The Children Act 1989 and the Children Act 2004 - Essay Example

Child Law Introduction In order to advise Alistair Smith, regarding his rights with respect to education and overall welfare, the following issues have to be taken up for discussion. Alistair Smith’s school Greenfield Comprehensive has voiced concerns about his education, as well as overall wellbeing. According to their opinion, Alistair Smith is not physically fit for his age and the school is thinking of referring him to a psychologist, in order to determine if he has special educational needs. Alistair Smith’s parents are opposing the school‘s proposal, regarding such reference. As such, the school is dissatisfied with their parenting, and they are desirous of ascertaining, whether it is an issue pertaining to education or parental care. The UK government is committed to provide free entitlement of childcare to all children in the country. It has provided comprehensive information to parents about their child’s entitlement to free early education and childcare provisions. The Childcare Act requires local authorities to provide information, advice, and assistance to parents, whose offspring are below the age of 20 years (Department for Education, 2012). In addition, they have to ensure that prospective parents are aware of the childcare provision in their areas. Moreover, childcare social work is a function of the public law. This is carried out on behalf of the State and denotes acceptance of the responsibility for supporting the needy children and protecting them from danger, by the State. The functions of local authorities in the area of social work relating to children, are executive functions of the State (Williams, 2008, p. 59). It is very important to realise that social work in a local authority, is to apply proper managerial and social work skills, while carrying out the functions enjoined by statute (Williams, 2008, p. 60). In addition, there are a number of governmental policies that are concerned with the wellbeing of children and families. A majority of these polices provide protection to them irrespective of the financial status or income levels of the families. Family policy is one among a plethora of social policies. It employs a holistic approach to protect children (Kamerman, 2009, p. 115). The government has to provide protection to individuals who are vulnerable and disadvantaged. Analysis The Children Act 1989 and the Children Act 2004, provide the statutory system for the fundamental protection of children in England and Wales. The local authorities are placed under a duty, by the Children act 1989, to ensure that the children in their area do not undergo ill treatment or neglect (Lbrary of Congress, 2013). As such, the local authorities in the area, where the child Alistair Smith’s is residing, are duty bound to look after the welfare of every child in their area. This has to be ensured by providing services for children and by investigating situations, wherein the child is under an emergency protection order; in police protection; or if it can be reasonably apprehended that the child is suffering or is at risk of suffering from significant harm. For instance, the West Sussex County Council provides safe houses for children who had undergone ill treatment or neglect (Lbrary of Congress, 2013). Moreover, these Children Acts empower the local authorities to seek an emergency protection order from the court, wherever there are reasonable grounds to suspect that the child will undergo significant harm on not being relocated to accommodation provided by the local authority; the enquiries of the local authority are being frustrated, due to denial of access to the child; or if the inquiries are frustrated because of unreasonable denial and it is believed that the child is either suffering or is likely to suffer from significant harm (Lbrary of Congress, 2013). The courts are empowered to grant emergency protection orders up to a maximum of eight days. These orders bestow upon the local authority the power to remove the child from the home or to prevent its removal from a state accommodation or hospital. In addition, it vests the local authority with limited parental responsibility, with regard to the child (Lbrary of Congress, 2013). Moreover, the Childcare Act 2006 requires the Department for Education to ensure that all the local authorities carry out the duties imposed by sections 6, 7, and 11 of the Act. Thus, the Department for Education is under a statutory obligation to monitor the local bodies. The Act made the Delivery of Free Early Years Provision for 3 and 4 years olds a statutory duty that replaces the Code of Practice for Local Authorities. The second mandatory duty is Securing Sufficient Childcare. This duty makes it a statutory duty to secure adequate childcare for working parents (Department for Education, 2012). These statutory duties have come into force from 1 September 2012. In addition, under Section 7, local authorities are under a duty to secure free early years provision. The Regulations made under this Section determine the amount of free provision and age of children to whom it is to be provided. Furthermore, Section 11 requires the local authorities to assess childcare provision in their respective areas. This duty also contains regulations that require these authorities to publish details of the assessments made (Department for Education, 2012). In our problem, no such concern was taken with regard to Alistair Smith, in his early years. Hence, his physical stature and his mental condition were not compatible with his age. Furthermore, the local authorities should invariably follow these duties. They have to discharge their duties in accordance with the provisions of this Act. Thus, the Act categorically displayed its intention through the guidance. The objective of this guidance is to assist the local authorities, parents, and childcare providers. This is to be achieved by clarifying the different results that these measures seek to accomplish; the legal duty imposed by the legislation; and the acts to be performed by the local authorities, in order to discharge their statutory duties and guarantee effective delivery (Department for Education, 2012). As such, Local authorities and childcare providers play an important role in the effective provision of childcare. The government provides free childcare to all children across the nation. It is the duty of local authorities and childcare providers to ensure that children have access to the free entitlements under childcare under different environments The Act requires local authorities to secure the delivery of childcare provision by working with the relevant parents, so as to achieve integrated early childcare services (Department for Education, 2012). Hence, in our present problem, the school authorities can take up the issue with the Department of Education, since the latter is obliged to provide Childcare services under the provisions of the Childcare Act. However, the law does not provide a detailed definition regarding the notion of parental responsibility. However, it enumerates the principal responsibilities, which are described in the sequel. Parents have to provide a home for their child. They have to protect, maintain and discipline the child. (Directgov, 2012). Parents have to ensure that the child gets a proper education and determine the religion of the child. In addition, the 1989 Children Act describes in detail the acts to be carried out by the courts and the local authorities, in order to promote and preserve the welfare of children. Section 47 of this Act bestows upon local authorities the duty to investigate, whenever they have reasonable grounds to believe that a child is suffering, or is likely to suffer significant harm (NSPCC, 2012). Such children should be found or should live within the area of the local authority. Section 17 of the Children Act 1989 requires local authorities to provide children in need, their families and others with services. Section 31 of this Act describes the authorised person status of the National Society for the Prevention of Cruelty to Children (NSPCC). This denotes that the NSPCC is empowered to directly apply for a court order, if it apprehends that a child is suffering or is likely to suffer significant harm (NSPCC, 2012). Furthermore, harm is defined by Section 31 of the Children act 1989 as ill treatment, which includes sexual abuse and non – physical forms of ill treatment; physical or mental impairment of health; or the impairment of behavioural, emotional, intellectual, physical or social development. This Act does not define significant; however, it requires the court to compare the development and health of the child with that of a similar child (NSPCC, 2012). This vests the courts with the duty of determining what constitutes significant harm. As such, the Children Act 1989 was the first legislation that successfully codified parental responsibility in the development of the child. It acknowledges that parental responsibility is the central role of an adult who provides care for a child. Such adults are in general, the parents of the child, and in some cases this responsibility could be shared by a local authority (Beattie, 2006, p. 299). Moreover, the European Union (EU) had enacted legislation to promote the wellbeing of children, and to protect their best interests. Article 3 of the United Nations Convention on the Rights of the Child protects the rights of children. Moreover, the international human rights law addresses the rights of children. However, Article 3 does not define the scope and extent of the phrase ‘best interests’. It requires all the Member States of the EU to promote the best interests of children, and to accord the highest priority to it (Fortin, 2011, p. 950). Parental responsibility is a combination of rights, duties, powers, responsibilities, and authority. They transfer their property to the child. However, the biological mother of the child is automatically vested with parental responsibility, unlike a surrogate mother. The female who gives birth to the child, is under English law, the biological mother (Beattie, 2006, p. 299). The man who is married to the mother is presumed as the biological and legal father of the child. If the father is married to the mother at the time of the child’s birth, then he derives parental responsibility. If the name of an unmarried father appears on the birth certificate of the child on or after 1 December 2003, then he has to bear parental responsibility automatically. In other cases, parental responsibility devolves upon them by formal agreements with the mother, or the court may bestow such duty on them (Beattie, 2006, p. 300). Parental responsibility can be shared with others such as guardians, local authorities, adoption agencies, and adopters. However, the parents can only surrender their parental responsibility when the child attains majority. Parents have certain rights such as the naming of the child, its education, and religion. These rights are termed the residual rights of parenthood (Beattie, 2006, p. 300). However, child protection has to strike a just balance between the necessity to protect a child and the integrity of the family. Prior to the enactment of the Children Act 1989, several procedures were available for committing children to the care of a local authority, and what was of great importance was that the criteria for doing so varied (Cobley & Lowe, 2009, p. 463). These varied between welfare tests and the satisfaction of several statutory conditions. For example, in the case of Re B, the court held that the required standard of proof for determining the facts necessary to decide the possibility of harm was the balance of probabilities. The court will take into account all possibilities, while deciding whether there is likelihood of harm to the child’s welfare. This aspect will be decided under the provisions of Section 31 of the Children Act 1989. On evaluating these criteria, the Child Care Review concluded that a simple welfare test was insufficient. This was because such a simple test would permit the state to intervene, whenever it could establish that the proposed alternate arrangements would benefit the child largely than what had been envisaged by its parents. Since, the child is not the child of the state, there has to be rich diversity of lifestyles (Cobley & Lowe, 2009, p. 463). This can be achieved only by allowing families greater autonomy in rearing their children. In the majority of the instances, there will be several facts from which it can be inferred that there is a risk of harm. Thus, there will be cases, wherein the evidence establishes extremely distressing features that affect the care of the child in the family, despite the fact that maltreatment has not been proved (Cobley & Lowe, 2009, p. 468). In these instances, the courts can concluded that there is a distinct possibility of the child being subjected to significant harm in the future (Cobley & Lowe, 2009, p. 469). In addition, in April 2008, the Public Law Outline was implemented in the UK. It constitutes a judicial case management tool for supervision and care orders, as provided for in Section 31 of the Children Act 1989. The local authority can attempt to place children in foster care, if concerns regarding a child escalate to the stage that the child is likely to suffer or is likely to suffer from significant harm (Evans, 2011, p. 3). The various procedural steps to be undertaken by professionals to obtain care of supervision orders from the court have been described in the Public Law Outline. These consist of the pre – proceedings stage, in which the local authority has to evaluate and prepare the necessary documentation to commence care proceedings. In addition a letter before proceedings has to be provided to the parents. This letter contains the intent and concerns of the local authority (Evans, 2011, p. 4). Moreover, the parents and their legal representatives have to be contacted and an attempt should be made to address the concerns. The court has to be informed by the local authority regarding the pursuit of a Section 31 care order, if there is failure to reach an agreement. The subsequent stages of the Public Law Outline, include the first court date, discussion among the advocates, conference on case management, and a final hearing (Evans, 2011, p. 4). Considerable importance is attached to arriving at evaluations, during the pre – proceedings stage, as the local authorities endeavour to prevent court cases and permit children to continue with their families. Children, per se, should be cared for by their families to the extent possible. All the same, with regard to children who necessarily require care, an attempt is made to reduce the time for which the case remains in the court. This adheres to the provisions of Section 1(2) of the Children act 1989, which declares that delayed proceedings in a court have the capacity to harm the welfare of children (Evans, 2011, p. 4). Conclusion The Childcare Act 2006 places a number of duties on local authorities. They are required to ensure that adequate childcare is made available to the children of working parents in their respective areas. As such, childcare has gained prominence at the global level. In the UK, the government is committed to enhance strategies to achieve optimum levels of childcare. In our present problem, the parents of Alistair Smith are not co – operating, as they are not adopting measures for the welfare of the child. Hence, the school authorities have to take up the issue of Alistair Smith, with the Education Department. The latter has to approach the local authorities for arriving at a viable solution. The local authorities have to contact the boy’s parents, as part of their endeavour to provide the boy with childcare services. As per Section 47 of the Children Act 1989, the local authorities are empowered to investigate complaints from the school authorities. If the local authorities find a valid reason behind the complaint they will approach the court for obtaining emergency protection orders under Section 31, of the Children Act 1989. This is because of their conviction that the child will be exposed to significant harm, due to the refusal of his parents to consult a psychologist, in order to assess his mental fitness, educational needs and his physical condition. The court has to be informed by the local authority of a Section 31 Care order, since an agreement with the parents could not be reached. All the same, the local authorities should endeavour to arrive at a consensus with the parents of the child, while approaching the court for making any decisions with respect to the childcare. Accordingly, the court will make an order after taking all relevant issues, such as education, and the physical and mental wellbeing of the child into consideration. Later on, the local authority has to send a letter to the parents of the child, describing its motive and concern behind obtaining a court order. If the parents are not agreeable to further steps, they may refer the case to the court. The court will make a final decision after discussions are held between the advocates of both the parties. As per the decision in Re B, the standard of proof for determining the possible harm to the child is the balance of probabilities. As such, the court can pass orders that require the local authority to intervene with the childcare management of Alistair Smith. Hence, the court will pass appropriate orders to safeguard the interests of Alistair Smith, in accordance with the provisions of the law. References Beattie, M., 2006. Essential Revision Notes in Paediatrics for MRCPCH. 2 ed. PasTest Ltd. Childcare Act, 2006. London, UK: Her Majestys Stationery Office. Children Act, 1989. London, UK: Her Majestys Stationery Office. Cobley, C. & Lowe, N., 2009. Interpreting the Threshold Criteria under section 31(2) of the Children Act 1989 - the House of Lords decision in Re B1. Modern Law Review, 72(3), pp. 463 – 475. Department for Education, 2012. Free Early Education for three – and four – year – olds: Part C: Information to parents. [online] Available at: [Accessed 16 March 2013]. Department for Education, 2012. Free Early Education for three- and four-year-olds: Introduction. [online] Available at: [Accessed 16 March 2013]. Department for Education, 2012. Free Early Education for three- and four-year-olds: Section A5: Delivery in partnership. [online] Available at: [Accessed 16 March 2013]. Directgov, 2012. Parental rights and responsibilities. [online] Available at: [Accessed 16 March 2013]. Evans, C. A., 2011. The Public Law Outline and Family Group Conferences in Childcare Practice. Child Care in Practice, 17(1), pp. 3 – 15. Kamerman, S. B., 2009. Families and Family Policies: Developing a Holistic Policy Agenda. Hong Kong Journal of Paediatrics, 14( Lbrary of Congress, 2013. Children’s Rights: United Kingdom (England and Wales). [online] Available at: [Accessed 18 March 2013]. NSPCC, 2012. An introduction to child protection legislation in the UK. [online] Available at: [Accessed 18 March 2013]. Re B (2008) UKHL 35. Williams, J., 2008. Child Law for Social Work. SAGE. Read More