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Family Law > Children-Protection 1 & 2 > Flashcards

Children-Protection 1 & 2 Flashcards

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1
Q

INTRO- what parts and act?

A

Part III, Part IV and Part V of the CA 1989

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2
Q

what is part 3 for?

A

is to safeguard, promote the welfare of children and those children are defined as children in need

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3
Q

what is part 4 for?*

A

is about parents and the local auth working in partnership, part 4 is about compulsory itnervertion by things called care or supervision orders

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4
Q

what is part 5 for?

A

is emergency protection so that’s how the act is divided up

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5
Q

overview of child protection?

A

Overview if parents aren’t looking after children properly then the state can step in- these are the ways the state can step in family to safeguard children

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6
Q

what happened btw 2008-2012?

A

Between 2008 and 2012 – 50% rise in care order applications

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7
Q

1 reason for rise?

A

more high profile cases of child abuse going undetected = baby p case,

  • social services are becoming more vigilant
  • lots of different ways of how abuse is viewed
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8
Q

What is abuse?

A
  • Abuse and neglect are forms of maltreatment of a child.
  • Somebody may abuse or neglect a child by inflicting harm, or by failing to act to prevent harm.
  • Children may be abused in a family or in an institutional or community setting; by those known to them or, more rarely, by a stranger. They may be abused by an adult or adults or another child or children.
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9
Q

time limit for orders?

A

26 week limit for care or supervision orders (Children and Families Act 2014)- court has to deal within this time frame

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10
Q

GENERAL DIFF- what about the evidence?

A

not easy to tell child harmed, also diff with evidence to look into future to say who is going to harm child- in def’s it looks at child is actually suffering harm or likely to suffer harm so its

  • How much harm should happen before court intervenes- interevention can be harmful- balancing act of when to and not int.
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11
Q

case for general diff?

A

Re S-B (Children) [2009]

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12
Q
  • If abuse is established, what is the correct response?
A

best response might not always be to remove child, cause u might remove child from home then place child in place where they feel very vunerable, so it might be better to exclude the abuser

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13
Q

POSS CONFL- Possible conflicts with ECHR?

A

Echr obvs has impact here, so you have a right to right private and family life

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14
Q

what are the possible conflicts?

A
  1. Paragraph 2 of Article 8 (right to private and family life) - says it okay to intervene
    - Any removal of child automatic infringement but justified if it protects the rights and freedoms of others-if remove protected by this art
  2. Abused children have a right to Article 8
  3. Article 3 – Prohibition of torture-has right to protect child from torture and inhumane and degrading treatment
  4. Article 2 – Right to life- protect children from death (risk of death) so you have got sort of balance

quite wooly rules

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15
Q

MAIN- Main Provisions?

A
  1. Provision of Services (s 17, s 20)
  2. Investigations (s 47, s 37, s 43)
  3. Compulsory Intervention
    (s 44, s 33, s 35)
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16
Q

PROVISIONS- what is the starting point?

A

A. Children ‘in need’ – s.17- every local auth has a duty to provide services or children in need
- read so not confined to children- low lev int if parents and local auth work togev for help, prevention better than cure- if fail to engage step up level of int

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17
Q

so what should you say in exam q?

A

that failure to engage at lower level means more intervention at higher level

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18
Q

what does s.7 Children and Young Persons Act 2008?

A

imposes general duty on the Secretary of State to promote the well-being of children

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19
Q

what is s. 7(10)?

A

Who is a child ‘in need’?- not the cause of the need but the level - so if it’s the lack of parental skills they’ll bring someone in to advise,
- if its cos child has disability they can provide help , because of lack of resources in need

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20
Q

what is s 17(11)?

A

Definitions of disabled, development and health-isabeled etc means physical and mental health

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21
Q

what do these sections give?

A

IT IS A WIDE DEF GIVES THE LA LOTS OF POWER

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22
Q

If a child is assessed as being ‘in need what do they offer?

A
  • advice, home help, travel facilities, counselling, accommodation and cash (s.17(6) and Schedule 2 Paragraph 8)- cant help unless satis s.17(3)- accom also important
  • s.17(3) – ‘provided with a view to promoting or safeguarding the child’s welfare’
  • no ‘right’ to services
    R (G) v Barnet London Borough Council; R (W) v Lambeth London Borough Council; R(A) v Lambeth London Borough Council [2003]-= duty not a right, so even if you are in need it doesn’t mean you can get these things cos u might not satisfy this, it’s a duty not right, and you cannot compel a la to act
  • Schedule 2 Paragraph 7 encourages the use of these measures to avoid care proceedings- is a duty once u think about taking ur child into care,the la has a duty to ask or consider whether s.17 order would be better so when youre taking a child into care yu have to consider whether s.17 order would achieve the same cos u must avoid care proceedings at all costs
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23
Q

what is the accommodation section?

A

s.20

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24
Q

what does accom cover?

A

this covers lost and abandoned children, where there is nobody with parental respons and 20 1 c is to do with children that have been excluded from family homes= naughty and parents don’t want to live with them anymore

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25
Q

what is s.20(3)?

A

Age range is important because its between children between 16 and 18

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26
Q

what is s.20(6) ?

A

Child’s needs and wishes taken into account,so if the child is competent you don’t need parental approval

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27
Q

another thing about?

A

this is a la decision not court decision= la power

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28
Q

what are the categories you need to taken into account when s.20?

A

i. is the applicant a child?
ii. Is the application a child ‘in need’?- does child have place to go dont have to be bad could be burnt down, but could be child just doesnt have noone.

iii. Is the child within the LA area?

iv. Does he or she appear to the LA to require accommodation?

v. Is the need the result of various factor set out in s 20(1)(a)-(c)?

vi. What are the child’s wishes and feelings?

vii. having regard to the child’s age and understanding, what due consideration is to be given to those wishes and feelings?

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29
Q

Lack of PR for LA ?

A

If you are a looked after child under s.20 it doesn’t give the la pr for you

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30
Q

case for lack of pr?

A

R(M) Hammersmith & Fulham LBC [2008]

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31
Q

how long does power last if child in s.20?

A

Once child is s.20 child the power lasts beyond there 18th birth so doesn’t finish when theyre 18

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32
Q

what does s.20 4 demonstrate?

A

s.20 (4) demonstrates that the power is quite wide ranging so even if soemoen with pr that can look after child ther eis a power to accomodarte child if felt in childs best interest

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33
Q

what is s.20 7?

A

-Cannot provide accommodation against the wishes of someone with PR

puts spanner in works bc s.20 needs consent of everyone with pr responsiblility so if someone with pr rejects NOT USE S.20, so you wont be surprised that there are other order sthat can be made

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34
Q

when can you get an emergency protection order?

A

e.g child in need - s 20 order - child live with father but feel need accom and father says no = step up protection and apply for ct order to take child away=EMERGENCY PROTETION ORDER

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35
Q

what does s.20 allow?

A

allows parents and LAs to work together

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36
Q

what does it mean open to abuse?

A

open to abuse bc in effect s.20 orders are voluntary and at any point say child goes into voluntary accom and everyone with pr agrees, at any point a person with pr can go an retriveve child, so it happens say when parents been out dirnkign drugs, not in right mind and what they do is want child back

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37
Q

what are the 4 options?

A
  • s.3(5) protection-the la can prevent unsuitable removal of a child by allowing someone without pr to lok after child
    • EPO-emergency protection orders
    • Foster parents can apply for CAO for residence
    • Police
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38
Q

what does s.2 8 say?

A

s.2(8) – anyone with PR can remove the child

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39
Q

what is Investigations under?

A

s.47-basically just power to investigate BUT CHILD HAS TO BE – subject to epo, police prtotection or reasonable cause to believe (obvs la need to investigate thats where they get their powers)

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40
Q

when should la make inquiries?

A

So you can se it says la should make inquires they see necessary –wideranding so it could be, medical, psychological,physical examinations

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41
Q

what are u talking about in reference to s,17/20?

A

when ur talking about s.17/20 ur talking about CHILD IN NEED HAVE TO PROVE CHILD IN NEED, under investigation the threshold is much lower so if child in polci porotection subject to epo, this more diff b but genrally threshold much lower in need, haven’t talked about what need for epo

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42
Q

so what is the la essentially doing?

A

SO WHAT LA IS DOING IS DECIDING WHETHER OR NOT IT NEEDS TO TAKE FURTHER ACTION

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43
Q

what in regards to la entering home?

A

(la allowed to be ivnited in but not allowed to enter)-home if you turn up and u want to ivnestgate child and wont let u in then u apply for epo, child arrangement order, superivison or care so if you turn up onsomeoen door step and want to investigate child, cause suspicions youd fall udner b which would be reason for investigation then ud apply for one of those 4

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44
Q

what does it also involve?

A

It also involves multi agency work so work for police , courtsystem so if spmeone been suspected for child abuse or gone thru courts of child abuse then social services might want to investigate, as in all child cases

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45
Q

what is s.27 5 (a)?

A

s.47 5a- wishes of child taken into account

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46
Q

what happens if worried about child?

A

workers, teachers, police and they meet to discuss child and formulate child protection plan formulate plan for child sets out what needs to be done and by whom

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47
Q

what is a note to make?

A

NOTE: INVESTIGATION IS JUST AN IVEST THERE IS NO OBLIGATION TO DO SOMETHING NO OBLIG TO CALL CONFERNCE OR PLAN

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48
Q

what is s.37 & 43 about?

A

is about courts power , so this is courts power to instruct the la ,

  • s.43 child assessment orders this is where access to child has been denied or tey cant find a child
49
Q

what happens if parents refuse to release child from some sort of asses>

A

e.g tommy 3 bruises and social services sa we need s47 investigation,parents say no not taking tommy hosp, obvs child needs protecting investigate so ud apply for child asses order

50
Q

what about the criteria?

A

a- its quite high threshold not in need , but read b c as written so this is where there is resitance, you might want to make anote that here meaning of significatnt harm same as s.31 , where it sounds on appl of la or authorised person autho person is nspcc, the nspcc ahs quite a lot of powers under children act

51
Q

what is a child asses order?

A

A child assessment order means that the person who care for child is compelled to take child to a certain place for asses e/g child assess order means that the mother or father must take child to doctor for an assessment

52
Q

how long to child assess orders last?-where the child is not thought to be at immediate risk?

A

They only last for 7 days and so bc not emergency protection is where child NOT THOUGHT TO BE AT IMEMDIATE RISK

53
Q

what if child at risk?

A

if the child is at risk then apply for EPO under s.43(4)

54
Q

when would you want child assess?

A

So you wouldn’t need child asses order when u have coop parents, so this is just when you want to investifate further but being prevented

55
Q

2-COMPULS INT- Compulsory Intervention?

A

state intervention is justified

56
Q

so what do you need to distinguish?

A
  • So you need to distinguish your child oders btw court orders
  • family have sort
  • ct orders where the family have not sort an order

-and what were really looking for here is HARM OR LIKELIHOOD OF HARM

57
Q

3 orders we consider under protective order titles?

A

i. Emergency Protection Order (s.44)
ii Supervision Order (s.35)
iii. Care Order (s.33)

58
Q

what is Emergency Protection Order (s.44)?

A

those are for emergency intervention and then as a last result the la or another body could apply for supervision order or carer order, so those are long term orders

59
Q

what about supervision orders and care orders ?

A

supervision orders and care orders are longer term orders , and known as the orders of last resort because you must exhaust everything else

60
Q

what is another one?

A
  • Police powers (s.46)
61
Q

what about police powers?

A

This doesn’t form big part of our module but police do have some powers where they can act in emergency situation so it enables them tot ake urgent action to protect children,

62
Q

when were police powers used?

A
  • Re M (A Minor) (Care Order: Threshold Conditions) [1994]
    Children witnesses violence against their mother

-father had killed mother infront of children and police took children away immediately

63
Q

where are these powers contained?

A

powers containted in 46 1

64
Q

what is import to underline in 46 1?

A

REASOMABLE CAUSE TO BELIEVE

65
Q

where do police not have powers?

A

there is no power to enter home attchaed to s.46 so they cant enter a building , can be invited but cant enter ,

66
Q

How long do the powers last?

A

power only lasts for 72 horus where allows u to apply for epo, so this can be used In emergency situations, if there is already an epo in place u cannot use s.46 unless cthere are compelling reasons to do so , //??

67
Q

Emergency Protection Order (s.44)?

A

immediate action- take swift action to keep child where they are or is removed

68
Q

notice and what is epo?

A

this can be moved without notice, they dont have to be but can be made without notice too

epo is either removing child or keeping child where they are now, if carer or parent is worried that child might be taken away,and know ct order coming up they might remove child( so sometimes best without notice

69
Q

what do you need to establish?

A

REASONABLE CAUSE and s.45 a 1, the order can only be made if it is to safeguard child, so you have to show reasonable cause to believe that child needs safeguarding

70
Q

what can you have epo to do?

A

You can have epo that makes some1 bring child, so if u know where child is an needs removed epo can be ordered

71
Q

who can apply for epo?

A

44 1 etc- essentially any person can apply , incl police, teachers, doctors, close rels - 44 1 c outside mod dont need to look

72
Q

what is length of epo?

A

Length of an EPO – 8 days (extension for 7 more days) – s 45(1), s 45(5) and (6)

73
Q

what about the lack of appeal process?

A

-there is no lack of appeal, although s.45 (8) allows u to discharge the epo immediatiely, so u cant appeal against it but u can bring it to an end earlier

74
Q

what must be shown in all?

A
  • reasonable casue to believe child likely to suffer sig harm,-there must be some definite harm, not just speculation and u must create a link btw the harm
  • despite low threshold courts are reluctant to grant epos bc it has quite dramtic effect on family and child ,
75
Q

where must there be a link?

A

link of what epo trying to achieve and what the child is suffering, so for e.g if child is at danger of its father and its faher lives in Scotland and child in Manchester obvs no link btw harm so child , but cause so far away cant link harm and the order, could be used if child at risk in houselhold and child needs to be removed- need to be removed

LINK BTW HARM AND REMOVAL

76
Q

what is s 44(1)(b) aimed at?

A

aimed at those undertaking s.47 inquires, and we dealt with s.47 inquires in last lecture

-those enquires are being fustrated by acces of child being unreasonably refused but personally believes access is required on matter of urgency

77
Q

how can a court make epo on which basis in this sit?

A

Now here court can make an epo on basis that the applicant has reasonable cause to suspect that the child is suffering or likely to suffer sig harm, and urgent access to child is required

78
Q

what is meant by the word suspect?

A

Now word suspect has a lower criteria than reasonable cause, so u have is s.47 inquiry already, ur being denied access to child almost satisfies s.44 1 b

  • suspect = child is suffering harm- access if u suspect don’t need to prove anything just have to have with suspicion- with epos.
79
Q

how do you achieve s.47 1 b?

A
  • s.47 - allows u to inquire

s. 47 1b- epo if access being frustrated = raises suspicion

80
Q

what is s.44 4?

A

s 44(4) – limited PR for the applicant

81
Q

what is s.44 5?

A

s 44(5) – 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 and reasonably required to safeguard or promote the welfare of the child

82
Q

s.44 5 extra?

A

can’t consent to medical treatment or life changing surgery but can give consent to be examined by doctor

83
Q

In order to satisfy whether child is likely to suffer harm or is suffering harm?- s.44 (6)?

A

Epo like most orders can have a limitation so epo might say child not aloud to contact certain persons
-court may impose limitations – s.44(6)

84
Q

what happens when you talk about examinations on children

A

child can refuse to be examined, and then a real power exclusion under s.38

85
Q

what are the possible exclusions under?

A

Possible exclusion under ss38A, 38B, 44A and 44B

86
Q

e.g of power exclusion

A

Child to remain in home, fairly traumatic for child to be removed and put some where unfamiliar, but can exclude someone under epo instead which is better. That particular exlusion order will have warrant arrest so u can arrest if order breached

87
Q

How will that type of exclusion order work?

A

In order for that to work, person remaining in home parent, must agree to exlcusion order bc they have to uphold it – give la power to remove child so its quite severe really

88
Q

what does ss38A, 38B, 44A and 44B do?

A

Under 38 a b court excludes person 44 b person agrees to be excluded to stay away from home

89
Q

what is s.35?

A

Supervision Order (s.35)

90
Q

when can you use supervision order? 2 situations

A

where as la only way to protect children is to share pr of children.

  1. la and parents both have pr
  2. alternatively la takes over pr for child
91
Q

what is s.31 1 b?

A

s 31(1)(b) – places the child under supervision of designated LA

92
Q

what about supervision orders?

A

it gives la degree of control over children and its less intervention in family than care order

93
Q

how long do they usually last?

A

Normally last around a year

94
Q

what is the obligation of supervisor?*

A

supervisor becomes support in family , parents don’t have to do anything apart from obstruct,?? And if parents don’t coop then it can result in a care order , it can come in condition s e.g child has to go certain nursey, school has to lvie in certain place, assuming u know parents dont lose pr?

95
Q

what is s.33?

A

Care Order (s.33)

96
Q

what is a care order?

A

la designated order to recieve child into care and keep where order remains in force

97
Q

Who can apply for care orders?

A

Only la or authorised person (NSPCC or person authorised by Secretary of State to bring care proceedings)

allowed to apply- in regards to pr (up exam mark)

98
Q

what about pr in care orders?

A

Under here the la will acquire pr and they can share that with the parents

99
Q

Applying for a care or supervision order what 2 things need to be satisfied?

A
  • threshold criteria (s.31)
  • in the interests of the child that the order is made

THRESHOLD SATISFIED AND INTERESTS

100
Q

Where do u look at threshold in stat book?

A

s. 31- there Is link between A AND B, have to show both, so
- just bc estab sig harm doesn’t mean an order is made , also parents cannot require a care orde, don’t get just bc asked for one

101
Q

what is the actual threshold criteria in stat?

A

31 2- this is wooly. sig harm is Re B (A Child) [2013] – value judgement, appraisal or an evaluation. So whether or not u think child suffering harm is not tick book is just appraisal or eval

102
Q

what is the 1 thing you need to understand?

A

1 thing need to understand is harm or likelihood is either bc child being beyond parental control or lack of parental care?? So 2 b 1 is lack of parental care really and as statute says must be a link between a and b

103
Q

What is ‘harm’?

A

s.31(9)- ill treatment or impairment of health or development inc imapirment suffered of seing or hearing ill treatment to another

104
Q

what does this harm section take into account- impor?

A

takes into account seeing domestic violence, so if child In violent house hold –= harm

105
Q

what does development mean?

A

Development = means physical emotional intellectual social health physical mental and ill treatment covers sexual abuse and other forms of non physical ill treatment

106
Q

what about this section?

A

So its quite wide ranging , it covers things such as if ur ignored parents not talking to u, deprived of opportunity development e.g parents don’t sen u to school, being refused medical treatment

107
Q

What is ‘significant harm’?

A

s.31(10)- where q of whether childs harm sig turns on the childs health and develop, his health and develop should be compared with that which could be reasonably expected of a similar child

108
Q

what happened in re Ma?

A

Re MA (Care: Threshold) [2009] -children kicked and slapped by parents and they said in that case that harm needed to be significant enough to justify the intervention of state - was sig enough

109
Q

what can you bring?

A

Can bring in experts to assess child - harm that is considerable, noteworthy or important (although the
courts are reluctant to define)

110
Q

what do you also need to consider that is impor with sig harm?

A

Like almost everything in life context is important e.g so child brittle bones , so need to put child in context of its family??

111
Q

Establishing Significant Harm?

A

need facts – alleged but non-proven fact is not a fact

  • Lord Nicholls in Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] said that the word ‘satisfied’ in s 31(2) is the language of proof, not suspicion, and it would be odd if unproven facts which could not show that the child is suffering harm could nonetheless be used to infer future harm.
112
Q

in order to be fair what should you establish?*

A

In order to be fair u need facts to establish child suffering sig harm – alleged, so suspicion and allegation are NOT FACTS – case where step child accused ste father of sedusal abuse went court and acquitted ….:// unproved allocation however word satisfied

113
Q

what are that should be taken into account that lord nic said?

A

Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations and facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm.

114
Q

what was the general rule that nich said?*

A

genrual rule is bc that’s fair in order to establish future harm need to estab past harm , if fact u can use it if not still might be able to use it such as an unproved allegation

115
Q

what happened in Re B (Children) (Sexual abuse: Standard of Proof) [2008]?

A
  • Here the court revisited Re H
  • cases are similar
  • emphasis on relying on proven facts (not unproven suspicions)

sexual abuse of child and being found not guilty

116
Q

why was the husband found not guilty?

A

there was therefore no evidence on which that the court could infer that other members of the family were likely to suffer significant harm. The judge’s suspicions or lingering doubts could not form a proper basis for concluding that likely significant harm had been established.

117
Q

what did dissenting judges say?

A

although evidence failed to meet the required

standard – it is still evidence and should not be disregarded

118
Q

what are the ethical issues of this case?

A

There are some ethical issues about using non proven all to support future conduct, hw weight of evidence might be so much that u can take it into account

Family Law (21 decks)

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