Once the local authority has decided to intervene the next step would be to look at the mode of intervention. There are a number of short and long term options available to the local authority. The first and most immediate would be an Emergency Protection Order (EPO) which is governed by s.44 of the Children Act. The purpose of this order is to enable Daniel and Ellie to be provided with immediate short term protection in a genuine emergency and it also gives the local authority limited parental responsibility so they can adequately investigate the situation and have the power to take appropriate action. It must be pointed out to Ruth however that although the local authority gains parental responsibility she doesn’t lose her parental responsibility and so still has a say in the children’s welfare. Before the local authority applies for an emergency protection order they need to fulfil the grounds required to gain this order. S.44 sets out the grounds for application as being; the local authority is making enquiries about the child AND these enquiries are frustrated by refusal of access to the child AND access is required as a matter of urgency. It can be concluded that the situation we are presented with does satisfy this criteria. In this case the local authority is making enquiries about Ellie and Daniel. These enquiries are being frustrated by refusal of access to them as the facts state that Ruth often refuses to allow social services into the house and that she has even threatened the social worker. It could also be said that access is required as a matter of urgency as if you leave the children in this situation, in the next day or two, Ruth could abandon them again or leave them with complete strangers and so Ellie and Daniel could face significant harm. It could also be argued however that the children have never faced any physical harm and they have been in this situation for so long that a few more days wouldn’t make a difference and so it would be acceptable to wait for an Interim Care Order instead of granting an EPO. In this case however I believe an EPO would be granted due to the fact that the situation has gotten worse and there is no longer any cooperation between Ruth and social services. Ellie is also very young and so in greater need of protection. If the EPO is granted to the local authority then this gives them the power to remove Daniel and Ellie from Ruth’s care, without the Ruth attempting to prevent access to the social workers as it is a criminal offence to obstruct the person exercising the EPO. Once the children have been removed however, this doesn’t mean that Ruth has no contact with the children as s.44 (13) states that there can be reasonable contact allowed between the parents and the children during the duration of the EPO unless the court expressly states otherwise when making the EPO. Under s.45 (1) of the act eight days is the maximum length of an EPO but the local authority can apply for an extension to a maximum total length of fifteen days. This doesn’t mean that the children will be kept away for this long however as s.44 (10) states that the child should be returned to its home as soon as it appears to the local authority that it is safe to do so and this can be before the EPO comes to an end. Seventy two hours after the EPO has been granted, Ruth also has the right to apply for a discharge of the EPO. In this case this is unlikely to be successful however as Ruth needs to show she can provide a safe environment for the children and prevent them suffering significant harm and this will take time as she will need to undertake drug rehabilitation and show that she can maintain a drug free existence. During this time, an EPO would probably have come to an end and whilst waiting for a more permanent solution to be found, an interim care order would probable be issued.
The interim care order lasts for eight weeks and four weekly renewals are available to the local authority. The grounds for application for this are outlined in s.38 and state that the local authority must show that it has reasonable grounds to believe that the child is suffering or likely to suffer significant harm. Establishing these grounds in this case should be relatively unproblematic if an EPO has already been obtained. With an interim care order, again the local authority obtains parental responsibility and can place the child with foster parents during the period of the ICO. The court also has the option of granting an interim residence order in favour of a relative in this case this would be Daniel and Ellie’s grandmother Sandra who has shown an interest in taking care of the children. It is unlikely that this would happen however as Sandra herself admits that she finds it stressful caring for both children. During the duration of the EPO and ICO the children will also be appointed a guardian ad litem who acts in the interests of the children by making enquiries and representing the children’s position and instructing a solicitor for them. Again as with the EPO, during the ICO Ruth still retains her right to contact with Daniel and Ellie. The case of A and M v Walsall Metropolitan Borough Council states that “contact should not be terminated at an interim stage, rather it should be maintained save in circumstances of exceptional and severe risk.” So assuming that Ruth doesn’t do anything dangerous in the presence of the kids that would put them at risk such as taking drugs or becoming physically violent with them then she would be allowed to maintain contact with the children during the duration of the ICO. According to s.38 (10) during the ICO Ruth also has the right to argue the case in full however it is still unlikely that she would be successful in arguing her case as she still has her drug problem to address before the option of returning the kids into her care could even be considered.
The main objective of this whole process however, is to find a permanent solution to the problem and provide the kids with a secure and stable home. Once the local authority has completed its investigation, if there is evidence that Daniel and Ellie are at risk in the long term, then solution comes in the form of either a supervision order or a care order. When considering the long term options Daniel and Ellie would have to be considered separately as there is a sizeable age gap and so their individual needs would differ. The social worker Carrie has already stated that she believes it would be best to find a new permanent home for Ellie whereas some attempt should be made to return Daniel to Ruth’s care. There is also the option of placing Ellie with her grandmother Sandra and providing some local authority help such as regular social worker visits and some form of relief perhaps taking Ellie from her twice a week to help as Sandra has stated that she finds it difficult taking care of Ellie alone. Its unlikely that the local authority would choose this option however as it could prove to be quite costly and time consuming especially in providing relief care so the local authority would probably select the option of placing Ellie into care. In order to satisfy the criteria for placing Ellie into care, the threshold criteria from s. 31 (2) will have to be present. It can be assumed that this has been already satisfied however, as the case of Re M (1994) states that the time when judgement about significant harm being suffered has to be made is when the local authority commences proceedings for the protection of the child. So at this stage it is likely that the local authority has satisfied the threshold criteria and so care proceedings for Ellie can begin. When considering whether to grant a care order the court will also keep in mind the s.1 principles which are that the welfare of the child is paramount, where possible there should be no delay in making a final decision and that making an order would be better than making no order at all. Once the care order has been granted the effect will be that the local authority will keep Ellie in their care until she reaches the age of 18, the order is discharged or she is adopted. During this time in local authority care, Ellie will either be placed with foster parents or live in a children’s home. The effect of this for Ruth is that she would share parental responsibility of Ellie with the local authority (s.33) however this wont be an equal partnership as a senior partner can limit Ruth ‘s use of parental responsibility if necessary for Ellie’s welfare. However there are limits on the local authority’s use of parental responsibility also, as there are a number of situations in which they are not allowed to exercise their PR for example to change Ellie’s name or to refuse or agree to Ellie’s adoption, so Ruth still has some element of control over Ellie’s life even if she is placed into care. When Ellie has been placed in care Ruth is also still able to keep in contact with her as there is a presumption of contact as stated in s. 34. Not only is there a presumption of contact but it is also the duty of the local authority to promote contact between Ruth and Ellie and Schedule 2 paragraph 15 even includes a discretionary power to the local authority to pay Ruth’s travel costs. The question of Ruth being allowed to have contact with Ellie is also an issue for the courts to decide and not for the local authority so even though Ruth dislikes social services they aren’t the ones making the decision as to whether she maintains contact with her daughter and so that should present her with some peace of mind. Before the care order is made the local authority has to present to the court a care plan which must include its plans for contact (s.34 (11)). If the care plan excludes Ruth from having contact with Ellie then the local authority must justify this to the court. Also if the local authority wishes to end contact during the care order then they have to go back to the court to request this, so Ruth’s right to contact is protected all the time. Although it should be noted that if an emergency situation should arise such as if Ruth does anything to harm Ellie whilst she is in care then according to s.34 (6) the local authority can prohibit contact without a court order for up to seven days.
If the children’s grandmother, Sandra wishes to have contact with Ellie whilst she is in care, then again s.34 provides a presumption of contact. The Court of Appeal has held that it is the duty of the local authority to promote contact extended to any relative. However there is also the case of Re M (Care: Contact: Grandmother’s Application for Leave) in which the court said that grandparents d If the local authority decides not to o not have a right of contact with children in care and must show that contact would be in the interests of the child. So in this case, Sandra can apply to the court for a contact order under s.8. In considering her application the court will consider the factors listed in s. 10 (9) which are; the applicants’ connection with the child; any risk that there might be of the proposed application disrupting the child’s life to the extent that the child would be harmed by it; the local authorities’ plans for the child and the wishes and feelings of the child’s parents. In this case it is likely that Sandra would be able to gain contact with Ellie as she is her grandmother, she has cared for her before and there is no evidence to suggest that her contact would bring a disruption to Ellie’s life to the extent that she would be harmed by it.
During the duration of the care order, Ruth can apply to have it discharged at any time but would only be successful if she can show that she is able to provide a secure and stable environment for Ellie and there is no likelihood of Ellie suffering significant harm in the future caused by Ruth’s actions. This is not enough however, the court will also consider whether discharging the order would be in the best interests of the child and in doing so the s.1 checklist will be applied.
There is now the issue of Daniel to consider. The social worker Carrie has said that due to his age there should be some attempt to return him to Ruth’s care if she can address her drug habit. It is unlikely that placing Daniel into foster care would be successful long term as he does feel very protective of his mother and feels the need to look after her so it is likely that he would run away from his foster carers to go back to his mother. Once Ruth has shown that she is addressing her drug habit through rehabilitation, there are two options available to the local authority. They could apply for a care order which allows Daniel to live with his mother but the local authority would have parental responsibility of him which means they can remove him from the home at any time or alternatively they can apply for a supervision order. The supervision order is an intervention by the local authority but to a lesser degree than with a care order. The effect of the supervision order would be to give the local authority some control over Daniel, however he will remain living at home and be monitored by a designated officer of the local authority. The main difference between this option and a care order would be that the local authority does not gain parental responsibility and so cannot automatically remove Daniel from the home if a problem arises. When making the decision as to whether a care or supervision order would be most appropriate, there are a number of factors the court will take into consideration. In the case of Re C (1999)the reasons put forward by the local authority for making a supervision order as opposed to a care order were that; considerable improvements had been made by the parents since the start of the proceedings; a supervision order is the best way to maintain and develop a working relationship with the parents; the parents actively support the making of a supervisory order. So here it is quite clear that the decision as to which order is to be granted relies heavily on Ruth’s attitude towards the situation and her willingness to cooperate. It has been stated that Ruth hates social services so in theory there would have to be some change in her attitude towards social services for this to be effective. In this case if Ruth has undergone drug rehabilitation and has a more reasonable attitude toward social services then it is likely that a supervision order would be granted. The fact that it is also non physical abuse means that it would be less likely that the local authority would need parental responsibility so a supervision order would be more appropriate than a care order. Again once the local authority has satisfied the threshold criteria they can apply for a supervision order. The effect of this order would be that Daniel would be given a supervisor who would advise, assist and befriend him according to the duties set out in s.35 (1). The supervisor will also advise Ruth on Daniel’s upbringing such as encouraging him to attend school more and not truant. If Ruth stops cooperating with the supervision order then it is likely that Daniel would be placed under a care order and possibly removed from Ruth’s care.
In conclusion, there is quite an important balance to be struck between the rights of a child and also the rights of the parents involved. Article 20 of the UN Convention on the Rights of Children says that “states owe duties of special protection and assistance to children harmed by their families.” Balanced against this is the Human Rights Act 1998 which sees the removal of a child from his/ her family as an infringement of the parent’s and child’s right to respect for private and family life unless the removal is justified under art.8 (2) In practice this balance between the two can be struck however. In the case of L v Finland (2000) the grounds on which to strike this balance were established. Firstly it was stated that care measures should be regarded as temporary and designed to enable a child to be reunited with his/ her parents. Secondly it was also said that the rights of parents to contact their children whilst in care should be protected and any restrictions on this should be justified, necessary and proportionate (art. 8 (2)). So in this case I would advise the client, Ruth that the aim of the local authority is not to cause pain and suffering by taking Daniel and Ellie away from her but merely a method of protection for the children. Whilst this is taking place her rights as their parent isn’t taken away but it is limited. She still has the right to contact them and to request that the orders be discharged. So whilst the local authority has the powers to protect the children Ruth’s rights are still protected.
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BIBLIOGRAPHY
Books
Family Law
Jonathan Herring
Longman
2001
Principles of Family Law
S.M. Cretney and J.M. Masson
Sixth Edition
Sweet and Maxwell
1997
Cases and Materials on Family Law
Kate Standley
Blackstone
1997
Children, Their Families and the Law
Michael D.A. Freeman
Macmillan
1992
The Child Protection Handbook
Kate Wilson and Adrian James
Bailliere Tindall
Articles
None Used
Legislation
Children Law Act 1989
Human Rights Act 1998
Cases
A and M v Walsall Metropolitan Borough Council 1993 2 FLR 810
L v Finland (2000) 2 FLR 118
Re C (1999) 2 FLR 621
Re M (1994) (A Minor: Care Order: Threshold Conditions) 2 FLR 577
Re M (1995) (Care: Contact: Grandmother’s application for leave) 2 FLR 86
Re O (Care Proceedings: Education) (1992) 1 WLR 912
Other Written Sources
United Nations Convention on the Rights of The Child
Other Sources
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Re M (A Minor) (Care Order: Threshold Conditions) (1994)
CA 1989 Sch. 2 para. 15 (1) (c)
Re B Care or Supervision Order) (1996) 2 FLR 603