Children- Protection Flashcards
what must be proved when looking under s.31?
- is suffering or likely to suffer
- note the use of the present tense- act written in present tense, so what point are u judging it
what are you looking at when it comes to the present tense?
present tense looking at what is relevant not in need suffering harm:
1- is date of the hearing
2nd - date at which it measures were initiated
so at what point are you judging
re m case shows it was the at the first intervention
- What is the relevant date for assessing harm? - in re case & problems?
Re M (A Minor) (Care Order: Threshold Conditions) [1994] - at the time protective measures were initiated
problem- time and delay btw 2 dates, child might not be suffering at that point, raises problems bc if you settled child in a new environment u havr to look at the choices that u have for that child and its this issue that raises issues of social policy
so what is it that you are essentially doing?
weigh up right of interference and the childs right to be settled
e.g of interference and settlement?
Even if child is settled and happy, it doesn’t stop care order being made, court can still impose care order even if child is settled which raises other issues
what does the Onus of proof have to be on
Onus of proof:
- on the applicant - balance of probabilities i. e has to be more likely than not that child will suffer harm 51% likely
what is under Likelihood of harm?
- poor parenting may justify early intervention -, remember the harm has to be considerable note worthy or important, but then ur really looking for an established pattern f poor parenting that u know will result to sig harm
- may be difficult to establish- have probs with proof so it may be diff to establish
Meaning of likely?
likely to suffer harm
- a real possibility that cannot sensibly be ignored
- does not require proof that it is more likely than not that the child will suffer
what does it mean in regards to real possibility?
u have to prove less than required proof that its more likely, than not, that the child will suffer harm, so it’s a lesser burden than when you’re talking about future
what was meant by Re H (A Minor) (Section 37 Direction) [1993] ?
Court not limited to looking at present and immediate future (includes distant future)
what happened in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] ?
Lady Hale provided further guidance on the threshold criteria
what is the prob with lady hales guidance?
not necc helpful-courts reluctant to do is define likelihood too much.
- we have these thresholds for likely hod harm threshold quite low, as with all these things. Have to build up picture of the child, where it lives, how cared for and what future going to be, These are gut feelings not tick box excercise
what is not enough?*
Simpy to state there risk not enough- sort of protecting rights of family under human rights act, state int has to be justified and justified through evidence
Lack of Parental Care – s 31(2)(b)(i)?
talk about lack of parental care and the child being beyond parental control
Meaning of word ‘attributable’ – must be a causal link?
- must be link between harm and care that’s being provided.
- it does not have to be the sole or dominant ,
- so the lack of parental care must contribute towards the harm
- -e.g this comes under cover FAILURE 2 PROTECT -if parent employs an inadequate child minder and child is injured the childs injury can be attributable to lack of parental care bc child employed that inadequate child minder, so its obviously due to actions of the child minder but also the actions of parents failing to vet the child minder
what happened in Lancashire CC v B [2000] ?
Lancashire CC v B [2000]-care given by someone (not necessarily the parent) was not of the standard expected of a reasonable parent.- all that needs to be shown is care given not up to standard 2. EXPECTED STAND
Test is: what would the reasonable parent do
even though says parent- doesnt always have to be
what is the test?
objective- judges against ur peers, would it be reasonable- no
what is meant by excludes injuries from medical conditions & case?
- EXCLUDES MED-Islington LBC v Al Alas, Wray and Al Alas-Wray [2012]
- even though child injured in parents care, might suffer sig harm, this is not atrribable to lack of parental care
what about accidents?
not every accident and obvs there needs to be some sort of pattern
what is Beyond Parental Control - s 31(2)(b)(ii)?
here youre not looking at parents, ur looking at what child is doing
case for beyond parental control?
M v Birmingham CC [1994]
- wayward 14 year old girl-had uncontrollable and disturbed pattern in behaviour??? Her mother did all she could to help her and even though mother not to blame she was still beyond parental control
General notes: what are the additional matters to remember?
Additional matters:
- Remember an order cannot be made unless threshold criteria is satisfied
- an order is not automatically made if the threshold is met
- must be in the best interests of the child
- child’s welfare is the paramount consideration (s 1 CA 1989)
- proportionality
Additional matters in short?
- u need to prove is the threshold criteria is satisfied that child likely at harm suffering harm
- must be of childs best interests
- child welfare is paramount - section 1 subsec 3- better to make order than not?
- proportionality-means that the outcome must be properitoante to harm , so the intervention and the outcome must be proportionate to the harm suffered by the child,
what should you always start with in regards to proportionality?
Always start with less intrusive meausres
- if they dont work then build up to super and care orders
e. g so if child not going school would be disprop to take to care, but if child neglected = care order
THE INTERVENTION MUST JUSTIFY
what can you not do with care order?
Cannot take a child into care without consent of everyone with PR or court order
How do courts avoid social engineering?
courts will do a gate keeper role, once care order is made, courts= no more power goes into la role
what is a gate keeper role?*
decides if care order should be made or not
gate keeper role case?
Re G v Nottingham CC [2009]
- removal of newborn baby from its mother - court has a gatekeeper role - s 31(3) – no order for a child 17 or over - burden of proof is on the applicant
what do you use if want to remove child?
Care or Supervision Order?
so u can have care order leave child with fam but if anything goes wrong take child immediately
what if child staying with family ?
supervision or care order
what can you combine?
epo with supervision order gives u a lot of power-supervision order requires coop of parents-if u don’t coop as parent all u do is ur denying access to child and gives people to up protection for child
how would you advise not coop parents in exam?
advise ful coop otherwise, ifonly way la can get access is epo or care order tehy will and parents will lose control over children. remember that state has duty to work with families to keep children s in homes not against them
what must the court do once la grant?
Once the LA decides to apply for care or supervision order, the court must decide whether to grant one
.-This is bc once appl made need to investigate 4 evidence, so before hearing = evidence gaining exercise
In between apply for ct order u need- medical reports, school assessments
To give the court time and to help assessment it may order the following?
Interim Orders (s 38) children at risk between la applying for order and the hearing & so if there's app for care of supervision order court might make an interim care or supervision order, aim is to keep child safe
-so it could be that the child is temporarily removed or can stay with parents or someone interferes
what is s.37?
investigation section
why court order for assessments?
Assessments (s 38(6)-Someone unwilling to ytake child for asses so need court order
it can be all four points?
- e.g. medical or psychiatric examinations
- can include an assessment of the parent with the child
- child can decline to be assessed
- Aim is to give the LA a clear idea about the nature of the harm being suffered or likely to be suffered
when child declines=?*
GILICK- child can say own thing
