Child Protection Law Essay
"The Children Act 1989, s 17 and the general duty on local authorities to safeguard and promote the welfare of children within their area who are in need (including children with mental and physical disabilities) has been a powerful tool in the children's rights armoury. But it's limitations have been shown by cases like R v Bexley London Borough Council, Ex Parte B 3 CCLR March 2000
( decided on 31st July 1995)" Critically assess this observation.
In a society permeated by child abuse, child pornography, child prostitution and a disregard for the innocence of childhood, it is important to ensure that rights of every child remain a priority. Even acknowledging children as individuals and therefore with rights to life, dignity and respect is a relatively new phenomenon (1). It is clear that children have traditionally been seen as disposable assets whose ownership might be the subject of dispute, much like property, for example in the context of divorce. (2) It took until the Children Act 1989 to attempt to change perspectives towards a much more child centred approach. Despite this, evidence remains to suggest that solicitors, courts and parents continue to view children as something to be argued over rather than as individuals to be valued (3).
Furthermore, there are conflicting theories about whether or not children are holders of rights and, if they are, what rights they might legitimately require. The United Nations Convention on the Rights of the Child 1989 and the Children Act both grant the child participatory decision-making rights. However, according to Bowmont "to be meaningful, the rights of a child must be enforceable". (4) Although, Sweeting argues that the United Nations Convention on the Rights of the Child highlights the fact that children's participatory rights should be respected regardless of any legal definition of capacity (5).
The aim of the Children Act 1989 was to simplify the law relating to children, making it more consistent and flexible. In essence the objective was to make the law more appropriate by making it child centred. Hunt (2001) contended that the Act re-defined child care law by introducing new measures for working with children and families in both public and private family law. (6) In theory the Children Act embodied a fresh approach to working with children, underpinned by the principle that the child's welfare is paramount. Whether in fact that theory was applied in practice and subsequently became a tool in the children's rights armoury will be explored in more detail throughout this essay.
According to Smith the Children Act 1989 simplified all pre-existing legislation in relation to children and families. It imposed new duties on local authorities relating to the identification and assessment of 'children in need', and gave all Local Authorities new responsibilities for looked after children.(7) The introduction of the Act also provided the Court with Emergency Protection Orders to protect children at risk of harm which replaced the Place of Safety Orders.
Smith (2001) argues that the Children Act was particularly relevant because for the first time it placed more emphasis upon the importance of inter-agency collaborative working as a means of responding to the needs of both children and their families. (8)
The Children Act has duties, powers and responsibilities. A duty will require the local authority to comply with it, whereas a power means a local authority can act. A responsibility refers to outcomes and duties which can be qualified, and in some areas the Act includes phrases like 'shall take reasonable steps to'. A qualified duty is little more than a mere power.(9) According to Harris it is important to emphasise the nature of terms and definitions in relation to the extent of local authorities responsibilities. Harris goes onto argue that a failure to understand this may cause misunderstandings between professionals and agencies.(10) It is clear generally, legislation only provides the framework for practice and it cannot therefore change the practice of agencies because only the practitioners can actively work in accordance with the legislation. Whilst a working knowledge of the legislation and skills are important, underpinning values, attitudes and beliefs that inform practice are also of paramount importance. All professionals' working with children and their families are involved in complex issues and constantly evolving and contradictory constraints, in particular the requirement to protect children from harm. (11)
With regard to section 17(1)(a), this promotes the upbringing of children in need by their families through providing a range of services appropriate to those children's needs. Under the Act (s.17 (10) (a) (b) and (c)) a child is taken to be in need if it is felt he "is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; his health or development is likely to be significantly impaired or further impaired, without the provision for him of such services; or he is disabled " (12)
Within Section 17 emphasis is placed upon the general duty of every local authority to 'safeguard' and 'promote' the welfare of children within their area who are in need and promote the upbringing of such children by their families by providing a range and level of services appropriate to those children's needs.
In the case R v Bexley LBC ex p B (1995) 3 CCLR, a court gave an order aiding health professionals on the ways they were able to care for a severely disabled baby girl. An injunction was arranged baring anyone from releasing the identification of the child, her parents, and the hospital where she was being looked after (13). Too young to know anything about the publicity surrounding the issue, she had medical confidentiality. Her welfare was in the hands of her care providers. Unless the public interest or a private right enforceable by the courts requires an injunction, the courts cannot intervene. On the facts of this case such intervention can only be justified upon one or the other or a combination of two bases. These are firstly that the injunction is necessary for the welfare of the child or to safeguarding the child's rights and secondly that the injunction is necessary in the interests of the administration of justice. Those caring for the child were obliged to act in confidentiality to her. (14)
With regard to services for an individual child, there is no entitlement to any particular form of service. It is left to the discretion of local authorities about what to provide to whom, provided the services are appropriate to the children's requirements in their area (s 2 par 8). According to Bainham it is problematic to argue that children have legal rights to any particular service, and that enforcement of local authority duties is difficult. (15) As previously noted this is reflected in the case of R v Bexley LBC in that " an assessment of a disabled Childs needs pursuant to paragraph 3 schedule 2 to the Act does not appear to give rise to any specific duty pursuant to the Act itself. "(16)
There are different types of services which fall into two categories, firstly services to children in their own homes and secondly services that involve children being looked after elsewhere, such as in residential or foster care, for a short or a long period of time. A Child in need must be provided with accommodation under s.20 of the Children Act. When accommodating a child the local authority must discover and consider the child's wishes and feelings (s.20(6) and to those of the parents, others with parental responsibility and other relevant people (s.22(4) and (5)); give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background (s.22(5)(c).
Alongside this, there is also a duty for the local authority to verify that accommodation for a disabled child is not unsuitable for her or his particular needs (s.23(8) A study which focused upon the way that the local authorities are fulfilling their legal duties towards disabled children and examined the experiences of the disabled young people including those who have little or no ordinary speech, found that the children's views and feelings were often ignored and that lack of communication made it possible for bullying and abuse to go unreported. (17)
Despite the fact that the ...
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Alongside this, there is also a duty for the local authority to verify that accommodation for a disabled child is not unsuitable for her or his particular needs (s.23(8) A study which focused upon the way that the local authorities are fulfilling their legal duties towards disabled children and examined the experiences of the disabled young people including those who have little or no ordinary speech, found that the children's views and feelings were often ignored and that lack of communication made it possible for bullying and abuse to go unreported. (17)
Despite the fact that the 1989 Children Act states that disabled children who spend time away from their families must be consulted about their preferences, Morris found that many social workers assumed the requirement could not apply to children who had no speech. Morris also highlighted the fact that some children were sent away to residential schools at a very young age and that placements were sometimes made for social rather than educational reasons.(18)
For local authorities the strength of s.17 of the Act lies in the potentially wide scope. In addition, it should be noted that provision can be made under s.17 not just for the child in need but for the family or any member of the family. If local authorities used this scope then equipment and adaptations to the family home could resolve many of the problems which disabled children encounter when placed in inappropriate care homes. (19)
However, the weakness of the duty in s.17 can be identified from the fact that even if the local authority accepts that a particular child is in need, nevertheless it would appear from various judicial decisions that the duty to do anything about it is barely enforceable. This is in contrast to the duty under s.2 of the CSDPA 1970, which is clearly enforceable in some circumstances. (20)
In one case the local authority supported its decision not to provide practical assistance for a disabled child with reference to an assessment under s.17 of the Children Act 1989 and the rather weak duty contained therein. However, the court found that since the child was clearly disabled, that a decision was required under s.2 of the CSDPA 1970 where the stronger duty was located (R v Bexley LBC, ex p B).
Thus, for a disabled child, s.2 of the 1970 Act appears to be a more appropriate option than relying upon s 17 of the Children Act 1989. It is clear that section 17 of the 1989 Act could be a much more effective option if, for example, the equipment required was for a child not categorised as disabled (because the 1970 Act only covers disabled children) but was still found to be a child in need. The local authority can also make direct payments to disabled children aged 16 or 17 years, to the parents of disabled children or to the disabled parents of children if the child is deemed to need services under s.17 of the Children Act 1989.
A child has the right to challenge decisions in the courts through the process of judicial review. This is usually more about attempting to get a local authority or the NHS to change its mind rather than about seeking compensation.(21) In judicial review, the courts scrutinize the way in which decisions are made and focus upon the professional practice of the Social Worker or other practitioner involved. The Court will examine how the decisions have been made rather than focusing on the final outcome. For example during one case the local authority and the assessor failed to look at the bedroom upstairs in the property in question. This was despite the fact that the bedroom, which the mother had to share with the child for health and safety reasons, was the main focus of many of the difficulties encountered by the family. On this occasion the court found the assessment was legally flawed, because 'not all relevant factors had been taken into account' (22)
In the same case, the local authorities refusal to provide a sitting service to the mother, on the grounds that her child was not substantially disabled, was held to be irrational. This was because, the local authority's assessment clearly outlined that the child was substantially disabled. In this case the Court also criticised an absence of reasons given by the local authority and in considering the assessment documentation, the court found a repeated assertion that the family did not require alternative accommodation and that equipment and adaptations would suffice in their present accommodation. However, the court found no reasons to explain that assertion and criticised this absence (23)
Alongside this, giving consideration as to whether all relevant factors have been taken into account and that irrationality is not part of a decision, the courts also check to see that there discretion has not been fettered. A fettering of discretion occurs when a public body applies a policy or rule so rigidly that no exceptions can be made. (24)
The Human Rights Act 1998 integrated the European Convention on Human Rights into United Kingdom law in October 2000. Since that time, local authority and NHS decision making must be consistent not only with all the existing, relevant domestic legislation like the 1989 Act but also with human rights. Articles relevant to this include, for example, right to life (article 2), right not to be subjected to inhuman or degrading treatment (article 3) and right to respect for home, private and family life (article 8).
Under article 8, a public body can interfere with this right to respect if the interference is in accordance with the law (for example the Children Act 1989) is necessary in a democratic society and on the grounds of the protection of health or morals, protection of the rights and freedoms or others, or the economic well-being of the country.
An example of a case where these issues were identified involved the local authority failing to intervene during a four year period to prevent extreme abuse and neglect of four children by their mother. In this case the European Court of Human Rights held that failure by the local authority meant that the children had been subjected to inhuman and degrading treatment under article 3 of the Convention (Z v United Kingdom)
It is not just children with disabilities where limitations on children's rights can be identified. According to the Refugee Council despite the implementation of the 1989 Act and the duty under section 17, asylum-seeking children continued to be placed in unsuitable accommodation without support following their arrival into the UK. Many had fled "horrific" situations having witnessed torture or murder, according to a report commissioned by Save the Children.(25) When they arrive in the UK they face immense difficulties and inconsistencies in accessing service provision due to a "general lack of co-ordination" (26) Often children as young as 15 years of age have been housed in bed and breakfasts and expected to look after themselves as adults. This report examined how the immigration system and social services treated them, what if any legal representation was offered and the standard of accommodation provided.(27)
The study also highlighted the fact that many children are granted only temporary immigration status, which can heighten fears they will be returned. Fear of racial violence in the UK can add to the trauma they had already experienced, the report suggested. Lally states that despite the duty under s 17 of the 1989 Children Act.
"Separated refugee children are not getting the same level of care as any other child would receive under UK childcare legislation. But we should never forget that any child is a child first and foremost and a refugee second. We have a duty to these children under domestic and international law and they must be protected." (28)
This relates to the issues presented to Elias J in R(J) v Enfield LBC [2002] (29). The applicant was a non-asylum seeking immigrant who had overstayed illegally in the UK. She was HIV-positive and also the mother of young daughter, and about to lose her accommodation. Due to her immigration status, she was not entitled to claim housing benefit or to any assistance under the Housing Act 1996. She subsequently sought assistance from the authority under both s. 21 of the National Assistance Act 1948 and s. 17 of the Children Act 1989 in an attempt to secure accommodation.
The local authority decided that there was no case for s. 21 assistance and also decided that s. 17 of the Children Act 1989 could not be adopted to help the family to secure accommodation. This approach followed the decision by the Court of Appeal in R(A) v Lambeth LBC (2001) 4 CCLR 486 when it had been held that s. 17 did not extend to providing accommodation.
However, in the Enfield case the Court accepted the argument that, even if s. 17 of the Children Act 1989 did not permit the family to receive assistance with accommodation, s. 2 of the Local Government Act 2000 did provide that power. Importantly, the local authority in this case also took the view that it might have to take the child into care, and in doing so, this would be a prima facie breach of the child's and mother's rights to family life under article 8 of the European Convention on Human Rights. The Court went on to combine the power under s. 2 with the admitted prima facie breach of human rights to hold that there was a duty to exercise the s. 2 discretionary power, in order to avoid the breach of human rights.
In the subsequent Court of Appeal decision in R(W) v Lambeth LBC a different approach was taken this case also involved a homeless family not being entitled to homelessness assistance. Firstly, s. 17 was restored to its previous scope in terms of extending to the provision of accommodation or assistance with accommodation. This meant that it was no longer necessary to consider s. 2 because there was a more specific power available in the relevant field. Secondly, the Court did not accept that there was a breach of human rights the local authority was entitled to have regard to the overall financial consequences of assisting persons in the applicant's position, and article 8 did not create a right to a home.
The Court decided that the local authority had provided sufficient grounds not to accommodate and the Court would not interfere with its decision. According to Masson this decision was an important step in restoring the flexibility in the use of powers under s 17 that was removed by the finding in A v Lambeth Borough Council [2001] 3 FCR 673 that they could not be used to provide accommodation because that would be to evade the housing legislation. However, this does not oblige local authorities to accommodate all children in need because s 17 provides a power rather than a duty.
The type of services provided by the local authority could include providing assistance in kind or, in exceptional circumstances, in money (s.17(6). This can include contributing towards the cost of living accommodation for a family not eligible for housing authority assistance, although s.17 does not impose an absolute duty to house homeless children together with their families. The local authority may not refuse or make assistance conditional on parents pursuing a particular course of action.
Despite this, many children including those seeking asylum in the U.K are not having their basic rights met by local authorities.(29) Many children who are accommodated and those subject to care orders who are referred to as 'looked after' have their individual rights neglected. The local authority has parental responsibility for children on care orders but otherwise local authority duties are largely the same. It has an overriding duty to safeguard and promote the child's welfare, to listen to and take into account the child's wishes and feelings, and to provide accommodation and maintenance. There is a lack of attention to the health needs of many children who are 'looked after by the local authority'. Although regulations exist in relation to medical examinations and monitoring, research evidence demonstrates at best it achieves a superficial health check rather than a holistic service for children (30). Under s 17 all children have the right to their welfare and safety including issues relating to health and well being fully met by the local authority.
plans for the child to be placed in care upon admission to care or as soon as possible afterwards. The law sets out a number of matters that must be looked at including health, education, contact and return home. In making any decision about the child, the local authority must take into account the views of the child, parents and significant others concerned with the child. It must take into account considerations about the child's religion, race, language and culture. (31)
These Children Act 1989 provisions reflect a major decision of the European Court which states that 'the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life ... this is not terminated by reason of the fact that the child is taken into public care.' (33)
Any contact arrangements under the Children Act is considered as the right of the child and so potentially in conflict with the principles of Article 8, although the child is also entitled to respect for his or her family life as well as the parents. The courts will have to carry out a careful balancing exercise of respective rights before deciding whether state interference is justified. (34) In C v Bury Metropolitan Borough Council [2002] it was held that although the local authority had failed to involve the mother in the decision-making process in respect of her child and to keep her informed, the outcome had not had a detrimental effect on her case. The authority, in choosing the placement, with the proposal to find suitable part-time foster parents leading to the aspiration to place him in the future permanently in a foster family, had acted appropriately. There was no breach either of the rights of the child or of his mother under the European Convention on Human Rights in the plans put forward.
Since the amendment made to the Children Act 1989 by the Adoption and Children Act 2002 it is clear that accommodation is a service that can be provided under s.17 of the Children Act which now reads at s.17 Furthermore, it is clear from s.22 of CA'89 that being provided with accommodation under s.17 does not bring a child into the 'looked after' system. S.22 reads: 22(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.. in their care .. provided with accommodation by the authority ... apart from functions under sections 17, 23B and 24B." (35)
It was thought that the use of secure accommodation for children in welfare cases would breach the European Convention on Human Rights. The Court of Appeal has held that this is not so. It is lawful under Article 5 to detain young people for the purposes of educational supervision: ' in the context of a young person in local authority care, educational supervision must embrace many aspects of parental rights for the benefit and protection of the person concerned'.(36)
In September 2003 following Lord Laming's report on the death of Victoria Climbie which identified a number of mistakes which occurred across agencies and lead to the local authority failing to identify and protect Victoria Climbie's death. A report 'Every Child Matters' was published and focused on improving life chances of disadvantaged children. With regard to the Children Act 1989 this report identified limitations which although did not flow directly from the Act, related to practice which had been adopted as a result of the Act's wide application and discretionary duties of local authorities. Hunt argues that whilst local authorities adopted the framework introduced by the 1989 Children Act many lacked the necessary recourses and were working in isolation to other services. (37)
Until the the 'Every Child Matters' agenda many commentators would have agreed that the 1989 Children Act remains at the forefront of legislation in terms of creating rights for children in the UK. However, Hunt argues that whilst it remains of paramount importance in terms of a framework of legislation, academics are now more likely to advocate the need to embrace a fundamental shift in the role that the state plays in family life in terms of fulfilling the rights of children and their families in the U.K. (38)
In summary, the Children Act 1989 enshrines four key duties in relation to children's welfare and their families. It is clear from the discussion that there remains no room for complacency and that every child including those entering the UK to seek asylum are entitled to legally enforceable rights. However, it will take some time to bring these values in line with the principle that children's safety and well being should override other concerns, and much work needs to be done at ground level to persuade different sectors of society including professionals of their duties. (44)
The Green Paper Every Child Matters outlines the need for radical improvement in both the opportunities and outcomes for children, to be driven by system changes in the delivery of children's services. In particular, it calls for improved outcomes for children and young people in order to ensure that all children have the right to be healthy, safe, enjoy and achieve, make a positive contribution and achieve economic well-being.
The Children Act 2004, pushes forward the main proposals of the green paper which include electronic children's files; children's directors; and a children's commissioner. But it allows local authorities more flexibility in organising their children's services, with the amalgamation of education and social services no longer mandatory. The 2004 Act forms the legislative framework that establishes the direction for a programme of change in the delivery of services that support children, young people and their families. The programme of change driven by the 2004 Act is set to transform and establish a new status for children's services and in the long term hopefully improve services for children. .
From the discussion in this essay conflicting views have been discussed regarding whether in fact children are holders of rights and, if they are, what rights they might legitimately require. The 1989 Children Act clearly grants children participatory decision-making rights but it has been argued that rights are only meaningful if they are enforceable. It has also been suggested that the Children Act 1989 simplified the law relating to children and served to make it more consistent and flexible. Alongside this, the Children Act 1989 imposed new duties on local authorities and in doing so provided children in need with legal rights. Throughout this essay the limitations have also been highlighted by examining relevant case law relating to the rights of disabled children and also looked after children in the care of the local authority.
In 2005 the Convention on the Rights of the Child marked it's fifteenth year , the landmark treaty that guarantees children the right to be free from discrimination, to be protected in armed conflicts, to be protected from torture and cruel, inhuman, or degrading treatment or punishment, to be free from arbitrary deprivation of liberty, to receive age-appropriate treatment in the justice system, and to be free from economic exploitation and other abuses, among other rights. Achieving these rights remains a challenge.
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