The Powers and Duties of Local Authorities in Relation to the Family - Essay Example

?Research Paper On The Powers and Duties of Local ities in relation to the Family Order No: 781100 Law : (A) Brief facts This involves a single mother, Ann Dawson aged 20 who begot two issues, namely, Gary and Debbie aged 4 and 2 respectively living in Somerfield. She is expecting and each child has a different father. As a teenager, Ann lived in the Local authority. She is a very loving mother but likes going out with friends to drink. Sometimes, she leaves children at home alone. The authority is concerned and is thus seeking legal advice. (B) Brief Facts In this problem Julie and Keith Morgan got married and begot 3 children, namely, Carly, Robbie, and George aged 16, 13 and 10 respectively, also known to the local authority in Somerfield. Keith has been imprisoned severally for dealing in drugs and petty theft. Their children were found wondering and loitering in the city on a Saturday evening. Carly was drunk and is allegedly engaging in prostitution. Robbie and George are mixing with older boys-involved in criminal activities. The local Authority is concerned and wishes to protect and safeguard them. Issues 1. Whether the Social Services Department (local authority) has any legal authority in both scenarios? 2. If issue 1 is answered in the affirmative, what are the powers and duties of the Local authority? 3. What is the Forum and procedure in the circumstances? Law applicable a) The Adoption and Children’s Act, 2002 [cap 38] b) The Children’s Act, 1989 [Cap 41] c) The Child Care Act, 2006 [cap 21] d) The Children’s Act, 2004 [cap 31] e) The Children and Young Persons Act, 2008 [cap 23] f) The Local Services Act, 1970 [cap 72] g) Case law. Resolution of issues Issue No1: Yes. The local authority is vested with legal powers and duty to take care and protect any child from all forms of abuse “(Children’s Act, 2004, s.17 and 18).” A local authority is a “non- metropolitan organization” charged with the duty of protecting and safeguarding children who have been abandoned by their parents or who are being abused and neglected (Nigel and Douglas, 2007, P.693). Accordingly Section 1 and 7 of “the Local Authority Social Services Act (1970)”empowers Local authorities to protect and safeguard vulnerable children. Additionally, Section 17 and 18 of “the Children’s Act 2004)” and Section 31(10) and 47 of “the Children’s Act (1989)” empower an authority to investigate the vulnerability, neglect and abuse of children with the aim of gathering evidence that will assist the authority in discharging its duties. However, while investigating negligence and abuse of children, the authority should respect the rights of parents towards their children. Premafacie parents have rights and duties over their children and should not be deprived of that primary responsibility in what had been referred to as “family privatization” ( Nigel & Douglas, 2007, P. 477). For this reason, it’s the primary responsibility of the local authority to firstly promote the upbringing and safeguarding of children in cooperation with parents until they are unwilling to cooperate where upon the authority is empowered by law to take over that responsibility. Hence, it shall be the duty and power of the local authority to provide adequate care if children have been subjected to mental, physical and psychological impairment in their development. In doing so, regard should be given to “the child’s welfare as a paramount consideration (Children’s Act (1989, s.1 (1)).” The “welfare principle” is the litmus paper in protecting and safeguarding children from significant harm which the Social Services Department is obliged to fulfill. Welfare simply means the overall upbringing of children including the financial, moral, spiritual and general makeup of children. When the Local Authority has weighed the needs, wishes, risks, choices and all forms of circumstances surrounding the children as well as those of their parents, adherence to the “welfare principle” is supreme according to the “House of Lords” in “Re O and another (minors) (Care: Preliminary Hearings); Re B(2004, P.524)”while drawing inspiration from the celebratd judgement of Lord MacDermott in “J vC, (1970, PP. 710, 711)” who upheld that principle. It’s upon this backdrop that local authorities in United Kingdom were vested with legal rights to care, protect and or promote the protection of children by their respective parents. Thus the term “welfare principle” envisage the best interests of the child at the material time of protecting and safeguarding their ascertainable wishes. Therefore, the “Children’s Act, 1989” especially section 17 extensively gives powers to the local authority to promote plus safeguard the welfare of children in Somerfield after being amended and modified by the “Child Care Act (2006), Children’s Act (2004)” together with the “Children and Young Persons Act (2008)” to suit the prevailing circumstances of children in United Kingdom. This legal protection has been extended by the“Human Rights Act (1998, article 6 & 8)” providing an appriasal for the protection and care of the children and it was affirmed by the “House of Lords” in“R (G) v Barnet London Borough Council (2003)” that the welfare principle was compatible with humanrights of parents and Children with reference to all the above laws. Furthermore, in the case of “Hendricks v Netherlands (1982),” the Court observed that the interest of children should prevail above those of the parents where a conflict arises between children and their parents’ interests per article 8(2) of “the European Convention on Human rights” (2010) which is in parimateria with article 3(1) of the “United Nations Convention on the righs of the Child (1998).” Therefore, these international statutes are in conformity with the United Kingdom Statutes to confer a local authority powers to protect and safeguard children from any significant harm according to Thorpe L J in “ payne v Payne (2001, P.157 ).” For example, the above legal provisions, affirms the legality of the Social Services Department in Somerfied to promote the upbringing and protection of Gary and Debbie aged 4 and 2 respectively by Ann Dowson. Ann is a loving mother. She has ever been in the Local authority during her teenage years and thus, knows the importance of “protecting and safeguarding children.” It can be done by counseling her on the dangers of leaving children at home alone whenever she goes out to drink with her friends. Alternatively, she should employ the day care services of the local authority to care for her children whenever she goes out to drink. Her behaviour is not good for a developing child and this empowers the authority with the duty of promoting and safeguarding the well-being of these children through a supervision order from the Family Court specifically for the welfare of Gary and Debbie. In the second example of Julie and Keith Morgan who begot 3 children namely, Carly, Robbie and George aged 16, 13 and 10 respectively, the authority has the power and duty to take these children away from them and promote their well-being. It’s evident from the facts that these children have been neglected by their parents and there is no proof of proper upbringing. Keith has been imprisoned on several occasions for dealing in drugs as well as petty theft which are criminal activities. Consequently, the children are wondering in the city and presumably are committing related criminal offences due to parental negligence. For instance, Carly is believed to be engaged in prostitution due to poor parentage. Robbie and George are mixing with criminally older boys. These activities are harmful to their health, physical and mental development. Therefore, the authority is empowered to take over their upbringing by applying to Court for a care order and in emergency situations for an “emergency order” to remove them from their parents’ custody. Issue No 2: These are divided into general and specific powers and duties governed majorly but not limited by “the Child Care Act” (2006) and Part 10A of the “Children’s Act, (1989) as seen in a combination of the following responsibilities. General Powers and duties This is governed by Part III of the “Children’s Act, (1989)” and Section 1 and 2 of “the Child Care Act” (2006, Part 1). Firstly, it’s the duty of the Local authority in Somerfield to “safeguard and promote the welfare of children (Children Act, 1989, Sec. 17).” This duty is an exception to the widely accepted “principle of non-intervention” (Nigel and Douglas, 2007, P.697). The principle bars authorities from interfering with the family institution as far as children welfare is concerned. However, Local authorities were established to give an oversight on this principle by enforcing and respecting the welfare of children. If children are in danger of being harmed by their parents or the parents have willfully neglected or abused them, the local authority is empowered to take over their protection and care “(Child Care Act, 2006, S.1)”. It also extends to circumstances where there is parental love but there are other excruciating factors like alcoholism affecting the proper well-being of the children (Nigel &Douglas, 2007, P.699). Secondly, it’s the duty and power of a Local Authority to assess children’s desires by supporting their upbringing as long as it’s not harmful to the children “(the Children’s Act, 1989, S. 17(3)).” This general duty was observed by the “House of Lords in R (G) v Barnet London Borough Council (2003)”and followed by the “Court of Appeal in R (w) v Lambeth London Borough Council (2004).” The aim is to promote “the welfare of children” with the parent being part of the overall upbringing in partnership with the authority- playing a supervisory role. If the parent does not have proper accommodation facilities, then the authority will provide accommodation (Nigel and Douglas, 2007, P. 700). As a general rule, Local authorities were formed to support the family in the upbringing of children and not to disintegrate it (Children’s Act, 2004, s.10) with the objective of promoting peace, harmony, love and unity in the family in partnership with other agencies (Nigel &Douglas, 2007, P. 698). This is the primary import of “the Child care Act” (2006, Part 1 and 2) hence, giving the local authority power to supervise and promote the well-being of Children. For example Ann Dowson is a loving mother but her problem is going out with friends to drink. Drinking wouldn’t Premafacie be a problem but leaving children alone at home sometimes is the major problem. The local authority should thus, “promote and safeguard the welfare” of Gary and Debbie aged 4 and 2 respectively by counseling and providing her with day care services. Practically Ann would be charged a reasonable fee for providing these services to her children “(child Care Act, 2006, S.25).” However, if Ann cannot provide any fund, the authority will take over the care of these children using money from the pool fund and in partnership with other agencies according to Section 4 of the “child Care Act (2006).” In doing so, the authority will procedurally apply for a supervision order from the Court to constantly supervise the conduct of Ann. This should also be done in consultation with the state department in the local authority area (Somerfield). Similarly, in the example of Julie and Keith Morgan’ children, the authority should take over the upbringing of these children. These parents are negligent and the local authority has the duty and power to take over their custody in an attempt to promote and Safeguard their welfare. The rationale is for the local authority to properly bring up these children in ways that honour their best interests. It’s evident that Carly aged 16 was found drunk in the city and is suspected of engaging in prostitution. At 16, she is still a child and this act is harmful to her physical, emotional as well as mental well-being. She is vulnerable to harm from any person using her or those incidental to areas where she was found in town drunk. This will socially and or physically affect her education, health and mental development. The same social problems are likely to affect Robbie and George who are mixing with older boys- engaged in criminal activities. For this reason, the local authority has the duty and power under “the Child Care Act (2006, S. 1)” to take over the upbringing of these children either amicably or compulsorily by a Court order “(Children’s Act, 1989, s.17)”. If they are in eminent danger, the authority should firstly apply for the “emergency police protection order” from police or “an emergency order” from Court, whichever is easier to get full legal rights over these children. Thereafter, they should apply for a “care order” that will give them legal powers to care for these children. Besides, the need for child centered approach confers a local authority with the duty to investigate the negligent and abusive claims over children “(Children’s Act, 1989, s.47).” This child centred approach means considering all the surrounding circumstances of the children. This requires adherence to the ascertainable desires (wishes) and feelings of the children, considering their education, ascertaining their physical and emotional needs, the likely effects brought about by the circumstances in which they are living and how it will impact their health plus mental development effects if separated by the parent, age, background and or sex of the children together with the risks and other likely harm brought about by the parent’s negligent acts. This is the purpose of S.1 (5) and 17(4) (6) of “the Children’s Act (1989)” as amended by s. 116 of the “Adoption and Children’s Act (2002)” and in light of Section 22 and 23(2) of “the 1989 Act.” It was further affirmed by the “House of Lords” in “R (W) v Lambeth London Borough Council” (2003) that the provision of accommodation complements the “welfare principle” with reference to “S v R (Parental Responsibility)” (1993). Specific powers and Duties These are set out in Section 3 of “the Child Care Act (2006, Part 1)” and includes, the duty to identify children who are in need of bieng protected and safeguarded from significant harm detrimental to their “mental and physical Development”(Nigel and Douglas, 2007, P. 700). For example in the current scenarios, the Social Services Department identified the need to promote and safeguard the welfare of Ann’s Children who are believed to be vulnerable to harm whenever she goes out with friends. Similarly, they identified the need to protect and safeguard the welfare of Julie and Keith Morgan’s children who are vulnerable to significant harm if left engaging in illegal and criminal activities due to their parents’ negligence and previous criminal acts of Keith. Therefore, it’s the duty of the local authority to specifically identify children who are in need of protection. It’s also the specific duty of a local authority to facilitate access to social services such as providing advice to parents on ways of bringing up children in a conducive and favourable environment including counseling. They should also provide avenues of getting foster parents within their areas to take advantage of the “early Childhood teachings.” Therefore, such family centres should be accessible within the area of the Local authority (Nigel &Douglas, 2007, P. 702). In discharging this specific duty, the authority must gather enough information about the children in need and also listen to any guidance given by “secretary of state” as per the “Child Care Act, (2006, S.3(5) (6)).” In the current examples, this specific duty is more applicable to Ann Dowson who is a loving mother and understands the role of promoting and safeguarding her children. She only needs advise, counseling and supervision by the authority. Another specific duty is that of preventing children from neglect or abuse. The authority must take all resonable steps to ensure that Children within its jurisdiction are not neglected and abused as an extension of the welfare principle. If this is detected, they should inform other responsible agencies to curb the vice (Nigel &Douglas, 2007, P. 702). In the current examples, it’s more applicable to Julie and Keith Morgan’s children. It’s evident that they have been neglected by their parents and therefore vulnerable to significant harm or abuse. When the authority learnt about it, they played this specific duty by informing police- an institution charged with the duty of keeping law and order. The role of police is to work together with the authority in promoting and safeguarding the welfare of these children as required by the “Children’s Act (1989, s.17)”. As earlier on stated, the authority should apply for a care order and take over the upbringing of these children. Prior to securing a care order from Court, it’s prudent that the authority should get a “police protection order” or an “emergency order” from Court to quickly get them out of danger“(Children’s Act, 1989, s.46)”. Besides, it’s the specific duty of the local authority to apply for the above orders where upon a child who is likely to suffer signicant harm as a consequence of the neglect and or abuse by the parents may be protected. It can also seek for orders allowing a third party to remove children from the home of their abusers and be able to provide accomodation and care for them. If the third party lives close to the Children, they can seek orders for the abuser to leave the home of the third party (Nigel and Douglas, 2007, P.702). In the current cases, it would be applicable to Julie and Keith Morgan’s children where there is a likely hood of harm to the upbringing of their children. Keith has been severally imprisoned for dealing in drugs and petty theft. If Julie wishes to protect their children, then the authority will help Julie in securing an order from Court to compel Keith to leave the home. Alternatively, the authority has powers to take custody of children. It’s further the specific duty of the Local authority to provide “Day Care Services” to children below five years where upon appropriate day care services may be provided for the busy parents. This should be done under their supervisory powers where specialised services for these children will be provided. This is also more applicable to Ann Dowson circumstances whose children are below five years. Whenever, she desires to go out with friends, it’s paramount that the safety of her children should be under a day Care facility to provide such services as may be appropriate in accordance with “the Children’s Act (1989, s. 18, 19). Issue No3 The forum for all Court orders is the “family division of the High Court” with unlimited jurisdiction as far as family matters are concerned according to the “Family proceeding Rules (1991, rr 4.5 and 5) and the Children’s Act, (1989, s. 31 (1) (3)).” For the “police protection order” where there is a likelyhood of delay in getting any order from Court, the forum is the police in Somerfield but only in emergency situations “(Children’s Act,1989, s.46).” The procedure is by making a proper application to the Court seeking leave to be granted the relevant order sought such as a “care order, supervision order or an emergency protection order.” In case of Ann, the local authority shall seek for a supervision order to supervise her in the upbringing of her children while for Julie and Keith, the local authority shall apply for a “care order” such that the children can be taken out of their custody and brought up properly by the local authority until the majority age or otherwise. Before getting a care order, its vital that they apply for an “emergency protection order” because these children are in eminent danger of harm ( Nigel &Douglas, 2007, P.721). Bibliography H Douglas G, Nigel. L., 2007. Bromley's Family Law, 10th Edition, Oxford University Press, Oxford. Hendricks v Netherlands (1982) 5 EHRR 223. J vC [1970] AC 356. payne v Payne [ 2001] 1 FLR 105. R (G) v Barnet London Borough Council [2003] UKHL 57. R (W) v Lambeth London Borough Council [2003] 2 AC 208 . Re O and another (minors) (Care: Preliminary Hearings); Re B [2004] 1 AC 523. S v R (Parental Responsibility) [1993] 1 FCR 331. The Children’s Act, 1989, (Cap 41), London: HMSO. The Child Care Act, 2006, (cap 21), London: HMSO. The Adoption and Children’s Act, 2002 (Cap 38), London: HMSO. The Children’s Act, 2004(cap 31), London: HMSO. The Children and Young Persons Act, 2008, (cap 23), London: HMSO. The Family proceeding Rules 1991, London: HMSO. The Local Services Act, 1970, (cap 72), London: HMSO. The European Convention on Human rights, (2010).[Online] Available at: http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf [Accessed on: 8th/1/2013] The United Nations Convention on the righs of the Child,(1998).[Online] Available at:http://www2.ohchr.org/english/law/crc.htm [Accessed on: 8th/1/2013] Read More