Child Care Proceedings and Children in Need - Essay Example

Child Care Proceedings Inserts His/Her Inserts Inserts Introduction The protection of children has been one of the most important aspects of our society. In the last few decades, children have been exposed to many dangers that make it difficult to completely protect them. The proliferation of drugs, violence and sex in our daily life has reached such proportions that it has a large impact on children (Wilson & James, 2007). Due to this, the government has developed various laws that seek to protect children and secure a positive future. The child care proceedings in the U.K. seek to safeguard the welfare of those children in need while also promoting how such children are brought up by their families. In order to do this, child care proceedings gives local authorities the power to investigate those cases in which they have concerns about a child’s welfare, and decide whether they have to take any actions to safeguard the welfare of the child (Department of constitutional Affairs, 2006). Local authorities can only institute care proceedings in cases where they believe that a child is suffering, or is at risk of significant harm resulting from the way they are being taken care by their guardians, or when the child is beyond parental control (House of Commons, 2013). Significant harm in this instant refers to mental and physical manifestation of harm, sexual abuse, as well as ill treatment that is not necessarily physical. A child is considered beyond parental control in situations where they continually manifest severe disciplinary behaviour such as drug addiction, running away from home, sexual deviance, truancy or defiance, and where parents of these children are unable to influence their actions. Children in Need The key legislation that sets the foundation of child care proceedings and well as social care practice in the U.K. is the Children Act 1989. The Act gives local authority the power to identify and safeguard the welfare of children in need. The concept of a child in need first appeared in part III section 17 of the Act. According to section 17 (10) of the act, a child in need can be described as: i. A child who is unable to achieve or maintain, or a child who lacks the opportunity to achieve or maintain, an acceptable level of health and development without the aid of local authorities. ii. A child whose health and development is at risk of being impaired or of facing further impairment without the aid of local authorities. iii. A child who has significant and permanent disabilities In order for a given child to be eligible as a child in need and therefore requiring intervention from local authorities, there has to be a process of assessment after which eligibility criteria will be applied and finally, application of multi-agency protocols to determine which agency best fits the child’s needs. Bath and North East Somerset have developed a criteria based on the Children Act 1989 about what constitutes a child in need (ERSCB, 2013). Accordingly, a child in need entail: i. Young people and disabled children with significant behavioural and emotional difficulties ii. Young people and children facing significant harm such as abuse or neglect. iii. Children under the age of 18 years leaving care and leaving independently such as the homeless or children leaving alone in squalid conditions. iv. Children who are at risk of being involved in crime or are already engaging in crime and the use of substances. v. Children that have been separated from their parents and are under the care of local authorities, special education facilities or hospitals. vi. Children who are responsible for caring for others alone such as younger siblings, or their own children. vii. Children who face the risk of a family breakdown e.g. children with parents who earn very low incomes, children in low income one-parent families, or children living in overcrowded and temporary accommodations. Threshold Criteria Once local authority suspects that a child is in need, they may take steps that are meant to safeguard the welfare of the child. These steps may sometimes necessitate the removal of the child from his primary caretakers. When children need any assistance from their local authority, they are subject to public children law. In modern times, children in need and require assistance from local authorities are often than not the main focus of news headlines. Public children law is one area of law that is usually challenging and emotive. High profile cases such as the death of Victoria Climbie in 2000 usually focus on areas where local authorities and the legal system fail in its duty to protect children who are quite vulnerable. It is due to this, that a lot of review has been carried out on the public children law and the powers of local authorities. Child care proceedings are very serious and the Child Act (1989) has stringent criteria specified by s31 (2) CA 1989. Under this section of the act, before a care order is give, the court must be satisfied that: a. The child involved is suffering, or is under the risk of significant harm b. The harm posed to the child can be attributed to: i. The care that the child receives, or is likely to receive without the court order, is not what a parent is expected to provide ii. The child is not under parental control This is what is referred to as the threshold criteria as the courts must take these facts into careful consideration before a protection order is passed. The criteria in s31 (2) are collective and must be both met before the court considers passing any protective order. In addition to s31 (2), the court must also consider: i. The welfare of the child is the dominant consideration under the act ii. The welfare checklist must be utilized by the court iii. The opinion that a delay in proceedings possess sufficient risk to the child’s welfare iv. The opinion that the court should not issue any order unless making such order is beneficial for the child than not making an order at all. Under the child act, ‘harm’ is used to refer to impairment of health and development or ill treatment. The act defines development as physical, behavioural, social, emotional, or intellectual development. Health denoted the physical and mental health of the child while “ill-treatment” comprises of sexual abuse and all forms of ill-treatment that is not physical (Cobley & Lowe, 2009). Significant Harm According to the Children Act 1989, harm is defined as the impairment of health and development of ill-treatment. According to Stafford et al. (2013), significant harm denotes the threshold that validates intervention to ensure the welfare of children, and empowerment of Local Authorities to make enquiries pertaining to whether an action should be taken to safeguard and promote the welfare of children in need. At the moment, the legislation does not give a precise distinction between “significant harm” and “harm”. Social workers should therefore take significant to apply its basic definition (Ministry of Justice, 2009). The situation surrounding the child as well as the characteristics of the child should also be taken into account. For example, a 2 year old child left alone faces significant harm, while a child of 15 years old is not at so much a risk. In order to define significant harm pertaining to a particular child, their health and development should be compared to what is expected from that of another child of similar age. For example, when considering a child failing to meet the standard physical or development milestone, it is obligatory to find out if this is a result of bad parenting (Burton, 2012). Currently, there are no well-defined criteria to judge whether a certain situation fulfils the threshold of significant harm. This is because significant harm can be as a result of a single traumatic event or a combination of established events. As noted by Working Together (2010), some children exist in social and family environments where their development and health are neglected. In these instances, it is the undermining capacity of long-term physical, sexual or emotional abuse that results in impairment to the degree that it constitutes significant harm. Working Together (2010) has identified several factors that should be considered in the effort to identify and understand significant harm: The manner in which the harm presents itself, whether through abuse or neglect The impact on the development and health of the child The development of the child within the family environment and the society at large The presence of special needs such as communication disability, medical condition or physical disability that may have an impact on how the child is cared by the family and the child’s development. The parent’s ability to meet the needs of the child Evidence and Standard of Proof The standard of proof denotes the legal burden that lies on an applicant to prove that the threshold criteria have been achieved (Williams, 2003). In child care proceedings, the standard of proof is the basic balance of probabilities. In Re H and R (Child Sexual Abuse) [1996] 1 FR 80, it was held that the burden of proof lies on the applicant to show that the given events took place and that the standard of proof in all cases is the regular civil standard (Redmayne, 1999). Lord Nicholls of the House of Lords however argued that stronger evidence is need so that the courts are satisfied that an inherently improbable event actually took place than where an event may have taken place. After the courts are satisfied that a given event occurred as per the required standard of proof, depending on the evidence, it may then make a decision that a genuine risk of significant harm taking place at a later date exists. It is not imperative for the courts to be content that the significant harm expected is more likely than not (Sendall, 2014). In the Children Act 1989, Baroness Hale explained that the threshold criteria was put in place to protect both the children and their parents from unwarranted intervention from local authorities and that no protection could be expected if the threshold for intervention is based on unfounded and erroneous allegations (Bettle & Herring, 2011). Lord Hoffmann added that the principle put forward by Lord Nicholls (stated above) is not a rule of law, but rather an application of good judgment to what is needed in each individual case. He argued that it would be ridiculous for courts to assume serious conduct is unlikely to have occurred in all cases. For example, if a child was physically abused, it would be unreasonable to begin one’s argument by stating that physical assault is a serious matter and thus either parent could not have committed it. Before the Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141 was implemented, there was a lot of confusion and to the standard that constituted the balance of possibilities. After the act was passed, the position about the standard of proof was cleared. In any case involving child care proceedings, the local authority involve has to prove its care based on the balance of probabilities. During Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141, Baroness Hess argued that the standard of proof needed to ensure that the threshold is achieved under s31 (2) is the optimal balance of probabilities, neither less nor more (Choo, 2012). In order for the standard of proof to be applied, the courts should not consider the seriousness of the allegation nor the consequences. The probabilities inherent to the case are just something that should be considered in order to ascertain the truth. For example, if a child is brought with multiple fractures, it is unlikely that it was done by the parents, however if the facts collected establishes that the blame lies on the parents, it stops being improbable. It then follows that someone taking care of the child at that particular time must have been the cause of the multiple fractures, however improbable it is. By looking at the standard of proof in this manner, we find that the judicial process becomes easier. The civil standard is very easy to understand and all parties involved know what they are facing. However, several problems arise when experts differ. In criminal proceedings, these differences may result in an acquittal as sufficient doubt arises with no extra consideration needed past establishing the expertise and knowledge of the experts. However, in care proceedings, the judge has to make a decision which experts will be considered (Grand, 2009). Very few judges have the expertise in neuropathology thus it is impractical to expect them to choose between different point of views. The following cases provide guidelines that would solve some of the controversies that exist due to the standard of proof: Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567, [2004] 2 FLR 263 The reason of an episode or injury that cannot be scientifically explained stays undisputable. A problem arises when two explanations exists for a particular injury, one innocent and one not. Just because an injury recurs, does not prove that is non-accidental. Caution must be observed in situations where medical experts differ, one opinion failing to dismiss a reasonable possibility of an accident. The court must also take care of those experts with a scientific prejudice or are over-dogmatic. The court must also consider that science is fluid, and that today’s findings may be discounted by what we find tomorrow and that science has a way of illuminating what has been previously hidden. A County Council v A Mother [2005] EWHC 31 (Fam), [2005] 2 FLR 129, Ryder J The courts must assess the evidence from expert witnesses which consist of an analysis of the reasons presented for his opinions and the extent with which the evidence supports them. The courts must also look at the logic and uniformity of his evidence, precision and the degree to which an expert has presented an opinion and is unwilling to re-examine it despite further evidence, either as a result of bias or lack of independence. W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543 para [44], Wall LJ In child protection cases that involve severe and complex injuries, the evidence provided by experts has to be analysed carefully, added to the factual matrix, and gauged against the analysis of the credibility of the witnesses. In order to ensure that both the child and the parents receive justice, the evidence should be tested fully and undergo rigorous analysis. Re B (Care: Expert Witnesses) [1996] 1 FLR 667, at 670 (c)–(e): The role of experts in care proceedings is to advice but it is up to the judge to decide. If there are no facts that discount the evidence provided by the expert, and that is all the court has to go forward with, then it has to be accepted. Webster v Norfolk County Council and the Children (By their Children’s Guardian) [2009] EWCA 59, [2009] 1 FLR 1378 A theory in relation to the cause of a child’s injury must not be dismissed on the grounds that such causation is largely unusual, and that, in case where a child’s history contains a noticeably uncommon event, the likely connection between that event and the injuries must be appraised by experts at an early stage. The case laws described above, look at issues dealing with evidence and the standard of proof in child care cases. The interpretation of “significant harm” has a very large impact on the standard of proof. The characteristic of the evidence provide also has an important impact on the standard of proof as shown in the case laws above. The case laws provide above show how the interpretation of threshold differs and how to resolve them. Re S-B (Children) [2010] 1 FLR 1161 and the Future of Child Care Proceedings In this case, a 1 month old baby was brought to a hospital by his mother with severe injuries on his face and body. The perpetrator of the event was not identified and the courts held that both parents were considered as possible perpetrators. While the father had very little participation with the case, the court held that he posed a high index of suspicion. However, the courts could not exonerate the mother. The judge later assigned weights of suspicion of culpability to both parents whereby she considered the father as having a 60% probability of committing the crime and the mother a 40% probability. The judge however refused the mother’s request to be removed from the list of possible perpetrators whereby the mother argued that on the basis of the balance of probabilities, having a 40% probability meets that she did not cause them (balance of probability require a 51% probability to convict) (Grief, 2010). Most cases dealing with uncertain perpetrators have always been uncertain about what should be the standard of proof to be applied. Re O and N [2003] UKHL 18; [2003] 1 FLR 1169 looked at cases with uncertain perpetrators and argued whether the defendants should be exonerated due to the balance of payment criteria. Lord Nicholls argued that it would be unreasonable to assume that just because both parents have not been proven to be perpetrators, that the child would be safe from them. The decision from Re S-B (Children) [2010] 1 FLR 1161 has increased the risks to children in future care proceedings where their safety is being considered. When the judge offered to weight what she considered as probability of culpability, she opened an avenue with which defendant can ask to be exonerated (Reardon, 2009). Judges of “uncertain perpetrator” cases are more likely to face more requests for exoneration due to the findings they make. Another issue is that by asking itself whether a perpetrator can be “ruled out” relative to the harm faced by the child, the courts have set a very high bar and in turn has forced the parent to bear the burden of proof, where they have to prove that they are innocent without any reasonable doubt. This brings with it very serious issues where local authorities can wrongfully interfere in the life of families thus resulting in emotional pain. Apart from this, uncertainties arise in situations where the pool comprises of non-parental caregivers such as the nanny. The argument that arises is that, if there is a reasonable probability that the perpetrator was one of the parents, and there is a reasonable probability that the perpetrator was a relative stranger, how will this situation be differentiated from the one where it is impossible to prove on the balance of probabilities that the harm itself was non-accidental (Horwarth, 2014). That is, how can one be sure that in this cases, that the Re B s31(2) threshold criteria has been met (The care that the child receives, or is likely to receive without the court order, is not what a parent is expected to provide). Looking at these questions, the threshold criteria is blurry in cases where the perpetrator is unknown and thus it may result in the child being returned to a situation where he is at risk of significant future harm from his parents or he is separated under unfair and unjust accusations by the local authorities. Paragraph 49 of Re S-B (Children) [2010] 1 FLR 1161, looks at a case of an unknown perpetrator but with two children, one a victim, one born during proceedings. In this instance, Lady Hale argued that since the parent is a possible perpetrator in the case concerning one child, the threshold has been crossed as regarding the other child. The argument for achieving the threshold is that even if the parent is not the perpetrator, he or she failed to protect the child from the only possible perpetrator and as such the risk for future harm for the other child is very high. Conclusion The Children Act 1989 was instituted to safeguard and promote children’s welfare. Over the years, various cases have provided guidelines that redefine aspect of the act. The threshold criteria signifies the facts that the court has to consider in order to provide a care order. Significant harm on the other hand has not been fully described by the law and is open for description (within the sphere of common sense). The correct threshold for intervention has always been difficult however a judge has the right to analyse the evidence and the situation surrounding the case and come up with a reasonable decision as to what constitutes the required threshold. Cases such as those involving uncertain perpetrators have proven that it is possible for loopholes to occur that may lead a court sending the child back to a potentially harmful environment or wrongful intervention based on erroneous opinions. However, a judge should always consider expert witness as well as use his discretion to decide how to handle the issue of threshold. References Bettle, J. & Herring, J., 2011. Shaken Babies and Care Proceedings. Family Law, 12(1), pp.1370- 1375 Burton, F. 2012. Family Law. New York, NY: Routledge Choo, A. 2012. Evidence. Oxford: Oxford University Press Cobley, C & Lowe, N. 2009. Interpreting the Threshold Criteria under Section 31(2) of the Children Act 1989. Modern Law Review, 72, pp.463-465 Department for Constitutional Affairs. 2006. Review of Child Care Proceeding Systems in England and Wales. London: Department for Constitutional Affairs East Riding (ERSCB). 2013. Guidance for Threshold of Need and Intervention. Available at: http://www.erscb.org.uk [accessed on: 13 March 2014] Grand, A. 2009. Allegations of Violence: Prove It. Family Law Journal retrieved from http://www.jordansonlineservices.co.uk/NXT/flj.asp [Accessed on: 13 March 2014] Grief, A. 2010. Re S-B (Children): The Applicability of Re B in ‘Uncertain Perpetrator’ Cases. Family Law Week Available at: http://www.familylawweek.co.uk/site.aspx?i=ed53219 [Accessed on: 13 march 2014] Horwath, J. 2014. The Child’s World: Assessing Children in Need. London: Jessica Kingsley Publishers House of Commons. 2013. Children first: the child protection system in England. London: The Stationery Office Limited Ministry of Justice. 2009. Preparing for Care and Supervision Proceedings. London: Ministry of Justice Re B (Children) (Sexual Abuse: Standard of Proof) [2008] 2 FLR 141 Reardon, M. 2009. Case Preview: Re S-B [2009] EWCA Civ 1048. UK Supreme Court Blog available at: http://ukscblog.com/case-preview-re-s-b-2009-ewca-civ-1048/ [Accessed on: 13 March 2014] Redmayne, M. 1999. Standards of Proof in Civil Litigation. Modern Law Review, 167, pp.184- 185 Sendall, J. 2014. Family Law Handbook 2014. Oxford: Oxford University Press Stafford, A., Parton, N., Vincent, S., & Smith, C. 2012. Child Protection Systems in the United Kingdom: A Comparative Analysis. London: Jesicca Kingsley Publishers The Children Act 1989 Available at http://www.legislation.gov.uk/ukpga/1989/41/contents [Accessed on: 13 March 2014] Williams, C. 2003. Burdens and Standards in Civil Litigations. Sydney Law Review, 25, pp.165-166 Wilson, K. & James, A. 2007.The Childs Protection Handbook: A Practitioners Guide to Safeguarding Children. London: Elsevier Limited Working Together. 2010. A guide to inter-agency working to safeguard and promote the welfare of children. Available at https://www.education.gov.uk/publications/standard/publicationdetail/page1/DCSF- 0305-2010 [Accessed on: 13 March 2014] Read More