Child Protection Law Essay

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"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).
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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 ...

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