The Children Act 1989 - Essay Example

Child & Family Law-Assignment Q2. To What Extent does the Children Act 1989 achieve its aim of Protecting Children that have been or may be harmed by their families? In examining the effects of the children Act 1989 in protection children, we may look at the measures that were introduced by the Act. The children’s Act makes every available mechanism to address the protection of children. The children Act lays down the cardinal principle regarding the entire welfare of the child that: ‘when any court determines any question with respect to: (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration’.1 It is from this background that the Act further introduces Particular sections which directly address the protection of children. One of the new features of the children Act 1989, is the introduction of care orders under s.31. This is an order that commits a child into the care of a particular local authority. The effect of a care order obviously results in the child in question to live in a local authority community home, or with local authority foster parents. Once the child goes into care, there is no doubt that the legal effect is that the local authority gains parental responsibility for the child while the order is effectively in force. It should be noted that a care order automatically brings to an end any residence order that may exist. The Children Act 1989 contains provisions relating to the services that a local authority must or may provide for children and their families. It’s very important to note that for the first time services for children in need and disabled children are brought together under one statute. The government’s voice in protecting the children is very loud and clear. There is no doubt that the Children Act 1989 came into being specifically for the protection of children, and the intention of parliament seems to have been obvious. It is worth mentioning that, under section 17(1) of the children Act 19898, every local authority has a general duty: “To safeguard and promote the welfare of children in their area who are in need; and so far as is consistent with that duty to promote the up bringing of such children by their families, by providing a range and level of services appropriate to those” But how does the Act reach out the child ‘in need’? The Act defines a child as being ‘in need’ if: “(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision of him of services by a local authority under this part; (b) his health or development is likely to be significantly impaired or further impaired, without the provision for him of such services; or (c) he is disabled”2. The legal term ‘health means physical or mental health, while development means physical, intellectual, emotional, social, or behavioral development’3 In cases where a particular local authority has information regarding a child likely to suffer harm outside its area, it is expected to inform the local authority in the area where the child lives or proposes to live. “There is a duty to inform another authority, if a child who the authority believe is likely to suffer harm lives or proposes to live in the area of that authority”4. It must be stressed that the duty expected under schedule 2, paragraph 4, is a legal duty that must be taken seriously. Guidance and Regulations 2008 adds: “If the child is assessed as being in need and the local authority is concerned that the child is suffering, or is at risk of suffering, significant harm, the authority is under a duty to make, as soon as practicable and, in any event, within 48 hours of the authority receiving the information, such enquiries as it considers necessary to enable it to decide whether it should take action to safeguard or promote the welfare of the child and what action may be appropriate in the circumstances”5 In cases where a child suffers, or is likely to suffer harm, a local authority may opt for care or supervision order. When a local authority applies for a care or supervision order, it must satisfy the court that two threshold criteria are met: ‘ (a) the child concerned is suffering significant harm, or likely to suffer significant harm: and (b) the harm or likelihood of harm is attributed to- (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control’6 What amounts to harm? Harm is defined as “ill-treatment or the impairment of health or development including, for example, impairment from seeing or hearing the ill-treatment of another”7 Bromley8, seems to suggest that ill-treatment is sufficient proof of harm in itself and it is not necessary to show any kind of impairment of health. Ill-treatment under s. 31 (9) of the children Act includes sexual abuse. In any given case resulting in child protection, S. 47 is usually used as the first step to child protection. Short-term protection for-instance is governed by Part V of the Act. The two principal court orders under the Act, are emergency protection and child assessment orders. The police also has power to take a child into police protection. The real purpose of an emergency protection order is to provide for the immediate removal or retention of a child in question in a genuine emergency. It should be noted that these orders are used exceptionally. In X Council v B (Emergency protection orders),9 Munby J, had this to say:” (i) An Emergency protection order, summarily removing a child from his parents, is a draconian and extremely harsh measure, requiring exceptional justification and extraordinarily compelling reasons. Such an order should not be made unless the family proceedings court is satisfied that it is both necessary and proportionate and that no other radical form of order will achieve the essential end of promoting the welfare of the child separation is only to be contemplated if immediate separation is essential to secure the child’s safety ….. imminent danger must be actually established. (ii) Both the local authority which seeks and the family proceedings court which makes an emergency protection order have a heavy burden of responsibility. It is important that both parties (the local authority and family proceedings court) approach every application for an emergency protection order with an anxious awareness of the extreme gravity of the relief being sought and a regard for the European convention rights of both the child in question and the parents.” It is worth noting that S. 44 (1) provides the grounds upon which an emergency protection order may be made, that on the application of any person the court is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he: (i) is not removed to accommodation provided by or on behalf of the applicant; or (ii) does not remain in the place in which he is then being accommodated. Under S. 44 (1) (b), an emergency protection order can be made upon application of a local authority where they are making enquiries, or have reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm, and the enquiries are being hampered by access to the child being unreasonable. The next measure the Act provides for is care orders. In placing the child in the care of the designated authority, the court should consider why a care order is preferable to the less draconian alternatives of a supervision order or even a residence order. Bromley outlines that:“ There are three broad reasons why a care order might be preferred to a supervision order where the child is to stay at home. First, it allows the authority to remove the child in cases of emergency and place him or her elsewhere on a long- term basis- in each case without judicial sanction. Secondly, it enables the local authority to share responsibility with the parents, which is an appropriate consideration where the parents are or are likely to be unco-operative. Thirdly, it gives the local authority specific duties in relation to the child which may be thought to go beyond the general duties imposed by Part III of the 1989 Act, but this should not be used as an excuse to encourage the local authority to perform statutory duties which they already owe to a child in need under Part III.”10 In Oxfordshire County Council v L ( care or supervision order),11 a care order was not made because, notwithstanding the parents’ lapses in the past, they were not un co-operative and seemed to have the capacity to work with and learn from the local authority social worker. The court can make interim care or supervision orders conferred by S. 38. The orders may be made either following a S. 38 direction by the court to a local authority or investigate the child’s circumstances, or on an adjournment in care proceedings. Such orders cannot be made unless the court: “…is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as….mentioned”12. In Re B (A Minor) (care order: criteria),13 there was evidence before the court to satisfy the test that a girl was likely to suffer significant harm( arising from allegations of sexual abuse), but difficulties arose over the attribution of the harm. Douglas Brown J stated that it was enough that he had reasonable grounds for believing that the S. 31 threshold was satisfied. In a much later decision, Lord Nicholls stressed: “ …is to enable the court to safeguard the welfare of a child until such time as the court is in a position to decide whether or not it is in the best interests of the child to make a care order. When that time arrives depends on the circumstances of the case and is a matter for the judgment of the trial judge. That is the general, guiding principle.”14 A final care order should not be made if important evidence remains outstanding or unresolved. In Hounslow London Borough Council v A,15Magistrates were held to be wrong to make a final care order at a time when the assessment of the father as a full-time carer had not been completed. In Re M-H (A child) (care order)16, the mother, M, had four children by different fathers. There were two older children, together with D aged seven and K aged three. None of the fathers, except F, the father to D, played any part in the children’s lives. In 1999, before K was born, the local authority applied for emergency protection orders in respect of the three eldest children. The concerns expressed were the heavy drinking by M, and, F’s domestic violence. He also had a criminal record for violence. By 2001,she (M) was still drinking heavily, and the local authority took the children away from her. D was placed with F who was no longer living with M, for assessment. After a conviction for a public order offence and a community rehabilitation, F, was still taking care of D. An independent social worker reported that the child D, was thriving in his father’s care. In 2003, with the support of the local authority, a residence order was made in respect of D in favour of F together with a 12 month supervision order which, when it expired, was not renewed. K was born in the same month as F completed his community rehabilitation, by which time he had left M, who was drinking heavily again. The local authority began care proceedings in respect of K. K was placed in foster care in 2006. F put himself as a potential carer for K, and the local authority carried out a risk and parenting assessment. The assessment was un favourable, and the local authority ‘s care plan for K was that he be adopted. F was made a party to the proceedings, but his request for an independent assessment was refused. The judge made a care order and a placement order. F appealed against the refusal of an independent assessment. The court of Appeal allowed the appeal and directed an assessment from a jointly instructed expert, followed by a further hearing. At should be noted from the above case, that the court uses the care and supervision orders exceptionally. At this point, we may address supervision orders. The supervision orders are made on the same basis as care orders. They must meet the criteria threshold. Unlike care orders, supervision orders do not confer parental responsibility in the local authority. The child remains at home with the parents. It is the supervisor’s responsibility to: (1) take every step to effect the order, (2) advise, befriend the supervised child, and assist in any way possible. A supervision order may require the child under supervision to comply with directions given by the supervisor, for example, requiring the child to live at a place specified by the supervisor. In certain cases, a supervision order can also require the child in question to submit to medical or psychiatric examination as directed by the supervisor. This requirement will only be included where the court has been satisfied on evidence as to its needs. A supervision order usually lasts for a year, but the supervisor may request for an extension but can only be in place for a maximum of three years. In conclusion it may however be argued that, children are still dying even under local authorities’ hands. The government has been working tirelessly to ensure that children are protected at all costs using the legal provisions available. Haringey local authority in London was on the spotlight over the death of baby peter in 2007 under its care. The controversy led to the sucking of the former director of children’s service, Sharon Shoe-smith. But that is not to say the Act is ineffective. The local authorities must take their responsibilities seriously to ensure that the protection of children is up held as provided for by the children Act. The decision to suck Sharon Shoe-smith is such measure required to reach the need of every child under the risk of being harmed or have been harmed. In baby P’s case review the leader of Haringey council Cllr George Meehan stated:” In the fifteen months since baby Peter died Haringey’s social workers have continued to do their best, often in very difficult circumstances to protect vulnerable children in our community. Despite the pressure of the last few months and weeks, they continue to put the interests of those children first…. There has however, been failure by all the agencies involved to protect this little child from the pain and suffering which led to his death; and for that we are truly and genuinely sorry”17 It would be submitted that the children Act 1989 remains effective in achieving the aim of protecting the vulnerable children from harm though much is desired from local authorities to recruit people suitable for this important task. 2500 Words Bibliography Bainham, A, (2005), The Modern law, & children, 3rd Ed, Bryan, D,(2004), Family law, 3rd Ed, Straight Forward Publishing, East Sussex Herring, J,(2009),Family law, 4th Ed, Pearson Education Lowe, N, and, Douglas, G. (2007), Bromley’s Family law, 10th Ed, Oxford press, Oxford. McFarlane, A, and, Reardon, M, [2006], 1st ed, Child care and Adoption Guide, Jordan publishing Ltd. Puttick, K,(2003), child Support law, Emis Professional Publishing Ltd, Hertfordshire. Internet http://www.cps.gov.uk/legal/v_toz/safeguarding_children_as_victims_and_witnesses/ http://www.haringey.gov.uk/index/news_and_events/latest_news/babyp.htm http://www.opsi.gov.uk/ACTS/acts1989/Ukpga_19890041_en_/.htm http://www.everychildmatters.gov.uk/adoption/ http://www.everychildmatters.gov.uk/workingtogether/ Statutes The Children Act 1989 The Adoption Act Read More