Child Protection Law and Policy

Seminar 2: Local Authorities 1

Reading:
● Gilmore and Glennon pages 604-612, 634-639

Gilmore and Glennon Chapter 10

Chapter 10: Children needing services, care and protection
 The upbringing of children within families is desirable and the state does not intrude unless
there is consent or stated conditions for state intervention are fulfilled
 This requires the law to identify the point at, and basis upon, which the state is entitled to
intervene
 The relevant law is principally set out in the CA 1989
 Section 10 of the CA 2004 requires each local authority in England to make arrangements to
promote cooperation between the authority and its relevant partners
Chapter 10, Section 2: Part III of the CA 1989

 This part is concerned with the duty of every LA to provide support for children and their
families
 In carrying out its functions, the LA can call on the support of other agencies, any LA, local
housing authority, health authorities or any authorised person
 Fundamental to the thinking in Part III of the CA 1989 is the principle that it is normally in
the best interests of children to be brought up by their own families, and the expectation is
that a LA will, where possible, work in partnership with parents
 Section 17 states that:
(1) It shall be the general duty of every local authority …
(a) To safeguard and promote the welfare of children within their area who are in need;
and
(b) So far as is consistent with that duty, to promote the upbringing of such children by
their families, by providing a range and level of services appropriate to those
children’s needs
Chapter 10, Section 2.1: ‘Who are ‘children in need’?

 Section 17(1) provides that a child shall be taken to be 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 for
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.
Chapter 10, Section 2.3: Provision of accommodation for children

 LAs have a general duty to take steps, so far as reasonably practicable, to secure sufficient
appropriate accommodation for the children whom the LA may need to look after
 Section 20(1) of the CA 1989 provides:
Every LA shall provide accommodation for any child in need within their area who appears
to them to require accommodation as a result of –
(a) There being no person who has PR for him;
 (b) His being lost or having been abandoned; or
(c) The person who has been caring for him being prevented (whether or not permanently,
and for whatever reason) from providing him with suitable accommodation or care
Chapter 10, Section 4: Investigation
Section 4.1: Investigating whether a child is suffering, or is likely to suffer, significant harm

 A LA have a duty in section 47 of the CA 1989 to investigate cases in which it is suspected

that a child may be suffering or likely to suffer significant harm
 Section 47(1) provides:
Where a local authority –
(a) Are informed that a child who lives, or is found, in their area –
(i) Is the subject of an emergency protection order; or
(ii) Is in police protection
(b) Have reasonable cause to suspect that a child who lives, or is found, in their area is
suffering, or is likely to suffer, significant harm
The authority shall make, or cause to be made, such enquiries as they consider necessary to
enable them to decide whether they should take any action to safeguard or promote the
child’s welfare.

 In R(S) v Swindon Borough Council and another, Scott Baker J commented that: the
threshold is quite low. This is hardly surprising as the LA’s obligation is to investigate i.e.
make enquiries with a view to deciding whether to take any action to safeguard or promote
the child’s welfare
 Enquiries under section 47 are in particular directed towards establishing three things:
- Whether the authority should make any application to the court, or exercise any of their
other powers under the CA 1989 with respect to the child
- Whether it would be in the best interests of a child who is the subject of emergency
protection to be in LA accommodation
- And whether in the case of a child who has been taken into police protection, it would be
in the child’s best interests for the LA to ask for an application to be made for an
emergency protection order under section 46(7)
 Section 47 does not give a LA coercive powers and nothing in section 47 empowers a LA to
enter premises, despite the fact that one of its duties when conducting its investigation is to
take such steps as are reasonably practicable to obtain access to the child
 Rather the LA is reliant on the person who has care of the child allowing them to see the child
 If, at the conclusion of their enquiries, the LA decides not to apply for a court order in respect
of the child, it must decide whether it is appropriate to review the case at a later date and, if
so, set a date for the review
 There may be no need to legal intervention even where significant harm is discovered – where
parents are willing to work with SWs in addressing the concerns that have arisen, it may be
decided that the child can be adequately protected if s/he remains at home while work with
the family is attempted
Section 4.2: Child assessment orders

 Where access to a child is denied, or where information is denied as to the child’s

whereabouts, the LA must apply for a court order unless it is satisfied that the child’s welfare
can otherwise be satisfactorily safeguarded
 Normally the most appropriate response in such cases is to apply for an EPO.
  Sometimes, even when the child is obtained, persons with PR may prevent an assessment
from taking place by refusing to allow the child to be medically, or otherwise, examined
 Where an assessment of the child is being frustrated in this way, the most appropriate
response might be for a LA or the NSPCC to apply for a child assessment order under section
43 of the CA 1989
 The effect of this order is to place any person who is in a position to produce the child under a
duty to produce him to the persons named in the order, and to comply with the court’s
directions
 Only a LA or an authorised person can apply for a child assessment order
 Section 43(1) provides that a child assessment order may be made, but only if, the court is
satisfied that:
(a) The applicant has reasonable cause to suspect that the child is suffering, or is likely to
suffer, significant harm;
(b) An assessment of the child’s health or development, or the way in which he has been
treated, is required to enable to applicant to determine whether or not the child is
suffering, or is likely to suffer, significant harm;
(c) It is unlikely that such an assessment will be made, or be satisfactory, in the absence of
an order under this section
 The standard of proof which must be satisfied is thus one of reasonable cause for suspicion
only, and accordingly the type of intervention allowed is strictly limited
 The order must specify the date on which the assessment is to begin and gives the LA a time-
limited period as specified in the order, up to a maximum of seven days from that date, in
which to discover whether there is any real foundation to its suspicion
 The court takes control over the type of assessment which should take place, and may give
such directions as it thinks fit
 The order authorises any person carrying out an assessment to do so in accordance with the
terms of the order
 Where a child is to be kept away from home, the court must give directions about contact
arrangements
 A child who has sufficient understanding to make an informed decision may refuse to submit
to a medical, psychiatric or other assessments
 A child assessment order is not the appropriate order in a case in which a child requires
emergency protection
Section 4.3: The power of a court to direct a section 37 investigation in family proceedings

 Where there is serious concern about the upbringing of a child, such that the court takes the
view that it may be appropriate to make a care or supervision order with respect to him,
section 37 provides that the court may direct a LA to undertake an investigation of the child’s
circumstances
 Because it is the court which is instigating the inquiry, it may wish to specify particular
matters which it would like the LA to look into
 Where a LA undertakes an investigation under a direction given under section 37 and decides
not to apply for a care or supervision order, it must give the court its reasons
 The LA must also inform the court of any service or assistance which it has provided, or
intends to provide, for the child and his family, and any other action which it has taken
 A court has no power to direct the LA to initiate care proceedings where it is not satisfied
with the authority’s reasons for failing to do so
 Nottinghamshire County Council v P: the trial Judge and CoA were in no doubt that a care
order was necessary to prevent the children from suffering further significant harm, the LA
 meanwhile refused to pursue an application for a care order. The court was powerless to order
the LA to pursue a care order
Section 4.4: Local authority responses to significant harm

 The procedure is as follows:

- Within one working day of receipt of a referral, a LA SW should decide on the type of
response required
- immediate protection and urgent action
- an assessment under section 17 of the CA 1989 because the child is in need
- enquiries under section 47 because there is reasonable to suspect that the child is
suffering or likely to suffer significant harm
- If a section 47 investigation is required, it is preceded by a strategy discussion
- The investigation consist of a core assessment in accordance with local protocols,
led by a SW, with contributions from other relevant professionals
- This should take no more than 45 working days
- If at any stage emergency action is required, it should be taken
- If concerns are substantiated a child protection conference will be convened by the SW
manager
- If the conclusion is that the child is likely to suffer significant harm in the future, the
decision will be to provide inter-agency help and intervention through a formal child
protection plan
- A child protection review conference is held within three months of the initial child
protection conference and further reviews at intervals of not more than six months for as
long as the child remains the subject of the child protection plan
- At these various stages the LA will be considering whether concerns about significant
harm remain and what if any measures, including legal measures, need to be implemented