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1.4 The Legal Framework for Child Protection

Contents

1. Children in Need of Support
2. Children in Need of Immediate Protection Before Fully Assessing Risk of Harm
3. Children and Young Persons Act 2001- Definitions
  3.1 Thresholds and Significant Harm
  3.2 Defining Abuse and Neglect
4. Emergency Protection Powers
  4.1 Emergency Protection Orders
  4.2 Exclusion Requirement
  4.3 Police Protection Powers
5. Housing
  Appendix 1: Children and Young Persons Act 2001 - Chapter 20


1. Children in Need of Support

1.1

Section 23 of the Children and Young Persons Act 2001 confers a general duty on Social Services to:

  • Safeguard and promote the welfare of children within the area who are in need;
  • So far as is consistent, to promote their upbringing by families by providing a range and level of services appropriate to their needs.
1.2

Best practice would dictate that before determining what, if any, services to provide, agencies shall:

  • Ascertain the child’s wishes and feelings regarding those services;
  • Give due consideration to those wishes and feelings;
  • Consider whether to undertake a common assessment.
1.3

Section 23 of the Children and Young Persons Act 2001 states that:

The Department shall take such steps as appear to be appropriate to safeguard and promote the welfare of children who are suffering, or likely to suffer significant harm.

The Department may provide or arrange with voluntary organisations or other persons for the provision of all or any services for this purpose.

1.4

Section 23(5) states that a child shall be taken to be in need if:

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


2. Children in Need of Immediate Protection Before Fully Assessing Risk of Harm

2.1

Section 46 of the Children and Young Persons Act 2001 confers a duty to investigate on the Department responsible for Social Care and Child Protection that where a child is:

  1. Subject of Police Protection; or
  2. They have reasonable cause to suspect a child is suffering or is likely to suffer significant harm.

The Department shall make or cause to be made such enquiries as it considers necessary to enable it to decide whether it should take any action to safeguard or promote the welfare of the child.

  1. Where the Department has obtained an Emergency Protection Order with respect to a child, it shall make or cause to be made such enquiries as it considers necessary to enable it to decide what action it should take to safeguard or promote the welfare of the child;
  2. The enquiries shall in particular be directed towards establishing:
    1. Whether the Department should make any application to the court, or exercise any of its other powers under this Act, with respect to the child;
    2. Whether, in the case of a child with respect to whom an Emergency Protection Order has been made, or who is not in accommodation provided by or on behalf of the Department, it would be in the best interests of the child (while an emergency protection order remains in force) for him to be in such accommodation; and
    3. Whether, in the case of a child who has been taken into Police protection, it would be in his best interests to ask for an application to be made under section 45(6).
  3. Where enquiries are being made under subsection (1) with respect to a child, the Department shall (with a view to enabling it to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable:
    1. To obtain access to him; or
    2. To ensure that access to him is obtained, on its behalf, by a person authorised by it for the purpose, unless the Department is satisfied that it already has sufficient information with respect to him;
  4. Where, as a result of any enquiries made under this section, it appears to the Department that there are matters connected with the education of the child which should be investigated, it shall consult the Department of Education;
  5. Where, in the course of enquiries made under this section, any officer of the Department, or any person authorised by the Department to act on its behalf in connection with those enquiries, is refused access to the child concerned, or is denied information as to his whereabouts, the Department shall apply for an Emergency Protection Order, an Assessment Order, a Care Order or a Supervision Order unless it is satisfied that his welfare can be satisfactorily safeguarded without its doing so;
  6. If, on the conclusion of any enquiries or review made under this section, the Department decides not to apply for an order mentioned in subsection (6), it shall:
    1. Consider whether it would be appropriate to review the case at a later date; and
    2. If it decides that it would be, determine the date on which that review is to begin;
  7. Where, as a result of complying with this section, the Department concludes that it should take action to safeguard or promote the child's welfare, it shall take that action (so far as it is both within its power and reasonably practicable for it to do so).
2.2 Where enquiries are being made, Social Services will obtain access to him/her or ensure access is obtained by an authorised person.


3. Children and Young Persons Act 2001- Definitions

Harm means the 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 which are not physical.

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.

Significant harm may be associated with a single traumatic event but most often it is a compilation of significant events, both acute and longstanding, which interrupt, change or damage the child’s physical and psychological development.

‘Harm’ is attributable to care given not being what it would be reasonable to expect a parent to give.

To understand and establish Significant harm, it is necessary to consider:

  • The nature of harm, in terms of maltreatment or failure to provide adequate care;
  • The impact on the child’s health and development;
  • The child’s development within the context of their family and wider environment;
  • Any needs as a result of the child’s medical condition, physical or mental impairment that may affect the child’s development and care within the family;
  • The capacity of the parents to meet adequately the child’s needs;
  • The wider and environmental family context.

Consideration of whether harm is significant should therefore include:

  • Accuracy of what has been alleged/reported;
  • Impact on this particular child  - evident now or probable given research studies/information available regarding children in similar situations – taking into account:
    • Whether what has been done to, or omitted regarding a child’s care forms a ‘pattern’ of behaviour towards this child  - or was it a one off and is it likely that it will it recur or not?
    • Severity of abuse/impact - and how the child may have reacted/changed as a result;
    • The overall well-being and/or robustness of the child;
    • Specific vulnerability/vulnerabilities of the child stemming from young age or impairment;
    • The views of the child.
  • The context in which the act or omission occurred - is all the available past information available and does any still need to be sought – how important might missing information be?
  • Causal link to parents/carers against what would have been reasonable/is reasonable to expect of any parents in relation to this child and its needs (with or without provision of services).
  • Parental reaction - both immediately and in the long term.
  • What protective/positive factors or individuals (e.g. extended family) are there?
  • What engagement with professionals in recognition of the need for change is there?  What acceptance of responsibility/what insight/what capacity and what motivation for changing and sustaining change is there? Are the causes of problems identified and needs established so that clear targets for parents and agencies can be set and linked to clear outcome expectations?

3.1

Thresholds and Significant Harm

  3.1.1 It must be remembered that when it is identified that a child is at risk of significant harm they will also be a child in need. The focus on harm should not mean that the overall needs of the child are ignored. Section 46 needs to be understood as a specific ‘extra’ within the overall requirements of Section 23, not separate from it. Complex cases can move between Sections 23 and 46 status in this way rather than ‘get lost’ due to a threshold debate as to whether they are one or the other.

3.2

Defining Abuse and Neglect

  3.2.1 Definitions of abuse and neglect are given in the Definition of Terms.


4. Emergency Protection Powers

There is a range of powers available to Social Services and the Police to take emergency action to safeguard children.

4.1

Emergency Protection Orders

  4.1.1

The court may make an Emergency Protection Order under Section 42 of the Children and Young Persons Act 2001, if it satisfied that there is a reasonable cause to believe that a child is likely to suffer significant harm if:

  • S/he is not removed to different accommodation provided by or on behalf of the Department; or
  • S/he does not remain in the place in which s/he is being accommodated.
  4.1.2 An Emergency Protection Order may also be made if enquiries (e.g. made under Section 46(1)(b) 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.
  4.1.3 An emergency protection order gives authority to remove a child, and places the child under the protection of the applicant.

4.2

Exclusion Requirement

  4.2.1

The court may include an exclusion requirement in an Interim Care Order or Emergency Protection Order (Sections 36 and 46 of the Children and Young Persons Act 2001). This allows a perpetrator to be removed from the home instead of having to remove a child. The court must be satisfied that:

  • There is reasonable cause to believe that if a 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, or that enquiries will cease to be frustrated; and
  • Another person living in the home is able and willing to give the child the care that it would be reasonable to expect a parent to give, and consents to the exclusion requirement.

4.3

Police Protection Powers

  4.3.1

Under Section 45 of the Children and Young Persons Act 2001, 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 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.

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


5. Housing

5.1 The Children and Young Person’s Act 2001 includes the following provisions:

Provision of accommodation for children

Provision of accommodation

  1. "The Department shall provide accommodation for a child in the following circumstances:
    1. Where he is in the care of the Department;
    2. Where he is in need because:
      1. No person has parental responsibility for him; or
      2. He is lost or has been abandoned;
      3. A person who has been caring for him is prevented from providing him with suitable accommodation or care.
    3. Where:
      1. He is removed or kept away from home under Part 5, Protection of Children, or the Department is requested to receive him under section 45 or under section 41(6) of the Police Powers and Procedures Act 1998; or
      2. He is remanded under section 76 to accommodation provided by the Department; he is the subject of a supervision order imposing a residence requirement under paragraph 5 of Schedule 9.
  2. The Department may provide accommodation for a child if it considers that to do so would safeguard or promote his welfare;
  3. Subject to subsections (5) and (6), the Department may not provide accommodation for a child under subsection (1)(b) or (2) if any person objects who:
    1. Has parental responsibility for him; and
    2. Is willing and able to provide accommodation for him, or to arrange for accommodation to be provided for him.
  4. Subject to subsections (5) and (6), any person who has parental responsibility for a child may at any time remove him from accommodation provided by or on behalf of the Department under subsection (1) (b) or (2);
  5. Subsections (3) and (4) do not apply while any person:
    1. In whose favour a residence order is in force with respect to the child; or
    2. Who has care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, agrees to the child being looked after in accommodation provided by or on behalf of the Department; and where there is more than one such person, all of them must agree.
  6. Subsections (3) and (4) do not apply where a child who has reached the age of 16 agrees to being provided with accommodation under this section;
  7. The powers of the Department to provide accommodation under this Act are without prejudice to any functions of the Department under any other enactment.”

Manner in which Accommodation may be Provided

  1. “The Department may provide accommodation for a child by:
    1. placing him with
      1. a family,
      2. a relative of his, or
      3. any other suitable person,
    on such terms as to payment by the Department and otherwise as the Department may determine;
    1. maintaining him in a home provided and managed by the Department;
    2. maintaining him in a registered children's home; or
    3. making such other arrangements as seem appropriate to the Department.
  2. Unless it would not be reasonably practicable or consistent with his welfare, the Department shall make arrangements so that any child whom it is looking after can live with:
    1. a parent of his, or
    2. another individual who has parental responsibility for him, or
    3. where he is in the care of the Department and a residence order was in force with respect to him immediately before the care order was made, a person with whom he was to live under the residence order, or
    4. a relative, friend or other person connected with him.
  3. Unless it would not be reasonably practicable or consistent with his welfare, the Department shall ensure that:
    1. any accommodation provided by it for a child is near his home,
    2. where the Department are also providing accommodation for a brother or sister of his,  they are accommodated together,
    3. where the child is disabled, the accommodation is not unsuitable for his needs.”

Secure Accommodation

  1. “Subject to the provisions of this section and section 76(4), a child who is being looked after by the Department may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ('secure accommodation') unless it appears:
    1. that:
      1. he has a history of absconding and is likely to abscond from any other description of accommodation; and
      2. if he absconds, he will suffer, or be likely to suffer, significant harm; or
    2. that if he is kept in any other kind of accommodation he is likely to injure himself or  other persons.
  2. A child may not be kept in secure accommodation after the end of such period as may be prescribed, unless a juvenile court has by an order made on the application of the Department authorised him to be kept there;
  3. Subject to subsection (5), on an application under subsection (2) the court:
    1. shall make the order applied for if (and only if) it is satisfied that:
      1. the condition specified in subsection (1)(a) or (b); and
      2. such further conditions as may be prescribed, are fulfilled; and
    2. shall in the order specify the maximum period (which shall not exceed such period as may be prescribed) for which he may be kept in secure accommodation without a further order under subsection (2).
  4. If the court adjourns the hearing of an application under subsection (2), it may make an interim order permitting the child to be kept during the period of the adjournment in secure accommodation;
  5. The court shall not make an order under subsection (2) unless:
    1. it is satisfied that the Department has taken all such steps as are reasonable and practicable to notify any person who has parental responsibility for the child of the Department's intention to make the application; and
    2. where the child is not legally represented in that court, he has been informed of his right to apply for legal aid and given an opportunity to do so, and has refused or failed to apply.
  6. This section:
    1. Does not apply to a child remanded under section 76 to accommodation provided by   the Department;
    2. Does not apply to any prescribed description of children; and
    3. Has effect in relation to children of a prescribed description subject to such modifications as may be prescribed.
  7. The making of an order under this section does not prejudice any power of any court to make any other order or to give directions relating to the child to whom the order relates.”


Appendix 1: Children and Young Persons Act 2001 - Chapter 20

Click here to view 'Children and Young Persons Act 2001 - Chapter 20'.

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