are not enthusiastic about such applications, however, and a challenge by this route is unlikely to succeed in the absence of bad faith or wholly unreasonable conduct.
R v Lancashire CC ex p M  1 FLR 109, CA
LA took a mixed-race child away from white foster parents FP andplaced him with a mixed-race family with a view to adoption, taking intoaccount the racial element inter alia. FP sought leave to apply forjudicial review but were refused: LA had considered all the relevantfactors, said the Court of Appeal, and no irrelevant ones, and there wasno reasonable prospect that any court would find their decision Wednesbury unreasonable.
Challenge at Strasbourg
A third possibility is a complaint made through the mechanism established by the European Convention on Human Rights, probably based on a violation of Art.8 and its requirement of respect for family life. Several such applications (not all from Britain) have succeeded in the past, but the process is extremely slow and the compensation modest. The enactment of the Human Rights Bill and the incorporation of the Convention into English law may make this a more attractive proposition in the future.
Gaskin v United Kingdom (1989) 12 EHRR 36, ECHR
A young adult P claimed he had been abused as a child in care, andsought access to the Social Services files on his case. The SocialServices agreed to release only those papers whose authors consented,amounting to less than half of them. The Court held this was a violationof Art.8.
(The Access to Personal Files (Social Services) Regulations 1989 now give individuals a right to see any information relating to themselves held by a social services authority, but with exceptions for information referring to other individuals, information whose disclosure is likely to impair the physical or mental health of the individual or the prevention or detection of crime, and certain other information supplied in confidence.)
McMichael v United Kingdom (1995) 20 EHRR 205, Times 2/3/95, ECHR
AA were a parent and step-parent whose child was the subject of careproceedings; they complained that they were not allowed to see documentsconsidered by the children's panel in making their decision. The Courtsaid this was a violation of their rights to respect for their familylife under Art.8, and (in the case of the mother, who was the child'slegal guardian at the time) of her right to a fair trial under Art.6(1).
Re F (minors) (Care proceedings: contact) (2000) Times 22/6/00,Wall J A mother M appealed unsuccessfully against the justices'decision to allow the local authority to terminate her contact with herthree young children in care. Wall J said the evidence was clear: M hadseriously neglected the children while she had them, there was noprospect of their being returned to her, and continued contact would bea destablising influence. The justices had properly balanced M's rightsand those of her children, bearing in mind Articles 6 and 8 of theConvention on Human Rights, to reach a conclusion that was in thechildren's best interests.
Section 26 of the Children Act 1989 requires each local authority to establish procedures for receiving and dealing with complaints and other representations, and the Representations Procedure (Children) Regulations 1991 give further structure to these procedures. The local authority must consider the representations, but is effectively judge in its own cause and is unlikely to alter its decision unless the circumstances are exceptional.
Under s.84, the Secretary of State has power to declare a local authority in default if it fails to comply with a duty under the Act, but powers such as these are very rarely exercised and are irrelevant where it is an exercise of discretion that is in question.
The local government ombudsman can investigate complaints of maladministration: according to Richard Crossman MP when the office of ombudsman was first established, that might include such things as bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on. The Ombudsman's investigations are inclined to be lengthy, however, and once again he cannot look into the merits of a decision.
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