The Major Legal Issues to Be Considered - Case Study Example

Social Law a. The major legal issues to be considered in this scenario are Gary’s welfare and how best it may be achieved through provision of assistance of his family to the extent necessary, because in this case, his mother Anne is disabled. The question of how best to achieve the necessary educational outcomes for Gary is another issue that must be considered. The relevant legislative provisions that may apply are detailed below: The Children Act of 1989 was the first public recognition of the rights of the child as an individual person. The Children Act of 1989 states that in any provision or decision made by the Courts, “the child’s welfare shall be the Court’s paramount consideration.”1 The prevailing belief and guideline as laid out under the law is to “promote the upbringing of such children by their families.”2 A general duty has been imposed on local authorities to safeguard and promote the welfare of children in their area3. Under Section III of the Act, a child will be assumed to be in need of services if “his health or development is likely to be significantly impaired….without the provision for him of such services.”4 Development as defined under the Act means “physical, intellectual, emotional, social or behavioral development.”5 In 2004, the U.K. Government released its report on the existing situation, which detailed the needs of the children and the responsibilities for parents6. The Children Act of 2004 also has some significant provisions that are specially geared towards protecting children and ensuring their welfare, by emphasized an integrated approach whereby there is coordination between various social service organizations and an obligation placed upon local authorities to work in coordination to ensure that desirable outcomes are achieved for the welfare of the child.7 At school, the Education Act places a duty on local education authorities to safeguard the welfare of children8 and independent schools also face the same obligations.9 Under Part IV of the 1996 Act, there are extra obligations placed upon LEAs and school governors in respect to those children who may have special educational needs, especially with reference to identifying them, assessing their needs10 and making provision for them. While schools identified as suitable for the child’s needs are required to admit the child11, they do have the option to exclude the child on the basis of the child’s conduct, although this is closely regulated by legislation12. All of these legislative provisions identified above will apply in the case of Gary and his mother Anne. b. In the case of Gary, risks posed include the danger of failure to achieve educational outcomes, since he has been excluded from his school. Under the provisions of the Education Act of 1996, the LEA is however required to provide special education even for excluded pupils through the use of Pupil referral units13. This Act sets out the statutory responsibilities which educational authorities have towards children, which are to be discharged by Educational Welfare Officers. These officers are required to work with the children who do not attend school regularly, as well as their families to ensure that educational outcomes are achieved. They are also empowered to carry out truancy sweeps14 Anti Social Behavioral orders may also be issued against children who have demonstrated a history of undisciplined and troublesome behavior.15 There is a need to address Gary’s educational needs and ensure that he is able to complete his education despite being excluded from school, so that he does not drop into anti social behavioral patterns. Anne’s health problems also pose a risk to the extent that they affect Gary’s welfare. The Every Child matters program includes new policies to improve parental capacity as a part of the framework of child protection. Such policies also support the need for refocusing of social practice from a user perspective.16 A study by Murray in Essex indicates that behavior management strategies are helpful in providing a parent with the skills and competence to deal with their children’s behavior.17 The Children Act of 1989 places the responsibility on Councils with Social Service Responsibilities (CSSR) to safeguard the welfare of children in their area18. As a result, this places local authorities under a duty to make investigations when they suspect a child may be facing harm19 or when they are directed by the Courts to carry out such an investigation20. They may also make arrangements with others to provide services to children on their behalf.21 The CSSRs also have to work with local authorities, who are empowered22 to make enquiries if they suspect a child in their area may be suffering from harm. The impact of Section 47 of the Children Act of 1989 has therefore been such that there is now an increased focus on the investigative aspects in child protection and determining child welfare as opposed to a more supportive family based intervention process.(DOH 1995). In Anne’s case, it appears that an integrated approach by local authorities may be required to ensure that adequate levels of support are provided to her to the extent that it produces a beneficial effect in achieving educational outcomes and preventing Gary’s behavioural problems within the scope of the family environment. c. While there is a wealth of legislation available on child protection as detailed earlier, there is still a lack of clear guidance available to child protection practitioners on the new legal systems and the application of such direction within the local framework23. But through the evolution of legislation and guidance and the performance indicators that have been mooted by the Government, social work practices are being constantly shaped and refined and have also recently begun to incorporate user perspectives24. The Children Act of 2004 requires that children’s needs and wishes must be ascertained as far as possible25, before making a determination on what services will be provided. Schedule 22 of the Children Act of 1989 also requires that when a child is in need, the child’s needs are to be assessed not only under the Children Act of 989 but also under the Education Act. Local agencies are required to cooperate with each other in ensuring that the child’s needs are met.26 However, local authorities are allowed some discretion in that they are to take reasonable steps to make provision they consider to be adequate.27 As a social worker, there will be no mandatory requirement for provision of services to Gary. His needs are to be assessed and his wishes ascertained since he is 14 years old and help provided only if there is cooperation and compliance forthcoming from Gary. Based upon the priority that is accorded to his needs, he may need to be provided educational assistance through the Pupil referral program. Since there is also provision in the Children Act for assistance to be provided to family members in aiding the welfare of the child, Anne may also be eligible for some assistance in coping with Gary. If treatment is to be provided to Gary, it must be assessed under the standards set out in the case of Gillick v West Norfolk and Wisbeck Area Health Authority.28 This case has set out a test that assesses the young person’s level of understanding and maturity in regard to the treatment that is being proposed. There is no fixed age at which it is possible to say that a child is mentally capable of understanding the nature of medical treatment and therefore capable of providing consent. The competence to consent is thus to be based upon the level of understanding demonstrated by the child. Bibliography: * Gillick v West Norfolk and Wisbeck Area Health Authority (1986) AC 112 * Government report titled: Parental Separation; Childrens Needs and Parents Responsibilities (2004) CM6273 * Miller, C (2004) Producing Welfare, a Modern Agenda, Basingstoke: Palgrave Macmillan. * Murray, K (1999) Treatment Issues in Sexual Abuse in Hill, M (ed), Effective Ways Of Working With Children and Their Families, London: Jessica Kingsley Publishers * Spratt, T and Callan, J (2004) “Parents’ Views on Social Work Interventions in Child Welfare Cases”, British Journal of Social Work, 34, pp. 199-224 * Taylor, A (2006) “Child Protection: Guidance needs fleshing out to gain professionals confidence’, Community Care, Issue 1619, 20-26 April, pp.12-13. Legislation cited: * A Guide to Anti-Social Behavior orders and acceptable behavior. http://www.crimereduction.homeoffice.gov.uk/asbos/asbos9.htm>; April 22, 2008 * Children Act of 1989 * Children Act of 2004 * Crime and Disorder Act 1989 * Education Act of 1996 * Education Act of 2002 * School Standards and Framework Act 1998 Read More