1.6 Legal Framework for Safeguarding Children in Individual Cases
SCOPE OF THIS CHAPTER
This document provides the legal framework for safeguarding children in individual cases.
Where specific cases are being considered that raise areas of difficulty, advice should be sought from the each agency’s relevant legal advisers.
This chapter was amended throughout in June 2015. Changes were made in relation to Working Together 2015, the Anti-Social Behaviour, Crime and Policing Act 2014, the Serious Crime Act 2015 and Keeping Children Safe in Education (2015).
Working Together to Safeguard Children 2015 is intended to provide a national framework within which agencies and professionals at local level – individually and jointly – draw up and agree on their own ways of working together to safeguard and promote the welfare of children. It applies to England.
|See Children Act 2004.
|2.1||Section 10 requires each local authority to make arrangements to promote co-operation between the authority, each of the authority’s relevant partners (see the table below) and such other persons or bodies working with children in the local authority’s area, as the authority consider appropriate. The arrangements are to be made with a view to improving the well-being of children in the authority’s area - which includes protection from harm or Neglect, alongside other outcomes.|
|2.2||Section 11 requires a range of agencies (see table below) to make arrangements for ensuring that their functions, and services provided on their behalf, are discharged with regard to the need to safeguard and promote the welfare of children.|
|2.3||Section 13 of the Children Act 2004 requires each local authority to establish a Local Safeguarding Children Board (LSCB) for their area and specifies the organisations and individuals (other than the local authority) that the Secretary of State may prescribe in regulations that should be represented on LSCBs.|
Section 14 sets out the objectives of LSCBs, which are:
The LSCB Regulations 2006 made under section 13 set out the functions of LSCBs, which include undertaking reviews of the deaths of all children in their areas and undertaking Serious Case Reviews in certain circumstances.Under section 55 of the Borders, Citizenship and Immigration Act 2009, the Secretary of State (in practice, the UK Visas and Immigration or 'UKVI') has a duty to ensure that functions relating to immigration and customs are discharged with regard to the need to safeguard and promote the welfare of children. Section 55 is intended to have the same effect as section 11 of the Children Act 2004.
A number of general principles, which need to be borne in mind when considering any part of the legal framework are outlined in the Children Act.
- The welfare of the child shall be the paramount consideration of the court. (Section 1(1));
- The court shall have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the welfare of the child. (Section 1(2));
- The court shall have regard to the welfare checklist in Section 1(3), including the wishes and feelings of the child, his/her age, gender etc. when considering whether to make, vary or discharge any section 8 order which is opposed, or any order under Part IV;
- Where a child is of sufficient understanding, medical treatment may only be given with his/her consent, except in medical emergencies. It is for the doctor to decide whether the child is capable of giving consent. Children of 16 and over can give their own consent. Where a child is not of sufficient understanding, the consent of the parent, including a person with Parental Responsibility, is required. This would include the local authority where the child is subject to a Care Order. Children who are capable of giving consent cannot be medically examined without their consent when subject to a Child Assessment Order (Section 43), Emergency Protection Order (Section 44), or Interim Care or Supervision Order (Section 38), or examined or treated in accordance with a full Supervision Order (paragraphs 4(4)(a) and 5(5)(a) of Schedule 3) without their consent. If there is a dispute in other circumstances in which a child refuses consent, the matter should be put to the court to resolve;
- The court shall not make an order unless it considers that doing so would be better for the child than making no order at all. (Section 1(5)). More detailed guidance can be found in the Children Act Guidance and Regulations, Volume 1-Court Orders.
The concept of Parental Responsibility was introduced by the Children Act 1989 and means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and her/his property, (Section 3(1)). Parental Responsibility is to be exercised in the interests of, and to promote the welfare of, a child.
The responsibility to determine issues on behalf of a child will diminish as a child acquires the ability through increasing age and understanding to make decisions concerning his/her own welfare. This ability may be affected by disability or development disorder. Professionals delivering services should assess the child’s ability in this respect and it may differ according to the matter at issue.
If a child lacks capacity to decide a particular issue, persons with Parental Responsibility have the obligation to decide the issue on the child’s behalf. It is important for professional staff to be familiar with the identity of persons with Parental Responsibility for a particular child.
Parental Responsibility may be held by more than one person and each may exercise the responsibility independently of others. Mothers and fathers who are married to a child’s mother, have Parental Responsibility. Unmarried fathers may only acquire Parental Responsibility by formal agreement with the mother or by court order. Other adults may also acquire Parental Responsibility by court order.
According to current law, a mother always has Parental Responsibility for her child. A father, however, has this responsibility only if he is married to the mother or has acquired legal responsibility for his child. Living with the mother, even for a long time, does not automatically give a father Parental Responsibility. Parental Responsibility does not always pass to the natural father if the mother dies and the parents were not married.
Unmarried fathers can acquire Parental Responsibility for their children in several different ways, depending on when their children were born. For children born before 1 December 2003, unmarried fathers can get Parental Responsibility by:
- Marrying the mother of their child or by obtaining a Parental Responsibility order from the court;
- Registering a Parental Responsibility agreement with the court or by an application to court.
For children born after 1 December 2003, the situation is different. Unmarried fathers can get Parental Responsibility by:
- Registering the child’s birth jointly with the mother at the time of birth - this is now quite common and many parents chose to do this;
- Re-registering the birth if you are the natural father;
- Marrying the mother of their child or by obtaining a Parental Responsibility order from the court;
- Registering with the court for Parental Responsibility.
When a court makes a Care Order, the local authority acquires Parental Responsibility and the power to determine the extent to which parents with Parental Responsibility may exercise it. It is important that professionals concerned with the family are aware of the decisions made on this matter by the local authority.
Schedule 2 Children Act 1989; Section 17 Children Act 1989.
The Local Authority has a duty to take reasonable steps to identify the extent to which there are Children in Need within the Local Authority’s area. (Schedule 2, Paragraph 1) Every Local Authority has a duty to take reasonable steps by providing services, under Part III of the Act, to prevent children within their area suffering ill treatment or Neglect. There is a duty to share information about any child who is likely to suffer harm between Local Authorities where appropriate.
Paragraph 7 provides that every Local Authority shall take reasonable steps to reduce the need to bring proceedings for Care or Supervision Orders or criminal proceedings in relation to children. Similarly there is a duty to encourage children not to commit criminal offences and to avoid the need for children in their area to be placed in secure accommodation.
Section 17 of the Act makes it a general duty of every Local Authority to:
- Safeguard and promote the welfare of children within their area who are in need; and
- 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.
Alternatively, they may arrange for others to provide the services. Such assistance may include assistance in kind or, in exceptional circumstances, in cash.
Section 20 Children Act 1989.
Every Local Authority has a duty to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of:
- There being no person who has Parental Responsibility for him/her;
- His/her being lost or abandoned; or
- The person who has been caring for him/her being prevented (whether or not permanently, and for whatever reason) from providing him/her with suitable accommodation or care.
The Children Act 1989 introduced the concept of Significant Harm as the threshold that justifies compulsory intervention in family life in the best interests of children. The local authority is under a duty to make enquiries, or cause enquiries to be made, where it has reasonable cause to suspect that a child is suffering, or likely to suffer Significant Harm (Section 47). A court may only make a Care Order (committing the child to the care of the local authority) or supervision order (putting the child under the supervision of a social worker, or a probation officer) in respect of a child if it is satisfied that:
- The child is suffering, or is likely to suffer, Significant Harm; and
- The harm or likelihood of harm is attributable to a lack of adequate parental care or control (Section 31).
There are no absolute criteria on which to rely when judging what constitutes Significant Harm. Consideration of the severity of ill-treatment may include the degree and the extent of physical harm, the duration and frequency of abuse and Neglect, and the extent of premeditation, degree of threat and coercion, sadism, and bizarre or unusual elements in child sexual abuse. Each of these elements has been associated with more severe effects on the child, and/or relatively greater difficulty in helping the child overcome the adverse impact of the ill-treatment.
Sometimes, a single traumatic event may constitute Significant Harm, e.g. a violent assault, suffocation or poisoning. More often, Significant Harm is a compilation of significant events, both acute and long-standing, which interrupt, change or damage the child’s physical and psychological development.
Some children live in family and social circumstances where their health and development are Neglected. For them, it is the corrosiveness of long-term emotional, physical or sexual abuse that causes impairment to the extent of constituting Significant Harm. In each case, it is necessary to consider any ill treatment alongside the family’s strengths and supports.
To understand and establish Significant Harm, it is necessary to consider:
- The family context;
- The child’s development within the context of their family and wider social and cultural environment;
- Any special needs, such as a medical condition, communication difficulty; or
- Disability that may affect the child’s development and care within the family;
- The nature of harm, in terms of ill-treatment or failure to provide adequate care;
- The impact on the child’s health and development; and
- The adequacy of parental care.
It is important always to take account of the child’s reactions, and his or her perceptions, according to the child’s age and understanding.
Under Sections 31(9) and (10) of the Children Act 1989:
- ‘Harm’ means ill-treatment or the impairment of health or development;
- ‘Development’ means physical, intellectual, emotional, social or behavioural development; and where the question of whether harm suffered by a child is significant turns on the child’s health and development, his health or development shall be compared with that which could reasonably be expected of a similar child;
- ‘Health’ means physical or mental health; and
- ‘ill-treatment’ includes sexual abuse and forms of ill-Treatment which are not physical.
The definition of harm has been widened to include for example ‘impairment suffered from seeing or hearing the ill-treatment of another’ (Section 120 Adoption and Children Act 2002 which came into effect in January 2005).
3.5.1 Section 47 Children Act 1989
The duty of the local authority to make enquiries following information received suggesting that a child may need protection is contained in Part V of the Children Act.
The local authority has a duty to make enquiries where they:
- Are informed that a child who lives, or is found, in their area -(a) is the subject of an Emergency Protection Order; or(b) is in Police Protection;
- Have reasonable cause to suspect that a child who lives or is found in their area is suffering or likely to suffer Significant Harm. The Authority shall make, or cause to make, 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 (Section 47(1)).
This includes obtaining access to him or her. Should access be denied, or information withheld, they must take reasonable steps to obtain access or information unless they are satisfied that they already have sufficient information. They may call upon other Local Authorities, Health Authorities, Education Authorities or others for assistance and it shall be the duty of such Authorities to assist unless it would be unreasonable in the circumstances. Where, as a result of enquiries, they conclude that action should be taken, they must do so, as far as is practicable (Section 47(8)).
Working Together says “where Section 47 Enquiries give rise to concern that an unborn child may be at risk of Significant Harm, the social services department may need to convene an Initial Child Protection Conference prior to the child’s birth. Such a conference should have the same status, and proceed in the same way, as other Initial Child Protection Conferences, including decisions about registration”. This guidance builds on this advice and provides for concerns to be enquired into, for risks to be assessed, and for conferences to be convened in exactly the same way for unborn children as for any other child.
3.5.2 Section 37 Children Act 1989
Where, in family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a Care or Supervision Order to be made in respect of him, the court may direct the appropriate Authority to undertake an investigation of the child’s circumstances: (Section 37(1)).
The Authority must then make enquiries and consider whether it would be appropriate to apply for a Care or Supervision Order, or to provide services to help the child and his/her family, or to take some other action. If they decide not to apply for a Care or Supervision Order, they must give the court their reasons and tell them what they are doing instead within 8 weeks unless the court directs otherwise.
3.6.1 Emergency Protection Order (EPO): Section 44 Children Act 1989
An Emergency Protection Order is a short term order which enables a child to be made safe when (s)he might otherwise suffer harm. Application for an Emergency Protection Order may be made by any person, a Local Authority or an authorised person.
3.6.2 Grounds For Emergency Protection Order:
An Emergency Protection Order (EPO) may only be made if the court is satisfied that:
- Where the applicant is “any person”, there is reasonable cause to believe that the child is likely to suffer Significant Harm if (s)he is not removed or does not remain where (s)he is (Section 44(1)(a));
- Where the applicant is the Local Authority enquiries are being made with respect to the child under Section 47(1)(b); and those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised and access is required urgently (Section 44(1)(c)).
The effect of an EPO is to give Parental Responsibility to the Local Authority in addition to the parents or whoever had it immediately before the order was made. The court may order that the child be removed or kept where (s)he is, and may give directions about medical examinations or assessment. It may also give directions about contact. An order to remove the child will only be made if necessary and (s)he should be returned when it is safe to do so.
3.6.3 Duration: Section 45 Children Act 1989
An EPO lasts for a maximum of eight days. On application, the court may extend this for a maximum of a further 7 days; the order may only be extended once.
Application may be made to discharge an Emergency Protection Order after 72 hours from the making of the order. Such application may be made by the child, his/her parent, anyone with responsibility, or anyone with whom (s)he was living immediately before unless they were given notice (in accordance with the Rules of Court) of the hearing at which the order was made and were present at the hearing. No application can be made for discharge once the original period of the order has been extended by the court.
3.6.4 Including Exclusion Requirement: Section 44A Children Act 1989
The Court may include an Exclusion Requirement where it makes an Emergency Protection Order with respect to the child and:
- There is reasonable cause to believe that, if the relevant person (RP) is excluded from a dwelling-house in which the child lives then either the child will not be likely to suffer Significant Harm within the context of Section 44 (1)(a) or the enquiries referred to in Section 44 (1)(b)(c) will cease to be frustrated; and
- That another person living in the dwelling-house (whether a parent of the child or some other person) is (a) able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and (b) that other person consents to the inclusion of the Exclusion Requirement.
The Exclusion Requirement may include one or more of the following:
- A provision requiring the RP to leave a dwelling-house in which he is living with the child;
- A provision prohibiting the RP from entering a dwelling-house in which the child lives;
- A provision excluding the RP from a defined area in which a dwelling house in which the child lives is situated.
3.6.5 Duration of the Exclusion Requirement:
The Court may provide that the Exclusion Requirement is to have effect for a shorter period than the provisions of the Emergency Protection Order.
3.6.6 Attaching a Power of Arrest:
The Court may attach a Power of Arrest to the Exclusion Requirement provision within an Emergency Protection Order.
3.7.1 Section 46 Children Act 1989:
A police constable, having reasonable cause to believe that a child would otherwise be likely to suffer Significant Harm, may either remove the child to suitable accommodation or prevent his/her removal from a hospital or other safe place. No child may be kept in police protection for more than 72 hours.
The police must take steps as soon as reasonably practicable to inform the child’s parents of what has been done and the reasons for that action being taken. If the child appears capable of understanding (s)he must also be so informed.
The police, where they have reasonable cause to believe that a child is likely to suffer Significant Harm, can apply for an Emergency Protection Order on behalf of the Local Authority. They can do this whether or not the Local Authority know or agree (Section 46(8)).
The police can obtain a warrant under Section 102 of the Children Act to enter premises and search for children.
3.7.2 Life Or Limb: Section 17(1)(e) Police and Criminal Evidence Act 1984
Where speed is essential to protect a child and a warrant would take too long to obtain, the police can enter premises without a warrant, to save life or limb.
3.7.3 Powers To Assist In Discovery Of A Child Who May Need Emergency: Section 48 Children Act 1989
The court may require a person to disclose the whereabouts of a child and may issue a warrant for entry into premises where entry has been refused.
3.7.4 Recovery Of Abducted Children: Section 50 Children Act 1989
The court may make a Recovery Order where there is reason to believe that children in care have been abducted, have run away or are missing, or being kept away.
3.8.1 Grounds For Child Assessment Order: Section 43(1) Children Act 1989
A Child Assessment Order may be made if the court is satisfied that:
- The applicant has reasonable cause to suspect that the child is suffering, or likely to suffer, Significant Harm; and
- An assessment of the state of the child’s health or development, or the way in which (s)he has been treated, is required to determine whether or not the child is suffering, or is likely to suffer, Significant Harm; and
- It is unlikely that such an assessment will be made, or be satisfactory, if an order is not made.
3.8.2 Notice: Section 43(11) Children Act 1989
Notice of the hearing must be given to the persons specified in this section.
3.8.3 Powers And Duties: Section 43(6) Children Act 1989
The order requires that any person who is able to produce the child does so to the person named in the order, and that court directions regarding assessment be complied with.
The order may contain directions, including one to keep the child away from home, and in that case, what contact (s)he is to be allowed with parents, etc. while away from home.
A court may make an Emergency Protection Order if it is satisfied that there are grounds for doing so.
3.8.4 Duration: Sections 43(5); 91(15); 43(12); 94(1) Children Act 1989
The order must specify the date by which the assessment is to begin and have effect for no longer than 7 days from that date (Section 43 (5)).
There can be no further application for a Child Assessment Order within six months without leave of the court (Section 91(15)).
Application for variation or discharge may be made by anyone entitled to notice (Section 94(1)).
3.9.1 Grounds For Care/Supervision Order: Section 31(2) Children Act 1989:
A Care Order may only be made by a court if it is satisfied:
- That the child concerned is suffering, or likely to suffer, Significant Harm; and
- That the harm, or likelihood of harm, is attributable to:
- The care given to the child, or likely to be given to him; or
- The child’s being beyond parental control,(Section 31(2)).
3.9.2 The Public Law Outline
The Public Law Outline: Guide to Case Management in Public Law Proceedings came into force with effect from 6th April 2010. This followed on from previous statutory guidance for local authorities effective from 2008, which resulted from the Review of the Child Care Proceedings System in England and Wales.
A revised Public Law Outline came into effect on 22 April 2014.
The Public Law Outline sets out streamlined case management procedures for dealing with public law children's cases. The aim is to identify and focus on the key issues for the child, with the aim of making the best decisions for the child within the timetable set by the Court, and avoiding the need for unnecessary evidence or hearings.
As well as the Court-set timetable, the case management tools also involve the case management documentation to be filed by the local authority and other parties, (including case summaries and a schedule of proposed findings), advocates' discussions/meetings, a Case Management Hearing and an issues resolution hearing before the final hearing.The requirement is to complete cases within 26 weeks.
3.10.1 Powers and Duties Under Care Order: Sections 33(1)(3); (4); and 23 (10) Children Act 1989
The Local Authority is under a duty to receive the child into its care and keep him/her in care while the order remains in force. This includes providing accommodation and maintaining the child (Sections 33(1) and 23(1)).
The Local Authority acquires Parental Responsibility for the child and, although this is shared with the parents, it can decide the extent to which a parent may meet his/her Parental Responsibility in order to safeguard the child’s welfare (Sections 33(3)(b)and(4);2(7)).
More specific duties are contained in Section 23(6)-(9) and Schedule 2 part II.
3.10.2 Contact: Section 34 Children Act 1989
There is a presumption of reasonable contact between the child and his/her parent, guardian, and any person who held a Child Arrangements Order in respect of the child. Before making a Care Order the court must consider the Local Authority’s arrangements for contact.
The court may make an order defining contact where agreement cannot be reached.
Refusal of contact requires an order from the court, except in exceptional circumstances, where the Local Authority can refuse contact without an order if they need to do so to safeguard the child’s welfare. The Local Authority may only refuse contact for 7 days without an order from the court.
3.10.3 Duration of Care Order
A Care Order, other than an interim Care Order, will remain in force until the child reaches the age of 18 years, unless it is brought to an end earlier. A Care Order may be brought to an end by the following means:
- The making of a Child Arrangements Order, which automatically discharges the Care Order;
- The making of a Special Guardianship Order automatically discharges the Care Order;
- The discharge of the Care Order by the court;
- The substitution of a Supervision Order for the Care Order by court order;
- The making of an Adoption Order, which automatically extinguishes a Care Order;
- If a Placement Order is made under ACA 2002 any pre-existing or contemporaneous Care Order with respect to the child does not have effect at any time when the Placement Order is in force.
3.10.4 Powers And Duties Under Supervision Order: Section 35(1)
The supervisor is under a duty to advise, assist and befriend the child, to take such steps as are reasonable to give effect to the order and to apply to the court for variation/discharge when the order is no longer appropriate (Section 35(1)).
3.10.5 Duration Of Supervision Order
Schedule 3 Paragraphs 6(1) and (4); Section 91(3) and (13) Children Act 1989; Section 39 Children Act 1989.
The order lasts for a year but may be extended; the maximum duration is three years (Schedule 3 Paragraphs 6(1) and (4)). The order cannot continue after the child’s 18th birthday (S.91(13)).
Application for discharge/variation of the order may be made by Local Authority, child or person with Parental Responsibility (Section 39).
The court may make an Interim Care or Supervision Order provided that it is satisfied that the grounds, laid down in Section 31(2), for a Care or Supervision Order are met.
An Interim Order can be made where an application for a Care or Supervision Order is adjourned or where it has given directions to investigate, under Section 37(1) or Section 38(1).
3.11.1 Powers and Duties Under Interim Orders
Under an Interim Care Order reasonable contact is to be arranged, as for a full Care Order.
When making an Interim Order the court has the power to make directions about medical or psychiatric examination or assessment of the child.
3.11.2 Section 38A Children Act 1989
The Court may include an Exclusion Requirement where it makes an Interim Care Order and:
- There is reasonable cause to believe that if the relevant person is excluded from a dwelling house in which the child lives, the child will cease to suffer or cease to be likely to suffer, Significant Harm; and
- That another person living in the dwelling house (a parent of the child or some other person) is (a) able and willing to give to the child the care which it will be reasonable to expect a parent to give to him/her; and (b) that other person consents to the inclusion of the Exclusion Requirement. The same provisions may be included as those included when an Emergency Protection Order is made.
There are three orders under Section 8, which can be made in any family or care proceedings and at any stage in such proceedings. These orders will not be made in respect of children over 16 years old, except in exceptional circumstances.
3.12.1 Child Arrangements Order
A Child Arrangements Order means a court order regulating arrangements relating to any of the following:
- With whom a child is to live, spend time or otherwise have contact; and
- When a child is to live, spend time or otherwise have contact with any person.
The 'residence' aspects of a Child Arrangements Order (i.e. with whom a child is to live/when a child is to live with any person) can last until the child reaches 18 years unless discharged earlier by the Court or by the making of a Care Order.
The ‘contact’ aspects of a Child Arrangements Order (with whom and when a child is to spend time with or otherwise have contact with) cease to have effect when the child reaches 16 years, unless the court is satisfied that the circumstances of the case are exceptional.A person named in the order as a person with whom the child is to live, will have Parental Responsibility for the child while the order remains in force. Where a person is named in the order as a person with whom the child is to spend time or otherwise have contact, but is not named in the order as a person with whom the child is to live, the court may provide in the order for that person to have Parental Responsibility for the child while the order remains in force.
3.12.2 Prohibited Steps Order
This order means that no step, specified in the order which could normally be taken by a parent in meeting his/her Parental Responsibility for a child, can be taken without the consent of the court. A Prohibited Steps Order is not available if the child is subject to a Care/Interim Care Order.
3.12.3 Specific Issue Order
This is an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of Parental Responsibility for a child. The court may make any of these orders of its own motion.
The court may, in exceptional circumstances, make an order in any family proceedings requiring an officer to be made available to advise, assist and befriend a person named in the order. This order may not last more than 6 months and requires the consent of all parties (Section 16(3)).
3.14 Special Guardianship Order: Section 14A(1) Children Act 1989 as amended by Adoption and Children Act 2002
A special guardianship order is an order appointing one or more individuals to be a child’s ‘special guardian’. The effect of a special guardianship order is that while it is in force a special guardian has Parental Responsibility for the child named in the order; and subject to any other order in force, a special guardian is entitled to exercise Parental Responsibility to the exclusion of any other person who has Parental Responsibility for the child (apart from any other special guardian).
Subject to procedural requirements a court may make a special guardianship order in private or public law CA 1989 proceedings or in proceedings under ACA 2002.
The special guardianship provisions were introduced by ACA 2002 with the aim of placing a child through a private law order with a non-parent with a degree of permanence, which is greater than a simple Child Arrangements Order, but is less final than a full adoption. The main features of special guardianship are to:
- Give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions concerning their upbringing;
- Provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person;
- Preserve the legal link between the child or young person and their birth family;
- Allow proper access to a full range of support services including, where appropriate, financial support.
A key distinction between adoption and special guardianship is that in the latter, parents who have Parental Responsibility retain that status, however their ability to exercise Parental Responsibility is subject to the ability of the special guardian to exercise Parental Responsibility to the exclusion of any other person.
It is the duty of a Local Authority looking after any child, to safeguard and promote his/her welfare and to make such use of services available for children cared for by their own parents as appears reasonable to the authority (Section 22(3)).
The Local Authority should, as far as is reasonably practicable, ascertain the wishes of the child, his/her parents, any person who has Parental Responsibility for him/her and any other person whose wishes and feelings the authority consider to be relevant, regarding the matter to be decided (Section 22(4)).
When making decisions, the Local Authority must give due consideration to the child’s age, understanding and wishes, and the child’s religious persuasion, racial origin and cultural and linguistic background (Section 22(5)).
The Local Authority must accommodate (as most appropriate) and maintain such children (Section 23).
It is also the Local Authority’s duty to provide after care for young persons over 16 who have been looked after by them up to the age of 21 (Section 24(1).
See Education Act 2002.
On 1 June 2004 new responsibilities and duties were placed on Local Education Authorities and schools, including independents schools, further education colleges and other education providers to safeguard and promote the welfare of children. (Sections 175 and 157 of the Education Act 2002). This is the first time that separate legislation has been enacted around our child protection responsibilities, and reflects the consequence of previous failure to prevent the abuse of some vulnerable children even where they were known to the education system. In September 2015 new statutory guidance “Keeping Children Safe in Education: Statutory Guidance for Schools and Colleges” was issued to all schools, Governing Bodies and LEAs, giving detailed information on roles and responsibilities for child protection.
New legislation under Section 175 of the Education Act 2002 places a statutory duty on LEAs and the Governing Bodies of all schools and further education institutions to make arrangements to ensure that their functions are carried out with a view to safeguarding and promoting the welfare of children. In addition, these bodies must have regard to any guidance issued by the Secretary of State in considering what arrangements they need to make under Section 175. Section 157 places the same duties on the proprietors of all independent schools and colleges.
Children are protected by a comprehensive framework of powers and responsibilities set out in the Children Act 1989, its associated regulations and inter-agency guidance, Working Together to Safeguard Children.
The Human Rights Act, became law in the UK in October 2000. The effect of the Human Rights Act was to incorporate the European Convention on Human Rights into British law.
The European Convention on Human Rights has been effective since 1950 and has eighteen articles and a number of protocols. Case law in the European Court of Human Rights has shown that seven articles in particular have relevance to the discharge of child protection functions. These are as follows:
Is a simple and absolute right and requires that we respect the right of all individuals to life.
Prohibition of Torture has been used by individuals over the years to challenge treatment they have received in institutions, including care institutions. It therefore has implications for the way that the public authorities treat children in their care.
The Prohibition of Slavery and Forced Labour again is a simple and absolute right and may have similar implications for the treatment of children as Article 3.
Requires that public authorities must treat individuals with respect for their liberty and security. This may have implications on an application for a secure accommodation order.
The right to a fair hearing – this has been used by individuals to challenge the procedures adopted by authorities in reaching decisions and so has implications for child protection procedures.
The Article may affect child protection functions in the following areas:
- Child Protection Case Conferences and other decision-making forums, where decisions are made that affect a person’s human rights, notably Article 8 – the right to respect for family and private life;
- The conduct of any civil proceedings involving children and families.
In considering whether Article 6 is being complied with, it is important that staff are aware of when a determination is being made of the person’s human rights. It must be remembered that such decisions are potentially made by case conferences, planning, strategy and core group meetings and even in some cases by individual team managers or other senior officers. Whilst it may appear that such decision-making forums cannot be regarded as “impartial tribunals” as is required by Article 6, steps can be taken to ensure that decision-making is fair and accountable in order to meet the standards set out in Article 6.
The following standards for conferences should be applied:
- Explanation before the conference as to the structure, purpose and operation of a child protection conference to parents, involved family members and children of sufficient age and understanding;
- Information given to parents and a mature child about local advice and advocacy agencies and advise them of their right to have a support or advocate with them in the conference;
- Provide parents, and mature children with written reports/information (including the outcome of the Section 47 investigation) in reasonable time in advance of the conference;
- Allow parents equal access to all material placed before the conference;
- Provide a clear record of recommendations of a conference, and the reasons for them, to parents and a mature child as soon as possible after the conference.
This article also creates a new offence that can only be committed by public authorities, providing “it is unlawful for a public authority to act in a way which is incompatible with a convention right”. Individuals who feel that a public authority has acted in breach of their human rights in some way may therefore have the right to take action against the public authority.
No Punishment without legal process and the need for proper adherence to child protection procedures. In court proceedings there is an emphasis on decisions being taken about children’s lives without delay.
The right to respect for family and private life, insofar as this does not impinge on the human rights of others. Case laws of the European Court of Human Rights has established the right of Governments to enact and enforce child protection legislation and all existing UK legislation remains in force and binding on Local Authorities. It must not be assumed that intervention in family life in accordance with the Children Act is necessarily in breach of Article 8, but it must be shown that any intervention was in accordance with the law and was proportionate to the difficulties being addressed.
Stricter controls now replace existing arrangements that determine who is unsuitable to work with children and Vulnerable Adults in England, Wales and Northern Ireland:
- Increased safeguards based on a new system featuring Regulated Activity come into being to further enhance protection of children and Vulnerable Adults. It is now a criminal offence for barred individuals to work or apply to work with children or Vulnerable Adults in a wide range of posts. Employers also face criminal sanctions for knowingly employing a barred individual across a wide range of work;
- Barred individuals seeking to undertake work with vulnerable groups may face a prison sentence or a fine. Employers in Regulated Activity who knowingly employ barred individuals may face a prison sentence or a fine;
- There are two barred lists, one for people prevented from working with children and one for those prevented from working with Vulnerable Adults, administered by the Disclosure and Barring Service (DBS). Checks of these two lists are made as part of an Enhanced DBS check;
- Employers are now eligible to ask for enhanced disclosures with barred list checks on anyone they are taking on in Regulated Activity. However employers are not required to ask for an enhanced disclosure if they have no reason to believe that an existing employee is barred, unless there is a mandatory requirement to do so (e.g. Ofsted registered childcare);
- In certain circumstances, employers, local authorities, education and library boards, health and social care bodies and professional regulators have a legal duty to refer to the DBS, information about individuals who they believe have harmed or may pose a risk of harm to children or Vulnerable Adults.
Supporting materials on the DBS website available include: Referral forms and Referral guidance and VBS Guidance.
In short the following applies:
A person who is barred from working with children or Vulnerable Adults will be breaking the law if they work or volunteer, or try to work or volunteer with those groups.
An organisation which knowingly employs someone who is barred to work with those groups will also be breaking the law.If your organisation works with children or Vulnerable Adults and you dismiss a member of staff or a volunteer because they have harmed a child or Vulnerable Adult, or you would have done so if they had not left, you must tell the Disclosure and Barring Service.
The Family Law Act (as amended) provides for the following orders:
- Occupation orders, which regulate the occupation of the family home; and
- Non-molestation orders, for protection from all forms of violence and abuse.
Both types of order can be made within family proceedings or as free standing applications.
Applications can be made either ex-parte or on notice.
Both orders can be applied for by ‘associated persons’. The Family Law Act 1996 states that a person is associated with another if:
- They are or have been married to each other or have been civil partners;
- They are cohabitants or former cohabitants;
- They live or have lived in the same household for a reason other than one of them being the other’s employee, tenant, lodger or boarder;
- They are relatives – this includes grandparents, aunts, uncles, nieces, nephews, cousins, step-parents and step-children;
- They have agreed to marry or enter into a civil partnership or they have or have had an intimate personal relationship which was of significant duration;
- In relation to a child, they are both parents or have or have had parental responsibility (where a child has been adopted or freed for adoption, two people will be associated if one is the natural parent and the other is the child or adoptive parent of the child);
- They are parties to the same family proceedings (other than proceedings under Part IV of FLA 1996).
Non-molestation orders prohibit a person (the respondent) from molesting another associated person or any relevant child. An order prohibiting molestation can include both general or particular acts of molestation, none of which need be overtly 'violent', and can be used to order someone to stop using or threatening violence against (usually) woman or relevant child, or to stop intimidating, harassing, or pestering them. It can also have very specific instructions in it to suit a particular case - for example, it could order an ex-partner to stop telephoning or pestering the applicant at work.
In deciding the outcome of any application, courts must have regard to the health, safety and well-being of the applicant or any relevant child. 'Health' is defined broadly in s.63(1) to include both physical and mental health.
A non-molestation order can be for a specified period or until further order of the court.
An occupation order regulates the parties’ occupation of their present, former or intended home.
An occupation order may take a number of forms, including:
- Enforcing the applicant's right to remain in the house;
- Requiring the other party (respondent) to allow the applicant to enter and occupy the home;
- Prohibiting, suspending, or restricting the respondent's right to occupy the house; and
- Excluding the respondent from the house itself and/or from a defined area in which the house is situated.
Breach of an Occupation Order or Non-Molestation Order
The breach of a non-molestation order is a criminal offence, punishable by up to five years in prison. A person breaching an order can be arrested and charged.
The breach of an occupation order is not a criminal offence, but a power of arrest can be attached to one or more of the provisions of the order, which can result in up to two years in prison or a fine of up to £5,000.
The Sexual Offences Act 2003 came into force on 1 May 2004. It made many changes to the existing law, much of which dated back to the Sexual Offences Act 1956. The Act is split into two parts the first devoted to sexual offences, creating new offences and widening the scope of existing ones, and the second covering offenders with an emphasis on the protection of vulnerable individuals.
Rape is redefined to include penetration of the mouth as well as penetration of the vagina or anus by the penis.
There are three new measures on the issue of consent:
- There is now a statutory definition on the issue of consent: a person consents if he or she agrees by choice to the sexual activity and has the freedom and capacity to make that choice;
- All the circumstances at the time of the offence will be looked at in determining whether the defendant is reasonable in believing the complainant consented;
- People will be considered most unlikely to have agreed to sexual activity if they were subject to threats or fear of serious harm, unconscious, drugged, abducted, or unable to communicate because of a physical disability.
The new measures are designed to redress the balance in favour of victims without prejudicing the defendant's right to a fair trial, to help juries reach just and fair decisions on what is a difficult area or prosecution.
The Act closes a loophole that has allowed those accused of child rape to escape proper punishment by arguing that they consented. Any sexual intercourse with a child under 13 will be treated as rape. The other non-consensual offences against children under 13 are sexual assault by penetration, sexual assault and causing or inciting a child to engage in sexual activity. There are new offences of adult sexual activity with a child under 16. These cover a range of behaviour, involving both physical and non-physical contact. But where the child is under 13 and the behaviour involves physical contact or inducing a child to perform a sexual act, the adult will be charged with a non-consensual offence. As children and young persons commit sexual crimes on other children, these offences apply not only to adults but also to persons under 18.
The age of consent is 16. Children can and do abuse and exploit other children. Therefore, the Act makes it an offence for children under 16 to engage in sexual activity in order to protect those children who are victims of abuse and exploitation. However, just as children were highly unlikely to be prosecuted under the previous law, children of the same or similar age are highly unlikely to be prosecuted for engaging in sexual activity, where the activity is mutually agreed and there is no abuse or exploitation. The Crown Prosecution Service has issued guidance to prosecutors, which sets out the criteria they should consider when deciding whether or not it is in the public interest to bring a prosecution.
A person does not commit an offence of aiding or abetting a child sex offence if they give advice to children in order to protect them from sexually transmitted infection, protecting their physical safety, preventing them from becoming pregnant, or promoting their emotional well-being. This means that parents, doctors, other health professionals, in fact any one can provide sexual health advice to children whose only motivation in doing so is the protection of the child. However, those persons who cause or encourage the child to engage in the activity or if they do it to obtain sexual gratification will be liable to prosecution.
There are new offences of familial child sex offences that cover not only assaults by blood relatives but also foster and adoptive parents and live-in partners. The offences of abuse of a position of trust have been amended and re-enacted, prohibiting sexual contact between adults and children under 18 in schools and colleges and residential care, in order to protect vulnerable 16 and 17 year olds.
The Sexual Offences Act 2003 introduced a new offence of meeting a child following sexual grooming, which makes it a crime to befriend a child on the internet or by other means and meets or intends to meet the child with the intention of abusing them. The maximum sentence is 10 years imprisonment.
Under the Serious Crime Act 2015 an offence of sexual communication with a child was introduced. This applies to an adult who communicates with a child and the communication is sexual or if it is intended to elicit from the child a communication which is sexual and the adult reasonably believes the child to be under 16 years of age. The Act also amended the Sex Offences Act 2003 so it is now an offence for an adult to arrange to meet with someone under 16 having communicated with them on just one occasion (previously it was on at least two occasions).
The Act made the notification requirements stronger and easier to enforce. Convicted sex offenders will have to report each year to their local police regardless of whether their circumstances have changed. They will have to inform the police if they change their name or address within three days instead of the previous fourteen days, and disclose if they spend seven days or more away from home. They will also have to supply their national insurance number. Failure to report is still a criminal offence that carries a prison term of up to five years.
Child Sex Offender Disclosure Scheme
The Child Sex Offender Review (CSOR) Disclosure Scheme is designed to provide members of the public with a formal mechanism to ask for disclosure about people they are concerned about, who have unsupervised access to children and may therefore pose a risk. This scheme builds on existing, well established third-party disclosures that operate under the Multi-Agency Public Protection Arrangements (MAPPA).
Police will reveal details confidentially to the person most able to protect the child (usually parents, carers or guardians) if they think it is in the child’s interests.
The scheme has been operating in all 43 police areas in England and Wales since 2010. The scheme is managed by the Police and information can only be accessed through direct application to them.
If a disclosure is made, the information must be kept confidential and only used to keep the child in question safe. Legal action may be taken if confidentiality is breached. A disclosure is delivered in person (as opposed to in writing) with the following warning:
- That the information must only be used for the purpose for which it has been shared i.e. in order to safeguard children;
- The person to whom the disclosure is made will be asked to sign an undertaking that they agree that the information is confidential and they will not disclose this information further;
- A warning should be given that legal proceedings could result if this confidentiality is breached. This should be explained to the person and they must sign the undertaking’ (Home Office, 2011, p16).
If the person is unwilling to sign the undertaking, the police must consider whether the disclosure should still take place.For further information see GOV.UK.
There are offences against trafficking persons into, within and out of the country for the purposes of sexual exploitation. There are offences to prevent children from being abused through prostitution and pornography. They cover a range of activity including: buying the sexual services of a child, causing or encouraging child prostitution or pornography, arranging or facilitating child prostitution or pornography, and controlling any of the activities of a child involved in prostitution or pornography.
There are offences to protect vulnerable persons with a mental disorder from sexual abuse. These include where they are unable to refuse because of a lack of understanding, where they are offered inducements or subject to threats or are deceived, and where there is a breach of a relationship of care, by care workers.
There is an offence of voyeurism that criminalises those who observe for sexual gratification people engaged in a private act who do not consent to being observed.
There is the offence of exposure where a man or woman exposes their genitalia with intent to cause alarm or distress.
There are preparatory offences, such as drugging a person with intent to engage in sexual activity with that person; committing any offence with intent to commit a sexual offence; and trespassing on any premises with intent to commit a sexual offence.
There is an offence of engaging in sexual activity in a public lavatory.
Sexual Harm Prevention Orders and Sexual Risk Orders
These orders were introduced by the Anti-Social Behaviour, Crime and Policing Act 2014. They replace the previous Sexual Offences Prevention Order, Risk of Sexual Harm Orders and Foreign Travel Orders which were introduced by the Sexual Offences Act 2003.
The court needs to be satisfied that the order is necessary for protecting the public, or any particular members of the public, from sexual harm from the defendant; or protecting children or vulnerable adults generally, or any particular children or vulnerable adults,.from sexual harm from the defendant outside the United Kingdom.
The Orders prohibit the defendant from doing anything described in the order, and can include a prohibition on foreign travel (replacing Foreign Travel Orders which were introduced by the Sexual Offences Act 2003)Failure to comply with a requirement imposed under an Order is an offence punishable by a fine and/or imprisonment.
Sexual Harm Prevention Orders
Sexual Harm Prevention Orders can be applied to anyone convicted or cautioned of a sexual or violent offence, including where offences are committed overseas. They replace the previous Sexual Offences Prevention Orders.
A prohibition contained in a Sexual Harm Prevention Order has effect for a fixed period, specified in the order, of at least 5 years, or until further order. The Order may specify different periods for different prohibitions.
Sexual Risk Orders
Sexual risk orders can be made where a person has done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for such an order to be made, even if they have never been convicted. They replace the previous Risk of Sexual Harm Orders.
A prohibition contained in a Sexual Risk Order has effect for a fixed period, specified in the order, of not less than 2 years, or until further order. The Order may specify different periods for different prohibitions.
The Female Genital Mutilation Act 2003 makes it a criminal offence for a person to excise, infibulate or otherwise mutilate the whole or any part of a girl's labia majora, labia minora or clitoris, except in the case of a surgical operation which is considered necessary for the girl's physical or mental health, or for purposes connected with labour or birth, and which is carried out by a registered medical practitioner or midwife, (or a person training to become a registered medical practitioner or midwife).
The Act also makes it an offence for a UK national or a permanent UK resident to carry out FGM abroad, or to aid, abet, counsel or procure the carrying out of FGM abroad.
The Act does not allow traditional and ritual requirements to be used to justify a physical or mental need for the operation.
With effect from 3 May 2015, the Female Genital Mutilation Act 2003 was amended by the Serious Crime Act 2015. The law is extended so that:
- A non-UK national who is ‘habitually resident’ in the UK and commits such an offence abroad can now face a maximum penalty of 14 years imprisonment. It is also an offence to assist a non-UK resident to carry out FGM overseas on a girl who is habitually, rather than only permanently, resident in the UK. This follows a number of cases where victims were unable to get justice as FGM was committed by those not permanently residing in the UK;
- A new offence is created of failing to protect a girl from the risk of FGM. Anyone convicted can face imprisonment for up to seven years and/or an unlimited fine;
- Anonymity for victims of FGM. Anyone identifying a victim can be subject to an unlimited fine.
The Licensing Act 2003 modernised the legislation governing the supply of alcohol, the provision of regulated entertainment and the provision late night refreshment. The Key Changes include:
- A single integrated premises licence is issued;
- Premises licenses are issued by the licensing authorities;
- Licensing hours could be de-regulated. So the licence applicant can request their own hours of operation.
The new licensing act is considered as a relaxation in legislation giving accompanied children greater access to licensed premises which is seen as a positive step but the risk of harm to children remains a consideration when determining the applications.
Premises requiring a licence range from Public Houses, Night Clubs, Wine Bars, Restaurants, Off Licences, Cinemas, Takeaways and Schools. Responsible Authorities will be notified of all new applications and variations. Responsible Authorities include the police, the fire authority and a body which represents those who are responsible for, or interested in matters relating to the protection of children from harm.
Each responsible authority can make representations regarding new applications and variations as well as being able call for a review of existing licences. Representations can be made in relation to one or more of the four licensing objectives:
- The prevention of crime and disorder;
- Public Safety;
- The protection of children from harm;
- The prevention of public nuisance.
One of the requirements is to advise staff of their responsibility to share any child protection concerns that they have about any licensed premises with LSCB member agencies. Any concerns of this nature should be brought to the attention of The Head of Safeguarding. Such concerns may include:
- Premises having a reputation for under-age drinking;
- Premises with a known association with drug taking or dealing;
- Children are present and there is strong element of gambling on the premises;
- Young people being present when entertainment of a sexual or adult nature is provided;
- Premises where children are regularly present when they would normally be expected to be in full-time education;
- Children living in licensed premises but being inadequately supervised.
Checklist regarding Protection of Children from Harm:
Where the Applicant or Current Staff have Risk to Children Convictions
Any convictions involving crimes against children should raise concerns. Concerns would be lessened if the offence was for instance a one-off physical assault which took place in the school playground many years ago when the applicant was a child themselves. Concerns would clearly remain if it was a more recent offence and of a more serious nature.
Where the Applicant or Current Staff have Convictions for Serving Alcohol to under Age Persons, or which have a Reputation for Under aged Drinking
Alcohol abuse can have a huge adverse impact on a young person’s life. Applicants are to some extent in positions of trust and need to accept that they have a responsibility for young people who use their premises. Once that breach of trust had taken place the applicant would have to be very clear about what measures they had taken to ensure that there was no repeat of under aged drinking.
Where the Premises has a known Association with Drug Taking or Dealing
No child should be exposed to drug taking or dealing. Premises where this has been an issue would probably reflect in their operating schedules that they would not be permitting children or young people onto their premises.
Where there is a Strong Element of Gambling on the Premises
Gambling is an adult activity, and whilst there would be little concern about a few cash prize gaming machines that one finds in most licensed premises, where gambling is the main activity within a premises, then this would be regarded as unsuitable.
Where Entertainment or Services of an Adult or Sexual Nature are Present
It is self evident that children and young people should not be exposed to entertainment that is for an adult audience. These might include topless waitresses, pole/lap dancers etc or showing of adult films/video’s etc. The operating schedules will indicate that children and young people are not permitted on the premises, or if the entertainment is on one night a week for instance, the operating schedule could exclude children and young people for that time.
Where a Regulated Entertainment is Specifically Presented by or for Children
There are many occasions when entertainment is either put on by children, or at which large numbers of children will be present. The applicant should always be clear how they will address child safety as one of the issues addressed in their health and safety risk assessment for the activity, e.g. appropriate levels of adult supervision, clear pathways to emergency exits etc.
The Act made reforms to the legislation on homelessness and the allocation of social housing. The Act extends to England and Wales only. The Act requires local housing authorities to adopt a strategic approach to tackling homelessness. It also improves the protection available to people who are homeless through no fault of their own. It achieves this by strengthening the duties owed to homeless people, by removing certain limitations on how authorities can assist homeless people and by giving authorities additional powers to assist homeless people who do not have priority need.
Section 10 deals with persons claiming to be homeless who are at risk of violence. It notes that it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to violence or threats of violence against him or someone with whom he usually resides or might reasonably be expected to reside. Previously the provision applied only to cases of domestic violence. A consequential amendment is made to the conditions in section 198 of the 1996 Act for the referral of an applicant from one housing authority to another.
Section 12 inserts a new Section 213A into the 1996 Act. Subsection (2) of section 213A requires housing authorities to have arrangements in place to ensure that the relevant social services authority are made aware of cases where the housing authority are dealing with an application from an applicant whose household includes a child under age 18, and the authority have reason to believe that they may be homeless (or threatened with homelessness) intentionally, or may be ineligible for housing assistance. The housing authority would also have to inform the social services department of the decision taken on the homelessness application. Subsection (3) places a requirement on unitary authorities to have similar arrangements for the referral of the facts of such cases by the housing department to the social services department.
Subsection (5) of Section 213A also places a new duty on the housing authority to provide advice and assistance to the social services authority, where the latter are aware of a decision by the housing authority that a household that includes a child under 18 is unintentionally homeless (or threatened with homelessness) or ineligible for housing assistance, and the social services authority ask for assistance in the exercise of their functions under Part 3 of the Children Act 1989. Subsection (6) places a requirement on unitary authorities to have similar arrangements to ensure that the housing department provides advice and assistance to the social services department on request.
A duty of confidence arises when one person (the “confidant”) is provided with information by another (the “confider”) in the expectation that the information will only be used or disclosed in accordance with the wishes of the confider. If there is a breach of confidence, the confider or any other party affected (for instance a person whose details were included in the information confided) may have the right to take action through the courts.
The law of confidence is a common law concept. This means that rather than an Act of Parliament setting out what is confidential, what is not and the penalties for a breach of confidence, the law in this area has been developed by the courts as individual cases have been brought before them. The common law has strengths; in particular it is flexible and develops over time. It also has some difficulties, for instance it is often necessary to apply the lessons of one case to another which may have very different elements.
Article 8 of the Convention states that:
- Everyone has the right to respect for her / his private and family life, home and correspondence;
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, protection of health or morals or for the protection of rights and freedom of others.
The right is not absolute and there are certain situations when Article 8 enables professionals to disclose information without consent e.g. to:
- Safeguard a child;
- Protect her / his health or morals;
- Protect the rights and freedoms of others; or
- Prevent disorder or crime.
Article 8 is only one of the articles of the Convention. The Convention also expressly enshrined the right of all citizens not to live in degrading or inhuman conditions for instance and children are citizens under the Act just as are adults.
The principle of ‘proportionality’ applies to sharing confidential information i.e. when disclosing information without consent one must limit the extent of the disclosure to that which is necessary to achieve the aim of disclosure i.e. to protect the child.
The Data Protection Act 1998 regulates the handling of information kept about an individual on a computer or in a manual filing system and requires that personal information is:
- Obtained and processed fairly and lawfully;
- Processed for limited purposes and not in any manner incompatible with those purposes;
- Accurate, up-to-date and relevant;
- Held for no longer than necessary;
- Kept secure;
- Only disclosed if specific conditions set out in the Act are satisfied.
Information can be shared on the basis of one of the legitimate conditions in Schedule 2 of the Data Protection Act 1998 for sharing information, which include:
- Disclosure is necessary to comply with a court order or legal obligation;
- It is necessary to protect the vital interests of the data subject;
- It is necessary for the exercise of a statutory function or other public function exercised in the public interest e.g. a Section 17 assessment or Section 47 Enquiry; and
- It is necessary for the purposes of legitimate interests of the Data Controller or of the third party or third parties to whom the data is disclosed (except where it is unwarranted by reason of prejudice to the rights and freedoms or legitimate interests of the data subject).
If the information being shared is ‘sensitive personal data’ e.g. racial or ethnic origin, religious beliefs or political opinions, trade union membership, sexual life, criminal offences, one of the following additional conditions of Schedule 2 must be met:
- The subject has explicitly consented;
- It is necessary to protect her/his vital interests or those of another person where the subject’s consent cannot be given or is unreasonably withheld or cannot reasonably be expected to be obtained;
- It is necessary to establish, exercise or defend legal rights;
- It is necessary to exercise a statutory function; and
- It is in the substantial public interest and necessary to prevent or detect an unlawful act and obtaining express consent would prejudice those purposes.
For NHS and LA children social care, the Caldicott principles and processes provide a framework of quality standards for the management of confidentiality and access to personal information under the leadership of a Caldicott Guardian.
Health and LA children social care must ensure that their information sharing arrangements are compliant with their own local procedures based on the Caldicott Standard (see Health Service Circular / LAC circular HSC 2002/002/LAC (2002) 2 ‘Implementing the Caldicott Standard into Social Care’).
Each health service and LA children social care will have their own Caldicott Guardian who should be able to provide advice and guidance as required. All professionals have a duty to disclose information where failure to do so would result in a child or children or others suffering from Neglect, or physical, sexual or emotional abuse.
The Freedom of Information (FOI) Act 2000 received Royal Assent on 30 November 2000. The Act supersedes the Code of Practice on Access to Government Information 1997 (the Code of Practice).
The main features of the Act are:
- A right of wide general access to information, subject to clearly defined exemptions and conditions;
- A requirement to consider discretionary disclosure in the public interest even when an exemption applies;
- A duty to publish information;
- Powers of enforcement through an independent Information Commissioner and an Information Tribunal;
- The Information Commissioner is also responsible for promoting the rules for the processing of personal information set out in the Data Protection Act 1998.
The Act requires each public authority to adopt and maintain a Publication Scheme. The purpose of Publication Schemes is to specify the classes of information that the authority publishes or intends to publish; the form in which this is or will be done; and whether there is any charge for the information. Each scheme must be approved by the Information Commissioner.
When the individual right of access is implemented it will apply to all types of recorded information held by public authorities regardless of the date of the information. The Act does, however, set out some exemptions to this right. It also places a number of obligations on public authorities about the way in which they provide information. Subject to the exemptions, anyone making a request must be informed whether the public authority holds the information and, if so, be supplied with it - generally within 20 working days. There is also a duty to provide advice or assistance to anyone seeking information (for example in order to explain what is readily available or to clarify what is wanted).
Private fostering is defined in the Children Act 1989 as a child under the age of 16 (or under 18 if disabled) being placed for more than 28 days in the care of someone who is not the child's guardian, or close relative, by private arrangement between parent and carer.
The risks involved in private fostering received widespread media coverage following the death of Victoria Climbie in 2000. Victoria was privately fostered by her great-aunt and Lord Laming's report into her death recommended that the Government review the law regarding registration of private foster carers.
The 2004 Children Act introduced a tighter framework requiring every local authority to have a duty to raise awareness; to make earlier enquiries about the suitability of private foster carers before children are cared for by them; to appoint a private fostering officer with responsibility for private fostering to monitor compliance with the notification system; to include private fostering amongst the areas to be addressed by safeguarding boards; and to introduce minimum standards for local authority private fostering and enhance the inspection regime.
Anti-Social Behaviour Injunctions can be granted against a person aged 10 or over, to prevent them engaging in anti-social behaviour. The injunction may include provisions requiring the young person to do specified things, and/or prohibiting them from doing specified things.
For under-18s, the injunction must be for a specified period of time, which must be no more than 12 months.These injunctions replace the previous Anti-Social Behaviour Orders (ASBOs) under section 1 Crime and Disorder Act 1998.