In the context of Shona and her family, this assignment will firstly review the powers and orders necessary to bring the children to be looked after by the local authority along with the governing principles. It will then discuss relevant areas for review and the required order to ensure good care for the children, including how and when these should be reviewed. Finally, looking at the significance to the case study of s17 of Children Act, 1989 along with considering the different services presented to each sibling whilst in care.
Shona’s case is discovered by police officers under-taking ordinary duties when social services departments and the courts are closed (Masson, 2001). CA, 1989 s46(1) gives the police power, without going to court, to remove or detain children for 72 hours if they have reasonable cause to believe that the children are likely to suffer significant harm (Brammer, 2010; Powell, 2001).
Social Service Managers recognise the value of s46 as an emergency intervention but have criticised its excessive use as a result of police anxiety (Masson, 2001). The principle is that courts should make a decision to remove children wherever possible; therefore, s46 is to be used in exceptional circumstances. The local authority should have in place with the Clerks to the Justices an out of hours Emergency Protection Order (EPO) application process (HO Circular, 2008).
Emergency Protection Order
EPO is a short-term emergency measure, lasting up to 8 days with a possible extension of a further 7 days, whilst the local authority under CA, 1989 s47 investigates the children’s welfare. S44(1) of the act outlines the grounds for applications for an EPO of which there are two forms (‘any person’ and ‘likely to suffer significant harm’). The local authority’s application for Shona and her siblings is on the grounds that they are likely to suffer significant harm due to domestic violence. Although the court may agree that there are grounds for an EPO, it still needs to apply the principles contained in Part 1 of the act.
Principles governing the decision-making
CA, 1989 s1 states that, “the child’s welfare shall be the court’s paramount consideration”. The meaning of s1 has been closely examined and criticised due to its wide range of interpretations (Brammer, 2010; Brayne and Carr, 2010). “Decisions based on the welfare of the child are ultimately value judgements” (Ryan, 1998: 8) Therefore, a checklist was added to maintain consistency and provide clear understanding (Ryan, 1998 and Brammer, 2010). For an EPO the court must consider the welfare principle but it does not have to consider the checklist (Brayne and Carr, 2010).
CA, 1989 s1(2), supported by European Court of Human Rights article 6(1), emphasises that any delay in court proceedings is potentially harmful to the welfare of the child (Brayne and Carr, 2010), therefore, the court needs to have regard to the non-delay principle.
The Public Law Outline (PLO), 2008 attempted to address case management and avoid delays in court proceedings by setting a timetable. Masson argues that “Legislating against delay did not change working practices; adult parties continue to create advantageous delay” (2010; 55).
CA, 1989 s1(5) directs courts to make no order, even if the harm threshold condition is satisfied, unless it considers that making an order would be better for the child than making no order at all (known as the ‘no-order’ principle). The principle recognises the need for proportionality with three foundational aims: 1) “discourage unnecessary court orders”, 2) “to ensure that the order is granted only where it is likely positively to improve the child’s welfare” and 3) discourage the making of unnecessary applications (DCSF, 2008: 7).
If government guidance ‘discourages unnecessary applications’, this may account for research findings showing a general misunderstanding of this principle amongst local authorities who interpret it to mean that cases should not be taken to court unless it is totally necessary. The recent increase in court applications may demonstrate that the principle is not preventing Social Workers from carrying out their duties (DCSF, 2008; Brayne and Carr, 2010). The majority of court proceedings have resulted in orders being granted, therefore Mason argues, “Neither the public nor the courts themselves have accepted the ‘no order’ principle” (2010, 57).
Areas Needing to be looked at:
As Shona has been in care for approximately three years, the local authority would have applied for a court order. This cannot be obtained without meeting the threshold criteria of CA, 1989 s31: identifying significant harm, cause for the harm and no order principle (Ryan, 1998; DOH, 1999). Significant harm has to be found to exist before the court will intervene in family life, however, as the term is not defined it causes considerable problems of interpretation. The Adoption and Children Act, 2002 s120 broadened harm to include witnessing or hearing it, which would be relevant in the case of Shona (Brammer, 2010).
The children would be assessed under the child protection structure due to the physical abuse Liam endured and his sisters witnessed. This structure has evolved through a series of reports and government circulars. In 2008, the Children Act Guidance Volume One was revised and issued under s7 of the Local Authority Social Service Act, 1970 which provided clarity for what should be completed before making an order application (Brayne and Carr, 2010). Working Together to Safeguard Children, 2010 provides interagency guidance on assessment and investigation. The Framework for the Assessment of Children in Need and Their Families, 2000 provided, under one structured system, a “holistic assessment” and planning tool for all children in need (Thomas, 2005: 83).
Using the framework, the local authority, through the core assessment process, will need to consider both the children’s and parent’s needs along with those in the wider family and community, to reach a decision that an order is necessary to safeguard their welfare. The local authority would also need to seek legal advice and communicate to the parents their concerns (DCSF, 2008).
ACA, 2002 amended s31 of the CA, 1989 so that an order cannot be made until the court has considered a care plan (Brammer, 2010). A separate plan would be required for Shona, Liam and Siobhan so the court can consider their individual needs. The plans should be based on findings from the initial and core assessments with the structure, as guided by Local Authority Circular 99(29), 1999, being: 1) overall aim, 2) child’s needs, 3) views of others, 4) detail on placement and 5) local authority management. The court’s decision on the no-order principle will take into account the care plan for verification as to how the order would be applied (DOH, 2000).
What Orders May Have Been Necessary
In having met the threshold criteria, completed assessment and care plan the local authority under s31 would apply for a care order for the children. A care order, rather than a supervision order, involves the children being removed from their home and provides the local authority with shared parental responsibility for the children alongside the parents (Brayne and Carr, 2010).
Reviews by Local Authority
Upon granting an order, the court has no influence in the plan being carried out (Brammer, 2010). ACA, 2002 amended s25(a) CA, 1989 by requiring an Independent Review Officer (IRO) to be appointed to “chair all review meetings of looked after children, ensure the child is involved in the review and will challenge poor practice, and any drift in implementing the Care Plan” (HMG, 2003: 45). If the plan is not implemented the IRO can pass the case to CAFCASS who can now return it to court (Brammer, 2010).
CA, 1989 s26 makes it a legal requirement for local authorities to regularly review the children’s care plans. Reviews “ensure that it [plan] is being effectively implemented and to make any changes that have become necessary” (Thomas, 2005: 76). All involved in the care of the children, including the child, should be involved in the review. The minimum requirements which reflect the no-delay principle, are set out in the Review of Children’s Cases Regulations 1991, amended in 2004. The first review should be held within four weeks of the children becoming looked after, followed by a further review at three months later and then six monthly (Brammer, 2010; Ryan, 1998).
Relevance of s17 to case study
Views of Parents
Under s17 of CA, 1989, the local authority has a general duty to promote the upbringing of children in need by their families and with article 8 of the Human Rights Act, 1989; they would need to justify any interference in family life. Working Together, 2010 re-emphasized the commitment of partnership with parents in making plans for the welfare and protection of their children. There are a number of ways the local authority can work in partnership with Shona’s parents; through consultation, taking into consideration their views, attendance at case conferences and being notified of any public proceedings (Brayne and Carr, 2010).
CA 1989, s17 also makes clear that the first priority is to promote and safeguard the children’s welfare and then try to keep them within their family (Brayne and Carr, 2010). Provided that the welfare and safety of the children is paramount then potentially there should be no conflict between the principles of family support and child protection (Parton, 1997). However, research has shown that full partnership is difficult to reach when risks are high and families disagree with the perceived risks (Bell, 1999). The recent case of Baby Peter has highlighted the importance of Shona’s Social Worker having the skill to recognize when partnership with the parents is failing to protect them (Brayne and Carr, 2010). The father’s violence towards the children could be a reason to exclude him from any conferences but his wishes can be obtained by other means (DCSF, 2010). It is also important to recognise that the children’s views and wishes may be different to their parents.
The Children Act, 2004 s53 amended s17 of CA, 1989 making it a requirement that before deciding what services should be provided the children’s wishes should be obtained and given consideration (DCSF, 2010). CA, 1989 s22 by mentioning the child before the parents suggests that the child’s wishes are to be the first consideration (Brayne and Carr, 2010).
The law has also been criticised for assuming that it is possible to know objectively what is in a child’s best interest but instead should give the children themselves a role in determining what happens (Thomas, 2005). However, the emphasis of listening to the child’s wishes has recently been criticised as it undermines the courts authority to make a best interest decision (Times, 2010). “Laws, policies and procedures continue to reflect he tension between these twin goals of safeguarding children and advocating their rights” (Adams, 2009; 304). To ensure that the child’s interests, wishes and rights are upheld in court, CA, 1989 s41(1) contains the duty, if required, for a Children’s Guardian to be appointed from CAFCASS (Brayne and Carr, 2010).
The local authority whilst taking into consideration the views of the children and parents, will have regards for s17 when considering placements for the children. The CA, 1989 s44(a) was amended by the Family Law Act, 1996 giving “power to include exclusion requirement in emergency protection order”. This could have been an option looked at in the case of Shona with the father being excluded from the family home (Brayne and Carr, 2010). Consideration of family members and friends as potential carers for Shona and her siblings should be explored and clearly demonstrated in their care plans before making a court order application (DCSF, 2008). S23(7) CA, 1989 promotes contact between parents and children with local authority, as is reasonably practicable, providing accommodation near to the family home and keeping siblings together. Under schedule 2 of CA, 1989 there are powers given to the local authority to assist in maintaining links between children and their family (Brayne and Carr, 2010).
Options Available to each child
Family Group Conference
There are several methods for compiling the children’s care plans, with one such option being Family Group Conference (FGC) (Thomas, 2005). FGC has been described as a, “realistic methods for merging the needs and interests of children and families and the protection concerns of public child welfare agencies, the courts, and the community” (Chandler and Giovannucci, 2004: 217). Although there is no factual data, reviews of FGCs have implied that it is not a suitable option for domestic violence cases due to the welfare of the child. However, in the case of Shona, FGC may have been a viable option when initially becoming children cared for to help explore the welfare concerns, deciding what services are necessary and to take into consideration the children and parents views when considering permanency so to prevent the children becoming entrenched in the care system (Chandler and Giovannucci, 2004).
The local authority has a power under s20 CA, 1989 to provide accommodation to the three children (Ryan, 1998). From initially coming into care (the sisters going to foster care and Liam to residential care) up until their current situation (Shona and Siobhan different wishes to return home) decisions on the provision of accommodation have been paramount with the options to be explored being: kinship, foster care, residential, reunification, adoption and independence. ACA, 2002 provides guidance on the “timescales for decisions about adoption” with permanence, including adoption, needing to be considered at the second care plan review (Brayne and Carr, 2010: 378).
Education / Crime
Due to the highly publicised statistics of children in care’s educational underachievement, crime rates and employability, the recent government has made a number of changes to legislation. Under s20 of the Children and Young Persons Act, 2008 all three children will have (had) “a designated member of staff” at their school “responsibility for promoting the educational achievement”. The local authority under s22 should provide for under 25 year olds “assistance to pursue education or training” which is relevant to Liam and Shona’s current situation (Brammer, 2010: 356). Although the agenda for change is not without criticism, “Its policy recommendations are framed within a social investment approach which values education as the route out of exclusion and into employability” (Williams, 2004; 423).
Schedule 2(7) of CA, 1989 puts an onus on the local authority to “take reasonable steps designed to reduce the need to bring criminal proceedings against such children” (Brammer, 2010: 369). Therefore the Youth Offending Team (YOT) could be a service considered for Liam. Adams argues that the number of detained children is high in the UK with, “policy and practice regarding children and young people who have committed offences remain stubbornly resistant to welfare principles” (2009; 318).
In 2003 the government published Every Child Matters (ECM) which introduced five outcomes for service providers to make arrangements to improve the well being of children: “being healthy, staying safe, enjoying and achieving, making a positive contribution and economic wellbeing” (2003:6-7). CA, 2004 was passed to provide a statutory framework for applying ECM with the five outcomes included in s10(2) of the act (Brayne and Carr, 2010). The act also introduced the requirement for working together of statutory departments and other relevant bodies for achieving the five outcomes (Brammer, 2010). In theory this provides Shona, Liam and Siobham with greater opportunity for services from public, private and voluntary sectors, however, this legislative change did not come with an increase in budget (Williams, 2004). The responsibility of the local authority to provide services to the children is outlined in schedule 2 of CA, 1989. The wording is moderated for example ‘reasonable steps’ or ‘consider appropriate’, therefore the local authority can prioritise services based on what is available rather than having to meet every need (Brammer, 2010). When more than one agency is involved in the children’s care a lead professional will be appointed to “be responsible for ensuring a coherent package of services to meet the individual child’s needs” (HMG, 2003: 9).
In the situation of Shona and her family, this assignment has highlighted the current social and political thinking towards safeguarding children with the balance in the CA, 1989 between welfare and children’s wishes; the emphasis on partnership with parents; the importance of accountability through reviews and the value placed on children remaining with their families. The five outcomes for children in care provide a framework for the provision of services, however, the limitation in budgets does not support the political agenda.