The Welfare Checklist – section 1 Children Act 1989
When a court is considering making any of these orders it must have regard in particular to:
a) The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
b) His physical, emotional and / or educational needs;
c) The likely effect on him of any change in his circumstances;
d) His age, sex, background and any characteristics of his, which the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under the Children Act 1989 in the proceedings in question.
For all proceedings under the Children Act 1989 when the court considers a question of the child’s upbringing the child’s welfare is the court’s paramount consideration.
a) The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
b) His physical, emotional and / or educational needs;
c) The likely effect on him of any change in his circumstances;
d) His age, sex, background and any characteristics of his, which the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under the Children Act 1989 in the proceedings in question.
For all proceedings under the Children Act 1989 when the court considers a question of the child’s upbringing the child’s welfare is the court’s paramount consideration.
Section 7 Reports
What is a Section 7 Report?
A Section 7 Report is a report written by an Independent Social Worker in cases where an application has been made to the Court in accordance with The Children Act 1989 section 8.
An Independent Social Worker provides an independent evaluation and assessment of a situation and reports the findings to the Court. A Section 7 Report needs to contain background information and the key facts and evidence that the child’s needs have been considered in accordance with the Welfare Checklist.
The Section 7 Report collates all the available evidence and information about the child’s situation and sets it out in the form of a comprehensive report advising the Court of the child’s wishes and feelings and what the Social Worker considers to be in the best interest of the child.
When is a Section 7 Report necessary?
An Independent Social Worker may be required to write a Section 7 Report for the Court in cases of divorce and separating parents. If a child’s parents have not been able to decide between themselves where their child is going to live and who with and when the child will have contact with the other parent a decision will need to be made by the Court about where a child will live (Residence Order) or when a child will visit (Contact Order).
The Court orders a Section 7 Report to enable the child’s wishes and feelings to be taken in to consideration by someone independent.
The Local Authority will usually apply for an Interim Care Order at the first hearing. Both you, the Guardian and the children’s solicitors can make representations about this. If you do not consent to the Interim Care Order, there may have to be a contested hearing in order for the Court to decide whether or not there should be an Interim Care Order. The advice given as to whether or not to consent to an Interim Care Order varies in every case depending on the individual circumstances.
The average duration of a care case is approximately 9 months, but this depends on the individual circumstances of each case and in some cases can be less or in excess of this. There will be a succession of hearings between the first hearing and the final hearing, known as interim hearings. At the outset of proceedings, the Court will lay down a procedural timetable setting out when parties should file statements and when and what reports are needed. The purpose of the interim hearings is to ensure that work that is required to be done before the final hearing is completed, and to deal with any other issues as they arise.
The Threshold Criteria
- Before the Court can make a final Care or Supervision Order, it must be satisfied that
- The Children are suffering or likely to suffer significant harm and
- That the harm or likelihood of harm is attributable to:
- The care given to the child is not what it would be reasonable to expect the parent to give him or
- The children are beyond parental control.
This test for making the Care Order or Supervision Order is called the Threshold Criteria. The time at which the Court should be considering the Threshold Criteria is either at the date of the final hearing of the Application for the Care and Supervision Order, or the moment at which the Applicants initiated the procedure for the protection of the child i.e. started the Court case.
Harm Means Ill Treatment or Impairment of Health and Developments Development means physical, intellectual, emotional and behavioural development.
Health means physical or mental health, and ill treatment includes sexual abuse and ill treatments which are not physical.
The Local Authority has to prove that the Threshold Criteria are met i.e. that the child is suffering or is likely to suffer significant harm because of the care they are receiving or because they are beyond parental control. The standard of proof is the ordinary standard i.e. on the balance of probabilities.
Unless all parties agree on a final Order, the final hearing is likely to last two or three days although can be more. You will be expected to attend Court and give evidence at the hearing. You will only have to give evidence at interim hearings if they are specifically listed for a contested hearing i.e. there is a particular issue in this dispute. At the end of a contested final hearing, the Court decide what order to make and will give its reasons why.
Care Orders If the Court decides to make a Care Order at the Final Hearing, then a Care Order remains in force until a child is 18.
During the course of the proceedings, the Local Authority have to consider if any members of the child’s extended family are able to care for child, (known as kinship carers), should the Court make a Care Order at the final hearing. If a relative thinks that the child should live with them then they can apply for a Residence Order from the Court, but this will need to be done before the final hearing. They will need to seek independent legal advice in respect of this.
Sometimes the Local Authority wish to place the children with long term alternative carers. The Local Authority intentions must be set out in a Care Plan before the final hearing.
Once the Care Order is made, parents with parental responsibility for the children continue to have responsibility for them. The effect of a Care Order is that the Local Authority also obtains parental responsibility in respect of the child, and they can make day to day decisions about the care of the children, whether they are in foster care or in a children’s home. The Local Authority should consult and inform parents of decisions regarding the children’s education, religious upbringing and medical treatment.
The Court can also make Orders about how often you see the children, both during proceedings and once a final Court Order has been made. This is referred to as contact.
Supervision Orders Depending on the facts of the case, the Local Authority may wish to apply for a Supervision Order rather than a Care Order. A Supervision Order places the children under the supervision of a designated Local Authority. This means that the children can reside at home but only under certain conditions, an Agreement will be drawn up between the parents nd the Local Authority. Supervision Orders normally last for one year but can be extended to a total of three years. A Social Worker supervises the family under the Order and should advise, assist and befriend the supervised child.
Adoption If the Local Authority finally decide that the best option is for the child to be adopted, then they would have to return to Court for a further Order to allow them to do this. The Care Order does not give them the right to consent to the child’s adoption. If an adoption order is made, the birth parents lose their parental responsibility and the child becomes the legal child of the adopters.
Parties involved There may be several parties involved in Public Law proceedings.
The first of these will be the Local Authority (or, in some limited circumstances, the police or other authorised agency). They are called the Applicant and will have decided to take proceedings in relation to a child (or children) about whom they have concerns.
The Social Worker involved in the case will normally attend Court on behalf of the Local Authority together with a legal representative.
The Respondents in the case will be the mother of the child/children involved and provided he is married to the mother or has Parental Responsibility, the father of the child/children. It is possible for there to be several Respondents if there is more than one child involved and they do not share the same father, although in those circumstances the proceedings may be separated to avoid them becoming too complex.
If the father is not married to the mother of his child/children, or does not have Parental Responsibility then he will not automatically be a party to the proceedings, nor have the right to see the documents filed in the case, unless the father was named on the birth certificate after January 2004, in which case he will have parental responsibility automatically. Care proceedings are extremely confidential and only those who are a party to the proceedings are allowed to see the documents and case papers. He can, however apply to be joined. For this reason it is important that he is made aware of the proceedings.
If any other person wishes to be joined as a party e.g. a grandparent, step-parent or carer of the child then they will need to apply to the Court and consideration will have to be given as to whether it is in the child/children’s interests for them to be made a party.
The child/children will also be a party to the proceedings and they will be legally represented. A Solicitor will be appointed (often by the Court directly) to act for the child/children. He/she will be completely independent.
The children’s Solicitor will work closely with another representative appointed by the Court to represent the children’s interests, called the Children’s Guardian.
Role of the Children’s Guardian The Children’s Guardian is an independent person who will visit the child/children and assess their needs. The Guardian is responsible for filing a report with the Court setting out what they feel to be in the child/children’s best interests e.g. whether they think the child/children should return to live with their parents or be placed with other carers on a permanent basis.
In the course of preparing his/her Report it is likely that the Guardian will want to visit all the parties involved and ascertain their views, meet the parents, the Social workers, read through the Local Authority file, and meet with the children, foster parents and any other professionals involved with the children. It is very important that the parents co-operate with the Guardian as the Court often attaches a lot of weight to any recommendation made by the Guardian as to the outcome of the case. This is because they are independent. Ultimately however, the Guardian will give his/her own opinion as to what is in the child’s best interests. Sometimes this can be different to what the child wants itself.
Procedure The proceedings will commence in the Family Proceedings Court, unless they have arisen out of existing private law proceedings ongoing in the County Court. In some circumstances the case may be transferred to a higher level such as a County Court or even the High Court. In East London if cases are transferred up from a local Family Proceedings Court they invariably go to the Principal Registry of the Family Division which is in Chancery Lane, Holborn.
The type of case that might be transferred is one that seems complex e.g. it might require more than 4 days of Court time to be resolved, involve numerous parties or involve serious allegations of physical abuse.
The procedure for care cases is governed by the Protocol for Judicial Case Management in Public Children Act Cases. One of the main principles in Children law is that delay in deciding where a child will live etc is prejudicial, and consequently, the Protocol dictates that apart from in exceptional circumstances, care cases must take no longer than 40 weeks from start to finish. It sets out a timetable for how cases proceed.
Day 1 of the case is when the Applicant issues their application, and the Court fixes it for a first hearing, which must be within 6 days. They have to serve all parties with a copy of their application and a statement setting out their reasons for applying for an order in statement, to be served by day 3. The purpose of the first hearing is to decide what immediate steps are necessary to progress the case.
If the Respondent(s) do not agree with the Local Authority’s application e.g. for a care order, a contested hearing will need to take place in which the Court will hear evidence and make a decision as to whether or not to grant an interim order. The Court only makes a final order at the end of the case. The Court will also decide whether the case needs to be transferred to a higher Court, and will make directions for the filing of evidence. It will timetable the case, which means it will fix all necessary hearings including the final hearing, to be heard by no more than two different judges throughout the case. Consideration will also be given to whether or not experts need to be instructed to prepare reports for the Court to help them reach a final decision, and a time table set for completing any assessments deemed necessary.
If the case is transferred to the County Court there will be an allocation hearing in that Court by day 11, and if it then needs to be transferred again to the High Court, there will need to be a further allocation hearing by day 15. The reality is that it is not always possible to have these hearings within the time limit set, although the Courts must make every effort to comply with the Protocol.
The next hearing will be the Case Management Conference, which must be between Day 15 and 60 (week 8), at which the Court and parties will consider what directions are necessary to ensure that the case is progressing and that any work necessary is done within the Court timetable. The legal representatives will have an Advocates Meeting before the Case Management Conference to try and agree the directions.
The next hearing is the Pre-Hearing Review, which must be heard by week 37. The objective is to identify and narrow the issues, and to ensure that the final hearing can go ahead and that all the necessary evidence is available to the Court. The Final Hearing will then take place by week 40, at which the Court will determine any remaining issues. If the parties are unable to reach an agreement as to the outcome, there will be a contested hearing at which evidence will be heard from the parties, including the Social Worker, Guardian, and any experts whose evidence is in dispute.
supervision Orders – section 31 Children Act 1989
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.
These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
1) advise, assist and befriend the supervised child
2) take steps that are reasonably necessary to give effect to the order and
3) where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:
1) live at a place specified by the supervisor;
2) present themselves to specific people at specific places or times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.
A supervision order can also require the child 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 need.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.
These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
1) advise, assist and befriend the supervised child
2) take steps that are reasonably necessary to give effect to the order and
3) where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:
1) live at a place specified by the supervisor;
2) present themselves to specific people at specific places or times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.
A supervision order can also require the child 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 need.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.
Parental contact etc. with children in care SECTION 34.
(1)Where a child is in the care of a local authority, the authority shall (subject to the provisions of this section) allow the child reasonable contact with–
(a)his parents;
(b)any guardian [F12or special guardian] of his;
[F13(ba)any person who by virtue of section 4A has parental responsibility for him;]
(c)where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the order was made; and
(d)where, immediately before the care order was made, a person had care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, that person.
(2)On an application made by the authority or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person.
(3)On an application made by–
(a)any person mentioned in paragraphs (a) to (d) of subsection (1); or
(b)any person who has obtained the leave of the court to make the application,the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.
(4)On an application made by the authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned in paragraphs (a) to (d) of subsection (1) and named in the order.
(5)When making a care order with respect to a child, or in any family proceedings in connection with a child who is in the care of a local authority, the court may make an order under this section, even though no application for such an order has been made with respect to the child, if it considers that the order should be made.
(6)An authority may refuse to allow the contact that would otherwise be required by virtue of subsection (1) or an order under this section if–
(a)they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare; and
(b)the refusal–
(i)is decided upon as a matter of urgency; and
(ii)does not last for more than seven days.
(7)An order under this section may impose such conditions as the court considers appropriate.
(8)The Secretary of State may by regulations make provision as to–
(a)the steps to be taken by a local authority who have exercised their powers under subsection (6);
(b)the circumstances in which, and conditions subject to which, the terms of any order under this section may be departed from by agreement between the local authority and the person in relation to whom the order is made;
(c)notification by a local authority of any variation or suspension of arrangements made (otherwise than under an order under this section) with a view to affording any person contact with a child to whom this section applies.
(9)The court may vary or discharge any order made under this section on the application of the authority, the child concerned or the person named in the order.
(10)An order under this section may be made either at the same time as the care order itself or later.
(11)Before making a care order with respect to any child the court shall–
(a)consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and
(b)invite the parties to the proceedings to comment on those arrangements.
(a)his parents;
(b)any guardian [F12or special guardian] of his;
[F13(ba)any person who by virtue of section 4A has parental responsibility for him;]
(c)where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the order was made; and
(d)where, immediately before the care order was made, a person had care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, that person.
(2)On an application made by the authority or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person.
(3)On an application made by–
(a)any person mentioned in paragraphs (a) to (d) of subsection (1); or
(b)any person who has obtained the leave of the court to make the application,the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.
(4)On an application made by the authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned in paragraphs (a) to (d) of subsection (1) and named in the order.
(5)When making a care order with respect to a child, or in any family proceedings in connection with a child who is in the care of a local authority, the court may make an order under this section, even though no application for such an order has been made with respect to the child, if it considers that the order should be made.
(6)An authority may refuse to allow the contact that would otherwise be required by virtue of subsection (1) or an order under this section if–
(a)they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare; and
(b)the refusal–
(i)is decided upon as a matter of urgency; and
(ii)does not last for more than seven days.
(7)An order under this section may impose such conditions as the court considers appropriate.
(8)The Secretary of State may by regulations make provision as to–
(a)the steps to be taken by a local authority who have exercised their powers under subsection (6);
(b)the circumstances in which, and conditions subject to which, the terms of any order under this section may be departed from by agreement between the local authority and the person in relation to whom the order is made;
(c)notification by a local authority of any variation or suspension of arrangements made (otherwise than under an order under this section) with a view to affording any person contact with a child to whom this section applies.
(9)The court may vary or discharge any order made under this section on the application of the authority, the child concerned or the person named in the order.
(10)An order under this section may be made either at the same time as the care order itself or later.
(11)Before making a care order with respect to any child the court shall–
(a)consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and
(b)invite the parties to the proceedings to comment on those arrangements.
General duty of local authority in relation to children looked after by them.
(1)In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is–
(a)in their care; or
(b)provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which [F40are social services functions within the meaning of] the M4Local Authority Social Services Act 1970 [F41, apart from functions under sections [F4217] 23B and 24B].
(2)In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours.
(3)It shall be the duty of a local authority looking after any child–
(a)to safeguard and promote his welfare; and
(b)to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.
[F43(3A)The duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child’s educational achievement.]
(4)Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of–
(a)the child;
(b)his parents;
(c)any person who is not a parent of his but who has parental responsibility for him; and
(d)any other person whose wishes and feelings the authority consider to be relevant,regarding the matter to be decided.
(5)In making any such decision a local authority shall give due consideration–
(a)having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;
(b)to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and
(c)to the child’s religious persuasion, racial origin and cultural and linguistic background.
(6)If it appears to a local authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so.
(7)If the [F44appropriate national authority] considers it necessary, for the purpose of protecting members of the public from serious injury, to give directions to a local authority with respect to the exercise of their powers with respect to a child whom they are looking after, [F45the appropriate national authority] may give such directions to [F46the local authority] .
(8)Where any such directions are given to an authority they shall comply with them even though doing so is inconsistent with their duties under this section.
(1)In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is–
(a)in their care; or
(b)provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which [F40are social services functions within the meaning of] the M4Local Authority Social Services Act 1970 [F41, apart from functions under sections [F4217] 23B and 24B].
(2)In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours.
(3)It shall be the duty of a local authority looking after any child–
(a)to safeguard and promote his welfare; and
(b)to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.
[F43(3A)The duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child’s educational achievement.]
(4)Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of–
(a)the child;
(b)his parents;
(c)any person who is not a parent of his but who has parental responsibility for him; and
(d)any other person whose wishes and feelings the authority consider to be relevant,regarding the matter to be decided.
(5)In making any such decision a local authority shall give due consideration–
(a)having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;
(b)to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and
(c)to the child’s religious persuasion, racial origin and cultural and linguistic background.
(6)If it appears to a local authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so.
(7)If the [F44appropriate national authority] considers it necessary, for the purpose of protecting members of the public from serious injury, to give directions to a local authority with respect to the exercise of their powers with respect to a child whom they are looking after, [F45the appropriate national authority] may give such directions to [F46the local authority] .
(8)Where any such directions are given to an authority they shall comply with them even though doing so is inconsistent with their duties under this section.
Enforcement orders
(1)This section applies if a contact order with respect to a child has been made.
(2)If the court is satisfied beyond reasonable doubt that a person has failed to comply with the contact order, it may make an order (an “enforcement order”) imposing on the person an unpaid work requirement.
(3)But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the contact order.
(4)The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.
(5)The court may make an enforcement order in relation to the contact order only on the application of–
(a)the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
(b)the person whose contact with the child concerned is provided for in the contact order;
(c)any individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order; or
(d)the child concerned.
(6)Where the person proposing to apply for an enforcement order in relation to a contact order is the child concerned, the child must obtain the leave of the court before making such an application.
(7)The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.
(8)Subsection (2) has effect subject to the restrictions in sections 11K and 11L.
(9)The court may suspend an enforcement order for such period as it thinks fit.
(10)Nothing in this section prevents a court from making more than one enforcement order in relation to the same person on the same occasion.
(11)Proceedings in which any question of making an enforcement order, or any other question with respect to such an order, arises are to be regarded for the purposes of section 11(1) and (2) as proceedings in which a question arises with respect to a section 8 order.
(12)In Schedule A1–
(a)Part 1 makes provision as regards an unpaid work requirement;
(b)Part 2 makes provision in relation to the revocation and amendment of enforcement orders and failure to comply with such orders.
(13)This section is without prejudice to section 63(3) of the Magistrates’ Courts Act 1980 as it applies in relation to contact orders.]
(1)This section applies if a contact order with respect to a child has been made.
(2)If the court is satisfied beyond reasonable doubt that a person has failed to comply with the contact order, it may make an order (an “enforcement order”) imposing on the person an unpaid work requirement.
(3)But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the contact order.
(4)The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.
(5)The court may make an enforcement order in relation to the contact order only on the application of–
(a)the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
(b)the person whose contact with the child concerned is provided for in the contact order;
(c)any individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order; or
(d)the child concerned.
(6)Where the person proposing to apply for an enforcement order in relation to a contact order is the child concerned, the child must obtain the leave of the court before making such an application.
(7)The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.
(8)Subsection (2) has effect subject to the restrictions in sections 11K and 11L.
(9)The court may suspend an enforcement order for such period as it thinks fit.
(10)Nothing in this section prevents a court from making more than one enforcement order in relation to the same person on the same occasion.
(11)Proceedings in which any question of making an enforcement order, or any other question with respect to such an order, arises are to be regarded for the purposes of section 11(1) and (2) as proceedings in which a question arises with respect to a section 8 order.
(12)In Schedule A1–
(a)Part 1 makes provision as regards an unpaid work requirement;
(b)Part 2 makes provision in relation to the revocation and amendment of enforcement orders and failure to comply with such orders.
(13)This section is without prejudice to section 63(3) of the Magistrates’ Courts Act 1980 as it applies in relation to contact orders.]
Supervision Orders – section 31 Children Act 1989
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.
These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
1) advise, assist and befriend the supervised child
2) take steps that are reasonably necessary to give effect to the order and
3) where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:
1) live at a place specified by the supervisor;
2) present themselves to specific people at specific places or times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.
A supervision order can also require the child 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 need.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.
These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
1) advise, assist and befriend the supervised child
2) take steps that are reasonably necessary to give effect to the order and
3) where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:
1) live at a place specified by the supervisor;
2) present themselves to specific people at specific places or times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.
A supervision order can also require the child 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 need.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.
Interim orders.
(1)Where–
(a)in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or
(b)the court gives a direction under section 37(1),the court may make an interim care order or an interim supervision order with respect to the child concerned.
(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).
(3)Where, in any proceedings on an application for a care order or supervision order, a court makes a residence order with respect to the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.
(4)An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs–
(a)the expiry of the period of eight weeks beginning with the date on which the order is made;
(b)if the order is the second or subsequent such order made with respect to the same child in the same proceedings, the expiry of the relevant period;
(c)in a case which falls within subsection (1)(a), the disposal of the application;
(d)in a case which falls within subsection (1)(b), the disposal of an application for a care order or supervision order made by the authority with respect to the child;
(e)in a case which falls within subsection (1)(b) and in which–
(i)the court has given a direction under section 37(4), but
(ii)no application for a care order or supervision order has been made with respect to the child,the expiry of the period fixed by that direction.
(5)In subsection (4)(b) “the relevant period” means–
(a)the period of four weeks beginning with the date on which the order in question is made; or
(b)the period of eight weeks beginning with the date on which the first order was made if that period ends later than the period mentioned in paragraph (a).
(6)Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.
(7)A direction under subsection (6) may be to the effect that there is to be–
(a)no such examination or assessment; or
(b)no such examination or assessment unless the court directs otherwise.
(8)A direction under subsection (6) may be–
(a)given when the interim order is made or at any time while it is in force; and
(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(9)Paragraphs 4 and 5 of Schedule 3 shall not apply in relation to an interim supervision order.
(10)Where a court makes an order under or by virtue of this section it shall, in determining the period for which the order is to be in force, consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full.
(1)Where–
(a)in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or
(b)the court gives a direction under section 37(1),the court may make an interim care order or an interim supervision order with respect to the child concerned.
(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).
(3)Where, in any proceedings on an application for a care order or supervision order, a court makes a residence order with respect to the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.
(4)An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs–
(a)the expiry of the period of eight weeks beginning with the date on which the order is made;
(b)if the order is the second or subsequent such order made with respect to the same child in the same proceedings, the expiry of the relevant period;
(c)in a case which falls within subsection (1)(a), the disposal of the application;
(d)in a case which falls within subsection (1)(b), the disposal of an application for a care order or supervision order made by the authority with respect to the child;
(e)in a case which falls within subsection (1)(b) and in which–
(i)the court has given a direction under section 37(4), but
(ii)no application for a care order or supervision order has been made with respect to the child,the expiry of the period fixed by that direction.
(5)In subsection (4)(b) “the relevant period” means–
(a)the period of four weeks beginning with the date on which the order in question is made; or
(b)the period of eight weeks beginning with the date on which the first order was made if that period ends later than the period mentioned in paragraph (a).
(6)Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.
(7)A direction under subsection (6) may be to the effect that there is to be–
(a)no such examination or assessment; or
(b)no such examination or assessment unless the court directs otherwise.
(8)A direction under subsection (6) may be–
(a)given when the interim order is made or at any time while it is in force; and
(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(9)Paragraphs 4 and 5 of Schedule 3 shall not apply in relation to an interim supervision order.
(10)Where a court makes an order under or by virtue of this section it shall, in determining the period for which the order is to be in force, consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full.
Discharge and variation etc. of care orders and supervision orders.
(1)A care order may be discharged by the court on the application of–
(a)any person who has parental responsibility for the child;
(b)the child himself; or
(c)the local authority designated by the order.
(2)A supervision order may be varied or discharged by the court on the application of–
(a)any person who has parental responsibility for the child;
(b)the child himself; or
(c)the supervisor.
(3)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person with whom the child is living, a supervision order may be varied by the court in so far as it imposes a requirement which affects that person.
[F20(3A)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an interim care order may be varied or discharged by the court in so far as it imposes the exclusion requirement.
(3B)Where a power of arrest has been attached to an exclusion requirement of an interim care order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).]
(4)Where a care order is in force with respect to a child the court may, on the application of any person entitled to apply for the order to be discharged, substitute a supervision order for the care order.
(5)When a court is considering whether to substitute one order for another under subsection (4) any provision of this Act which would otherwise require section 31(2) to be satisfied at the time when the proposed order is substituted or made shall be disregarded
(1)A care order may be discharged by the court on the application of–
(a)any person who has parental responsibility for the child;
(b)the child himself; or
(c)the local authority designated by the order.
(2)A supervision order may be varied or discharged by the court on the application of–
(a)any person who has parental responsibility for the child;
(b)the child himself; or
(c)the supervisor.
(3)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person with whom the child is living, a supervision order may be varied by the court in so far as it imposes a requirement which affects that person.
[F20(3A)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an interim care order may be varied or discharged by the court in so far as it imposes the exclusion requirement.
(3B)Where a power of arrest has been attached to an exclusion requirement of an interim care order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).]
(4)Where a care order is in force with respect to a child the court may, on the application of any person entitled to apply for the order to be discharged, substitute a supervision order for the care order.
(5)When a court is considering whether to substitute one order for another under subsection (4) any provision of this Act which would otherwise require section 31(2) to be satisfied at the time when the proposed order is substituted or made shall be disregarded
Care orders: care plans
(1)Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan (“a care plan”) for the future care of the child.
(2)While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.
(3)A care plan must give any prescribed information and do so in the prescribed manner.
(4)For the purposes of this section, the appropriate local authority, in relation to a child in respect of whom a care order might be made, is the local authority proposed to be designated in the order.
(5)In section 31(3A) and this section, references to a care order do not include an interim care order.
(6)A plan prepared, or treated as prepared, under this section is referred to in this Act as a “section 31A plan”.]
(1)Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan (“a care plan”) for the future care of the child.
(2)While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.
(3)A care plan must give any prescribed information and do so in the prescribed manner.
(4)For the purposes of this section, the appropriate local authority, in relation to a child in respect of whom a care order might be made, is the local authority proposed to be designated in the order.
(5)In section 31(3A) and this section, references to a care order do not include an interim care order.
(6)A plan prepared, or treated as prepared, under this section is referred to in this Act as a “section 31A plan”.]
Duty of local authority to ensure visits to, and contact with, looked after children and others
(1)This section applies to–
(a)a child looked after by a local authority;
(b)a child who was looked after by a local authority but who has ceased to be looked after by them as a result of prescribed circumstances.
(2)It is the duty of the local authority–
(a)to ensure that a person to whom this section applies is visited by a representative of the authority (“a representative”);
(b)to arrange for appropriate advice, support and assistance to be available to a person to whom this section applies who seeks it from them.
(3)The duties imposed by subsection (2)–
(a)are to be discharged in accordance with any regulations made for the purposes of this section by the appropriate national authority;
(b)are subject to any requirement imposed by or under an enactment applicable to the place in which the person to whom this section applies is accommodated.
(4)Regulations under this section for the purposes of subsection (3)(a) may make provision about–
(a)the frequency of visits;
(b)circumstances in which a person to whom this section applies must be visited by a representative; and
(c)the functions of a representative.
(5)In choosing a representative a local authority must satisfy themselves that the person chosen has the necessary skills and experience to perform the functions of a representative.
(1)This section applies to–
(a)a child looked after by a local authority;
(b)a child who was looked after by a local authority but who has ceased to be looked after by them as a result of prescribed circumstances.
(2)It is the duty of the local authority–
(a)to ensure that a person to whom this section applies is visited by a representative of the authority (“a representative”);
(b)to arrange for appropriate advice, support and assistance to be available to a person to whom this section applies who seeks it from them.
(3)The duties imposed by subsection (2)–
(a)are to be discharged in accordance with any regulations made for the purposes of this section by the appropriate national authority;
(b)are subject to any requirement imposed by or under an enactment applicable to the place in which the person to whom this section applies is accommodated.
(4)Regulations under this section for the purposes of subsection (3)(a) may make provision about–
(a)the frequency of visits;
(b)circumstances in which a person to whom this section applies must be visited by a representative; and
(c)the functions of a representative.
(5)In choosing a representative a local authority must satisfy themselves that the person chosen has the necessary skills and experience to perform the functions of a representative.
Family assistance orders.
(1)Where, in any family proceedings, the court has power to make an order under this Part with respect to any child, it may (whether or not it makes such an order) make an order requiring–
(a)[F54an officer of the Service][F55or a Welsh family proceedings officer] to be made available; or
(b)a local authority to make an officer of the authority available,to advise, assist and (where appropriate) befriend any person named in the order.
(2)The persons who may be named in an order under this section (“a family assistance order”) are–
(a)any parent [F56, guardian or special guardian] of the child;
(b)any person with whom the child is living or in whose favour a contact order is in force with respect to the child;
(c)the child himself.
(3)No court may make a family assistance order unless–
(a)F57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)it has obtained the consent of every person to be named in the order other than the child.
(4)A family assistance order may direct–
(a)the person named in the order; or
(b)such of the persons named in the order as may be specified in the order,to take such steps as may be so specified with a view to enabling the officer concerned to be kept informed of the address of any person named in the order and to be allowed to visit any such person.
[F58(4A)If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a contact order made with respect to the child, the family assistance order may direct the officer concerned to give advice and assistance as regards establishing, improving and maintaining contact to such of the persons named in the order as may be specified in the order.]
(5)Unless it specifies a shorter period, a family assistance order shall have effect for a period of [F59twelve months] beginning with the day on which it is made.
[F60(6)If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a section 8 order made with respect to the child, the family assistance order may direct the officer concerned to report to the court on such matters relating to the section 8 order as the court may require (including the question whether the section 8 order ought to be varied or discharged).]
(7)A family assistance order shall not be made so as to require a local authority to make an officer of theirs available unless–
(a)the authority agree; or
(b)the child concerned lives or will live within their area.
(1)Where, in any family proceedings, the court has power to make an order under this Part with respect to any child, it may (whether or not it makes such an order) make an order requiring–
(a)[F54an officer of the Service][F55or a Welsh family proceedings officer] to be made available; or
(b)a local authority to make an officer of the authority available,to advise, assist and (where appropriate) befriend any person named in the order.
(2)The persons who may be named in an order under this section (“a family assistance order”) are–
(a)any parent [F56, guardian or special guardian] of the child;
(b)any person with whom the child is living or in whose favour a contact order is in force with respect to the child;
(c)the child himself.
(3)No court may make a family assistance order unless–
(a)F57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)it has obtained the consent of every person to be named in the order other than the child.
(4)A family assistance order may direct–
(a)the person named in the order; or
(b)such of the persons named in the order as may be specified in the order,to take such steps as may be so specified with a view to enabling the officer concerned to be kept informed of the address of any person named in the order and to be allowed to visit any such person.
[F58(4A)If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a contact order made with respect to the child, the family assistance order may direct the officer concerned to give advice and assistance as regards establishing, improving and maintaining contact to such of the persons named in the order as may be specified in the order.]
(5)Unless it specifies a shorter period, a family assistance order shall have effect for a period of [F59twelve months] beginning with the day on which it is made.
[F60(6)If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a section 8 order made with respect to the child, the family assistance order may direct the officer concerned to report to the court on such matters relating to the section 8 order as the court may require (including the question whether the section 8 order ought to be varied or discharged).]
(7)A family assistance order shall not be made so as to require a local authority to make an officer of theirs available unless–
(a)the authority agree; or
(b)the child concerned lives or will live within their area.
Special guardianship orders
(1)A “special guardianship order” is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians).
(2)A special guardian–
(a)must be aged eighteen or over; and
(b)must not be a parent of the child in question,and subsections (3) to (6) are to be read in that light.
(3)The court may make a special guardianship order with respect to any child on the application of an individual who–
(a)is entitled to make such an application with respect to the child; or
(b)has obtained the leave of the court to make the application,or on the joint application of more than one such individual.
(4)Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order.
(5)The individuals who are entitled to apply for a special guardianship order with respect to a child are–
(a)any guardian of the child;
(b)any individual in whose favour a residence order is in force with respect to the child;
(c)any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);
(d)a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.[F42;
(e)a relative with whom the child has lived for a period of at least one year immediately preceding the application.]
(6)The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if–
(a)an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or
(b)the court considers that a special guardianship order should be made even though no such application has been made.
(7)No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application–
(a)if the child in question is being looked after by a local authority, to that local authority, or
(b)otherwise, to the local authority in whose area the individual is ordinarily resident.
(8)On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with–
(a)the suitability of the applicant to be a special guardian;
(b)such matters (if any) as may be prescribed by the Secretary of State; and
(c)any other matter which the local authority consider to be relevant.
(9)The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.
(10)The local authority may make such arrangements as they see fit for any person to act on their behalf in connection with conducting an investigation or preparing a report referred to in subsection (8) or (9).
(11)The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).
(12)Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders.
(13)This section is subject to section 29(5) and (6) of the Adoption and Children Act 2002.
(1)A “special guardianship order” is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians).
(2)A special guardian–
(a)must be aged eighteen or over; and
(b)must not be a parent of the child in question,and subsections (3) to (6) are to be read in that light.
(3)The court may make a special guardianship order with respect to any child on the application of an individual who–
(a)is entitled to make such an application with respect to the child; or
(b)has obtained the leave of the court to make the application,or on the joint application of more than one such individual.
(4)Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order.
(5)The individuals who are entitled to apply for a special guardianship order with respect to a child are–
(a)any guardian of the child;
(b)any individual in whose favour a residence order is in force with respect to the child;
(c)any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);
(d)a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.[F42;
(e)a relative with whom the child has lived for a period of at least one year immediately preceding the application.]
(6)The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if–
(a)an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or
(b)the court considers that a special guardianship order should be made even though no such application has been made.
(7)No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application–
(a)if the child in question is being looked after by a local authority, to that local authority, or
(b)otherwise, to the local authority in whose area the individual is ordinarily resident.
(8)On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with–
(a)the suitability of the applicant to be a special guardian;
(b)such matters (if any) as may be prescribed by the Secretary of State; and
(c)any other matter which the local authority consider to be relevant.
(9)The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.
(10)The local authority may make such arrangements as they see fit for any person to act on their behalf in connection with conducting an investigation or preparing a report referred to in subsection (8) or (9).
(11)The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).
(12)Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders.
(13)This section is subject to section 29(5) and (6) of the Adoption and Children Act 2002.
(1)Before making a special guardianship order, the court must consider whether, if the order were made–
(a)a contact order should also be made with respect to the child, F44…
(b)any section 8 order in force with respect to the child should be varied or discharged.
[F45(c)where a contact order made with respect to the child is not discharged, any enforcement order relating to that contact order should be revoked, and
(d)where a contact activity direction has been made as regards contact with the child and is in force, that contact activity direction should be discharged.]
(2)On making a special guardianship order, the court may also–
(a)give leave for the child to be known by a new surname;
(b)grant the leave required by section 14C(3)(b), either generally or for specified purposes.
(a)a contact order should also be made with respect to the child, F44…
(b)any section 8 order in force with respect to the child should be varied or discharged.
[F45(c)where a contact order made with respect to the child is not discharged, any enforcement order relating to that contact order should be revoked, and
(d)where a contact activity direction has been made as regards contact with the child and is in force, that contact activity direction should be discharged.]
(2)On making a special guardianship order, the court may also–
(a)give leave for the child to be known by a new surname;
(b)grant the leave required by section 14C(3)(b), either generally or for specified purposes.
Special guardianship orders: variation and discharge
(1)The court may vary or discharge a special guardianship order on the application of–
(a)the special guardian (or any of them, if there are more than one);
(b)any parent or guardian of the child concerned;
(c)any individual in whose favour a residence order is in force with respect to the child;
(d)any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e)the child himself; or
(f)a local authority designated in a care order with respect to the child.
(2)In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3)The following must obtain the leave of the court before making an application under subsection (1)–
(a)the child;
(b)any parent or guardian of his;
(c)any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d)any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4)Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5)The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.
(a)the special guardian (or any of them, if there are more than one);
(b)any parent or guardian of the child concerned;
(c)any individual in whose favour a residence order is in force with respect to the child;
(d)any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e)the child himself; or
(f)a local authority designated in a care order with respect to the child.
(2)In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3)The following must obtain the leave of the court before making an application under subsection (1)–
(a)the child;
(b)any parent or guardian of his;
(c)any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d)any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4)Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5)The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.
11AContact activity directions
(1)This section applies in proceedings in which the court is considering whether to make provision about contact with a child by making–
(a)a contact order with respect to the child, or
(b)an order varying or discharging a contact order with respect to the child.
(2)The court may make a contact activity direction in connection with that provision about contact.
(3)A contact activity direction is a direction requiring an individual who is a party to the proceedings to take part in an activity that promotes contact with the child concerned.
(4)The direction is to specify the activity and the person providing the activity.
(5)The activities that may be so required include, in particular–
(a)programmes, classes and counselling or guidance sessions of a kind that–
(i)may assist a person as regards establishing, maintaining or improving contact with a child;
(ii)may, by addressing a person’s violent behaviour, enable or facilitate contact with a child;
(b)sessions in which information or advice is given as regards making or operating arrangements for contact with a child, including making arrangements by means of mediation.
(6)No individual may be required by a contact activity direction–
(a)to undergo medical or psychiatric examination, assessment or treatment;
(b)to take part in mediation.
(7)A court may not on the same occasion–
(a)make a contact activity direction, and
(b)dispose finally of the proceedings as they relate to contact with the child concerned.
(8)Subsection (2) has effect subject to the restrictions in sections 11B and 11E.
(9)In considering whether to make a contact activity direction, the welfare of the child concerned is to be the court’s paramount consideration.]
(1)This section applies in proceedings in which the court is considering whether to make provision about contact with a child by making–
(a)a contact order with respect to the child, or
(b)an order varying or discharging a contact order with respect to the child.
(2)The court may make a contact activity direction in connection with that provision about contact.
(3)A contact activity direction is a direction requiring an individual who is a party to the proceedings to take part in an activity that promotes contact with the child concerned.
(4)The direction is to specify the activity and the person providing the activity.
(5)The activities that may be so required include, in particular–
(a)programmes, classes and counselling or guidance sessions of a kind that–
(i)may assist a person as regards establishing, maintaining or improving contact with a child;
(ii)may, by addressing a person’s violent behaviour, enable or facilitate contact with a child;
(b)sessions in which information or advice is given as regards making or operating arrangements for contact with a child, including making arrangements by means of mediation.
(6)No individual may be required by a contact activity direction–
(a)to undergo medical or psychiatric examination, assessment or treatment;
(b)to take part in mediation.
(7)A court may not on the same occasion–
(a)make a contact activity direction, and
(b)dispose finally of the proceedings as they relate to contact with the child concerned.
(8)Subsection (2) has effect subject to the restrictions in sections 11B and 11E.
(9)In considering whether to make a contact activity direction, the welfare of the child concerned is to be the court’s paramount consideration.]
8 Residence, contact and other orders with respect to children.
(1)In this Act –
“a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
“a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
“a residence order” means an order settling the arrangements to be made as to the person with whom a child is to live; and
“a specific issue order” means 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.
(2)In this Act “a section 8 order” means any of the orders mentioned in subsection (1) and any order varying or discharging such an order.
(3)For the purposes of this Act “family proceedings” means any proceedings–
(a)under the inherent jurisdiction of the High Court in relation to children; and
(b)under the enactments mentioned in subsection (4),but does not include proceedings on an application for leave under section 100(3).
(1)In this Act –
“a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
“a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
“a residence order” means an order settling the arrangements to be made as to the person with whom a child is to live; and
“a specific issue order” means 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.
(2)In this Act “a section 8 order” means any of the orders mentioned in subsection (1) and any order varying or discharging such an order.
(3)For the purposes of this Act “family proceedings” means any proceedings–
(a)under the inherent jurisdiction of the High Court in relation to children; and
(b)under the enactments mentioned in subsection (4),but does not include proceedings on an application for leave under section 100(3).
49 Abduction of children in care etc.
(1)A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he–
(a)takes a child to whom this section applies away from the responsible person;
(b)keeps such a child away from the responsible person; or
(c)induces, assists or incites such a child to run away or stay away from the responsible person.
(2)This section applies in relation to a child who is–
(a)in care;
(b)the subject of an emergency protection order; or
(c)in police protection, and in this section “the responsible person” means any person who for the time being has care of him by virtue of the care order, the emergency protection order, or section 46, as the case may be.
(3)A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to bo
(1)A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he–
(a)takes a child to whom this section applies away from the responsible person;
(b)keeps such a child away from the responsible person; or
(c)induces, assists or incites such a child to run away or stay away from the responsible person.
(2)This section applies in relation to a child who is–
(a)in care;
(b)the subject of an emergency protection order; or
(c)in police protection, and in this section “the responsible person” means any person who for the time being has care of him by virtue of the care order, the emergency protection order, or section 46, as the case may be.
(3)A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to bo
(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. F2…
(2)Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child’s welfare.
(3)The enquiries shall, in particular, be directed towards establishing–
(a)whether the authority should make any application to the court, or exercise any of their other powers under this Act [F3or section 11 of the Crime and Disorder Act 1998 (child safety orders)], with respect to the child;
(b)whether, in the case of a child–
(i)with respect to whom an emergency protection order has been made; and
(ii)who is not in accommodation provided by or on behalf of the authority,it would be in the child’s best interests (while an emergency protection order remains in force) for him to be in such accommodation; and
(c)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 authority to ask for an application to be made under section 46(7).
(4)Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable–
(a)to obtain access to him; or
(b)to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose, unless they are satisfied that they already have sufficient information with respect to him.
(5)Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child’s education which should be investigated, they shall consult the relevant local education authority.
[F4(5A)For the purposes of making a determination under this section as to the action to be taken with respect to a child, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare--
(a)ascertain the child’s wishes and feelings regarding the action to be taken with respect to him; and
(b)give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.]
(6)Where, in the course of enquiries made under this section–
(a)any officer of the local authority concerned; or
(b)any person authorised by the authority to act on their behalf in connection with those enquiries–
(i)is refused access to the child concerned; or
(ii)is denied information as to his whereabouts, the authority shall apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so.
(7)If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall–
(a)consider whether it would be appropriate to review the case at a later date; and
(b)if they decide that it would be, determine the date on which that review is to begin.
(8)Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).
(9)Where a local authority are conducting enquiries under this section, it shall be the duty of any person mentioned in subsection (11) to assist them with those enquiries (in particular by providing relevant information and advice) if called upon by the authority to do so.
(10)Subsection (9) does not oblige any person to assist a local authority where doing so would be unreasonable in all the circumstances of the case.
(11)The persons are–
(a)any local authority;
(b)any local education authority;
(c)any local housing authority;
(d)any [F5[F6Local Health Board] , Special Health Authority][F7, Primary Care Trust][F8, National Health Service trust or NHS foundation trust]; and
(e)any person authorised by the Secretary of State for the purposes of this section.
(12)Where a local authority are making enquiries under this section with respect to a child who appears to them to be ordinarily resident within the area of another authority, they shall consult that other authority, who may undertake the necessary enquiries in their place.
(2)Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child’s welfare.
(3)The enquiries shall, in particular, be directed towards establishing–
(a)whether the authority should make any application to the court, or exercise any of their other powers under this Act [F3or section 11 of the Crime and Disorder Act 1998 (child safety orders)], with respect to the child;
(b)whether, in the case of a child–
(i)with respect to whom an emergency protection order has been made; and
(ii)who is not in accommodation provided by or on behalf of the authority,it would be in the child’s best interests (while an emergency protection order remains in force) for him to be in such accommodation; and
(c)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 authority to ask for an application to be made under section 46(7).
(4)Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable–
(a)to obtain access to him; or
(b)to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose, unless they are satisfied that they already have sufficient information with respect to him.
(5)Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child’s education which should be investigated, they shall consult the relevant local education authority.
[F4(5A)For the purposes of making a determination under this section as to the action to be taken with respect to a child, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare--
(a)ascertain the child’s wishes and feelings regarding the action to be taken with respect to him; and
(b)give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.]
(6)Where, in the course of enquiries made under this section–
(a)any officer of the local authority concerned; or
(b)any person authorised by the authority to act on their behalf in connection with those enquiries–
(i)is refused access to the child concerned; or
(ii)is denied information as to his whereabouts, the authority shall apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so.
(7)If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall–
(a)consider whether it would be appropriate to review the case at a later date; and
(b)if they decide that it would be, determine the date on which that review is to begin.
(8)Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).
(9)Where a local authority are conducting enquiries under this section, it shall be the duty of any person mentioned in subsection (11) to assist them with those enquiries (in particular by providing relevant information and advice) if called upon by the authority to do so.
(10)Subsection (9) does not oblige any person to assist a local authority where doing so would be unreasonable in all the circumstances of the case.
(11)The persons are–
(a)any local authority;
(b)any local education authority;
(c)any local housing authority;
(d)any [F5[F6Local Health Board] , Special Health Authority][F7, Primary Care Trust][F8, National Health Service trust or NHS foundation trust]; and
(e)any person authorised by the Secretary of State for the purposes of this section.
(12)Where a local authority are making enquiries under this section with respect to a child who appears to them to be ordinarily resident within the area of another authority, they shall consult that other authority, who may undertake the necessary enquiries in their place.
44 Orders for emergency protection of children.
(1)Where any person (“the applicant”) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that–
(a)there is reasonable cause to believe that the child is likely to suffer significant harm if–
(i)he is not removed to accommodation provided by or on behalf of the applicant; or
(ii)he does not remain in the place in which he is then being accommodated;
(b)in the case of an application made by a local authority–
(i)enquiries are being made with respect to the child under section 47(1)(b); and
(ii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency; or
(c)in the case of an application made by an authorised person–
(i)the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;
(ii)the applicant is making enquiries with respect to the child’s welfare; and
(iii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and the applicant has reasonable cause to believe that access to the child is required as a matter of urgency.
(2)In this section–
(a)“authorised person” means a person who is an authorised person for the purposes of section 31; and
(b)“a person authorised to seek access” means–
(i)in the case of an application by a local authority, an officer of the local authority or a person authorised by the authority to act on their behalf in connection with the enquiries; or
(ii)in the case of an application by an authorised person, that person.
(3)Any person–
(a)seeking access to a child in connection with enquiries of a kind mentioned in subsection (1); and
(b)purporting to be a person authorised to do so,shall, on being asked to do so, produce some duly authenticated document as evidence that he is such a person.
(4)While an order under this section (“an emergency protection order”) is in force it–
(a)operates as a direction to any person who is in a position to do so to comply with any request to produce the child to the applicant;
(b)authorises–
(i)the removal of the child at any time to accommodation provided by or on behalf of the applicant and his being kept there; or
(ii)the prevention of the child’s removal from any hospital, or other place, in which he was being accommodated immediately before the making of the order; and
(c)gives the applicant parental responsibility for the child.
(5)Where an emergency protection order is in force with respect to a child, the applicant–
(a)shall only exercise the power given by virtue of subsection (4)(b) in order to safeguard the welfare of the child;
(b)shall take, and shall only take, such action in meeting his parental responsibility for the child as is reasonably required to safeguard or promote the welfare of the child (having regard in particular to the duration of the order); and
(c)shall comply with the requirements of any regulations made by the Secretary of State for the purposes of this subsection.
(6)Where the court makes an emergency protection order, it may give such directions (if any) as it considers appropriate with respect to–
(a)the contact which is, or is not, to be allowed between the child and any named person;
(b)the medical or psychiatric examination or other assessment of the child.
(7)Where any direction is given under subsection (6)(b), the child may, if he is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment.
(8)A direction under subsection (6)(a) may impose conditions and one under subsection (6)(b) may be to the effect that there is to be–
(a)no such examination or assessment; or
(b)no such examination or assessment unless the court directs otherwise.
(9)A direction under subsection (6) may be–
(a)given when the emergency protection order is made or at any time while it is in force; and
(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(10)Where an emergency protection order is in force with respect to a child and–
(a)the applicant has exercised the power given by subsection (4)(b)(i) but it appears to him that it is safe for the child to be returned; or
(b)the applicant has exercised the power given by subsection (4)(b)(ii) but it appears to him that it is safe for the child to be allowed to be removed from the place in question,he shall return the child or (as the case may be) allow him to be removed.
(11)Where he is required by subsection (10) to return the child the applicant shall–
(a)return him to the care of the person from whose care he was removed; or
(b)if that is not reasonably practicable, return him to the care of–
(i)a parent of his;
(ii)any person who is not a parent of his but who has parental responsibility for him; or
(iii)such other person as the applicant (with the agreement of the court) considers appropriate.
(12)Where the applicant has been required by subsection (10) to return the child, or to allow him to be removed, he may again exercise his powers with respect to the child (at any time while the emergency protection order remains in force) if it appears to him that a change in the circumstances of the case makes it necessary for him to do so.
(13)Where an emergency protection order has been made with respect to a child, the applicant shall, subject to any direction given under subsection (6), allow the child reasonable contact with–
(a)his parents;
(b)any person who is not a parent of his but who has parental responsibility for him;
(c)any person with whom he was living immediately before the making of the order;
(d)any person in whose favour a contact order is in force with respect to him;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)any person acting on behalf of any of those persons.
(14)Wherever it is reasonably practicable to do so, an emergency protection order shall name the child; and where it does not name him it shall describe him as clearly as possible.
(15) A person shall be guilty of an offence if he intentionally obstructs any person exercising the power under subsection (4)(b) to remove, or prevent the removal of, a child.
(16)A person guilty of an offence under subsection (15) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(a)there is reasonable cause to believe that the child is likely to suffer significant harm if–
(i)he is not removed to accommodation provided by or on behalf of the applicant; or
(ii)he does not remain in the place in which he is then being accommodated;
(b)in the case of an application made by a local authority–
(i)enquiries are being made with respect to the child under section 47(1)(b); and
(ii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency; or
(c)in the case of an application made by an authorised person–
(i)the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;
(ii)the applicant is making enquiries with respect to the child’s welfare; and
(iii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and the applicant has reasonable cause to believe that access to the child is required as a matter of urgency.
(2)In this section–
(a)“authorised person” means a person who is an authorised person for the purposes of section 31; and
(b)“a person authorised to seek access” means–
(i)in the case of an application by a local authority, an officer of the local authority or a person authorised by the authority to act on their behalf in connection with the enquiries; or
(ii)in the case of an application by an authorised person, that person.
(3)Any person–
(a)seeking access to a child in connection with enquiries of a kind mentioned in subsection (1); and
(b)purporting to be a person authorised to do so,shall, on being asked to do so, produce some duly authenticated document as evidence that he is such a person.
(4)While an order under this section (“an emergency protection order”) is in force it–
(a)operates as a direction to any person who is in a position to do so to comply with any request to produce the child to the applicant;
(b)authorises–
(i)the removal of the child at any time to accommodation provided by or on behalf of the applicant and his being kept there; or
(ii)the prevention of the child’s removal from any hospital, or other place, in which he was being accommodated immediately before the making of the order; and
(c)gives the applicant parental responsibility for the child.
(5)Where an emergency protection order is in force with respect to a child, the applicant–
(a)shall only exercise the power given by virtue of subsection (4)(b) in order to safeguard the welfare of the child;
(b)shall take, and shall only take, such action in meeting his parental responsibility for the child as is reasonably required to safeguard or promote the welfare of the child (having regard in particular to the duration of the order); and
(c)shall comply with the requirements of any regulations made by the Secretary of State for the purposes of this subsection.
(6)Where the court makes an emergency protection order, it may give such directions (if any) as it considers appropriate with respect to–
(a)the contact which is, or is not, to be allowed between the child and any named person;
(b)the medical or psychiatric examination or other assessment of the child.
(7)Where any direction is given under subsection (6)(b), the child may, if he is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment.
(8)A direction under subsection (6)(a) may impose conditions and one under subsection (6)(b) may be to the effect that there is to be–
(a)no such examination or assessment; or
(b)no such examination or assessment unless the court directs otherwise.
(9)A direction under subsection (6) may be–
(a)given when the emergency protection order is made or at any time while it is in force; and
(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(10)Where an emergency protection order is in force with respect to a child and–
(a)the applicant has exercised the power given by subsection (4)(b)(i) but it appears to him that it is safe for the child to be returned; or
(b)the applicant has exercised the power given by subsection (4)(b)(ii) but it appears to him that it is safe for the child to be allowed to be removed from the place in question,he shall return the child or (as the case may be) allow him to be removed.
(11)Where he is required by subsection (10) to return the child the applicant shall–
(a)return him to the care of the person from whose care he was removed; or
(b)if that is not reasonably practicable, return him to the care of–
(i)a parent of his;
(ii)any person who is not a parent of his but who has parental responsibility for him; or
(iii)such other person as the applicant (with the agreement of the court) considers appropriate.
(12)Where the applicant has been required by subsection (10) to return the child, or to allow him to be removed, he may again exercise his powers with respect to the child (at any time while the emergency protection order remains in force) if it appears to him that a change in the circumstances of the case makes it necessary for him to do so.
(13)Where an emergency protection order has been made with respect to a child, the applicant shall, subject to any direction given under subsection (6), allow the child reasonable contact with–
(a)his parents;
(b)any person who is not a parent of his but who has parental responsibility for him;
(c)any person with whom he was living immediately before the making of the order;
(d)any person in whose favour a contact order is in force with respect to him;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)any person acting on behalf of any of those persons.
(14)Wherever it is reasonably practicable to do so, an emergency protection order shall name the child; and where it does not name him it shall describe him as clearly as possible.
(15) A person shall be guilty of an offence if he intentionally obstructs any person exercising the power under subsection (4)(b) to remove, or prevent the removal of, a child.
(16)A person guilty of an offence under subsection (15) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Undertakings relating to emergency protection orders.
(1)In any case where the court has power to include an exclusion requirement in an emergency protection order, the court may accept an undertaking from the relevant person.
(2)No power of arrest may be attached to any undertaking given under subsection (1).
(3)An undertaking given to a court under subsection (1)–
(a)shall be enforceable as if it were an order of the court, and
(b)shall cease to have effect if, while it is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours.
(4)This section has effect without prejudice to the powers of the High Court and county court apart from this section.
(5)In this section “exclusion requirement” and “relevant person” have the same meaning as in section 44A.
(2)No power of arrest may be attached to any undertaking given under subsection (1).
(3)An undertaking given to a court under subsection (1)–
(a)shall be enforceable as if it were an order of the court, and
(b)shall cease to have effect if, while it is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours.
(4)This section has effect without prejudice to the powers of the High Court and county court apart from this section.
(5)In this section “exclusion requirement” and “relevant person” have the same meaning as in section 44A.
43 Child assessment orders.
(1)On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it 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 state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and
(c)it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.
(2)In this Act “a child assessment order” means an order under this section.
(3)A court may treat an application under this section as an application for an emergency protection order.
(4)No court shall make a child assessment order if it is satisfied–
(a)that there are grounds for making an emergency protection order with respect to the child; and
(b)that it ought to make such an order rather than a child assessment order.
(5)A child assessment order shall–
(a)specify the date by which the assessment is to begin; and
(b)have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order.
(6)Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child–
(a)to produce him to such person as may be named in the order; and
(b)to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.
(7)A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.
(8)Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment.
(9)The child may only be kept away from home–
(a)in accordance with directions specified in the order;
(b)if it is necessary for the purposes of the assessment; and
(c)for such period or periods as may be specified in the order.
(10)Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.
(11)Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to–
(a)the child’s parents;
(b)any person who is not a parent of his but who has parental responsibility for him;
(c)any other person caring for the child;
(d)any person in whose favour a contact order is in force with respect to the child;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)the child,before the hearing of the application.
(12)Rules of court may make provision as to the circumstances in which–
(a)any of the persons mentioned in subsection (11); or
(b)such other person as may be specified in the rules,may apply to the court for a child assessment order to be varied or discharged.
(13)In this section “authorised person” means a person who is an authorised person for the purposes of section 31.
(1)On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it 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 state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and
(c)it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.
(2)In this Act “a child assessment order” means an order under this section.
(3)A court may treat an application under this section as an application for an emergency protection order.
(4)No court shall make a child assessment order if it is satisfied–
(a)that there are grounds for making an emergency protection order with respect to the child; and
(b)that it ought to make such an order rather than a child assessment order.
(5)A child assessment order shall–
(a)specify the date by which the assessment is to begin; and
(b)have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order.
(6)Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child–
(a)to produce him to such person as may be named in the order; and
(b)to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.
(7)A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.
(8)Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment.
(9)The child may only be kept away from home–
(a)in accordance with directions specified in the order;
(b)if it is necessary for the purposes of the assessment; and
(c)for such period or periods as may be specified in the order.
(10)Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.
(11)Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to–
(a)the child’s parents;
(b)any person who is not a parent of his but who has parental responsibility for him;
(c)any other person caring for the child;
(d)any person in whose favour a contact order is in force with respect to the child;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)the child,before the hearing of the application.
(12)Rules of court may make provision as to the circumstances in which–
(a)any of the persons mentioned in subsection (11); or
(b)such other person as may be specified in the rules,may apply to the court for a child assessment order to be varied or discharged.
(13)In this section “authorised person” means a person who is an authorised person for the purposes of section 31.
The Children Act 1989: Statutory Welfare Checklist
Under Section 1(3) of the Children Act 1989 the court must have regard in particular to :-
1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
2. his physical, emotional and educational needs
3. the likely effect of any change in his circumstances
4. his age, sex, background and any characteristics of his which the court considers relevant
5. any harm which he has suffered or is at risk of suffering
6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
7. the range of powers available to the court under this Act in the proceedings in question.
3 POLICE INTERVENTION
Police Protection Order – S. 46 Children Act 1989
ƒWhere a constable has reasonable cause to believe a child would suffer significant harm, he can
seek a Police Protection Order and remove that child from the home;
ƒ A Police Protection Order will last for no more than 72 hours and the officer must notify the Local
Authority of the Police Protection Order being made, and the child’s parents or guardian;
ƒ A Police Protection Order does not involve an application to the court and is at the discretion of the
officer attending the incident.
Supervision Order – S. 31 + S. 35 Children Act 1989
ƒAn order which does not give the Local Authority parental responsibility but a duty to ‘advise, assist
and befriend the supervised child’;
ƒ Supervision orders last for a year but can be extended before their expiry. If no such application is
made then they expire at the end of the original period;
ƒA supervision order cannot be made unless the threshold criteria are met (see below)
Interim supervision or care orders – S.38 Children Act 1989
ƒ Interim orders can be made at the first hearing if the LA believes this is necessary to protect the
child whilst the proceedings are ongoing.
ƒThe test for making an interim order is lower than a full order, the court only needs reasonably
grounds for believing that the child is at risk of suffering significant harm, which is often not very
difficult to prove bearing in mind the circumstances under which these proceedings often come to
court. The Court is not going to risk a child coming to harm even if it has no evidence that it
actually has, so an application for an Interim Care Order is notoriously difficult to oppose. Often the
best you can do is try to negotiate good terms for contact, or that the child stays with a family
member, or stays at home with a tight written agreement for daily visits or regular drug testing. The
court has no discretion to give you these terms, the Court will either make the ICO or not, so
negotiation is usually done outside of court.
Standard of Proof in Care Order Applications under the Children Act 1989
CASES OF INTERESTS
In re H and Others (Minors) [1995] 2 WLR 8, HL is the culmination of a series of appeals by the Nottingham County Council against the judgment of His Honour Judge Davidson on 23rd November 1994. The application for care orders under Children Act 1989, s 31, in respect of 3 children was refused. A subsequent appeal to the Court of Appeal was dismissed on 14th December 1994. The Local Authority appealed to the House of Lords, the matter being heard on 17 & 18th July 1995, with judgement reserved, and opinions being delivered on 14th December 1995.
Contents
Facts
Decision
Comment
Conclusion
Bibliography
Facts
The mother had four children, all girls, of whom two were born during the mother’s marriage to Mr H, and the younger two born during the mother’s relationship with Mr R, a relationship that was still continuing. The eldest daughter, C, made allegations in September 1993 to the effect that she had been sexually abused by Mr R on a regular basis since she was about 7 or 8 years of age – a period of about 5 years. C was accommodated by the Local Authority, and charges were brought against Mr R for rape. In early 1994, the Local Authority applied for, and was granted, interim care orders on the three other daughters. These orders were later followed by interim supervision orders. Mr R was tried on four charges of rape in October 1994, with C being the principal witness. Mr R was acquitted by the jury on all counts after a short retirement. The applications for full care orders were pursued by the Local Authority, relying on the alleged sexual abuse of C. The Local Authority case being that, albeit the criminal case had been unsuccessful, it was still open to the judge to find the younger girls were “likely to suffer significant harm”, and hence satisfy the threshold criteria of the Children Act 1989, s 31 (2), as the standard of proof in the civil case was lower than that in the criminal proceedings. His Honour Judge Davidson held that whilst he remained “more than a little suspicious” that C had been abused by Mr R, he “could not be sure to the requisite high standard of proof that C’s allegations were true” and consequently could not find the threshold criteria satisfied, and declined to make the orders. The Court of Appeal (Sir Stephen Brown, Kennedy (dissenting) and Millett LJJ) upheld the approach of the judge at first instance and dismissed the Local Authority’s appeal.
The Local Authority appealed with leave of the House of Lords.
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Decision
The House of Lords dismissed the appeal (Lord Browne-Wilkinson and Lord Lloyd of Berwick dissenting).
One of the main issues to be considered was the standard of proof required to satisfy the threshold criteria in s 31 (2)(a), and the nature of the evidence required to establish whether a child “is likely to suffer significant harm”. Their Lordships were of the view that the standard of proof, even in a case involving sexual abuse, was that of the civil law in general – the balance of probabilities. They consequently overruled the cases of In re G (A Minor)(Child Abuse: Standard of Proof) [1987] 1 WLR 1461 and In re W (Minors)(Sexual Abuse: Standard of Proof) [1994] 1 FLR 419, both Court of Appeal decisions. With regard to the meaning to be given to the word “likely”, it should be interpreted as being “a real possibility”.
The only evidence to support the case were the allegations made by C, and the judge had rejected this evidence. Without anything more, the court could not go on to conclude that there was a real possibility that the other children would suffer significant harm in the future. In any case the court must found its conclusions on facts. Facts which are alleged, but un-proven would not carry any, or sufficient weight to justify the court being satisfied that the threshold criteria were met, and hence the Local Authority case must fail.
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Comment
Initially it should be noted that the language of s 31 is present or future – a child is suffering, or is likely to suffer. As highlighted by Masson and Morris (1992, p 97) “the fact that there has been harm in the past will not be sufficient unless it is likely that it will be repeated”, or in other words, past harm, on its own, should never be sufficient to found an application for a care order, unless additional evidence can be adduced to support the view that it will occur again. Even if the trial judge had been satisfied the eldest daughter C had been sexually abused by Mr R (which he wasn’t), the Local Authority should not have been able to succeed unless they could have shown by means of other evidence, that Mr R was likely to abuse again. As Lord Nicholls points out (at p 29) “this is not a case where Mr R has a history of abuse”. If local authorities are making applications without the presence of such supporting evidence, then it is clearly within a courts remit to refuse the application, and arguably if the court does make an order in this situation, they are not applying the Children Act 1989 correctly.
Comments have been made that, following this decision, local authorities will only be able to succeed in care order applications if they have evidence of actual/past abuse. Representatives for local authorities should not despair, and neither should representatives for the parents shout out with glee. This is simply not the case and Lord Nicholls makes this quite clear. If a local authority fails to establish sexual, or other abuse, using the standards put forward in the instant case, it is still possible to obtain the orders if the authority can provide other evidence indicating future harm. Lord Nicholls goes to some length to explain that there are a range of facts that may be relevant to the court’s decision. The court must always be guided by proven, as opposed to unproven facts, but even if a fact is unproven that does not mean the order cannot be made if the evidence “does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to the court…to find that, although satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in future” (per Lord Nicholls at pp 28-29). In this case, no other facts were put before the court (unlike a similar case reported as Re G and R (Child Sexual Abuse: Standard of Proof) [1995] 2 FLR 867), and hence this option was not available. It is no surprise that the care orders were not made. The Local Authority appears to have proceeded on very little evidence at all, something that all local authority solicitors should be careful to avoid and the result that was given was nothing more than should have been expected.
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Conclusion
From the above, it is apparent that the case is nothing out of the ordinary. Yes, it does perhaps clarify, or make consistent some of the terminology for the courts. It does not change the nature of the evidence required to obtain a care order, nor does it change the burden of proof. It does make abundantly clear that orders cannot be made where there is no evidence but this can only be the right approach. The decision may not be a victory for any campaign groups, but it is certainly a victory for common-sense. One very disheartening aspect of the matter remains – the fact that the case took one year to be decided after the Court of Appeal decision. It can only be speculated why the House of Lords took nearly 6 months to reach its decision. Is this consistent with the Children Act 1989 s 1 (3) welfare principle which highlights the fact that delay is prejudicial to the welfare of the child? It is submitted that it is not, and the House should address this issue in any future matters it is called upon to decide.
W (A Child) [2007] EWCA Civ 102
This case concerned the making of a care order in favour of a local authority in respect of a baby who had allegedly been physically and sexually abused by her father. A medical examination by two paediatricians provided unequivocal evidence that W had been grossly anally abused. The local authority instituted care proceedings. A primary plank of the local authority’s case was that W had suffered serious sexual abuse in the form of anal penetration by her father either with his penis or a similarly shaped object. The local authority initially pursued a twin track approach keeping open the prospect of rehabilitating W with her mother. However following the receipt of a report from a psychologist, JS, which was adverse to PL, the local authority’s care plan changed to that of adoption outside the family. The report concluded that PL did not have the capacity to properly parent her daughter. W’s parents were not married but her father had parental responsibility. He was a Schedule 1 offender who had been convicted of rape and indecent assault on young female children and had served eight years imprisonment. PL consented to the care order being made and did not oppose the order freeing W for adoption. W’s father was subject to a criminal prosecution in relation to sexual abuse on W, but following expert reports by two paediatricians instructed by the Crown Prosecution Service, who could find no clear evidence of abuse, the case was discontinued.
PL succeeded with an appeal against the care order, which was set aside and a re-hearing ordered, during which W was made subject of an interim care order in favour of the local authority. The local authority was required to submit a revised document to the court in order to satisfy that the threshold criteria under s31 Children Act 1989 were established. It submitted that W had been sexually abused by her father and as a result W had become withdrawn, depressed and engaged in sexualised play. W had also been physically abused by being smacked by her father and it submitted that her mother had failed to protect her. The local authority cited a number of risks such as sexual, physical and emotional harm to which W would be exposed if she were to remain with her parents. It also submitted that PL was incapable of protecting W from harm in the future or meeting her needs and was vulnerable to abuse herself. The judge was not satisfied that the allegation of sexual abuse against W was proven (although he remained suspicious) but held that the remainder of the Local Authority’s concerns did establish that the threshold criteria has been met and went on to make a final care order in relation to W and to free her for adoption.
PL appealed against the findings of the second hearing to the Court of Appeal on four grounds, namely that the judge;
(1) found that threshold were criteria satisfied on an illogical basis
(2) had wrongly accepted parts of the evidence submitted by JS which was adverse to PL.
(3) failed to consider why W’s behaviour was never observed by her mother with whom she had frequent contact.
(4) failed to give adequate weight to the improvements made by PL since the commencement of the care proceedings.
The Court of Appeal noted that in relation to the first ground of appeal, the judge was placed in a very difficult position by the expert evidence placed before him. He had correctly found that on the balance of probabilities, W had not been sexually abused in the way maintained by the original paediatricians. It was illogical to then find that PL had failed to protect W from harm which had been held not to have occurred. It was not therefore open to the judge on the facts of the case to hold that the threshold criteria were satisfied on the basis that PL had failed to protect W from sexual abuse or the risk of it from her father. The issue of physical abuse raised different issues. The striking of a baby of eight months was unacceptable parental behaviour but a single blow as in this case, would not be enough to satisfy the first limb of s31 Children Act 1989. Even if this conclusion was wrong the Court held that as W’s father was no longer in contact with W or her mother, the judge could not properly have made a care order. The judge’s findings did not warrant a conclusion that the threshold criteria were satisfied or alternatively, if W did suffer significant harm that such a finding could properly result in a care order.
In relation to grounds two to four, the overriding question went to PL’s capacity to parent W. Could the judge properly be satisfied that W was likely to suffer significant harm if returned to her mother’s care? PL claimed that the report provided by JS was not a balanced report and that she had failed to approach the case on any basis other than W had been sexually abused. She had not considered the positive aspects of PL’s parenting and her recent progress. Although the trial judge was critical of JS’s evidence he still felt able to accept her evidence but gave no reasons for doing so. The Court of Appeal found it regrettable that JS had refused to comment on the observations of Miss R, a family centre worker who had carried out a parenting capacity assessment of PL and found her to be positive about her capabilities and observed a strong emotional bond between mother and baby. In fact her refusal to assist the court in this respect was sufficient derogation from the duty owed by an expert witness to the court to cast doubt on the objectivity and soundness of JS’s evidence. Her evidence had carried considerable weight with other witnesses including the local authority and Guardian and in light of this, it was impossible to see the Guardian’s report as a wholly independent assessment. The Court of Appeal concluded that the trial judge had accepted JS’s evidence without exposing it to sufficiently critical analysis. It further criticised the judge for commenting on the positive aspects of PLs progress only after he had reached his decision as to whether the threshold criteria had been satisfied. The local authority’s case could not have been better put but it did not affect the Court’s view that the judge’s analysis of the revised threshold criteria was flawed and thus his conclusions could not stand.
Appeal allowed
Section 38: Interim Care Order (ICO) or Interim Supervision Order. To obtain a ICO the threshold criteria of Section 31
must be met:
- That the child is suffering or likely to suffer significant harm and
- That the harm or likelihood of harm is attributable to:
a) The care given to the child, or likely to be given to him if
the Order were not made, NOT BEING WHAT WOULD BE REASONABLE to expect a parent to give to him; or
b) The child being beyond parental control
S38 can be granted for up to two months (8 weeks) on initial application and then is renewable monthly.
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