Children Law and Practice - Case Study Example

Question a) Steve, is concerned about Shazia’s alcoholic consumption, given that she has custody of two children fathered by him. Complicating matters for Steve, Shazia has cut off his access to the children. In order for Steve to address his concerns with respect to the welfare of his children he may apply to the court for specific orders pursuant to the Children Act 1989. Steve’s options include a Residence Order1 or a Contact Order2. Steve may also be liable to make financial provisions for the children pursuant to the Children Act, 1989, Schedule 1.3 The cumulative impact of each of these orders is to bestow or restore some measure of parental responsibility on Steve and to permit him to participate in safeguarding the welfare of his children. A Residence Order is made by the court in circumstances where parents have separated and the issue of primary residence and contact requires settling. Section 8(1) provides that a Residence Order is an order which settles: “the arrangements to be made as to the person with whom a child should live.”4 Residence Orders are typically made where there has been a dispute regarding where the child should live or the child’s welfare is at stake.5 Obviously, Shazia’s alcoholic consumption has given rise to Steve’s concern about the welfare of his children, particularly since he is denied access to and contact with the children. In addition, a Residence Order will determine Steve’s parental responsibility for the children.6 On the facts of the case there does not appear to be any real dispute concerning where the children should live. However, Roxy, the oldest child has indicated that she wants to live with her father. Courts when seized of an application for a residence order will typically take into account the wishes of the oldest child.7 Moreover, a Residence Order will confer upon the unmarried father parental responsibility for the child.8 This might be the an appropriate route for Steve, since Roxy wants to live with her father and he is concerned about Shazia’s drinking while the children are with her. The fact that he is denied contact and access to the children makes it impossible for him to ensure that the children are not at risk. Therefore, a residence order will provide him with the authority to ensure that the children are not exposed to risks of harm. Be that as it may, the court will have to be satisfied that Steve’s living arrangements are such that adding two children to a family with three children and two adults will not substantially alter the standards of living that the children have become accustomed to.9 The courts are concerned with the best interest of the child and not what the parents might want. The courts will take account of all the circumstances of the case, keeping in mind at all times, the children’s welfare first and foremost. The presumption, although rebuttable, is that a child should not be impacted by the parents’ separation and should remain in the family home in order to maintain stability.10 Obviously, if a child’s stability is at risk while remaining in the family home, the presumption can be rebutted. On the facts of the case, the mother has cut off the children’s access to and contact with their father. This fact demonstrates that remaining in the family home with their mother has compromised the children’s stability. Another appropriate order is a Contact Order which is: “an order requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.”11 The court when considering the making of a contact order, as with any order regarding children and their upbringing, will take into account the welfare of the child which is of paramount importance.12The courts have consistently maintained that it is important that the child of separated parents maintain contact with the absent parent.13 A contact order differs from a parental responsibility order in that the former does not confer upon the applicant, parental responsibility. 14 In all events, contact orders are viewed as the child’s right rather than the parents’ right.15 In this regard, the courts will not be influenced by what Shazia or Steve may want, but rather the child’s right to maintain contact with the absent parent. Unless Shazia has evidence of previous domestic violence against Steve, or evidence of some form of abuse or neglect toward the children, it is unlikely that the children will be denied contact with their father.16 In all the circumstances it might be more feasible for Steve to make an application for a Contact Order. It is unlikely that the court will be satisfied that alcoholic consumption alone is sufficient to remove the children from their current environment unless there is evidence of child abuse or neglect.17 Although the court will take into consideration the wishes of the oldest child, the court will always defer to the best interests of the children.18 To this end, the court begins with the presumption that the children’s interest is best served by maintaining stability as far as it is possible to do so. Similarly, the court will be predisposed to rule that the children’s best interest requires that they remain in contact with the absent parent, while remaining in the family home. A number of factors concern the courts when deciding whether or not to uproot children, and these maters relate to schools, friends, social and familial support and continuity.19 The court will likely make an order against Steve for financial provisions in respect of the two children. In such a case, the courts will only take into account the needs of the children, specifically, their education, social welfare and their basic clothing, health and care needs. Hale L.J. that such an order will only correspond with the children’s needs and for the duration of their respective dependency.20 Hale L.J. specifically stated that: “There is a long line of authority...that children are entitled to provision during their dependency and for their education, but they are not entitled to a settlement beyond that, unless there are exceptional circumstances such as disability, however rich their parents may be.”21 On the facts provided, there does not appear to be exceptional circumstances justifying a financial provisions order that goes beyond provisions for education and maintenance. The court will also take into account the income of both Shazia and Steve and their respective expenses in determining how much is an appropriate sum for Steve to contribute toward the education and maintenance of the children.22 Child maintenance assessments are made in this manner under the Child Support Acts 1991 and 1995.23 In making a financial provisions order, the court will not take Steve’s affair into account because financial provision orders are not meant to punish the parent against whom the order is made.24 Question 1(b) Parents who are suspected of abusing or neglecting their children may be charged with a crime and prosecuted under the emergency protection provisions in the Children Act 1989.25 In addition, specific orders relating to the abused or neglected child can be made. The resulting orders are typically Care and Protective Orders pursuant to Sections 33 and 35 of the Children Act 1989, respectively.26 Parts IV and V of the Children Act 1989 introduced a number of obligations and powers on the part of local and other authorities with respect to the “care and protection” of children at risk.27By virtue of Section 47 of the 1989 local authorities have a duty to inquire into the welfare of any child who is suffering or likely to suffer from “significant harm” and to determine what if any action should be taken in response.28 In this vein, local authorities may make an application to the courts for an emergency protection order for up to at least 8 days in an appropriate case.29 Likewise, Section 31 of the 1989 makes provision for local authorities to obtain a care or supervision order which is typically granted on an interim basis in the first instance.30 In order to satisfy the court of the necessity of issuing a care or supervision order the local authority must satisfy the courts that the child in question is suffering harm or is at significant risk of being harmed as a result of a lack of satisfactory parental care or is uncontrollable.31 Section 46 confers some duties on police officials with respect to protection of children at significant risk of harm or suffering harm.32 By virtue of Section 46, police are under a duty to either remove children from an environment where they are being harmed or are at significant risk of being harmed and to ensure that children are not removed from a safe place.33 The Children Act 1989 provides some guidelines for social workers that creates some residual difficulties by necessarily invoking the Human Rights Act 1998. By virtue of these guidelines social workers are required to takes steps to remove the suspected adult abuser from the home, rather than the children at risk.34 Moreover, Section 52 Schedule 6 of the Family Law 1996 amends Sections 38 and 44 of the Children Act 1989 so as to enable the courts to remove the suspected adult abuser from the home.35 Order excluding, restraining or removing suspected adult abusers from the family home may only be provided to local authorities if an emergency protection or care order is made.36 On the face of it the measures available to local authorities appear to be primarily aimed at protecting the children. However there are some residual difficulties that challenge whether or not there is correct balance with respect to protecting children at risk and protecting the rights of the suspected adult abuser. When investigating suspicions of neglect and abuse, authorities are required by virtue of the Human Rights Act 1998 to take into account human rights protections.37 This requires a delicate balancing of the children’s right to be protected and the rights of the alleged abusers with respect to the protection of the law. For example, the right to privacy and the right to due process generally. The result is, that in balancing these competing interests, the emphasis appears to be on safeguarding the interest of those parents who might be wrongly suspected of child abuse and neglect. This is evidenced by research findings that far too many children are left in abusive homes.38 Ultimately, the Human Rights Act 1998 indorses the European Convention on Human Rights.39 The European Convention on Human Rights provides for protection against unreasonable searches and seizures and protection of privacy in one’s home and personal correspondence.40 With these protections in place, it is easy to understand why authorities in the UK are perceived to be reluctant to intervene in family life.41 Moreover, this guarded approach has led outside observers to question whether or not English law takes the issue of child abuse and neglect seriously.42 Another shortcoming in the operation of the Children Act and its emergency protection provisions with respect to the child, is that it does not clearly define parental responsibility.43 In other words, with no real guidance as to what constitutes parental responsibility, the question of abuse and neglect is open to interpretation, leaving the determination of issues involving child abuse and neglect unpredictable and uncertain. If parental responsibility is not clearly defined, it is difficult to know with any degree of certainty, when that responsibility is breached so that it amounts to neglect and abuse of the child. Complicating matters, the Children Act, provides for emergency protective orders in circumstances where a child may be at significant risk of danger.44 However, evidence of a significant risk of harm requires a high standard of proof. This was established by the case of Re H [1996] AC 563 which dismissed the application of a balance of probability test.45 This means that in order to prove that a child is exposed to a significant risk of harm, the evidence must be virtually iron clad. The primary difficulty with the high standard of proof is that it does not correspond with the regulatory regime permitting intervention. As Franklin argues, the fact that proof of abuse and neglect is at such a high standard dictates that there should be a lower threshold for prevention and intervention.46 In other words, authorities should be permitted to take action for preventing suspected child abuse, more liberally. This is absolutely necessary since the courts insist upon a high standard of proof of abuse and neglect. If authorities are not given some latitude to prevent and intervene in suspicious cases, the child remains at risk of harm until there is proof beyond a reasonable doubt. By failing to take this approach, the law is entirely imbalanced with respect to safeguarding the interest of the child and the rights of those who might be unfairly or wrongly suspected of child abuse. The emphasis is obviously on the protection of human rights, particularly the right to privacy in ones family and home. As Franklin notes: “As things stand, efforts to protect children are being obstructed and often the inevitable is being delayed. There is at least a suspicion that children are being sacrificed to an ideology which ring-fences the family.”47 Another difficulty of practical importance is the limited resources of social workers. One study reports that there are children who have been the subject of care and protective orders who have not had the benefit of the allocation of social workers.48 It would therefore appear that, even when the laws function to protect a child at risk, that child may not have the benefit of the protection of the law, after all there may not be a social worker assigned to his or her case. Proof of physical abuse is also compromised by the fact that the law permits parents to use the defence of “reasonable chastisement.”49 Moreover, the Children and Young Persons Act 1933 which makes cruelty toward children a criminal offence,50 exempts parental punishment from criminal liability.51 This explains why there is evidence that physical punishment is prevalent and accepted in the UK.52 Similarly, the Children Act 1989, which went on to criminalize and forbid corporal punishment outside of the family home, made no effort to contain the same within the family structure.53 The result is that parents who are suspected of child abuse and neglect not only have the protections contained in the Human Rights Act 1998, they also have the protection of law by virtue of the defence of reasonable chastisement at common law and under the Children and Young Persons’ Act 1933. The inevitable result is that parents who actually abuse and neglect their children are accorded the same measure of protection as those parents who are wrongly suspected of the same conduct. To this end it can certainly be argued that the law is unfairly balanced in favour of parents who are wrongly suspected of child abuse. The emphasis appears to be on protection of adult human rights and the right of the parent to reasonably punish the child. When these aspects of the law are emphasised, the protection of children who are in danger of abuse and neglect are compromised. It is therefore hardly surprising that authorities are reluctant to intrude into the family home unless cases are of such severity that the protection of human rights and proof beyond a balance of probabilities can be sustained. Bibliography Children Act 1989. Children and Young Persons Act 1933 Child Support Act 1991. Child Support Act 1995. European Convention on Human Rights. Family Law Act 1996 Franklin, B. (2002) The New Handbook of Childrens Rights: Comparative Policy and Practice. Routeledge. Gilmore, Stephen. “A Critical Perspective on the Welfare Principle” [1997] 1 FLR 502 G v F (Contact and Shared Residence Application for Leave) [1998] 2 FLR, 799. Hershman D. and Mcfarlace, A. (2003) Children Law and Practice. Jordan Publishing Limited. Hester, M.; Pearson, C. and Harwin, N. (2000) Making an Impact: Children and Domestic Violence. Jessica Kingsley Publications. Human Rights Act 1998. J v C. (Child Financial Provision) [1999] 1 FLR 152. Re A (Contact Domestic Violence)[1998] 2 FLR 42. Re H [1996] AC 563 Re J [2005] 2 FLR 802 Bibliography Family Law Act 1996. G v F (Contact and Shared Residence Application for Leave) [1998] 2 FLR, 799. Read More