The relevant law in this area is the Children Act 1989 (the “1989 Act”).
Key principles covered by the 1989 Act include local authorities’ duties to consider whether action should be taken to safeguard or promote a child’s welfare and when to initiate Care Proceedings.
In Wales, the 1989 Act has been complemented by the Social Services and Well-being (Wales) Act 2014 (the “2014 Act”).
The 2014 Act provides the framework for social services.
Children In Need
A child is to be taken to be ‘in need’ if:
- 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 the Local Authority; or
- 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.
A Local Authority has a duty to children who are deemed to be ‘in need’; this duty includes:
- to safeguard and promote the welfare of children within its area who are in need; and
- so far as is consistent with that duty, to promote the upbringing of such children by their families.
Any service provided by a Local Authority to a child can also be provided to the child’s family or any member of the child’s family, if it is provided with a view to safeguarding or promoting the child’s welfare.
Provision of Accommodation
A Local Authority must provide accommodation to any child in need within its area if there is no person who has parental responsibility for him, he is lost, or abandoned, or the person who has been caring for him is prevented from providing him with suitable accommodation or care.
‘Looked After’ Children
Children who are the subject of a Care Order or who are accommodated by the Local Authority are ‘looked after’ by the Local Authority; in such circumstances, the Local Authority is acting in a parental role and is under a duty to safeguard and promote the child’s welfare and to make use of services available for children.
Care and Supervision Orders
A Care Order is an order placing the child in the care of the Local Authority
A Supervision Order is an order putting the child under the supervision of the Local Authority, or of a probation officer.
An application for a Care or Supervision Order can only be made by a Local Authority; the Court has no power to require a Local Authority to commence proceedings, nor can it make an order unless there has been an application.
A Court may only make a Care or Supervision Order in respect of child who is under 17 years of age if it is satisfied that:
- the child concerned is suffering, or is likely to suffer, significant harm; and
- the harm or likelihood of harm is attributable to –
- the care given to the child, or likely ot be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or
- the child being beyond parental control.
These conditions have become known as the ‘threshold criteria’. They are not in themselves grounds for making a Care or Supervision Order buy the minimum circumstances which must be found before the court could be justified in making such an order.
Once Care Proceedings have been instituted, the court has the power to make:
- an Interim Care Order;
- an Interim Supervision Order; or
- a Child Arrangements Order (or such other section 8 Order) for a limited time.
An Interim Care Order and an Interim Supervision Order has the same effect as a final order, except the order can include directions as to the examination or assessment of the child and will be of limited duration.
Special Guardianship Orders
Special Guardianship places a child or young person to live with someone other than their parent(s) on a long-term basis. The person(s) with whom a child is placed will become the child’s Special Guardian.
A Special Guardian will get Parental Responsibility for the child until the child reaches the age of 18.
Section 8 Orders
Under section 8 of the 1989 Act the court can make an order stating with whom the child should live.
Family Assistance Orders
A Family Assistance Order requires a professional to advise, assist and befriend a person named in the order.
In the application for a Care Order, the Local Authority should outline what plans it has if a Care Order is made.
Before making a Care Order, the court must consider the Local Authority’s arrangements for contact and must invite the parties to comment.
Effect of a Care Order
A Care Order will remain in place until a child reaches the age of 18 years; unless it is brought to an end earlier.
A Care Order gives the Local Authority parental responsibility jointly with any other holder (e.g. parents). However, the Local Authority has the power to determine the extent to which a parent may exercise their parental responsibility.
On the making of a final Care Order, the court is effectively handing over responsibility for the child to the Local Authority.
Effect of a Supervision Order
A Supervision Order places the child under the supervision of the Local Authority; the Local Authority does not acquire parental responsibility.
The basic duties of the supervisor are to advise, assist and befriend the child, and to take steps to give effect to the order.
Contact with a Child in Care
Before making a Care Order, including an interim Care Order, the court must consider the Local Authority’s arrangements for contact.
As contact is so important for a child, the Local Authority should, if possible, place the child with a member of his family or, if that is not possible, in accommodation near to the child’s home. The Local Authority may also give assistance in travel and other expenses incurred in visiting the child to any person to whom there is a duty to promote contact.
There is a general duty on the Local Authority, subject to its duty to safeguard and promote the welfare of the child, to promote contact between a ‘looked after’ child and his parents, others with parental responsibility, and relatives, friends, and others connected with him.
If appropriate, any person can apply as of right to be allowed contact with a ‘looked after’ child.
Discharge of Care Order
A Care Order remains in force until the child reaches 18 years of age, unless it is brought to an end earlier.
The order may be brought to an end by the making of a Child Arrangements Order, the substitution of a Supervision Order, or by the making of an Adoption Order, or a Discharge Order.
An application for discharge of a Care Order can be made by anyone with parental responsibility, the child, or the Local Authority.